Paritosh Chandiok v. Rajiv Arora

1. The present petition under Article 227 of the Constitution of India impugns the order dated 18th March, 2017 passed by the court of Additional District Judge (Shahdara), Karkardooma in MCA 44/2016, whereby the appeal filed on behalf of the respondent/defendant, challenging the order dated 30th January, 2016 passed by the Trial Court, has been allowed.

2. It is deemed appropriate to detail the facts preceding the filing of the present petition. It is not disputed that the late mother of the petitioner/plaintiff was absolute owner of the freehold built up residential property bearing Plot No. 342, Gagan Vihar, Delhi-110051 measuring

130.35 square yards. In 2007, the mother of the petitioner/plaintiff sold the roof rights of the first floor of the property in question and the right to 2021:DHC:3787 construct the second and third floor above the first floor of the aforesaid property, to the respondent/defendant. Thereafter, the respondent/defendant and his wife came to reside at the first floor of the suit property. Subsequently, the petitioner/plaintiff filed a suit for possession, damages/mesne profits, recovery of rent and perpetual injunction against the respondent/defendant in respect of the first floor of the suit property.

3. The Trial Court, while allowing the application filed on behalf of the petitioner/plaintiff under Order XXXIX Rule 10 read with Order XV-A of the Code of Civil Procedure, 1908 (CPC), observed/held that (i) in terms of the registered sale deed, the respondent/defendant only had roof rights of the first floor of the property in question and the right to construct the second and third floor above the first floor of the aforesaid property; (ii) no document has been produced by the respondent/defendant to support his status as co-owner of the suit property i.e., the first floor; (iii) therefore, the respondent/defendant cannot be said to be owner of the said property; (iv) the respondent/defendant had also not denied that he is not the owner of the first floor of the property; (v) once the defendant is not the owner of the first floor he cannot be permitted to enjoy the same without paying occupation charges; and, (vi) the respondent/defendant was directed to deposit Rs.15,000/- with the court as occupation charges from 18th October, 2012.

4. Against the order dated 30th January, 2015, the respondent/defendant filed an appeal which was allowed in terms of the order impugned in the present petition, wherein the Appellate Court has observed/held that (i) the respondent/defendant is occupying the first floor of the property in the capacity of a co-owner; (ii) the petitioner/plaintiff has not disclosed who had let out the suit property to the respondent/defendant on 18th June, 2007; (iii) the petitioner/plaintiff became the owner of the property only after the expiry of his mother on 5th October, 2012; (iv) it has not been disclosed by the petitioner/plaintiff as to whom the defendant/respondent was paying the rent; and, (v) the issue whether the property was let out to the respondent at a monthly rent of Rs.15,000/- or whether the mother of the petitioner allowed the defendant to occupy the suit property without any charge is a matter of trial.

5. In view of the above, the appeal filed by the respondent was allowed and the order passed by the Trial Court was set aside.

6. Counsel for the petitioner has submitted that the impugned order passed by the Appellate Court is patently erroneous. The finding by the Appellate Court, that the respondent is in occupation of the first floor of the property in question in the capacity of a co-owner, is not borne out from the record.

7. It is further contended on behalf of the counsel for the petitioner that the respondent is not interested in carrying out any construction on the terrace of the first floor and continues to be in occupation of the first floor without paying any charges. It does not matter who had let out the property to the defendant. So long as the defendant is not the owner of the property, he is bound to pay the occupation charges. Reliance is placed on the judgment of the Division Bench of this Court in Raghubir Rai Vs. Prem Lata, (2014) 211 DLT 516 (DB).

8. Counsel for the respondent appears along with the respondent in person and submits that the petitioner and his mother could not get the requisite approvals/sanctions for the purpose of construction. Hence, the respondent could not carry out construction over the first floor of the property and therefore, he was allowed by the mother of the petitioner to occupy the first floor of the property without charge.

9. There is merit in the submissions of the petitioner. There was no basis for the Appellate Court to come to the conclusion that the respondent is in occupation of the first floor of the property in question in the capacity of a co-owner. This finding is completely contrary to the findings recorded by the Trial Court, wherein it has specifically been recorded that the respondent/defendant does not claim to be a co-owner in the first floor of the property. Even in terms of the sale deed relied upon by the respondent/defendant, the respondent/defendant has only been given the roof rights, the right to construct on the roof above the first floor and the proportionate share in the land. It does not vest ownership of the first floor with the respondent/defendant. Therefore, the aforesaid finding of the Appellate Court is patently erroneous.

10. The Division Bench of this Court in Raghubir Rai (supra) has explained the provisions of Order XV-A of the CPC by observing as under: “24. We are of the view that the Court, in exercise of powers under Order XV-A of the CPC is empowered to direct deposit at such rate as the erstwhile tenant / defendant may on the basis of material on record be found to have agreed to pay to the landlord for the said period even if the tenant before the Court may not have admitted the same or disputed / controverted the same. Similarly, in a suit between the owner of immovable property and an unauthorized occupant, Order XV-A empowers the Court to direct the defendant who though may not be liable to be ejected / dispossessed immediately without trial but who, on preponderance of probabilities may not be found to have a right to continue in possession of the property, to deposit during the pendency of the suit such amount as may appear to be reasonable, to safeguard the right of the owner of the property and to ensure that such owner is compensated at least for the time taken in adjudication of a false defence taken up by the defendant in unauthorized occupation. This, in our view is necessary to avoid the process of the Court being abused by unscrupulous litigants and to curb the growing tendency of using the process of litigation as a tool of oppression.”

11. At this stage, it is not relevant whether the tenancy in favour of the respondent was created by the petitioner or the mother of the petitioner. No material has been has been filed before the Appellate Court or this Court to demonstrate that the mother of the petitioner had allowed the respondent to occupy the first floor of the property without any charges. On a preponderance of probabilities, the claim of the respondent, of being allowed to reside on the first floor of the suit property without payment of any charges, does not appear to be credible. Of course, all these matters would be determined in the trial.

12. In the interregnum, the right of the petitioner, being owner of the suit property, has to be safeguarded in the event of the petitioner succeeding in the suit proceedings. It may be borne in mind that the Trial Court did not direct the amount towards occupation charges to be paid to the petitioner/plaintiff. The said direction is only for deposit in the court, so as to safeguard the interest of the petitioner in the event the petitioner/plaintiff succeeds in the trial.

13. In view of the above, this Court is of the view that the impugned order passed by the Appellate Court suffers from error apparent on the face of the record and accordingly, the said order is set aside.

14. While the order dated 30th January, 2015 is correct in respect of granting occupation charges to the petitioner, no justification has been given by the Trial Court to arrive at a figure of Rs.15,000/- to be paid as monthly occupation charges. There was no material on record to show that the respondent was paying the aforesaid amount of Rs.15,000/- to the petitioner or the mother of the petitioner at any point of time. Nor were there any lease/rent agreements of neighbouring properties to show the market rate of rent. Therefore, the direction of the Trial Court to award a sum of Rs.15,000/- is set aside.