R.S.A.No. 113 of 1996 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 113 of 1996 Date of decision: 20.7. 2009 Sambhu Ram ......Appellant Versus Attam Parkash .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. H.S.Grewal,Advocate, for the appellant. Mr.Harkesh Manuja, Advocate, for the respondent. **** SABINA, J. Plaintiff Attam Parkash filed a suit for possession of the property in dispute and the same was dismissed by the Additional Senior Sub Judge, Gohana vide judgment and decree dated 24.8.1993. In appeal, the said judgment and decree were set aside by Additional District Judge, Sonepat vide judgment and decree dated 30.11.1995 and the suit of the plaintiff was decreed with costs. Hence, the present appeal by the defendant. R.S.A.No. 113 of 1996 2 Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. Undoubtedly, the plaintiff was a tenant under the defendant qua the godown at the rental of Rs.55/- per mensem, which was allegedly put on fire by the defendant and his son Om Parkash on the night intervening 1/ 2.5.1984. As a result thereof, many rafters of the godown were damaged, which required replacement. The defendant, after having replaced the same, put his lock thereon, which he agreed to remove only if he withdraws his police case. 3. The defendant admitted the factum of fire but disputed that he had a hand therein. He further admitted the registration of the case against him which, on enquiry, was found to be false. He further admitted the factum of handing over the key by the plaintiff to him which, according to him, was given in pursuance of a compromise arrived at with the intervention of the panchayat. The defendant has accordingly set up the plea of estoppel and further claimed special damage from the plaintiff.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to the R.S.A.No. 113 of 1996 3 possession of the suit property? OPP 2. Whether the suit is barred by limitation? OPD 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the plaintiff is estopped by his own act and conduct to file the present suit? OPD 5. Whether the defendant is entitled to special costs u/s 35A CPC? OPD 6. Relief. ” After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be allowed. The substantial question of law involved in this case is “ whether the lower Appellate Court has drawn wrong inferences from the unproved facts and based its findings on mere conjectures and surmises?” Plaintiff-Attam Parkash had filed a suit for possession on the ground that he was a tenant over the property in dispute and had handed over the keys of the same to the defendant landlord to get the same repaired. The case of defendant Sambhu Ram, on the other hand, was that the tenancy had come to an end and due to this reason, the plaintiff had handed over the keys of the demised premises to him. Parties had led oral evidence in support of their case. So far as the plaintiff is concerned, he himself appeared in the witness R.S.A.No. 113 of 1996 4 box as PW-1 and closed his evidence. The defendant, on the other hand, himself appeared in the witness box as DW-1 and examined DW-2 Sahib Singh and DW-3 Keso Ram. There is no rent deed on record to establish the terms and conditions of the tenancy. Admittedly, plaintiff had taken the godown in dispute on rent from the defendant. A fire broke out in the said premises and the plaintiff handed over the keys to the defendant. The question that requires consideration is as to whether on handing over of the keys by the plaintiff to the defendant, the tenancy had come to an end or whether the keys had been handed over by the plaintiff to the defendant for the purposes of repair of the godown in question. In this regard there is no documentary evidence on record. Plaintiff, while appearing in the witness box had deposed as per the contents of the plaint. However, the statement of the plaintiff is not corroborated by any other evidence. On the other hand, while appearing in the witness box as DW-1, the defendant had deposed as per the contents of the written statement. DW-2 Keso Ram deposed that in the Panchayat it was decided that both the parties will bear their own loses. A reading of cross-examination of the plaintiff also reveals that some agreement was entered between the parties in the panchayat. The matter was also reported to the police. However, the said proceedings had not been proved on record by the plaintiff. In the absence of any written terms and conditions regarding the tenancy and any evidence corroborating the oral R.S.A.No. 113 of 1996 5 statement of the plaintiff, the lower Appellate Court had based its findings on mere conjectures and surmises. In fact, the plaintiff had failed to prove his case. Since the plaintiff had handed over the keys of the godown in question to the defendant, it raises a presumption that the same were handed over with a view to put an end to the tenancy as there are no written terms and conditions of the tenancy on record to hold otherwise. It is a settled proposition of law that the plaintiff has to plead and prove his case and has to stand on his legs and cannot draw any benefit from the weakness in evidence led by the defendant. Lower Appellate Court in the facts and circumstances of the present case had, thus, erred in decreeing the suit of the plaintiff merely on the basis of uncorroborated oral testimony of the plaintiff and had, thus, drawn wrong inferences from the facts, which were never proved on record and had based its findings on mere conjectures and surmises. Hence, the substantial question of law arising in this appeal is answered accordingly. Consequently, this appeal is allowed. The impugned judgment and decree of the lower Appellate Court are set aside and the judgment and decree of the trial Court are upheld. No order as to costs. (SABINA) JUDGE July 20, 2009 anita