IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 130 of 1998. Reserved on:24.4.2009. Decided on: 6.5.2009. __________________________________________________ Shri Raj Kumar … Appellant. Versus Shri Vijay Kumar. … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellant : Mr. B.B. Vaid, Advocate. For the Respondent : Mr. Romesh Verma, Advocate. ___________________________________________________________ Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree dated 31.12.1997 passed by the learned District Judge, Solan in Civil Appeal No. 36-S/13 of 1997. Brief facts necessary for adjudication of this regular second appeal are that the appellant-plaintiff (hereinafter referred to as the plaintiff for convenience sake) had filed a suit for permanent prohibitory injunction against the respondent-defendant (hereinafter referred to as the defendant for convenience sake) to restrain him from causing any interference in his possession in the building known as building No.52, The Mall, Solan on the ground floor and has further prayed for consequential relief of possession. It is averred by the plaintiff that he along with the defendant had been 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 carrying the business under the name and style of “M/s Verma Enterprises”. This business was being run in the premises i.e. the suit property. The said premises was rented out to M/s Verma Enterprises on a monthly rent of Rs. 100/-. The firm was dissolved on 5.12.1988. The plaintiff continued to be sole owner of the business. It is further averred that on 28.6.1992, he came to know that the defendant had locked the said premises. The matter was reported to the police. The defendant contested the suit. He has admitted the dissolution of the firm, however, he has stated that the plaintiff had shifted his business from the said property to Shop No. 53, The Mall, Solan. He had claimed himself to be in lawful possession of the suit property. He has disputed the tenancy of the plaintiff. The learned trial Court dismissed the suit on 21.8.1997. The plaintiff preferred an appeal before the learned District Judge, Solan. He dismissed the same on 31.12.1997. This regular second appeal is directed against the judgment and decree passed by the learned First Appellate Court. It appears from the record that this appeal was admitted on 3.6.1998, however, the attention of the learned Single Judge was not drawn to the substantial question of law framed with memorandum of appeal. The appeal was deemed to have been admitted on the following substantial question of law framed vide order dated 23.10.2008: “What is the affect of misreading of the document exhibit PW2/B i.e. the dissolution deed and in particular its clause 5 which clearly establishes the tenancy of the appellant in respect of the premises in dispute?” Mr. B.B. Vaid, Advocate has strenuously argued that the judgments and decrees passed by both the learned Courts below 3 are not sustainable. According to him, both the learned Courts below have misread Ext. PW2/B i.e. the dissolution deed. Mr. Romesh Verma, Advocate has supported the judgments and decrees passed by both the learned Courts below. I have heard the learned counsel for the parties and perused the record carefully. The firm was dissolved on 5.12.1988 vide Ext. PW2/B. The plaintiff had appeared as PW-2. He has deposed that the defendant was in illegal possession of shop No. 52. He further deposed that he has reported the matter to the police. However, he had admitted that he had already shifted his telephone from the suit property to other property i.e. 53, The Mall, Solan. He had also admitted that during partition between the parties, the suit property had fallen to the share of the defendant whereas premises 53, The Mall, Solan had come to his share. He has also admitted that the parties were coming in possession of the suit property allotted to them. In fact, mutation of the property was attested in favour of the defendant. He has never objected to the mutation. The plaintiff had also admitted that the defendant had got electricity connection of shop No. 52. The mutation of shop No. 53 was entered in his possession and ownership. It is apparent from the evidence that the plaintiff had shifted his business to shop No. 53. The defendant had deposed that he had been coming in possession of the suit property in terms of settlement during the family partition. In these circumstances, it cannot be presumed that the defendant had ever remained tenant of the plaintiff. The learned Courts below have rightly ignored the rent receipt on the basis of admission by the 4 plaintiff. The learned Courts below have rightly construed Ext. PW2/B and had come to just conclusion that the defendant was in legal possession of the suit property i.e. shop No. 52. The parties were enjoying their possession as per the partition and the plaintiff had shifted his business to shop No. 53. Accordingly, there is no merit in this regular second appeal and the same is dismissed. No costs. (Rajiv Sharma), J. May 6, 2009. (cr)