Regular Second Appeal No.223 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-28.7.2010 Jit Singh son of Mohinder Singh ...Appellant Versus Umrao Singh and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Sanjiv Gupta, Advocate for the appellant. Mr.Vikas Bishnoi, Advocate for the respondents. M ehinder S ingh S ullar , J . (Oral) The epitome of the facts, relevant for disposal of present appeal and emanating from the record, is that Jit Singh son of Mohinder Singh appellant- plaintiff (hereinafter to be referred as “the plaintiff”) filed the suit, seeking a decree of permanent injunction restraining Umrao Singh son of Kundan Singh, Ram Singh son of Mani Ram and Jagat Singh son of Shingara Singh respondent- defendants (hereinafter to be referred as “the defendants”) from dispossessing him from the land in dispute. Concisely, according to the plaintiff, he is cultivating the suit land as tenant on payment of 1/3rd share in produce (Batai), but now the defendants have started claiming half share of the produce (Batai) without any basis and threatened to dispossess him from the suit land. On the basis of aforesaid allegations, the plaintiff filed the suit for permanent injunction against the defendants in the manner indicated here-in-above. 2. As defendant No.1 did not contest the suit, therefore, the exparte proceedings were ordered against him. However, defendant Nos.2 and 3 (for brevity “the contesting defendants”) contested the suit and filed the written statement refuting the averments of plaint, inter-alia, pleading certain preliminary objections of, maintainability of suit and cause of action of the plaintiff. Regular Second Appeal No.223 of 2009 2 Succinctly, the contesting defendants claimed that they are owners and in possession of the suit land by virtue of exchange from Umrao Singh defendant No.1, vide entry rapat roznamcha No.407 dated 14.6.2001 (Ex.D1) and mutation No.2450 to that effect was sanctioned in their favour. It will not be out of place to mention here that the contesting defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 3. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the relevant issues for proper adjudication of the case. 4. The parties brought on record the oral as well as documentary evidence, in order to substantiate their respective stands. 5. Having completed all the codal formalities and on ultimate analysis of evidence on record, the trial Court dismissed the suit of the plaintiff, vide impugned judgment and decree dated 18.8.2007. 6. Aggrieved by the judgment and decree of the trial Court, the appellant-plaintiff filed the appeal, which was dismissed as well, by the Ist Appellate Court, vide impugned judgment and decree dated 31.10.2008. 7. The appellant-plaintiff still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present appeal. 8. After hearing the learned counsel for the parties, after going through the record with their valuable help and after considering the matter deeply, to my mind, there is no merit in the appeal. 9. As is evident from the record, the plaintiff has filed the suit for a decree of permanent injunction claiming himself to be the tenant over the disputed property. On the contrary, the contesting defendants claimed that Umrao Singh defendant No.1 was the owner and he exchanged the property in dispute with them, vide entry rapat roznamcha (Ex.D1) and mutation No.2450 to that effect has Regular Second Appeal No.223 of 2009 3 been sanctioned in their favour. Thus, it would be seen that the facts of this case are neither intricate nor much disputed. 10. Above being the position on record, now the sole question, that arises for determination in this appeal, is as to whether the plaintiff is proved to be in possession as a tenant of the disputed property or not? 11. The main contention of the learned counsel that the Courts below have not appreciated the evidence in the shape of receipts (Ex.P1 to Ex.P5) issued by PW3 Umrao Singh and as the plaintiff is proved to be in possession of the disputed property as tenant, therefore, the Courts below fell in error in dismissing his suit, is not only devoid of merit but misplaced as well. 12. Meaning thereby, the plaintiff has set up a specific plea of tenancy over the property in dispute, which was completely denied by the contesting defendants. In that eventuality, a very heavy burden of proof was upon the plaintiff 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 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 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 between the parties. 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. 13. Not only that, the plaintiff 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, when, by whom Regular Second Appeal No.223 of 2009 4 and in what manner, he was inducted as tenant in the disputed property. 14. Moreover, the bare perusal of the record would reveal that Umrao Singh defendant No.1 had exchanged the land in dispute with the land of contesting defendants, vide entry rapat roznamcha (Ex.D1) and mutation to that effect was sanctioned in their favour. Thus, Umrao Singh did not remain the owner and had left with no interest in the disputed property after the exchange. So, no implicit reliance can be placed on his statement (PW3) or receipts (Ex.P1 to Ex.P5) issued by him without any basis in favour of plaintiff, particularly, when the trial Court noticed that the alleged receipts do not bear any signature by affixing revenue stamps over it and the same were denied by the contesting defendants. If the plaintiff was tenant then his name would have been incorporated as such (tenant) in the revenue record. Absence of such entry in the revenue record completely demolished his case in this respect. Therefore, the Courts below have rightly negatived the claim of the plaintiff and accepted the claim of the contesting defendants. 15. All remaining arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant-plaintiff, in this relevant behalf, have already been duly considered and dealt with by the Courts below. 16. 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 (i) it stands proved on record that the contesting defendants exchanged their land with the land in dispute of Umrao Singh defendant No.1 and (ii) the plaintiff has utterly failed to prove his tenancy over the disputed property and is not entitled for any injunction as prayed for. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered Regular Second Appeal No.223 of 2009 5 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- plaintiff, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this relevant behalf. 17. In other words, the entire case 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 present case. 18. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant-plaintiff. 19. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed. (Mehinder Singh Sullar) 28.7.2010 Judge AS