Usha Mebra ( 1 ) RAJINDER Singh Bhatia, by this appeal hassought reversal of the judgment and decree passed by the learned Trial Courtas well as the order of the First Appellate Court, whereby possession of thebarsati floor of property No. C-342, Defence Colony, New Delhi has beenordered to be restored to the respondent. Decree for damages has also beenpassed. ( 2 ) THE impugned orders have been assailed on the ground that thecourt 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 doesnot raise any question of law what to say of substantial and specific questionof law. Whether the appellant was a trespasser or licence, the Court belowarrived at that decision after appreciating the whole evidence. This Courtin 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 substantialquestion 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 atrespasser 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 legalposition ought to have dealt with the evidence accordingly. Courts belowcould 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 permonth as rent. In order to appreciate the legal question posed, this Courtwill look into that part of the evidence which deals with this aspect. ( 5 ) IN order to appreciate the relevant contentions of the Counsel thealleged facts in brief are, that the appellant was a tenant on the ground floorof premises bearing No. C-342, Defence Colony, New Delhi. Barsati floorof the suit property was in possession of Ms. ( 5 ) IN order to appreciate the relevant contentions of the Counsel thealleged facts in brief are, that the appellant was a tenant on the ground floorof premises bearing No. C-342, Defence Colony, New Delhi. Barsati floorof the suit property was in possession of Ms. Promilla who surrendered thepossession of the same to the respondent on 31/08/1971. The respondent does not reside in the suit property. The appellant who was residingon the ground floor forcibly occupied the barsati floor of the property inquestion 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 servedseeking possession and claimed damages for wrongful use and occupation. When inspite of notice the appellant failed to vacate the Barsati floor, therespondent filed the suit for possession and for damages. The appellantraised the contention that it was a parole tenancy and the terms were settledin the presence of his brother and two more other persons. It is in persuanceto this oral tenancy that he occupied the barsati floor. He had been payingrent by cheques which were refused by the landlord/respondent herein, andwhen the landlord refused, the rent was sent by money order. But even themoney orders were refused by the respondent. It was in this backgroundthat the Trial Court after appreciating the evidence came to the conclusionthat the Barsati floor was never let out to the appellant. That appellantillegally occupied the same and thus was a trespasser. However, the Firstappellate Court on re-appreciating the evidence came to the conclusion thatthe appellant was not a tresspasser, his possession became permissive. Thispermission was subsequently withdrawn by the respondent when asked theappellant to vacate. ( 6 ) THE question for determination is whether first appellate Courtwas right in dismissing the appeal after having held that the appellant wasnot a trespasser. His possession was permissive. At the outset I may agreewith the proposition of that substantial question of law has not been raised. The question of appellant s possession of Barsati floor whether as trespasseror licencee 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. His possession was permissive. At the outset I may agreewith the proposition of that substantial question of law has not been raised. The question of appellant s possession of Barsati floor whether as trespasseror licencee 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. Notonly 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. Theevidence 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 thatpossession of the appellant of Barsati floor was illegal. This fact appears tohave been admitted in the written statement filed by appellant. Appellant,however took the plea that the said wrong stood compounded. Respondenthad been maintaining that he did not take immediate steps to get the Barsatifloor vacated because of the assurance given by the people like Sardar Succhasingh and Sardar Avtar Singh friends of the appellant. They assured thatthey would get the Barsati floor vacated. These two persons refused to stepinto the witness box which fact is apparent from the Trial Court record. Thefact that Sardar Suchha Singh and Sardar Avtar Singh approached theappellant 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 Singhrequested him to vacate the Barsati floor. The contentions of the appellantthat the Courts below have not appreciated the evidence and committederror in concluding that appellant was not a tenant, to my mind, has noforce. According to Counsel for the appellant, the Court below thoughpropounded correct proposition of law but went wrong while appreciatingthe evidence hence arrived at wrong conclusion. To my mind, this argumentalso has no force. Though the first appellant Court has held that possessionof appellant was permissive, to my mind, by permissive possession the appellant did not acquire any right, title or interest in the portion of the propertyin question. To my mind, this argumentalso has no force. Though the first appellant Court has held that possessionof appellant was permissive, to my mind, by permissive possession the appellant did not acquire any right, title or interest in the portion of the propertyin question. Nor tendering of amount by way of rent would create landlordand tenant relationship as held by the Supreme Court in the case of Sheodhari Rai and Others v. Suraj Prasad Singh and Others, reported in AIR 1954 SC 758 where it observed that payment of rent does not necessarily establishrelationship 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