Calcutta Soap Oil Industries vs Ram Rattan Singh Namdhari
1996 Latest Caselaw 975 Del

JUDGMENT

Usha Mehra, J.

(1) M/S Calcutta Soap Oil Industry felt aggrieved by the impugned order passed by the Additional District Judge dated 10th December,1990. The appeal preferred by the appellant was dismissed. The appellant's main grievance is that the Courts below ignored admitted documents, namely, Exhibit DW-5/6 the affidavit of September,1978 filed by the plaintiff Shri Ram Rattan Singh Namdhari with the Delhi Administration. In this affidavit it was admitted that the tenanted premises was a built up area and not an open land. Similarly in the letter dated 13/14th September,1994, Exhibit DW-5/4 it was admitted by Smt.Leela Wati erstwhile landlady that the premises let out to the appellant consisted of super structure and not a open land. This is so stated in the letter Exhibit DW-2/2. The courts below ignored these documents and instead decided the suit in favour of the plaintiff (respondent herein) on the basis of surmises and conjecture. Court below came to the conclusion that the tenanted premises was a plot on oral evidence thereby ignored the documentary evidence which goes to the root of the case. Since the documents Exhibit DW2/2, DW-5/4 and DW-5/6 go to the root of the case and require interpretation. Hence this appeal raises important question of law. Once these documents are interpreted correctly then the suit is liable to be dismissed. Refuting these arguments Bawa Shiv Charan Singh, Senior Advocate appearing for the respondents contended that the property rented out in the year 1955 was an open plot. This fact stood admitted even by the present appellant in his written statement as well as in the reply to the notice issued by the respondent herein. The documentary as well as oral evidence produced before the Trial Court conclusively proved that the tenanted portion consisted of open land. Moreover, the question whether an open land was rented or super structure is a question of fact and not of law. Those facts having been duly considered and appreciated by both the courts below and there being concurrent findings of fact against the appellant, this appeal is not maintainable. As it raises no question of law. That only those documents which deal with the title or go to the root of the case can be looked into in the second appeal for interpretation. Interpretation of such documents alone can raise the question of law. The documents Exhibit DW-2/2. DW-5/4 and DW-5/6 neither touches the title nor go to the root of the case. These documents pertain to the facts of the case, therefore, there is no question of their interpretation. Since these documents touched question of fact and that has already been answered against the appellant by both the Courts below. These documents do not form the foundation of the rights of the parties, hence do not raise any question of law. It is well settled principle of law that second appeal would lie if it raises question of law and not of facts. It is an admitted fact on record that there is concurrent finding of facts by both the Courts below in this case. It is also a fact that the documents relied by the appellant are neither documents of title nor go to the root of the case. The affidavit Exhibit DW-5/6 and forwarding letter Exhibit DW-2/1 written by present respondent to the Administration in no way touches the controversy in question. I am, therefore, in full agreement with the contention of Bawa Shiv Charan Singh that the question whether open plot of land was given on rent or super structure is not a question of law but a question of fact. That has already been answered against the appellant. After the Trial Court and the First Appellate Court analysed the evidence placed before it, it is not for this Court in the second appeal to reappraise the evidence and their facts. So far as the document Exhibit DW-5/6 the affidavit filed by the respondent with Land & Building Department, Delhi Administration, reading of the same show that the respondent furnished certain facts about his holidays. How it helps the appellant I have failed to understand. In any case reading of Exhibit DW-5/6 show that besides build up area there was an open land measuring 891.64 sq.metrs. Appellant was let out 160 sq.yards open land. When there was 891.64 sq.mtrs. land with the respondent, why it cannot be believed that out of this open area, open land was given to the appellant. This is a question of fact and required evidence. On this both the parties led evidence which has been duly appreciated by the Courts below. The relevant portion of Exhibit DW-5/6 is reproduced as under :

(2) That I, my wife and my dependent relations including my minor unmarried children hold the following land vacant/ built up in whole of India :- S. No. Particulars of Vacant or Share Area vacant and/ built up built up property a) Residential Dwelling Built up 100% share of Total area units property No. mine & my family 3769.97 876/634 situated in members sq. mt. Block `D',, Rana Pratap covered area Bagh, Delhi is 2878.33 sq. mtr. & open land 891.64 sq. mts.

(3) A perusal of the extract reproduced above show that out of total area 3769.97 sq. meters the covered area shown was 2878.33 sq. meters. The open area shown is 891.64 sq. meters. It is nobody's case that the area given to the appellant could not fall in this open area of 891.64 sq.metrs. The document Exhibit DW-5/6 nowhere indicate that the property bearing No.876/634 situated in Block 'D', Rana Partap Bagh was 100% covered. Had it been so, then of course the argument of the appellant would have been justified. Thus the affidavit Exhibit FW-5/6 does not support the case of the appellant rather it nullifies his contention that built up portion was given on rent.

(4) Now turning to Exhibit Dw-2/2 i.e. letter written by the respondent to Special Secretary, Land & Building Department, Delhi Administration, I think this was the forwarding letter of the affidavit Exhibit DW-5/6. In this letter also it was specifically mentioned that in the area in question there is an open area measuring 891.64 sq.meters. Nothing turns on this letter. It only indicates that in the property known as "White Kothi" Calcutta Soap is a tenant on monthly rent of Rs.30.00 . Turning to the letter Exhibit Dw-5/4 stated to have been written by late Smt.Leela Wati erstwhile landlady of the premises addressed to the Building Engineer, Municipal Corporation, Delhi, from letter it cannot be inferred which year this letter was written. The year of writing of this letter is very important. The question whether plot or super structure was let out has to be considered from the date of letting and not of any subsequent date. Since Exhibit DW-5/4 does not indicate the date or the year, therefore, it is of no importance nor does it indicate that at the time of letting it was not a plot but a built up portion. Reading of this letter only shows that the landlady made a request to the Municipal Corporation of Delhi to permit Sardar Sohan Singh of Soap Factory to carry out repairs. The contents of this letter only show that at one point of time super structure came into being. Therefore, so far as this document is concerned nothing turns on the same.

(5) On the other hand reading of the plaint particularly paragraphs 1 and 2 show that plaintiff took specific plea that plot of land measuring 160 sq.yards falling in khasra No.876/634, was let out to the defendant on a monthly rent of Rs.30.00 . The open plot was to be used for storage purpose. In reply to these paragraphs, no specific denial was made in the written statement. Only preliminary objection was raised that the plaintiff was not the owner of the land or the property in dispute and that open plot alongwith super structure was rented out. Harmonious reading of preliminary objections 1 and 5 would show that the appellant (defendant before the Trial Court) impliedly accepted that plot was let out with super structure appertiment thereto. Thus the fact that it was an open area given on tenancy was not denied. Prior to the filing of the suit plaintiff (respondent herein) issued a registered notice dated 8th April,1975 to the appellant. In this notice it was specifically mentioned that the appellant was inducted as a tenant by Smt.Leela Wati (mother of the present respondent) on certain terms and conditions. One of the term was that (a) the monthly rent of the plot leased was Rs.30.00 ; (d) the plot was not to be sub let to any one; and (e) you were not permitted to construct any pucca structure on the plot. The said notice has been proved on record as Exhibit P-14. This appellant through his Advocate sent the reply dated 2nd May,1975 which is Exhibit P-15. In this reply appellant admitted that the letting of plot though mentioned that alongwith the plot an old super structure was also rented in the year 1955. He did not deny in any manner the factum that it was an open area and not built up area which was let out to him. He was not to sub-let the plot to anyone and further that he was not to raise super structure on the plot. These conditions and terms of tenancy were not denied by the appellant. These terms of tenancy agreed to by the parties at the time of induction clearly show that plot was let out to the appellant. The Trial Court rightly drew inference that it was the plot which was let out and not a built up area. This fact further finds support from the rent receipts issued by the landlord and admitted by the appellant. Those have been exhibited as P-3 to P-7 dated 3rd October,1974, Ist November,1974, 8th April,1977 and 2nd April,1976 respectively. These rent receipts show the tenanted portion as open plot. Similarly Exhibit D-1 dated 7th December,1967 a rent receipt produced by the appellant also show that the tenanted portion was an open plot. These rent receipts executed at the relevant time in due course of business clearly negates the case of the appellant that the premises let out was a constructed portion and not an open plot.

(6) Sardar Sohan Singh, brother of the appellant appearing as DW-5 stated that the plot was let out on rent. He also admitted that at the time of induction and creation of tenancy, Rajinder Singh was present. However, the said Rajinder Singh in whose presence the terms of tenancy were settled was not produced in the witness box. He was the partner of the firm. He was the best person to say, what was taken by him on tenancy. But he did not step into the witness box. Therefore, to my mind, the Trial Court rightly drew adverse inference against the defendant (appellant herein). Sardar Sohan Singh, DW-5 also admitted the execution of the written document containing terms of the lease. But the said document has been withheld from the Court. Since that document was material and having been withheld adverse inference was rightly drawn against the appellant.

(7) As already observed above, this appeal touches questions of facts which have already been gone into by the courts below, I see no reason to interfere with the same. I see no infirmity in the conclusion arrived at in the impugned judgment. No merits in the appeal. Dismissed.