AGK IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.1285 OF 2004. APPEAL NO.1285 OF 2004. APPEAL NO.1285 OF 2004. Bharavi Subhash Oak ...Appellant Versus. Damodar Govind Tilak ...Respondent Shri S.V.Oak for the Appellant. Shri Mandar Limaye for the Respondent. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATE DATE DATE : 25th MARCH, 2008. : 25th MARCH, 2008. : 25th MARCH, 2008. P.C.: P.C.: P.C.: 1. Heard the learned advocate appearing for the appellant. The appeal is by the original plaintiff. The dispute relates to a residential premises. The appellant-plaintiff filed an application in the year 1998 under section 13A-2 of the Bombay Rents, Hotel and Lodging Houses Rates (Control) Act, 1947 alleging that the respondent was inducted in the suit premises as a licensee and on termination of the license, he should be evicted. The learned competent authority rejected the said application. The competent authority referred to the present suit filed by the appellant-plaintiff for eviction of the respondent-defendant on the ground that the respondent was a caretaker of the suit premises. The competent authority observed that as the specific case of the appellant was that the respondent was a caretaker, he cannot contend before the competent authority that there was relationship of a licensor or licensee. : 2 : 2 : 2 : 2. In the suit the case made out by the appellant-plaintiff is that the respondent was occupying the suit premises as the appellant’s caretaker. The respondent defended the suit by filing written statement. The contention of the respondent was that he was a tenant in respect of the suit premises. The first issue framed by the trial Court was that whether the respondent was a caretaker in the suit premises. The said issue was answered by the trial Court by holding that the respondent was a licensee. The trial Court held that as the licence was revoked, the possession of the respondent was unlawful and therefore, the trial Court proceeded to pass a decree for possession. In the appeal preferred by the respondent, the first Appellate Court has interfered. The first Appellate Court held that the appellant has failed to establish that the respondent was a caretaker. Therefore, the suit filed by the appellant has been dismissed. 3. The submission of the learned advocate for the appellant is that though the appellant contended that the respondent was a caretaker, in substance the case of the appellant was that the respondent was a licensee and that he was in permissive possession of the suit premises. His submission is that there was no suit filed by the respondent for establishing his tenancy. : 3 : 3 : 3 : He, therefore, submitted that the possession of the respondent was permissive in nature and therefore, the trial Court was justified in passing a decree for possession. He submitted that merely because there was an evidence on record to show that the respondent had made certain payment to the appellant’s father that will not take away the character of the relationship between the parties and only on that ground it cannot be held that the respondent was not a caretaker. 4. I have considered the submissions. The application made under section 13A-2 under the said Act of 1947 before the competent authority was prior in point of time. The said application was rejected by the competent authority by holding that there was no relationship of licensor and licensee between the parties. In the suit filed by the appellant, the trial Court did not accept the case made out by the appellant that the respondent was a caretaker. The trial Court observed that the respondent was a licensee. The appellant had gone to the Civil Court with a very specific case that the respondent was a caretaker. Therefore once the appellant failed to establish that the respondent was a caretaker, the decree for possession could not have been passed by the trial Court. : 4 : 4 : 4 : 5. The appellate Court has referred to receipts at Exhibits 60 and 61 issued by the grand father of the appellant as well as letters at Exhibits 62 and 63 issued by the father of the appellant. The said receipts show that certain charges were recovered by the grandfather of the appellant on account of occupation of the suit premises by the respondent. In fact, in some of the letters written by the appellant’s father the payment made by the respondent was labelled as a rent. 6. The appellate Court found that the said conduct of the appellant’s father and grandfather of accepting certain amounts from the respondent was totally inconsistent with the case made out by the appellant that the respondent was a caretaker appointed by him. That is the reason why the case made out by the appellant that the respondent was a caretaker has been disbelieved by the appellate Court. The trial Court never accepted the said case. However, the trial Court passed a decree on the ground which was not made out in the suit. 7. I find that in view of findings of fact recorded by the appellate Court, no substantial question of law arises. Second Appeal is accordingly dismissed. No orders as to costs. : 5 : 5 : 5 : Judge. Judge. Judge.