Shri Rajesh Kumar Bhatia vs Shri Karan Singh & Another
2011 Latest Caselaw 466 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Judgment: 27.01.2011

+            RSA No.124/2007 & CM No.6450/2007 (for stay)

SHRI RAJESH KUMAR BHATIA                              ...........Appellant
                  Through:                 Mr. Randhir Jain, Advocate.

                                       Versus

SHRI KARAN SINGH & ANOTHER           ..........Respondent
                  Through: Respondent No. 1 in person.

                                  AND

+            RSA No.306/2007 & CM Nos. 16755/2007 (for
             stay) & 1661/2009

SHRI ASHOK KUMAR BHATIA                               ...........Appellant
                  Through:                 Mr. Randhir Jain, Advocate.

                    Versus

SHRI KARAN SINGH & ANOTHER           ..........Respondent
                  Through: Respondent No. 1 in person.

                                  AND

+            RSA No.66/2008 & CM No. 3663/2008 (for stay)

SHRI SUBHASH CHAND DUA                                ...........Appellant
                 Through:                  Mr. Randhir Jain, Advocate.

                    Versus

SHRI KARAN SINGH & ANOTHER           ..........Respondent
                  Through: Respondent No. 1 in person.



CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

    1. Whether the Reporters of local papers may be allowed to
       see the judgment?

    2. To be referred to the Reporter or not?                    Yes

    3. Whether the judgment should be reported in the Digest?
                                                         Yes

INDERMEET KAUR, J. (Oral)

1 These are three appeals filed by the aforenoted appellants.

These appeals have culminated out of the three suits filed by the

plaintiff against the three different defendants namely Rajesh

Kumar Bhatia, Ashok Kumar Bhatia and Subhash Chand Dua.

2 The suit against Rajesh Kumar Bhatia was dismissed on

21.08.2004. Vide the impugned judgment dated 06.12.2007, the

order of the trial Judge was modified to the extent that the

defendant will not encroach upon chabutra in front of his shop by

putting any goods or by raising any construction which may

obstruct the free passage of the public while coming to their shop.

This was qua shop No. 2.

3 The suit against Ashok Kumar Bhatia was partly decreed in

favour of the plaintiff in terms of the judgment and decree dated

17.04.2004. The defendant was restrained from putting his

goods/aricles on the Chabutra in front of the tenanted shop No. 3

in the disputed property. This was affirmed in appeal vide the

impugned judgment dated 09.08.2007.

4 The third suit filed by Karan Singh was dismissed by the trial

Judge on 31.03.2004. Vide impugned judgment dated 06.12.2007,

the appeal was allowed and the order of the trial Court was

modified to the extent that the respondent will not encroach upon

the chabutra in front of his shop No. 4 by putting any goods

thereon or raising any construction which may obstruct the free

passage of the public while coming to their shops.

5 The factual matrix of the case is as follows:-

(i) The plaintiffs Karan Singh and Ratan Singh had filed three

suits for mandatory and permanent injunction i.e. suits No.

128/2004, 534/2002 & 902/2002.

(ii) The plaintiffs are the owners of the property bearing No. B

323, Bhajanpura Market, Shahdara.

(iii) The defendant Rajesh Kumar Bhatia is a tenant of Shop

No. 2. Ashok Kumar Bhatia is a tenant of shop No. 3. Subhash

Chand Dua is a tenant of Shop No. 4. Area of each shop measured

8‟X12‟. Monthly rental varied of each shop.

(iv) The contention of the plaintiffs was the chabutra in front of

the shop was being used by the defendants in contravention of the

agreement of tenancy; what had been let out to each defendant

was only the shop and not the chabutra; the act of the defendants

in storing and stocking their goods in the chabutra was a misuse.

(v) The present suits for permanent and mandatory injunction

had accordingly been filed.

(vi) In the separate suits, the defence of each of the defendants

was that the chabutra formed a part of the tenancy; it could not be

segregated from the shop; even otherwise it is of no use of the

plaintiffs being an integral part of the tenancy.

(vii) From the pleadings of the parties, following eight issues were

framed:-

1. Whether the plaintiff is entitled to the decree of mandatory injunction as prayed by him in the prayer clause? OPP 2 Whether the plaintiff is entitled for the decree of permanent injunction as prayed for? OPD 3 Whether the suit is maintainable? OPD 4 Whether the suit is barred by limitation? OPD 5 Whether the suit is barred by provisions of section 50 of the DRC Act? OPD 6 What is the extent of premises let out to the defendant by the plaintiff? OPP

7 Whether the suit has been valued properly for the purpose of court fees and jurisdiction? OPD 8 Relief.

(viii) Oral and documentary evidence had been led. The trial Judge

was of the view that the plaintiff in the suits qua shops No. 2 & 4

had failed to prove that the chabutra is not a part and parcel of the

tenanted premises; relief claimed by him was barred by Section 50

of the Delhi Rent Control Act (hereinafter referred to as „DRCA‟,

suits were dismissed. Suit qua shop No. 3 was partly decreed.

(ix) In appeal vide impugned judgment dated 06.12.2007 qua

shops No. 2 & 4, the judgment of the trial Court was reversed. Qua

shop No. 3, the impugned judgment had affirmed the finding of the

trial Judge.

(x) The contentious issue raised before the first appellate Court

was also as to whether chabutra was a part of tenanted premises

or not.

6 These are second appeals. After their admission on

09.08.2007, 10.12.2007 & 19.11.2009, the following substantial

questions of law were formulated in each of the appeals. They read

as under:-

"1. Whether a person can claim injunction with regard to a property of which he is admittedly not the owner?

2. Whether findings as to the extent of the tenancy premises returned by Rent Controller and having become final between the parties can be questioned in subsequent suit between the parties?"

7 On behalf of the appellant, it has vehemently been urged that

the chabutra is a part of tenanted premises which had been let out

to him; photographs taken of the site have also been placed on

record to substantiate this submission. It is pointed out that these

photographs depict and decipher that the chabutra in front of the

shop is of no use to the plaintiff; the chabutras in front of Shop No.

1 on the left side and shop No. 5 on the right side have different

heights which fortifies the submission that this cannot be treated

as a passage. Counsel for the appellant has also placed reliance

upon the provisions of Sections 38 & 41 (h) of the Specific Relief

Act, 1963 to substantiate his submission that equities are also in

his favour.

11    Arguments have been countered.

12    Record has been perused. The bone of contention is whether

the chabutra is an integral part of the tenancy or not?. The

proceedings under Section 45 of the DRCA which have been filed

and were pending between the parties had been adverted to in the

impugned judgments.

13 The impugned judgment dated 09.08.2007 in the case of

Rajesh Kumar Bhatia had correctly noted that in the petition filed

under Section 45 of the DRCA Ex. PWPW-2/2 and the site plan filed

along with, the respondent had admitted that what had been

tenanted out to him was only a shop measuring 8‟X12‟ and

chabutra was not show as part of the tenanted premises. The

counterfoils of the admitted receipts Ex. DW-1/P5 & Ex. DW1/P6

had also mentioned the tenanted premises as a shop measuring

8‟X12‟, there was no mention of the chabutra.

14 The impugned judgment in case of Ashok Kumar Bhatia had

also noted that in the earlier petition between the parties i.e. the

petition under Section 45 of the DRCA, the site plan had been filed

Ex. RW-3/1. The respondent therein in his cross-examination had

admitted that the chabutra is on the private land of the landlord

and is not a part of the shop. The respondent had admitted his

signatures of the counterfoils of the rent receipts Ex. PW-3/6 to Ex.

PW-3/17 as also Ex. DW1/P1 to Ex. DW1/P9 which also revealed

that the tenanted premises had been show as a shop i.e. shop No. 3

measuring 8‟X12‟; there was no mention of the chabutra. The site

plan Ex. PW-2/1 in the petition filed under Section 45 of the DRCA

had also depicted the tenanted premises in red colour as the shop

alone.

15 The impugned judgment in the case of Subhash Chand Dua

was also based on the similar observations. The certified copy of

the petition under Section 45 of the DRCA had been proved as

Ex.DW-1/P3 wherein he had admitted that in front of his shop,

there is an iron shutter and after that the chabutra is depicted; he

had constructed walls around the chabutra; the customers entered

through the chabutra in that shop. The site plan relied upon by the

defendant himself Ex. DW-1/1 had evidenced the chabutra is

outside the shop and not a part of the tenancy. The rent receipt Ex.

PW-1/2/1 had also depicted the tenanted premises to be a shop

only; chabutra was not a part of the tenancy.

16 All this evidence had weighed in the mind of the first

appellate court qua all three defendants to arrive at a second fact

finding that the chabutra does not form an integral part of the

tenancy, being distinct and a separate portion and have not been

let out by the plaintiff to the defendants, the defendants had no

exclusive right of user over the said land. This evidence, both oral

and documentary, had been reappreciated by the first appellate

court to draw the aforenoted conclusion. Perusal of the site plan

filed in each of three suits fortifies this conclusion. The admission

of the defendants on this score is also relevant.

17 Substantial questions of law are answered accordingly. There

is no merit in these appeals. All these three appeals as also the

pending applications are dismissed.

INDERMEET KAUR, J.

JANUARY 27, 2011 a