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33. The defendants have admitted regarding handing over of cheques by the plaintiff but their contention is only to the point that the cheques in questions were not towards the rent but were towards structural changes to be carried out by the defendants as per requirement of the plaintiff.

34. The defendants have admitted regarding receiving of legal notice sent by the plaintiff in February,2017, which is Ex P1.

35. PW-2 has deposed in his affidavit that the defendants were approached through Sh. Kataria for taking property in question on rent and monthly rent was decided to the tune of Rs. 6,30,999/- and the tenancy was to be commenced from 01.10.2016.

56. The main issue in dispute in the present case is that the amount of Rs. 6,30,999/- received by the defendants was towards advance payment of rent or it was given for making structural changes in the property in question as per requirement and use of the plaintiff and cost of making structural changes had to be borne by the plaintiff and the defendants has spent the amount, given by plaintiff for making structural changes of the property in question.

57. In the written statement, defendants alleged that despite paying the advance rent to the defendants, the plaintiff got the possession of the premises for alternation as per plaintiff's requirement and specification, however, during cross examination, DW-1 deposed that "since I had not given the possession of the premises, the question of agreeing to the rent never arose". It is an elementary rule that a party litigant cannot be permitted to assume inconsistent position in court, to play fast and loose, to blow hot and cold, to approbate and reprobate to detriment of his opponent. From the above-said testimony of DW-1 and PW1, it is proved that the defendants have not given the possession of the property in question to the plaintiff.

58. The DW-1 deposed in his affidavit that " the deponent has done the said alteration through Raj Mistri and spent almost Rs. 5 lac on the said alteration". The defendants have not placed any documents to substantiate their plea of spending amount of Rs. 5 lac on the alteration. Even, defendants have neither attached any photograph of the premises in question, undergoing repair/construction nor examined the alleged Raj Mistri through whom they alleged to have made alterations. Even the address of that Mistri has also not been mentioned by the defendants. The defendants have not attached any invoice regarding purchasing material for making structural changes in the premises in question. The defendants have not given the details as to how the amount was spent for making alterations in the premises and also have not given details of the structural changes made by them. In the absence of any evidence on behalf of defendants regarding spending amount of Rs. 5 lac on the alteration, their plea of spending amount of Rs. 5 lac cannot be believed. The defendants have failed to prove the fact of spending Rs. 5 lac, on making structural change in the premises in question.

6,30,999/- as advance monthly rent, rather received it for making structural changes in the premises and said expenses had to be borne by the plaintiff, then the defendants would have replied the said legal notice mentioning their contentions.

61. On the balance of probabilities, the plaintiff has proved that he has paid an amount of Rs. 6,30,999/- to the defendants as advance monthly rent and not for making structural changes in the premises in question. The defendants have not able to prove the fact that the amount of Rs. 6,30,999/- was given by the plaintiff not as advance monthly rent but for making structural changes in the property in question and the expenses of said alteration had to be borne by the plaintiff.