Full Text
Date of
JUDGMENT
SHRI RAJESH KUMAR BHATIA ………..Appellant
Through: Mr. Randhir Jain, Advocate.
Through: Respondent No. 1 in person.
AND
RSA No.306/2007 & CM Nos. 16755/2007 (for stay) & 1661/2009
SHRI ASHOK KUMAR BHATIA ………..Appellant
RSA No.66/2008 & CM No. 3663/2008 (for stay)
SHRI SUBHASH CHAND DUA ………..Appellant
1. Whether the Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR, J. (Oral) 2011:DHC:479
1 These are three appeals filed by the aforenoted appellants. These appeals have culminated out of the three suits filed by the plaintiff against the three different defendants namely Rajesh Kumar Bhatia, Ashok Kumar Bhatia and Subhash Chand Dua.
2 The suit against Rajesh Kumar Bhatia was dismissed on 21.08.2004. Vide the impugned judgment dated 06.12.2007, the order of the trial Judge was modified to the extent that the defendant will not encroach upon chabutra in front of his shop by putting any goods or by raising any construction which may obstruct the free passage of the public while coming to their shop. This was qua shop No. 2.
3 The suit against Ashok Kumar Bhatia was partly decreed in favour of the plaintiff in terms of the judgment and decree dated 17.04.2004. The defendant was restrained from putting his goods/aricles on the Chabutra in front of the tenanted shop No. 3 in the disputed property. This was affirmed in appeal vide the impugned judgment dated 09.08.2007.
4 The third suit filed by Karan Singh was dismissed by the trial Judge on 31.03.2004. Vide impugned judgment dated 06.12.2007, the appeal was allowed and the order of the trial Court was modified to the extent that the respondent will not encroach upon the chabutra in front of his shop No. 4 by putting any goods thereon or raising any construction which may obstruct the free passage of the public while coming to their shops.
(ii) The plaintiffs are the owners of the property bearing No. B
(iii) The defendant Rajesh Kumar Bhatia is a tenant of Shop
No. 2. Ashok Kumar Bhatia is a tenant of shop No. 3. Subhash Chand Dua is a tenant of Shop No. 4. Area of each shop measured 8‟X12‟. Monthly rental varied of each shop.
(iv) The contention of the plaintiffs was the chabutra in front of the shop was being used by the defendants in contravention of the agreement of tenancy; what had been let out to each defendant was only the shop and not the chabutra; the act of the defendants in storing and stocking their goods in the chabutra was a misuse.
(v) The present suits for permanent and mandatory injunction had accordingly been filed.
(vi) In the separate suits, the defence of each of the defendants was that the chabutra formed a part of the tenancy; it could not be segregated from the shop; even otherwise it is of no use of the plaintiffs being an integral part of the tenancy.
(vii) From the pleadings of the parties, following eight issues were framed:-
1. Whether the plaintiff is entitled to the decree of mandatory injunction as prayed by him in the prayer clause? OPP
(viii) Oral and documentary evidence had been led. The trial Judge was of the view that the plaintiff in the suits qua shops No. 2 & 4 had failed to prove that the chabutra is not a part and parcel of the tenanted premises; relief claimed by him was barred by Section 50 of the Delhi Rent Control Act (hereinafter referred to as „DRCA‟, suits were dismissed. Suit qua shop No. 3 was partly decreed.
(ix) In appeal vide impugned judgment dated 06.12.2007 qua shops No. 2 & 4, the judgment of the trial Court was reversed. Qua shop No. 3, the impugned judgment had affirmed the finding of the trial Judge.
(x) The contentious issue raised before the first appellate Court was also as to whether chabutra was a part of tenanted premises or not.
6 These are second appeals. After their admission on 09.08.2007, 10.12.2007 & 19.11.2009, the following substantial questions of law were formulated in each of the appeals. They read as under:- “1. Whether a person can claim injunction with regard to a property of which he is admittedly not the owner?
2. Whether findings as to the extent of the tenancy premises returned by Rent Controller and having become final between the parties can be questioned in subsequent suit between the parties?”
7 On behalf of the appellant, it has vehemently been urged that to him; photographs taken of the site have also been placed on record to substantiate this submission. It is pointed out that these photographs depict and decipher that the chabutra in front of the shop is of no use to the plaintiff; the chabutras in front of Shop NO. 1 on the left side and shop No. 5 on the right side have different heights which fortifies the submission that this cannot be treated as a passage. Counsel for the appellant has also placed reliance upon the provisions of Sections 38 & 41 (h) of the Specific Relief Act, 1963 to substantiate his submission that equities are also in his favour.
12 Record has been perused. The bone of contention is whether the chabutra is an integral part of the tenancy or not?. The proceedings under Section 45 of the DRCA which have been filed and were pending between the parties had been adverted to in the impugned judgments.
13 The impugned judgment dated 09.08.2007 in the case of Rajesh Kumar Bhatia had correctly noted that in the petition filed under Section 45 of the DRCA Ex. PWPW-2/2 and the site plan filed along with, the respondent had admitted that what had been tenanted out to him was only a shop measuring 8‟X12‟ and chabutra was not show as part of the tenanted premises. The counterfoils of the admitted receipts Ex. DW-1/P[5] & Ex. DW1/P[6] had also mentioned the tenanted premises as a shop measuring 8‟X12‟, there was no mention of the chabutra.
14 The impugned judgment in case of Ashok Kumar Bhatia had also noted that in the earlier petition between the parties i.e. the Ex. RW-3/1. The respondent therein in his cross-examination had admitted that the chabutra is on the private land of the landlord and is not a part of the shop. The respondent had admitted his signatures of the counterfoils of the rent receipts Ex. PW-3/6 to Ex. PW-3/17 as also Ex. DW1/P[1] to Ex. DW1/P[9] which also revealed that the tenanted premises had been show as a shop i.e. shop No. 3 measuring 8‟X12‟; there was no mention of the chabutra. The site plan Ex. PW-2/1 in the petition filed under Section 45 of the DRCA had also depicted the tenanted premises in red colour as the shop alone.
15 The impugned judgment in the case of Subhash Chand Dua was also based on the similar observations. The certified copy of the petition under Section 45 of the DRCA had been proved as Ex.DW-1/P[3] wherein he had admitted that in front of his shop, there is an iron shutter and after that the chabutra is depicted; he had constructed walls around the chabutra; the customers entered through the chabutra in that shop. The site plan relied upon by the defendant himself Ex. DW-1/1 had evidenced the chabutra is outside the shop and not a part of the tenancy. The rent receipt Ex. PW-1/2/1 had also depicted the tenanted premises to be a shop only; chabutra was not a part of the tenancy.
16 All this evidence had weighed in the mind of the first appellate court qua all three defendants to arrive at a second fact finding that the chabutra does not form an integral part of the tenancy, being distinct and a separate portion and have not been let out by the plaintiff to the defendants, the defendants had no exclusive right of user over the said land. This evidence, both oral court to draw the aforenoted conclusion. Perusal of the site plan filed in each of three suits fortifies this conclusion. The admission of the defendants on this score is also relevant.
17 Substantial questions of law are answered accordingly. There is no merit in these appeals. All these three appeals as also the pending applications are dismissed.
INDERMEET KAUR, J. JANUARY 27, 2011 a