The burden of proof lies with the party alleging the relationship of landlord and tenant, and in the absence of evidence to support the claim, the courts will uphold the findings of fact based on the appreciation of evidence.

JUDGMENT

1. Appellant-plaintiff (hereafter referred to ’plaintiffs’) has filed this second appeal under Section 100 of C.P.C, assailing the judgment and decree dated 16.03.2016 passed in civil first appeal No.03/2011 by Additional District and Session Judge Jhalawar, District Jhalawar affirming the judgment and decree dated 27.08.2008 passed in civil suit No.86/2002 (104/1996) by Additional Civil Judge (Sr.D.) Jhalawar whereby and whereunder the civil suit for rent and eviction in relation to the shop in question has been dismissed on merits, mainly on the ground that there is no relationship of landlord and tenant between the parties.

2. On perusal of the record, it appears that plaintiffs’ father and the defendant’s father are real brothers and plaintiffs came with a case that the suit shop was belonging to their father-Karimbux who let out the shop in question to defendant at the rate of Rs.15/- per month. The tenancy was alleged to be oral but no details, as to when the tenancy was commenced, were mentioned in the plaint. Plaintiffs have in vague manner pleaded that the defendant started to pay rent @ Rs.15/- per month to plaintiffs and have committed default in payment of rent from 01.07.1985. The suit for eviction was instituted on 29.10.1996 invoking provisions of the Rajasthan Premise (Control of Rent and Eviction Act), 1950 (hereafter referred to ’Act of 1950’), on the ground of default, material alternation and denial of title.

3. The defendant submitted written statement and contended that the suit shop is more than 100 years old and their possession is not in the capacity of tenant. The defendant categorically denied that plaintiffs’ father-Karimbux ever let out or gave possession of the shop to the defendant. The defendant categorically denied that he never paid any rent either @ Rs.15/-per month or at any other rate to plaintiffs and there is no relationship of landlord and tenant, hence the suit for eviction is not liable to succeed and deserves to be dismissed.

4. Learned trial court, on rival pleadings of both parties, framed issues. The principal issue, as to whether the relationship of landlord and tenant exists between the parties, was framed, apart from other issues on grounds of eviction as to default, material alternation and denial of title.

5. Both parties were allowed to lead their evidence. On the basis of evidence the trial court vide judgment dated 27.08.2008 proceeded to decide the suit and the issue relating to relationship of landlord and tenant was taken as first issue. While deciding this issue, the trial court has recorded a fact finding that plaintiffs could not prove that the shop in question belongs to their father and their father let out the shop to the defendant. It was observed that plaintiffs’ father-Karimbux and defendant’s father-Rahamtulla are real brothers and the case of plaintiffs to let out the shop orally @ Rs.15/- per month was not found proved. The trial court observed that there is no rent note, no rent receipt or any other iota of evidence to conclude that the shop was let out to the defendant. Plaintiffs and their witnesses could not prove as to when the shop was let out. None of the witnesses stated that the rent was ever paid by defendant in their presence. Plaintiffs stated the oral tenancy on the basis of hearsay and their witnesses also deposed statements on the basis of hearsay evidence.

6. In counter, the defendant adduced evidence that the properties of the family were divided and the shop came in share of their father; they are in possession of the suit shops since more than 15-16 years independently.

7. On appreciation of pleadings and evidence of both parties, the trial court has found that there is no relationship of landlord and tenant between the parties, hence the eviction suit under the Act of 1950 is not liable to succeed and there is no requirement to consider other issues relating to grounds of eviction. Consequently, the suit was dismissed vide judgment and d