R.S.A.No.2178 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.2178 of 2006 Date of Decision : 04.09.2009 Smt. Phooli and others ...Appellants Versus Krishan and others ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Dr. Praveen Hans, Advocate, for the appellants. Mr. Ashish Rawal, Advocate, for Mr. D.S.Bishnoi, Advocate, for the respondents. HEMANT GUPTA, J. (ORAL) The plaintiffs are in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby suit for possession by preemption, was dismissed. One Karanbir S/o Rattan Singh has sold the suit property vide sale deed dated 22.5.1997 to the defendants for a sale consideration of Rs.4,80,000/-. The plaintiffs have sought possession of the suit land by exercising right of preemption being tenants as the land sold. Both the Courts have recorded concurrent finding of fact that the plaintiffs have failed to prove the tenancy, which may entitle them to seek rights of preemption. Learned counsel for the appellants has relied upon Ex.P-1, written statement filed by Karanbir in proceedings under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 between Smt. Bimla R.S.A.No.2178 of 2006 2 and Karanbir. Bimla is the niece of the plaintiff-Ram Bhagat (deceased). In the said written statement, Karanbir has admitted possession of the plaintiffs. It is, thus, argued that the possession of the plaintiffs- appellants is that of tenants and in view of the entries in the revenue record, wherein the plaintiffs are recorded as gair marusi. Reliance is also placed upon a judgment of Hon'ble Supreme Court in Neki Vs. Sat Narain 1997(1) PLJ 102, wherein it has been observed that tenant is not expected to demand receipt from landlord for payment of rent. The argument raised by the learned counsel for the appellants does not merit any consideration. In Para 15 of the judgment passed by the learned first Appellate Court, the effect of the averments made in the written statement has been examined. It has been found that the written statement shows that the persons in possession i.e. the plaintiffs, were not paying anything to him in lieu of cultivation. In the absence of non- payment of share of produce or rent negates the theory of tenancy. It is admitted by the learned counsel for the appellants that Bimla is none else, but niece of the plaintiff-Ram Bhagat. It shows that the possession might have been given to the plaintiffs in view of close relationship between the parties. The argument that the tenant is not expected to demand receipt of payment of rent is again not available in the present case. It is a question of fact in each case, whether there is relationship of landlord or tenant between the parties or whether the tenant is paying rent. Present is the case not of non-payment of rent only, but of establishing relationship of tenant and land-lord. There is no evidence of payment of rent at any point of time. R.S.A.No.2178 of 2006 3 Consequently, the findings of fact recorded by the Courts below cannot be said to be suffering from any patent illegality or irregularity, which may give rise to any substantial question of law for consideration of this Court in second appeal. Dismissed. 04.09.2009 (HEMANT GUPTA) Vimal JUDGE