Smt. Shanti Devi Bhatia vs Sunder Lal

G.R. Majithia, J.—This regular second appeal is directed against the judgment and decree of the first appellate court reversing on appeal those of the trial judge and decreeing the suit of the Plaintiff - Respondent for permanent injunction restrainning the Defendant - Appellant from interfering in his peaceful possession as a tenant over the demised shop, including roof thereof.

The facts:

The Plaintiff - Respondent (hereinafter the Plaintiff) sought a decree for permanent injunction restraining the Defendant - Appellant (hereinafter the Defendant) from dispossessing or otherwise interfering in his possession over the disputed shop inclusive of its roof.

The Defendant denied the allegations in the plaint and, inter alia, pleaded that the Plaintiff was in occupation of the demised shop as a tenant and the tenancy did not include the roof thereof.

From the pleadings of the parties, the trial Judge framed the following issues:

Whether the right of user of the roof was not included in the tenancy of the shop let out to the Plaintiff? Or parties,

Relief.

The trial Judge, after appraisal of the evidence led by the parties, came to the conclusion that the roof of the demised shop was not included in the tenancy of the Plaintiff.

On appeal, the first appellate court, relying upon rent note dated October 1, 1960, marked ''A'' came to the conclusion that the roof of the demised shop was included in the tenancy. It averted to the evidence of the Defendant''s witnesses but did not refer to the statements of the witnesses in detail and discarded their testimony without assigning reasons. The conclusions arrived at by the first appellate Court, to say the least, are perverse. Rent note date October 1, 1960 marked ''A'' was subsequently admitted into evidence as Exhibit PX. This document does not suggest what has been read into it. The shop in dispute was leased out for one year on an annual rent of Rs. 200/-. The first appellate Court drew an inference that the landlady did not specifically reserve the right over the roof of the demised shop for her use and the resultant consequence was that the roof of a the shop formed part of the tenancy. On a plain reading of the document, E. PX. the interference drawn by it is not deducible. If the roof of the shop farmed part of the tenancy it would have been so recited. In the absence of any recital to this effect, it has to be assumed that the roof was not a part of the tenancy. The first appellate Court did not consider the evidence of the Defendant''s witnesses in correct legal perspective. The Defendant appeared as D.W. 1 at the trial and stated that the disputed shop was a part of her residential house; that there was no staircase from the said of the shop to go to the roof; that the only access to the roof of the shop was through the staircase existing inside her residential house. This aspect of her statement was not assailed in cross - examination. D.W.2 Gurbachan Singh also stated that the show in dispute was a part of the house owned by the Defendant and on the back of the shop there was a godown of her son Vijay Kumar and that the access to the roof of the shop in question was through the staircase from inside the residential house of the Defendant. D.W. 3 Madan deposed on the same lines as D.W.2. The first appellate Court disposed of the evidence of Defendant''s witnesses with the following observations:

the oral evidence of the Respondent consists of her own statement as. D.W. 1 and the statements of Gurbachan Singh DW 2 and Madan D.W.3 Gurbachan Singh and Madan were employed by the Respondent as masson and Labourer, respectively for carrying on the construction work and they saw the building according to their own showing only two days, whereafter the construction was stayed under orders of the Court. Their evidence, therefore, about the inclusion on exclusion of the roof into the tenancy of the Appellant is absolutely irrelevant and unworthy of credence. As far as the evidence of Respondent as D.W. 1 is concerned, it is duly rebutted by the statement of the Appellant.

The observations of the first appellate Court indicate that was nothing giving details what was stated by the Defendant''s witnesses and why the witnesses were disbelieved. To say the lease, this amounts to ignoring the evidence of the material witnesses altogether and this vitiates the findings of fact recorded by the first Appellate Court.

The'' Plaintiff''s witnesses only deposed that the roof of the disputed shop was included in the tenancy. The shop in dispute was not leaded out in their presence and in he normal course of events, their evidence does not inspire confidence unless they positively establish that they were present when the terms of the lease were settled between the parties. The Defendant''s witnesses are natural and the circumstances probablise their testimony. Admittedly, the shop in dispute is a part of the residential house of the Defendant. There is no staircase from outside the shop for access to the roof of the shop. The access to the roof of the shop is only provided from inside the residential house of the Defendant. On the back side of the shop, there was a godown owned by the son of the Defendant. That also points out that the Plaintiff can have no independent access to the roof of the shop in dispute except through the residential house of the Defendant. The Plaintiff did not plea and prove that it was settled between the parties that he would have access to the roof of the shop through the staircase inside the house of the Defendant. The judgment reported as Bhal Singh Malik v. Dr. Nazar Singh and Anr. 1976, PLR 158, has no applicability to the facts of the instant case.

For the reasons stated above, the appeal succeeds, the judgment and decree of the first appellate court are set aside and those of the trial Judge are restored but with no order as to costs.