Bhupinder Kalra vs Paramjit Kaur & Ors
2016 Latest Caselaw 6277 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of decision:29th September, 2016

+      RFA 60/2016 & CM No.3975/2016 (for filing additional
       documents)

       BHUPINDER KALRA                                  ..... Appellant
                   Through:           Mr. K.C. Mittal & Ms. Ruchika
                                      Mittal, Advs.

                                   Versus

    PARAMJIT KAUR & ORS                      ..... Respondents

Through: Mr. Anil Gera, Adv.

CORAM:-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This first appeal under Section 96 of the Code of Civil Procedure,

1908 (CPC) impugns the judgment and decree dated 8th October, 2015 [of

the Court of the Additional District Judge (ADJ)-05 (West), Tis Hazari

Court, Delhi in CS No.1439/2011 (Unique ID No.02401C0338702011)] of

ejectment of the appellant from the shops on first and second floors above

the shop bearing no. 4, WZ-296, G-Block, Jail Road, Hari Nagar, New Delhi

and for recovery of Rs.4,30,000/- towards arrears of rent and of Rs.30,000/-

per month towards damages/use and occupation charges w.e.f. June, 2011

till the delivery of possession.

2. The appeal came up first before this Court on 3rd February, 2016 when

on being told that CM(M) No.872/2015 preferred by the appellant against

the order in the suit from which this appeal arises closing the right of the

appellant to cross examine the witnesses of the respondents/plaintiffs was

also pending consideration, the appeal was ordered to be listed along with

the said CM(M) No.872/2015. However it appears that CM(M) No.872/2015

was disposed of on 11th February, 2016 i.e. before this appeal could be listed

therewith. Accordingly, notice of this appeal was issued and Trial Court

record requisitioned. The appeal, on 3rd March, 2016 was admitted for

hearing and considering the nature of the controversy, was posted for

hearing on actual date and subject to the appellant/depositing the entire

decretal amount due towards mesne profits i.e. Rs.4,30,000/- plus

Rs.30,000/- per month w.e.f. June, 2011 till March, 2016 execution was

stayed. Vide subsequent order dated 28th March, 2016 the appellant was

permitted to deposit Fixed Deposit Receipt (FDR) in the name of the

Registrar General of this Court on the condition that the interest on the FDR

shall accrue to the benefit of the final order and will not be credited to the

account of the appellant.

3. The counsels were heard on 2nd May, 2016, 9th May, 2016 and 11th

May, 2016 and judgment reserved.

4. The respondents no.1,3&4 namely Smt. Paramjit Kaur, Sh. Darpreet

Singh and Smt. Simran Kaur (respondent no.2 Sh. Hardev Singh is the

husband of the respondent no.1 Smt. Paramjit Kaur and was not a party to

the suit and appears to have been erroneously impleaded) instituted the suit

from which this appeal arises, pleading (i) that the respondents/plaintiffs had

earlier let out the ground floor shop no.4, WZ-296, G-Block, Jail Road, Hari

Nagar, New Delhi to the appellant/defendant on 15th February, 2003 and

which tenancy was renewed from time to time and the last registered

Tenancy Agreement was dated 20th March, 2009 and the last paid rent of the

said shop was Rs.35,000/- per month; (ii) that the respondents/plaintiffs had

separately sued the appellant/defendant for ejectment from the said ground

floor shop; (iii) that the appellant/defendant, after taking the ground floor

shop on rent, requested the respondents/plaintiffs to construct two new

additional shops on the first floor and second floor of the said ground floor

shop and to which the respondents/plaintiffs agreed; (iv) that the

respondents/plaintiffs let out the two new additional shops on the first and

second floors to the appellant/defendant from 1st July, 2009 on a rent of

Rs.30,000/- per month; (v) that the appellant/defendant paid the rent of the

said first and second floor shops up to 31st March, 2010 and stopped paying

rent w.e.f. 1st April, 2010; and, (vi) that the respondents/plaintiffs vide notice

dated 3rd May, 2011 determined the tenancy of the appellant/defendant of

the said first floor and second floor shops but the appellant/defendant had

failed to vacate the same. Accordingly, the suit for the reliefs of ejectment of

the appellant/defendant from the said first and second floor shops, recovery

of arrears of rent/mesne profits and future mesne profits was filed.

5. The appellant/defendant contested the suit by filing a written

statement pleading (i) that there was no relationship of landlord and tenant

between the parties with respect to the first and second floor shops; (ii) that

the appellant/defendant was the owner of the first and second floor shops;

that though the appellant/defendant was the tenant under the

respondents/plaintiffs with respect to the ground floor shop but the

appellant/defendant was the owner of the first floor and second floor shops;

(iii) that in the Rent Agreement dated 15th February, 2003 between the

parties with respect to the ground floor shop the appellant/defendant had

been permitted to install the tin shed on the terrace of the ground floor shop

and to use the said terrace as a godown; (iv) similar clauses existed in the

subsequent Rent Agreements dated 22nd March, 2006 and 20th March, 2009

between the parties with respect to the ground floor shop; (v) that the

appellant/defendant at his own expense, in the year 2004 built the first floor

and the second floor above the ground floor shop and staircase for going

thereto; (vi) this construction was got done with the consent and knowledge

of the respondents/plaintiffs and with the understanding that the structure of

the first and second floors would vest with the appellant/defendant while the

ground floor shop would continue to be in the tenancy of the

appellant/defendant under the respondents/plaintiffs; (vii) that the

appellant/defendant while carrying out construction of the first floor and

second floor shops in early part of the year 2004 paid in cash a sum of

Rs.5,00,000/- to the respondents/plaintiffs for obtaining their consent and

acquiescence for securing absolute rights with respect to the first floor and

second floor shops; (viii) that the appellant/defendant spent a sum of

Rs.6,00,000/- towards construction; (ix) however in the Rent Agreements of

the years 2006 and 2009 the factum of the first and second floors was not

mentioned on the request of the respondents/plaintiffs; (x) that the

respondents/plaintiffs had requested the appellant/defendant to increase the

monthly rent of the ground floor shop to Rs.70,000/- and upon the

appellant/defendant not agreeing thereto, they first sent legal notice dated

30th August, 2010 and thereafter notice dated 25th September, 2010 of

termination of tenancy; (xi) that the respondents/plaintiffs prior to instituting

the subject suit had instituted the suit for ejectment with respect to the

ground floor shop and the subject suit was barred by Order II rule 2 of the

CPC; (xii) that the respondents/plaintiffs have no right to interfere with the

possession of the appellant/defendant of the first and second floor shops;

and, (xiii) that the appellant/defendant had never paid rent at a rate of

Rs.30,000/- per month or at any other rate with respect to the first and

second floor shops to the respondents/plaintiffs.

6.     No        replication   is   found   to   have   been   filed     by   the

respondents/plaintiffs.

7. On the pleadings aforesaid, the following issues were framed in the

suit on 18th September, 2012:-

"1. Whether the suit is barred under Order 2 Rule 2 CPC as pleaded in WS? (OPD)

2. Whether the defendant is the owner with regard to the first floor and second floor above shop no.4 of property bearing no. WZ-296, G-Block, Jail Road, Hari Nagar, New Delhi? (OPD)

3. Whether the plaintiffs let out the suit property to the defendant on 01.07.2009 on a monthly rent of Rs.30,000/- excluding other charges? (OPP)

4. Whether the tenancy of the defendant qua the suit property has been terminated vide legal notice dated 03.05.2011 w.e.f. 31.05.2011. If so, whether the plaintiffs are entitled to a decree of possession? (OPP)

5. Whether the plaintiffs are entitled to arrears of rent and damages as claim in the plaint? (OPP)

6. Relief."

8. Though on framing of the issues aforesaid the suit was posted for

evidence of the respondents/plaintiffs but vide order dated 26th April, 2013

on an application of the respondents/plaintiffs, the appellant/defendant was

directed to lead evidence first and the suit adjourned to 24 th July, 2013 and

26th July, 2013 for entire evidence of the appellant/defendant.

9. The appellant/defendant did not file affidavits by way of examination-

in-chief of his witnesses and on 24th July, 2013 sought adjournment and

without noticing that the suit was also posted on 26th July, 2013, the same

was adjourned for evidence of the appellant/defendant to 4th September,

2013.

10. On 4th September, 2013, the Advocates were abstaining from work

and the suit adjourned to 17th October, 2013.

11. No affidavits by way of evidence were filed by the

appellant/defendant till 17th October, 2013 also and on that date also

adjournment was sought; though the counsel for the respondents/plaintiffs

opposed but adjournment was granted and the suit adjourned to 29th

November, 2013 for evidence of the appellant/defendant with a direction to

the appellant/defendant to supply advance copies of the affidavits by way of

examination-in-chief.

12. On 29th November, 2013 also neither the witnesses of the

appellant/defendant appeared nor any affidavit by way of examination-in-

chief had been filed and adjournment was sought and granted with the

condition that "no further adjournment shall be granted". The suit was

adjourned to 10th January, 2014.

13. It appears that a transfer petition for transfer of the suit to some other

Judge was filed and accordingly adjournments were granted on 10th January,

2014 and 13th February, 2014. Finally on 14th February, 2014 the matter

again posted for evidence of the appellant/defendant to 19th March, 2014.

14. The appellant/defendant still did not file any affidavits by way of

examination-in-chief and no witness was present on 19th March, 2014.

Accordingly the evidence of the appellant/defendant was closed and the suit

posted to 27th May, 2014 for the evidence of the respondents/plaintiffs.

15. The respondents/plaintiffs filed affidavit by way of examination-in-

chief of their witness on 20th November, 2014; however none appeared for

the appellant/defendant despite repeated calls on that date and "in the

interest of justice" suit adjourned to 2nd February, 2015.

16. On 2nd February, 2015 also the counsel for the appellant/defendant

sought adjournment for cross examination of the witness of the

respondents/plaintiffs whose affidavit by way of examination-in-chief had

been tendered in evidence and the suit adjourned to 25th February, 2015.

17. On 25th February, 2015 again the counsel for the appellant/defendant

sought adjournment and though the same was opposed by the counsel for the

respondents/plaintiffs but granted and the suit adjourned to 25th March,

2015.

18. The appellant/defendant failed to cross examine the witness of the

respondents/plaintiffs on 25th March, 2015 also and instead filed an

application and sought reference to the Mediation cell.

19. Mediation remained unsuccessful and the suit was posted to 27th

August, 2015 for cross examination by the appellant/defendant of the

witness of the respondents/plaintiffs.

20. On 27th August, 2015 also the appellant/defendant did not cross

examine the witness of the respondents/plaintiffs and sought adjournment

which was refused and the right of the appellant/defendant to cross examine

the witness of the respondents/plaintiffs was closed.

21. The respondents/plaintiffs on 27th August, 2015 itself closed their

evidence and the suit was posted for final arguments to 18th September,

2015.

22. CM(M) No.872/2015 supra was preferred by the appellant/defendant

impugning the order dated 27th August, 2015 aforesaid closing the right of

the appellant/defendant to cross examine the witness of the

respondents/plaintiffs. The said petition came up first before this Court on

18th September, 2015 when notice thereof was issued though no stay of

proceedings before the Trial Court as sought granted.

23. The appellant/defendant accordingly, on 18th September, 2015 when

the suit was listed before the Trial Court for final hearing, sought

adjournment and which was granted and the suit adjourned to 8 th October,

2015 for arguments.

24. On 8th October, 2015 again the counsel for the appellant/defendant

sought adjournment and which was refused and the learned ADJ after

hearing the counsel for the respondents/plaintiffs decreed the suit as

aforesaid.

25. The CM(M) No.872/2015 supra was disposed of vide order dated 11th

February, 2016 observing that in view of the judgment and decree dated 8 th

October, 2015 the same had become infructuous.

26. The learned ADJ, in the impugned judgment (i) has decided issues

no.1&2 aforesaid against the appellant/defendant reasoning that the onus

thereof was on the appellant/defendant and the appellant/defendant by

failing to lead evidence had not discharged the onus; and, (ii) has on the

basis of unrebutted evidence of the witness of the respondents/plaintiffs

whom the appellant/defendant failed to cross examine despite opportunity,

decided issues no.3,4,&5 in favour of the respondents/plaintiffs and against

the appellant/defendant and accordingly decreed the suit.

27. The counsel for the appellant/defendant at the outset contended that

the learned ADJ erred in proceeding to decide the suit notwithstanding the

notice of the CM(M) petition aforesaid having been issued by this Court.

28. The question which arises is, whether a mere pendency of an appeal,

revision or a petition under Article 227 of the Constitution of India amounts

to a stay of further proceedings in the suit or other proceeding from an order

wherein such appeal, revision or petition under Article 227 has been

preferred.

29. The answer is obviously "no". Neither is there any provision in CPC

or in any other law to the said effect nor has any such jurisprudential

principle evolved over the years. Rather, Order XLI Rule 5 of the CPC

expressly provides that an appeal shall not operate as a stay of proceedings

under a decree or order appealed from except so far as the appellate court

may order.

30. It is quite obvious that the appellant/defendant also was fully

conscious of the same and for this reason only, along with the CM(M)

petition aforesaid, filed an application for stay of proceedings in the suit.

31. However this Court though issued notice of the CM(M) petition as

well as of the application for stay but did not grant any stay of proceedings

in the suit. Unequivocal indication from the refusal to grant stay of

proceedings in the suit was that the suit proceedings were intended to go on

and this Court while issuing notice of the CM(M) petition did not find the

facts to be such as to warrant stay of proceedings in the suit.

32. The question which further arises for consideration is, whether

notwithstanding this Court having not deemed the facts of the case fit

enough to grant stay of proceedings in the suit, the learned ADJ should have

nevertheless not proceeded with the matter.

33. The answer again obviously has to be in the negative. Once this Court

having supervisory jurisdiction had refused to grant stay of proceedings, to

hold that the learned ADJ should have not proceeded with the matter would

amount to the learned ADJ granting stay of proceedings which this Court

had not deemed appropriate to grant.

34. I must however record that in yesteryears, when all litigation was

bona fide and not used as a tool of oppression and coercion and the dockets

of the courts not bulging at the seams as they now are and it was possible to

grant short adjournments, the subordinate courts generally used to await the

outcome of an appeal or a revision or a petition under Article 227 of the

Constitution of India preferred against an order in the proceedings so as not

to compel the litigants to indulge in repeated rounds of litigation in the event

of the higher court reversing the decision/order. The counsel for the

appellant/defendant also in this regard has relied on Maya Singh Vs. Jawant

Rai 1975 Rajdhani Law Reporter (Note) 40 to contend that even if High

Court does not grant stay of proceedings in the Trial Court while admitting

petition against an interim order, Trial Court should not hastily proceed but

consider whether next date in the High Court was short or near and

accordingly adjourn the matter.

35. However the said indulgence granted by the courts is found to have

been abused by the litigants by, on the one hand taking adjournments in the

higher court and on the other hand stalling the proceedings in the

subordinate courts on the ground of pendency of proceedings in the High

Court. It is also not possible today to grant short adjournments as the cause

list of each court is blocked months in advance. Time has thus come for such

deference which was earlier shown by the subordinate courts to come to an

end and subordinate courts not treating the mere pendency of a proceeding

in a higher court as an automatic stay of the proceedings pending before

them. Of course, if in the facts of any case this Court feels a need for grant

of stay of proceedings before the subordinate court, certainly this Court in

exercise of its discretion would do so.

36. The appellant/defendant here is also similar found to be abusing the

process of the Court. I have hereinabove set-out in detail the repeated

adjournments taken by the appellant/defendant at each and every stage of

proceedings. The appellant/defendant on 18th September, 2015 was fully

aware of the next date of 8th October, 2015 for hearing final arguments fixed

by the learned ADJ and had an opportunity to approach this Court before

that for stay of proceedings but did not do so. The same is the demonstrative

of the appellant/defendant using the process of the Court to compel and

coerce the respondents/plaintiffs to settle with him.

37. Supreme Court, in Collector of Customs, Bombay Vs. M/s. Krishna

Sales (P) Ltd. 1994 Supp. (3) SCC 73 held, "As is well known, mere filing

of an appeal does not operate as a stay or suspension of the order appealed

against. Again, in Atma Ram Properties (P) Ltd. Vs. Federal Motors (P)

Ltd. (2005) 1 SCC 705, after observing that landlord-tenant litigation goes

on for an unreasonable length of time and tenants in possession of premises

do not miss any opportunity of filing appeals and revisions so long as they

can thereby afford to perpetuate the life of litigation and continue in

occupation of the premises, it was held "It is well settled that mere

preferring of an appeal does not operate as stay on the decree or order

appealed against nor on the proceedings in the court below". Yet against, in

Madan Kumar Singh (D) thr. LR. Vs. Distt. Magistrate, Sultanpur (2009)

9 SCC 79 it was held "It is trite to say that mere filing of a petition, appeal or

suit, would by itself not operate as stay until specific prayer in this regard is

made and orders thereon are passed."

38. Thus, no credence can be given to the observations made more than

40 years ago in the judgment cited by the counsel for the appellant/defendant

and no error can be found in the impugned judgment for the reason of the

same having been pronounced during the pendency of CM(M) petition

aforesaid.

39. Though the appellant/defendant in this appeal has not impugned the

order dated 19th March, 2014 of the learned ADJ of closure of his evidence

or the order dated 27th August, 2015 of closure of his right to cross examine

the witness of the respondents/plaintiffs, as the appellant/defendant could

have done under Order 43 Rule 1A of the CPC but I have nevertheless

considered the said aspect. The appellant/defendant in the Memorandum of

Appeal has however pleaded that the appellant/defendant was wrongly

called upon to lead evidence.

40. In my opinion neither can any error be found in the learned ADJ

requiring the appellant/defendant to lead evidence first nor can any error be

found in the order dated 19th March, 2014 closing the right of the

appellant/defendant to lead evidence or the order dated 27th August, 2015

closing the right of the appellant/defendant to cross examine the witness of

the respondents/plaintiffs.

41. The appellant/defendant was admittedly a tenant under the

respondents/plaintiffs with respect to the ground floor shop. It is the case of

the appellant/defendant that on the open terrace above the said shop he was

permitted to put up a tin shed and to use the same as a godown. The use by

the appellant/defendant of the said open terrace was thus, according to the

appellant/defendant, permitted by the respondents/plaintiffs. In this state of

pleadings, when the respondents/plaintiffs sued the appellant/defendant for

ejectment from the first and second floors shops pleading that the

appellant/defendant had been let out the first and second floors also and that

his tenancy had been terminated and in the face of the defence of the

appellant/defendant of having become the owner thereof, no error can be

found in the order of the learned ADJ of calling upon the

appellant/defendant to lead evidence first as the outcome of the case was

dependent upon the appellant/defendant proving his ownership. If the

appellant/defendant failed to prove his ownership, in the light of his

admissions as noted herein, his possession which was claimed to be peaceful

and lawful over the property admittedly belonging to the

respondents/plaintiffs had to be believed to be as a tenant. It was not the case

of the appellant/defendant that his possession of the said first floor and

second floor shops was adverse or hostile to the respondents/plaintiffs.

42. I say so because per Section 108 of the Transfer of Property Act, 1882

prescribing the rights and liabilities of lessor and lessee in the absence of a

contract to the contrary, if during the continuance of the lease any accession

is made to the property, such accession shall be deemed to be comprised in

the lease [see Section 108(B)(d)]. Reference may also be made to Section

108 (B) (h) of the Transfer of Property Act conferring right on a

lessee/tenant to (subject to contract to contrary), after determination of lease,

remove, at any time whilst he is in possession of the property leased, all

things which he has attached to the earth. Thus, a tenant is not entitled to

claim such accessions as his own property.

43. Merely because the appellant/defendant here claimed to have raised

the construction of the first and second floor shops himself and at his own

expense would not in law raise a presumption of the appellant/defendant

becoming owner thereof, even if he were to establish/prove so, without

further proving a contract to the contrary. The appellant/defendant pleaded

such contract to the contrary by averring that the respondents/plaintiffs had

for consideration of Rs.5 lacs, paid and received in cash and of which

payment/receipt no document was produced, sold the terrace above the

ground floor shop in his tenancy to the appellant/defendant. If the

appellant/defendant failed to prove so, as per Section 108(B)(d) supra, there

was legal presumption of the said first and second floor shops being in his

possession as a tenant under the respondents/plaintiffs, and with which case

the respondents/plaintiffs had instituted the suit. In these facts, no error can

be found with the direction to appellant/defendant to lead evidence first.

Only if the appellant/defendant by leading evidence first proved that the

respondents/plaintiffs had so sold the terrace above the ground floor shop to

the appellant/defendant, would the onus to disprove so and prove that the

appellant/defendant was tenant under the respondents/plaintiffs therein

would have shifted to the respondents/plaintiffs.

44. Though vide Order XVIII Rule 1 CPC, the plaintiff has the right to

begin but only unless the defendant admits the facts alleged by the plaintiff

and contends either in point of law or on some additional facts that the

plaintiff is not entitled to the relief. Here, the appellant/defendant, by

admitting tenancy of ground shop and permitted use of terrace and by

claiming to have purchased the same from respondents/plaintiffs admitted

ownership of respondents/plaintiffs of terrace. Law, as aforesaid, raises

presumption that even if construction on such terrace is made by

appellant/defendant, as claimed by him, the status of appellant/defendant in

the said premises would be as a tenant only and not as owner. It was thus

for the appellant/defendant to prove to the contrary. Supreme Court in Anil

Rishi Vs. Gurbaksh Singh (2006) 5 SCC 558 held that right to begin

follows onus probandi. Moreover, now that the suit has been finally

decided, all these issues pale into insignificance.

45. No error is also found in the order dated 19th March, 2014 of the

learned ADJ closing the evidence of the appellant/defendant. The

appellant/defendant had availed of as many as eight opportunities for leading

evidence and was clearly dragging his feet. I have recently in judgment

dated 7th September, 2016 in CS(OS) No.1602/2006 titled Samsung

Electronics Company Ltd. Vs. Gyanji Choudhary, for reason set-out in

detail there held that a litigant cannot choose to proceed with a litigation at

his own pace and the courts would be lacking in their duty to dispense

justice if allow such abuse of the process of Court.

46. Though the appellant/defendant has been unsuccessful in CM(M) No.

872/2015 preferred against the order dated 27th August, 2015 of closure of

his right to cross examine the witness of the respondents/plaintiffs but since

the CM(M) petition was not considered for the reason of the final judgment

and decree having been passed and since the appellant/defendant in this

appeal against the final judgment and decree, as aforesaid is entitled to

challenge the said order, I have also considered the said aspect. For the

reasons which have been stated above it has to be held that there is no error

in the said order. The appellant/defendant had been afforded five

opportunities to cross examine the witness of the respondents/plaintiffs and

witnesses cannot be compelled to come to the Court repeatedly for their

cross examination.

47. The counsel for the appellant/defendant, faced with aforesaid, argued

(i) that the respondents/plaintiffs had sued for ejectment of the

appellant/defendant as a tenant under them and the relationship of landlord

and tenant had not been established; (ii) that even though the

appellant/defendant has been unable to prove his claim of title as owner to

the first and second floors but if the respondents/plaintiffs are unable to

establish a landlord tenant relationship, they will have to sue the

appellant/defendant for possession on the basis of title as owner and after

paying court fees as per the market value of the property; (iii) that in the suit

for ejectment from the ground floor shop filed by the respondents/plaintiffs

against the appellant/defendant, no mention was made of the upper floors;

(iv) that while the respondents/plaintiffs claim having let out the first floor

and second floor shops to the appellant/defendant in the year 2009,

according to the appellant/defendant he was in possession thereof since the

year 2004; (v) that if the appellant/defendant succeeded in proving that the

superstructure of the first and second floors had been raised by him, the

respondents/plaintiffs would be entitled to decree for possession only after

the appellant/defendant had removed the superstructure; and, (vi) that the

respondents/plaintiffs had failed to prove that the superstructure of the first

and second floors was constructed by them;

48. During the hearing on 2nd May, 2016 and as recorded in the order of

that date I had enquired from the counsel for the appellant/defendant as to

what is the right of the appellant/defendant with respect to the first and

second floors de hors the legalese and technical objections and observed that

the appellant/defendant without any registered document and which he does

not have cannot possibly become the owner of the first and second floors. It

was further observed that even if the appellant/defendant claimed an

agreement by the respondents/plaintiffs of sale of the terrace rights above the

ground floor to the appellant/defendant, the appellant/defendant had to still

sue for specific performance of the Agreement to Sell and which the

appellant/defendant had not done. It was further enquired as to why this

Court should allow its process to be used when ultimately no right in law

with respect to the first and second floors emerged in favour of the

appellant/defendant. The counsel for the appellant/defendant on that date

had sought time to search for law on the said aspect.

49. The counsel for the appellant/defendant on the next date of hearing

referred to and relied on:-

(i) Laxmipat Singhania Vs. Larsen and Toubro Ltd. AIR 1951

Bombay 205 laying down that the effect of Section 108 (h) of

the Transfer of Property Act, 1882 is that the lessee is the

owner of the building put up by him although it is put up on the

land belonging to the lessor and may after the determination of

the lease remove all things which he has attached to the earth

including structure or buildings put up by him and that there

can be two distinct ownerships, one of the land and the other of

the structure.

(ii) Basant Lal Vs. State of Uttar Pradesh (1980) 4 SCC 430 - also

on Section 108 (h) supra.

(iii) Atmakur Venkatasubbiah Chetty Vs. Thirupurasundari

Ammal AIR 1965 Madras 185 (DB) - Referring to Dr. K. A.

Dhairyawan Vs. J. R. Thakur AIR 1958 SC 789 laying down

that the lessee would continue to be the owner of the

superstructure put up by him and superstructure would not vest

in the lessor.

(iv) Bishan Das Vs. State of Punjab AIR 1961 SC 1570 - laying

down that a person who bona fide puts up constructions on land

belonging to others, with their permission, is the owner of the

superstructure by the application of the maxim quicquid

plantatur solo, solo cedit.

50. The counsel for the appellant/defendant thus argued that the decree for

ejectment should be modified by permitting the appellant/defendant to

remove the superstructure put up by him of the first floor and second floor.

51. The counsel for the appellant/defendant during the hearing on 11 th

May, 2016 also handed over photocopy of a document obtained under Right

to Information Act, 2005 purporting to show the existence of the first and

second floors of the property as on 28th December, 2006 and argued that it is

not as if the appellant/defendant has no defence whatsoever to the suit and if

granted an opportunity to lead evidence and/or to cross examine, would

prove that the first floor and the second floor have been in existence since

prior to 2009, thereby nullifying the claim of the respondents/plaintiffs of

creation of tenancy thereof in the year 2009. It was argued that the

appellant/defendant on proving the same would be able to at least get a right

to remove the superstructure and salvage the cost thereof.

52. I have considered the aforesaid submissions.

53. Though the appellant/defendant in the written statement and even

during the arguments earlier made was denying relationship of landlord and

tenant with the respondents/plaintiffs, subsequently, by invoking clause (h)

of Section 108 (B) of the Transfer of Property Act is admitting existence of

such relationship. No provision of law entitling the appellant/defendant, if

not a tenant, to remove the superstructure has been shown. Thus, the

argument of the appellant/defendant of there being no relationship of

landlord and tenant and the decree for ejectment of the appellant/defendant

as a tenant being bad does not survive. Even otherwise, the same stands

proved from the evidence of respondents/plaintiffs and which has not been

rebutted by the appellant/defendant. Also, no ground for granting any fresh

opportunity to the appellant/defendant to lead evidence is made out.

54. Once it is not in dispute that the appellant/defendant was a tenant in

the premises, in the absence of a plea of a registered lease deed or of the

tenancy being covered by the provisions of the Delhi Rent Control Act, 1958

(as indeed it could not be as the rent of the ground floor was admittedly

Rs.35,000/- per month, much above the threshold of Rs.3,500/- per month

for the applicability of the said Act), no error as pleaded in the

Memorandum of Appeal or as earlier argued can be found with the decree

for ejectment.

55. The only question which remains is whether the appellant/defendant is

entitled to take away the superstructure of the first and second floors and/or

entitled to any compensation therefor.

56. The appellant/defendant, to be entitled to such relief, ought to have

pleaded and proved the same and which it has not pleaded and proved.

Supreme Court, in Dr. K.A. Dhairyawan supra held that if the lessee does

not exercise the right to superstructure, the superstructure becomes part of

the demised premises and thereafter if the lessee continues in possession as a

tenant, he will be a tenant of the land as well as of the superstructure and the

superstructure becomes the property of the landlord without any further

conveyance or formal transfer of the superstructure from the lessee to the

lessor. I have also perused the Trial Court file. The appellant/defendant has

not filed a single document lest documents to show that the construction of

the first floor and second floor was undertaken by him or that monies

thereon were spent by him thereon. No claim also to this effect was made in

the written statement. In this state of affairs, the argument, of being allowed

to take away the superstructure, is nothing but an argument of desperation.

57. There is another aspect. I enquired from the counsel for the

appellant/defendant what permissions, as are required under the Municipal

Laws, were obtained for making the construction. No such permissions were

disclosed. Thus the construction even if any by the appellant/defendant is

illegal and no credence or benefit thereof can be given.

58. I may record that during the course of hearing it was also informed

that the appellant/defendant has already, as far back as in April, 2015 been

evicted from the ground floor shop and that the first floor and second floor

shops are now merely lying locked.

59. No merit is thus found in the appeal.

60. Dismissed.

61. Decree sheet be drawn up.

62. The FDR deposited by the appellant/defendant in this Court be

encashed forthwith and the amount thereof together with interest accrued

thereon be released in favour of the respondents/plaintiffs.

RAJIV SAHAI ENDLAW, J.

SEPTEMBER 29, 2016 „pp‟..