JUDGMENT This second appeal arises out of the impugned judgment and order dated 6.9.2013, passed by the learned Principal District Judge, Gondia, in Regular Civil Appeal No. 140 of 2012, which arose from the judgment and order dated 28.6.2012, passed by the learned Civil Judge Senior Division, Gondia, in Special Civil Suit No. 82 of 2007 when the suit was decreed in favour of the plaintiffs. 2. The unsuccessful defendant, in both the Courts below, filed the second appeal contending therein that the issue of trespass was not framed by the learned trial Judge and the First Appellate Court was not justified to hold that the appellant was not the "tenant" within the meaning of the Maharashtra Rent Control Act, 1999 (for short "of the said Act"). It is contended that both the Courts below acted perversely as against the evidence on record as the Courts below did not consider the material evidence on record. In substance, therefore, it is the contention of the appellant that in view of the said Maharashtra Rent Control Act, his possession of House No. 38, Plot No. 69, Sheet no.18, situated at Durga Chowk, Taluka and District Gondia is protected and not to be recovered from him except under the said Act. 3. The facts in a nut-shell are thus: The plaintiffs had instituted Special Civil Suit, in respect of the suit house, on the ground that it was owned by the plaintiffs and was in occupation of Shri Todarmal S/o Khupchand Jain, who was "tenant". It is contended that the defendant took disadvantage of the demise of said Todarmal and unlawfully entered into the occupation of the suit house and had refused to vacate the same despite of notice to vacate dated 26.7.2007. The defendant had tried to grab suit premises by tender of rent in the name of "Todarmal" which plaintiffs had refused to accept since Todarmal was dead. Under these circumstances on the plea that at the most the defendant held in permissive occupation as licensee but the same was terminated by the plaintiffs by notice to vacate dated 26.7.2007 which remained un-replied. Thus, the defendant held over the occupation of the suit premises as "trespasser" and was liable to vacate suit property and hand over the vacant possession thereof to the owner plaintiffs. Thus, the defendant held over the occupation of the suit premises as "trespasser" and was liable to vacate suit property and hand over the vacant possession thereof to the owner plaintiffs. It is also contended that erstwhile tenant Todarmal had five brothers namely Suwalalji, Jethmalji, Dhannalal, Chandanmal and Babulal. None of them claimed tenancy. The defendant is nephew of said Todarmal and he was not entitled to right or claim status as "tenant" protected under the Rent Act. The claim of the respondents (original plaintiffs) was for possession of the suit house on the basis of their title of ownership in respect the suit property. Since the plaintiffs had repeatedly requested the defendant to hand over the possession of the suit house and despite notice the defendant did not vacate, he became trespasser liable to be sued in the ordinary Civil Court to recover possession of suit property. 4. The trial Court has examined as many as 5 witnesses; 2 on behalf of the plaintiffs and 3 on behalf of the defendant. On the basis of the evidence led before him, the learned trial Judge found that the defendant was in permissive occupation as licensee whose licence was terminated by the plaintiffs by notice dated 26.7.2007 and thus it was held that the plaintiffs were entitled to possession from trespasser of the suit house as the plaintiffs owned it. Thus, upon the evidence led by the parties and considering the same, the learned trial Judge passed decree in favour of the plaintiffs. The learned trial Judge also considered the judicial precedents as to how nephew of first tenant Todarmal could not have claimed possession according to law. As according to the learned trial Judge, the provisions of the said Act were not attracted in case of the defendant. Thus, apart from the decree for possession, separate inquiry was also ordered, in view of Order XX Rule 12 of the Code of Civil Procedure, into mesne profits in respect of suit premises from the date of filing of the suit till vacant possession is handed over. 5. The unsuccessful defendant who had challenged the decree, passed by the trial Court, in the Special Civil Suit No. 82 of 2007, could not succeed in the First Appellate Court as well since it was found that the appellant was trespasser in respect of the suit property-house. 5. The unsuccessful defendant who had challenged the decree, passed by the trial Court, in the Special Civil Suit No. 82 of 2007, could not succeed in the First Appellate Court as well since it was found that the appellant was trespasser in respect of the suit property-house. Learned first appellate Judge, after considering the documentary evidence and oral evidence on record, in paragraph No. 10 of the impugned judgment, concluded, "the appellant or his family never resided in the suit house, as tenant". Paragraph No. 10 of the impugned judgment reads thus : "10. It is contention of the appellant that he is residing in the suit house as tenant. In support of his submission filed one telephone bill Exh.56, appellant has filed voters list Exhs.57 to 59 in which his name is recorded in Gondia town as voter, Exh. 51 does not show name of Todarmal. Moreover, this document is not sufficient to prove tenancy. Admission of appellant and his son show that they were residing at Chichgarh/Deori. Cross-examination of son of appellant show that his marriage was performed at Chichgrah. He is examined by the appellant to show that they are residing at Gondia in the tenanted house and birth of his son Sandip (D.W.2) took place in the suit house. But appellant produced birth certificate of D.W.2, it is at Exh.91. Exh.91 show that birth of Sandip took place at Chichgarh on 07/05/1972. All these documentary evidence show that appellant or his family were never resided in the suit house, as tenant." The observation indicated falsity of the claim made by the appellant. 6. Learned counsel for the respondents has invited my attention to the concurrent findings in the case of Kailashbhai Shukaram Tiwari vs. Jostna Laxmidas Pujara and anr, reported at AIR 2006 Supreme Court 741 : [2006(1) ALL MR 262 (S.C.)]. In paragraph No. 14, the Apex Court, observed thus : "14. The question as to whether a person is a member of the family of the tenant must be decided on the facts and circumstances of the case. Apart from the parents, spouse, brothers, sisters, sons and daughters, if any other relative claims to be a member of the tenant's family, some more evidence is necessary to prove that they have always resided together as members of one family over a period of time. Apart from the parents, spouse, brothers, sisters, sons and daughters, if any other relative claims to be a member of the tenant's family, some more evidence is necessary to prove that they have always resided together as members of one family over a period of time. The mere fact that a relative has chosen to reside with the tenant for the sake of convenience, will not make him a member of the family of the tenant in the context of rent control legislation." 7. Thus, it is settled legal position of law that the question as to whether a person is a member of the family of the tenant must be decided in the light of the facts and circumstances of the case. The mere fact that a relative chose to reside with the tenant for the sake of convenience, will not make him the "tenant" in the context of rent control legislation. In the present case it is not the contention of the appellant that he was residing with Todarmal, the original tenant at the time of Todarmal's death but it appears from the records that Todarmal original tenant died issueless and when there was no family member to inherit, the original defendant (tenant) took disadvantage of the situation and entered into the suit house unlawfully and did not vacate the house despite notice to vacate served upon him. The notice to hand over the possession of the suit house was served upon the appellant-defendant on the ground that he was trespasser. Admittedly, no any proceedings filed by the appellant is pending in the Special Court constituted under the Rent Control Act as on this date to claim status as "tenant" or licensee protected under the Maharashtra Rent Act. 8. In view of above facts and the concurrent findings of facts recorded by both the Courts below, the appellant (original defendant) cannot continue to claim possession as of right and was/is bound to vacate the suit premises. That being so, after having considered the judgments recorded by both the Courts below and findings of facts against the appellant (original defendant) which were concurrent in both the courts below assuming appellant (original defendant) was gratuitous licensee and was allowed to over stay after the service of notice to vacate in the absence of any declaration as to tenancy of licence protected under the Maharashtra Rent Act. After notice to vacate was served, the defendant became rank trespasser, and was/is bound to vacate the suit premises. I do not find any merit in the claim of the appellant. Hence, the appeal has no merits the same is liable to be dismissed. 9. The appeal thus dismissed. No order as to costs. Appeal dismissed.