Rajinder Singh Bhatia vs Ramesh Suri Anand
1993 Latest Caselaw 175 Del

JUDGMENT

Usha Mebra, J.

(1) Rajinder Singh Bhatia, by this appeal has sought reversal of the judgment and decree passed by the learned Trial Court as well as the order of the First Appellate Court, whereby possession of the Barsati floor of property No. C-342, defense Colony, New Delhi has been ordered to be restored to the respondent. Decree for damages has also beenpassed.

(2) The impugned orders have been assailed on the ground that the Court below having had that appellant was not a trespasser and his possession being permissive aught to have dismissed the suit.

(3) Counsel for the respondent took up a preliminary objection regarding the maintainability of this appeal. According to him the appeal does not raise any question of law what to say of substantial and specific question of law. Whether the appellant was a trespasser or license, the Court below arrived at that decision after appreciating the whole evidence. This Court in second appeal cannot reappreciate the same evidence. The discretion cannot be exercised even though two views are possible on the facts and circumstances which have come on record. Since in this appeal no substantial question of law has been raised, appeal must fail.

(4) Mr. Lekhi, appearing for the appellant, contended that in para 1of the grounds of appeal the legal question has been specifically raised, i.e.,"that the First Appellate Court having found the appellant not to be a trespasser and in the circumstances possession of the appellant being permissive suit should have been dismissed." Thus Mr. Lekhi contended raise substantial question of law. The Court below having appreciated the legal position ought to have dealt with the evidence accordingly. Courts below could not have discarded the evidence of independent witnesses like Mr.G.L. Dogra by saying he was a chance witness nor the evidence of appellant'sbrother could be discarded by saying he was interested witness. These witnesses, in fact proved oral tenancy of the Barsati floor @ Rs. 200.00 per month as rent. In order to appreciate the legal question posed, this Court will look into that part of the evidence which deals with this aspect.

(5) In order to appreciate the relevant contentions of the Counsel the alleged facts in brief are, that the appellant was a tenant on the ground floor of premises bearing No. C-342, defense Colony, New Delhi. Barsati floor of the suit property was in possession of Ms. Promilla who surrendered the possession of the same to the respondent on 31/08/1971. The respondent does not reside in the suit property. The appellant who was residing on the ground floor forcibly occupied the barsati floor of the property in question in December, 1971. On having come to know of this illegal occupation of the Barsati floor by the appellant, the respondent asked him tovacate. Respondent even approached appellant's friend in order to pressurise him to vacate. And since appellant failed to do so, notice was served seeking possession and claimed damages for wrongful use and occupation.When inspite of notice the appellant failed to vacate the Barsati floor, the respondent filed the suit for possession and for damages. The appellant raised the contention that it was a parole tenancy and the terms were settled in the presence of his brother and two more other persons. It is in pursuance to this oral tenancy that he occupied the barsati floor. He had been paying rent by cheques which were refused by the landlord/respondent herein, and when the landlord refused, the rent was sent by money order. But even the money orders were refused by the respondent. It was in this background that the Trial Court after appreciating the evidence came to the conclusion that the Barsati floor was never let out to the appellant. That appellant illegally occupied the same and thus was a trespasser. However, the First Appellate Court on re-appreciating the evidence came to the conclusion that the appellant was not a tresspasser, his possession became permissive. This permission was subsequently withdrawn by the respondent when asked the appellant to vacate.

(6) The question for determination is whether first appellate Court was right in dismissing the appeal after having held that the appellant was not a trespasser. His possession was permissive. At the outset I may agree with the proposition of that substantial question of law has not been raised.The question of appellant's possession of Barsati floor whether as trespasser or licensee has been decided by the Courts below after appraising and appreciating the evidence. It is in fact a mixed question of fact and of law. Not only on legal ground even on merits I find no infirmity in the impugnedjudgments. It is an admitted fact on record that there is no written agreement regarding Barsati floor. It was alleged to be an oral agreement. The evidence to prove the oral agreement has been discarded by both the Courtsbelow. This Court in second appeal cannot re-appraise nor reappreciate thesame. Respondent/landlord had been contending from the beginning that possession of the appellant of Barsati floor was illegal. This fact appears to have been admitted in the written statement filed by appellant. Appellant,however took the plea that the said wrong stood compounded. Respondent had been maintaining that he did not take immediate steps to get the Barsati floor vacated because of the assurance given by the people like Sardar Succha Singh and Sardar Avtar Singh friends of the appellant. They assured that they would get the Barsati floor vacated. These two persons refused to step into the witness box which fact is apparent from the Trial Court record. The fact that Sardar Suchha Singh and Sardar Avtar Singh approached the appellant is admitted by him in his reply notice dated 24/08/1974 Ex.P.4 wherein he admitted that Sardar Succha Singh and Sardar Avtar Singh requested him to vacate the Barsati floor. The contentions of the appellant that the Courts below have not appreciated the evidence and committed error in concluding that appellant was not a tenant, to my mind, has noforce. According to Counsel for the appellant, the Court below though propounded correct proposition of law but went wrong while appreciating the evidence hence arrived at wrong conclusion. To my mind, this argument also has no force. Though the first appellant Court has held that possession of appellant was permissive, to my mind, by permissive possession the appellant did not acquire any right, title or interest in the portion of the property in question. Nor tendering of amount by way of rent would create landlord and tenant relationship as held by the Supreme Court in the case of Sheodhari Rai and Others v.SurajPrasad Singh and Others, where it observed that payment of rent does not necessarily establish relationship of landlord and tenant. Such payment may only prove permissive occupation not amounting to any right or title to possession. So permissive possession stood determined when the respondent issued notice (Ex. P.3)dated 31/07/1974 and when filed the suit.

(7) In this view of the matter,I find no infirmity in the impugned orders. Dismissed.