Sh.Rajinder Kumar & Ors. vs Mrs.Padmawati & Ors.
2011 Latest Caselaw 2413 Del

R-272

*   IN THE HIGH COURT OF DELHI AT NEW DELHI


    %                        Date of Judgment: 05.5.2011



    +                  R.S.A.No.253/2007

    SH.RAJINDER KUMAR & ORS.                 ...........Appellants
                      Through:           Mr.Mayank Goel, Advocate.

                       Versus

    MRS.PADMAWATI & ORS.                 ..........Respondents
                     Through:            None.

    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. This appeal has impugned the judgment and decree dated

25.4.2007 whereby the suit filed by the plaintiff Rajinder Kumar

and Others seeking a declaration and permanent injunction to the

effect that the plaintiffs (claiming through their father who was

the tenant of the defendant) be not evicted from the suit property

and the defendant be restrained from increasing the rate of rent

of the suit property had been dismissed.

2. Plaintiffs have filed the aforenoted suit. Their father Duli

Chand had taken shop No.327, Anaj Mandi, Shahdara, Delhi along

with its roof rights (hereinafter referred to as 'the suit property')

on rent of Rs.65/- per month from late Daya Nand Sharma vide

rent note dated 15.9.1970. Plaintiff has installed two shutters on

the front side of the shop; in December 1990 the defendant

threatened the plaintiffs as to how the shutters were installed.

Written complaint was made to the concerned police station. On

11.11.1989, the father of the plaintiffs died. Rate of rent was

increased from time to time and it was finally settled at Rs. 225/-

per month and there was an agreement that the rent would not be

increased in future. The plaintiffs are since then carrying on

business in the suit property since they have inherited tenancy

rights. Defendants have again started threatening the plaintiffs to

increase the rent and the defendants are seeking their eviction.

Present suit was accordingly filed.

3. Defendants contested the suit. They also filed a counter

claim. They had alleged that the plaintiff had not come to the

court with clean hands as they wanted to grab the property of the

defendants. The widowed daughter of the defendant Usha was

residing on the first floor for the last two years; plaintiffs wanted

to dispossess the defendants. It was not disputed that complaints

had been lodged by the parties. It was contended that on

23.11.1992 the plaintiffs in collusion with local police had thrown

out the house-hold goods of Usha from the first floor. It was

denied that that roof was in this tenancy; only two rooms, one

verandah, one sahan and baithak had been let out to the father of

the plaintiffs vide the aforenoted rent note dated 15.9.1970. The

passage to the first floor from northern side was not included in

the tenancy. On 17.2.1991 an agreement was arrived at between

the parties whereby they had agreed not to interfere with the

egress and ingress of each other. Defendant no.1 had been letting

out first floor to the tenants seasonly but now his widowed

daughter was residing therein. All other allegations were denied.

In the counter claim, the defendants claimed that the plaintiff be

restrained from disposing their widowed daughter from the first

floor and from interfering in the egress and ingress to the first

floor through the staircase. Further the plaintiffs be directed to

pay arrears of rent w.e.f. 15.01.1991.

4. On the pleadings of the parties, the following six issues had

been framed:

1.Whehter the father of plaintiff's took the entire tenanted

premises alongwith its roof at a monthly rent of Rs.65/- from Sh.Dayanand Sharma vide rent note dated 15.9.1970? OPP

2.Whether the plaintiffs have not come with clean hands? If so, its effect? OPD

3.Whether the plaintiff is entitled to the decree of declaration, as prayed for? OPP

4.Whether the plaintiff is entitled to relief of injunction as prayed for? OPP

5.Whether the defendants are entitled to the relief as prayed for in their counter claim? OPD

6.Relief.

5. Oral and documentary evidence was led.

6. Agreement/Rent Note dated 15.9.1970 had been examined.

It was proved as Ex.PW-1/1; Ex.PW-1/4 was the settlement dated

17.01.1991 arrived between the parties whereby the rent of the

tenanted premises had been increased by 10%; i.e. ` 225 p.m;

defendant had also a statement that he had no objection to the

installation of a shutter; however, the plaintiff would not be

allowed to install any other shutter around the pillar. The

evidence adduced showed that the plaintiff had been let out the

premises without roof rights; defendant late Dayanand Sharma

had reserved the rights of the passage for use for egress and

ingress to the first floor. Plaintiff had filed to establish that the

roof rights had been let out to him. In his cross-examination

plaintiff (examined as PW-1) had also admitted that the tenanted

premises let out to him comprised of one verandah, one sahan,

baithak and two rooms on the ground floor. No roof right had

been mentioned. Plaintiff had not come to the court with clean

hands; he was not entitled to the relief. Suit was dismissed.

Counter claim of the defendant was decreed after the examination

of the testimony of DW-1 and DW-2.

7. This finding of the trial judge was endorsed in first appeal.

8. This is a second appeal. It has been admitted and on

27.1.2010 the following substantial questions of law were

formulated:

1. Whether the courts below erred in law in not deciding the objections filed to the Local Commissioner's Report and in completely ignoring it while decreeing the counter claim of the respondent?

2. Whether the findings of the courts below are perverse on facts and law?

9. On behalf of the appellant, it has been urged that the

impugned judgment suffers from a perversity for the reason that

the document Ex.PW-1/1 which is the rent note and Ex.PW-1/4

which is Panchayat Faishla have not been considered in their

correct perspective; the impugned judgment had failed to note

that the only mode of access to the terrace/roof was through a

room which was admittedly a part of the tenanted premises; in

this view of the matter the claim of the plaintiff having been

dismissed suffers from a perversity. Learned counsel for the

appellant has placed reliance upon 1983 RLR 381 Ramjilal

Mahinder Kumar Vs. Naresh Kumari to support his submission that a

building comprises of a hall and a roof is deemed to a part of the

building; the roof, in fact, had been let out to the plaintiff and was

a part of the tenanted premises. On the same corollary counter

claim of the defendant also could not have been decreed. It is

pointed out that the local commissioner had submitted his report

on 03.12.1992 to which objections had been filed by the appellant

but the courts below had not dealt with the objections; this is also

a perversity and has raised a substantial question of law.

10. None has appeared for the respondent.

11. Admittedly the father of the plaintiff namely Duli Chand had

been let out the demised premises; a rent note Ex.Pw-1/1 dated

15.7.1970 had been executed between the father of the plaintiff

and the father of the defendants. In terms of this rent note the

tenanted property had been described; it comprised of one sahan,

verandah, two rooms and one baithak; rate of rent was Rs.65/- per

month; rent would be paid in advance; statement of the father of

the plaintiffs (Duli Chand) was also to the effect that he would

have no objection to the passage left for the ingress and egress of

the other tenants. This document has been interpreted by both

the two facts finding courts. Both the courts below have noted

that the reference made by the father of the plaintiffs that he

would have no objection to the passage which is available for the

ingress and egress of the other tenants means that there were

other tenants in the suit property and the plaintiff was not the sole

tenant. Moreover this document Ex.PW-1/1 had specifically

described the tenanted premises which have been described

hereinabove. Admittedly there is no reference to the roof rights.

12. The second document which was interpreted by the two fact

finding courts below is Ex.PW-1/4 which was the Panchayat Faisla

entered into between the parties on 03.1.1991. In terms thereof

the plaintiffs had agreed to increase the rent; the rent agreed was

Rs.225/- per month; in terms of this agreement, the defendant had

made a statement that he had no objection regarding the

installation of the shutter in the said shop; arrears of rent had also

been received; he had agreed to give up his complaint; it had

further been agreed that no shutter except the two shutters

already installed shall be installed. This document had also been

interpreted by the two fact finding court below; even in this

document which was executed more than two decades after the

inception of the tenancy of the plaintiff i.e. in the year 1991 there

was no reference to any roof rights.

13. DW-1 was the defendant. He has come into witness box and

deposed that roof rights are with them and the same are being

leased out periodically. Presently their widowed daughter Usha is

residing in the said premises. Usha had also entered into witness

box as DW-2. As per her version she was living on the roof; her

household goods were thrown down by the plaintiffs. The counter

claim had sought an injunction that the plaintiffs should not

interfere in the possession of the roof rights of DW-2; at the same

time her house hold goods which had been removed be restored to

her.

14. A local commissioner had also been appointed in the trial

court to give his report on the factum of possession in the suit

property. He had given his report on 03.12.1992 wherein it had

been noted that the defendant no.3 was found present at the

spot; the 'Chapper' i.e. the roof could accommodate a small

family. Objections to the said report have been filed to which

reply had also been filed by the non-applicants. Impugned

judgment had dealt with this contention of the learned counsel for

the appellant that the objections had not been decided one way or

the other. In para 16 of the impugned judgment the court had

examined the report of the local commissioner and had accepted it

in favour of the defendants; court had noted that the local

commissioner found the presence of Usha at the spot; further

PW-1 Rajinder Kumar had come into witness box and in his cross-

examination he had admitted that he had not filed any objection to

the report of the local commissioner. At this stage learned

counsel for the appellant has drawn attention of this court to the

said objections which had been filed by the brother of Rajinder

Kumar namely Ashok Kumar who was arrayed as plaintiff no.2.

Be that as it may, the very fact that the court had accepted the

report of the local commissioner and had relied upon it, it is

implicit that the objections stood rejected. There is no perversity

on this score.

15. All these fact findings have been gone into deep detail by

the two courts below. Unless and until a perversity is pointed out

a second appeal court cannot interfere with findings of fact. The

courts below had noted that the documentary evidence adduced

by the plaintiff evidenced that what had been let out to him was

only a sahan, baithak, verandah and two rooms; he was not

entitled to the roof rights; Panchayat Faisla had also noted the

statement of the plaintiff that he would have no objection to the

ingress or egress for the passage of the other tenants meaning

thereby he was not the sole occupant of this property. Case of the

defendants was that the roof rights were being leased out

periodically; at present their widowed daughter Usha is residing

therein. This has also been supported by the report of the local

commissioner. This finding in no manner can be said to be

perverse and this finding in no manner calls for any interference.

Status of the plaintiffs is admittedly recognized as a tenant on the

ground floor i.e. in the sahan, baithak, verandah and two rooms as

aforenoted i.e. excluding the roof. They, however, have no roof

rights.

16. Substantial questions of law are answered in favour of the

respondents and against the appellants. There is no merit in the

appeal. Dismissed.

INDERMEET KAUR, J.

MAY 05, 2011 nandan