Binder v. Veena & Ors.

1. This is a regular second appeal filed by the appellant against the judgment dated 24.9.2008 passed by the appellate Court rejecting the appeal of the appellant.

2. I have heard the learned counsel for the appellant. The substantial question of law which has been formulated in the appeal reads as under:- “Whether the terrace/roof of single storey house let out to tenant with exclusive possession is appurtenant to the main building and hence part of the tenanted premises?” 2013:DHC:1412

3. I have heard the learned counsel for the appellant with regard to the formulation of the substantial question of law which is a pre condition for admission of the regular second appeal.

4. In my considered opinion, the substantial question of law formulated in the appeal is essentially a question of fact. This is a question which has been adjudicated by the trial court after permitting the parties to adduce evidence.

5. Briefly stated the facts of the case are that the appellant filed a Suit bearing No.291/96/94 for mandatory and permanent injunction against Smt.Veena, Smt.Kamla, Sh.Chander Bose, Sh.Ved Parkash, Sh.Kailash and Smt. Bimla, respondents herein.

6. The respondent no.2 Kamla had expired and therefore, she was dropped. The appellant herein had alleged that the premises bearing House no.10789/2010 was let out to the father of the appellant by one Ram Nath and Suraj Singh at a monthly rent of `3/- per month. The present appellant was living in the aforesaid premises with his father. It was alleged that during his life time, the father of the appellant had built a tin shed over the said tenanted premises. After his death, the appellant paid the rent and thus he was accepted as the tenant by the landlord. It was further stated that the respondent Nos.2,[3] and 5 were paying rent to the father of the appellant in respect of the property bearing no.10788/2010 and 10787/2010 which are the premises on the first floor and ground floor and are separated from the property bearing no.10789/2010 by a common staircase. It was alleged that these properties were under tenancy of the husband of respondent no.1 and the respondent nos. 2 to 4 were also living there. It was alleged since the respondent no.1 was being mal-treated by her relations after death of her husband, the appellant on the request of the former, permitted her to occupy the tin shed of the property bearing no.10789/2010. It was also alleged that after permitting her to occupy the tin shed of the said property for some time in order to prevent her from being subjected to harassment by her relations, who are the respondents in the present appeal, at some point of time, the appellant had asked the respondent no.1 to vacate the tin shed as she was occupying the shed only as a licensee. Since she failed to vacate, the appellant was constrained to file the present suit for mandatory and permanent injunction against her requiring her to vacate the premises.

7. In that suit, the following issues were framed:

1) Whether the plaintiff is entitled to equitable relief on mandatory injunction as prayed for? OPP

2) Whether the plaintiff is entitled to equitable relief of permanent injunction as prayed for? OPP

3) Relief.

8. Both these issue Nos.[1] and 2 were decided against the appellant and the suit was dismissed holding that the present appellant has not been able to establish his case in order to seek eviction of the respondent no.1 from the tin shed.

9. Not being satisfied, the appellant preferred an appeal bearing RCA No.86/2006 titled Binder Vs. Smt. Veena & Ors. This appeal was also decided against the appellant holding that the appellant was not entitled to recovery of possession of the tin shed as a licensor as he had not been able to establish whether he had let out the same or given a license to the respondent no.1.

10. It is in this context that now the appellant has chosen to file the present regular second appeal and raised an issue that the tin shed is forming a part of his tenancy which was originally under his father and after his demise, with him.

11. The question as to what will form part of the tenanted premises would be essentially a question of fact and not a substantial question of law. Further, the question whether the tin shed formed a part of his tenancy or not is not of much relevance because what is important is whether he had inducted respondent no.1 as a licensee in the tin shed or not which he has failed to prove.

12. These points having been adjudicated against the appellant by the two courts below does not raise any substantial question of law, accordingly, the appeal is dismissed. V.K. SHALI, J. MARCH 14, 2013 RN