RSA No.3510 of 2010 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3510 of 2010 (O & M) Date of Decision: 30.08.2010. Pardeep Parsad .....Appellant Versus Shiela Emile ……Respondent Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Anupam Gupta, Advocate for the appellant. L. N. MITTAL, J (ORAL) Defendant-Pardeep Parsad is in second appeal, having been unsuccessful in both the Courts below. Suit was filed by respondent-plaintiff Sheela Emile alleging that defendant-appellant is tenant on first floor of house No.144, Sector- 9-B, Chandigarh under the plaintiff-respondent since 01.04.2005. In April, 2007, the plaintiff allowed the defendant- appellant to keep some household articles in the disputed store room located on the ground floor of the house on the assurance of the defendant that he shall remove the same within three months. However, in July, 2007, when the plaintiff asked the defendant to remove his articles from the store room, the defendant and his wife started quarrelling with the plaintiff. The defendant even filed injunction suit against the plaintiff regarding the said store room. Since the defendant failed to vacate the said store room despite demand by the plaintiff and since defendant was only licensee in the RSA No.3510 of 2010 (O & M) -2- store room, the plaintiff filed suit for mandatory injunction directing the defendant to vacate the store room and hand-over its vacant possession to the plaintiff. Damages for unauthorized use and occupation of the store room were also claimed. Defendant inter alia pleaded that the plaintiff let out 3 bed room with attached toilets and bathrooms along with verandha etc. on the first floor and a servant room (the disputed room) on the ground floor to the defendant. The defendant alleged that from the very inception of tenancy, defendant's servant is staying in the disputed room which is part of tenancy premises being 4th room as mentioned in the lease deed. Learned Civil Judge (Junior Division), Chandigarh vide judgment and decree dated 22.08.2009 decreed the plaintiff's suit for mandatory injunction and for recovery of damages at the rate of Rs.500/- per month since 19.10.2007 till the date of order. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Chandigarh vide judgment and decree dated 17.05.2010. Feeling aggrieved, defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Admittedly tenancy in favour of the defendant-appellant was created through written document which specifically specifies the tenancy premises to be on the first floor only. There is no reference to any accommodation on the ground floor being part of the tenancy premises. Admittedly the disputed room is situated on ground floor of the house. Consequently, by no stretch of RSA No.3510 of 2010 (O & M) -3- imagination, the disputed room can be said to be part of tenancy premises of the defendant. Therefore, the suit has been rightly decreed by the Courts below. Learned counsel for the appellant was at pains to emphatically contend that four bed rooms have been let out to the defendant-appellant and there are only three bed rooms on the first floor and, therefore, the disputed room on the ground floor was included in the tenancy premises. The contention is completely devoid of substance. In addition to the three bed rooms claimed by the defendant-appellant on the first floor, there is another room which had been given the nomenclature of 'Pooja room' by the defendant- appellant. The said room may be the fourth room mentioned in the lease deed of the defendant-appellant. Learned counsel for the appellant contended that said Pooja room cannot be the fourth bed room as it has no attached toilet and bathroom whereas all the three other bed rooms have attached toilets and bathrooms. It is also contended that size of the Pooja room on first floor is also small and cannot be said to be bed room. However, if this contention is accepted, then the disputed store room, which is also of smaller size, also cannot be termed as fourth bed room of the defendant- appellant. Consequently, the whole contention raised by counsel for the defendant-appellant is misconceived and unacceptable. By no stretch of imagination, the disputed store room or servant room can be said to be part of the tenancy premises of the defendant- appellant. In addition to the aforesaid, it has also come on behalf of defendant-appellant himself that all servants of the house were RSA No.3510 of 2010 (O & M) -4- putting up in the disputed room. In other words, the disputed room was not exclusively occupied by the defendant's servant only. For this added reason as well, it is manifest that the disputed room is not part of tenancy premises of the defendant-appellant. There is concurrent finding by both the Courts below. The said finding is based on proper appreciation of evidence and cannot be said to be perverse or illegal in any manner so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Lower appellate Court is the final Court of fact. The case is based on pure finding of fact as to whether disputed room is part of the tenancy premises of the defendant- appellant or whether the same was occupied by the defendant- appellant as licensee. Consequently, the said finding of fact cannot be assailed in second appeal. In view of the aforesaid, I find no merit in the instant second appeal, which is accordingly dismissed in limine. 30.08.2010 ( L. N. MITTAL ) A. Kaundal JUDGE