R.S.A.No.1639 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.1639 of 2005 Date of Decision : 10.09.2009 Mohan Lal ...Appellant Versus Samistha Sahni @ Samistha Devi ...Respondent CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. A.K.Khunger, Advocate, for the appellant. Mr. Kunal Mulwani, Advocate, for the respondent. HEMANT GUPTA, J. (ORAL) The defendant is in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court, whereby suit for possession of house bearing Municipal No.B-XXXIX/20, was decreed. The plaintiff claimed possession of the aforesaid suit on the basis of title alleging that the defendant is in unauthorized possession of the house. The defendant contested the suit and alleged himself to be tenant at the monthly rent of Rs.50/- since January, 1989. To support the plea of tenancy, the defendant produced the evidence of installation of electric connection, water connection and payment of house-tax, which reflected his possession, since the year 1989, as against the assertion of the plaintiff that the possession of the defendant is from the year 1998. Learned trial Court dismissed the suit, but the learned first Appellate Court held that the plea of tenancy remains unsubstantiated and that in view of the fact that the plaintiff is owner of the suit property, the decree for possession was granted. Aggrieved against the said judgment and decree, the defendant is in second appeal. R.S.A.No.1639 of 2005 2 Learned counsel for the appellant has vehemently argued that the plaintiff has sought possession alleging the defendant to be in unauthorized possession since the year 1998, whereas, the plaintiff has been able to show his possession since the year 1989 on the basis of electric and water connections as well as by payment of house-tax, therefore, the very basis of claiming possession stands knocked down. Consequently, the decree granted by the first Appellate Court suffers from patent illegality and is unsustainable. Learned counsel for the respondent has pointed that in fact the father of the defendant-appellant is the owner of adjoining house. The record of the electricity connection and that of water connection does not reflect that said connections have been granted in the house in dispute. Therefore, the assertion of the plaintiff that electric and water connections were taken by him in the year 1989 for the house of the plaintiff, is not correct. Even if he has obtained such water and electricity connection by taking undue advantage of proximity of his house, therefore, the plaintiff, who is owner of the house is entitled to seek possession of the same, when the defendant has failed to prove the tenancy as pleaded by him. I have heard learned counsel for the parties and do not find any merit in the present appeal. Even if, it is presumed that the electric and water connections were obtained by the appellant in the year 1989, that only prove his occupation since the said date. Such documents do not prove his tenancy. It is the plea of the defendant that he was a tenant under the plaintiff. The defendant has not produced any rent receipt or any oral or documentary R.S.A.No.1639 of 2005 3 evidence in respect of creation of tenancy rights. The appellant has not produced his income-tax record to prove his plea of tenancy. Therefore, even if the plaintiff has alleged the defendant to be in unauthorized possession since the year 1998, but the defendant proved his possession since the year 1989 that will not defeat the right of the plaintiff to seek possession from an unauthorized occupant. The plea of tenancy remains unsubstantiated, as the findings of fact recorded are on the basis of evidence on record. The appellant has moved C.M.No.4405-C of 2005 for placing on record copy of House Tax Assessment Register and C.M.No.5548-C of 2005 for producing Income Tax Returns. If, the said income tax returns are taken into consideration that does not advance the cause of appellant in any manner. Such returns show that the appellant is doing embroidery works. If, he was doing a business, he must be maintaining the account-books. To prove the payment of rent, he has to produce his account-books to show the relationship of land-lord and tenant between the parties. The self-serving statement of the appellant is not sufficient to return a finding that the appellant is tenant. Findings of fact recorded by the learned first Appellate Court are sought to be disputed by reappreciation of evidence. However, it could not be pointed that any evidence has been misread or not taken into consideration. Consequently, I do not find that any substantial question of law arises for consideration by this Court. Dismissed. 10.09.2009 (HEMANT GUPTA) Vimal JUDGE