JUDGMENT 1. - The petitioner-defendant No. 2 has filed this revision petition under Section 115, CPC against the order dated 25-9-1996 passed by the learned District Judge, Merta whereby the appeal filed by the petitioner was dismissed and the impugned order dated 30-8-1996 passed by the learned Civil Judge (Sr. (Division) Merta was upheld. 2. The facts of the case lie in a narrow compass. The plaintiff-non-petitioner filed a suit for permanent injunction against the defendant-petitioner for restraining the petitioner from causing any interference with construction activities of the plaintiff over the shop in question. The plaintiff let out the shop in question to the non-petitioner on Chet VADI 7 Samvat 2047 and a rent note was executed accordingly. It is alleged that the plaintiff wanted to raise constructions over the above shop and for that purpose, it obtained permission from the municipal authorities and when the plaintiff started construction over the roof of the shop in question, the defendant obstructed and, therefore, apprehending violence, the plaintiff filed the suit. The main ground on which the defendant-petitioner resisted the right of the plaintiff to start construction over the roof of the shop was that the roof of the shop was also let out to him. In other words, according to the defendant, the stair case as well as the roof of the shop constitute the demised premises let out by the plaintiff to him. 3. Along with that suit, an application for temporary injunction under Order 39, Rules 1 and 2, CPC was also filed. The defendant-petitioner resisted the above application on the aforementioned grounds. He claimed tenancy rights in respect of the roof of the shop also. 4. After considering the material on record and the arguments advanced by the learned counsel for the parties, the learned trial Court found a prima facie case in favour of the plaintiff. The learned trial Court further found the balance of convenience also in favour of the plaintiff. The point of comparative hardship was also held to be in favour of the plaintiff. The learned trial Court, therefore, issued an interlocutory injunction in favour of the plaintiff. 5. Feeling aggrieved by the above interlocutory injunction, the defendant-petitioner filed an appeal before the learned District Judge, Merta and the learned District Judge, Merta vide his order dated 25-9-1996 dismissed the said appeal as aforesaid. 6. The learned trial Court, therefore, issued an interlocutory injunction in favour of the plaintiff. 5. Feeling aggrieved by the above interlocutory injunction, the defendant-petitioner filed an appeal before the learned District Judge, Merta and the learned District Judge, Merta vide his order dated 25-9-1996 dismissed the said appeal as aforesaid. 6. I have heard the learned counsel appearing for the petitioner and the learned counsel for the non-petitioner and have carefully gone through the record of the case. 7. The learned counsel for the petitioner has assailed the findings of the Courts below and submitted that the Commissioner has inspected the site and found certain articles belonging to the petitioner lying on the roof of the shop. He further contended that it is also an admitted position that the stair-case going to the roof has connecting gate with the shop of the defendant and this is very strong circumstance indicating the fact that the person in possession of the shop has got a right of access to the stair case and the roof. He further submitted that similarly there is another connecting door to the staircase belonging the adjacent shop at the opposite side. According to the learned counsel, the defendant has got connecting door to the stair case and the defendant has been using the roof even since the suit premises were let out to him, though it is specifically not written in the rent note that the roof was also let out to the petitioner. 8. It was contended by Mr. Nagori that where the demised premises is single storey building, the roof is also presumed to be in the tenancy of the occupant of the shop. He has therefore, contended that it must have been held that the defendant was in possession of the roof and the same was part and parcel of his tenancy. According to the learned counsel, the plaintiff has nowhere contended that the roof is in its possession. He has, therefore, argued that the plaintiff has no right to raise any construction over the roof of the shop during the subsistence of the tenancy. In this connection, the learned counsel has place of reliance on Ramjilal Mohinder kumar v. Smt. Naresh Kumari, AIR 1984 Delhi 95. 9. He has, therefore, argued that the plaintiff has no right to raise any construction over the roof of the shop during the subsistence of the tenancy. In this connection, the learned counsel has place of reliance on Ramjilal Mohinder kumar v. Smt. Naresh Kumari, AIR 1984 Delhi 95. 9. The learned counsel has also contended that it is well settled principle of law that a party in possession cannot be deprived of it by the issuance of any temporary injunction He has submitted that if it is held that the defendant is in possession of the roof, no temporary injunction can be justified. Other-wise, the strength of such interlocutory injunction, the plaintiff will be raising construction and thereby, he will divest the defendant of his possession. 10. On the other hand, the learned counsel appearing for the non-petitioner has supported the impugned orders of the Courts below. According to Mr. Jain, the use of stair case was no-followed to the defendant and the roof was also not let out to him and it ,is conclusively proved by the rent note that was executed in favour of the plaintiff by the defendant. In the rent note, the description of the property leased out to the defendant is given. If the roof had been leased out, there would have been a specific reference of the same in the lease deed, The learned counsel for the non-petitioner has also controverted the claim made by the learned counsel for the petitioner that certain articles belonging to the petitioner were found lying on the roof of the shop when the Commissioner inspected the site. He submitted that such articles can be placed at any time even without permission of the plaintiff and such a circumstance cannot constitute a lawful possession. Hence, the report of the Commissioner in this respect cannot lend any support to the case of the defendant. 11. The learned counsel has not denied that there is an entry to the stair case from the suit shop but it was denied that the defendant has been using it for going to the roof of the shop. He also urged that the orders passed by the Courts below are not erroneous and no question of jurisdiction error of any irregularity is involved. 12. He also urged that the orders passed by the Courts below are not erroneous and no question of jurisdiction error of any irregularity is involved. 12. The learned counsel has cited Ramchander v. M/s. Gorelal, 1995 (2) RCJ 276 wherein it was held that where the single storeyed shop is let out, its stair case and the roof cannot be deemed to be in the tenancy of the tenant. At the best, the tenant can use the roof of the shop with the consent of the landlord. 13. I have very carefully considered the rival contentions made at the bar and have gone through the record of the case. 14. The foremost thing which needs emphasis is that in the rent note it has not been specified that the roof and the stair case also were let out to the defendant. Had it been so, there was no reason why a clear cut mention of this material fact was not made in the rent note. It is also erroneous on the part of the defendant to assert that on account of peculiar circumstances of the demised premises, an inference could be drawn that the above stair case and the roof were in possession of the defendant. In this connection, I find myself in full agreement with the observations made in Rarpghander's case (supra) that where the suit premises is only a single storey shop, it cannot be presumed that the stair case and the roof were also in the subject matter of the tenancy. Mere use of the stair case and the roof can only (flow that the tenant has been using the same with the express or tacit consent of the landlord. Moreover, there is a concurrent finding of fact by the Courts below and the orders passed by the learned trial Court as well as that of the appellate Court are court and therefore, they cannot be assailed. 15. In this view of the matter, in my considered opinion, the Courts below have not committed any illegality or material irregularity, which warrants interference in revision by this Court. 16. For the above reasons, I find no force in this revision and it is hereby dismissed with costs.Petition dismissed. *******