Delhi High Court
Shri Binder vs Smt. Veena & Ors. on 14 March, 2013
Author: V.K.Shali
* HIGH COURT OF DELHI AT NEW DELHI
+ R.S.A. NO.79/2009 & CMs 9088-89/2009
Decided on : 14th, March 2013
SHRI BINDER ...... Appellant
Through: Mr.P.S.Mehandru, Advocate.
Versus
SMT. VEENA & ORS. ...... Respondents
Through: Nemo
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J.
1. This is a regular second appeal filed by the appellant against the
judgment dated 24.9.2008 passed by the appellate Court rejecting
the appeal of the appellant.
2. I have heard the learned counsel for the appellant. The substantial
question of law which has been formulated in the appeal reads as
under:-
"Whether the terrace/roof of single storey house
let out to tenant with exclusive possession is
appurtenant to the main building and hence part of
the tenanted premises?"
3. I have heard the learned counsel for the appellant with regard to the
formulation of the substantial question of law which is a pre
condition for admission of the regular second appeal.
4. In my considered opinion, the substantial question of law
formulated in the appeal is essentially a question of fact. This is a
question which has been adjudicated by the trial court after
permitting the parties to adduce evidence.
5. Briefly stated the facts of the case are that the appellant filed a Suit
bearing No.291/96/94 for mandatory and permanent injunction
against Smt.Veena, Smt.Kamla, Sh.Chander Bose, Sh.Ved
Parkash, Sh.Kailash and Smt. Bimla, respondents herein.
6. The respondent no.2 Kamla had expired and therefore, she was
dropped. The appellant herein had alleged that the premises
bearing House no.10789/2010 was let out to the father of the
appellant by one Ram Nath and Suraj Singh at a monthly rent of
`3/- per month. The present appellant was living in the aforesaid
premises with his father. It was alleged that during his life time,
the father of the appellant had built a tin shed over the said
tenanted premises. After his death, the appellant paid the rent and
thus he was accepted as the tenant by the landlord. It was further
stated that the respondent Nos.2,3 and 5 were paying rent to the
father of the appellant in respect of the property bearing
no.10788/2010 and 10787/2010 which are the premises on the first
floor and ground floor and are separated from the property bearing
no.10789/2010 by a common staircase. It was alleged that these
properties were under tenancy of the husband of respondent no.1
and the respondent nos. 2 to 4 were also living there. It was
alleged since the respondent no.1 was being mal-treated by her
relations after death of her husband, the appellant on the request of
the former, permitted her to occupy the tin shed of the property
bearing no.10789/2010. It was also alleged that after permitting
her to occupy the tin shed of the said property for some time in
order to prevent her from being subjected to harassment by her
relations, who are the respondents in the present appeal, at some
point of time, the appellant had asked the respondent no.1 to vacate
the tin shed as she was occupying the shed only as a licensee.
Since she failed to vacate, the appellant was constrained to file the
present suit for mandatory and permanent injunction against her
requiring her to vacate the premises.
7. In that suit, the following issues were framed:
1) Whether the plaintiff is entitled to equitable relief on
mandatory injunction as prayed for? OPP
2) Whether the plaintiff is entitled to equitable relief of
permanent injunction as prayed for? OPP
3) Relief.
8. Both these issue Nos.1 and 2 were decided against the appellant
and the suit was dismissed holding that the present appellant has
not been able to establish his case in order to seek eviction of the
respondent no.1 from the tin shed.
9. Not being satisfied, the appellant preferred an appeal bearing RCA
No.86/2006 titled Binder Vs. Smt. Veena & Ors. This appeal was
also decided against the appellant holding that the appellant was
not entitled to recovery of possession of the tin shed as a licensor
as he had not been able to establish whether he had let out the same
or given a license to the respondent no.1.
10. It is in this context that now the appellant has chosen to file the
present regular second appeal and raised an issue that the tin shed
is forming a part of his tenancy which was originally under his
father and after his demise, with him.
11. The question as to what will form part of the tenanted premises
would be essentially a question of fact and not a substantial
question of law. Further, the question whether the tin shed formed
a part of his tenancy or not is not of much relevance because what
is important is whether he had inducted respondent no.1 as a
licensee in the tin shed or not which he has failed to prove.
12. These points having been adjudicated against the appellant by the
two courts below does not raise any substantial question of law,
accordingly, the appeal is dismissed.
V.K. SHALI, J.
MARCH 14, 2013
RN
