- (1.) Heard Sri Santosh Kumar, learned Counsel for the appellant arid Sri Vivek Kumar Singh, learned Counsel for the defendant-respondent. This is a second appeal filed under section 100 of the Code of Civil Procedure. At the time when it was admitted on 9.5.1979 the following substantial questions of law had been framed: (I) Whether there was no evidence at all that the defendants were paying any rent to the plaintiff and in the absence of any such evidence the Court below acted illegally in holding the defendants to be tenants? (II) Whether the Courts below have acted on conjectures and surmises and not on any material on record in holding that Ganga Ram was not a licensee but a tenant? The Trial Court while deciding Issue No. 3 has recorded that although the defendant was the Kochwan of the plaintiff to look after his vehicles and was given the Astabal to live therein but when the family of the defendant was living in two rooms of the first floor it cannot be believed that the plaintiff would permit the defendant's family to live free of cost in his accommodation and, therefore, the case set up by the defendant that he was paying Rs. 8/- as rent for the accommodation has to be believed.
(2.) While perusing the impugned order it will be seen that this was a case of only oral evidence and the defendant has relied upon the statement of certain neighbours of the premises in question. The statement of the neighbours cannot prove the relationship between the plaintiff and the respondent, if the respondent claims right as a tenant. On the other hand the Trial Court has recorded that insofar as Astabal is concerned the defendant was a licensees and such license had been validly terminated.
(3.) The First Appellate Court in a very cursory manner has recorded that after the death of Ganga Ram on 2.2.1976 who was Kochwan his family continued to live in two rooms and since there was no vehicle since last 5 to 6 years the said Ganga Ram was not rendering any other service and, therefore, the occupation of the two rooms in the premises would be naturally on payment of rent. There is no cogent evidence that the defendants were paying rent to the plaintiff and, therefore, it was a case of no evidence regarding payment of rent by the defendants to the plaintiffs. The first substantial question of law is, therefore, answered in favour of the plaintiff and against the defendant by holding that such finding has been recorded without any cogent evidence and as such the finding being perverse can be set aside in a second appeal under section 100 of C.P.C. It is accordingly set aside.;