Delhi High Court
C.D.Joseph vs Smt. Saraswati Devi & Anr. on 30 January, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA Nos.301/2005 & 302/2005
% 30th January, 2014
+RSA 301/2005
C.D.JOSEPH ......Appellant
Through: Ms. Suman Kapoor, Advocate.
VERSUS
SMT. SARASWATI DEVI & ANR. ...... Respondent
Through: Mr. Harish Malhotra, Sr. Adv. with
Mr. Rajender Aggarwal, Advocate.
+RSA 302/2005
SURINDER KUMAR JAIN & ORS. ......Appellants
Through: Ms. Suman Kapoor, Advocate.
VERSUS
RAJ KUMAR ...... Respondent
Through: Mr. Harish Malhotra, Sr. Adv. with
Mr. Rajender Aggarwal, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
RSA 301&302/2005 Page 1 of 7
VALMIKI J. MEHTA, J (ORAL)
1. This regular second appeal is filed against the impugned judgment of
the first appellate court dated 2.7.2005. The first appellate court by the
impugned judgment allowed the two appeals which were filed by the
respondent no.1 herein, and who is also the respondent no.1 in the other
connected appeal being RSA No. 302/2005. By the self-same impugned
judgment appellate court dismissed the cross-objections filed by the present
appellants-plaintiffs.
2. Dispute in the present case is as to whether the appellants who were
admittedly the tenants in two shop nos.16, Lady Harding Road, New Delhi
and 18, Lady Harding Road New Delhi, besides having tenancy rights in the
shops, do they have tenancy rights in a passage, staircase and the roof over
the shops which are themselves situated on the ground floor. The first
appellate court has given the following conclusions to accept the appeals of
the respondent no.1 herein in both the appeals and who were the main
contesting defendants in the trial court. These main contesting defendants
are the admitted owners of the suit property having purchased the property
by means of sale deeds proved on record as Ex.PW7/6 and Ex.PW7/7. These
conclusions are as under:-
(i) If the appellants-plaintiffs want to assert that they have tenancy rights
RSA 301&302/2005 Page 2 of 7
not only in the shops of which they are tenants, but also to a passage,
connecting staircase and the roof over the shops which is accessed by use of
the passage and staircase, onus to establish that was upon the appellants-
plaintiffs, and which they fail to discharge because there is no rent deed to
show that tenancy of the appellants-plaintiffs besides the shop portions also
included the passage, staircase and the terrace/roof.
(ii) No rent receipts were filed and proved by the appellants-plaintiffs to
show that the same contained the extent of tenancy as including besides the
shops, the passage; connecting staircase and the roof of the shop. PW-2 Sh.
Mam Chand, Rent Collector on behalf of the erstwhile owners though stated
that roof was included in the tenancy, this was only an oral statement and
was rightly disbelieved especially for the reason that the said Sh. Mam
Chand, Rent Controller said that extent of tenancy was contained in the
counterfoils of the rent receipts but those counterfoils of the rent receipts
were neither filed nor proved.
It bears mention that there is no reason why the appellants would not
have got included in the rent receipts the passage, staircase and roof if really
these portions were within the tenanted portion. And, we are talking of
receipts not for a few months or years, but those issued for over 30-40 years.
Further, in the area of Old Delhi, where every square feet of property is
RSA 301&302/2005 Page 3 of 7
valuable and tenancies have protection of Delhi Rent Control Act, 1958 it is
not believable that if tenancy portion included areas of the passage; staircase
and roof, and which surely is a huge area, these portions would not have
been got shown in the rent receipts as being included in the tenancy area.
Appellants were commercial people and very much know the value of the
tenancy of its areas, more so, in Old Delhi, and thus if really the tenancy
portion would have included passage; staircase and terrace, appellants-
plaintiffs would have definitely got them included in the rent receipts or
taken from the landlords some or the other document to show that such area
was included in the tenancy premises.
(iii) The sale deeds executed in favour of the respondent no.1 herein in the
appeals by the erstwhile owners do not show that the appellants-plaintiffs are
tenants besides in the shop premises, also tenants of the passage, staircase
and the roof over the terrace. To this aspect I may add that there was no
reason for the erstwhile owners to wrongly mention the extent of the tenancy
premises in the sale deeds because there was no ulterior motive which has
been established in this regard for mentioning only shops on rent in the sale
deeds.
(iv) An important aspect was that appellants-plaintiffs had earlier filed a
suit against the respondent no.1, and plaint of which earlier suit was
RSA 301&302/2005 Page 4 of 7
exhibited before the trial court as DW1/P2. As per this suit plaint filed by the
appellants-plaintiffs seeking cancellation of the sale deeds in favour of
respondent no.1 in these appeals appellants/plaintiffs mentioned the extent
of the tenancy premises only as the shops, and in that earlier suit plaint there
is not even a whisper that the appellants-plaintiffs besides being tenants of
the shop are also tenants of the passage, staircase and the roof over the
shops.
(v) The appellants/plaintiffs cannot claim easementary rights without
such factual aspects first being pleaded, issue thereupon being framed and
evidence being led. I may note that entitlement to easement is only if in
terms of Section 15 of the Easement Act, 1882 rights of easement are
enjoyed for as long as 20 years. Importantly, an entitlement of tenancy
rights are wholly at variance and destructive of the claim in the same portion
for easementary rights because the claim of tenancy and easementary rights
cannot stand side by side. The fact that easementary right is pleaded, in my
opinion, itself destroys the case as put up by the appellants-plaintiffs that
they had tenancy rights in the passage, staircase and the roof.
3. Counsel for the appellants very strenuously and repeatedly argued
before this Court that the admitted position which emerges from record is
that appellants-plaintiffs were using the passage, staircase and the roof since
RSA 301&302/2005 Page 5 of 7
over 40 years, and therefore, the tenancy rights in this portion should be held
in favour of the appellants-plaintiffs. I do not agree. Mere user of a portion
will not necessarily lead to entitlement of important rights such as tenancy
rights in the portions. A landlord for various reasons may not object to use
of certain portions, more so in the facts of the present case, where the shops
were the only constructions on the ground floor and there was no
construction above and therefore, appellants could have used the passage,
staircase and the roof for opening of their goods packets as is their stand,
however, first appellate court rightly observes that valuable rights in an
immovable property in favour of the owners cannot be allowed to be got
destroyed merely because evidence is led of use of certain portions of the
appellants-plaintiffs. I also agree that valuable rights in an immovable
property, more so when such rights stop the entitlement of the owner to
construct all floors above the ground floor, cannot be destroyed once
appellants-plaintiffs failed to discharge the onus that they had tenancy not
only of the shops but also of the roof over the shops. To this aspect, I must
at the cost of repetition state that in the earlier plaint filed by the appellants-
plaintiffs/tenants no case was set up by them that they were tenants besides
of the shops also of passage, staircase and the roof.
4. In view of the above, no substantial question of law arises in this
RSA 301&302/2005 Page 6 of 7
appeal to be entertained under Section 100 CPC, and therefore the appeals
are dismissed, leaving the parties to bear their own costs.
JANUARY 30, 2014 VALMIKI J. MEHTA, J.
ib
