1 fast15625 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL ST.NO.15625 OF 2010 Pramod Dattatray Deshpande ...Appellant vs. sunil Vasant Sathe ...Respondent Mr.Rajesh More for the appellant Mr.V.S.Gokhale for the respondent CORAM : A.S.OKA,J. DATE : AUGUST 11, 2011 P.C.: 1 Heard learned counsel for the appellant. The appellant is the original defendant and the respondent is the original plaintiff. The suit premises is a flat more particularly described in the plaint. The case of the respondent-plaintiff is that the respondent-plaintiff had granted leave and licence to the appellant to occupy the suit premises on licence fee of Rs.3,000/-. The case made out by the respondent is that the appellant committed default in payment of licence fees and therefore, possession of the suit premises was taken over by the respondent. Further case made out in the plaint is that by breaking open the lock put up by the respondent, the appellant entered the suit premises. Therefore, a suit for possession and compensation was filed. The appellant contested the suit by filing the written statement. The appellant denied that he has taken over the forcible possession of 2 fast15625 the suit premises. He contended that he was the tenant of the respondent and the suit premises was let out at the monthly rent of Rs.3,000/-. It was therefore contended that the Civil Court had no jurisdiction to entertain the suit. The Trial Court decreed the suit by passing the impugned decree for possession. 2 The submission of the learned counsel for the appellant is that the Trial Court had no jurisdiction to entertain the suit in as much as there was a landlord tenant relationship between the parties and therefore, the suit was cognizable only by the Court of Small Causes. He submitted that the respondent has failed to prove that the appellant has forcibly entered the suit premises. 3 I have considered the submission. The burden was on the appellant to prove that he was the tenant of the respondent. Admittedly, the appellant did not adduce any evidence. The appellant did not cross examine the respondent. Therefore, the Trial Court rightly found that the appellant has not discharged the burden on him to prove that he was the tenant in respect of the suit premises. The appellant did not dispute the ownership of the respondent over the suit premises and he made an attempt to defend the suit by raising a plea of tenancy. Once, the appellant fails to substantiate the plea of tenancy, the decree for possession must follow as the ownership of the Respondent was not disputed. In absence of any evidence, the Trial Court rightly accepted the case made out by the respondent that 3 fast15625 the appellant has broken open the lock put by the respondent on the suit premises and has forcibly entered the suit premises. 4 Along with the appeal, the appellant filed an applications for condonation of delay and stay. It will be necessary to make a reference to the order passed by this Court on 6 th August 2010 on the application for condonation of delay. The said order reads thus : 1 This civil application is for condonation of delay of 281 days caused in filing the first appeal. List the Civil Application for further orders after six weeks. 2 In order to test the bonafide of the Applicant, applicant is directed to deposit the amount of compensation for the period from February 2003, till December 2006 @ Rs.3000/- per month in this Court (which comes to Rs.1,41,000/-) within four weeks from today. Learned counsel for the Applicant states that applicant will deposit the said amount in this Court within four weeks from today. 3 In the meanwhile, ad-interim order granted in terms of prayer clause (a) of the Civil Application no.2386 of 2008 shall remain in force. 5 Admittedly, the applicant did not deposit the said amount. An application made by the appellant for modification of the said order has been rejected by this Court. 6 In view of the failure of the appellant to 4 fast15625 contest the suit by cross examining the respondent and by adducing evidence, no fault can be found with the impugned Judgment and Decree. Appeal is accordingly dismissed with no order as to costs. 7 Civil application Nos.2386 and 3504 of 2010 do not survive and the same are disposed of. JUDGE