Delhi High Court
Bhupinder Kalra vs Paramjit Kaur & Ors on 29 September, 2016
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*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.
RFA No.60/2016 Page 1 of 29
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.
RFA No.60/2016 Page 2 of 29
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
RFA No.60/2016 Page 3 of 29
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
RFA No.60/2016 Page 4 of 29
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
RFA No.60/2016 Page 5 of 29
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)
RFA No.60/2016 Page 6 of 29
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.
RFA No.60/2016 Page 7 of 29
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.
RFA No.60/2016 Page 8 of 29
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.
RFA No.60/2016 Page 9 of 29
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
RFA No.60/2016 Page 10 of 29
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
RFA No.60/2016 Page 11 of 29
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.
RFA No.60/2016 Page 12 of 29
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.
RFA No.60/2016 Page 13 of 29
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
RFA No.60/2016 Page 14 of 29
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
RFA No.60/2016 Page 15 of 29
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.
RFA No.60/2016 Page 16 of 29
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
RFA No.60/2016 Page 17 of 29
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
RFA No.60/2016 Page 18 of 29
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
RFA No.60/2016 Page 19 of 29
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
RFA No.60/2016 Page 20 of 29
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
RFA No.60/2016 Page 21 of 29
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
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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
RFA No.60/2016 Page 23 of 29
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
RFA No.60/2016 Page 24 of 29
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
RFA No.60/2016 Page 25 of 29
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.
RFA No.60/2016 Page 26 of 29
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
RFA No.60/2016 Page 27 of 29
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.
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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‟..
RFA No.60/2016 Page 29 of 29