R. S. A. No. 4348 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 4348 of 2009 Date of Decision : May 05, 2010 Didar Singh .... Appellant Vs. Amarjit Singh .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. K. S. Rekhi, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : This is second appeal by plaintiff Didar Singh, who was successful in the trial court, but has been non-suited by the first appellate court. Appellant filed suit against respondent Amarjit Singh for possession of a shop by way of ejectment therefrom alleging that the disputed shop is situated in khasra no.234 owned by the plaintiff, who rented out the same to the defendant on 23.12.2002 vide rent note of even date on monthly rent of Rs.400/-. Defendant did not pay rent after December 2004. Defendant's tenancy was terminated by serving notice. The defendant failed to vacate the shop in spite of notice. Accordingly, the R. S. A. No. 4348 of 2009 2 plaintiff filed suit for possession of the disputed shop by ejectment of defendant therefrom. The defendant inter alia pleaded that there is no relationship of landlord and tenant between the parties. The defendant never took the disputed shop on rent from the plaintiff. The disputed shop is in fact located in khasra no.235 and khasra no.236/1/2 belonging to the Gram Panchayat. The defendant himself constructed the shop there and is in possession thereof since time immemorial. Learned Additional Civil Judge (Senior Division), Baba Bakala, vide judgment and decree dated 31.01.2008, decreed the plaintiff's suit for possession of the disputed shop by ejectment of defendant therefrom. However, first appeal preferred by the defendant has been allowed by learned Additional District Judge, Amritsar, vide judgment and decree dated 25.08.2009 and suit filed by the plaintiff has been dismissed. Feeling aggrieved, the plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that the defendant has failed to prove that the disputed shop is situated in khasra no.235 and khasra no.236/1/2. It was also contended that the defendant in his statement even denied his signatures on Vakalatnama executed by him in favour of his counsel and therefore, the statement of defendant is R. S. A. No. 4348 of 2009 3 unreliable. The aforesaid contentions are not sufficient to entitle the plaintiff to succeed. The alleged weaknesses in the case of the defendant would not entitle the plaintiff to the decree prayed for, unless the plaintiff proves his own case. However, the plaintiff has miserably failed to prove his case. The plaintiff alleged that rent note dated 23.12.2002 was executed by the defendant. However, the said rent note has not been placed on record. On the other hand, copy of the alleged rent note has been placed on record. Learned counsel for the appellant contended that the original rent note was in possession of defendant himself and copy thereof has been proved by the plaintiff. The contention has no merit because ordinarily the original rent note would be in the possession of the landlord and not in the possession of the tenant. Secondly, the plaintiff admittedly did not seek permission from the Court for leading secondary evidence of the said rent note on the aforesaid ground. Consequently, copy of the rent note cannot be taken into consideration when the original rent note has not seen the light of the day. In addition to the aforesaid, the plaintiff has failed to prove that the disputed shop is located in khasra no.234 owned by the plaintiff. Learned counsel for the plaintiff-appellant emphatically and repeatedly argued that in view of jamabandi placed on record, plaintiff is proved to be owner of khasra no.234. However, the plaintiff has failed to prove that the R. S. A. No. 4348 of 2009 4 disputed shop is situated in khasra no.234. The defendant, in his written statement, specifically pleaded that the disputed shop is not situated in khasra no.234, but is situated in khasra no.235 and khasra no.236/1/2. In spite thereof, the plaintiff did not seek demarcation of the disputed shop to prove that the same is located in khasra no.234, owned by the plaintiff. Consequently, the plaintiff is not proved to be owner or landlord of the disputed shop. The trial court observed that the plaintiff has stated that the disputed shop is situated in khasra no.234 and therefore, the said fact is proved. However, this approach of the trial court was patently erroneous and has, therefore, been over-ruled by the lower appellate court. Even the defendant, in affidavit Annexure P-3 of his examination-in-chief, specifically deposed that this shop is not in khasra no.234 and actually this shop is in khasra no.235 and khasra no.236/1/2. Thus, oral statement of the plaintiff that the shop is situated in khasra no.234 stands rebutted by oral statement of the defendant that the shop is not situated in khasra no.234 and is rather situated in khasra no.235 and khasra no.236/1/2. In this situation, the plaintiff should have obtained demarcation of the disputed shop, but the plaintiff has failed to do so. Consequently, plaintiff has failed to prove that the disputed shop is situated in khasra no.234 or that plaintiff-appellant is owner or landlord thereof. In view of the aforesaid, I find no infirmity, much less illegality or perversity, in the impugned judgment of the lower appellate court. The R. S. A. No. 4348 of 2009 5 plaintiff has failed to prove relationship of landlord and tenant between the parties regarding the disputed shop. 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 in limine. May 05, 2010 ( L. N. MITTAL ) monika JUDGE