Regular Second Appeal No.2043 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-2.7.2010 Ranjit Singh ...Appellant Versus Gulab Singh and another ...Respondents CORUM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Ashok Giri, Advocate for the appellant. M ehinder S ingh S ullar , J. (Oral) The challenge in this appeal, filed by Ranjit Singh son of Parsan Singh appellant-defendant No.1 (hereinafter to be referred as “defendant No.1”) is to the judgment and decree dated 3.11.2008, whereby the trial Court has decreed the suit for possession, filed by Gulab Singh son of Inder Singh-respondent-plaintiff (hereinafter to be referred as “the plaintiff”) and the judgment and decree dated 18.1.2010, vide which, their appeal was dismissed as well by the first Appellate Court. 2. As the Courts below duly recapitulated and described the factual matrix of pleadings and evidence brought on record by the parties in detail, therefore, there appears to be no necessity to again reproduce and repeat the same. However, for facilitation, the bare minimum facts, that need a necessary mention for deciding the present regular second appeal, are that the plaintiff filed the present suit for a decree of possession against defendant No.1 and Mahal Singh son of Gopal Singh proforma-respondent- defendant No.2, inter-alia, pleading that he is absolute owner of the property in dispute. He raised construction over it and was earlier let out to Narinder Kumar and Surinder Kumar, who had vacated and handed over the Regular Second Appeal No.2043 of 2010 2 possession of the same to him in the month of September, 2003. The suit for permanent injunction filed by Narinder Kumar and Surinder Kumar against the plaintiff was said to have been dismissed on 29.1.2004. 3. The case set up by the plaintiff, in brief in so far as relevant, was that defendant No.1 was running a dairy at Maqsudan near Jinda Railway Crossing, but due to the pressure of Municipal Corporation, he in connivance with Narinder Kumar and Surinder Kumar forcibly took the possession of the property in dispute and was trying to shift his dairy in the suit property without any legal right. It was claimed that although defendant No.1 has taken forcible possession, but he is wrongly proclaiming himself to be a tenant over the disputed property without any basis. 4. Levelling a variety of allegations, in all, according to the plaintiff that he is absolute owner of the disputed property, but defendant No.1 has illegally encroached upon the same without any legal right with the active connivance of the aforesaid persons. On the basis of the aforesaid allegations, the plaintiff filed the suit for a decree of possession against the defendants in the manner indicated here-in-above. 5. The defendant No.1 contested the suit and filed the written statement, inter-alia, pleading certain preliminary objections of, maintainability of the suit and concealment of facts. On merits, defendant No.1 admitted the ownership of the plaintiff, however, he claimed himself to be a tenant under the plaintiff over the disputed property. He filed the suit for permanent injunction against the plaintiff, in which, stay was declined and the appeal was stated to be pending in the Court of Additional District Judge, Jalandhar. 6. The case of defendant No.1 further proceeds that the two kacha Regular Second Appeal No.2043 of 2010 3 rooms in the property in dispute vacated by Narinder Kumar and Surinder Kumar were rented out to defendant No.1 and an amount of Rs.1 lac was stated to have been paid by him to the plaintiff as security refundable at the time of termination of tenancy and an amount of Rs.1,20,000/- spent by defendant No.1 on the construction was to be adjusted against the monthly rent payable. In all, according to defendant No.1, he is a tenant over the property in dispute at a monthly rent of Rs.1000/- and the present suit filed against him was not maintainable. It will not be out of place to mention here that defendant No.1 has stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 7. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiff filed the replication. 8. In the wake of pleadings of the parties, the trial Court framed the following issues for adjudication:- 1. Whether defendant is occupying the property in question as tenant under the plaintiff?OPD 2. Whether plaintiff is entitled to get possession of the property in dispute?OPP 3. Relief. 9. The parties produced oral as well as documentary evidence on record, in order to substantiate their respective pleas. 10. The trial Court, after taking into consideration the evidence on record, decreed the suit of the plaintiff, vide impugned judgment and decree dated 3.11.2008. 11. Aggrieved by the judgment and decree of the trial Court, defendant No.1 filed the appeal, which was also dismissed by the First Regular Second Appeal No.2043 of 2010 4 Appellate Court, vide impugned judgment and decree dated 18.1.2010. 12. The appellant-defendant No.1 still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present appeal. 13. Having heard the learned counsel for the appellant, having gone through the record with his valuable help and after considering the matter deeply, to my mind, there is no merit in the appeal. 14. As is evident from the record, the plaintiff has filed a suit for decree of possession on the basis of title. Defendant No.1 has categorically admitted the ownership of the plaintiff, but he claimed himself to be a tenant over the disputed property. Thus, it would be seen that the facts of the case are neither intricate nor much disputed. 15. Above being the position on record, now the short and significant question, though important, arises for determination in this appeal, is whether defendant No.1 is proved to be a tenant over the disputed property or not? The Courts below have negatived his claim, in this respect. 16. The main celebrated argument of the learned counsel that the Courts below have not appreciated the evidence of defendant No.1, with regard to his status as a tenant over the disputed property, is not only devoid of merit but misplaced as well. It is not a matter of dispute that defendant No.1 has set up a specific plea of tenancy over the disputed property, which has been stoutly denied by the plaintiff. In that eventuality, a very heavy burden of proof was upon defendant No.1 to prove the existence/incidents of tenancy. The relationship of landlord and tenant only comes into existence as a result of bilateral agreement. It may be implied from the acts and conduct of the parties, which may indicate that the landlord ever Regular Second Appeal No.2043 of 2010 5 intended to divest himself of the possession of the premises and that the tenant intended to assume possession thereof. One of the most important circumstances, from which, the inference of tenancy may be drawn, is the payment of rent. In other words, payment of rent is a normal incident of tenancy. On the contrary, the fact that no rent was paid would lead one to a contrary conclusion and negative the existence of such relationship of landlord and tenant. When there is an implicit intention of the landlord to create tenancy right in the property, the tenancy only comes into existence as a result of bilateral agreement and payment of rent etc. 17. Not only that, defendant No.1 has miserably failed to prove any existence of tenancy and payment of rent, but he has completely remained unsuccessful in proving by leading any cogent evidence as to how, by whom, on which date and in what manner, he became tenant of the disputed property. Therefore, I am of the view that defendant No.1 has utterly failed to prove his tenancy in this relevant connection. 18. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant, have already been duly considered and dealt with by the Courts below, in this relevant direction. 19. Moreover, the trial Court as well as the first Appellate Court has taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the trial Court as well as the first Appellate Court has recorded the concurrent findings of fact that the plaintiff is owner of the disputed property and defendant No.1 has miserably failed to prove his tenancy. Thus, his possession over the suit property is illegal. Such pure concurrent findings of Regular Second Appeal No.2043 of 2010 6 fact based on the evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant, so as to take a contrary view, than that of the well reasoned decision already arrived at by the Courts below, in this regard. 20. Meaning thereby, the entire gamut/matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved in the second appeal, in view of law laid down by Hon'ble Supreme Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted in the impugned judgments/decrees of the courts below as contemplated under section 100 CPC in the obtaining circumstances of the instant case. 21. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant. 22. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed. (Mehinder Singh Sullar) 2.7.2010 Judge AS