1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR SECOND APPEAL NO.322 OF 2010 MANOHAR WELEKAR ..VS.. MAHESHKUMAR CHAURASIA & ANOR Office Notes, Office Memoranda of Coram, Appearances, Court’s orders or directions and Registrar’s orders Court’s or judges Orders. CORAM: SMT. VASANTI A. NAIK, J. DATE: 2 /9 / 2010 Heard Shri D. L. Dharmadhikari, the learned counsel for the appellant. The appellant is the original defendant. The suit was filed by the plaintiffs for eviction and possession of the suit property. According to the plaintiffs, the plaintiffs were the owners of the suit property and the defendant was occupying the suit property by using a tin-shed constructed thereon. Since the defendant did not vacate the suit premises inspite of the request from the plaintiffs, the suit was instituted. The defendant denied the claim of the plaintiff and pleaded that the plaintiffs had agreed to execute a sale deed of the suit plot in favour of the defendant for consideration of Rs.10,000/- and an amount of Rs.5000/- was paid as earnest amount. The defendant pleaded that the plaintiffs however, did not execute the sale deed. The defendant filed a counter claim seeking a relief of specific performance of the agreement of sale. 2 On the aforesaid pleadings of the parties, the evidence was tendered and on an appreciation of the same, the trial court held that the plaintiffs had succeeded in proving that they were the owners of the suit property. The trial court held that the defendant failed to prove that the plaintiff had executed an agreement of sale on 13.3.1985 for selling the suit property to the defendant for a consideration of Rs.10,000/- . The trial court held that the defendant had failed to prove that he was in possession of the entire plot in part performance of the contract. The trial court, therefore, dismissed the counter claim filed by the defendant/ appellant, but also held that the plaintiffs may not be entitled to a decree of possession as the defendant had constructed the tin- shed on the suit property. Most of the findings recorded by the trial court were confirmed by the first appellate court by the judgment dated 25.2.2010. The first appellate court held that in the facts and circumstances of the case, since it was proved that the plaintiffs were the owner of the suit plot and the defendant had constructed the tin shed thereon, in view of the provisions of Order VII rule 7 of Code of Civil Procedure, the court was empowered to grant the necessary relief of directing the defendant to hand over the possession of the suit property to the plaintiffs by removing the tin shed. 3 The findings recorded by the first appellate court are pure findings of facts based on a proper appreciation of the material evidence on record. The trial court had committed an error in holding that the plaintiffs were not entitled to a decree of possession, merely because, the plaintiffs had failed to seek a relief of direction to the defendant to remove the unauthorized structure i.e. tin shed from the suit property. The first appellate court rightly held that in view of the provisions of order VII rule 7 of Code of Civil Procedure, the court was empowered to grant the necessary relief. The first appellate court did not commit any error in directing the defendant/ appellant to hand over the possession of the suit property to the plaintiff by removing the unauthorized structure i.e. tin shed. Since no substantial question of law arises for consideration in this second appeal, the same is dismissed with no order as to costs. Since the defendant is running a dispensary in the tin shed, three months time is granted to the defendant /appellant to vacate the suit premises, at the request of learned counsel for the appellant. JUDGE smp