R. S. A. No. 1609 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 1609 of 2011 Date of Decision : April 05, 2011 Satwant Singh .... Appellant Vs. Gurdip Singh .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Pavit Singh Mattewal, Advocate for the appellant. Mr. Vipin Mahajan, Advocate for the caveator-respondent. * * * L. N. MITTAL, J. (Oral) : Defendant Satwant Singh having failed in both the courts below is in second appeal. Respondent-plaintiff Gurdip Singh filed suit against defendant- appellant for possession of the disputed shop and for recovery of Rs.3,600/- as arrears of rent since 01.05.2003 till 31.08.2004 alleging that the defendant was inducted as tenant in the disputed shop by plaintiff's father Gurbax Singh, who was owner of the shop. Rate of rent was Rs.225/- per R. S. A. No. 1609 of 2011 2 month. Plaintiff purchased the shop from his father and became its owner and started receiving rent from the defendant. However, since May 2003, defendant stopped paying rent to the plaintiff. Defendant's tenancy was terminated by serving notice, but he failed to do the needful. The defendant broadly denied all the averments of the plaintiff. It was denied that plaintiff's father was owner of the shop or that the plaintiff is owner thereof or that defendant is tenant in the shop. The defendant alleged that disputed shop is ancestral property of the defendant and he is owner in possession thereof. The disputed shop along with other land and house was allotted to defendant's father after partition of the country. After death of defendant's father, defendant and his three brothers became owners of the disputed shop. The defendant even reconstructed the disputed shop, which was in dilapidated condition. The defendant also alleged that electricity connection no. 709 is running in the disputed shop in the name of defendant, in addition to the telephone connection. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Gurdaspur, vide judgment and decree dated 07.08.2009, decreed the plaintiff's suit for possession of the disputed shop, but did not grant decree for recovery of rent amount holding that relationship of landlord and tenant between the parties is not proved. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Fast Track Court, R. S. A. No. 1609 of 2011 3 Gurdaspur, vide judgment and decree dated 23.11.2010. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Defendant's version that the disputed shop is his ancestral property having been allotted to his father remains completely unsubstantiated. No document regarding allotment of the shop to defendant's father has been produced on record. On the other hand, defendant has stated that only one shop had been allotted to his father and that defendant himself had sold one shop. It would clearly depict that the disputed shop was not allotted to defendant's father. Now the question arises whether the plaintiff has proved his ownership over the disputed shop. The plaintiff produced sale deed Ex.P-1 dated 10.09.1982, whereby plaintiff's father purchased the disputed shop from Budha Singh. Plaintiff has also produced sale deed Ex.PW-4/A dated 17.08.2000, whereby the plaintiff purchased the disputed shop and other shops from his father. This documentary evidence is sufficient to prove ownership of the plaintiff over the disputed shop. Sale deed of the year 1982 would not have been prepared to institute the instant suit in the year 2004. There was also electricity connection in the disputed shop, as proved by the concerned official Varinder Kumar (PW-6). The said R. S. A. No. 1609 of 2011 4 connection was in the name of plaintiff, who got the same disconnected in the year 2006. The defendant admitted that the said connection was got disconnected by the plaintiff. This circumstance further adds to the authenticity of the plaintiff's version. Learned counsel for the defendant-appellant contended that electricity connection no.709 existed in the disputed shop in the name of the defendant since the year 1980 i.e. even prior to purchasing of the disputed shop by plaintiff's father, and therefore, it cannot be said that defendant was inducted as tenant by the plaintiff's father. The contention cannot be accepted because the defendant has not proved that electricity connection no.709 standing in the name of defendant as proved by DW-3 Nitin Kumar stood installed in the disputed shop. On the contrary, learned counsel for plaintiff-respondent contended that the said connection was installed in the shop, which has been sold by the defendant, as recited in the sale deed thereof, although the sale deed has not been produced in the evidence. Learned counsel for the appellant also contended that vide sale deed Ex.P-1, plaintiff's father purchased shop situated in Mohalla Afghana, whereas vide sale deed Ex.PW-4/A, the plaintiff purchased shops situated in Mohalla Pathana, and therefore, it cannot be said that plaintiff is owner of the disputed shop. The contention cannot be accepted because there is no evidence on record to depict that Mohalla Pathana and Mohalla Afghana are two different Mohallas and not one and the same Mohalla. On the other R. S. A. No. 1609 of 2011 5 hand, boundaries mentioned in the two sale deeds depict that both the sale deeds pertain to the disputed shop, although the latter sale deed also pertain to some other shops as well. There is concurrent finding by both the courts below holding the plaintiff to be owner of the disputed shop. The said finding is based on analysis of evidence led by the parties. It is supported by reasons recorded by the courts below. The said finding is thus not shown to be perverse or illegal nor it is based on misappreciation or misreading of evidence. Consequently, the said finding does not call for interference in second appeal, even if for the sake of argument, it be assumed that a different view could also be possible on re-appreciation of evidence. Evidence is not to be re-appreciated in second appeal, unless there has been misreading or misappreciation of evidence by the courts below or the finding of the courts below is illegal or perverse. However, it is not so in the instant case. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal lacks any merit and is accordingly dismissed in limine. As prayed for by counsel for the appellant, the appellant is granted six months' time to vacate the disputed shop and to hand over its peaceful possession to plaintiff-respondent, subject to the conditions that the appellant shall, within fifteen days from today, furnish undertaking by way of affidavit in the trial court undertaking to vacate the disputed shop R. S. A. No. 1609 of 2011 6 and to hand over its peaceful possession to the plaintiff within six months and also pay in advance to the plaintiff directly or by deposit in the trial court lump sum amount of Rs.1,500/- as amount for use and occupation for the said period of six months. April 05, 2011 ( L. N. MITTAL ) monika JUDGE