JUDGMENT 1. 1. This appeal has been filed by the defendant Chandra Singh against the judgment and decree dated 1-11-1994 passed by the learned Additional Judge No. 1, Jodhpur. 2. The plaintiff-respondent Chhotulal filed a suit against the appellant on 25-4-1988, in respect of a shop situate at Soorsagar, Jodhpur as described in para 1 of the claim. The shop initially belonged to Ranveer Singh s/o Shankar Lal and vide a sale deed dated 19-4-1974, the same was purchased by the plaintiff Chhotulal. The contention of the plaintiff was to the effect that some time in the year 1970, as a facility to the public of the area, the shop was given gratis to the appellant, who was a Compounder and the understanding was that the appellant shall be attending the public free of charges for about an hour daily. This arrangement continued even after the shop was purchased by the respondent. According to the plaint allegations some time in the year 1987 the appellant after his retirement from Government service started to sit in the shop on regular basis and it was being run as a dispensary and he started to charge money from the patients. Since the shop was put to commercial use by the appellant, the respondent-plaintiff some time in the month of December, 1987 cancelled the licence and asked the appellant to hand-over the possession of the shop to the plaintiff-respondent. However, the appellant did not comply and hence, the suit for possession was filed. It was also contended that the shop could fetch rent @ Rs. 200/- per month and hence, for the period of four months prior to the filing of the suit Rs. 800/- were claimed as mesne profits. 3. The defendant in his written statement denied that he was a licensee in the shop. His contention was to the effect that some time in the year 1972 he hired the shop on rent from Shankar Lal, who was the father of Ranveer Singh at the rate of Rs. 20/- per month. The rent according to the written statement was subsequently enhanced to Rs. 40/- per month and at the time of filing of the suit the agreed rate of rent was Rs. 70/- per month. 20/- per month. The rent according to the written statement was subsequently enhanced to Rs. 40/- per month and at the time of filing of the suit the agreed rate of rent was Rs. 70/- per month. It was contended that from the very beginning the defendant was charging the patients for treatment and the averments in the plaint to the effect that initially the patients were treated without any charges were not true. It was asserted that the previous owners Shankar Lal, Ranveer Singh and their agents used to charge rent regularly and the rent receipts were given to the defendant. It was contended that after the shop was purchased by the plaintiff, the plaintiff increased the rate of rent and the rent was actually paid to the plaintiff at the enhanced rate of Rs. 70/- per month. According to the written statement the plaintiff wanted to increase the rate of rent to Rs. 200/- per month and since the defendant was not agreeable to the same this suit on false ground was instituted. It was contended that the defendant-appellant, apart from paying the rent, is also making payment for the electricity charges. The plaintiff filed a rejoinder wherein the contentions of the defendant were denied and it was stated that since no rent was being charged, the defendant was making payment for the electricity bills as the same was used by him. Necessary issues were framed. The plaintiff examined himself as well as PW/2 Ranveer Singh, PW/3 Prem and PW/4 Dalpat Singh. In rebuttal, the defendant Chandra Singh examined himself and further examined DW/2 Braham Singh @ Beeram Singh, DW/3 Daulat Singh and DW/4 Hukam Singh. The learned court heard the arguments and delivered the judgment on 1-11-1994. It was found that the defendant was not a tenant but was a licensee only. Further it was found that the plaintiff was entitled to Rs. 200/- per month as damages on account of use and occupation of the shop beyond December, 1987. Consequently, the suit for possession and mesne profit was decreed as prayed by the plaintiff. Feeling aggrieved the defendant has filed this appeal. 4. I have heard the learned counsel for the parties and have perused the record of the case. 5. 200/- per month as damages on account of use and occupation of the shop beyond December, 1987. Consequently, the suit for possession and mesne profit was decreed as prayed by the plaintiff. Feeling aggrieved the defendant has filed this appeal. 4. I have heard the learned counsel for the parties and have perused the record of the case. 5. As pointed out earlier the controversy between the parties was to the effect that according to the plaintiff the suit shop was given to the defendant, initially by PW 2 Ranveer Singh free of charges as a licensee whereas the defendant has come with a clear case that he was admitted as a tenant ) Rs. 20/- per month by Shankar Lal (father of the said Ranveer Singh) some time in the year 1972. Further the case of the defendant was that the rate of rent was subsequently increased from Rs. 20/- to Rs. 40/- per month and then to As. 70/- per month w.e.f. 1-5-1975. The defendant's case further as disclosed in para 7 of the written statement has been to the effect that the plaintiff was not happy with Rs. 70/- per month as rent and was insisting to enhance the same to Rs. 200/- per month. 6. PW/1 Chhotulal as well as PW/2 Ranveer Singh have deposed to the effect that the suit shop was never rented out but was given to the appellant gratis. PW/3 Prem and PW/4 Dalpat Singh have deposed that initially the dispensary was opened by the appellant only in the evening for about a couple of hours but subsequently, the appellant has started working in the dispensary in the morning as well as in the evening. They both have stated that the suit shop can fetch rent ) Rs. 200/- to Rs. 300/- per month. 7. The appellant Chandra Singh deposed that he got the shop on rent from Shankar Lal Rs. 20/- per month and thereafter the rent was increased to Rs. 40/- per month and subsequently, the rate was increased to Rs. 70/- per month. He has stated that from the very beginning he is charging the patients for treatment and it is incorrect to say that he is a licensee in the shop. 20/- per month and thereafter the rent was increased to Rs. 40/- per month and subsequently, the rate was increased to Rs. 70/- per month. He has stated that from the very beginning he is charging the patients for treatment and it is incorrect to say that he is a licensee in the shop. He has stated that he used to pay rent to the 'Munim' of the said Shankar Lal and he was also paying the electricity charges of the shop. He has stated that after the shop was purchased by Chhotulal, the rent sometime was paid to Chhotulal himself and sometime it was paid to the servant of Chhotulal. The witness has produced a receipt Ex. A/3 which according to him was issued by one Kailash, who allegedly was a servant of the plaintiff Chhotulal. In cross-examination, the witness has stated that the name of the 'Munim' of Shankar Lal, who used to collect the rent was Ganga Singh. Further the witness has stated that the plaintiff wanted to increase the monthly rent from Rs. 70/- to Rs. 150/-, however, he offered to pay Rs. 125/- per month to which the plaintiff did not agree. According to the witness he paid rent up to December, 1987 and subsequent to that when the plaintiff refused to accept the rent, the same was sent through Money-orders which were refused, Money-orders Ex. - 5A to Ex. - 13A have been produced. He has further stated that notice Ex.-A/4 was sent by him to the plaintiff and subsequently he moved the court vide the application Ex.- 14A to deposit the rent in the court under Section 19-A of the Rajasthan Premises (Control of Rent and Eviction) Act. DW/2 Braham Singh @ Beeram Singh. DW/3 Daulat Singh. DW/4 Hukam Singh Bhati have tried to say that the appellant Chandra Singh used to pay rent. So far as the testimony of DW/2, DW/3 and DW/4 is concerned not much credence can be given to these witnesses. DW/2 and DW/3 have both stated that the rent was paid to Ranveer Singh in their presence. Even Chandra Singh does not say that he paid any rent to Ranveer Singh. His contention is to the effect that initially the rent was paid to Shankar Lal and subsequently, it was paid to the respondent Chhotulal. DW/2 and DW/3 have both stated that the rent was paid to Ranveer Singh in their presence. Even Chandra Singh does not say that he paid any rent to Ranveer Singh. His contention is to the effect that initially the rent was paid to Shankar Lal and subsequently, it was paid to the respondent Chhotulal. DW/4 Hukam Singh in his examination-in-chief does not say that any rent was paid in his presence. In cross-examination, he has asserted that since the rent was paid in his presence twice or thrice, hence, he feels that the appellant is a tenant. The witness could not tell the name of the persons, who came to collect the rent. Subsequently, he stated that once the rent was paid to Kailash. Even Chandra Singh does not say that he paid any rent to Kailash in the presence of DW/4 Hukam Singh. None of the witnesses has disclosed the actual amount which was allegedly paid nor any one of them has been able to say as to what was the rate of rent. Braham Singh has stated on 27-9-1993 that some 12 years back rent was paid to Ganga Singh. That would mean that sometime in the year 1981 the rent was paid by the defendant to Ganga Singh. However, according to Chandra Singh, Ganga Singh collected the rent as 'Munim' of Shankar Lal. In this way Ganga Singh was never the agent or Munim of the respondent Chhotulal who is the owner of the shop since the year 1974. In this way the testimony of Braham Singh, Daulat Singh and Hukam Singh is not at all trust-worthy. 8. So far as the testimony of Chandra Singh is concerned, he has come with a definite case that the shop was negotiated for rent by him from Shankar Lal in the year 1972 and till it was sold to the respondent in the year 1974, he was paying rent to Shankar Lal. This contention stands falsified in the light of the document Ex.-14A which is an application dated 5-8-1988 moved under Section 19-A of the said Act. This Ex.-14A does not say that the defendant was ever the tenant of Shankar Lal. It makes a clear mention that the shop was taken on rent from Ranveer Singh. This contention stands falsified in the light of the document Ex.-14A which is an application dated 5-8-1988 moved under Section 19-A of the said Act. This Ex.-14A does not say that the defendant was ever the tenant of Shankar Lal. It makes a clear mention that the shop was taken on rent from Ranveer Singh. In this way the assertion of the appellant to the effect that the shop was taken by him not from Ranveer Singh, but from Shankar Lal @ Rs. 20/- per month is false to the knowledge of the appellant. The learned counsel for the appellant has argued that still the application Ex.-14A goes to show that when it was made the defendant had put up a specific case that he was a tenant in the suit shop and was not a licensee. In this context, it is pertinent to make a mention that the suit against the appellant was instituted on 25-4-1988 and the summons Ex.-2A was served on the defendant on 5-7-1988. In this way the defendant was in the knowledge of the suit and was in receipt of the copy of the plaint on 5-7-1988 and subsequent to that on 5-8-1988 he moved an application (Ex.-14A) under Section 19-A of the said Act without disclosing that a suit for possession was already pending in the Court against him w.e.f. 5-7-1988. In this way making of the application Ex.-14A simply shows the dishonest intention of the defendant in this respect. 9. Further the learned counsel for the appellant has argued that the receipt Ex.-A/3 dated 13-7-1974 was issued by an employee of the respondent and there is no reason to disbelieve the same. If find that the appellant cannot be granted any benefit on account of Ex.-A/3. During his testimony the appellant has stated that on 13-7-1974 he paid Rs. 496/- to Kailash Chandra and the latter issued the receipt Ex.-A/3. The witness has admitted that at the time of the alleged payment of Rs. 496/- and at the time of execution of Ex.-A/3, the respondent Chhotulal was not present. In the light of this argument, it would be proper to know the contents of the receipt Ex.A/3 and it is desirable to reproduce the receipt which reads as under:- HINDI MATTER 362317 10. The receipt goes to suggest that not only the rent @ Rs. In the light of this argument, it would be proper to know the contents of the receipt Ex.A/3 and it is desirable to reproduce the receipt which reads as under:- HINDI MATTER 362317 10. The receipt goes to suggest that not only the rent @ Rs. 40/- per month up to 30-4-1975 was paid through Ex.-A/3 but the monthly rent was agreed to be enhanced to Rs. 70/- per month w.e.f. 1-5-1975. Now the question arises as to how in the absence of the alleged landlord the rate of rent was enhanced between the appellant and Kailash Chandra. In this connection the averments made in para 3 of the written statement become significant. Para 3 of the written statement does not make any mention that the rent was paid to Kailash or Kailash was present there. According to para 3 of the written statement, the plaintiff himself was present and negotiated the enhancement of the rent on 13- 7-1974 and no threat of ejectment was made to the defendant to agree to pay the enhanced rate of rent i.e. Rs. 70/- per month. In this way till the filing of the written statement there was no role of Kailash in the whole story dated 13-7-1974. It is significant to note that the receipt Ex.-A/3 was not produced at the time of framing of the issues or during the testimony of the plaintiff. When the plaintiff closed his evidence on 15-2- 1992 and when the case was listed for defendant's evidence, the receipt Ex.-A/3 was filed with an application under Order 13, Rule 2 Civil Procedure Code on 19-5-1992 and thereafter, the story of paying to Kailash came to light for the first time. In this respect the defendant was cross-examined. He admitted that Ex.-A/3 was with him when the written statement was filed. He was suggested that Ex.-A/3 was produced in the court when the evidence of the defendant was to be recorded. The witness on oath denied this suggestion whereas it is a fact that Ex.A/3 was produced in the court when the case was listed for recording the statement of the defendant. 11. The appellant Chandra Singh in his cross-examination has admitted that he runs the dispensary and maintains the accounts. The witness on oath denied this suggestion whereas it is a fact that Ex.A/3 was produced in the court when the case was listed for recording the statement of the defendant. 11. The appellant Chandra Singh in his cross-examination has admitted that he runs the dispensary and maintains the accounts. He has specifically admitted that whatever amount of rent was ever paid by him in respect of the suit shop, entries of the same were made by him in his own personal diary which is very much available and is in his possession. He has further stated that this diary containing all the details of the alleged payment of the rent was shown by him to his advocate at time of filing of the written statement. However, it is strange that neither the diary so maintained was ever produced nor the said Kailash has been examined in respect of the receipt Ex.-A/3. Not only this the receipt Ex.A-/3 was not even shown to the respondent Chhotulal when he was in the witness-box. Non-production of the diary containing the details of payment is a factor which goes against the appellant and adverse inference has to be drawn against him. Non-production of the diary would mean that actually there was no such diary and the oral testimony of payment of rent up to December, 1987 is a falsity. 12. As pointed out earlier the case of the appellant is very specific and the same is to the effect that the shop was taken on rent from Shankar Lal @ Rs. 20/- per month. Further it is asserted that the rate was subsequently enhanced to Rs. 40/- per month and then it was enhanced to Rs. 70/- per month w.e.f. 1-5-1975. There is no rent receipt after Ex.-A/3 to suggest that any rent was paid @ Rs. 70/- per month. The defendant has tried to say that the rent was paid but the plaintiff refused to issue receipts. This refusal to issue receipts does not find place in the averments made in the written statement. 13. It is pertinent to note that it is nowhere stated or disclosed as to from which month of 1972 the tenancy started. It is also not disclosed as to when the rate of rent was enhanced from Rs. 20/- per month to Rs. 40/- per month. 13. It is pertinent to note that it is nowhere stated or disclosed as to from which month of 1972 the tenancy started. It is also not disclosed as to when the rate of rent was enhanced from Rs. 20/- per month to Rs. 40/- per month. When all the entries of payment of rent were entered in the personal diary of the appellant, there was no difficulty in disclosing the date with effect from which the tenancy started and the date with effect from which the rate of rent was enhanced from As. 20/- to Rs. 40/- per month. In his cross-examination the appellant Chandra Singh has stated that till Shankar Lal was the tenant the rate of rent was not enhanced and it was for the first time enhanced after the property was pur chased by the respondent in the year 1074. However, during his cross-examination on 7-9-1993 he was put a question to the effect as to how much rent in all was paid by him in the year 1972. He answered that he does not remember the total amount paid by him in the year 1972 but he was paying rent @ Rs. 40/- per month in the year 1972. Needless to say that this deposition of making payment @ Rs. 40/- per month in the year 1972 is false and belies the defendant's case. 14. In para 7 of the written statement there is a specific allegation that the plaintiff came with a demand to enhance the rate of rent from Rs. 70/- to Rs. 200/- per month. However, during his deposition on 4-9-1992, during his examination-in-chief he stated 'hat the plaintiff wanted to enhance the rent to As. 150/- per month and his counter offer was to enhance it to Rs. 125/- per month. However, realising that his deposition dated 4-9-1992 was contrary to the averments made in the written statement, he took a somersault and on 7-9-1993 deposed that the plaintiff came with a proposal to enhance the rate of rent from Rs. 70/- to Rs. 200/- per month. Needless to say that the deposition of the appellant is not worth the paper on which it has been recorded. He has admitted that the scribe of Ex.-A/3 Kailash Chandra is available. Still he has not been examined as a witness. 70/- to Rs. 200/- per month. Needless to say that the deposition of the appellant is not worth the paper on which it has been recorded. He has admitted that the scribe of Ex.-A/3 Kailash Chandra is available. Still he has not been examined as a witness. Nor Ex.- A/3 was produced in the court when the plaintiff was in the witness-box. 15. In view of what has been said above, I find no reason to disagree with the conclusions drawn by the learned trial court. 16. Consequently, this appeal is found to be without any merit and the same is hereby dismissed with costs.Appeal dismissed. *******