( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPELATE JURISDICTION CIVIL APPELATE JURISDICTION USJ SECOND APPEAL NO.153 OF 2009 SECOND APPEAL NO.153 OF 2009 SECOND APPEAL NO.153 OF 2009 Jivan Dharma Kadu since deceased through his LRs 1. Sanjay Jivan Kadu & Ors. ..Appllants V/s. Laxmibai Narayan Kadu and Ors. ..Respondents ...... Mr. A.J. Joshi for the appellants None for the respondents ...... CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATED : 2nd May, 2009 DATED : 2nd May, 2009 DATED : 2nd May, 2009 P.C.: P.C.: P.C.: 1. One Mr. Jivan instituted the Regular Civil Suit No.42 of 1989 in the Court of Civil Judge, Junior Division, Dahanu for recovery of possession in regards to the suit premises against the defendants. During the pendency of the suit, said Jivan died and his heirs have been brought on record. The learned Civil Judge, Junior Division, Dhanu (hereinafter referred to as the ’learned trial Judge’) dismissed the suit by judgment and decree dated 2nd January, 2001 against which said plaintiffs Sanjay and others instituted Civil Appeal No.14 of 2001 in the District Court. The said appeal was heard and decided by the learned District Judge No.2, Palghar (hereinafter referred to as the ’learned District Judge’) by judgment and ( 2 ) decree dated 17th October, 2008 against which the present appellants original plaintiffs have instituted this second appeal. Before this Court, learned advocate Mr.Joshi appearing on behalf of the appellants contended that if the appellants have been able to show that they are the owners in respect of the suit property, that aspect ought to have been considered by both the Courts and possession in respect of suit property ought to have been ordered to be delivered to the appellants on the principal that as possession follows the title. In support of that, he relied upon judgment in the case of Indira V/s. Indira V/s. Indira V/s. Arumugam and Anr. reported in 1998 (1) SCC 614. Arumugam and Anr. reported in 1998 (1) SCC 614. Arumugam and Anr. reported in 1998 (1) SCC 614. 2. I have heard learned advocate Mr.Joshi. Both the Courts considered the question of creation of the licence. The appellants approached the learned trial Judge with the positive case that the defendants were inducted in the suit premises as and by way of licensee and the defendants raised the plea of adverse possession. At trial, appellants were unsuccessful in making out the case of license. At the same time, respondents defendants were unable to make out case as regards the adverse possession. 3. Learned advocate Mr.Joshi contended that if the ownership in respect of the property has been ( 3 ) accepted by the Courts below, then the possession ought to have been delivered because the claim of the respondents has failed. In so far as this aspect is concerned, it is required to be noted that the learned trial Judge declined the case of the appellants about the exclusive ownership in regard to the property in question. The appellate Court framed appropriate points for discussion and arrived at conclusion that case that respondents were inducted in the suit premises as licensee is not accepted. The argument advanced by learned advocate Mr.Joshi that if respondents have failed to show that they are entitled to stay in the property on the basis of adverse possession, then a decree for possession ought to have been passed. 4. I am not inclined to accept this argument because if the appellants have failed to show that respondents were inducted as and by way of a licensee, then the case of the appellants itself fails as in the trial Court. If this is be so, the appellants could not be entitled to a decree merely on the ground that the respondents have failed to prove their case as regards adverse possession. If this is the position, then the argument advanced by learned advocate Mr.Joshi across the bar which is put forth earlier, cannot be accepted. I have considered the judgment ( 4 ) relied upon by the learned advocate Joshi which is quoted above. If the case of the appellants as regards licensee is not accepted by the Courts below, then the question, which has been gone into by the Courts on the basis of evidence. As such no interference is required in the impugned judgment and hence the second appeal is required to be dismissed. Hence, the following order. ORDER ORDER ORDER . The Second Appeal is dismissed at the stage of admission. There shall be no order as to costs . In view of the above, Civil Application No.634 of 2009 is dismissed with no order as to costs. (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)