Delhi District Court
M/S Bharat Timbermerchant vs Shri Brahm Prakash on 1 February, 2008
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IN THE COURT OF SHRI NEERAJ KUMAR GUPTA:
ADDL. DISTRICT JUDGE;DELHI
RCA No.125/06
1. M/s Bharat TimberMerchant
shop at WP-479, Shiv Market,
Wazirpur, Delhi
2. Shri Virender Chopra
S/o Shri Kewal Krishan Chopra,
C-94, Shivaji Park, New Delhi
now at A-3/17, Paschim Vihar,
New Delhi .......Appellants
Versus
Shri Brahm Prakash
S/o Shri Harchain Singh
R/o WP-288, Wazirpur, Delhi .......Respondents
ooOoo RCA No. 45/07 Shri Brahm Prakash S/o Shri Harchain Singh R/o WP-288, Wazirpur, Delhi .......Appellants Versus
1. M.s Bharat Timber Merchant shop at WP-479, Shiv Market, Wazirpur, Delhi
2. Shri Virender Chopra S/o Shri Kewal Krishan Chopra, C-94, Shivaji Park, New Delhi now at A-3/17, Paschim Vihar, New Delhi ......Respondents.
ooOoo 2 Date of Institution 15.10.2005 & 24.10.2005 Date on which order reserved- 14.1.2008 Date on which order announced - 1.02.2008 J u d g m e n t:
By this common judgment, I shall dispose off two appeals arising out of same judgment and decree dated 15.9.2005 passed by the trial court.
2. The facts are that a suit for mandatory and permanent injunction was filed by one Brahm Parkash & Another against Bharat Timber Merchant and Virendra Chopra proprietor of Bharat Timber Merchant with the pleadings that the plaintiff alongwith his brother and father formed a joint Hindu Family and the said Joint Hindu Family was owning property bearing No. WP-
480, Shiv Market, Wazirpur and that by virtue of an oral settlement effected in March, 1975, an open piece of land measuring 23'X23' bearing No. WP 480/4, Shiv Market, fell to the share of the plaintiff who became the absolute owner thereof. It is also the case that the plaintiff namely Brahm Parkash that after he became the owner it is he who used to collect the rent in respect of the property which has fallen to the share of the plaintiff which portion was earlier let out by the father of the 3 plaintiff to the defendant in the shape of an open piece of land for storing wood but it was on 14.12.1987, the defendant i.e Virender Chopra, proprietor of M/s Bharat Timber Merchant started digging out the foundation and placed 4 iron guarders and girders and when he was confronted by the plaintiff, the defendant told him that he will cover the entire plot compelling the plaintiff to lodge the complaint with the police and it was on 18.12.1987, the defendant wanted to raise the wall for covering he tenanted premises with an iron sheet and collected building material. On these pleadings, the plaintiff has sought the relief of mandatory injunction for demolishing the structure already erected on 14.12.1987 as the premises let out were an open piece of land and further relief of permanent injunction was sought on the plea that the defendant be restrained from raising any further construction or making addition/alteration in the premises so as to carry out structural change in the property.
3. It was also the case of the plaintiff that the defendant is also a tenant in property No. WP 479 which is adjacent to the property of the plaintiff and is the only mean of ingress and outgress of the plaintiff to the suit property. 4
4. The defense taken by the defendant Virender Chopra, in his written statement was that the plaintiff has no locus standi to file the present suit he being not the owner of the tenanted premises and that the suit is bad for nonjoinder of necessary parties. It was also stated that the plaintiff has no cause of action for filing the present suit. On merits, it was stated that Harchain Singh who is the father of the plaintiff had let out the property to the defendant at a monthly rent of Rs. 250/- in the year 1975 and the defendant with their own costs and expenses got erected a shed over the said plot immediately after taking over the possession thereof and the construction so raised was with the consent and permission of the father of the plaintiff.
5. Though it is stated that the defendant has not become the owner as the property was not Joint Hindu Family Property nor any settlement ever took place but it is stated by the defendant himself in the written statement that the father of the plaintiff firstly issued rent receipts in his own name and thereafter in the name of the plaintiff and that lastly the rent is being realised by the plaintiff in his own name from the defendant firm. 5
6. So far as the question of locus standi is concerned though it is the case of the parties that earlier the property was let out by the father of the plaintiff but evenif the defendant has failed to prove any oral settlement still the fact remains that it is the admission of the defendant that at the time of filing of the suit, it is the plaintiff who was realising the rent and earlier also the rent receipts were issued for quite long time in the name of the plaintiff. As such, the plaintiff has the locus standi to file the present suit inasmuch as the defendant has attorned the plaintiff as their landlord.
7. It is also the case of the defendant that the plaintiff offered an adjacent piece of land measuring about 23'X23" to the defendant to be let out at a monthly rent of Rs. 1500/- to which proposal the defendant agreed and the said plot was also taken on rent by the defendant since 1.1.1987 and it was agreed that the defendant would get a shed erected thereon with its own expenses. However, the defendant could not get the same effected because of shortage of fund and since the value of the property has gone up, the plaintiff started pressurizing the 6 defendant to vacate the plot and on or about 18.1.1988, the plaintiff removed the entire material such as sleepers, sillies etc from the said plot and tried to dispossess the defendant and a complaint was lodged in this regard but the plaintiff further threatened not to keep any material in the open plot and the police refused to record the complaint. As such, the defendant filed a suit U/s 6 of the Specific Relief Act which is pending.
8. Digging of foundation or raising of girders and angles have been denied by the defendant as alleged or otherwise.
9. Ld trial court, so far as the relief of mandatory injunction, has rejected the said prayer on the findings that the plaintiff had failed to prove that any structural changes were made and that the construction raised cannot be termed to illegal and unauthorized also and simply amount to minor alterations and has relied upon AIR 1977 SC 517, AIR 1988 SC 293, 1988 Rajdhani Law Reporter (SC) 622, AIR 1986 Delhi 226 etc.
10. Ld trial court has failed to place reliance on the report of the LC though the defendants have not filed any objection to 7 the same and had further given a finding that though it is the stand of the defendant that they raised the construction immediately after the property was let out in 1975 but has failed to prove such a fact.
11. The plaintiff has come in appeal against the dismissal of his prayer declining grant of mandatory injunction.
12. The ld trial court had decreed the suit of the plaintiff so far as the relief of permanent injunction is concerned and has given a finding that though the additions and alterations so raised by the defendant will not amount to structural changes, yet, since they have done it though the premises let out were an open piece of land, there is a cause of action in favour of the plaintiff and is entitled to a decree for permanent injunction and passed the decree directing and restraining the defendants, their agents and servants from carrying out any further addition/alteration or construction in the tenanted premises bearing No. SP 480/4, Shiv Market, Wazirpur, Delhi. The defendants have preferred an appeal against grant of such an injunction.
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13. The plaintiff whose suit for mandatory injunction was dismissed had pleaded in the appeal that the order of the trial court is not sustainable inasmuch as the trial court had wrongly rejected the report of the LC on the simple plea that Local Commissioner has not been examined though there was no need to examine Local Commissioner and that the finding given by the trial court that the alterations raised could not be termed as material alterations amounting to structural changes which case was not pleaded by any of the parties and that by raising contruction, over the open plot, the defendants had tried to bring out the same within the purview of the Delhi Rent Control Act as otherwise an open piece of land is out of the purview of Delhi Rent Control Act and furthermore, since structure has been raised in the shape of tin shed, the property will not be assessed to property tax on unit area method but otherwise the property was not assessed to house tax and that a tenant cannot change the nature of the property.
14. It is also argued that since there is definite evidence that foundations were raised and dug, it cannot be said that it will not amount to structural change.
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15. It has also been argued that on the one hand, the trial court has not believed the version of the defendant that the construction was raised immediately after the tenancy commenced and as such, the trial court ought to have granted the mandatory injunction. Since the construction was raised without permission, which is otherwise evident from the receipts proved on record wherein the tenanted premises has been shown only as an open piece of land.
16. In the appeal filed by the defendant against grant of temporary injunction, it has been argued that the plaintiff had failed to produce father who was the Karta of the alleged Joint Hindu Family, it cannot be said that any earlier partition took place or that the construction was raised without the approval of the plaintiff.
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17. It is also argued that since the father is alive, the plaintiff has no cause of action or locus standi to file the present suit and with regard to the cause of action, it is stated that PW2 & PW# have admitted that nothing happened on 14.12.1987 and 18.12.1987.
18. It is also argued that the site plan filed by the plaintiff is not proved on record as the architect who has prepared the same has not been produced as a witness.
19. It is also argued that since the plaintiff had thrown away the goods of the defendant from another tenanted premises and has taken illegal possession against which a suit has been filed U/s 6 of the specific Relief Act, it can be said that the plaintiff has not come to the court with clean hand and as such is not entitled for any injunction.
20. I have heard the ld counsels for the parties and have carefully perused the entire record.
21. So far as the contention of appellant Brahm Parkash that ld trial court has not considered the report of the Local 11 Commissioner on the ground that Local Commissioner has not been produced as a witness is concerned, the findingn of the trial court cannot be sustained in this regard. Perusal of file reveals that objections were not filed by the other side to the report of the Local Commissioner and in the report and in the proceedings allowed the report, it is specifically mentioned that inspection was carried out in the presence of other party. Local Commissioner has also given a finding that the addition and alterations were afresh. Reliance in this regard was placed upon case of Harbhajan Singh v. Smt. Shakuntala Devi Sharma and another, AIR 1976 Delhi 175 wherein it was held that the report of the Local Commissioner is admissible per se but in case there are objections to the report, the same has to be dealt with by the court in the judgment and for that purpose Local Commissioner is to be examined. In the present case, the objections have not been filed and the report is admissible as it is.
22. The report of the Local Commissioner further shows that the construction was afresh and as such, the version of the other party that construction was raised as far back as in 1976 cannot be believed. It is not the case of the defendant that 12 initially, the construction was raised but since there was some damage to the construction already made, only the repair work was being done. As such, it is proved on record that the construction was raised only before the filing of the suit.
23. Ld counsel for the respondent had argued that PW3 had stated in his cross-examination that nothing happened in his presence on 14.12.1987 and 18.12.1987 and as such, the very version of the plaintiff that on 14.12.1987, he found certain constructions have been raised and on 18.12.1987 the plaintiff was threatened by the defendant to raise further construction cannot be believed. Nodoubt the testimony of PW3 do not inspire any confidence and as such, is liable to be rejected in this regard. However, the fact remains that so far as the incident of 14.12.1987 and 18.12.1987 is concerned, plaintiff as PW1 has deposed so and no cross-examination has been conducted on the plaintiff in this regard. Even PW2 has deposed about the incident and his credibility could not be shaken. As such, the incident of 14.12.1987 and 18.12.1987 stands proved by the version of PW1 & PW2 which is otherwise duly supported from the report of Local Commissioner who has given a finding that the construction was 13 new.
24. However, the finding of the trial court that the constructions are not permanent constructions which have altered the nature of the premises material is sound and cannot be interferred with. Even PW1 in his cross-examination had stated that at present, the defendant has put a tin shed and fixed iron angles in the suit property. The same will otherwise not amount to raising of any construction of permanent nature and the fact remains that it is the own case of the plaintiff that the land was let out for the purpose of storage of wood and it is but natural that some protection has to be given to the wood so stored and tin shed being temporary structure can be removed at any stage was a necessity for the defendant. As such, the suit praying the relief for mandatory injunction has rightly been dismissed by the trial court.
25. The appeal filed by Brahm Prakash, as such, stands dismissed.
26. So far as the appeal filed by Bharat Timber Merchant against the order granting relief of permanent injunction is 14 concerned, the case of the plaintiff in the plaint and the case put up in his evidence is to be considered. In the plaint, in para 3, the version of the plaintiff is that an open piece of land measuring 23'X23' fell to the share of the plaintiff by virtue of family settlement forming part of land bearing No. WP 480/4, Shiva Market, Wazirpur and in para 4, it is specifically stated that the said open land was taken by the defendant for storage of wood. So, the version of the plaintiff is that the father of the plaintiff let out a land measuring 23'X23' to the defendant.
27. The defendant in his written statement has categorically stated that the tenancy was created in respect of land measuring 23 ½ 'X28' and it was in 1987 that another piece of land at the rate of Rs. 1500/- was let out which measure 23'X23'.
28. The plaintiff without amending the plaint has come up absolutely with a new version in its replication which cannot form part of the pleadings and the averrments made therein cannot be considered as part of the pleadings .For the first time it has been stated that no doubt, the piece of land which was given in tenancy to the defendant was 23'X28' but, in 1987 since the defendant was 15 in arrears of rent and the defendant could not pay the same, he agreed to enhance the rent from Rs. 250/- to Rs. 1500/- to save himself from an eviction decree and also surrender part of the tenanted premises to the plaintiff. Not only the entire version cannot be looked into being beyond pleadings and even otherwise, the same cannot be believed or trusted as in case a person is unable to pay rent at the rate of Rs. 250/- it is impossible to believe that he will enhance the rent to Rs. 1500/- and will continue to pay the same at the same rate. Rs. 1500/- is six times Rs. 250/- and three years rent even if in arrears will be covered by payment of rent for five months at the rate of Rs. 1500/- and thereafter, the liability will increase. It is unthinkable that a person will surrender a portion of the tenancy and will increase the rent. So, in a way it can be said that the plaintiff has admitted that the piece of land which was let out was 23 ½'X28'. It is the own case of the plaintiff that only a portion measuring 23'X23' fell into his share. As such, for the remaining portion, the father of the plaintiff continued to be the landlord. Even in the receipt filed and proved by the plaintiff, as Ex. PW1/2, the measurments of the premises have been shown as 23 ½'X28'. Similar is the position in receipts Ex. DW1/P-2 to DW1/P-6.
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29. Counsel for plaintiff/respondent herein has argued that subsequent receipt from February, 1987 Ex. DW1/D-7 mentions the size of the plot as 23'X23' and the plot Number is 480/4. The same is incorrect as plot number is not mentioned in the body of the receipt but as an address of the plaintiff and it is not disputed by the plaintiff/respondent that with regard to another plot measuring 23'X23' the appellant in the present appeal has filed a suit U/s 6 of the specific Relief Act against the plaintiff for taking forcible possession.
30. In the plaint, the plaintiff has mentioned that the defendant is tenant in respect of plot No. 479 of which one Hari Singh is the owner who in the replication, it is mentioned that defendant is not a tenant in another adjacent plot to plot No. 480/4. So, the plaintiff is taking contradictory stands.
31. Since the premises let out was 23 ½'X28' and the plaintiff became owner at best of plot measuring 23'X23', non examination of his father as witness is fatal to the case of the plaintiff and similarly non joining him as a party to the suit is also 17 fatal as plaintiff is not the owner of the entire tenanted premises as per his own case and the premises of which he has become the owner is not separable from the rest of the premises. However, no doubt the plaintiff has changed his versions but the fact remains that the defendant who is appellant in this appeal has tried to raise construction and Local Commissioner report also goes to show that fresh construction was raised. This gives rise to reasonable apprehension in the mind of the respondent herein that it is the plaintiff to file a suit for permanent injunction and the injunction granted by the trial court is not that no addition or alteration will be made but it is limited to the extent that such addition and alteration which amount to structural change cannot be raised which the appellant being his tenant cannot otherwise raise. As such, there is no merit in this appeal. The said appeal also is dismissed.
In view of above discussion, both the appeals are dismissed. Decree sheet be prepared accordingly. Trial court record be sent back with a copy of this judgment and the appeal files be consigned to record room.
Announced in open court on this 1st day of Feb., 2008 (NEERAJ KUMAR GUPTA) ADDL DISTRICT JUDGE: DELHI 18