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Even for an argument sake if we ignore documents Ex.PW1/13 to 15 for the time being, I find that petitioner's case is still established for section 14 (1)(a) of DRC Act because first of all again if we examine the question of landlord tenant relationship, though this aspect of the case has been disputed by ld. Counsel for the respondent in the arguments when it is submitted that in fact respondent had been occupying the shop not as a tenant as the amount of pagdi was in fact in a local parlance which normally people use in that locality, was paid to petitioner only to take the shop as a owner and Rs. 50/­ was not being paid as rent but was being paid only as a maintenance charges. However, WS filed on behalf of the respondent does not indicate all these facts as submitted by the counsel for respondent. It would be appropriate at this stage to discuss the evidence lead on behalf of respondent. As stated above RW1 is Sh. JC Behl who has testified in his affidavit of examination in chief that he was known to deceased respondent as he was very close friend of him and he also know the petitioner since 1988. RW1 further says that petitioner was not in a position to sell his shops situated on the first floor and asked him to bring a potential buyer for the same. RW1 stated to have got respondent introduced to petitioner and thereafter petitioner persuaded him (RW1) to ask the respondent to take the shop in question from petitioner. RW1 further says that respondent had made the payment of Rs. 50000/­ per shop as pagdi amount of shop in question in his presence, RW1 says that respondent has been making the payment of Rs. 50 as maintenance charges as petitioner has assured that he will maintain the area in proper condition. As such Rs. 50000/­were being paid in the form of rent. RW1 says that in the locality where shop in question is situated there are various other shops which have been let out by petitioner on "pagdi" basis. Whenever any such shop/property is sold by charging 10 % of the transaction price of specific property. RW1 further testifies that petitioner has assured respondent that now respondent has become the owner of shop in question and he will neither claim back the shop nor will get it vacated from respondent.
Let us now examine the evidence of RW2 Sh. Sanjay Jain who also in his affidavit of examination in chief has testified similar facts as deposed by RW1 JC Behl. Even in the cross examination of RW2 witness has failed to testify the alleged payment of Rs. 50000/­ as a pagdi amount of the purchase of the shop. Evidence of RW2 is also beyond pleadings as stated above. Similarly, with regard to payment of Rs. 50 per month as maintenance charges as deposed by RW2, he admits in cross examination that he has no proof regarding the payment of Rs. 50 as maintenance charges. RW2 in cross examination further deposed that shop was taken on pagdi in year 1989­90. He further says that he is also not aware if any written agreement was executed at that time or not. Thus, it is clear from the evidence of RW2 that he has no first hand information of facts testified by him. In such situation, when he himself was not present nor has any first hand information of the fact, his major portion of evidence is otherwise also beyond pleading, I find that evidence of RW2 is also failed to establish any fact to counter the claim of petitioner.
Since, there has been a great amount of emphasis given by ld. Counsel for respondent on the question of pagdi amount of Rs. 50000/­ by making an argument that such amount was given for creating a right akin to ownership right in respect of shop in question and therefore, eviction petition does not lie. Though, as already pointed out above these submissions and evidence are not part of pleadings and therefore, cannot be considered in law, still to my understanding, expression "pagdi"

as used in the evidence of RW 1 and 2 and submission of counsel for respondent, do no indicate any legal right created in respect of shop in question. In a common parlance expression pagdi is being used as an amount of premium given at the time of creation of tenancy. If according to respondent expression pagdi is being used for conveying creation of any right in the shop, it was for respondent to establish this. Respondent has failed to do so. Therefore, I do not find that respondent was occupying the shop in question in his ownership rights rather the WS filed on behalf of respondent clearly show that landlord tenant relationship was never disputed.