JUDGMENT : 1. Appellant-Defendant (hereinafter defendant) has assailed the judgment and decree for ejectment with arrears of rent and the mesne profits dated 03.06.2016 passed by the court of Civil Judge, Pushkar, Ajmer in civil suit No. 5/2006 instituted by the respondent-plaintiff (hereinafter plaintiff) under Order 7 Rule 1 CPC read with Section 109 of Transfer of Property Act. The judgment and decree dated 03.06.2016 has been affirmed in the first appeal No. 48/2017 by the first appellate court, Judge Labour Court & Industrial Tribunal, Ajmer, vide judgment dated 11.05.2018. Thus, the concurrent findings of fact recorded by two courts below are under challenge in the present second appeal. 2. The appellant is defendant and respondent is plaintiff and hereinafter, the parties shall be referred with the same nomenclature as were called before the trial court. 3. The suit property is residential portion comprising of two rooms, kitchen situated at house No. 9/20 (New No. 7/13) Gautam Ashram Road, Choti Basti, Pushakar. The plaintiff alleged the defendant to be his tenant in the suit property at the rate of Rs. 400/-per month rent and tenancy was said to be oral, on the contrary, defendant denied his tenancy and alleged himself to be the owner. The trial court as well as, the first appellate court after appreciation of evidence on record, concluded that defendant does have possession over suit property as tenant and not as owner and further the plaintiff has terminated his tenancy vide legal notice dated 19.11.2005, as such both courts concurrently have passed decree for eviction against defendant, along with arrears of rent and mesne profits. 4. The plaintiff instituted a civil suit for ejectment on 03.01.2006 claiming inter alia that plaintiff purchased the house in question including the suit premises through registered sale deed dated 30.01.2002 from the erstwhile owner and landlord one Shri. Purshotam Das. It was averred that defendant was tenant in two rooms and kitchen the same house at ground floor and seller had instructed to defendant to pay rent from 30.01.2002 onwards to plaintiff purchaser. It was averred that after such instruction by the erstwhile owner/landlord, the plaintiff asked to the defendant to pay monthly rent at the rate of Rs.400/-per month, else defendant may vacate rented portion. It was averred that after such instruction by the erstwhile owner/landlord, the plaintiff asked to the defendant to pay monthly rent at the rate of Rs.400/-per month, else defendant may vacate rented portion. However, defendant accepted to pay rent at the rate of Rs.400/-per month and paid rent from 01.02.2002 to 31.07.2002, but did not pay rent thereafter w.e.f. 01.08.2002 onwards. It was averred that defendant started vandalizing the rented premises and raised new construction without permission of the plaintiff and cause substantial damage as well as material alteration to the rented property. The plaintiff served a legal notice dated 14.10.2005 upon defendant to which defendant replied vide notice dated 09.11.2005, denying the plaintiff as owner/landlord as well as asserted his possession as owner over the suit property. The plaintiff served another legal notice dated 19.11.2005 under section 106 of the Transfer of Property Act terminating the tenancy of defendant and thereafter filed present civil suit for ejectment/possession, due arrears of rent and mesne profits. Initially, the plaintiff mentioned the provision of Section 13 of the Rajasthan (Control Rent and Eviction) Act, 1950 in the subject matter of his civil suit for ejectment, but later on with permission of the court, amended his plaint mentioning the provisions of Section 109 of the Transfer of Property Act, 1882. 5. The defendant submitted his written statement and categorically claimed that defendant is residing in suit property since time of his father, as owner of suit property, and neither his father nor he ever paid any rent to plaintiff-purchaser or to the seller. The defendant categorically denied the plaintiff to be his landlord and also denied the plaintiff’s ownership over the suit property. The defendant claimed that he is using and occupying the suit property having absolute ownership of same, the plaintiff has no right to seek ejectment of the defendant. The plaintiff has no right to claim rent from the defendant and his civil suit for rent and ejectment is without any basis and is liable to be dismissed with cost. 6. Learned trial court having considered the rival pleadings of both the parties, fraud issue to adjudicate the dispute of landlord and tenant, as well as dispute of the ownership between the plaintiff and defendant with regard to the suit property. 6. Learned trial court having considered the rival pleadings of both the parties, fraud issue to adjudicate the dispute of landlord and tenant, as well as dispute of the ownership between the plaintiff and defendant with regard to the suit property. The issue No. 1 was framed to the fact as to whether defendant is tenant of plaintiff in the suit property at the rate of Rs.400/- per month. The specific issue No.4 pertaining to ownership dispute was also framed in the manner that the defendant has denied the title of plaintiff by asserting the ownership of suit premise in himself and whether defendant is owner of the suit property. Issue No. 5 was framed as to whether the plaintiff has terminated tenancy of defendant vide registered notice dated 19.11.2005 under Section 106 of Transfer of Property Act. Looking to the pleadings of plaintiff and written statement, other issues in relation to default, substantial damage and material alteration and bona fide necessity etc. were also framed. 7. Here it is relevant to note that although the nature of present suit was for ejectment and recovery of rent arrears and mesne profits, purportedly invoking Provisions of Section 106 of Transfer of Property Act however, the plaintiff has averred in the plaint that he has acquired ownership of the suit property by virtue of registered sale deed dated 30.01.2002 and the defendant has categorically denied/disputed the ownership of plaintiff, as well as specifically asserted his own ownership over the suit premises. Thus, in backdrop of such rival pleadings of ownership, the trial court formed issue No. 4, including the issue of denial of title as well as ownership of defendant, and while deciding the issue No.4 has also examined ownership rights of parties over the suit property in the present suit. It is important to take note of the fact that both parties adduced their oral and documentary evidence and never raised any objection that the inquiry of title/ownership of the suit property cannot be made in the present suit for ejectment. Thus, the factual position is that both the parties consciously and diligently, participated in the trial of suit and contested the suit on grounds of ejectment as well as on the dispute of rival ownership of the suit property between the parties, having understood the true nature of the present suit. 8. Thus, the factual position is that both the parties consciously and diligently, participated in the trial of suit and contested the suit on grounds of ejectment as well as on the dispute of rival ownership of the suit property between the parties, having understood the true nature of the present suit. 8. The plaintiff produced himself as PW/1 and produced one witness Kishore Kumar as PW/2. The registered sale deed of plaintiff dated 30.01.2002 was tendered in evidence as Exhibit-01, both legal notices issued by plaintiff dated 14.10.2005 and 19.11.2005 were tendered in evidence as Exhibit-2 & 5, and a certificate issued by Nagarpalika, Pushkar was also produced as Exhibit-10 to show that house in question is recorded in the name of plaintiff, on the bases of sale-deed, in Nagarpalika, Pushkar, Ajmer. 9. In rebuttal, defendant examined himself as DW/1 and his one witness Kanhaiya Kumar as DW/2. No documentary evidence was produced by him. 10. The trial court after hearing final arguments and considering the evidence on record decided issue No.1 holding that the defendant is tenant in the suit premises at the rate of Rs.400/-per month rent and his tenancy is oral. While deciding issue No.4, the trial court has considered the registered sale deed (Exhibit-1), on the basis of which plaintiff claimed his ownership over suit premises. The trial court found that although defendant denied the ownership of plaintiff and claimed himself to be the owner, but has not produced any counter document to the sale deed of plaintiff, in order to show his rival ownership. The assertion of defendant that he does have possession over the suit premises as owner was not found proved. While deciding issue No.5, the trial court has considered that the plaintiff issued legal notice dated 14.10.2005 (Exhibit-2) to the defendant, which was replied by him. Then plaintiff issued another notice dated 19.11.2005 (Exhibit-5), through registered post to defendant and terminated the tenancy of defendant invoking Section 106 of Transfer of Property Act. The receipt of Registry and acknowledgment receipt were also exhibited as Exhibit 6 & 7. The trial court concluded that registered notice dated 19.11.2005 was received by the defendant on 23.11.2005, but defendant has not replied the said notice. The tenancy of defendant was held to be terminated and accordingly the issue No.5 was determined in favour of plaintiff. The receipt of Registry and acknowledgment receipt were also exhibited as Exhibit 6 & 7. The trial court concluded that registered notice dated 19.11.2005 was received by the defendant on 23.11.2005, but defendant has not replied the said notice. The tenancy of defendant was held to be terminated and accordingly the issue No.5 was determined in favour of plaintiff. Though it was not required in the ejectment suit under Section 106 of Transfer of Property Act, the trial court considered other issues of default, substantial damage, material alteration and bona fide necessity on merits and decided all issues in favour of plaintiff. Finally, the trial court decreed the suit vide judgment dated 03.06.2016 in favour of plaintiff. 11. The defendant assailed the judgment and decreed dated 03.06.2016, by way of filing first appeal. The first appellate court re-appreciated entire evidence of both parties and duly considering findings of the trial court, thereafter affirmed the decree for ejectment, arrears of rents, and mesne profits and dismissed the first appeal vide judgment dated 11.05.2018. 12. In the second appeal, the defendant raised an argument that if the defendant could not prove his ownership over the suit property, he can be treated at the most as trespasser but cannot be treated as tenant in absence of any evidence on record to this effect. The same contention was raised in first appeal also. The first appellate court turned down such contention of the defendant. Counsel for the defendant has argued that in the present case, plaintiff has not produced sufficient evidence to prove the relationship of landlord and tenant between the parties, therefore, the two courts below have committed illegality, perversity and jurisdictional error in holding the defendant as tenant of plaintiff in suit premises. Counsel further argued that if the possession of defendant over suit premises is treated as trespasser, as he could not show and prove his ownership over the suit property in such eventuality, the plaintiff should bring a fresh civil suit for possession on the basis of his title. The plaintiff has brought the present suit for ejectment on the ground of relationship of landlord and tenant between the parties, which is not proved. It has been argued that two courts below have committed illegality and jurisdictional error in passing the decree for ejectment/arrears of rent and mesne profits. The plaintiff has brought the present suit for ejectment on the ground of relationship of landlord and tenant between the parties, which is not proved. It has been argued that two courts below have committed illegality and jurisdictional error in passing the decree for ejectment/arrears of rent and mesne profits. Therefore, the impugned judgment and decree of courts below be quashed and set aside. Learned counsel for the appellant relied upon the judgments passed by Hon’ble Supreme Court in cases of Biswanath Agarwalla Vs. Sabitri Bera And Ors. Reported in [ (2009) 15 SCC 693 ], Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRS. and Ors. Reported in [ (2008) 4 SCC 594 ] and Thulasidhara and Another Vs. Narayanappa and Ors. Reported in [ (2019) 6 SCC 409 ]. 13. Per contra, learned counsel for respondent has argued that firstly as per oral and other documentary evidence of parties, stands established that defendant is tenant in the suit property. Both courts below on appreciation of evidence on record have recorded a fact finding that defendant is a tenant. In addition the plaintiff has also produced his registered sale deed to prove his ownership of the rented premise of defendant and in counter the defendant miserably failed to prove his ownership over the suit premises as claimed by him in his written statement. Counsel for plaintiff further submits that in facts and circumstances of the present case, the decree for ejectment passed against the defendant does not suffer from any illegality, infirmity or jurisdictional error. The findings of two courts below are neither perverse nor suffer from non-consideration of any evidence/misreadings/non-reading of evidence and as such the second appeal is bereft of merits having no substantial question of law and accordingly the same deserves to be dismissed. 14. Heard learned counsel for both the parties and perused the impugned judgments and material available on record. Learned counsel for appellant has also produced written submissions. 15. Before dealing with the argument of the counsel for the appellant-defendant that if the defendant could not prove his ownership over the suit property, he may be treated, at the most trespasser and in that eventuality, the plaintiff should bring a fresh civil suit for possession against the defendant. Learned counsel for appellant has also produced written submissions. 15. Before dealing with the argument of the counsel for the appellant-defendant that if the defendant could not prove his ownership over the suit property, he may be treated, at the most trespasser and in that eventuality, the plaintiff should bring a fresh civil suit for possession against the defendant. This court deems it just and proper to examine as to whether two courts below have committed any perversity in deciding the relationship of landlord and tenant between the parties and as to whether the decree for ejection passed against the defendant treating him as a tenant suffers from any illegality and jurisdictional error. 16. It appears by perusal of plaint that plaintiff has referred in paragraph No.2 of plaint that he purchased the house including the rented portion in property through registered sale deed dated 30.01.2002. The plaintiff has produced his registered sale deed in evidence as Exhibit-1. As per contains of sale deed, house No. 9/20 at Gautam Ashram Road, Pushkar comprises doubled storied building having an area of 296.75 Sq. yards. It is mentioned in the sale deed that the seller got this property under the family settlement dated 15.09.1970 and acquired absolute ownership and possession, which was registered in the record of Nagarpalika, Pushkar in the name of seller. It is mentioned in the sale deed that at the ground floor in two room and kitchen, Ramsingh (appellant herein) and in other portion of one room and kitchen, one Sh. Mangilal and in another one room and kitchen, one Smt. Kamla Bai are tenants in the house. The plaintiff was also one of the tenants in the house in the garage at ground floor and whole portion of first floor. The plaintiff purchased the house partly occupied by the tenants against the sale consideration of Rs.2,60,000/-. Thus in the sale deed there is a mention about the status of defendant being a tenant in the suit property. PW/1 has stated on oath that after purchasing house, the defendant became his tenant of his rented portion at the rate of Rs.400/-per month and tenancy is oral. He stated that the seller Purshotam Das was the owner of this house which came in his share in the family partition. PW/1 has stated on oath that after purchasing house, the defendant became his tenant of his rented portion at the rate of Rs.400/-per month and tenancy is oral. He stated that the seller Purshotam Das was the owner of this house which came in his share in the family partition. PW/1 also stated that defendant has already purchased two other properties in the name of his wife Smt. Ratna Kanwar and the certified copies of both sale deeds with regard to the two other properties purchased in the name of defendant’s wife were placed on record as Exhibit-8 & 9. PW/2 has supported the statements of plaintiff. In the evidence it has also come on record that seller Purshotam Das has passed away. 17. In counter evidence, defendant (DW/1) has stated on affidavit that he and his family are residing in the suit property as owner. D/W-1 clearly admits in his affidavit-evidence except the portion of two rooms and kitchen at ground floor over which he is in possession, the remaining portion of entire house at ground floor as well as of first floor belongs to plaintiff. DW/1 admits in his cross-examination that one Smt. Kamla who happens to another tenant in the house, is his sister. In the sale deed, one room and one kitchen in the house are stated to be in the tenancy of Kamla and it has come on record that Kamla has vacated her rented portion and handed over possession to the plaintiff. It has also come on record that one another tenant Mangilal, whose name is also mentioned in the sale deed, has also handed over possession of his room and kitchen to the plaintiff. DW/1 admits that he does not have any title documents to show his ownership over the suit property. DW/2 only states about possession of defendant over suit property and does not know anything about the ownership of suit property. 18. The trial court, after appreciating the totality of evidence of both the parties, oral and documentary, recorded findings of fact that in the suit property purchased by plaintiff through registered sale deed dated 30.01.2002, the defendant is his tenant and accordingly decided issue No. 01 in favour of plaintiff. The tenancy of defendant was found to be terminated vide notice dated 19.11.2005 (Exhibit-05), under Section 106 of Transfer of Property Act, issued by the plaintiff. The tenancy of defendant was found to be terminated vide notice dated 19.11.2005 (Exhibit-05), under Section 106 of Transfer of Property Act, issued by the plaintiff. Thus the trial court held issue No. 5 also in favour of plaintiff. Since other issues of default, material alteration and substantial damages and bona fide necessity were also appreciated on merits as per evidence on record and were decided in favour of plaintiff. Finally, decree for ejectment along with decree for recovery of arrears of rent and mesne profits at the rate of Rs.400/-per month from the date of suit to till delivery of the possession has been passed by the trial court in favour of plaintiff. 19. The findings in relation to tenancy of the defendant in the suit premises have also been affirmed by the first appellate court. Thus both the courts of fact findings have concluded, on appreciation of evidence and pleadings of parties that defendant is tenant of the plaintiff. Such fact findings are neither perverse nor suffer from any infirmity. It is not permissible within scope of Section 100 to re-appreciate the evidence on record and to draw a different conclusion of fact findings as recorded by the two courts below. Unless and until any infirmity, perversity, misreading or non-reading of evidence is pointed out, the fact findings recorded by courts are not required to be interfered with, in the second appeal. Thus this court is not inclined to interfere with the fact findings of two courts below in this regard and same are hereby affirmed. 20. Now coming to the another contention of counsel for appellant, once this Court has affirmed findings of the two courts below in relation to passing of decree for ejectment against the defendant it is not required to consider the issue of ownership or trespasser of defendant, however this court deems it just and proper to deal with the argument of counsel for appellant-defendant that plaintiff should bring a fresh civil suit for possession against the defendant as he is a trespasser and not tenant in the suit property. 21. It may be noticed here that the plaintiff has produced his registered sale deed to show his ownership over the entire house including suit property. 21. It may be noticed here that the plaintiff has produced his registered sale deed to show his ownership over the entire house including suit property. The defendant who is claiming his own ownership over the suit property adverse to the ownership of plaintiff has have chosen to challenge the sale deed of plaintiff even to the extent of rented portion, on the other hand, in the affidavit of defendant produced any evidence in chief he admits that the entire other portion of the house at ground floor and first floor except the portion of two rooms and kitchen at ground floor which are in possession of defendant, belongs to plaintiff. Thus, at one hand the defendant did not challenge the sale deed of plaintiff, on the other hand remained miserably failed to establish his ownership over rented portion of house. 22. It was a clear stand of the defendant before the trial court that he is absolute owner of the suit property and is not a tenant. On failure to prove his ownership by any iota of evidence, the defendant tried to take another stand that he can be treated as trespasser at the most. No such change of stand is permissible at the appellate stage, once same is contrary to the stand taken by the defendant in his written statement. The first appellate court also decline to treat the status of defendant as trespasser and found his possession as tenant. It may be noted that though the present suit was filed for ejectment, arrears of rent and mesne profits, nevertheless the plaintiff also pleaded his ownership on the basis of sale deed. In counter, defendant also pleaded his ownership adverse to the plaintiff. It is true that as a general rule where a suit is filed on the basis of tenancy and relationship of landlord and tenant, that such suit should be decided on the basis of tenancy alone and it should not be converted into a title suit. However, in the present case, the defendant himself set up a case of ownership in his favour adverse to the plaintiff’s ownership and an issue was framed in this regard to which the defendant never raised any objection. However, in the present case, the defendant himself set up a case of ownership in his favour adverse to the plaintiff’s ownership and an issue was framed in this regard to which the defendant never raised any objection. Rather on the issue of denying of title and ownership, both parties led their evidence having full knowledge that an issue of ownership of suit property is also being examined in the present ejection suit and with such understanding both the parties have and proceeded with the trial of the present suit. When the issue of ownership has been decided against the tenant, now the defendant cannot be permitted to advance a plea before the appellate court that no decree for possession can be granted in the suit for ejectment and the plaintiff should bring a fresh suit for possession to dispossess the defendant being trespasser. Such plea of defendant at the appellate stage cannot be treated as bona fide and fair. The conduct of defendant does not allow him to take such plea at the appellate stage. Once the defendant has taken a clear stand in his written statement and evidence before the trial court that he is absolute owner of the suit property, and when he remained fail to prove his ownership, now he cannot be permitted to change his stand, just for his own advantage to aver that he may be treated as trespasser. Such change would not only nullfies the decree for eviction and entire proceedings of both the courts below but also cause injustice to the plaintiff who has already produced his title documents in the present suit. If, such plea of the defendant is allowed to prevail, same would lead to manifest injustice and would invite initiation of another unwarranted litigation in second round. In observing the aforesaid preposition of law this Court gets strength from the judgment of full bench, passed by the High Court of Rajasthan, in case of Pushpa Sharma Vs. Gopal Lal Rawat, over Civil Second Appeal No.101/1978 decided on 04.04.1986 reported in [AIR 1986 Rajasthan 187]. 23. In observing the aforesaid preposition of law this Court gets strength from the judgment of full bench, passed by the High Court of Rajasthan, in case of Pushpa Sharma Vs. Gopal Lal Rawat, over Civil Second Appeal No.101/1978 decided on 04.04.1986 reported in [AIR 1986 Rajasthan 187]. 23. As far as, judgment of Biswanath Agarwalla (supra) relied upon by the counsel for appellant is concerned, there is no dispute about the ratio of law propounded therein but it was a case where the issue for consideration before the Supreme Court was as to whether in a simple suit for eviction, a decree against the defendant on the ground of trespasser can be passed that too in absence of framing any issue in this regard? Whereas in the present case, firstly, the status of defendant has been found to be as tenant. Secondly, although defendant did not admit himself to be tenant but alleges to be absolute owner, claiming the right of ownership against the plaintiff, an issue relating to the ownership of defendant over the suit property, qua the plaintiff was framed by the trial court. The plaintiff and defendant have adduced their full evidence with regard to the ownership of suit property and defendant remained miserably fail to prove his ownership. So it is not that the courts below have not examined the issue of ownership of parties as well in the present suit. Thus the ratio of law as propounded in the case of Biswanath Agarwalla (supra) do not render any help to the defendant-appellant in the present appeal. Similarly, the judgment in case of Anathula Sudhakar (supra) which also propounds the same principle of law is of no help to appellant. In case of Thulasidhara (supra) the dispute was not between the landlord and tenant. 24. In the present case, both courts of fact findings have concluded on appreciation of evidence that status of defendant in the suit property is as tenant and it has been found that defendant, although took a defence that he is absolute owner of the suit property and is not the tenant, however could not produce any evidence to show his ownership rights. In view of such finding of fact, the defendant at the appellate stage cannot be allowed to take a stand that he is a trespasser in the suit property and plaintiff should bring a civil suit for possession, instead of civil suit for ejectment. This court has not found any infirmity/ illegality/ perversity in the fact findings recorded by two courts below. No other arguments except dealt with hereinabove have been raised by either of the parties. 25. The upshot of discussion made hereinabove is that the present second appeal does not give rise to any question of law much less substantial questions of law. In absence of involvement of any substantial question of law, the second appeal cannot be entertained. As a result, this second appeal deserves to be dismissed and the same is hereby dismissed. However, considering the facts that appellant is residing in rented portion of two rooms and kitchen since long as tenant, he is allowed to retain possession up to 31.12.2022, subject to condition of payment of entire due arrears of rent and mesne profits @ Rs.400/-per month as directed by the trial court, within in a period of two months & continue to pay regularly every month from March 2022 to onwards. 27. Stay application as well as any other pending application, if any, are also disposed of. 28. There is no order as to costs.