(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. SECOND APPEAL NO. 1572 OF 2005 1. Devidas s/o. Vitthal Phutane, Age : 60 years, Occupation : Tailoring. 2. Kamalbai w/o. Devidas Phutane (Deceased) Through her L.R. : 2-A. Santosh s/o. Devidas Phutane, Age : 27 years, Occupation : Tailoring 2-B. Somnath s/o. Devidas Phutane, Age : 24 years, Occupation : Tailoring. 2-C. Nagnath s/o. Devidas Phutane, Age : 21 years, Occupation : Education. All R/o. Ward No.3, Near Municipal Garden, Shrirampur, District : Ahmednagar. .. Appellants. versus Chandrabhagabai w/o. Vitthal Phohare, Age : 62 years, Occupation : Household, R/o. Ward No.3, Near Public Garden, Shrirampur, Taluka : Shrirampur, District : Ahmednagar. .. Respondent. (2) ....................... Mr. A.D. Pawar, Advocate, for the appellants. Respondent served (Absent). ........................ CORAM : K.U. CHANDIWAL, J. DATE : 13TH APRIL 2010 COURT'S ORDER : 1. Heard the learned Counsel for the appellant, extensively. None for the respondent, though duly served. 2. The dismissal of suit, dated 24-7-2001, was questioned by the plaintiff (landlord) in Regular Civil Appeal No. 101/2002 before the learned Additional District Judge, Shrirampur, and there operates a decree in favour of the plaintiff, dated 11-10-2004. This finding / award is questioned by the original defendant as to its legality. 3. Mr. A.D. Pawar, learned Counsel appearing for the appellants, submits, the substantial question of law in the matter would be, "In the light of Section 15A of the Bombay Rents, (3) Hotel and Lodging House Rates Control Act, 1947, the status of the defendant / appellant, to be a tenant, 'he enjoins such protection' ?" 4. The inter se relations between the plaintiff and the defendant, as the plaintiff is the sister-in-law of the defendant, is not in controversy. The ownership of the plaintiff over the suit premises and occupation of two rooms by the defendant since 1977, is also not controverted. The matter revolves to the defendant / appellant, asserting rights as a tenant, while the plaintiff, landlord, canvassing, such occupation of the defendant, was by way of gratuitous licensee and consequently, will not get shade of colour to brand as a tenant. 5. The main crux for reliance by the defendant is a reply to the notice at Exhibit 56, dated 11-5-1990. The second limb of submission is, the municipal assessment showing occupation of the defendant / appellant, and the third is, that there was a practice by the landlord, plaintiff, not to issue rent receipts to the tenant, as proved by one Kadu. 6. The non-issue of rent receipts, tried to be proved through one so called tenant, Kadu, will not be of any assistance as he was not sailing well to the plaintiff. Indeed, if defendant's status in the suit premises was of a tenant, there were other (4) occupants / tenants who are named by the defendant, namely, Shringare, Hendre and Kasar, who could have come forward to support the contentions addressed by the defendant / appellant. 7. Indeed, there was a notice dated 3rd July 1990, Exhibit 34, issued by the plaintiff, revoking the licence of the defendant. However, it was canvassed, such notice did not reach doorsteps of the defendant / appellant, and consequently, it will not have its impact. However, the learned first appellate court found, there was already earlier proceedings, being Regular Civil Suit No. 299/1990, filed by the defendant against the plaintiff, in which the plaintiff in unequivocal terms canvassed, rather denied, status of the defendant to be a tenant. It is thus clear, defendant / appellant was aware that his status as a tenant is negated, not accepted by the landlord, flowing from earlier litigation in Regular Civil Suit No. 299/1990. 8. The contention, that no rent receipt was ever issued, even if accepted, since the parties were not sailing well, defendant / appellant, had other avenues open to remit the so called rent, however, such opportunity is not at all availed any time, as is surfaced in the evidence. The reliance placed by the learned court of first instance, to Exhibit 56 issued by the husband of the plaintiff to the defendant no.2, is indeed, a misplaced reliance, not in the proper text of the averments. The (5) averments of the defendant / appellant, were tried to be traversed by the husband of the plaintiff through reply Exhibit 56 and in that context, it was so stated. It will not tantamount to acceptance of relations of landlord or tenant. 9. The other contention, that in the municipal record, there is reference of defendant as a occupant, is correct. The municipal extracts of 1989-90 to 1991-92 and 1985-86 to 1988-89, Exhibits 54 and 55, showed that the annual rent for the premises in its record did not match to the defendant's stand. The extracts of the Municipal Council, for the years 1981-82 to 1984-85, Exhibit 53, are rebelling against the contentions of the defendant / appellant. The municipal record, by itself, will not be tantamount to acceptance to the occupation of the appellant / defendant, as a tenant. The stand raised and projected by the plaintiff / landlord, throughout was, that the occupation of the defendant was a gratuitous licensee. This is established, hence, accepting the contention of the defendant / appellant, to be a tenant, is difficult to be acted upon. 10. The appeal does not project any substantial question of law in terms of Section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. In the result, the Second Appeal is dismissed. (6) 11. Heard. Though the appeal is dismissed, the appellant is given time to vacate the premises up to 30th October 2010. ( K.U. CHANDIWAL ) JUDGE ......................... bgp/sa1572