THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CMSA 7 OF 2008 ORAL JUDGMENT: This appeal is filed against the judgment and decree in A.S.No.66 of 2007 on the file of the court of Senior Civil Judge, Tanuku confirming the order in E.A.No.883 of 2004 in E.P.No.192 of 2004 in O.S.No.972 of 2003 on the file of the Court of I Additional Junior Civil Judge, Tanuku. The application was filed under Order XXI, Rule 97 CPC by the appellant herein. The suit O.S.No.972 of 2003 was filed by the first respondent-Decree holder for possession of the schedule property after evicting the second respondent who was the Judgment Debtor (JDR). The matter was settled in Lok Adalat and a compromise was recorded and the second respondent has to deliver the possession of the property on or before 24-04-2004. But, however, the first respondent filed E.P.No.192 of 2004 as the delivery was not affected. The petitioner herein claims to be a tenant of the first respondent having taken the same on lease on 29-04-2004 having paid an advance of Rs.20,000/- at a monthly rent of Rs.600/- per month. The first respondent in pursuance of the decree is trying to evict the petitioner from the schedule property taking advantage of the decree and therefore the petitioner resisted the attempts of delivery. The first respondent filed a counter denying the plea of tenancy and also the eviction said to have been effected by the second respondent as per the decree. The lease is not true and the petitioner has no right to continue in possession of the property and he was set up to avoid delivery of the property. The second respondent supported the plea of delivery of schedule property on 29-04-2004 to the first respondent. On the basis of the above pleadings, the following points were framed by the Junior Civil Judge for consideration. 1. Whether there is Tenant and Landlord relationship between Claim petitioner and 1st respondent? 2. Whether the claim petitioner is in possession and enjoyment of the petition schedule property, or not? 3. To what relief? On behalf of the claim petitioner PWs.1 to 3 were examined and marked Ex.A-1. On behalf of the respondents RWs.1 and 2 were examined and no documents got marked. After considering the evidence on record, the Junior Civil Judge dismissed the application and aggrieved by the said order first appeal has been preferred and that was also dismissed. Hence the present Civil Miscellaneous Second Appeal. Now the points that arise for consideration are: 1. Whether the appellant is the tenant of the first respondent and cannot be evicted from the schedule property? 2. Whether the petition is not maintainable? 3. Whether the judgment under appeal is legal and sustainable? 4. To what relief? POINTS:- Evidently, the claim of the petitioner is that after satisfaction of the judgment and decree in O.S.387 of 2004 and after the second respondent delivered the property on 28-04-2004 a fresh lease was entered and he was inducted into possession on 29-04-2004. It is not in dispute and the law is also well settled that even without dispossession an application under Order XXI, Rule 99 CPC by a person in possession can be maintained. But, however, whether the appellant claiming independent tenancy through the first respondent is entitled to maintain the petition or not is not of much importance in view of the findings of the both the courts that the tenancy is not proved. Evidently, the burden is on the appellant to prove that there was a valid tenancy and he was inducted into possession after payment of Rs.20,000/-. To prove the tenancy there is no written document. There is also no document to prove the payment of advance of Rs.20,000/-. The lease is said to be oral. In fact it is the contention of the first respondent that there was no delivery affected on 28-04-2004. If really the second respondent has delivered the possession of the property as contended by him, a receipt could have been taken by him to prove the delivery. But no such receipt is also filed. It is also unbelievable that when the delivery was affected on 28-04-2004 by the second respondent the premises would have been immediately delivered on lease to the petitioner herein. Merely because the appellant herein has come into possession of the property without any manner of right, he cannot resist the possession. So also the subsequent possession noticed by the Court Commissioner is also not relevant. Therefore, mere possession of the property by the appellant without any manner of right is of no use and he cannot resist the delivery without establishing any jural relationship with the decree holder or right to possession. The second respondent who claims to have delivered possession on 28-04-2004 did not go into box. The evidence of PWs.2 and 3 that on 27-04-2004 an oral discussion was held about the tenancy does not appears to be probable when the second respondent has not even vacated the premises. Therefore when both the courts have found on fact that the lease is not proved and the right of the appellant for the possession to the property cannot be treated as legal and when once he has come to the court with false plea of tenancy, the petition under Order XXI, Rule 97 or 99 CPC is not maintainable and the courts below have rightly dismissed the applications. I find no merits in the appeal and accordingly the appeal is liable to be dismissed. In the result the Civil Miscellaneous Second Appeal is dismissed with costs. _______________________ N.R.L.NAGESWARA RAO,J 15-06-2011 TSNR