1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR MISC.CIVIL APPLICATION NO. 120 OF 2006. IN SECOND APPEAL NO. 108 OF 1992. Dayaram Jagannath Roy .vs.. Roopchand Bramdin Kurambansi -------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. Coram: C.L.PANGARKAR, J. Dated : 14th October, 2008. 1. Heard Mr.L.A.Mohta, Advocate for the appellant and Mr.J.T.Gilda, Advocate for the respondent. 2. A suit came to be instituted by the respondent herein for ejectment of the defendant/appellant from plot No.65, alleging that the defendant/appellant has committed an encroachment on the said plot. It is not disputed even by the plaintiff that the defendant/appellant is 2 tenant in respect of plot No.67. The plaintiff basically filed the suit on the basis of title alleging that the defendant is an encroacher and he should be evicted from plot no.65 being an encroacher or a trespasser. 3. The defendant/appellant had resisted the suit contending that he was a tenant in respect of both the plots. 4. Learned judge of the trial court had framed an issue and found that defendant was not an encroacher and holding so, he dismissed the suit. The appellate court, however, disagreeing with the trial court found that the plaintiff was entitled to possession of the suit plot no.65 and he decreed the suit. 5. The appeal came to be admitted by this court on a substantial question of law “whether in the facts and circumstances of the case and deposition of the plaintiff himself, that defendant has not made any encroachment on his plot 3 gradually from 1978, The appellate court was justified in holding that the defendant has failed to prove that the plot in question was legally let out to him by Nannibai ?”. 6. An application under order 6 Rule 17 of C.P.C. was filed by the appellant along with memo of appeal itself. The appellant sought amendment since the land in question was B tenure land, Nanibai had no right to gift the property or the suit plot to the plaintiff. The second amendment that was sought by the defendant was that the C.P. and Berar Rent Control Order is applicable even to the open plot of land and further defendant sought to raise a plea that the lease was one for manufacturing purpose and, therefore, the suit was not maintenable without obtaining the permission of the Rent Controller. 7. This application was heard by this court and the amendment was disallowed. This court found that the amendment sought by the defendant was contradictory and, therefore, could not be 4 allowed. The appellant, therefore, seeks review of that order. 8. Shri Mohta, learned counsel for the appellant, submits that he would be satisfied if he is allowed to raise the question of application of C.P. and Berar Rent Control Order in this appeal. 9. In this regard, it may be mentioned that the suit itself is not based on the relationship of the landlord and tenant. The suit is based on title and, therefore, there is no question of defendant's raising such a plea at all. The only thing that the plaintiff would be required to prove is his title and if the plaintiff proves the title, the suit must be decreed and the defendant must be evicted. Had the suit been instituted on the basis of the relationship of the landlord and tenant and after giving notice then perhaps such a plea could have been raised. In view of this, I do not find any substance in this review. The application is rejected. 5 Office is directed to list this appeal according to its turn for final hearing. JUDGE pzc