Delhi District Court
Hari Prakash vs Sh. Keshav Samarak Samiti on 24 April, 2008
IN THE COURT OF SH. SUNIL KUMAR AGGARWAL
ADDL. DISTRICT JUDGE, DELHI
RCA No. 6/07
Hari Prakash
S/o. Late Sh. Mool Chand
R/o. 10196, Jhandewalan
New Delhi - 110 005 .... Appellant
Versus
Sh. Keshav Samarak Samiti
(Society Registered Under
Society Registration Act)
Keshav Kunj, Jhandewalan
New Delhi .... Respondent
Appeal presented on 02.02.07.
JUDG MENT
1. This civil appeal has been filed by the appellant
who was the Defendant in the suit before Ld. trial Court,
taking exception to the judgment dated 03.01.07 passed
against him whereby he and his agents were restrained from
raising any construction in the tenanted premises comprising
one tin shed room only shown bounded in red colour in site
plan Ex. PW1/10 and direction by way of mandatory
injunction to remove the tin shed in front of the tenanted tin
shed room besides removing the latrine as reflected in the
site plan.
2. Facts necessary for disposal of the appeal are
..2..
that the Respondent/Plaintiff had filed suit for perpetual and
mandatory injunction against Defendant contending that a
portion of the area in occupation of Badri Bhagat
Jhandewalan Temple Society falling in khasra No. 40, Mauza
Jhandewalan, New Delhi inclusive of the property let out to
Sh. Mool Chand deceased father of the Defendant , was
taken on lease by the Plaintiff society. Sh. Mool Chand was
a tenant in respect of one tin shed room measuring 13''X
10''as shown in site plan. By virtue of attornment notice, he
had accepted himself to be the tenant of Plaintiff and had
started paying rent of the tenanted premises . After his
demise Defendant being his son stepped into his shoes and
started paying rent to the Plaintiff. Alleging that the
Defendant has raised unauthorized and illegal construction
of one tin shed measuring 13''X10'' adjoining the existing
tenanted room besides the latrine at some distance without
consent of the Plaintiff and is intending to raise further
construction in the property, the suit was filed.
3. In the Written statement Defendant challenged
the locus standi of Plaintiff to file and maintain the suit as the
licence of Badri Bhagat Jhandewalan Temple Society was
cancelled by the DDA. Neither the said society nor Plaintiff
..3..
therefore have any right in the suit premises of which DDA is
owner. It was contended that the suit without impleading
Badri Bhagat Jhandewalan Temple Society and DDA, is
incompetent. Regarding the construction, it has been
averred that the construction is existing in the premises since
the time it was taken by the father of Defendant and only a
tin shed, which had worn out, had been changed as the
Plaintiff had not been effecting necessary repairs. It has
been denied that any unauthorized or illegal construction in
the suit premises has been raised. Following issues were
framed by Ld. trial Court on 08.10.93:
1. Whether the Plaintiff has no locus standi to file the present
suit? OPD
2. Whether the suit is not maintainable for the reasons of non-
joinder of necessary parties? OPD
3. Whether the Defendant has raised unauthorized
constructions and if any up to what effect? OPP
4. Whether the Plaintiff is entitled to the relief claimed? OPP
5. Relief
4. Whereas the Plaintiff had examined 4 witnesses to
support its case, the Defendant has examined three
..4..
witnesses in support of his defence. The Ld. trial Court vide
impugned judgment decreed the suit in favour of the Plaintiff
for both the claimed reliefs.
5. The Defendant is aggrieved by the judgment as
the same has been passed without appreciating that all
constructions existing over property prior to 22.1.90 were
regularized by Hon'bleHigh Court vide its judgment passed in
Suit No. 1679/82. The DDA considering itself to be the owner
of entire area has been issuing notice to the residents of
Mauza Jhandewalan for eviction therefrom. It has further
been contended that the suit filed against the spirit of
judgment dated 22.10.90 should have been dismissed. No
construction has been carried out by the Defendant in the
suit premises. Previously there were dry latrines. On the
availability of sewer connection it was connected to the
sewer line. Said conversion cannot be termed unauthorized
construction. One pucca room, one tin shed infront there of,
one dry latrine and open space with boundary wall had
been let out to Sh. Mool Chand. Roof of tenanted rooms
had badly damaged and it used to be rendered inhabitable
during rainy season. Defendant therefore had only repaired
the roof which is neither in violation of relevant rules nor
..5..
could be termed unauthorized construction. The suit was
filed just to coerce the Defendant to vacate the suit
premises. Neither the Plaintiff nor Badri Bhagat Jhandewalan
Temple Society has filed documents to show their title to the
suit property which fact was not taken into account by Ld.
trial Court. Plaintiff even failed to prove its registration as a
society reflecting that the certified copy was manipulated
for the purposes of this case. Employee of Respondent
forcibly obtained signatures of Defendant on rent receipts
which were later on used against the tenant. The
appreciation of facts should have bent the case towards
Defendant but the Ld. trial Court did not do so. Therefore the
appeal.
6. I have heard Sh. B S Chauhan Advocate Ld.
Counsel for the Defendant / Appellant, Sh. Alok Kumar
Advocate Ld. Counsel for the Respondent / Plaintiff and
carefully perused the file.
7. The judgment has been cursorily challenged so far
as issues No. 1 and 2 are concerned. The main thrust of
appeal is against the findings of Ld. Trial Court on rest of the
the issues. So far as the locus standi of Plaintiff to file and
..6..
maintain the suit is concerned, Defendant and his
predecessor-in-interest having unreservedly attorned to it,
cannot challenge its title in terms of the provisions of section
116 of Indian Evidence Act. Defendant has categorically
admitted his signatures on rent receipt Ex. PW 1/4. Although
he tried to put a rider that the same were obtained by Sh.
Ranjeet Singh, employee of Plaintiff under threat of eviction
yet reflected that no exception thereto was ever taken /
raised by him. Neither any complaint against alleged threat
was lodged with law enforcing authority nor the matter was
taken up with Plaintiff and for that matter Badri Bhagat
Jhendewalan Temple Society. No grievance of this nature
was mentioned in the Written statement either. The
attempted rider thus has been raked up by way of an after
thought.
8. Even the predecessor-in-interest of the Defendant
had accepted Plaintiff to be his landlord by making
payment of rent vide receipts Ex. PW 1/5 and Ex. PW 1/6. In
fact the former reflected that the rent had been tendered to
Plaintiff even prior to the date of formal attornment w.e.f
01.11.07 per letter Ex. PW 1/7 and acceptance Ex. PW1/8.
..7..
9. Sh. Chauhan sought to put imputations on the
conduct of DDA in not defending Suit No. 1679/82 in the
Hon'bleHigh Court and allowed it to be decreed ex-parte in
favour of Plaintiff and Badri Bhagat Jhandewalan Temple
Society on 22.01.90. It has further been alleged that DDA
even did not pursue their application U/o. 9 Rule 13 CPC
being IA No. 2034/90 diligently. The arguments however are
of no consequences as the Court is not to go behind the
orders passed by the Hon'ble High Court
.
10. The contention that Plaintiff could not prove its registration as a Society and thus project itself as a juristic person is misconceived. The onus to prove issue that the Plaintiff has no locus standi was upon the Defendant in which he has utterly failed in as much as PW3 Sh. Kulbir Singh from the office of Registrar of Societies was not even cross examined by the Defendant. The findings of Ld. Trial Court on issue No. 1 thus are upheld with the addition of above reasons.
11. The cloud over the entitlement of Plaintiff and its predecessor-in-interest, Badri Bhagat Jhandewalan Temple Society, in the shape of notice dated 30.11.89 whereby ..8..
licence of property was cancelled by DDA, was cleared by the judgment Ex. PW 1/9 of Hon'bleHigh Court. As has already been observed that the Defendant having accepted Plaintiff as landlord of suit premises, there is no need to either join its predecessor-in-interest or DDA in the suit. The reasons given by Ld. Trial Court for deciding the issue No. 2 against Defendant are sound and sufficient.
12. There is no rent agreement/lease deed in respect of suit premises between the parties or their respective predecessors-in-interest. Much stress has been laid by the Defendant on attornment notice Ex. PW 1/7 to show that the description of tenancy premises has not been disclosed. The claim of Plaintiff therefore, that only one tin shed room had been let out to Sh. Mool Chand is exaggerated and does not borne out of record. By referring his letters Ex. PW 4/1 to Ex. PW 4/3 addressed by the Plaintiff to MCD and police, it is contended that the Plaintiff is not aware of the date of alleged construction of room . The fact that the police admittedly did not take any action on the complaints shows that there is no substance in them and the letters had been written if at all, only to make out a ground to evict the ..9..
Defendant from suit premises.
13. Except the three rent receipts, actually counterfoils, proved as Ex. PW 1/4 to Ex. PW 1/6, there is no document to discern the extent/ description of tenancy premises of Defendant . Defendant could have easily proved the unauthorized addition of description of tenancy premises in the counterfoils by producing the corresponding rent receipts. By withholding the vital documents, he sought to distance himself from the contents of those documents by disputing the signatures of his father and averring that his signatures on Ex. PW ¼ were obtained by Sh. Ranjeet Singh, rent collector of Plaintiff, by force and putting him under threat of eviction. Strangely enough no suggestions to dispute these documents were given to PW 1 in cross examination. It has been held in 17 (1980) DLT 431 that inference of a witness not cross examined on a point is that his testimony is accepted by the opposite party. Reference in this behalf may also be made to the ratio of Rajender Prasad V Darshana Devi , 2001 VI AD (SC) 272.
14. Defendant claimed that his father used to sign in Urdu language but did not produce his bank details despite ..10..
having the same in his custody nor called any witness therefrom with specimen signature card of his father. He is the best person to have the documents bearing signatures of his father but not a single document bearing signatures of Sh. Mool chand in Urdu has been filed. The assertion of PW 1 is that he had seen Sh. Mool Chand writing and signing on which basis signatures on Ex. PW 1/5 and Ex. PW 1/6 were identified , has not been put to contest in cross examination. It has already been observed that Defendant did not take action against alleged threats extended to him, as any prudent person would have done, in the context of receipt Ex. PW 1/4.
15. All these receipts distinctly specify the description of tenancy premises as '' one room with tin shed''.
While the Plaintiff thereby has been able to prove the extent / description of tenancy premises of Sh. Mool Chand and thereafter of the Defendant, latter failed to discharge the onus that had shifted to him. Neither the records from Badri Bhagat Jhandewalan Temple Society have been summoned to prove the extent of tenancy being two tin shed rooms and a dry latrine nor even any individual witness who might have seen the two rooms and latrine in existence over the suit ..11..
property prior to 1988 has been examined. No photographs of the property taken at any of the functions held at the suit property prior to 1988 showing two rooms have been produced. The Ld. Trial Court thus came to the logical conclusion that one room and latrine have been subsequently added to the tenanted premises by the Defendant. The fact that Plaintiff does not know the exact date or duration within which the additions in the suit premises were brought about by the Defendant could have influenced the Court for deciding the application for interim relief but hardly make any difference so far as the rights of Plaintiff for the relief claimed in the suit is concerned.
16. It has been innocuously put forth that the latrine has just been converted from dry to one connected with sewer. There is no such averment in the Written statement Defendant appearing as DW 1 did not whisper about such conversion. He thus cannot be allowed to take a new plea for the first time in appeal.
17. It has been alleged that since the Plaintiff failed to carry out necessary repairs in the tenanted roof of premises, Defendant had to change the tin shed to make the room ..12..
habitable. There is no pleading of Plaintiff have ever been called upon to effect the repairs to discern its negligence. The mason and labourer have not been examined by the Defendant to say that they had just effect repairs in the suit premises. The necessary corollary of above discussion is that the Defendant had unauthorizedly raise construction of one tin shed room adjoining the tenancy room and latrine. The conclusion of Ld. Trial Court on issue No. 3 thus is sustained.
18. Section 108 of The Transfer of Property Act, broadly describes the rights and liabilities of lessor and lessee. Sub section ( p) thereof only is relevant for the present purposes. It is narrated hereunder:
'' the lessee must not , without the lessor'sconsent, erect on the property any permanent structure, except for agricultural purposes''
19. Admittedly the suit premises had neither been let out nor have been used for agricultural purposes. Ld. Counsel for the Defendant contended that as per prevailing building bye laws a tin shed room cannot be termed to be ''permanentstructure''.Apart from the oral submissions neither the relevant bye law / regulation has been specified nor any precedent in this behalf has been cited.
..13..
20. Right to enjoy possession of premises cannot include the right to include permanent structure which would not be easily removable and the removal of which might injuriously affect the parties, implying thereby that the removability of the offending structure without injuriously affecting the tenanted property is a very important test per Khureshi Ibrahim Vs Ahmad Hazi, Air 1965 Gujrat 152, which has been followed in Ali Saheb Vs Abdul Karim , AIR 1981 Bombay 253.Reference in the context may also be made to Dukari Saha Vs Kumariesh, AIR 1990 Calcutta 143.
21. It has been held in (1998) 2 Rent CJ 214 that unauthorized addition or alteration by itself is not covered under section 108 (p). In order to attract it , it must be proved that a lessee has erected only property any permanent structure without the lessor's consent.
22. The word ''permanent'' appears to have been used in contradistinction to what is temporary . If the work of conversion or construction is substantial or brings about a substantial change in the character of the premises and it is not merely a small physical change of a temporary or unsubstantial nature such work of construction falls within the ..14..
mischief of section 108 (p) . The test of removability or demolition is not an invariable test because even permanent structures like building or walls can be demolished or removed. It is a mixed question of fact and law in each case whether the extent or degree of construction or erection is such as to make it partake the character of permanent structure. The nature and situs of structure, the mode of annexation, the intention of tenant and surrounding circumstances should be taken into account to ascertain about the permanency of particular structure. AIR 1990 Calcutta 143 , AIR 1987 SC 1939 .
23. Alterations have been held to be material even though they may not cause any damage to the premises or substantially diminish their value in Manmohan Dass V Bishnu Dass, AIR 1967 SC 643.
24. A Structure with walls of bricks and roof of corrugated sheets was held to be '' a permanent structure'' in Surya Properties (P) Ltd V Bimlendu Nath Sarkar , AIR 1965 Calcutta 408.
..15..
25. Applying the ratios to the facts in appeal that addition of one room with tin shed adjoining to the existing tenanted room as well as latrine are permanent structures n for which no consent of Plaintiff was sought whereby its interests have been grossly jeopardized. The Plaintiff therefore, is within its rights to seek restoration of suit premises by the Defendant by removing the offending structures. The conduct of Defendant has made it apprehensive that he may raise construction in the tenancy premises for which relief of perpetual injunction was claimed. The findings of Ld. trial Court on issue No. 4 thus were sequel of the outcome of issue No. 3 coupled with the above reasons, therefore, upheld.
26. No other point has been raised in the appeal. For the aforegoing reasons I find no substance in the appeal. The same is therefore dismissed with costs. ANNOUNCED IN THE OPEN (SUNIL KR AGGARWAL) COURT ON DATED:24.04.08 ADDL. DISTRICT JUDGE DELHI RCA No. 06/07 24.04.08 Present: None for the parties.
Vide separate judgment dictated and announced. The appeal has been dismissed with costs. Trial Court file is released. Same be returned with a copy of judgment in appeal.
Appeal file be consigned to record room.
(Sunil Kr Aggarwal) ADJ/Delhi 24.04.08