RSA No.3635 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3635 of 2009 Date of Decision: 29.01.2010. Dwarka Dass .……Appellant Versus Smt. Lillo Devi ……Respondent Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Aman Bahri, Advocate for the appellant. L. N. MITTAL, J (ORAL) Defendant Dwarka Dass has filed the instant second appeal, having remained unsuccessful in both the Courts below. Lillo Devi-respondent filed suit for possession of the disputed shop by ejectment of defendant-appellant therefrom and also for recovery of rent at the rate of Rs.800/- per month with effect from 01.08.1997 till date. The plaintiff alleged that she inducted the defendant as tenant in the disputed shop in February, 1992 on rent at the rate of Rs.800/- per month. The defendant failed to pay rent since 01.08.1997 onwards. Tenancy of the defendant was terminated by serving notice dated 09.02.1999, but the defendant failed to vacate the disputed shop. Defendant alleged that land underneath the shop belongs to Bachan Singh and other co-sharers, who are necessary party to the suit. It was also pleaded that defendant is using the property with the consent of Bachan Singh and other co-sharers, who are owners of the land underneath the disputed shop. The plaintiff is owner of RSA No.3635 of 2009 -2- the adjoining property. The plaintiff in the replication pleaded that she had purchased the land underneath the disputed shop comprised of khasra No.951 measuring 5 marlas from Bachan Singh and his brother vide registered sale deed dated 21.01.1974 and the plaintiff thereafter constructed shop on the land and rented it out and defendant is 4th tenant in the shop. Learned Civil Judge (Junior Division), Pathankot vide judgment and decree dated 11.01.2005 decreed the suit of plaintiff for possession of the disputed shop by ejectment of defendant therefrom and also for recovery of rent at the rate of Rs.800/- per month with effect from 01.08.1997 till handing over vacant possession of the shop to the plaintiff, along with interest at the rate of 12% per annum. First appeal preferred by the defendant has been dismissed by learned Additional District Judge (Ad hoc), Fast Track Court, Gurdaspur vide judgment and decree dated 08.01.2009. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the defendant-appellant vehemently contended that the disputed shop is situated on khasra No.952 and defendant has purchased 2.80 marlas i.e 2/5th share of 7 marlas of khasra No.952 from Rattan Singh and Mahinder Singh vide sale deed dated 29.03.2007 (Annexure A-1) and , therefore, the defendant has become co-sharer in the land underneath the disputed shop and the defendant cannot, therefore, be ejected therefrom. RSA No.3635 of 2009 -3- Along with appeal appellant has also moved CM No.11175-C of 2009 for additional evidence under Order 41 Rule 27 of the Code of Civil Procedure for placing on record sale deed dated 29.03.2007 (Annexure A-1) and copy of jamabandi (Annexure A-2). The aforesaid contention cannot be accepted. Learned counsel for the appellant has not been able to refer from any pleading in the written statement that it was even pleaded by the defendant that the disputed shop is located in Khasra No.952. There is also no evidence to this effect. Consequently, the aforesaid contention cannot be accepted and application for additional evidence also cannot be allowed. This sale deed has been procured after decision by the trial Court and during pendency of first appeal before the lower appellate Court. The application for additional evidence lacks any merit and is accordingly dismissed. The plaintiff in the replication specifically pleaded that she had purchased land of khasra No.951 and constructed shop thereon. Inspite thereof, the defendant never pleaded that the shop is located in khasra No.952 and not in khasra No.951 nor any evidence has been led to depict that the shop is located in khasra No.952. In addition to the aforesaid, the defendant in the written statement pleaded that land underneath the shop belongs to Bachan Singh and others. However, the defendant did not plead to whom the super-structure i.e the shop belonged. The plaintiff claimed to be owner and landlady of the shop. The plaintiff has proved sale deed vide which she purchased the land underneath the disputed shop. There is concurrent finding of fact against the appellant by both the Courts below. The said finding is based on appreciation of evidence RSA No.3635 of 2009 -4- and cannot be said to be perverse or illegal. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is without any merit and is accordingly dismissed. ( L. N. MITTAL ) JUDGE 29.01.2010 A. Kaundal