JUDGMENT - G.N. VAIDYA, J.:---The above second appeal arises out of the suit filed by the plaintiff on April 8, 1964, in the Court of the Civil Judge at Poona to recover possession of the suit room bearing No. 105 situated on the fourth storey of House No. 677, Budhwar Peth, Karale Wadi. 2. The suit was filed against defendants Nos. 1 to 3 as trespassers in wrongful possession of the premises which belonged exclusively to the plaintiff as it was allotted to him under the Registered Partition Deed dated October 21, 1963 executed by the plaintiff and his brothers. 3. The three defendants resisted the suit contending that they were lawful sub-tenants protected by the Bombay Rent Act as they were inducted in the premises prior to 1959 by the original tenant, one Yashwant Rajaram Karale, from whom the plaintiff claimed to have taken possession of the premises on April, 1964. 4. The learned Civil Judge, Junior Division, by his judgment and decree June 30, 1965 held that the evidence led by the plaintiff established that he was the exclusive owner of the suit property after the Partition Deed dated October 21, 1963 stating as follows : "In para No. (2) of the plaint the plaintiff has averred that a registered partition deed is made on 21st October, 1963 among he and his brother. The averment is not specifically denied by the defendant No. 1 in his written statement, Ex. 18. He has simply stated in para 3 of his written statement, Ex. 18, that contents in para 2 of the plaint are not true and they must be strictly proved by the plaintiff. This denial is vague and not specific." The learned Civil Judge also found that having regard to the possession receipt Ex. 41 and the absence of any evidence led on behalf of the defendants to establish that they were in possession prior to 1959, it must be held that defendants Nos. 1 and 2 failed to prove their alleged sub-tenancy and they were trespassers. The learned Civil Judge found that the plaintiff failed to prove that defendant No. 3 was in possession of the suit premises on the date of the suit. The learned Civil Judge, therefore, passed the decree against defendants Nos. 1 and 2. 5. The decree passed by the Civil Judge was challenged by defendants Nos. The learned Civil Judge found that the plaintiff failed to prove that defendant No. 3 was in possession of the suit premises on the date of the suit. The learned Civil Judge, therefore, passed the decree against defendants Nos. 1 and 2. 5. The decree passed by the Civil Judge was challenged by defendants Nos. 1 and 2 and the learned Joint Judge, Poona, by his judgment and decree dated 29th August, 1966 reversed the above findings of the trial Judge, set aside the decree and allowed the appeal with costs. 6. The said decision of the Joint Judge is challenged in the above second appeal by the plaintiff. The learned Advocate General who appears for the plaintiff, argued in support of the appeal firstly, that the learned Joint Judge erred in ignoring the pleadings and the evidence in the case and in holding that the plaintiff failed to prove his exclusive title to the suit property. He pointed out that although the plaintiff had averred in the plaint his exclusive title under the Registered Partition Deed, it was not specifically denied in the written statement. He further drew my attention to the admission made by defendant No. 1 who was the only witness examined on behalf of the defendants that he was actually paying rent to the plaintiffs manager and that he was staying in the suit premises as a sub-tenant of Yashwant Karale. The learned Advocate General submitted further that although the plaintiff in his evidence stated that he was the exclusive owner, he was not cross-examined on the point and hence all this is enough conclusively to establish the exclusive title of the plaintiff. 7. This ground of the learned Advocate General is well founded and must be upheld. Mr. Joshi who appeared for the respondent was unable to point out anything in the written statement filed by any of the defendants denying the averment made by the plaintiff claiming exclusive title or anything, by way of cross-examination of the plaintiff to show that the title of the plaintiff to the premises was in dispute. The learned Joint Judge appears to have taken the view that because the plaintiff failed to prove the exclusive possession of the suit property and because the Kabja Pavati Ex. 41 did not show that he was in exclusive possession, therefore, his title was not proved. The learned Joint Judge appears to have taken the view that because the plaintiff failed to prove the exclusive possession of the suit property and because the Kabja Pavati Ex. 41 did not show that he was in exclusive possession, therefore, his title was not proved. The learned Joint Judge in my opinion was manifestly in error in arriving at the conclusion ignoring that the defendants did not challenge the exclusive title of the plaintiff under the Registered Partition Deed which was referred to in the plaint and defendant No. 1 in fact, admitted that he was paying the rent to the Manager of the plaintiff. Mr. Joshi was unable to point out any material on the record to support the finding of the learned Joint Judge that the title of the plaintiff was not proved. 8. Notwithstanding this, however, the plaintiff has a further hurdle which he cannot cross. The learned Joint Judge has found that the defendants are not trespassers in the suit room and that defendant No. 1 was a sub-tenant of Yashwant Karale and defendant No. 2 was his brother and not a trespasser. 9. The learned Advocate General has challenged the finding on the ground that in the absence or any rent receipt of any document at least after 1959, when sub-tenancy was protected, the learned Joint Judge was not justified in holding that the defendants derived title under Yashwant Karale prior to May 1959. But this question is a matter of appreciation of the oral evidence of the plaintiff and the defendants. The learned Joint Judge has referred to the contents of Ex. No. 41 on which the plaintiff himself relied. Ex. No. 41 in terms says that Yashwant Karale was giving the suit room to other persons from time to time and was recovering the rent. The plaintiff did not care to examine Karale. He did not even examine the Manager who was recovering the rent. 10. The learned Joint Judge has observed : "However, it is defendants contention that defendant No. 1 was a sub-tenant of Yashwant in the suit room since before the amendment of 1959 and that he has become the direct tenant in respect of the suit room. In his deposition of Ex. 40, defendant No. 1 has averred to this allegation of his. Obviously plaintiff cannot successfully deny this allegation since he has no personal knowledge. In his deposition of Ex. 40, defendant No. 1 has averred to this allegation of his. Obviously plaintiff cannot successfully deny this allegation since he has no personal knowledge. Obviously Yashwant alone would have been in a position to rebut it. Yashwant has not been examined. His allegations in Ex. 41 have not been subjected to cross-examination. He has not even been offered for cross-examination. In these circumstances, there is no reason as to why defendant No. 1s statements should not be accepted. This would be particularly so since in Ex. 41, Yashwant himself has stated that he used to sub-let the suit room to different persons and recover higher rent from them. Ex. 41 has been relied upon by plaintiff himself." 11. In my opinion no error of law is involved in the findings recorded by the learned Joint Judge which can be interfered with by this Court under section 100 of the Civil Procedure Code. Moreover, as pointed out earlier, the learned Advocate General himself has relied on the statement of the defendant that he was paying rent to the manager of the plaintiff. If, in these circumstances, the learned Joint Judge drew an inference that defendant No. 1 was not a trespasser but a sub-tenant and defendant No. 2 his brother was not also trespasser, I do not think that any error of law is involved in the said finding. 12. Thus although the plaintiff succeeds on the question of title, the decree dismissing the suit filed against the defendants as trespassers must be confirmed as the defendants are not trespassers, and defendant No. 1 is rightly held to be a tenant protected under the Rent Act. 13. Subject to what is stated hereinabove, the decree passed by the Joint Judge is confirmed and the second appeal is dismissed with costs. -----