A finding of tenancy based on circumstantial evidence, including genuine documents and an adverse inference from the non-production of a material witness, is binding on a second appellate court.

1. - This is a defendant's second appeal against the judgment of Additional District Judge, Bundi in Civil Appeal No. 22 of 1972 reversing the judgment of Munsif, Bundi in Civil Suit No. 227 of 1961.

2. The plaintiff's case is that he gave on rent his one house described in Para No. 1 of the plaint to deceased Mustafa Hussain on monthly rent of Rs. 4.50, which was later raised to Rs. 5/- per month and this Mustafa Hussain remained in possession of the house till death : Mustafa Hussain expired in 1951 and after his death defendant No. 1, his wife Smt. Shahzadi Begum and defendant No. 2 Mohammad Zaki, his brother came in possession of this house and continued as tenants. A registered notice was given terminating the tenancy and thereafter the suit was filed for arrears of rent and eviction.

3. Both the defendants filed a joint written statement denying the plaintiff's suit allegation and alleged that Mustafa Hussain was never a tenant in the house. The defendants also alleged that Mustafa Hussain was in possession of the house as owner. After the death of Mustafa Hussain the respondents remained in possession of the house jointly, continuously and peacefully for last 30 years. The allegations of improvements were also made.

4. The following issues were framed :The issue regarding title and ownership were deleted and no grievance was made by either side in the appeal preferred before the District Judge and similarly in this Court.

5. The trial Court on discussion of evidence came to the conclusion that tenancy was not proved and consequently the suit was dismissed. The first appellate Court reversed that finding on the ground that tenancy was proved.

6. The first and the foremost question and the only question argued by Mr. Mehta is that tenancy has not been proved and the approach of the first appellate Court is perverse and, therefore, interference should be made in second appeal. Mr. Tikku on the contrary submitted that the question whether the relationship between the plaintiff and defendants is of landlord and tenants is pure question of fact and the finding of the first appellate Court even on reversion of the judgment of the trial Court is binding howsoever erroneous or inexcusable it may be.

7. Now coming to the merits of the case, it was pointed out by Mr. Mehta that no date of tenancy has been given. Similarly no receipt has been produced and it is impossible to believe that for a long period of 30 years when there is no proof of payment of rent and there is no document in writing of tenancy, simply by some circumstantial evidence believed by the first appellate Court, tenancy cannot be held to be proved Mr. Mehta's contention is that even the documents relied upon by the first appellate Court nowhere show that there was a tenancy. Mr. Mehta has taken me through the judgments of both the Courts and relevant evidence and vehemently challenged the finding of the first appellate Court.

8. Mr. Tikku on the contrary submits that apart from Ex. 1, a document of 1930 whose genuineness is beyond doubt Ex. 5 receipt of the rent deposited in the Court further proves that the relationship was that of landlord and tenant. Mr. Tikku also pointed out that a notice was given for eviction and payment of rent by registered post before filing of the suit, but the defendants never challenged the correctness of relationship of landlord and tenants by sending a reply to the notice.

9. Undoubtedly in a case where the relationship of landlord and tenant existed for a long period of three decades, is sought to be established on the basis of a few circumstances and the oral evidence believed by the first appellate Court consists of primarily the plaintiff and it is not known as to what was the exact date of tenancy.

10. However, the crucial limitations with which the second appeal is to be considered under Section 100 C.P.C. require to be first considered. Whether this Court is competent to interfere even if it finds that appreciation of evide