JUDGMENT
Manmohan Sarin, J.
(1) Petitioner is aggrieved by the judgment/decree dated 18.1.1990, passed by the learned Sub-Judge in Suit No. 793/86, wherein a decree for possession in respect of part of premises bearing No. G-19, South Extension-1, New Delhi, was passed in favour of the respondent.
(2) Respondent had filed a suit for possession alleging that he was a tenant in respect of a shop which was half inside the premises bearing No. G-19, South Extension-1, New Delhi and half in the Verandah. Respondent/plaintiff alleged in the suit that petitioner had attempted to dispossess the respondent on 12.7.1986, which was resisted. The respondent filed a suit for permanent injunction. An interim order was granted in favour of the respondent, yet the petitioner dispossessed the respondent from the portion of the shop, which fell inside the premises by pushing the same into the Verandah by installing a glass in the basement and the portion at the back of his shop. The respondent’s shop in question was a tuck shop which was embedded in the wall with half the portion inside the petitioner’s premises.
(3) The Trial Court accepted the version of the respondent and held that respondent had been dispossessed from the property without following the due process of law. The suit under Section 6 of the Specific Relief Act was decreed holding that the shop, which was earlier half inside the petitioner’s premises had been pushed totally outside in the verandah. In these circumstances, the Trial Court directed that respondent was entitled to the possession of the portion of the respondent’s shop so as to bring the tuck shop half inside the premises and half in the Verandah. The possession of the portion of the shop for keeping part of the truck shop inside be delivered to the respondent after removing the obstruction, if any, including dismantling of the glass.
(4) Although in the revision petition, number of grounds had been taken. Petitioner during the hearing, confined his submission to the suit under Section 6 of the Specific Relief Act being barred by limitation. The petitioner’s argument being that as per the respondent the dispossession took place while constructing the basement on 22.8.1986. Petitioner claims that the basement was constructed in the year 1984 and this stood substantiated by payment of compounding fee. This belied the argument of the respondent that dispossession took place while constructing the basement. The basement, as per the petitioner, having been constructed in the year 1984, the suit under Section 6 of the Specific Relief Act, filed on 12.11.1986, would be barred by limitation.
(5) It would be pertinent to notice the averments made in the pleadings. The respondent/plaintiff’s case, as averred in paras 4 to 7 of the plaint was to the effect that petitioner/defendant, in collusion with the local police and Mcd officials constructed part of the basement and partly damages the tuck shop of the respondent. An attempt is said to have been made on 12.7.1986 by throwing out the goods of the respondent from the tuck shop and to place the glass, which was resisted by the respondent/plaintiff. The construction by the petitioner was in violation of the Municipal bye-laws. Respondent was constrained to file a suit for perpetual injunction wherein an interim injunction was granted in his favour, but despite the stay granted, the petitioner, on 22.8.1986, illegally succeeded in putting up the glass touching the back of the tuck shop. This has resulted in the respondent being displaced partly from the original position in which the tuck shop was situated and the tuck shop presently was outside the Verandah. Reliance was also placed on the site plan, giving the original location of the tuck shop.
(6) The stand taken by the petitioner/defendant in the written statement was that the respondent had no right, title or interest in the property in suit. It was further denied that respondent was a tenant in any portion of the shop. It was submitted that the respondent had kept an Almirah in the Verandah of the size 49″ deep and 28″ wide and was, thereby, making unauthorised encroachment and causing obstruction to the free passage of the general public. Petitioner’s contention was that respondent was not a tenant and had been allowed only to work on the counter on daily wages. Respondent/plaintiff, however, claimed that even Verandah was part of the premises No. G-19 and reiterated that the basement was partly constructed in July and August, 1986.
(7) From the averments made in the plaint, learned Counsel for the petitioner submits that the case of the respondent is that the basement was partly being constructed on 12.7.1986 when goods were thrown out from the tuck shop in collusion with the Municipal Corporation of Delhi and the police. Further that inspite of the injunction obtained, the respondent, on 22.8.1986, succeeded in putting up a glass touching the back of the tuck shop and thereby displacing the respondent from the original position in which the tuck shop was situated.
(8) Learned Counsel for the petitioner submits that the basement in question was constructed in the year 1984 and for that purpose he relies on letter Exhibit Dw 1/2 dated 17.12.1984 wherein the Municipal Corporation wrote to the petitioner with regard to regularisation of the unauthorised construction. A total sum of Rs. 22,917.00 was charged as compounding fee, which included Rs. 14.225 as the compounding fee for the basement. The receipt for payment has also been produced as Exhibit Dw I /1. The submission being that the basement was constructed in 1984 and this falsified the respondent’s allegation of being dispossessed from the shop in July and August, 1986, while constructing the basement partly. Learned Counsel, therefore, submits that once it was established that the basement was built in the year 1984, the displacement, if any, of the respondent from the inside portion of the shop would have been in 1984. The suit filed under Section 6 of the Specific Relief Act was barred by limitation, having been filed more than six months after the alleged dispossession.
(9) Learned Counsel for the respondent, on the other hand, submitted that the submission of the petitioner is misplaced inasmuch as there are no details given with regard to the total area of the basement, which was constructed in 1984. Besides, it is claimed by the respondent that in July, 1986 petitioner was carrying out the construction/renovation in the basement and, in fact, the respondent was displaced only then. Reliance is placed on the plan exhibited alongwith the suit, which shows that portion of tuck shop was inside the premises of the petitioner. Reliance is also placed on the examination of the witnesses produced by the respondent as well as the respondent to whom no suggestion was made in cross-examination that the basement had already been constructed and there was no construction activity. Learned Counsel for the respondent submits that merely because compounding fee for construction of basement was paid in the year 1984, it will not establish that the petitioner did not carry out any further changes and construction and fixed the glass so as to displace the respondent in 1986, for which there was overwhelming evidence.
(10) I have carefully perused the impugned judgment on Issue No. 7 and gone through the evidence of the witnesses produced on behalf of the petitioner and the respondent. In support of his case of being in possession of the tuck shop prior to 22.8.1986, the respondent examined, apart from himself, Shri Sanjivan Chaturvedi, who categorically stated that before July, 1986, the shop of the plaintiff/respondent was in side the shop of the petitioner/defendant and the wooden structure was fixed inthewall.PW/3,ShriJaiDuttJoshi,hasalso stated that the respondent’s shop was inside and had been pushed out when some additions and alternations were carried out. In cross-examination again he has given the time as July, 1986, when some additions and alterations were being carried out. Similarly, Public Witness Public Witness 1, Shri Ganga Singh, respondent/plaintiff himself has clearly stated that the shop was pushed out in August, 1986, and has repelled the suggestion in cross-examination that the glass separating the counter from petitioner’s shop was in existence prior to July, 1986.
(11) The learned Civil Judge while deciding Issue No. 7 has considered the existence of the Shops and Establishment Certificate, the Survey Report of the Mcd for House Tax purposes which showed the existence of only the respondent’s tuck shop, without showing other shops and counters, as was contended by the petitioner. The learned Civil Judge has noted that while the petitioner’s contention was that there were number of shops for ice-cream and Chat, etc. but it was only the plaintiff/respondent’s truck shop which found a mention in the survey report of the Municipal Corporation of Delhi. The learned Civil Judge has decided this issue in favour of the plaintiff/respondent on the basis of probabilities and considering the numerous complaints made by the respondent, as stated in his examination, to the authorities against the construction by the petitioner as well as attempts to dispossess him by pushing the shop outside by fixing the glass.
(12) The main plank of the submission of learned Counsel for the petitioner has been that the compounding fee was paid vide Receipt No. 07055 dated 11.12.1984, which included the fee for construction of basement. The argument being that since compounding fee for basement was paid in 1984 it belied the respondent’s case that the tuck shop was pushed out in August, 1986 while construction the basement.
(13) In my view, simply because the compounding fee was paid in December, 1984, it would not establish that the construction of the basement was complete then There is no completion certificate or other evidence placed on record with regard to completion of the basement. The alleged act of dispossession of the respondent was fixing of a glass which pushed out the respondent’s shop into the Verandah. This could be done at the time of renovations even if the basic structure of the basement was complete.
(14) Considering the other evidence, as noted by the learned Civil Judge, 8the impugned order cannot be said to be vitiated by any material irregularity or error of jurisdiction so as to warrant inference in revisional jurisdiction.
(15) The revision petition has no merit and is dismissed.