JUDGMENT Ajay Mohan Goel, J. (Oral) - By way of this appeal, the appellants have challenged the judgment and decree, dated 19.09.2008, passed by the Court of learned District Judge (F), Shimla in Civil Appeal No. 12-S/13 of 2008/2000, vide which, learned appellate Court while upholding the judgment and decree, dated 25.04.2000, passed by the Court of learned Sub Judge 1st Class, Court No. 1, Shimla in Case No. 110/1 of 90, dismissed the appeal filed against the said judgment and decree, whereby learned trial Court had decreed the suit of the plaintiff filed therein for declaration and joint possession. 2. This appeal was admitted on 17.06.2009, on the following substantial questions of law: "1. Whether the decree based on findings recorded on Issue Nos. 1, 6, 7 & 8 qua Shop No. 1 in the Meghna Commercial Complex is infructuous and is not executable qua Shop No. 3 in Meghna Commercial Complex which is neither situated at the same site nor of the same specification/dimension as Shop No. 1 in the then Combermere House so pleaded by respondent -1 and as conversely proved on record by the appellant? 2. Whether both the Courts below fell into unsustainable legal error in-as-much as the mere written statement of respondent No. 2 has been misread as conclusive proof of joint tenancy and the uncontroverted deposition of respondent -2 as DW 2 supporting the sole/exclusive tenancy of the appellant has been ignored into to? 3. Whether both the judgments below are perverse in-as-much as the onus of issue Nos. 1, 6 and 7 was wrongly shifted upon the appellant in para 16 of the trial Court and paras 14 and 15 of the appellate Court because there is no concurrence on joint tenancy vide Ex. PW8/A and PW8/B (rent receipts) and yet the trial Court judgment has been upheld without an iota of proof quite in oblivion of Ex. DW1/C and DW1/D (rent receipts) which conclusively establish appellant''s exclusive tenancy in Shop No. 1 of Combermere House and Exts. DW1/F (sale deed) which shows appellant''s exclusive ownership and possession of Shop No. 3 in the new Meghna Commercial Complex? 4. Whether the Apex Court authority cited by the appellant was squarely applicable and has been wrongly distinguished by the appellate Court in its judgment para-21 and thereby injustice has occurred to the appellant?" 3. DW1/F (sale deed) which shows appellant''s exclusive ownership and possession of Shop No. 3 in the new Meghna Commercial Complex? 4. Whether the Apex Court authority cited by the appellant was squarely applicable and has been wrongly distinguished by the appellate Court in its judgment para-21 and thereby injustice has occurred to the appellant?" 3. Brief facts necessary for the adjudication of the present appeal are that a suit was filed by respondent No. 1/plaintiff (hereinafter referred to as ''the plaintiff'') against the original appellant, namely, Surinder Kumar Chaudhary and respondent No. 2 (hereinafter referred to as ''the defendants'') on the grounds that plaintiff and defendant No. 2 (Surinder Kumar Chaudhry) before the learned trial Court were joint tenants of Shop No. 1, situated in top storey of Combermere House, The Mall Shimla, i.e., the suit premises. It was further mentioned in the plaint that the suit premises were on rent with plaintiff and defendant No. 2, which were rented from its previous owners Sh. Raghunath Singh Thakur and Ram Dass on yearly rent of Rs. 450/-. As per the plaintiff, he and defendant No. 2 were running business in partnership in the said premises and both were tenants in the aforesaid premises in their own right. It was further mentioned in the plaint that business in the name and style of Himalya Gas Company was being run in partnership by the plaintiff and defendant No. 2 in the said premises. According to the plaintiff, he came to know that defendant No. 1 had purchased the entire building known as Combermere Estate from its previous owner and he was threatening to demolish the tenanted building and adjoining shops. It was further mentioned in the plaint that plaintiff had also come to know that defendants No. 1 and 2 had entered into a deal, whereby defendant No. 2 was going to surrender his tenancy rights in favour of defendant No. 1, who had even proceeded to hand over possession of the said shop to defendant No. 1, thereby depriving the plaintiff from the tenanted premises. As per the plaintiff, a conspiracy in fact stood hatched by defendants No. 1 and 2 in this regard against him. As per the plaintiff, a conspiracy in fact stood hatched by defendants No. 1 and 2 in this regard against him. It was further averred in the plaint that as plaintiff and defendant No. 2 were in joint possession of the tenanted premises, therefore, one of the tenant could not surrender the tenancy rights or possession individually in favour of defendant No. 1. Records demonstrate that during the pendency of the Civil Suit, certain developments took place, which led to the amendment of the plaint, wherein, it stood pleaded by way of amendment by the plaintiff that defendants had illegally and un-authorisedly during the pendency of the suit demolished Shop No. 1 and re-constructed the same despite ad-interim orders passed by the Court. It was further mentioned that plaintiff continued to be joint and co-tenant with defendant No. 2 of premises in dispute. It was further mentioned that plaintiff continued to be joint and co-tenant with defendant No. 2 of premises in dispute. It was on these bases that the suit was filed praying for the following reliefs: "(1) That the defendant No. 1 be restrained from carrying out any kind of digging operations, reconstruction work, demolition work and from dismentalling work in, over, around below the tenanted premises bearing No. 1 situated in Top Storey of building known as Combermere House, The Mall, Shimla and the defendant No. 1 be further restrained from damaging any part or portion of the tenanted shop No. 1 in any manner by way of his own acts or any of his employee, servant agents or contractors and further restraining the defendant No. 1 from dispossessing the plaintiff from the said tenanted premises bearing No. 1 Combermere House, The Mall, Shimla in any manner except in due process of law; (2) Further restraining the defendant from entering into any kind of deal, contract or agreement between themselves whereby the plaintiff is being ousted from the said tenanted Shop No. 1, Combermere House, The Mall, Shimla or whereby the tenancy rights of the plaintiff are being interfered in any manner and further restraining the defendant No. 1 specifically from entering into any kind of deal, agreement or contract whereby the tenancy rights of the plaintiff in respect of the said tenanted premises No. 1 Combermere House, The Mall, Shimla are taken away, interfered or threatened to be hamphered in any manner and further restraining the defendant No. 2 from surrendering the tenancy rights or possession of premises bearing No. 1, the Combermere House, The Mall, Shimla in favour of the defendant No. 1 in any manner which premises are jointly held by the plaintiff and defendant No. 2. (2)(a) The decree for declaration may kindly be passed in favour of the plaintiff against the defendant declaring that the plaintiff continue to be a joint tenant with defendant No. 2 in respect of reconstructed shop No. 1 in place of old shop No. 1 on the same place and same situation in Combermere House building at the Mall Road level which building now is known as Meghna Commercial Complex, The Mall, Shimla and is entitled to joint possession of the said newly constructed shop with tenant No. 2. (2)(b) The decree for joint possession be passed in favour of the plaintiff against the defendants that the plaintiff is in joint possession with defendant No. 2 cotenant in newly constructed shop in place of old shop on the Mall Road level storey which building is new known as Meghna Commercial Complex, The Mall, Shimla. Necessary Court fee will be fixed on the plaintiff after amendment is allowed by the Court. The cost of the suit be awarded to be the plaintiff against the defendant. Any other relief to which the plaintiff is found to be entitled in the facts and circumstances of the case may also be granted to the plaintiff by this Hon''ble Court." 4. Separate written statements were filed both by defendant No. 1 and defendant No. 2. The stand of defendant No. 1 was that joint tenancy of plaintiff and defendant No. 2 was not denied by him, but he denied that any business was being run in the shop in the name and style of M/s. Himalaya Gas Company by both the brothers. It was further mentioned in his written statement that the premises in issue were made available for reconstruction and later on defendant No. 2 directly entered into a sale transaction of the said re-constructed shop in his own name as well as additional premises below the said shop vide agreement dated 01.06.1989. It was further mentioned in the written statement that the shop in question alongwith godown thereafter stood sold to defendant No. 2 vide registered sale deed, dated 21.10.1991 against consideration. On these basis, the claim of the plaintiff was denied by defendant No. 1. 5. Defendant No. 2 also denied the claim of the plaintiff and took the stand that plaintiff was never a joint tenant with defendant No. 2 of the suit premises. As per the said defendant, the premises in the tenancy of defendant No. 2 were previously under Shri Raghunath Singh Thakur and thereafter under the new owner. As per him, plaintiff had no concern whatsoever with the suit premises. It was further mentioned that plaintiff and defendant No. 2 were partners in Himalya Gas Company, which was functioning from its registered office and godown, situated at Cart Road, Near Ice Skating Rink, Circular Road, Shimla. As per him, plaintiff had no concern whatsoever with the suit premises. It was further mentioned that plaintiff and defendant No. 2 were partners in Himalya Gas Company, which was functioning from its registered office and godown, situated at Cart Road, Near Ice Skating Rink, Circular Road, Shimla. It was further mentioned that the suit premises were in occupation of defendant No. 2 only, from where he was carrying business of his sole proprietorship in the name and style of M/s. Himalaya Electrical Company. It was further mentioned in the written statement that later on he had become owner of the suit premises by virtue of sale deed, dated 21.10.1991 entered into by him with defendant No. 1. On these basis, he denied the claim of the plaintiff. 6. By way of replication so filed to the written statements, plaintiff reiterated his claim and denied the averments made in the written statements. 7. On the basis of pleadings of the parties, learned trial Court framed the following issues: "1. Whether the plaintiff and defendant No. 2 are in joint possession, as joint tenants in respect of the entire shop bearing Shop No. 1, situated in the building known as Combermere House, The Mall Shimla? OPP. 2. If issue No. 1 is proved, then whether the defendant No. 2 has no right to surrender the tenancy rights or possession individually of the premises in dispute in favour of the defendant No. 1? Opp. 3. Whether the plaintiff is entitled to the relief of injunction as prayed for? OPP 4. Whether the plaintiff has no locus standi to file this suit? OPD. 5. Whether the plaintiff is estopped from filing the present suit, due to his acts, deed, conduct and acquiescence? OPD. 6. Whether the plaintiff is entitled for declaration that he continued to be co-tenant with defendant No. 2 in respect of reconstructed shop No. 1? OPP. 7. Whether the plaintiff is entitled for joint possession of reconstructed shop No. 1 with defendant No. 2? OPP. 8. On the basis of evidence adduced by the respective parties in support of their respective claims, the following findings were returned by learned trial Court on the issues so framed: "Issue No. 1: Yes. Issue No. 2: Yes. Issue No. 3: No. Issue No. 4: No. Issue No. 5: No. Issue No. 6: Yes. Issue No. 7: Yes. OPP. 8. On the basis of evidence adduced by the respective parties in support of their respective claims, the following findings were returned by learned trial Court on the issues so framed: "Issue No. 1: Yes. Issue No. 2: Yes. Issue No. 3: No. Issue No. 4: No. Issue No. 5: No. Issue No. 6: Yes. Issue No. 7: Yes. Relief: Suit of the plaintiff is decreed as per operative portion of judgment. 9. Learned trial Court vide its judgment and decree, dated 25.04.2000, decreed the suit of the plaintiff on following terms: "This suit coming on this 25th April, 2000 for final disposal before me, J.K. Sharma, Sub Judge 1st Class (I), Shimla in the presence of Shri Ashok Sood, Advocate for the plaintiff and Shri Satyan Vaidya, Advocate, for the defendants. It is ordered and decreed that the suit of the plaintiff is decreed for declaration and for joint possession as prayed for with cost against both the defendants." 10. While decreeing the suit, it was held by the learned trial Court that the evidence led by the parties demonstrated that plaintiff and defendant No. 2 were running the business of Himalya Gas Company jointly in the disputed premises, which stood proved from the lease deed Ex. PW8/B. Learned trial Court also held that though defendant No. 2 had claimed that he was sole tenant of disputed premises, however, no documentary evidence was filed by defendant No. 2 to demonstrate the same. Learned trial Court further held that partnership deed also stood executed between the parties, which was also exhibited to demonstrate that the business was being run jointly by the plaintiff and defendant No. 2. Learned trial Court also held that even defendant No. 1 in his written statement has admitted that plaintiff was joint tenant in the premises with defendant No. 2 and that possession thereof for the purpose of reconstruction was handed over to him by defendant No. 2, on the assurance that defendant No. 2 was having the authority of the plaintiff in this regard and further, after re-construction, the re-constructed premises were handed over back to defendant No. 2 on behalf of both the defendants. Learned trial Court also held that plaintiff''s witnesses had established that plaintiff and defendant No. 2 were running the business jointly from the suit premises till the year 1990, when the suit premises were handed over to defendant No. 1 for the purpose of re-construction and it was thereafter that the business was shifted to Revoli Bus Stand. On these basis that it was held by the learned trial Court that the plea taken by defendant No. 2 that the plaintiff had relinquished his right of tenancy in the suit premises, could not be accepted, as the written statement of defendant No. 1 clearly demonstrates that defendant No. 2 had handed over the possession of the suit premises on the understanding that he was doing so with the consent of the plaintiff. Learned trial Court also held that plaintiff was entitled to declaration regarding joint tenancy as well as joint possession with defendant No. 2. 11. The judgment and decree so passed by the learned trial Court was assailed by defendant No. 2 alone before the learned first appellate Court. Learned appellate Court vide its judgment and decree, dated 19.09.2008, dismissed the appeal so filed before it by him. Learned appellate Court while concurring with the findings returned by the learned trial Court held that most relevant material on record was the written statement filed by defendant No. 1, i.e., the person who had purchased the building, which consisted of the suit premises from previous owner Raghunath. Learned appellate Court held that it was specifically mentioned in the written statement of defendant No. 1 that suit premises were in joint tenancy of plaintiff and defendant No. 2. Learned appellate Court also held that though defendant No. 1 while in witness box altered his stand, but he could not explain as to why he had made a mention of contrary facts in the written statement. Learned appellate Court also held that as evidence suggested that both plaintiff and defendant No. 2 were tenants of the suit premises, it was incumbent upon defendant No. 2 to have had proved his sole tenancy by leading cogent and reliable evidence, but he failed to do so. After referring to Ex. PW8/D-7 to Ex. PW8/D-10, learned appellate Court held that these communications suggested that plaintiff and defendant No. 2 were having joint business in the suit premises. After referring to Ex. PW8/D-7 to Ex. PW8/D-10, learned appellate Court held that these communications suggested that plaintiff and defendant No. 2 were having joint business in the suit premises. Learned appellate Court dismissed the plea of the appellant therein that the subject matter of the tenancy stood destroyed after re-construction and thereafter the tenancy had come to an end. Thus, it was held by the learned appellate Court that the findings returned by the learned trial Court warranted no interference. 12. Feeling aggrieved, the appellant filed this appeal. 13. I have heard the learned counsel for the parties and have also gone through the judgments and decrees passed by both the learned Courts below as well as the records of the case. 14. I will deal with all the substantial questions of law Nos. 1 and 3 together and 2 and 4 independently. Substantial questions of law Nos. 1 & 3 15. A perusal of the judgments and decrees passed by both the learned Courts below demonstrate that there is a concurrent finding returned by both the learned Courts below against the present appellant that the suit premises were not in the sole tenancy of the present appellant and they were under the joint tenancy of defendant No. 2 and the present appellant. In this background, when we go through the findings returned by the learned trial Court on Issues No. 1, 6, 7 and 8 which stand affirmed by the learned appellate Court, it cannot be said that the decree passed by the learned trial Court is not executable. Even otherwise, whether the decree passed by the learned trial Court is executable or not has to be decided by the Executing Court and this is not to be done by this Court while deciding this appeal. During the course of arguments, it could not be disputed by the learned counsel for the appellant that the suit premises are identifiable. A perusal of the written statement filed by defendant No. 1 demonstrates that he had mentioned therein that after the suit premises were handed over to him by defendant No. 2 for the purpose of re-construction, the same after re-construction were handed over back by him to defendant No. 2. Now, it further stands mentioned in the written statement of defendant No. 1 that later on, the said shop alongwith additional premises were sold to defendant No. 2. 16. Now, it further stands mentioned in the written statement of defendant No. 1 that later on, the said shop alongwith additional premises were sold to defendant No. 2. 16. Be that as it may, it is nowhere mentioned in the written statement of defendant No. 1 that after the suit premises were handed over to him for the purpose of re-construction by defendant No. 2, in the course of re-construction, the character of the suit premises was so altered and changed that now there is no shop at the spot, as was existing before re-construction. Even the written statement filed by respondent No. 2 demonstrates that it was not his case that suit premises which were handed over to him after reconstruction by defendant No. 1 were not the same as were handed over by him to defendant No. 1. In fact, his case in the written statement was that it was he who was the sole tenant of the suit premises and plaintiff had got no interest or claim over the said premises. 17. A perusal of the records of the case also demonstrates that the documents referred to by the learned trial Court in its judgment, i.e., licence deed Ex. PW8/B as well as telephone bill Ex. 8/D-16 conclusively lead to the inference that the suit premises were in fact joint tenancy of the plaintiff and defendant No. 2. Partnership between plaintiff and defendant No. 2 in the name and style of Himalya Gas Company also stands proved vide Ex. P-3. It is further evident from the records that previous owner of the suit premises used to receive rent from both the tenants and their licences were also created. Therefore, in view of the above, it cannot be said that decree based on findings recorded on Issues No. 1, 6, 7 and is not executable. Substantial questions of law Nos. 1 and 3 are answered accordingly. Substantial question of law No. 2: 18. A perusal of the judgments and decrees passed by both the learned Courts below demonstrate that there is a concurrent finding of fact returned against the present appellant and in favour of the plaintiff that it were the plaintiff and defendant No. 2, who were joint tenants of the suit premises and the suit premises were not in the sole tenancy of defendant No. 2. Now, while arriving at the said conclusion, learned Courts below have relied upon the lease deed, which was so executed by the plaintiff and defendant No. 2 with the erstwhile owner of the suit premises, namely, Sh. Raghunath Singh Thakur. On the other hand, there is a finding of fact returned by the learned trial Court, which has been concurred by the learned appellate Court to the effect that no document has been placed on record by defendant No. 2 to demonstrate that he was the sole tenant of the suit premises. Findings returned by the learned trial Court to the effect that plaintiff and defendant No. 2 were joint tenants of the suit premises stand substantiated by it by elaborate discussion of evidence on record in this behalf. Now, it is a matter of record that in his written statement, DW-2, i.e., defendant No. 1 had not denied the factum of plaintiff being in joint possession of the suit premises with defendant No. 2. This is evident from the records of the case, i.e., from the perusal of written statement of defendant No. 1. Therefore, findings recorded to this effect by the learned trial Court, which stand affirmed by the learned appellate Court, thus cannot be said to be perverse findings. Now, deposition to the contrary in the Court of law by DW-2, who entered the witness box at the behest of the present appellant, has been rightly ignored by both the learned Courts below. This is for the reason that said witness could not give any cogent justification as to why averments to the contrary were made in the written statement. Not only this, written statement is earlier in time. Besides this, in my considered view, the stand of a party in a Court of law is to be primarily inferred from the pleadings and not from the statement. Therefore, in my considered view, neither of the Courts below have fallen into unsustainable legal error by relying upon the written statement of defendant No. 1, nor they have misread the testimony of DW-2 in this regard. This substantial question of law is answered accordingly. Substantial question of law No. 4: 19. Therefore, in my considered view, neither of the Courts below have fallen into unsustainable legal error by relying upon the written statement of defendant No. 1, nor they have misread the testimony of DW-2 in this regard. This substantial question of law is answered accordingly. Substantial question of law No. 4: 19. A perusal of the judgment passed by the Hon''ble Supreme Court in Vannattankandy Ibrayi vs. Kunhabdulla Hajee, (2001) 1 Supreme Court Cases 564 demonstrates that therein the Hon''ble Supreme Court was dealing with the matter, which pertained to a premises, which after being let out was raised to the ground due to accidental fire and there remained only the vacant land. It was in this factual matrix that it was held by the Hon''ble Supreme Court that when there was no superstructure in existence, the landlord cannot claim recovery of possession of vacant site under the State Rent Act and the only remedy available to him was to file a suit in a Civil Court for recovery of possession of land. In my considered view, the law laid down by the Hon''ble Supreme Court, referred to above, is clearly distinguishable on the basis of the facts of the present case and it cannot be said that the judgment of the Hon''ble Supreme Court has been wrongly distinguished by the learned appellate Court. This substantial question of law is answered accordingly. 20. In view of the findings returned above, as there is no merit in the present appeal, the same is dismissed, so also miscellaneous application(s), if any. No order as to costs.