1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, NAGPUR BENCH, NAGPUR SECOND APPEAL NO.353/2009 Appellant :- Rajesh s/o Rupchand Manwani a/a 29 yrs., Occ. - business, r/o Opp. Radhaswami Temple, Pakki Kholi, Sindhi Camp, Khadan Area, Akola, Tq. & Distt. Akola. ...Versus... Respondents :- 1. Rajabhau s/o Shamrao Gore a/a 61 yrs., Occ. - cultivator. 2. Gopalrao s/o Shamrao Gore a/a 66 yrs., Occ. cultivator. 3. Bajirao s/o Shamrao Gore a/a 52 yrs., Occ. - cultivator. 4. Madhukar s/o Shamrao Gore a/a 42 yrs., Occ. - cultivator. [Nos. 1 to 4 original plaintiffs Nos.1 to 4 respectively] Nos.1 to 4 r/o Opp. Brahman Sabha Karyalaya, Jatharpeth, Akola, Tq. & Distt. Akola. 5. Ashok s/o Tannumal Manwani, a/a 51 yrs., Occ. - business, r/o Pakki Kholi, Sindhi Camp, Khadan Area, Akola, Tq. & Distt. Akola. [Ori. Defendant No.1] 2 6. Sharda w/o Sachanand Manwani, a/o 44 yrs., occ.- household work, r/o Pakki Kholi, Near Radhaswami Mandir, Sindhi Camp, Akola, Tq. & Distt. Akola. [Ori. Defendant No.3] 7. Sachanand s/o Tannumal Manwani a/a 45 yrs., Occ. - business, r/o Pakki Kholi, Sindhi Camp, Akola, Tq. & Distt. Akola. [Ori. Defendant No.4] ---------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. ---------------------------------------------------------------------------------------------------------------------------- [Shri A.A. Naik, Adv. for appellant] [Shri S.M. Ghodeswar, Adv. for respondents 1 to 4] CORAM:- A.B. CHAUDHARI, J. DATED :- 17.12.2009 1. This second appeal is directed against the concurrent finding of fact recoded by both the Courts below that the appellant is an encroacher and not a tenant. 2. In support of the appeal, learned Counsel for the appellant argued that application for production of additional evidence, namely, written statement in the case of his father Rupchand that was filed was not decided. According to him, this was important piece of evidence which the appellant wanted to tender before the first appellate Court by way of additional evidence, but since the appellant never knew about it he could not file the same in the trial Court and that is why the first appellate 3 Court ought to have allowed that application. At any rate, according to him since the first appellate Court has not decided the application on merits, this Court should remit the matter to the first appellate Court for decision thereon and then decision on the appeal on merits could be taken. He then argued that there was another application for amendment of written statement before the first appellate Court which also met similar fate at the hands of the first appellate Court and therefore, that is additional reason for making remand. He then argued that in the face of the fact that father of the appellant was a tenant, suit for possession against the appellant was not maintainable being barred by law and according to him this is the substantial question of law which arises in the present second appeal. 3. Per contra, learned Counsel for respondent Nos. 1 to 4 vehemently opposed the appeal and argued that the appellant did nothing in the trial Court and started making such claims for the first time in the appellate Court which is wholly impermissible. When the appellant filed his written statement he was never prevented from setting up a plea that he was a tenant because his father was a tenant. It is unbelievable that the appellant never knew that his father Rupchand was a tenant particularly when his father expired in the year 1968 and the entire family was residing with his father. He then argued that the appellant did not support his case with proper evidence and no substantial question of law is involved in the present second appeal. 4 4. I have gone through the impugned judgment and order made by both the Courts below and having heard learned Counsel for the rival parties at the outset I find that after filing of written statement the appellant did not contest the litigation inasmuch as he did not even examine himself before the trial Court. The contention raised before me that the appellant never knew about his father being a tenant of the suit property is unbelievable and impossible to accept. When the appellant was living with his father and other members of family and father was running a shop in question which is the suit property, it is difficult to believe that the appellant never knew that his father was a tenant of the suit property for so many years. The appellant claiming to be a law student cannot be given such benefit. Now in the absence of any evidence of the appellant before the trial Court in which he could have easily stated that he was a tenant because his father was a tenant it was wholly unjust to allow such application for production of additional evidence i.e. written statement in the earlier suit of Rupchand. Since the reason for production of additional evidence is not satisfactory the application was liable to be rejected though the appellate Court has not entered into that exercise. Hence, both these applications for amendment of written statement and for production of additional evidence stand rejected. In view of the fact that the appellant did not at all enter the witness box nor produced any evidence in support of his case and looking to the fact that mere filing of pleading is not the proof and since the 5 respondent – landlord proved the case by adducing evidence, I do not think any interference could be made at such a late stage for all the above reasons. The net result is that no substantial question of law is involved in the present second appeal. The same is, therefore, dismissed. No order as to costs. JUDGE ssw