JUDGMENT
M.M. Kumar, J.
1. This petition filed under Article 227 of the Constitution challenges order dated 23.4.2003 passed by the learned Additional District Judge, Patiala concurring with the order dated 9.9.2003 passed by the Civil Judge (Sr. Division), Patiala partly dismissing the application of the plaintiff-petitioner for grant of ad interim injunction wherein prayer was made for restraining the defendant-respondent from interfering in his peaceful and exclusive possession of the staircase and the roof of the first floor or from using the same during the pendency of the suit.
2. Few facts necessary for deciding the controversy raised are that the plaintiff-petitioner filed Civil Suit No. 273 dated 31.8.2002 seeking permanent injunction restraining the defendant-respondent or any one else on his behalf from interfering in his peaceful possession as a tenant of the shop in dispute or dispossessing the plaintiff-petitioner illegally and forcibly or from causing any damage to the aforementioned premises by effecting the additions or alterations. An application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (for brevity, ‘the Code’) was also filed praying that the plaintiff-petitioner has been running his business in the shop in dispute under the name and style of ‘Mani Musico’ and regularly paying the rent against the receipt. The rent for the month of July, 2002 had been paid by him at the rate of Rs. 1500/- and a photostat copy of the receipt was produced on the record. The defendant-respondent, has been running his business under the name and style of ‘Handloom Palace’ on the ground floor only without any basement. The staircase and the upper floors are in exclusive possession of the plaintiff-petitioner, It has further been alleged that the defendant-respondent has no approach to the upper floors in any manner because the only access to the upper floor was through the staircase which was built inside the rented premises and in possession of the plaintiff-petitioner. The defendant-respondent claimed that he had purchased the entire property and on the basis of the same became owner of the disputed premises.
3. The defendant-respondent asserted that the plaintiff-petitioner has been a tenant on the first floor and the second floor was in his possession. It was further claimed that the defendant-respondent was in possession of the second floor of the premises and the stair case depicted in the site plan was common for the use of plaintiff-petitioner and the defendant-respondent. A photocopy of the rent note dated 23.12.1984 has been placed on record. In the rent note, it has been mentioned that the tenant would have concern with the roof of the Chaubara although it has not been expressly excluded in the tenancy. It is in these circumstances that the Courts below took the view that the plaintiff-petitioner has remained unable to prove that he was in possession of the staircase-passage in dispute as a tenant as depicted in the site plan and the second floor of the shop in dispute. The defendant-respondent having admitted the plaintiff-petitioner to be in possession of the first floor as tenant and has also admitted that he had no intention to cause any damage to the walls of the premises under the tenant of the plaintiff-petitioner, the trial Court partly accepted the application under Order XXXIX Rules 1 and 2 of the Code and restrained the defendant-respondent from causing any interference with the possession of the plaintiff-petitioner over the first floor of the shop in dispute and from using the passage in question for access to the shop. The defendant-respondent has further been restrained from causing any damage to the shop in possession of the plaintiff-petitioner as tenant. However, the prayer of the plaintiff-petitioner restraining the defendant-respondent from interfering in his peaceful possession over the second floor of the shop in dispute or the stair case was declined. Feeling aggrieved, the plaintiff-petitioner has approached this Court under Article 227 of the Constitution.
4. Mr. Vijay Sharma, learned counsel for the plaintiff-petitioner is in exclusive possession of the staircase since December 1994 as tenant under the previous owner Shri Dalip Singh and he continued to be so under the new owner i.e., the defendant-respondent. The learned counsel has invited my attention to the grounds of appeal wherein it is asserted that he has been using the staircase 2-1/2’x5′ in front of the stair case on the ground floor as a sale counter for music cassettes and C.Ds. It has further been asserted that he has been paying the house tax of that premises since 1996 and a notice of house tax dated 2.1.1996 issued by the Municipal Council, Patiala has been placed on the record. Learned counsel has argued that the Additional District Judge has failed to advert to the argument of the plaintiff-petitioner showing that the vacant portion of the ground floor is part and parcel of the rented premises under the plaintiff-petitioner because there is no other door for entrance to the first floor except the rolling shutters affixed on the staircase which is separate from the rolling shutter affixed on the shop of the defendant-respondent. It has further been mentioned that there is no other stipulation in the sale deed executed by the previous owner of the premises in favour of the defendant-respondent. The learned counsel has also placed reliance on various photographs which highlight the above mentioned factual position.
5. In response to the notice having been issued, Mr. Arun Sanghi, learned counsel for the defendant-respondent has appeared and urged that the findings recorded by both the Courts below cannot be interfered with under Article 227 of the Constitution while exercising superintending powers of this Court. The learned counsel has pointed out that by no stretch of imagination, the plaintiff-petitioner could claim tenancy of the second floor where bathroom has been built which is used by the customers of the defendant-respondent by having access through the staircase.
6. After hearing learned counsel for the parties, I am of the considered view that the site plan Ex.P4 placed on the record of this case shows that the rolling shutter has been affixed on the staircase which is the only access for the plaintiff-petitioner to enter and use the first floor. No independent door with lock and key is available on the first floor. The lock and key of the shutter affixed on the staircase has always been with the plaintiff-petitioner. In such a situation, it cannot be concluded that the staircase has a common passage for the defendant-respondent for his use of second floor of the bathroom there. On my repeated queries made to learned counsel for the defendant-respondents, it could not be controverted that the rolling shutter affixed on the staircase on the ground floor is the only door allowing access to the plaintiff-petitioner to reach the rented premises on the first floor, it is further clear from the notice dated 2.1.1996 issued to the plaintiff-petitioner by the Municipal Council, Patiala for deposit of the house tax for the year 1996-97 in respect of the shop, the size of which has been described as 2-1/2’x5′. A copy of the assessment order has also been placed before me and both of the documents are taken on record as Mark ‘A’ and ‘B’. The rent note dated 23.12.1994 also supports the contention of the plaintiff-petitioner that he would have concern with the roof of the Chaubara i.e., the first floor. In such a situation, no reasonable man would come to the conclusion that there was any sharing by the defendant-respondent in the area under occupation of the plaintiff-petitioner. The area under his occupation obviously is from the point of rolling shutter upwards which would include staircase, first floor and even the second floor. Such a view is the only possible view which can be taken because there is express provision made in the rent note showing that the plaintiff-petitioner has concerns with the first floor. Even in case where the rent note is silent about the tenancy of the roof, this Court has taken the view that roof is included in the tenancy. In Bhal Singh Malik v. Dr. Nazar Singh and Anr., (1976)78 P.L.R. 158, this Court constructing the rent note in respect of single storey house opined that the roof would be part of the tenancy and the tenant could not be deprived of his right to use the roof on the pretext that the landlord wanted to construct second floor. However, in the instant case, there is express stipulation that the plaintiff-petitioner would have concern with the roof of the first floor. Moreover, the exclusive possession through the rolling shutter on the ground floor attached to the staircase would show that the defendant-respondent have no concern with the area beyond the rolling shutter especially when the plaintiff-petitioner has no lock and key by way of separate door of the first floor. The rolling shutter is the only door for him to have access. It is not possible to think that the plaintiff-petitioner would have permitted access to any one else in the presence of the goods belonging to him lying unlocked and in the open space of the first floor. Therefore, the revision petition deserves to the allowed.
7. For the reasons recorded above, this petition is allowed and the orders passed by the Courts below are set aside and the defendant-respondent is restrained from interfering with the peaceful possession of the plaintiff-petitioner and use of the staircase leading to the first floor and also from the second floor.