( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO. 128 OF 2003 Sahebrao s/o Tukaram Harne, R/o Sailu, Ward No. 5, Tq. Sailu, Dist. Parbhani. APPELLANT VERSUS 1. Imtiyaz Ali s/o Iqbal Ali Khan, R/o Sailu, Tq. Sailu, District Parbhani. 2. Mumtaz Ali Khan s/o Iqbal Ali Khan, R/o as above. 3. Dattatraya s/o Bapuji Kulkarni Since deceased, by his L.Rs. 3A. Smt. Mangalabai w/o Dattatraya Kulkarni, R/o Ram Mandir, Brahman Galli, Sailu, Tq. Sailu, Dist. Parbhani. 3B. Anusayabai w/o Bapaji Kulkarni (Appeal is abated as against this respondent as per Court’s order dated 24-01-2006) 3C. Mangesh s/o Dattatraya Kulkarni, R/o Ram Mandir, Brahman Galli, Sailu, Tq. Sailu, Dist. Parbhani. 3D. Manjusha w/o Laxmikantrao Deshmukh, R/o c/o Laxmikantrao Deshmukh at Partur, Tq. Partur, Dist. Jalna. 3E. Manisha d/o Dattatraya Kulkarni, Age : 13 years, Occu. Student, R/o Ram Mandir, Brahman Galli, Sailu, Tq. Sailu, Dist. Parbhani. 3F. Mayura d/o Dattatraya Kulkarni, R/o as above. [Respondents No. 3E and 3F being minors, under guardianship of natural mother respondent No.3A Mangalabai w/o Dattatraya Kulkarni). RESPONDENTS ( 2 ) ..... Mr. V.D. Salunke, advocate for the appellant. Mr. A.S. Deshmukh, advocate for respondent No. 1. None for other respondents. ..... [CORAM : K.U. CHANDIWAL, J.] [DATE : 18th March, 2010] ORAL JUDGEMENT : 1. Heard. 2. By order dated 11th March, 2003, the appeal is admitted. 3. Decree in Special Civil Suit No. 171/1996 directing the defendant No. 1 to execute sale-deed and simultaneously directing the defendant No. 2 to remove himself from an area of 6 feet x 40 feet from northern side of the suit premises is questioned by the aggrieved defendant No. 2. 4. During the course of submissions, Mr. Deshmukh, appearing for plaintiff (respondent No.1) informs , the vendor/original defendant No. 1 has indeed executed ( 3 ) sale-deed in favour of the plaintiff concerning suit property on 20th February, 2008 and consequently, the matter now revolves only to the extent of removal of defendant No. 2/appellant from the suit premises. 5. The counsel appearing for the appellant (Defendant No. 2) informs that inspite of engaging an advocate to look after the proceedings, the learned advocate did not file written statement in the matter. However, appellant (defendant No. 2) learnt about the decree dated 17-08-2002 subsequently. 6. The learned counsel for the appellant further agitated, the position of the appellant to the suit premises is, on his independent right being a tenant on behalf of the original defendant No.1 (the vendor of the property to plaintiff). This aspect, according to her, ought to have been considered 7. After hearing the counsel, following points arise for my determination. ( 4 ) (i) Whether the decree under challenge directing execution of sale-deed by original defendant No. 1 and vacating the premises by original defendant No. 2 is legal, in tune with the record ? (ii) What order ? My findings to the above points are, the decree under challenge is within the framework of law and does not warrant any interference. Appeal dismissed for following reasons. 8. The controversy indeed is centered only to the extent of occupation of defendant No. 2 who asserts existence of independent rights. It is unfortunate for the appellant/defendant No. 2, no such defence was raised before the learned Judge. With the assistance of the learned counsel, I have gone through the plaint and even evidence of son of defendant No. 1. In either the pleadings or in the evidence, there is no whisper about the status of present appellant (defendant No. 2) as tenant. On the contrary, it was suggested to son of defendant No. 1 that in order to sabotage the cause of specific performance in terms of the agreement, defendant No. 2 (appellant) is subsequently inducted. ( 5 ) It is more than clear, such induction did not flow with any right in favour of the defendant No. 2 as a tenant. Though learned counsel submits that defendant No. 2 (appellant) is a tenant since 1968, in the absence of any record before the Court, this submission is difficult to be acted upon. The fact remains that the possession of defendant No. 2 being without any proper authorization, without any authority in the law, could not be further accelerated to be remained in continuation. This is more so, as there is already a document of conveyance in favour of the plaintiff effected subsequently. There operates a decree against the appellant/defendant No.2. The points are answered against the appellant. Hence, the order. The appeal is dismissed. No costs. 9. In view of dismissal of the first appeal, civil application No. 1601/2003 stands dismissed. [ K.U. CHANDIWAL ] JUDGE NPJ/fa128-2003 ( 6 )