ORDER
Case Note:
Civil Procedure Code, 1908 – Order 39 Rules 1 & 2–Interim injunction–Tenant occupies single storeyed building–Terrace formed part of tenancy–No written agreement to prove contrary–owner cannot construct anything on the roof without permission of tenant or till his lawful eviction–Injunction granted.
Held:
It is established that terrace formed part of tenancy and as such defendants, who claimed to have acquired ownership rights, cannot be allowed to raise construction on the terrace. The plaintiffs in the present case are, there fore, entitled to the interlocutory injunction as prayed for against the defendants.
Sharda Aggarwal, J.
1. This order shall dispose of plaintiff’s application under Order XXXIX Rules 1 & 2 read with Section 151 CPC for temporary injunction.
2. Smt. Sushila Ahluwalia, wife of Shri Shyam Ahluwalia filed the present suit for permanent injunction against Shri Arvind Mehta and Shri Bhagu Chand, defendants 1 and 2. Shri Shyam Ahluwalia was inducted as a tenant with respect to the House No A-II/75, Lajpat Nagar, New Delhi in 1979 by one Shri Gerimal M. Jethra. At the time of filing of the suit, the tenant Shri Shyam Ahluwalia was lodged in Meerut Jail and his wife apprehending dispossession at the hands of defendants 1 and 2, had imp leaded him as defendant No.3. Later on he was transposed as plaintiff No.2 in the suit. The plaintiffs have been in continuous possession of the suit property as tenants since the date of their induction as tenants. The defendants claiming to have purchased the suit property from the erstwhile owners, with a view to forcibly dispossess the plaintiffs from the suit premises, started harassing them. They got plaintiff No.2 falsely implicated in a criminal case registered at Meerut and got him lifted from his house. In his absence defendants wanted to encroach upon the open terrace of the house in question and raise construction thereon. The plaintiff No.1 was thus compelled to file the present suit. Along with the suit, an application under Order XXXIX Rules 1 and 2 CPC fro grant of temporary injunction restraining the defendants from taking forcible possession of the house and from raising any construction on the roof/terrace, was moved.
3. On 26 the March, 1999 an ad-interim injunction was passed against defendants 1 and 2 restraining them from dispossessing the plaintiff No.1/her family members forcibly or otherwise than by due process of law and from carrying out any work of construction, addition or alteration, in any part of the suit property.
4. Defendants No.1 and 2 filed their written statement claiming that they were the owners of the property having purchased the same vide two separate sale deeds dated 15th July, 1996 executed by one Shri Jagmeet Singh and Shri Gurmeet Singh in their favor. They alleged that Jagmeet Singh and Gurmeet Singh had purchased the property from Shri Gulshan Kumar Sehgal and Smt. Komal Sehgal to whom the original owner Shri gerimal M. Jethra had sold the property. They have not disputed the tenancy of plaintiff No.2 with respect to suit premises, however, their case is that the tenancy did not include the roof.
5. The fact that the original owner sold the property to Shri Gulshan Kumar Sehgal and Smt. Komal Sehgal, some time in the year 1990, is not denied by the plaintiffs. They, however, deny the knowledge of subsequent sale of the property to Shri Jagmeet Singh and Shri Gurmeet Singh and from them to the defendants. Subsequently, it came to the knowledge of Shri Shyam Ahluwalia that defendants 1 and 2 had instituted a suit for injunction against them for restraining him from interfering in raising the construction on the first floor of the house. The defendants claiming to be the owners also filed two eviction petitions against plaintiff No.2. He is contesting the said litigation.
6. The fact that plaintiff No.2 was inducted as a tenant with respect to the house in question in the year 1979 by Shri Gerimal M. Jethra is not disputed. Their main defense is that the roof above the single storeyed house did not form part of the tenancy and as such the defendants being the owners have a right to raise construction thereon. Plaintiff No.2 claims to be a tenant with respect to the entire single storeyed building which had been let out to him including roof rights. His claim is that the defendants cannot raise construction on the terrace without his permission or till he is evicted by due process of law.
7. Thus, the disputed question is whether the roof above the single storeyed house is included in the tenancy of plaintiff No.2? Admittedly, there is no written lease deed. It is not disputed that the tenanted premise is a single storeyed building. The law is well settled that where a single storeyed building is let out it includes roof unless the contrary is proved. it was so held in Bhal Singh Malik v/s. Dr. Nagar Singh, 1976 Ren.C.R. 145 (Punjab). Shri Ishwar Sahai, Senior Advocate appearing for the plaintiffs contends that the initial presumption, that the roof of a single storeyed building is let out Along with the building, is in favor of the plaintiffs. He has even demonstrated from the documents placed on record that the open terrace formed part of the tenancy. It is submitted that the entire single storeyed house was let out to plaintiff No.2 at a monthly rent of Rs. 500/- some time in 1979, since when he is in possession thereof. A receipt dated 12th March, 1990 issued by the original owner Shri Gerimal M. Jethra shows that he entire house including the roof was one single unit which was let out to plaintiff No.2. Reference is also made to sale deed executed by the original owner in favor of Shri Gulshan Kumar Sehgal and Smt. Komal Sehgal copy of which has been placed on record by the plaintiffs. This sale deed also reflects that the entire house as one unit including the roof was under the tenancy of Shri Shyam Ahluwalia. The proprietory possession of the house was, therefore, given by the vendor too the vendees. The defendants claiming to be the owners of the house have failed to place on record the sale deed which could establish the title of Shri Jagmeet Singh and Shri Gurmeet Singh from whom the defendants claim to have purchased the property vide two separate sale deeds dated 15th July, 1996. In the two sale deeds, allegedly executed by Shri Jagmeet Singh and Shri Gurmeet Singh in favor of the present defendants, the fact as to how they acquired the title to the suit property, is missing. It has been simple stated the vendors had clear title to the property in question. On the one hand the terrace/roof rights have been shown with the vendors, whereas on the other hand, it is stated therein that the proprietory possession of the suit property under sale had been transferred to the even deeds i.e. defendants 1 and 2 as the same is occupied by Shri Shyam Ahluwalia as tenant since long. These two sale deeds had in fact been relied upon and filed by the defendants in the sit for injunction filed by them against plaintiff No.2 in the Court of the Senior Civil Judge, Delhi. An altogether different stand has been taken in the suit filed by defendants against the plaintiffs. There the plaintiff No.2 has been shown in possession of part of the ground floor and the alleged vendors Shri Jagmeet Singh and Shri Gurmeet Singh have been shown in possession of the first floor including a room-cum-store on the terrace. This assertion of the defendants in their suit is contrary to the stand taken in the two sale deeds allegedly executed in their favor. In the eviction petition filed by the defendants against plaintiff No.2 on the ground of sub-letting, the premises under his tenancy have been shown with respect to the entire ground floor. The defendants have failed to establish that the open terrace formed part of the tenancy. On the other hand, the plaintiffs have prima facie established that roof was a part of the tenanted premises. The defendants have failed to prove any contract to the contrary. In the absence of any contract to the contrary, the initial presumption would be that the entire single storeyed house in question was let out to plaintiff No.2 Along with the roof. The defendants have no right to disturb the possession of the plaintiffs or raise construction on the terrace of the house without their permission or till they are evicted by due process of law. In the circumstances of this case, if the required injunction is not granted and the defendants either dispossess the plaintiffs from the tenanted premises or raise construction on the roof, it would cause irreparable injury to the plaintiffs. In case the defendants are allowed to raise construction and the suit of the plaintiffs is finally decreed, it may not be possible to ask the defendants to remove the structure so raised. The averments in the plaint show that the defendants have been threatening no only to dispossess the plaintiffs with force but also to raise construction on the roof of the suit property, in order to compel them to vacate the house. The plaintiffs have established a prima facie case in their favor. The balance of convenience also lies in favor of the plaintiffs in restraining the defendants from dispossessing them from the house and also from raising any construction over the roof.
8. The learned counsel for the defendants has vehemently contended that roof right do not form part of the tenancy and defendants being the purchasers and in possession of he terrace, are entitled to raise construction thereon. As discussed above, defendants have failed to establish that the roof formed part of the tenancy and it has already been held that plaintiffs are in possession of the entire single storeyed house including the roof as tenants since 1979.
9. Learned counsel for defendants has placed reliance on a decision in the case of Shashi Kapur vs. Smt. Sulakshna Malhan, . In the said case, the tenant had given his consent at some earlier stage to allow the transferee of his landlord to construct first floor. This case is not applicable to the facts of the present case. Further reliance has been placed on National Insurance Company Ld. Vs. Shri R. Harcharan Singh Bullar & ors., and Dr. Peter George Vs. Janak J. Gandhi, 1996 RLT 112. In the National Insurance Company’s case, there were written lease deeds which clearly indicated that open terrace on the first floor did not form part of tenancy and the landlord was entitled to raise construction thereon. Even in Dr. Peter George’s case there was an express written agreement executed between the parties allowing the landlord free entry to raise construction on the first floor and above. In the face of this written lease, the tenant had taken the plea that terrace on the ground floor formed part of the tenancy by a deeming provision. That plea was not accepted in view of the express written agreement to the contrary and under the facts and circumstances of that case, the Division Bench held that the landlord had a right to raise construction on the first floor. In fact the main plea in that case was that the grant of temporary injunction would amount to the grant of the entire relief in the suit. In the regard also, it was held that in a proper case where justice demands the court can grant an interlocutory injunction to the same effect to which a permanent injunction is sought in the suit. The decision in the case of Smt. Amarjit Kaur Vs. M/s Malabar Cane Furniture, 1978 Rent LR 732 was relied on this proposition.
10. Learned counsel for the defendants with vehemence has further placed reliance on an unreported case of M/s Sonar Builders Pvt. Ltd. Vs. M/s Carbon Everflow Pvt. Ltd., IA.No.9914/98 decided on 21st February, 2000. This case, however, is of no help to the defendants as it has no application on facts to the instant case. A finding in a particular case cannot be used as a precedent in another case without reference to its facts. Each case has to be decided on its own facts. The plaintiffs in that case, had purchased the property from the erstwhile landlord and wanted to raise construction on its first floor. By virtue of a written lease, the ground floor with servant quarter and open urinal on the first floor was let out to the defendant company. The tenants set up a case that the original owner had let out the entire premises, inter alia, entitling them to deny the plaintiffs to construct on the first floor. The tenants also set up a case that initially the lease included only the user of a urinal on the terrace but later on after the expiry of the registered lease deed, the original owner by fresh oral agreement had accepted them as tenants with regard to the entire house including the terrace. The tenants plea that they had become tenants with respect to the entire house with roof rights was not accepted by the Court. As the tenants had failed to establish that roof was part of their tenancy, the learned Single Judge allowed the application for interlocutory injunction in favor the landlords.
11. All the case referred above relied upon by the defendants herein towed the same line, as in all the case terrace/first floor was not included in the tenancy. None of these cases is applicable to the facts of the present case. In the instant case, it is established that terrace formed part of tenancy and as such defendants, who claimed to have acquired ownership rights, cannot be allowed to raise construction on the terrace. The plaintiffs in the present case are, therefore, entitled to the interlocutory injunction as prayed for against the defendants.
12. Thus, in view of the above discussion, I allow the plaintiffs’ application for temporary injunction and make absolute the ad-interim injunction granted on 26th March, 1999 and restrain the defendants, their agents, servants, employees, representatives and assigns etc. from entering house No. A-II/75, Lajpat, New Delhi or forcibly dispossessing the plaintiffs and their family members from the same and from raising any construction, addition or alteration over the said property, till the disposal of the suit. However, any observations made in this order shall have no reflection on the merits of the case.