Honble SHARMA, J.–Concurrent findings arrived at by the learned courts below have been assailed by the State of Rajasthan and another, the appellants herein, in the instant second appeal which was filed on August 27, 1991. An application under Order 41 Rule 27 of the Code of Civil Procedure has also been submitted by the appellants today for taking the additional documents on record.

(2). Mr. Mohd. Rafiq, learned Additional Advocate General urged that since the trial court proceeded ex-parte, the appellants could not produce evidence and the suit of the plaintiff respondent was decreed. The first appellate court also did not properly appreciate the provisions contained in Order 9 Rule 7 CPC and the appeal was dismissed, therefore, opportunity to adduce evidence may be provided to the appellants in the interest of keeping the stream of justice pure and clear and findings under appeal should not be permitted to assume finality without the examination of the witnesses of the appellants.

(3). As per the facts pleaded in the plaint the tenanted premises was let out on oral tenancy by the respondent (for short `Landlord) to the appellants (for short `defendant) on a rent of Rs. 30/- per month in the year 1962. The Estate Officer, Public Works Department demanded the certificate of ownership from the Landlord, who submitted the decision of City Survey and other documents on June 25, 1962. The acquisition proceedings were also initiated in regard to the tenanted premises but on December 9, 1968 the same was dropped. The defendant on October 14, 1973 cut the Neem-tree and started to raise construction without the permission of Landlord and changed the nature of the building. Since the defendant did not pay any rent from March 1, 1962 to February 28, 1974, the Landlord instituted the suit for ejectment and recovery of Rs. 4320/- after serving notice under Section 80 CPC.

(4). In the written statement the defendant averred that the premises did not belong to landlord and it was never let out. No rent deed was ever executed. The premises belonged to the State Government where Maharaja Girls School was functioning. As many as eight issues were framed out of the pleadings of the parties. The Landlord thereafter examined five witnesses and got exhibited 38 documents. On October 12, 1982 when the case was posted for cross examination of Landlords witness PW. 5, nobody appeared on behalf of the defendant and the trial court after closing the right of defendant to cross examine the witness, proceeded exparte and posted the case for pronouncement of judgment. On October 12, 1982 application under Order 9 Rule 7 CPC was filed by the defendant for setting aside the exparte proceedings, but on December 1, 1982 when the application was listed for arguments, the defendant and his counsel again did not appear and the application was dismissed in default. Another application moved by the defendant was also dismissed on December 20, 1982 and thereafter the suit of the landlord was decreed on January 4, 1983. The first appeal preferred by the defendant against the decree of the trial Court was dismissed by the defendant against the decree of the trial court was dismissed by the appellate court on May 17, 1991. It is against these findings that the instant second appeal has been filed by the defendant.

(5). Following substantial questions of law were formulated by this court on April 22, 1997:-

``(1) Whether it is open to the appellant to assail the concurrent findings of the courts below by way of second appeal particularly when the courts below have concurrently held that the property, which is subject matter of the suit is not the property owned by the State and is not a part of the school premises?

(2) Whether the Rajasthan Premises (Rent, Control & Eviction) Act is not applicable to the property in question?

(3) Whether the Civil suit, which was filed by the plaintiff before the learned Munsif was maintainable in absence of notice u/S. 106 of the Transfer o

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