R. S. A. No. 2441 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2441 of 2011 Date of Decision : May 30, 2011 Jagdish Chander .... Appellant Vs. Mohan Lal and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Ashok Kumar Khunger, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Plaintiff Jagdish Chander having failed in both the courts below has filed the instant second appeal. Plaintiff-appellant filed suit against defendants-respondents alleging that the plaintiff is in possession of disputed shop as tenant under defendants no.1 and 2 and has been regularly paying the rent to defendants no.1 and 2. However, defendants no.1 and 2 threatened to dispossess the plaintiff from the disputed shop illegally and forcibly and also applied for disconnection of electricity connection existing in the disputed shop. The plaintiff sought permanent injunction restraining the defendants from doing R. S. A. No. 2441 of 2011 2 so. Defendants no.1 and 2 broadly denied the plaint averments and pleaded that plaintiff is close relative of the defendants because daughter of defendant no.1 is married with plaintiff's brother's son. In view of said relationship, on plaintiff's request, defendants no.1 and 2 gave the suit property to plaintiff as licensee for 15 days from 01.11.2002 to 15.11.2002 for exhibition of dupattas because the plaintiff was running business of dupattas. However, after expiry of license period, the plaintiff did not hand over possession of the suit property to defendants no.1 and 2. Plaintiff's license has since been terminated. Accordingly, defendants no.1 and 2 also made counter claim for possession of the disputed shop as well as for amount of Rs.4,000/- per month for use and occupation of the disputed shop. Defendant no.3 (SDO of Electricity Board) stated that electricity connection stands in the name of grandfather of defendant no.1. On 13.11.2003, defendant no.1 moved application for disconnection of said electricity connection. Plaintiff filed replication-cum-reply to counter claim of defendants no.1 and 2 and pleaded that at the time of taking the shop on rent, the plaintiff had paid Rs.1,00,000/- in cash to defendant no.1 and rate of rent was settled at Rs.1,000/- per month. Plaintiff was to pay the rent at the said rate for one year and thereafter, at the rate of Rs.500/- per month R. S. A. No. 2441 of 2011 3 and the remaining amount of Rs.500/- per month was to be adjusted out of advance payment of Rs.1,00,000/-. However, defendant no.1 started demanding rent at the rate of Rs.1,000/- per month even after expiry of one year. Averments made in the counter-claim regarding plea of license were controverted. Learned Civil Judge (Junior Division), Fazilka, vide judgment and decree dated 10.09.2009, dismissed the plaintiff's suit and decreed the counter-claim of defendants no.1 and 2. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Ferozepur, vide judgment and decree dated 14.02.2011 along with cross- objections preferred by defendants no.1 and 2. Feeling aggrieved, plaintiff has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that notice to terminate the alleged license of the plaintiff is dated 16.01.2004, whereas the plaintiff had already instituted the suit on 12.01.2004, and therefore, no adverse inference could be drawn against the plaintiff on the ground that the plaintiff did not send any reply to the notice. I have carefully considered the aforesaid contention, but the same is of no help to the plaintiff-appellant. There is overwhelming material on record to depict that the shop was not rented out to the plaintiff, R. S. A. No. 2441 of 2011 4 but was given on license to him. In the plaint, the plaintiff did not allege any rate of rent nor even alleged that he had paid Rs.1,00,000/- in advance and had been paying the rent at the rate of Rs.1,000/- per month. All these averments were made for the first time in the replication. However, the plaintiff has even failed to substantiate the same. The plaintiff is admittedly income-tax assessee and is maintaining account books. However, admittedly, the plaintiff has not depicted the alleged payment of Rs.1,00,000/- and of rent in his account books and income-tax returns. This circumstance is sufficient to falsify the entire claim of the plaintiff. In addition to the aforesaid, there is common electricity connection in the disputed shop and the adjoining property, which is admittedly in the possession of defendants no.1 and 2. The plaintiff admitted that electricity bill for the entire consumption of both the premises including the disputed shop has been paid throughout by defendants no.1 and 2 and not by the plaintiff. If the plaintiff had been tenant in the disputed shop, he would have been liable to pay the electricity charges for consumption of electricity made by him. The fact that defendants no.1 and 2 have been paying all the electricity charges would also depict that plaintiff was not tenant in the disputed shop and was only licensee for a short period of 15 days. It may also be added in this context that the plaintiff is close relative of defendant no.1 and for this reason, there is every likelihood that defendants no.1 and 2 gave the disputed shop to the plaintiff as licensee for R. S. A. No. 2441 of 2011 5 15 days. In this context, it would not be out of place to notice here that plaintiff admittedly is carrying on his business of dupattas in a separate shop at some distance from the disputed shop. It would also depict that disputed shop was taken by the plaintiff as licensee for a short period of 15 days for exhibition of dupattas and not on rent for carrying on his business of dupattas. There is also an opening between the disputed shop and the adjoining property, which is in possession of defendants no.1 and 2. If the plaintiff had taken the disputed shop on rent, the said intervening opening would have been closed. However, the said opening exists there and it would also depict that the disputed shop was given to the plaintiff only as licensee and not as tenant. In fact, except oral evidence led by the plaintiff, there is practically no evidence to depict that plaintiff is tenant in the disputed shop. If the plaintiff had paid huge amount of Rs.1,00,000/- as advance money while taking the shop on rent, there would have been some writing by way of rent note or receipt etc., but admittedly, there is no such writing. There is no document at all to depict that plaintiff is tenant in the disputed shop. If version of the plaintiff is accepted that after one year of tenancy, he was to pay half the rent and the remaining half amount of rent was to be adjusted out of alleged advance payment of Rs.1,00,000/-, it R. S. A. No. 2441 of 2011 6 would mean that the plaintiff was to remain tenant in the disputed shop for more than 17 years. The plaintiff would not have taken the disputed shop on rent for such a long period without any written document. In addition to the aforesaid, courts below have also recorded many other reasons for non-suiting the plaintiff and for decreeing the counter-claim of defendants no.1 and 2. Concurrent finding recorded by the courts below is justified by the evidence on record. No other reasonable finding could be arrived at on appreciation of evidence. The said finding is not depicted to be perverse or illegal in any manner nor it is based on misreading or misappreciation of evidence. Consequently, the said finding does not call for interference in second appeal. This appeal does not raise any question of law, much less substantial question of law, for determination. The appeal is completely meritless and is accordingly dismissed in limine. May 30, 2011 ( L. N. MITTAL ) monika JUDGE