JUDGMENT : Ramchandra Singh Jhala, J. This second appeal has been filed by the appellant defendant against the judgment and decree dated 21.11.2012 passed by learned Additional District Judge, Abu Road, District Sirohi whereby he has dismissed regular Civil First Appeal No.6/2008 filed by the appellant and affirmed the judgment and decree dated 15.12.2007 passed by learned Civil Judge (Senior Division), Mount Abu in civil suit No.65/2004 was affirmed. 2. Brief facts of the case are that the respondent-plaintiff had filed a suit against the appellant-defendant for eviction and payment of arrears of rent before the Civil Judge (Senior Division), Abu Road. It is stated in the suit that appellant-defendant was paying monthly rent of Rs. 200/- and from 30.4.2002, the appellant-defendant is not paying rent, therefore, the respondent plaintiff sent a legal notice through his advocate on 12.5.2004, but in vain. Hence, is prayed that she may be evicted from the suit premises and arrears of rent of Rs. 5,200/- may be directed to be paid to the respondent-plaintiff. 3. The appellant-defendant filed written statements and controverted all the facts of the suit and said that she is not tenant of the respondent-plaintiff whereas the said property was in the ownership of her father-in-law and after partition, the said house came in her share. She is regularly residing in the said premises after her marriage. The respondent-plaintiff had wrongly given her notice through his counsel and she prayed to dismiss the suit. 4. On the basis of the pleadings, the learned trial court framed following issues:- ^^1 & vk;k izfrokfn;k okn i= dh en la0 ,d esa of.kZr ifjlj esa nks lkS :i;s izfrekg fctyh] ikuh [kpkZ vyx dh nj ls oknh dh fdjk,nkj gS\ 2 & vk;k izfrokfn;k us fdjk;k vnk;xh esa O;frdze fd;k gS\ 3 & vk;k fookfnr ifjlj dh oknh dks futh ,oa ln~Hkkfod vko';drk gS\ 4 & vk;k oknh us izfrokfn;k dks edku [kkyh djus gsrq fof/kd uksfVl fn;k] ftlds ckn ifjlj mlus [kkyh ugha fd;k gS\ 5 & vk;k fookfnr ifjlj dh izfrokfn;k Lokeh gS\ 6 & vk;k okn pyus ;ksX; ugha gS\ 7 & vk;k izfrokfn;k fo'ks"k O;; ikus dh gdnkj gS\ 8 & vuqrks"k\^^ 5. The trial court vide judgment and decree dated 15.12.2007 decided the issues No.1 to 4 in favour of the respondent-plaintiff and issues No.5 to 7 against the appellant defendant and decreed the suit against the appellant-defendant and directed to evict the suit premises and pay arrears of rent. 6. Being aggrieved with the said judgment and decree of learned trial court, the appellant-defendant filed an appeal before the Additional District Judge, Abu Road, District Sirohi, but he dismissed the said appeal vide judgment and decree dated 21st Nov., 2012. Against the said judgment and decree of the first appellate court, the appellant-defendant has preferred the instant second appeal. 7. This Court on 18.2.2013 while admitting this second appeal framed the following substantial questions of law:- "1. Whether the courts below were justified in decreeing the suit filed by the plaintiff without returning a finding whether the relationship of landlord and tenant exists between the parties? 2. Whether the courts below were justified in decreeing the suit by assuming the landlord and tenant relationship merely on account of notice under section 106 of the Transfer of Property Act issued by the plaintiff, to which no reply was given by the defendant? 3. Whether in the facts and circumstances of the case, it can be said that the defendant was afforded sufficient opportunity to defend her case." 8. Heard learned counsel for the parties. 9. Learned counsel for the appellant-defendant has contended that parties are members of Joint Hindu Family and respondent-plaintiff himself denied the factum of partition, then inference of relationship of landlord and tenant is not probable. The tenancy cannot be proved in absence of lack of evidence about transfer of physical possession and lake of evidence of payment of rent. It is settled law that when the defendant has filed written statement denying the case of the plaintiff, then the case of the plaintiff cannot be held proved simply for the non-production of evidence by the defendant. 10. Learned counsel for the appellant-defendant has also contended that the plaintiff-respondent failed to aver the material particulars and facts regarding the alleged creation, commencement and continuance of the tenancy and has also failed to file a rejoinder when the appellant-defendant has set up special case of ownership of the disputed property which was admittedly ancestral property. 11. 10. Learned counsel for the appellant-defendant has also contended that the plaintiff-respondent failed to aver the material particulars and facts regarding the alleged creation, commencement and continuance of the tenancy and has also failed to file a rejoinder when the appellant-defendant has set up special case of ownership of the disputed property which was admittedly ancestral property. 11. Learned counsel for the appellant-defendant has also contended that the learned trial court had committed serious error of law in closing the evidence without giving three opportunities as it is mandatory under Order 17, Rule 1(1) C.P.C. The learned trial court had wrongly held that the appellant-defendant was not desirous to produced his evidence as the appellant-defendant had pleaded a very strong case in her written statements. It is also contended that the impugned judgments and decrees suffer from serious infirmity in the light of mandatory provisions of Order 20, Rule 4 & 5 of the C.P.C. as interpreted by the Hon'ble Apex Court. It is also contended that the learned first appellate court has seriously erred in not remanding the case to the trial court. 12. The learned counsel for the appellant-defendant has relied upon the following judgments :- (i) AIR 1970 SC 479 - Sheikh Abdul Sattar v. UOI (ii) AIR 1999 SC 1464 - D.M. Deshpandey v. Janardhan (iii) 2016 (3) WLN 521 (Raj.) - Kishore Kumar v. Daya (iv) AIR 2006 ALL 55 - Smt. Kubra Begum v. IIIrd Addl. Dist. Judge, Muradabad (v) 2014 (1) WLN 310 (Raj.) - Lehri Bai v. Bheru Lal; and (vi) 2007 (1) WLC (Raj) 188 - Prabhu Lal v. Madan Lal 13. In view of aforesaid contentions and judgments cited above, the learned counsel for the appellant-defendant has prayed that the impugned judgments and decrees passed by both the courts below may kindly be set aside and this appeal may kindly be allowed. 14. On the contrary, the learned counsel for the respondent-plaintiff has supported the impugned judgments and has submitted that there is concurrent finding of both the learned courts below. It is also submitted that no error has been committed by learned first appeal court as well as learned trial court while passing the impugned judgments and decrees as the same have been passed after appreciating and scrutinizing the material evidence available on record. Therefore, it is prayed that the present second appeal may be dismissed. 15. It is also submitted that no error has been committed by learned first appeal court as well as learned trial court while passing the impugned judgments and decrees as the same have been passed after appreciating and scrutinizing the material evidence available on record. Therefore, it is prayed that the present second appeal may be dismissed. 15. Learned counsel for the respondent-plaintiff in support of his arguments has relied upon the following judgments:- (i) 2002(1) RCR page 174 - R. Govindan (died) and four others v. Sri Karapaga Vinyagar Temple by its Managing Trustee K. Bajanag Doss (ii) 1996(2) RCR page 08 - Board of Trustees of Port of Bom. v. Corn Products Co. (India) Ltd. (iii) 2004 (2) RCR page 278 - Vijay Lata Sharma v. Raj Pal (iv) 2004(2) RCR page 192 - Dhalu Ram & Ors. v. Jessa Ram; and (v) 2015 AIR SCW page 4095 - Tapas Kumar Samanta v. Sarbani Sen & Anr. 16. Heard learned counsel for the parties and perused the record, judgments and evidence available on record. 17. Upon perusal of the plaint, it is crystal clear that in the plaint, the plaintiff stated only this thing that the appellant defendant is his tenant, but the respondent-plaintiff had clearly not stated that in which year and on which date, he gave the suit premises on rent to the appellant-defendant. Even in examination-in-chief, the plaintiff-respondent did not whisper even a single word that in which year and on which date, he handed over the premises to the appellant-defendant on rent. He has also not clearly stated that how and when it was created and what were the terms thereof. 18. When the respondent-plaintiff has come with these conditions that appellant-defendant is his tenant and he is landlord of the suit premises and appellant-defendant is defaulter in making payment of rent, then it is the duty of the respondent plaintiff to prove that on which date and in which year, he handed over the possession of the suit premises on rent to the appellant defendant and what terms were determined regarding payment of rent. 19. I would also like to mention here that the respondent plaintiff neither in his plaint nor in his examination-in-chief has whispered even a single word whether he received rent without giving receipt or whether he gave any receipt after receiving the rent. 19. I would also like to mention here that the respondent plaintiff neither in his plaint nor in his examination-in-chief has whispered even a single word whether he received rent without giving receipt or whether he gave any receipt after receiving the rent. There is no iota of evidence about the mode of payment of rent nor there is any pleadings about the same. 20. The Hon'ble Apex Court in the case of D.M. Deshpandey v. Janardhan reported in AIR 1999 SC 1464 in para No.11 has held as under:- "In the present case, no particulars have been given by the 1st respondent or the second respondent relating to this tenancy-how it was created, when it was created and the terms thereof. Learned counsel for the respondents, however has relied upon an order of the Agricultural Lands Tribunal dated 27.2.71 which was passed in suo motu proceedings taken under Section 49A of the Bombay Tenancy and Agricultural Lands (Vidharbha Region) Act, under which proceedings for transfer of ownership to the alleged tenants of whom the 1st respondent was one, were dropped on the ground that properties belonging to the public trust were exempted under Section 129 of the said Act. We fail to see how this will help the 1st respondent because the question whether he was in fact a tenant over the said land or not, was not examined in those suo motu proceedings since, in any event the lands of the said trust were exempted from the operation of Section 37 of the said Tenancy Act." This Court in the case of Kishore Kumar v. Daya reported in 2016 (3) WLN 521 (Raj.) has also held that :- "(A) Evidence Act, 1872-Sec.3-Relationship of the Land Lord and Tenant Proof of Disputed Tenancy - Defendant denying the tenancy in Written Statement and in Evidence - Land Lord alleging tenancy of disputed property @ 700 p.m. with the plea of nonpayment of rent since October, 2011 but not claiming recovery of the arrears except mense profit @ 3000/- p.m. from the institution of the suit - Held, Entire facts minutely discussed by the First Appellate Court while arriving at its conclusion about absence of tenancy - The basic fact as to when the tenancy had started is conspicuously missing in the Plaint - It creates a serious doubt about the existence of such tenancy - Evidence Act, 1872 - Section 116." 21. Upon perusal of evidence of PW-1 Harji Lal, it is clear that he, in his cross-examination, had admitted that ^^;g lgh gS fd izfrokfn;k esjs HkkbZ ukjk;.kyky dh iRuh gS ,oa izfrokfn;k 'kknh gksdj vk;h] rc ls fookfnr edku esa jg jgh gSA vHkh gekjh lEifRr dk caVokjk ugha gqvk gS o izfrokfn;k gekjs 1@4 dh Hkkxhnkj gSA^^ It proves that suit premises is in possession of appellant defendant since her marriage till today and suit premises is ancestral property as well as undivided property of joint family and it is also proved by cross-examination of PW-1 plaintiff that the appellant-defendant is also entitled for share of the suit premises. 22. In spite of above admission of respondent-plaintiff in his cross-examination, the learned courts below have erred in observing that the respondent-plaintiff is landlord and the appellant-defendant is tenant of suit premises. 23. It is settled proposition of law that admission is best evidence and according to Section 58 of Evidence Act admitted fact need not be proved. 24. The Allahabad High Court in the case of Smt. Kubra Begum v. IIIrd Addl. 23. It is settled proposition of law that admission is best evidence and according to Section 58 of Evidence Act admitted fact need not be proved. 24. The Allahabad High Court in the case of Smt. Kubra Begum v. IIIrd Addl. District Judge, Muradabad reported in AIR 2006 Allahabad 55 has held that:- "Transfer of Property Act, 1882 Section 107 Tenancy - Landlord-tenant relationship - Proof - Parties were first cousins - Alleged lease deed was unregistered - No payment of rent at any point of time proved - No tenancy can be said to have been created - Even otherwise in view of close relationship of parties, theory of landlord-tenant relationship becomes improbable." In view of above discussions and on the basis of statement of respondent-plaintiff PW-1, the appellant-defendant is his brother's wife and she has share in the suit premises and plaintiff failed to prove that how, when and on what basis the tenancy created and what were the terms thereof. In spite of these admitted facts, both the courts below have wrongly held that the plaintiff and defendant have landlord-tenant relation. Both the courts below have misread the evidence available on record and recorded the above finding without any legal evidence on record. The findings of both the courts below suffers from legal infirmity and same is perverse and findings of courts below are vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter. 25. Upon perusal of judgments passed by the courts below, it is clear that the trial court decreed the suit only on the ground that the appellant-defendant had not produced her evidence in rebuttal and first appellate court has also affirmed its observations, but in my considered opinion, the above observations of learned courts below are flimsy because both the courts below ignored the above admission of PW-1 plaintiff. 26. It is settled proposition of law that plaintiff must stand on his own legs, he cannot take advantage of weakness of defence. 27. 26. It is settled proposition of law that plaintiff must stand on his own legs, he cannot take advantage of weakness of defence. 27. It is well settled that High Court while considering the matter in exercise of its jurisdiction in second appeal would not reverse the finding of fact as recorded by both the courts below, but it is not absolute proposition of law that in a case whereas the finding is recorded without any legal evidence on record or on misreading of evidence or suffers from any legal infirmity, which materially prejudice the case of one of the parties or the finding is perverse, it would be open for the High Court to set aside such a finding and to take a different view, where it is found that the finding stands vitiated on wrong test and on the basis of assumption and conjectures. Therefore, contention of learned counsel for respondent that concurrent finding cannot be interfered in second appeal is not tenable. 28. This Court in the case of Lehri Bai v. Bheru Lal reported in 2014 (1) WLN 310 (Raj.) has held that:- "(A) Civil Procedure Code, 1908 - Order 20, Rule 5 - Contents of Ex-parte Judgments - Absence of Reasons - Eviction suit - Plaintiff filed affidavit in support of the Plaint - Held, Judgment reveals that Trial Court merely recorded that Plaintiff supported the facts indicated in Plaint in his Statement which was not contradicted by producing any evidence in defense so the Suit was proved - Judgment lacks the Ground for passing it - Judgment and Decree is nullity." "24. There is no prohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the courts below were vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter. Vide Jagdish Singh v. Natthu Singh, Prativa Devi v. T.V. Krishnan, Satya Gupta v. Brijesh Kumar, Ragavendra Kumar v. Prem Machinery & Co. and Molar Mal v. Kay Iron Work (P) Ltd. 25. Thus, the law on the subject emerges to the effect that second appeal under section 100 CPC is maintainable basically on a substantial question of law and not on facts. and Molar Mal v. Kay Iron Work (P) Ltd. 25. Thus, the law on the subject emerges to the effect that second appeal under section 100 CPC is maintainable basically on a substantial question of law and not on facts. However, if the High Court comes to the conclusion that the findings of fact recorded by the courts below are perverse being based on no evidence or based on irrelevant material, the appeal can be entertained and it is permissible for the Court to reappreciate the evidence. The landlord is the best judge of his need, however, it should be real, genuine and the need may not be a pretext to evict the tenant only for increasing the rent." The Hon'ble Supreme Court in the case of Dinesh Kumar v. Yusuf Ali reported in 2010(4) SCC 738 (Civ) 738 and (2010) 12 SCC 740 has held that:- "B. Civil Procedure Code, 1908 - Section 100 Second appeal - Scope of High Court's power under - Held, second appeal is maintainable on a substantial question of law and not on facts - However, if High Court concludes that findings of fact recorded by courts below are perverse being based on no evidence or on irrelevant material, appeal can be entertained and it is permissible for court to reappreciate evidence." 29. I do agree with the contention of learned counsel for the respondent that an authority under Rent Control Act cannot decide the question of title, but I am of the considered view that in rent case, the decree is to be passed on the basis of relationship of landlord and tenant. In the present case, there is no rent note nor there is averment in plaint that in which year and on which date the tenancy entered between the parties and what terms were determined between the parties for tenancy has not been cleared by the plaintiff. Even in view of above discussion, the plaintiff himself admitted that the suit property is ancestral property and undivided property and the appellant-defendant is residing in suit premises since her marriage and she has share in the suit property, then when and how the plaintiff has become the owner of the suit premises and in which circumstance, he gave the premises on rent to the appellant-defendant has not been proved by the respondent-plaintiff. 30. 30. In these circumstances, it was the duty of the respondent-plaintiff to prove landlord-tenant relationship between the parties, but in this case, the plaintiff has failed to prove landlord-tenant relationship between the parties. It was also duty of the courts below to see whether landlord-tenant relationship is proved or not. Therefore, the courts below were not justified in decreeing the suit of plaintiff, so the judgments and decrees passed by both the courts below are liable to be set aside. 31. In view of above discussion, the above substantial questions of law No.1 and 2 framed at the time of admission of this second appeal are required to be answered positive in favour of appellant. 32. So this Court is of the clear opinion that in the present case, suit for eviction and payment of arrears of rent deserves to be dismissed and no such relief could have been granted in favour of plaintiff Harji Lal Alika. The defendant-appellant Smt. Sharda's appeal, therefore, succeeds and is allowed accordingly and set aside the judgment and decree passed by the trial court dated 15.12.2007 in suit No.65/2004 as well as the judgment and decree passed the first appellate court dated 21.11.2012 passed in Civil First Appeal No.6/2008 and the suit of the respondent plaintiff is dismissed. 33. The stay petition also stands rejected. 34. No order as to costs.