Ram Chand vs Gora Lal Baldev Krishan and Another

N.K. Kapoor, J.—This is defendant''s Regular Second Appeal against the judgment and decree of the Courts below whereby the suit of the plaintiffs for permanent injunction was decreed and appeal therefrom was dismissed by the Additional District Judge.

M/s, Gora Lal Baldev Krishan brought a suit for permanent injunction for restraining the defendant Ram Chand from interfering in the peaceful possession of the plaintiffs in the shop and roof situate at Samana fully described in the heading of the plaint. As per allegation made in the plaint, it was stated that the plaintiffs are tenants under the defendant in respect of the shop in dispute at yearly rent of Rs. 600/-. It has further been stated that the roof of the shop in question is part of the tenancy in question and they have been using the same as tenants; that the defendants without any right or authority has built boundary wall and latrine upon the roof of the shop prior to filing of the suit. Since the defendant further threatened to make construction over the roof and in this manner to interfere with the possession of the plaintiffs, the plaintiffs have prayed for injunction against the defendant.

Defendant put in appearance, filed written statement controverting the material averments made in the plaint. Defendant denied that the property in dispute was let out to Joint Hindu Family firm M/s Gora Lal Baldev Krishan. According to the defendant, it was let out to Gora Lal in his individual capacity and that too in respect of the ground floor alone. It was specifically pleaded by the defendant that the stair-case does not form part of the tenancy of the plaintiffs, As regards the existence of latrine and boundary wall on the roof, the same was ad}itted and it was further stated that both these structures were in existence since long. The defendant further asserted that he is entitled to make any construction over the roof.

On the pleadings of the parties, following issues were framed:-

1/Whether the plaintiff No.l is also tenant of defendant? OPP

2/Whether the roof of the shop is in tenancy of the plaintiff? OPP

3/ Whether Gora Lal is Karta of the firm as alleged? OPP

4/Whether the plaintiff is entitled to permanent injunction? OPP

5/Whether the plaintiff is entitled to mandatory injunction prayed for? OPP

6/Relief.

Under issue No. 1, the trial Court held that plaintiff No.l is not a HUF firm and as such is not a tenant of the defendant. Under issue No. 2, the Court despite noticing that there is no specific mention in the rent note Exhibit D-l with regard to the roof and stair-case to be part of the tenancy held that in view of the judgment in case reported as Bhal Singh Malik v. Dr. Nazir Singh and Ors. (1976) 78 P.L.R. 158 roof is a part of the tenancy of the shop in question and so the plaintiffs have a right to go up the roof by using a stair-case. Accordingly, in view of the finding of the Court under issue No, 2, the suit of the plaintiffs was decreed as prayed for.

Before the appellate Court, the sole point which was convassed by the appellant was whether the roof of the shop was part of the tenancy unit of the plaintiffs. According to the appellant, rent note dated 17.3.1963 no where record the roof to be part of the tenancy and thus urged that since the same doe snot find mention in the rent note, the tenant has no right to make use of it as of right. An attempt was made to distinguish the case relied upon by the trial Court. The appellate Court finding no merit in this contention upheld the judgment and decree of the trial Court and so dismissed the appeal.

The main grievance of the appellant is that both the Courts erred in law in relying upon the ratio of law laid down in Bhal Singh Malik''s case (supra). According to the appellant, the case is squarely distinguishable on facts. In the reported case, the Court was merely considering the order passed by the Courts below on an application filed under Order 39 Rules 1 and 2 of the CPC i.e. whether the parties are entitled to any injunction as per facts on record in a given case and whether the Courts below are guilty of some illegality or irregularity in passing the orders impugned, thus, the observation of the Court in Bhal Singh Malik''s case (supra) was intended to maintain status quo and no further. This distinction has not been kept in view by the Courts below which has consequently led to passing of the impugned orders which are otherwise not supportable either on law or on admitted facts.

The crux of the dispute revolves around the rent note Exhibit D-l. The lower appellate Court has translated the relevant lines of Exhibit D-l which reads as under:-

"I, Gora Lal have taken on lease a pucca single storeyed shop consisting of only one room and a chabutra ahead from Ram Chand on rent at the rate of Rs. 600/- per month..."

This document was read in vernacular by the counsel for the appellant when the appeal was being argued. Their is no dispute between the parties that the rent note Exhibit D-l does not make mention that roof and staircase shall form part of the building let out. Both the Courts have noticed this factual aspect. All the same, both the Courts relying upon the judgment in Bhal Singh Malik'' case (supra) decreed the suit of the plaintiffs. The oral evidence led by the plaintiffs in support of their contention that they had been using the stair-case as well as the roof has been made basis to hold that the stair-case as well as the roof form part of the tenancy of the plaintiffs. With a view to seek reversal of the judgment, learned counsel for the appellant firstly highlighted this fact that the appellant is owner of about 8/9 shops in a row which are single storeyed building. There is a stair-case to go to the roof. According to the appellant, the stair-case opens in a room which is in possession of the appellant and it is only by passing through the room that the plaintiff can reach to the roof of his shop (sic) point has not been dilated by the courts below. Elaborating the counsel had the roof or the stair-case been a part of the tenancy of the shop let out to the plaintiff , the same would have find mention in the rent note. The stand of .the plaintiffs ,. otherwise stands falsified as it is the only stair-case through which one can reach die roof of all these 8 shops which are in a row. Thus, the claim set up by the plaintiffs that the stair-case forms part of their tenancy right clearly stands belied. Distinguishing the judgment in Bhal Singh Malik''s case (supra) relied upon by the Courts below, it was urged by learned counsel for the appellant with some amount of vehemence that both the Courts have misread the ratio of the judgment. This was a case where a single storeyed house was in exclusive possession of the tenant and it is only when an attempt was being made to raise construction of the second storey on the roof of the house that the plaintiff prayed for ad interim injunction during the pendency of the suit. Since the Courts below declined to grant the interim injunction, the orders were challenged on account of it being illegal and having been passed ignoring the well settled principles for grant of interim injunction i.e. (i) prima facie case (ii) balance of convenience; and (iii) irreparable injury if ad interim injunction is declined. The Court on perusal of material on record found substance in the contention of the appellant that whole of the house including the roof and the stair-case was in his possession and so allowed the revision petition granting the petitioner interim injunction prayed for. It was observed by the Courts that no rent note was produced by either side and in these circumstances it was held that whether the stair-case and the roof of the house are or are not included in the demised premises is vital which can be only tried in the suit. This case indeed is dis tinguishable on facts. Firstly, the relief granted to the petitioner was only during the pendency of the suit as else the purpose of the suit would have been defeated. Secondly, there was no rent note; and lastly, it pertains to residential accommodation which was exclusively in possession of the tenant including the stair-case. In the present case, the rent note no where makes mention of the stair-case or letting out of the roof to the tenant. Admittedly, the stair-case is meant for all the 8/9 shops owned by the appellant and so it cannot be said that the plaintiff was entitled to make exclusive use of the stair-case. The fact that the stair-case opens in a room which is in possession of the appellant has not been denied by the respondent. This further weakens the case of the plaintiffs. At best the plaintiffs can make use of the roof with the consent of the landlord. Thus, even if it be taken that the plaintiffs had been making use of the roof at one time of or the other, the same would be with the permission of landlord and so cannot amount to clothing the plaintiffs with any such right as now set up.

Plaintiff in the suit sought relief of permanent injunction as well as of mandatory injunction seeking demolition of boundary wall and laterine constructed. The trial Court granted the relief of permanent injunction; but declined to grant the relief of mandatory injunction. The respondent-plaintiffs did not file any appeal. Thus with this structure intervening the roof of the plaintiffs, the decree otherwise has become inexecutable/unenforceable.

Resultantly, I accept the appeal, sat aside the judgment and decree of the Court below and dismiss the suit of the plaintiffs. The parties will, however, bear their own costs.