Regular Second Appeal No.3970 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-13.7.2010 Raj Kumar ...Appellant Versus Darshan Singh and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.M.L.Saggar, Senior Advocate with Ms.Meenu Sharma, Advocate for the appellant. Mr.R.K.Girdhar, Advocate for the respondents. M ehinder S ingh S ullar , J. 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 Darshan Singh, Chand Singh and Mukand Singh sons of Karnail Singh respondent-plaintiffs (hereinafter to be referred as “the plaintiffs”) filed the present suit against Raj Kumar son of Jagan Nath appellant-defendant (hereinafter to be referred as “the defendant”) for a decree of possession of the disputed shop. 2. The case set up by the plaintiffs, in brief, in so far as relevant, was that they are owners of the disputed shop. They executed an agreement dated 14.12.2000 to mortgage their shop for a sum of Rs.25000/- with the defendant. At the time of execution of the said agreement to mortgage, the plaintiffs received a sum of Rs.10,000/-as earnest money and the physical possession of the shop was delivered to the defendant. The remaining amount was to be paid by the defendant at the time of execution and registration of the mortgage deed, to be executed and registered on or before 15.12.2001. They always remained ready and willing to Regular Second Appeal No.3970 of 2008 2 perform their part of agreement, but the defendant, instead of executing and registering the mortgage deed on or before 15.12.2001, filed a civil suit against them in breach of agreement and flatly refused to fulfill his part of contract in this respect. 3. Levelling a variety of allegations, in all, according to the plaintiffs that since the defendant did not fulfill his part of contract and refused to execute and register the mortgage deed, so, his possession became un-authorized. They repeatedly asked the defendant to execute and register the mortgage deed and to pay the balance amount, but in vain, which necessitated them (plaintiffs) to file the present suit. On the basis of the aforesaid allegations, the plaintiffs filed the suit for decree of possession against the defendant, in the manner indicated here-in- above. 4. The defendant contested the suit and filed the written statement, inter-alia, pleading certain preliminary objections of, maintainability of suit, locus standi and cause of action of the plaintiffs. On merits, the defendant claimed that he is a tenant and took the shop in dispute from the plaintiffs on rent at the rate of Rs.950/- per month. The first agreement executed in the year 1997 between the parties was stated to have taken back by the plaintiffs from the defendant. They compelled the defendant to execute a fresh agreement to mortgage in their favour. They also told him that no receipt will be given for the rent and he, in order to avoid harassment at the hands of the plaintiffs, executed an agreement to mortgage for the second time on 14.12.2000 and also agreed to pay rent at the rate of Rs.1025/- per month. He was stated to have paid a sum of Rs.10,000/- through the agreement as an advance deposit with the plaintiffs, which was to be returned when he (defendant) vacates the shop. Concisely, according to the defendant, an agreement to mortgage is fake and as there is a relationship of landlord and tenant between the parties, therefore, the present suit is not maintainable. It will not be out of place to mention here that the defendant has stoutly denied all other Regular Second Appeal No.3970 of 2008 3 allegations contained in the plaint and prayed for dismissal of the suit. 5. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiffs filed the replication. In the wake of pleadings of the parties, the trial Court framed the relevant issues for adjudication of the case. 6. The parties brought on record, the oral as well as documentary evidence, in order to substantiate their respective stands. 7. Having completed all the codal formalities and on ultimate analysis of the evidence on record, the trial Court decreed the suit of the plaintiffs, vide impugned judgment and decree dated 4.8.2007. 8. Aggrieved by the judgment and decree of the trial Court, the appellant-defendant filed the appeal, which was dismissed as well, by the Ist Appellate Court, vide impugned judgment and decree dated 19.8.2008. 9. The appellant (defendant) still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present appeal. That is how, I am seized of the matter. 10. Having heard the learned counsel for the parties, gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the appeal. 11. However, the main celebrated argument of the learned counsel that although the defendant entered into the possession of the disputed shop as a tenant in the year 1997, but the impugned agreement dated 14.12.2000, to mortgage was a camouflage and sham transaction and since the defendant is a tenant, so, he cannot be ejected from the shop in dispute in the present civil suit for possession, is not only devoid of merit but speculative and misplaced as well. 12. As is evident from the record, the plaintiffs claimed that the agreement to mortgage dated 14.12.2000 was executed between the parties and possession was delivered to the defendant. The mortgage deed was to be executed Regular Second Appeal No.3970 of 2008 4 and registerd on or before 15.12.2001, but he (defendant) did not come present for its execution and registration, nor he paid the balance amount. Instead of executing the mortgage deed, the defendant filed a suit for permanent injunction against them in civil Court and thus his possession became illegal. Although the defendant acknowledged the execution and registration, but still the plaintiffs have duly proved the copy of registered agreement to mortgage (Ex.P2), as the original was in possession of the defendant. On the other hand, the defendant has set up a specific plea that he is in possession of the disputed shop as a tenant and the agreement dated 14.12.2000 is a camouflage to deny his tenancy. 13. Meaning thereby, the defendant has reiterated his possession as a tenant over the shop in dispute, which has been stoutly denied by the plaintiffs. In that eventuality, a very heavy burden of proof was on the defendant to prove the existence/incidents of tenancy. It is not a matter of dispute that 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 intended to divest himself of the possession of the shop in dispute 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. The payment of rent is a normal incident of tenancy and on the other end, 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 rights in the property, the tenancy only comes into existence as a result of bilateral agreement and payment of rent etc., which are totally lacking in the present case. The defendant has miserably failed to prove that he was inducted as a tenant by the plaintiffs in the shop in dispute, particularly, when it stands proved on record that he entered into possession of the shop in question in pursuance of the agreement to mortgage. Therefore, the contrary arguments of the learned counsel for the Regular Second Appeal No.3970 of 2008 5 appellant-defendant “stricto sensu” deserve to be and are hereby repelled, under the present set of circumstances. 14. All the remaining 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. 15. There is another aspect of the matter, which can be viewed from a different angle. 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 Courts below have recorded the concurrent findings of fact that the defendant has utterly failed to prove the existence of tenancy and relationship of landlord and tenant between the parties and the plaintiffs have duly proved that he entered into possession of the shop in dispute in pursuance of the agreement to mortgage. Such pure concurrent findings of 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. 16. In other words, the entire 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. Regular Second Appeal No.3970 of 2008 6 17. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant-defendant. 18. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed. (Mehinder Singh Sullar) 13.7.2010 Judge AS