( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPELATE JURISDICTION CIVIL APPELATE JURISDICTION USJ FIRST APPEAL NO.544 OF 1997 FIRST APPEAL NO.544 OF 1997 FIRST APPEAL NO.544 OF 1997 Dr.Mrs. Roshan Sam Boyce sinnce deceased her LR. Dr. Rustum Sam Boyce ..Appellat V/s. G.T. Demble & Anr. ..Respondents ...... Mr. Zubin Kamdin a/w Ajay Khaire and Ms. Prachi Mhatre i/by M/s. M.S. Bondhanwalla & Co. for the appellant Mr. Anil C. Singh for respondent No.1 ...... CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATED : 5th May, 2009 DATED : 5th May, 2009 DATED : 5th May, 2009 ORAL ORDER : ORAL ORDER : ORAL ORDER :- 1. The original appellant herein instituted L.C. Suit No.6425 of 1978 against respondent No.1 and one Mr. Naresh H. Melwani who was shown as defendant No.2 in the said suit. The original appellant sought a declaration that respondent No.1 is a trespasser in regard to the suit premises more particularly described in the plaint of the said suit. The original appellant also claimed certain declaration so far as said defendant No.2. The original appellant also sought an order against respondent No.1 directing respondent No.1 to handover vacant and peaceful possession of the suit premises. Mesne Profit @Rs.500/- were also sought. Respondent No.1 filed written statement and contested the suit. The original appellant withdrew suit against said ( 2 ) defendant No.2 on 18th January, 1996 and therefore the suit survived against respondent No.1 only. The learned Judge of the City Civil Court gave an opportunity to the original appellant as well as respondent No.1 to lead evidence and after hearing both the sides by judgment and decree dated 29th June, 1996 dismissed the said suit. Against this judgment and decree dated 29th June, 1996, the original appellant herein filed first appeal. During the pendency of this appeal, original appellant died and that is how present appellant is brought on record as appellant. 2. Learned advocate Mr.Kamdin appearing on behalf of the appellant and Mr.Anil Singh appearing on behalf of the respondent No.1 took me through the entire record in the manner in which they wanted this Court to consider the respective cases of appellant and respondent No.1. The learned trial Judge framed issue as to whether the suit is barred by the period of limitation and as to whether defendant No.1 should be treated as a trespasser. The learned trial Judge in paragraph 8 of the impugned judgment has given cogent reasons for the purposes of arriving at conclusion that the suit was filed beyond the period of limitation and answered issue No.1 in the affirmative. ( 3 ) 3. The learned trial Judge also decided the question whether respondent No.1 was a trespasser. The relevant discussion so far as the question whether respondent No.1 was the trespasser is found in paragraph 11 of the impugned judgment. Learned trial Judge after considering the evidence lead by the respective parties, arrived at conclusion that the respondent No.1 has been residing in the suit premises since October, 1947 alongwith one Naresh Melwani original defendant No.2 as a member of the family. Learned trial Judge noted that respondent No.1 and Naresh Melwani were close relatives in as much as respondent No.1 was the brother of the wife of Naresh Melwani and all of them had came to India in the year 1947 as refugees from Pakistan. Learned trial Judge recorded the finding that the original appellant had approached the Court with the false case that respondent No.1 was inducted in the suit premises in the year 1960 by Naresh Melwani, after the said Naresh Melwani shifted from the suit premises. I have perused the entire judgment and evidence on record and I am inclined to observe that the finding given by learned trial Judge that respondent No.1 was residing in the suit premises since October, 1947 as a member of family of Naresh Melwani has been properly arrived at and no interference is required. ( 4 ) 4. In order to call respondent No.1 as trespasser, a better quality of evidence was required and the same is missing. In my view, no interference is required in the finding given by the learned trial Judge whereby the learned trial Judge ultimately arrived at conclusion that the original appellant failed to prove that respondent No.1 was the trespasser. 5. Naturally when the learned trial Judge arrived at finding that original appellant failed to prove that respondent No.1 was a trespasser, the learned trial Judge had to dismiss the suit and has done so accordingly. 6. After having considered the entire matter and the arguments of both the sides, I am inclined to observe that no interference is required in the impugned judgment and the appeal is required to be dismissed. For the reasons mentioned aforesaid, I pass following order in the first appeal. ORDER ORDER ORDER . First Appeal is dismissed. In the facts and circumstances, there shall be no order as to costs. ( 5 ) (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)