JUDGMENT : Tarlok Singh Chauhan J. 1. The appellant/plaintiff has filed this Regular Second Appeal against the judgment and decree dated 26.3.2007, passed by learned District Judge, Solan, H.P., whereby he affirmed the findings of Civil Judge (Senior Division), Kandaghat, District Solan, H.P. The facts of the case may be noticed as follows:- 2. The appellant filed a suit for permanent prohibitory and mandatory injunction restraining respondent No. 1 and through its agents from handing over the stall cum shop to be built up over the land comprised in Khasra No. 269 measuring 6 Sq. meters (herein after referred to as the suit property) to respondent No. 2 and from restraining respondent No. 2 from occupying and possessing the stall cum shop to the built up by respondent No. 1 and hindering the process of delivering the possession of the shop or causing any type of interference over the suit land. It was pleaded that the appellant had been a tenant over the suit property situated at Mauza Lower Bazar, Solan under respondent No. 1, since 1961. The monthly rent of the suit property at present was Rs.220/-. This stall had been constructed by the appellant at his own cost after obtaining necessary sanction of site plan etc. from respondent No. 1. It was alleged that the tenancy has always been with the appellant, but on account of some arrangement, respondent No. 2 was allowed to carry on the business in the said stall by the appellant. Respondent No. 1 had decided to demolish the wooden stalls and converted them into pucca building on the terms and conditions settled by respondent No. 1. The appellant who is the tenant had constructed the stall and had been paying rent till date and had every legal right to possess and occupy the newly constructed pucca stall in view of the old stall cum shop. It was specifically averred that the old stall was never ever transferred by the appellant to respondent No. 2 and that the appellant was ready and willing to pay all the consideration which respondent No. 1 has decided to charge from the old tenants and is legally entitled to get the possession and occupation of the stall. It was specifically averred that the old stall was never ever transferred by the appellant to respondent No. 2 and that the appellant was ready and willing to pay all the consideration which respondent No. 1 has decided to charge from the old tenants and is legally entitled to get the possession and occupation of the stall. It was further alleged that respondent No. 2 was threatening to occupy and possess the stall by misrepresenting the facts because respondent No. 2 had no right, title or interest to do so. It was lastly alleged that respondent No. 2 during the last week of March, 2000 had forcibly occupied the said stall and respondent No. 1 had reported the matter to police on 25.3.2000. Respondent No. 2 had occupied the stall by violating the injunction order dated 21.12.1999. The appellant had also sought decree of mandatory to hand over the possession of the said stall/suit property to him. 3. Respondent No. 1 contested the suit by filing written statement, where preliminary objections regarding estoppel, cause of action and maintainability of the suit were taken. On merits, respondent No. 1 admitted that the stall was allotted on lease to the appellant and he has carried out repairs therein in the year 1989. It was further averred that the appellant had parted with the possession of the suit property without obtaining prior permission from respondent No. 1 and, therefore, it was entitled to evict the appellant on the ground of subtenancy. It was also averred that respondent No. 2 had become unauthorized occupant of the stall. Lastly, it was alleged that the appellant as well as respondent No. 2 had been staking their claims for possession of the stall and the matter was pending decision before the Municipal Council, but in the mean time respondent No. 2 had forcibly occupied the tea stall constraining the municipal council to report the matter to the police on 27.3.2000. Respondent No. 1 was yet to decide on its level as to who is entitled to occupy the said stall. 4. Respondent No. 2 contested the suit by filing separate written statement, wherein preliminary objections regarding locus standi, maintainability, concealment of material facts and estoppel were taken. On merits, respondent No. 1 denied the averments made by the appellant in the plaint and pleaded that the appellant had concealed material facts from the Court. 4. Respondent No. 2 contested the suit by filing separate written statement, wherein preliminary objections regarding locus standi, maintainability, concealment of material facts and estoppel were taken. On merits, respondent No. 1 denied the averments made by the appellant in the plaint and pleaded that the appellant had concealed material facts from the Court. It was alleged that the replying respondent had constituted a joint family and co-ownership after they migrated from West Pakistan in 1947-48. The appellant being Karta was managing the joint business. The partition had been effected between the members of the joint Hindu family by meets and bounds in the year 1982 and the disputed shop was allotted to respondent No. 2 along with goods lying therein. It was averred that respondent No. 2 was running a business of electrical in the name of Sunny Electrical Works in the said stall and had also been paying rent, sanitation tax etc. It was further averred that respondent No.2 was a direct tenant of respondent No.1 as the shop license, CST/GST number, certificate of State Bank of Patiala through which rent and other taxes were being received by respondent No.1, were also attached with the written statement. It was further pleaded that devastating fire had taken place in which the stall of the replying respondent along with other occupants suffered huge losses. However, the stall occupants continued to do their business from the burnt stalls and never parted with its possession at any point of time. It was further averred that the appellant had nothing to do with the stall nor was in possession of the same. It was further averred that when the partition of the family was effected, the appellant shifted his business to Lower Bazar Solan and his rights qua staff ceased. It was lastly averred that the officials of respondent No.1 had connived with the appellant in order to harass respondent No. 2 and give undue advantage to the appellant, the officials of respondent No.1might have made some false complaint for the police for creating false evidence. On these averments, dismissal of the suit has been prayed for. 5. The learned trial Court framed the following issues:- “1. Whether the plaintiff had been a tenant in shop cum stall measuring 4’9” on the back side 7’ in from and 9 feet on both sides measuring in all 6 Sq. On these averments, dismissal of the suit has been prayed for. 5. The learned trial Court framed the following issues:- “1. Whether the plaintiff had been a tenant in shop cum stall measuring 4’9” on the back side 7’ in from and 9 feet on both sides measuring in all 6 Sq. meters of defendant No. 1 since 1961? OPP 2. Whether the said stall was constructed by the plaintiff at his own costs and the necessary site plan was sanctioned by defendant No. 1, as alleged? OPP 3. Whether tenancy has always been with the plaintiff but on account of some arrangement defendant No. 2 was allowed to carry on the business in the said stall by the plaintiff, as alleged? OPP 4. Whether the defendant No. 1 had decided to demolish the wooden stall on account of devastating fire in the area and convert it into pucca building, as alleged? OPP 5. Whether the defendant No. 1 in the last week of March, 2000, had forcibly occupied the said stall, as alleged? OPP 6. Whether the plaintiff has got no locus-standi to file and maintain the suit? OPD-2 7. Whether the suit of the plaintiff is not maintainable as no notice as required under H.P. Municipal Act has been served? OPD- 2 8. Whether the plaintiff is estopped from filing the present suit on account of his act, conduct and acquiescence? OPDs 9. Whether the suit is not maintainable as the plaintiff is out of possession? OPDs 10. Whether the plaintiff has no cause of action against the defendant No. 1? OPD 11. Whether the defendant No. 2 is settled possession of the stall since 1982 as a direct tenant of defendant No. 1? OPD-2 12. Relief.” 6. After recording evidence and evaluating the same, the learned trial Court dismissed the suit of the appellant, however findings on issue No. 1 were recorded in appellant’s favour. Aggrieved by the judgment and decree passed by the learned trial Court who not only dismissed the appeal, but even reversed the findings on issue No. 1, constraining the appellant to file the instant appeal. 7. The appeal came to be admitted on the following substantial questions of law:- “1. Aggrieved by the judgment and decree passed by the learned trial Court who not only dismissed the appeal, but even reversed the findings on issue No. 1, constraining the appellant to file the instant appeal. 7. The appeal came to be admitted on the following substantial questions of law:- “1. Whether the learned appellate Court was right in law in reversing the findings on issue No. 1 of tenancy decided in favour of the appellant which have not even been assailed by the defendant/respondent No. 2 and also not disputed by defendant No. 1? 2. Whether the learned Courts below were right in concluding that respondent No. 2 was in legal possession more particularly when neither appellant nor respondent No. 1 who were the owners ever acknowledged or attorned to the possession of respondent No. 2? 3. Whether the learned appellate Court was right in holding that the premises having been destroyed in the fire, the tenancy had come to an end? 4. Whether the suit of the plaintiff should have been dismissed as he has not appeared in the witness box and no cause excusing his appearance had been brought on record? I have heard the learned counsel for the parties and have also gone through the records of the case. Question Nos. 1 and 3 8. As both these questions are intrinsically interlinked and interconnected, therefore, they are being taken up together for consideration. A perusal of the record reveals that the learned trial Court had rendered a finding of tenancy while deciding issue No. 1 in favour of the appellant. However, the said finding despite there being no challenge to the same was reversed by the learned lower appellate Court basing its decision on the judgment rendered by this Court in Krishan Chand Vs. Bihari Lal and others, AIR 1999, H.P. 68. The decision in Krishan Chand case (supra) was rendered on 26.3.2007 after relying upon the judgment of Hon’ble Kerala High Court in V. Sidharthan Vs. Pattiori Ramadasan, AIR 1984 Ker 181 . However, the law has now undergone a sea change in as much as not only the aforesaid judgment of the Kerala High Court has been overruled, but even conflict noticed in the Hon’ble two Judges Bench decision in Vannattankandy Ibrayi Vs. Kunhabdulla Hajee, (2001) 1 SCC 564 and T. Lakshmipathi Vs. Pattiori Ramadasan, AIR 1984 Ker 181 . However, the law has now undergone a sea change in as much as not only the aforesaid judgment of the Kerala High Court has been overruled, but even conflict noticed in the Hon’ble two Judges Bench decision in Vannattankandy Ibrayi Vs. Kunhabdulla Hajee, (2001) 1 SCC 564 and T. Lakshmipathi Vs. R. Nithyananda Reddy, (2003) 5 SCC 150 has been resolved by the Hon’ble three Judges Bench decision of Hon’ble Supreme Court in Shaha Ratansi Khimji and Sons Vs. Kumbhar Sons Hotel Private Limited and others, (2014) 14 SCC 1 . 9. In Vannattankandy Ibrayi case (supra), the Hon’ble Supreme Court had formulated two questions for consideration: “(i) whether the tenancy in respect of the premises governed by the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as ‘the State Rent Act’) is extinguished by destruction of the subject-matter of tenancy i.e. the premises by natural calamities, and (ii) on the destruction of property whether the civil court has jurisdiction to entertain and try the suit for recovery of possession of land brought by the landlord.” Both the questions were answered in affirmative. 10. Whereas in T. Lakshmipathi case (supra), the Hon’ble Supreme Court held that the lease of a building includes the land on which the building stands. So even if the building is destroyed or demolished, the lease is not determined as long as the land beneath it continues to exist. It was further held that the doctrine of frustration cannot be invoked on destruction or demolition of a building under lease where not only privity of contract but privity of estate is also created. 11. The conflict in both these judgments was apparent and therefore, reference was made to the Bench of Hon’ble three Judges, which resolved the controversy and the view taken in T. Lakshmipathi case was affirmed and it was held:- “28. In the present case, it is not in dispute that the Respondent purchased the lessor’s interest. The lease continued even thereafter and did not extinguish. The lease was subsisting when the shares of the land were purchased by the respondent. But the interest of the lessee was not purchased by the respondent. What has been purchased by the respondent is the right and interest of ownership of the property. The interest of the appellant as lessee has not been vested with the respondent. The lease was subsisting when the shares of the land were purchased by the respondent. But the interest of the lessee was not purchased by the respondent. What has been purchased by the respondent is the right and interest of ownership of the property. The interest of the appellant as lessee has not been vested with the respondent. Therefore, we are of the view that the tenancy of the appellant cannot be said to have been determined consequent upon demolition and destruction of the tenanted premises.” Therefore, the findings rendered by the learned first appellate Court, whereby the tenancy of the appellant came to an end on the basis of destruction of the premises in question, is clearly erroneous and illegal and therefore, cannot be sustained, particularly in light of the law laid down by the Hon’ble three Judges Bench in Shaha Patansi Khimji and sons case (supra) 12. In ordinary circumstances, the judgment rendered by this Court in Krishan Chand case (supra) would be binding upon this Court as having been rendered by a co-ordinate Bench of this Court, but the same being in direct conflict with the judgment rendered by the Hon’ble three Judges Bench of Hon’ble Supreme Court in Shaha Patansi Khimji and sons case is not binding on this Court and therefore, need not be referred to a larger Bench. 13. For drawing such conclusion reliance can conveniently be placed upon a Division Bench judgment of this Court, authored by me, in Samriti Gupta and another Vs. State of H.P. and others, Latest H.L.J. 2016 (HP) 191, wherein it was held as follows:- “13. Before parting, we may clarify that the judgment in Arti Gupta case (supra) was rendered by the Hon’ble Full Bench of this Court and would normally in absence of any judgment to the contrary by the Hon’ble Supreme Court be binding on this Bench and in case of any difference of opinion would be required to be referred to a larger Bench. However, no such reference is necessary if the Hon’ble Supreme Court has given a decision in the matter because as soon as the Hon’ble Supreme Court gives its decision all decisions of the High Court on the point are overruled. However, no such reference is necessary if the Hon’ble Supreme Court has given a decision in the matter because as soon as the Hon’ble Supreme Court gives its decision all decisions of the High Court on the point are overruled. (Reference in this regard is given to D.D. Basu Commentary on the Constitution of India, 8th Edition and to the judgment of the Hon’ble Supreme Court in D.C.M. vs. Shambhu, AIR 1978 SC 8 .) 14. Even otherwise, Article 141 of the Constitution provides that the law declared by the Hon’ble Supreme Court shall be binding on all courts within the territory of India. Therefore, once the Hon’ble Supreme Court has decided the issue by passing a reasoned order, a fortiori, the ratio decidendi declared in the said decision would be binding on all the Courts in the Country for giving effect to it while deciding the lis of the same nature. All the Courts are under legal obligation to take note of the said decision and decide the lis in conformity with the law laid down therein.” 14. In light of the aforesaid observations, question Nos. 1 and 3 are answered in favour of the appellant and the appellant is held to be the tenant of the disputed premises. Question No. 2. 15. It is vehemently argued by Mr. Anand Sharma, learned counsel for the appellant that once the appellant is held to be the lawful tenant, then it is more than settled that possession follows title and therefore, the lawful tenant could not have denied the prayer for injunction. In addition to the above, he further argued that neither the appellant nor respondent No. 1 had ever acknowledged or attorned to the possession of respondent No. 2, therefore, the same could not be ordered to be protected. 16. At the outset, it may be observed that the appellant did not enter in the witness box and it was only his son Gurmeet Singh who appeared and tendered in evidence his affidavit Ex. P-1 in support of his pleadings, wherein he reiterated the contents of the plaint. He also tendered in evidence letters, registered notice and receipt Ex. P-B to Ex. P-M. During his cross-examination by learned counsel for respondent No. 1, he admitted that the alleged disputed stall belongs to respondent No. 1 and the same was given on lease to the appellant in the year 1961. He also tendered in evidence letters, registered notice and receipt Ex. P-B to Ex. P-M. During his cross-examination by learned counsel for respondent No. 1, he admitted that the alleged disputed stall belongs to respondent No. 1 and the same was given on lease to the appellant in the year 1961. He also stated that till the stall was gutted in fire, his father remained in possession of the same. He denied that according the family arrangement his father i.e. the appellant had given the shop to respondent No. 2 for running his business. He feigned ignorance regarding his father having taken any permission from respondent No. 1, before handing over the possession to respondent No. 2. He further denied that the possession of the premises in dispute was given to respondent No. 2, but voluntarily stated that some time he used to open the shop and further stated that some time respondent No. 2 used to run business from the shop. Both the appellant and respondent No. 2 had one key each. He further stated that he had reported the matter to respondent No. 1 regarding the illegal possession taken by respondent No. 1, but respondent No. 2 had taken no steps to evict him. 17. In the course of cross-examination by respondent No. 2, the witness stated that Darshan Kaur was his mother. He admitted that appellant and respondent No. 2 had settled at Solan after migration from Pakistan. He feigned ignorance to the fact that respondent No. 2 was brought up by the appellant as respondent No. 2 was barely two years old at that time. He admitted that respondent No. 2 and appellant remained in one family and used to do business jointly. He admitted that the appellant had earlier been running the business from the disputed stall in the name and style of Sardar Electrical Works and at that time the General Sale Tax Licence and Central Sale Tax Licence (GST & CST) were in the name of Sardar Electrical Works. He admitted that there was a family settlement Ex. D-1 effected between the appellant and respondent No. 2. He further admitted the signatures of his father and respondent No. 2 over this document and further admitted that after family settlement Ex. D-1, the appellant had shifted his business to Lower Bazar, Solan and stated his business in the shop of Sanathan Dharam Sabha. D-1 effected between the appellant and respondent No. 2. He further admitted the signatures of his father and respondent No. 2 over this document and further admitted that after family settlement Ex. D-1, the appellant had shifted his business to Lower Bazar, Solan and stated his business in the shop of Sanathan Dharam Sabha. He further admitted that the business in the disputed shop in terms of the family settlement was left to respondent No. 2. He further admitted that GST and CST numbers were changed in the name of appellant on the address of the shop at Sanathan Dharam Sabha, Lower Bazar Solan. He also admitted that the appellant never challenged the validity of family settlement in any Court, though denied that right from the year 1982, it was respondent No. 2, who was in possession of the disputed premises. He admitted that in the month of November, 1999, the shops were destroyed in fire, wherein the persons lost their stalls and shops and had lodged separate reports with the police, but admitted that the appellant had not lodged any such report. 18. PW-2, Akhil Kumar Photographer is running a shop at Lower Bazar and had proved the photographs Ex. PW-2/A and Ex. PW- 2/B along with its negatives Ex. PW-2/C and Ex. PW-2/D and receipt Ex. Pw-2/E. During his cross-examination this witness admitted that his shop is in front of the shop of the appellant and stated that the appellant was dealing from this shop in electrical goods for the last 25 years. 19. PW-3, Balak Ram has proved that the electric meter was installed in the name of appellant and has further stated that he has working as a meter reader for Upper Bazar for the last 5-6 years, but he had not seen respondent No. 2 in the disputed premises. 20. PW-4, Rakesh Sharma, Clerk of Municipal Committee had proved receipt Ex. PW-4/A and site plan sanctioned by the Municipal Committee in the year 1961 Ex. PA. During his cross-examination, this witness admitted that the Committee does not inquire into the name and address of the person depositing the tax. 21. Respondent No. 2 in order to rebut the oral evidence tendered in evidence the affidavit of Asa Singh, Ex. D-1, who is the real brother of the appellant and affidavit of Satish Bhutani Ex. D-2 and his own affidavit Ex. 21. Respondent No. 2 in order to rebut the oral evidence tendered in evidence the affidavit of Asa Singh, Ex. D-1, who is the real brother of the appellant and affidavit of Satish Bhutani Ex. D-2 and his own affidavit Ex. D-3 in support of his pleadings. 22. Sardar Asa Singh, DW-1 has stated that he had seen respondent No. 2 in possession of the property since the year 1982. During his cross-examination, he stated that the family arrangement Ex. D-1 was prepared in the house of the appellant. 23. Satish Bhutani, DW-2 is running the business of Gift Emporium at Upper Bazar, Solan and has tendered his affidavit Ex. D-2 and also stated about the physical possession of respondent No. 2 over the disputed premises. During his cross-examination, this witness stated that respondent No. 2 had started his business at Solan in the year 1976 and prior to that the possession of the shop was with the appellant. He admitted that the dispute between the appellant and respondent No. 2 started when the original shop was destroyed in fire. He also admitted that both the parties had started to take the possession of the shop, but voluntarily stated that respondent No. 2 used to do business by placing table in front of the shop when the same was under construction. 24. Respondent No. 2 appeared as DW-3 and in his affidavit has re-iterated the contents of the written statement and also placed on record the payments made towards tax levied by respondent No. 1 i.e. sale tax etc. During his cross-examination he admitted that the disputed stall was not leased to him by respondent No. 1. He admitted that respondent No. 1 had constructed the stall after the same had been destroyed in fire. He feigned ignorance regarding the complaint having lodged by respondent No. 1 against him on 27.3.2000, regarding his forcible occupation of the disputed shop. During his cross-examination by learned counsel for the appellant, he admitted that he remained as member of joint family with the appellant till 1982 and admitted that the physical legal possession of the shop was not handed over to him by respondent No. 1. He further admitted that the police had not taken any action against him in view of the pendency of civil litigation. 25. DW-4, Vijay Verma had proved cheque number Ex. D-7 to Ex. He further admitted that the police had not taken any action against him in view of the pendency of civil litigation. 25. DW-4, Vijay Verma had proved cheque number Ex. D-7 to Ex. D-18 issued by Sunny Electrical Works being run by respondent No. 2 in favour of respondent No. 1. 26. DW-5 Goverdhan Singh Senior Assistant, Excise and Taxation Department, Solan has proved the sale tax number Ex. D-21 of Sunny Electrical Works. 27. DW-7 Sunil Kumar, Clerk from the Taxation Department of Municipal Committee, Solan had tendered in evidence his affidavit Ex. DW-7/A, wherein he reiterated the contents of written statement filed by respondent No. 1. During his cross-examination by learned counsel for respondent No. 2, he has shown his ignorance to the fact whether the appellant was carrying on business from the disputed stall or not. During cross-examination by learned counsel for the appellant, he admitted Ex. P-1 to Ex. P-5. 28. This in entirety is the oral as well as documentary evidence led on the issue of possession by the parties to the lis. 29. Learned counsel for the appellant has vehemently argued that once this Court held the appellant to be the tenant, then the possession of respondent No. 2 cannot be protected, as the same is unlawful, apart from the same having been obtained forcibly. Though the submission appears to be attractive, but the same in teeth of agreement Ex. D-1 merits rejection. 30. As already observed earlier, the general power of attorney of the appellant, Gurmeet Singh while appearing as PW-1 has not only categorically admitted the family agreement Ex. D-1, but he further stated that in terms of the agreement, the appellant had shifted to Lower Bazar, Solan and started his work in the shop of Snatan Dharam Sabha. He had also shifted the CST and GST numbers to the said premises. Not only this, he further admitted that it was respondent No. 2, who was carrying on business in the premises in dispute by the name of Sunny Electrical's. 31. He had also shifted the CST and GST numbers to the said premises. Not only this, he further admitted that it was respondent No. 2, who was carrying on business in the premises in dispute by the name of Sunny Electrical's. 31. At this stage, it shall be apt to reproduce the verbatim contents of the agreement, which reads thus:- “THIS AGREEMENT made on this 10th day of September, 1982 BETWEEN Shri Thakur Singh son of Sardar Labh Singh, resident of Jawhar Park Solan Tehsil and District Solan (hereinafter called the first party) and Shri Amarjit Singh son of Sardar Balak Singh resident of Upper Bazar Solan (hereinafter called the party of the second part). WHEREAS the parties came from West Pakistan after the partition of the country and at that time the second party was of the age about 2 years. His father had died during riots at West Pakistan and the first party took the second party under his protection and custody as guardian and brought him to India. The first party thereafter settled at Solan and he brought up and educated the second party and further married him at his own expenses and costs etc. The parties has been living as joint family having joint business at Solan and an electric shop (goods) is being runed by the parties jointly. AND WHEREAS both the parties due to some family dispute and differences intends to severe from each other mutually from their business and the properties on the following terms and conditions:- 1. That now the first party has given the said electric goods shop (business) situated at Upper Bazar Solan Tehsil and District Solan along with all goods and accounts etc; to the second party and henceforth the first party shall have no concern i.e. right or title & interest in that electric shop and its accounts etc; to which the second party shall be entirely owner and responsible for all profits and losses and other thing relating to said business of electric shop. 2. That the second party shall have no right, title or interests in the other immoveable properties previously owned and possessed by both the parties. The said properties are left to the first party out of said joint khata etc; by the second party and the same is no more joint as mutually agreed by both the parties. 2. That the second party shall have no right, title or interests in the other immoveable properties previously owned and possessed by both the parties. The said properties are left to the first party out of said joint khata etc; by the second party and the same is no more joint as mutually agreed by both the parties. The first party shall now own ward shall be entirely responsible and owner of the said immoveable properties (i.e. land and constructed buildings etc.) 3. That now both the parties are no more joint in business, profit and loss and properties in view of the paras 1 and 2 above. 4. That the expression both the ‘first’ and the ‘second’ party shall include, legal representative, heirs, administrators, executors and assigns of the respective parties. IN WITNESS WHEREOF both the parties to this agreement have set and scribed their respective hands to this agreement in presence of marginal witnesses of the day, month and year first above written, at Solan. WITNESSES Sd/- 1. S. Udham Singh S/o S. Avtar Singh Arhrti Old Court Road, Solan. 2. S. Harbans Singh S/o Sh. Labh Singh r/o Railway Workshop Jugadhry, Distt. Ambala. (Haryana)” Sd/- 1. Thakur Singh, first party 2. Amarjit Singh, 2nd party 32. It would be noticed that the appellant and respondent No. 2 were members of same family in as much as respondent No. 2 was brought up by the appellant when they migrated from Pakistan to Solan in the year 1947. As per agreement Ex. D-1, respondent No. 2 was barely 2 years of age when they settled at Solan. 33. Notably, it has come in the statement of PW-1 that agreement Ex. D-1 was never challenged or denied by the appellant. The payment of tax etc. as per the recital of Ex. D-1 coupled with the bank account, clearly establishes beyond doubt that from the year 1982, it was respondent No. 2, who was in possession of the disputed shop, pursuant to family settlement/agreement Ex. D-1. Once this document has not been denied, then the Court cannot ignore the recital as contained therein regarding the appellant having relinquished his authority and power over the stall for all intends and purposes from the date of agreement after handing over the possession of the premises along with accounts, equipment and articles lying inside the shop to respondent No. 2. Thus the appellant cannot be heard to say that respondent No. 2 was simply allowed to carry out the business in the said premises. 34. It is further not in dispute that it is respondent No. 2, who even after the fire had broken out was in occupation of the premises. The appellant cannot wriggle out of the agreement Ex. D-1 and the same principle upon which he seeks to establish the continuance of tenancy by placing reliance upon the judgment of Hon’ble Supreme Court in Shaha Ratansi Khimji and Sons case (supra) is equally applicable to his case and the agreement Ex. D-1 would continue to bind the appellant. The question is accordingly answered against the appellant. Question No. 4 35. It is vehemently argued by the learned counsel for the appellant that the learned trial Court could not have been drawn adverse inference and make it as one of the basis to dismiss the suit, as it is well settled legal proposition that the power of attorney can depose in place of the principal. In support of such submission reliance is placed upon the following observations from the judgment rendered by Hon’ble Supreme Court in S. Kesari Hanuman Goud Vs. Anjum Jehan and others, (2013) 12 SCC 64 : “23. It is settled legal proposition that the power-of-attorney holder cannot depose in place of the principal. The provisions of Order 3 Rule 1 and 2 CPC empower the holder of the power of attorney to “act” on behalf of the principal. The word “acts” employed therein is confined only to “acts” done by the power-of-attorney holder, in exercise of the power granted to him by virtue of the instrument. The term “acts”, would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has preferred any “acts” in pursuance of the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for acts done by the principal, and not by him. Similarly, he cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled (sic liable) to be cross-examined. (See Vidhyadhar Vs. Manikrao, (1999) 3 SCC 573 , Janki Vashdeo Bhojwani Vs. Similarly, he cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled (sic liable) to be cross-examined. (See Vidhyadhar Vs. Manikrao, (1999) 3 SCC 573 , Janki Vashdeo Bhojwani Vs. Indusind Bank Ltd. (2005) 2 SCC 217 , Shankar Finance and Investments Vs. State of A.P. (2008) 8 SCC 536 and Man Kaur Vs. Hartar Singh Sangha, (2010) 10 SCC 512 .)” 36. There cannot be any quarrel with the aforesaid proposition of law laid down by the Hon’ble Supreme Court in the aforesaid case. But the moot question is as to whether PW-1 attorney of the appellant could have contradicted the terms of the agreement Ex.D-1 when the same was admittedly executed on 10th September, 1982, when the attorney Gurmeet Singh was hardly 14 years of age. This answer is itself contained in the aforesaid judgment, wherein the Hon’ble Supreme Court has categorically held that the provisions of Order 3 Rule 1 and 2 C.P.C. empower the holder of the power of attorney to “act” on behalf of the principal, which is confined only to the acts done by the power of attorney holder, in exercise of the power granted to him by virtue of the instrument. The term acts, would not include deposing in place and instead of the principal. Meaning thereby, that the power of attorney holder can only depose on behalf of the principal in respect of such acts which have been done by him in pursuance of the power of attorney, but he cannot depose for the principal for acts done by the principal and not by him. Similarly, he cannot also depose for the principal in respect of the matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled and liable to be cross-examined. 37. In such circumstances, no exception can be taken against the findings regarding adverse inference drawn by learned trial Court on account of non-examination of the appellant as his own witness. 38. Learned counsel for the appellant would further argue that it was on account of old age, infirmity and poor eye sight that necessitated the examination of the son of the appellant in place of the appellant. 39. 38. Learned counsel for the appellant would further argue that it was on account of old age, infirmity and poor eye sight that necessitated the examination of the son of the appellant in place of the appellant. 39. Even this submission of the appeal cannot be accepted, as save and except for a bald statement of the power of attorney of PW-1, there is no material whatsoever placed on record to support such plea. That apart, the appellant could have conveniently moved an application for appointment of local commissioner for recording his statement. Having failed on all counts, I see no illegality committed by the learned trial Court, while drawing adverse inference against the appellant. The question of law is answered accordingly. 40. In view of the findings recorded herein above, the appeal is partly allowed and the appellant is held to be the tenant of the disputed premises. Whereas, on the remaining questions, the judgment and decree passed by the learned Courts below is affirmed.