JUDGMENT : Deepak Maheshwari, J. This second appeal under Section 100 of CPC has been filed against the judgment and decree dated 06.05.2015 passed by Addl. District Judge, Sujangarh in appeal decree No.01/2015 whereby the learned first appellate Court allowed the appeal filed by the respondent defendant and reversed the judgment and decree dated 29.11.2014 passed by Civil Judge (J.D.) Sujangarh in Civil Original Suit No.531/2014 (117/2012) whereby the decree of eviction has been passed against the respondent/defendant and it was held that the appellant/plaintiff is entitled for mesne profit @ Rs.3000/- per month from the date of filing of the suit till getting the possession of the tenanted property. 2. Briefly stated the facts giving rise to the instant appeal are that the plaintiff - Kishore Kumar filed a suit for eviction against the defendant/respondent inter alia alleging that he is in possession of a residential house situated at Naya Bazar and the plaintiff has rented out one room and kitchen constructed on the first floor of the said premises to defendant @ Rs.700/- per month. The defendant/respondent has executed an agreement and declaration on 20.09.2011 to the effect that he will vacate the premises in question on or before 31.03.2012 and hand over the possession to the plaintiff/appellant but after expiry of the said period, the defendant/respondent has not vacated the said premises. Thus, the plaintiff/ appellant has sent a notice through registered post to the defendant/respondent on 11.10.2012 for termination of tenancy and for paying the arrears of rent. The said notice was duly replied by the defendant/respondent vide reply dated 15.10.2012. It was further alleged in the suit that the defendant/respondent neither vacated the tenanted premises nor paid the arrears of rent. The plaintiff has not claimed any relief with regard to recovery of arrears of rent but while showing the defendant appellant as encroacher and in use and occupation of the premises in question claimed compensation @ Rs.3000/- per month. 3. The defendant/respondent filed his written statement and denied the contentions raised by the plaintiff/appellant in the suit. In reply to para No.1 of the suit, the defendant/respondent has admitted that one room and one kitchen is constructed on the first floor of the suit premises but he has denied other facts of para No.1 for want of knowledge. 4. 3. The defendant/respondent filed his written statement and denied the contentions raised by the plaintiff/appellant in the suit. In reply to para No.1 of the suit, the defendant/respondent has admitted that one room and one kitchen is constructed on the first floor of the suit premises but he has denied other facts of para No.1 for want of knowledge. 4. On the basis of the above pleadings, the trial Court has framed as many as five issues as mentioned below at page No.2 of the judgment passed by first appellate Court :- 1- vk;k okn i= dh en la[;k ,d esa vafdr vklsikls ds oknxr ifjlj dk oknh Lokeh gS ,oa izfroknh fdjk;snkj gksdj oknh us izfroknh dh fdjk;snkjh fnukad 11-10-2012 dks uksfVl Hkstdj lekIr dj nh\ 2- vk;k oknh] izfroknh ls oknxzLr ifjlj dk fnukad 28-10-2012 ls 3000 :i;s ekfld gtkZuk crkSj ;wt ,.M vkWD;wis'ku Lo:i izkIr djus dk gdnkj gS\-------oknh 3- vk;k izfroknh] oknh dk fdjk;snkj ugha gS\ izfroknh dk fdjk;snkj u gksus ls oknh dks oknk/kkj izkIr ugha gS\ 4- vk;k oknh dk okn i;kZIr U;k;'kqYd ij ,oa vUnj fe;kn ugha gksus ds dkj.k pyus ;ksX; ugha gS\ 5- vuqrks"k\ 5. During trial, the plaintiff/appellant was examined as PW-1 and got seven documents exhibited. Defendant/respondent was examined as DW/1 and produced his wife Smt. Daya as DW/2 in his evidence and got exhibited one document i.e. certified copy of the sale deed as Ex.A/1. 6. The learned trial Court after hearing both the parties and considering the oral as well as documentary evidence available on record decreed the suit vide judgment and decree dated 29.11.2014 in favour of the plaintiff appellant whereby issues No.1, 2 and 5 were decided in favour of the plaintiff and issues No.3 and 4 were decided against the defendant. Accordingly, it was held that the appellant plaintiff is entitled to get the vacant possession of the suit premises as also for mesne profit @ Rs.3000/- per month from the date of filing of the suit till getting the possession of the tenanted property. 7. The defendant/respondent has preferred first appeal on 02.01.2015 against the judgment and decree dated 29.11.2014 before the learned first appellate Court. 7. The defendant/respondent has preferred first appeal on 02.01.2015 against the judgment and decree dated 29.11.2014 before the learned first appellate Court. During the pendency of the appeal, the defendant respondents was evicted from the premises in question on 15.4.2015 in execution proceedings initiated by the plaintiff/appellant for non-compliance of the order dated 21.2.2015 for payment of mesne profit @ Rs.3000/- per month till disposal of the appeal. 8. After hearing both the parties, learned first appellate Court allowed the appeal filed by the defendant/respondent vide judgment and decree dated 06.05.2015 and reversed the finding given by learned trial Court and set aside the judgment and decree passed by learned trial Court while holding that the relation of landlord and tenant is not established. While giving the said finding, it was also held by learned first appellate Court that though the plaintiff was owner of the property in question but he cannot evict the defendant respondent on the ground on which a tenant can be evicted, because the defendant/respondent is residing in the premises in question not as a tenant, but with the consent of the owner. Therefore, the plaintiff is also not entitled to get any mesne profit from the defendant/respondent. 9. Against the said judgment passed by learned first appellate Court, plaintiff appellant has preferred this civil second appeal. While admitting the same on 21.5.2015, following substantial questions of law were framed by this Court :- "1. Whether the first appellate court was justified in reversing the decree on the ground of tenancy in question was not properly terminated by the lessor by serving a notice u/s 106 of the T.P. Act ? 2. Whether there was relationship of landlord-tenant or lessor-lessee between the parties or not?" 10. During the course of arguments, learned counsel for the appellant has contended that learned first appellate Court has not properly appreciated the evidence. Various important admissions made by the respondent/defendant during his cross-examination have been completely ignored, resulting in miscarriage of justice. Agreement Ex.1 and declaration Ex.2 by which the defendant has undertaken to vacate the tenanted premises upto 31.3.2012 have been wrongly ignored, though the defendant has admitted his signatures on these documents. In view of these documents, relationship of landlord and tenant between the parties have been clearly established but learned lower appellate Court has not relied upon these documents without any justification. In view of these documents, relationship of landlord and tenant between the parties have been clearly established but learned lower appellate Court has not relied upon these documents without any justification. He has, thus, prayed that the judgment and decree dated 6.5.2015 passed by learned first appellate Court be set aside and the appeal may be allowed. 11. Per contra, learned counsel for the respondent has argued that learned first appellate Court has very minutely analysed the evidence available on record and arrived at correct conclusion that there is no relationship of landlord and tenant between the parties. Ex.1 and Ex.2 have been got signed by one Ramesh Kumar on the wrong pretext of getting pension sanctioned to him. More over, the attesting witnesses of these documents have also not been examined to prove them. Thus, the first appellate Court has rightly ignored these documents. Learned counsel has also submitted that when the basic fact of the relationship of landlord and tenant has not been established, then the very foundation of the appeal falls flat on the ground and the same deserves to be dismissed. He has also referred some judgments in support of his contentions. 12. Taking the rival contentions into consideration advanced by both the learned counsels as also the relevant facts, this Court is of the view that the basic question which needs to be decided in the matter is whether the relationship of landlord and tenant between the parties has been established or not? If it is so established, then the question may arise as to whether the tenancy was properly determined by the appellant landlord by serving a notice under Section 106 of Transfer of Property Act upon the respondent tenant. So, question No.2 needs to be replied first in this second appeal. 13. In this reference, relevant averments made by the appellant landlord in the suit filed by him are very material, which are reproduced below :- ^^1- ;g fd dLck lqtkux<+ ds u;k cktkj esa oknh ds LokfeRo dk fuEufyf[kr vkls&ikls dk ,d ifjlj fLFkr gS%& mRrj%& lM+d u;k cktkj nf{k.k%& ifjlj ukjk;.k eksph o xqyke ljoj iwoZ%& pkSd lkoZtfud o lM+d if'pe%& lM+d vke bl ifjlj dh izFke eafty ij cus Bkao ,d dejk o jlksbZ ftls vkxs oknxzLr ifjlj dgk x;k gS izfroknh ds :å 700 ¼lkr lkS :i;s½ izfroknh dh nj ls fdjk;s ij gSA** 14. In reference to the above averments, respondent/tenant has mentioned, following facts in his written statement : ^^1- ;g fd okni= dh en laå 1 ,d esa vafdr rF; dLck lqtkux<+ ds u;k cktkj esa cus Bkao ,d dejk o jlksbZ vkls ikls dk ifjlj fLFkr gksuk Lohdkj gS bUdkj ugha cfd;k bckjr ds rF; xyr] vlR;] xuxMUr gksus ls ,oa tkudkjh ds vHkko esa vLohdkj ugha bUdkj fd;s tkrs gSA** 15. It is, thus, very clear that right from the beginning, the defendant has denied to be the tenant of appellant/plaintiff in the disputed premises. More over, this is also interesting to note that the plaintiff has not dared to aver that since when the disputed premises was taken on rent by the defendant. Likewise in para-4 of the plaint, though the plaintiff has alleged that defendant is not paying the rent since October, 2011 yet he has not claimed the recovery of arrears of rent and has specifically relinquished the arrears. On the contrary, he has claimed mesne profit @ Rs. 3000/- per month from the date of institution of the suit till the recovery of possession. In reply to these averments, the tenant has again denied in the written statement the fact of tenancy and thus refused the claim raised by the plaintiff regarding mesne profit. 16. All these facts have been taken into consideration and minutely discussed by the first appellate Court while arriving at its conclusion. When the basic fact, as to since when the tenancy had started, is conspicuously missing in the plaint, it creates a serious doubt about the existence of such tenancy. 17. Learned counsel for the respondent has referred to the judgment in case of D.M. Deshpandey v. Najardhan, reported in AIR 1999 SC 1464 wherein due to the absence of particulars regarding tenancy, the said tenancy was not accepted. In the matter in hand also, there is complete absence of the date of commencement of tenancy as also the relevant documents i.e. rent note and rent receipts. Thus, the judgment referred above supports the contention of learned counsel for the respondent. 18. Learned counsel for the respondent has also relied upon the judgment rendered in case of Bonder Singh v. Nihal Singh, reported in AIR 2003 SC 1905 in reference to the variance in pleadings and proof. Thus, the judgment referred above supports the contention of learned counsel for the respondent. 18. Learned counsel for the respondent has also relied upon the judgment rendered in case of Bonder Singh v. Nihal Singh, reported in AIR 2003 SC 1905 in reference to the variance in pleadings and proof. In the matter in hand, no specific averment has been made in the plaint as to when the tenancy began and hence, evidence given by PW-1 Kishore Kumar that after purchasing the property Thakurdas became his tenant and used to give Rs.400/- per month as rent is not found reliable, being not mentioned in the plaint. 19. Further, the sale deed Ex.A/1 is also a very important document, which has been put to appellant/plaintiff by the defendant during his cross examination. By way of this sale-deed, the disputed premises was sold by its predecessor in title Radheyshyam to appellant Kishore Kumar. In the relevant part 'A' to 'B' of Ex.A/1, it has been mentioned that the disputed premises consisting of one room and a kitchen was let out to Teumal Sindhi. This sale deed has been executed on 09.09.2005. Thus, the recital of this sale-deed Ex.A/1 clearly shows that Teumal Sindhi who happens to be the father of the appellant landlord, was the tenant in the disputed premises and not the respondent Thakurdas. PW-1 Kishore Kumar has given this explanation that his father Teumal and Thakurdas, who is admittedly his uncle, were residing in this premises together for last 35 years and the tenancy was in the name of his father Teumal. He has quickly added that after purchasing this property by him, Thakurdas became his tenant and he used to pay rent @ Rs.400 per month. But it is surprising to note that neither any rent deed nor any rent receipt has been submitted in proof of such tenancy. DW/2 Daya Devi – wife of respondent Thakurdas has also stated that after her marriage, when she came to her marital home about 40 years ago, she came to this disputed premises and her husband Thakurdas along with his brothers late Basant Kumar etc. used to live in this premises. She has stated that her husband was not the tenant of appellant and he never paid any rent to him. 20. used to live in this premises. She has stated that her husband was not the tenant of appellant and he never paid any rent to him. 20. Learned counsel for the respondent has relied upon the judgment rendered in case of Smt. Kubra Begum v. IIIrd Addl. District Judge, Muradabad, reported in AIR 2006 (Allahabad) p.55. In this case, despite there being an unregistered rent deed, no relationship of landlord and tenant was found proved between parties, who were first cousins and family members, in the absence of proof of payment of rent. So, facts in case of Smt. Kubra Begum (supra) are exactly the same and the said judgment is applicable to this case in hand also. Moreover, there is no rent deed at all, in the present case. 21. In view of above facts and specifically in absence of any reliable oral or documentary evidence in respect of relationship of landlord and tenant between the appellant and respondent, it is abundantly clear that no such relationship ever existed. These facts have been elaborately dealt with by the learned first appellate Court also. I don't find any illegality in the finding of that Court. 22. Learned counsel for the appellant has mainly placed reliance on agreement Ex.1 and declaration Ex.2. He has argued that respondent Thakurdas has admitted through Ex.1 to have taken the disputed premises on rent and has also undertaken to vacate the same upto 31.3.2012. But in my considered opinion, learned first appellate Court has rightly ignored Ex.1 by observing that the attesting witnesses of Ex.1 Ramesh Kumar and Prem Sukh have not been examined. More over, it has been categorically alleged by PW-1 Thakurdas that Ramesh got these documents signed by him in deceitful manner saying that he will get the pension issued to him. On account of this, learned first appellate Court has rightly discarded these documents, which were produced by the appellant as a substitute of the rent deed and rent receipt to establish the factum of tenancy. 23. The judgment in case of Shri Kishan v. Kurukshetra University, reported in AIR 1976 (SC) 376 relied upon by the learned counsel for the respondent is also relevant to be considered in this regard wherein it has been laid down that the admission made in ignorance of legal rights or under duress cannot be taken into consideration. 23. The judgment in case of Shri Kishan v. Kurukshetra University, reported in AIR 1976 (SC) 376 relied upon by the learned counsel for the respondent is also relevant to be considered in this regard wherein it has been laid down that the admission made in ignorance of legal rights or under duress cannot be taken into consideration. Learned lower appellate Court has further mentioned that as per provisions contained in Section 31 of the Indian Evidence Act, the alleged admission (Ex.1 and Ex.2) cannot be accepted as conclusive proof of tenancy, more so, when these have been obtained in a deceitful manner. 24. As the most crucial issue of relationship of landlord and tenant is not found to have established between the parties, question No.2 is replied in negative. This was the basic issue whereupon the whole edifice of the appeal was dependent, but in view of the above mentioned discussions, the said relationship is not found proved. 25. Next substantial question of law is related to the aspect whether the tenancy in question was properly determined by the lessor by serving a notice under Section 106 of T.P. Act. This question would have been relevant, had the relationship of landlord and tenant been found proved. But when no such relationship is established, the question of terminating the tenancy by proper service of notice under Section 106 of T.P. Act is of no significance. This question is replied accordingly. 26. In the result, learned counsel for the appellant has failed to substantiate the questions framed herein. Thus, the second appeal is found to be devoid of merit and of no substance. Accordingly, it fails and is hereby dismissed and the judgment and decree dated 6.5.2015 passed by learned first appellate Court is upheld.