Smt. Pushpa Wati vs Daya Chand Lal Chand Jain

R.L. Anand, J.—This is defendant''s appeal and has been directed against the judgment and decree dated 7.3.1980, passed by the Court of Additional District Judge, Ambala who set aside the judgment and decree dated 11.6.1979, passed by the Court of Sub Judge, 1st Class, Ambala Cantt, who, dismissed the suit of the plaintiff M/s Daya Chand Lal Chand Jain, a partnership firm, carrying on business of foodgrains at Anaj Mandi, Sadar Bazar, Ambala Cantt, which was instituted through Lal Chand its partner.

The pleadings of the parties can be summarised in the following manners. The plaintiff firm claimed a tenancy under the defendant Smt. Pushpa Wati in the ground floor of the premises in dispute. It has been alleged that the roof also formed part of the tenancy and defendant had no right or title to raise the construction of a tin-shed or to install machine for cleaning the cotton. On these small allegations, the plaintiff firm has prayed that defendant be restrained from installing any machine etc. on the roof of the house.

The suit was contested on the ground that the tin shed had already been constructed before the institution of the suit and no other construction was proposed to be raised by the defendant and that the suit of the plaintiff was not legally maintainable.

From the small pleadings of the parties, the learned trial Court framed the following issues :-

Whether the plaintiff is entitled to the injunction prayed for?

Whether the roof is in the tenancy of the plaintiff, if so to what effect?

Relief.

The parties led evidence in support of their case and on the conclusion of the trial vide the following reasons the suit of the plaintiff was dismissed Vide the judgment and decree dated 11.6.1979 by the trial Court.

"No written rent note has been placed on the file. It is also not certain that any rent note was written. So there is no specific agreement regarding the use of the roof. The plaintiff and his witnesses stated that the plaintiff used to spread the gunny bags etc. at the roof and he was not putting the roof to any other use. Normally a tenant is not entitled to the use of the roof of a shop unless it was specifically agreed between the parties. The position may be different in case of a residential house. But the premises in dispute is a shop. The shop has pucca wall and a construction of a tin shed roof cannot be any danger, to the shop. Puran Chand DW1 admitted that the building is a pucca one. The defendant installed the machinery for cleaning the cotton on the roof of the room which belongs to him and he has placed a tin shed on the roof of the tenancy premises i.e. on the roof of the shop in the possession of the plaintiff. A light machine cannot give such vibrations which may effect the adjoining premises. Even flour mills have been installed by several persons in this bazar. So neither the construction of the tin shed can pose any danger to the shop in dispute nor the installations of the machine which is at the roof of the shop belonging to the defendant himself. The plaintiff has also no right to the use of the roof nor the roof is part of the tenancy of the plaintiff. The plaintiff is thus not entitled to the injunction. The issues are decided accordingly in favour of the defendant and against the plaintiff''

Aggrieved by the judgment and decree of the trial Court, the plaintiff filed an appeal before the first appellate Court who for the reason given in para No. 10 of the judgment decreed the suit of the plaintiff by giving directions to the defendant to refrain himself from raising further construction over the roof during the continuance of the tenancy and this time the defendant is aggrieved by the judgment and decree dated 7.3.1980 and has come in the High Court by way of Regular Second Appeal.

I have heard Shri V.K. Jain, Sr. Advocate, appearing on behalf of the appellant assisted by Shri J.L. Malhotra, Advocate. No assistance has been given to me from the side of the respondent.

In spite of the fact that notice was ordered to be served on the respondent nobody has appeared in this case on his behalf.

Before, I deal with the submission raised by the learned senior counsel, it would be appropriate for me to reproduce para No. 10 of the judgment of the first appellate Court.

"Secondly, DW5 has stated that there was a staircase for going to the roof which had always been lying open because it was joint between the previous owner and another person. It shows that there was no restriction on the plaintiff''s user of the roof. Also neither the previous owners nor the defendant used it for any purpose. That negatives the defendant''s assertion that the plaintiff had not been allowed the use of the roof or that it had not been allowed the use of the roof or that it had not been used by him or that there was any obstruction to his user. The only inference is that it must have been part of his tenancy. My attention was drawn to the statement of DW4 that he had sought permission of Cantonment Board for the purpose of putting a tin-shed on the roof in question. In the first place, that sanction has not been placed upon the record, in the second place, the plaintiff was not a party to the presentation of the site plan or the sanction thereof and, therefore, he was not bound by it. Thus, I am clearly of the opinion that the learned Sub Judge had fallen into error in coming to the conclusion that the roof was not a part of the tenancy of the plaintiff. The plaintiff had actually raised construction of tin shed during the pendency of the suit, which is obvious from the statement of PW4 who visited the spot for the purpose of preparation of the site plan before the institution of the suit and found that there was no construction thereon at that time. There is nothing to disbelieve him. True, he was a paid witness, there is noting to show that he was also paid to make a false statement in Court. Therefore, his deposition could be relied upon in this respect. It has also been asserted by the plaintiff who lodged a report in the police station about the alleged encroachment of his rights by the defendant. There is no cogent evidence to contradict the same except the statement of the defendant''s husband which is naturally interested"

After hearing the learned counsel for the appellant and going through the record of this case, I am of the opinion that the approach of the learned Additional District Judge was not in accordance with law and facts. The point for determination in this case is whether the roof the property in question ever formed the tenancy of the plaintiff or not. If the roof of the shop in question did not form part of the tenancy of the plaintiff-respondent and that the utilization of the roof could always be done by the landlord, in such a situation, the injunction could not be granted in favour of the plaintiff as he had failed to establish his right to use the roof of the property. There is no rent note with regard to that. The evidence is further indicative of the fact that the roof was always left with the landlord who even raised some construction on the roof for the purpose of installing a cleaning machine etc.

It is not established on the record that the landlord by using the roof had curtailed the amenity of the tenanted premises in favour of plaintiff. The case has been viewed by the first appellate Court from a totally wrong angle as if the onus of everything was upon the defendant. Plaintiff was supposed to establish that the roof of the house of the property in question was the subject matter of its tenancy.

Resultantly, the appeal is hereby allowed; the judgment and decree of the first appellate Court is set aside and the suit of the plaintiff-respondent is hereby dismissed with no order as to costs with the observations that it will be open to the defendant-appellant to interfere in the tenancy rights of the plaintiff and the defendant shall not in any manner curtail the amenity of the plaintiff-tenant.