RAWAL SINGH v. KWALITY STORES — 1985 DIGILAW 307 (DEL)

D. R. KHANNA ( 1 ) THE plaintiff is perpetual lessee of shop No. 47, Defence Colony Market, New Delhi, having purchased the same from the President of India through the Ministry of Rehabilitation. The formal lease deed though executed on 5-8-71 (Ex. P. 4) reeked that the lease commenced from 23-5-1956, and is for a period of 99 years. The shop itself is a single storey and according to the plaintiff, is lying let out to the defendants from Feb. 1958 on monthly rent of Rs. 170. 00. The premises so demised is described in para 1 of the plaint as to constitute all that exists on the ground floor. The roof of the shop was, however, stated to be not part of the demised premises, and so also the staircase which is common of shops Nos. 47 and 48, leading to the roof. As such the plaintiff asserts that he has every right to pass through the back door leading to the staircase and the roof. In the year 1963 when he was serving as Sq. Leader in the Indian Air Force, and posted at Deolali, he wanted to build second storey on the shop, and gave a plan prepared by an architect to the defendants for submission to the appropriate authorities for sanction. The defendants, however, by a letter dated 11-3-1963 put him off by representing that the plans of second storeys were not being sanctioned. ( 2 ) IT has also been averred that during the plaintiff s absence from Delhi, the defendants enclosed the front verandah by raising walls on two sides and shifted the shutter from its original place to the outside of verandah. They have also included the back verandah into the shop by raising the wall on the outer side, and further covered the back courtyard. All these are alleged to be unauthorised and amount to changes of substantial nature in the shop, and violate the terms of the lease. It was after 1971 when he retired from service and came to Delhi that he came to know of these alterations. The Land and Development Office on learning of them in 1974, wanted to carry out inspection of the premises for determining whether any infringement of the lease had taken place. However, the defendants did not allow them to enter the premises. The Land and Development Office on learning of them in 1974, wanted to carry out inspection of the premises for determining whether any infringement of the lease had taken place. However, the defendants did not allow them to enter the premises. ( 3 ) THE plaint avers that the plaintiff filed an eviction petition against the defendants in 1977 on the ground that he wanted to raise the second storey on the shop. and further that the defendants had unauthorisedly effected alterations in the premises. That petition, however, was dismissed by the Rent Controller on 9-7-1981, and the plaintiff s appeal was also rejected by the Rent Control Tribunal on 14-7-1982. In the plaint it is not mentioned that a second appeal is pending in that case in this Court, but it was so represented at the time of the final hearing of this suit. ( 4 ) ASSERTING that he wants to construct second and third storeys on the shop, the plaintiff has brought the present suit for a declaration that the roof of the building is not a part of the premises demised to the defendants, and the plaintiff is entitled to raise super-structure thereon. The defendants are also required by mandatory injunction to remove the lock from the backside door which leads to the staircase for going on the roof. They are also required to remove unauthorised constructions and restore the premises as it existed at the time of the letting out. The defendants are also sought to be restrained from obstructing the plaintiff or his agents at all reasonable times to inspect its condition. ( 5 ) BEFORE referring to the case of the defendants, it may be mentioned that the plaintiff has averred in the plaint that the original rent note executed between the parties was lost when his entire luggage was burgled while travelling in train from Kalka to Delhi on 3-3-1959. A report was lodged of this with the police, and subsequently three persons were arrested and convicted, but the rent note could not be recovered. Thereafter the plaintiff wanted the defendants to acknowledge in writing the terms on which the premises were let to them, and it was with great difficulty that the defendants gave a writing dated 22-4-1960 to the plaintiff of the demised premises and other terms of the tenancy. Thereafter the plaintiff wanted the defendants to acknowledge in writing the terms on which the premises were let to them, and it was with great difficulty that the defendants gave a writing dated 22-4-1960 to the plaintiff of the demised premises and other terms of the tenancy. The defendants are alleged to have acknowledged that the copy of the lease agreement which was with them had been lost, though had earlier held out that they would supply the same to the plaintiff. ( 6 ) THE defendants have admitted that the plaintiff is the owner of the shop in dispute, and that they are tenants under him. However, it is asserted that the entire shop including the roof was let out. At that time there was no open space on the backside as it was covered. It has been admitted that there is a common staircase of shops Nos. 47 and 48 and the entrance to the same is from the back door. All these form part of the demised premises. Ever since the inception of the tenancy the defendants claim that they have been continuously using the back door, staircase and the roof. The back door is kept locked by the shopkeepers, of shops Nos. 47 and 48 from inside for security reasons. The roof is claimed to be adjunct part of the tenancy of the defendants. In any case, it is urged that even otherwise, the defendants have acquired right of easement over the same and the plaintiff has acquisced in its user by the defendants for so long. ( 7 ) IT has been denied that the plaintiff sent any plan prepared by an architect for construction of the second storey in 1962. Rather it is added that the defendants had themselves suggested to the plaintiff that since they did not have any place nearby to live in, they were agreeable to permit the construction of the second storey subject to the condition that it was let out to them at a monthly rent of Rs. 100. 00. It was as such that the defendants later wrote to the plaintiff that they had learnt that the plans were not being sanctioned. This letter, it is contended, is being now wrongly interpreted and used by the plaintiff, although he was all through in its possession and had not put up the same before the Rent Controller. 100. 00. It was as such that the defendants later wrote to the plaintiff that they had learnt that the plans were not being sanctioned. This letter, it is contended, is being now wrongly interpreted and used by the plaintiff, although he was all through in its possession and had not put up the same before the Rent Controller. ( 8 ) AS regards the alterations in the shop, they are denied. Rather it is stated that the shopkeepers on both sides of the front verandah have built walls with the result that the verandah in front has got automatically covered. At present no common verandah is said to exist in the entire market. The back courtyard and the verandah are stated to be in the same condition as they were when let in 1958. No violation of the terms of the perpetual lease, it is further stated, has been committed. ( 9 ) THE defendants have rather stated that the plaintiff had, in fact, wanted to sell the shop to them, but the deal could not go through as he wanted substantial consideration under the table. The plea of the plaintiff that he wanted to construct second and third floors over the shop, it is pointed out, has been found mala fide by the Rent Controller as well as the Rent Control Tribunal. ( 10 ) THE defendants have denied that any fresh rent note was executed in 1960, or that they have withheld its copy. Rather according to them, the rent note now tendered by the plaintiff is a fabricated one as its first page has been entirely changed. The pleas of limitation, laches and res judicata have also been raised. ( 11 ) IN the replication the plaintiff has reasserted that the roof of the shop was not part of the demised premises. According to him, though the possession of the premises was handed over to the defendants in 1958, the shop was let out to them in July, 1958. The other pleas raised in defence have also been controverted. The letter dated 11-3-1963 was, it is stated, nottraceable earlier, and, therefore, could not be laid before the Rent Controller. ( 12 ) CONSEQUENTLY the following issues were framed : " 1. What was the extent of demised premises and did it include the roof above the shop in dispute? 2. The letter dated 11-3-1963 was, it is stated, nottraceable earlier, and, therefore, could not be laid before the Rent Controller. ( 12 ) CONSEQUENTLY the following issues were framed : " 1. What was the extent of demised premises and did it include the roof above the shop in dispute? 2. Have the defendants effected any material alterations in the shop which are liable to be removed and rectified? 3. Is the claim made by the plaintiff which is the subject-matter of issue No. 2, barred by resjudicata? 4. If issue No. 2 is proved and issue No. 3 is not proved, is monetary compensation adequate relief to the plaintiff? If so, to what extent? 5. Is the suit within time? 6. Relief. " ISSUES Nos. 1 and 2 : ( 13 ) IT is not disputed that a rent deed was in fact executed between the parties in 1959 when the tenancy started. It has not been produced. The same according to the plaintiff was in his handbag when he was travelling from Kalka to Delhi in 1959. However, he was robbed of the same at Panipat, and a police report lodged. Subsequently three persons were arrested and convicted. The evidence in this regard is entirely confined to that of the plaintiff. No copy of the F. I. R. or me conviction order has been produced. It was stated that none was now available. In the plaint it was mentioned that the rent note was thus lost. However, in his testimony as Public witness 1 the plaintiff stated that the handbag was later recovered from a well, and the rent note was found in the same, but it had got mutilated and was not legible. The same, however, has not been produced to ascertain if any mutilation had taken place which had rendered the same entirely illegible. ( 14 ) IT was thereafter that according to the plaintiff that the defendants executed the rent deed Ex. P. 1 in his favour. This document is on two pages, and it is apparent that the papers are different. The second paper is an old one and yellowish, while the first paper is not old and much whiter. On the second page the signatures of Shiv Prasad, a partner of the defendant firm as such exists, and so also of the plaintiff. They are not disputed. The second paper is an old one and yellowish, while the first paper is not old and much whiter. On the second page the signatures of Shiv Prasad, a partner of the defendant firm as such exists, and so also of the plaintiff. They are not disputed. The first page, however, does not contain any signature. According to the defendants this first page has been changed and fabricated by the plaintiff so as to appear as part of the second page. The original first page, according to them, was on stamp paper of Rs. 2. 00. It is this first page which contains in para 1 the description of the demised premises as to include all that existed on the ground floor. The defendants, however, contend that the original stamp paper did not contain any such description, and that the entire shop including the roof was let out to them. ( 15 ) OF the two attesting witnesses of this document, Chander Bhan has been examined by the defendants as D. W. 5, and he has supported the defendants. The other attesting witness Sabharwal is said to be dead. Another circumstances relevant in this regard is that this rent deed was not produced by the plaintiff in the litigation that he had with the defendants before the Rent Controller. According to the defendants the first page of this document was fabricated by the plaintiff when they had taken the stand in those proceedings that no copy of the rent deed was with them. That stand they had taken in 1977 and the litigation continued before the Rent Controller up to Sept. , 1981, and the appeal too was decided in July, 1982. It was thereafter that the present suit was filed on 2-8-1982, and then the plaintiff for the first time brouglit out this document, having become sure that the defendants possessed no copy. ( 16 ) THE plaintiff has placed reliance upon a post card Ex. P. 2 which Shiv Prasad, partner of the defendant firm, had written to him on 20-8-1959. In this he he had mentioned that the rent deed which the plaintiff had given over to him, had been given by him to one brother who had not thereafter met him, and that after getting that from him and signing the same, it would be sent. In this he he had mentioned that the rent deed which the plaintiff had given over to him, had been given by him to one brother who had not thereafter met him, and that after getting that from him and signing the same, it would be sent. This letter the plaintiff states, was written in reply to his letter in which he had sought the execution of the second rent deed, the earlier one having been lost as aforesaid. It was thereafter that the defendants executed the rent deed Ex. P. 1. It has been pleaded from the plaintiff s side that the contents of this post-card amply corroborate his version that the second rent deed was in fact executed and the circumstances in which it was done, was as explained by him of the original being robbed from him at Panipat. ( 17 ) SHIV Prasad as D. W. 1 has admitted having sent this letter but according to him the second rent deed was sent to him by the plaintiff for the signatures of all the partners of the defendant firm as the original had been signed by one of the partners. That rent deed was given by him to his relation Inder Raj now dead as he himself did not know English much. Inder Raj, however, told the defendants that when the original rent deed had already been signed by one partner on behalf of the firm, there was no need to execute another rent deed. It was as such that no second execution according to the defendants took place, nor any rent deed sent to the plaintiff after the letter Ex. P. 2. ( 18 ) WITH this state of the evidence and the circumstances of the case, it is difficult to say that page 1 of the rent deed Ex. P. 1 was genuine one, and has not been replaced. On the face of it, it is on a different paper than the second page. It has brought out for the first time in this litigation only though the plaintiff had the opportunity to produce it before the Rent Controller. The only attesting witness produced does not support the plaintiff s version. There is no cogent evidence except for the statement of the plaintiff himself that the original was robbed of and lost. It has brought out for the first time in this litigation only though the plaintiff had the opportunity to produce it before the Rent Controller. The only attesting witness produced does not support the plaintiff s version. There is no cogent evidence except for the statement of the plaintiff himself that the original was robbed of and lost. The mutilated rent deed could, in any case, have been produced to show its such existence. And lastly though the letter Ex. P. 2 does bring out the circumstance that the propriety of execution of second rent deed did arise, the evidence of its actual execution is confined to that of the plaintiff only. The explanation given by the defendants about the letter Ex. P. 2 cannot be altogether rejected. There is, of course, one circumstance that the typing on the two pages is similar. ( 19 ) IT has, therefore, to be next ascertained if there is other material on record which can bring out what was the extent of the demised premises. As already noted above, the shop has been single storeyed when it was let, and continues to be so even now. There is evidence to show that in the year 1958 the Defence Colony market where the shop is situated, was absolutely a new one, and the colony itself had very few houses. According to D. W. 5 Chander Bhan he was the first to opena shop in this colony. D. W. 6 Ram Gopal who is a tenant in shop No. 7 there, was the second shop to start operating there. The third shop was the shop in dispute where the defendants started their business in July, 1958. From this circumstance the defendants have pleaded that the market being a new one and the colony undeveloped, it were the owners who were in look out for tenants, and thus were not in position to dictate. It was as such that they stated that the plaintiff covered the backside, open court-yard of the shop before letting it out as he himself had obtained possession of the shop in May, 1958, and was not particular about the roof. Both D. W. 5 Chander Bhan and D. W. 6 Ram Gopal have stated that the roof of the shop in dispute has throughout remained with the defendants. Both D. W. 5 Chander Bhan and D. W. 6 Ram Gopal have stated that the roof of the shop in dispute has throughout remained with the defendants. Similar is the deposition of D. W. 1 Radha Kishan and D. W. 4 Shiv Prasad who have been partners of the. defendant firm. According to them, they have been keeping their crates, bardana etc. there, and their servants also sleep there. The back side stairs the door which are common for both shops. Nos. 47 and 48, are locked by the defendants from inside. The defendants have denied that the plaintiff ever went on the roof after the letting out of the shop. The plaintiff, however, has claimed that the roof and stairs never formed part of the tenancy, and that he had been going on the shop off and on. He mentioned the names of three persons who had accompanied him to the roof of the shop as Rattan Chand, Wing Commander Mehta and Balwant Singh. None of them has been produced. ( 20 ) BEFORE proceeding further it may be mentioned that the plaintiff has stated that he wanted to construct second and third storeys on the shop in dispute, and for this purpose got a plan prepared from his architect friend late Mr. Gambhir in 1961, and sent that to the defendants for obtaining sanction for the construction. Defendant No. 2 then wrote post card Ex. P. 4dated 11-3-1963 to him that after going several times, he had learnt that plans were not being passed. The plaintiff contends that this is another circumstance which shows that the roof continued to be with him, and he wanted to effect construction thereon, and had sought the help of the defendants in getting the plans which he had already got prepared from an architect, sanctioned as he himself happened to be posted outside Delhi, and the defendants instead of refuting his right to do so, simply stated that they had learnt that the plans were not being sanctioned. The defendants have admitted this letter. Their case, however, is that they had told the plaintiff that if he constructed the upper floor on the shop, they would like to take the same and pay Rs. 100. 00 per month as they did not have any residential premises nearby. The defendants have admitted this letter. Their case, however, is that they had told the plaintiff that if he constructed the upper floor on the shop, they would like to take the same and pay Rs. 100. 00 per month as they did not have any residential premises nearby. In fact according to them, the defendants were to be allowed to construct the first floor on the roof. Since the construction then was not being allowed on the upper floors, nothing materialised. So far as this construction part is concerned, it may be mentioned that the plaintiff had sought ejectment of the defendants on this ground from the shop before the Rent Controller. Copies of the judgments of the Rent Controller as well as the Rent Control Tribunal Ex. D. 1 and Ex. D. 2 show that this version of the plaintiff that he bona fide required the premises for re-construction purpose, was not accepted. This was on the ground that although in his pleadings, the plaintiff had denied that he had agreed to sell the shop to the defendants, the latter had produced a writing in his hand which showed that he in fact had negotiated with them to sell the shop. The defendants case was that the deal fizzled out as the plaintiff wanted Rs. 33,000. 00 to be paid in black out of total consideration of Rs. 75. 000. 00. As already stated above, a second appeal is at present pending against those decisions in the High Court. During the course of the hearing of this suit also it came up for discussion why the roof of the shop which was not being utilised for any good purpose, should not be utilised better and construction effected. It was not disputed that the Defence Colony Market has now acquired an important commercial complex, and the values of the properties have gone up there manifold. The defendants showed their inclination to pay even four times what had been agreed upon earlier for the sale of the shop, but the plaintiff felt that the prices were still much higher. In any case this circumstance cannot much weigh against the plaintiff as the court cannot patronisingly look at the plea that an owner must be pressed to sell his property. In any case this circumstance cannot much weigh against the plaintiff as the court cannot patronisingly look at the plea that an owner must be pressed to sell his property. It is another thing that the legislature may intervene as a policy matter to confer ownership rights on tenants subject to payment of compensation. That position has not so far emerged with regard to urban properties. ( 21 ) CORRELATED to all this is the controversy about the unauthorised constructions which the plaintiff alleges the defendants have effected in the demised premises. The front verandah has been firstly enclosed and made part of the shop. The defendants case in this regard is that the two adjoining shops constructed walls in the verandahs to include them in their own shops with the result that the verandah of the shop in dispute also became enclosed, and, therefore, they shifted the shutter on the front side. As regards the backside enclosure of the verandah and the covering of the court-yard the defendants case is that these were done by the plaintiff himself when he had let out the shop to them in 1958 as an extra facility in the scarcely populated colony where it was difficult to find tenants for shops. In this regard the evidence on record shows that the possession of the shop was obtained by the plaintiff in May, 1958 and the letting out to the defendants took place in July of the same year. The period in between was said to have been utilised for these constructions. Rather according to the defendants, they wanted to demolish a wall on the back side so as to widen a passage but the plaintiff strongly resisted and declined to grant permission in that regard vide copy of the letter dated 26-9-1960 which the plaintiff has himself placed at page 7 of the documents file. The plaintiff has besides himself admitted that at present in the entire Defence Colony market there is no shop having open front verandah left. From these circumstances it has been pleaded by the defendants that had the said closures of the verandah and the covering of the court-yard been unauthorisedly done by the defendants, the plaintiff would not have remained dormant for so long and not protested. The notices which he has got issued from the Land andDevelopment Office vide Ex. P. 9 to Ex. The notices which he has got issued from the Land andDevelopment Office vide Ex. P. 9 to Ex. P. 12 from July, 1976 onward are as a result of the plaintiff himself moving that authority in Feb. 1975 vide Ex. P. 13 that the defendants had unauthorisedly effected constructions without proper sanction of the plans. The plaintiff s witness Jung Bahadur, P. W, 2, an official of the Land and Development Office stated that no penalty or action by way of threat of cancellation of lease has been taken against the plaintiff for not allowing the inspection to the officials of the department of the shop. The plaintiff made grievance that the officers of that department are not being allowed to inspect the shop by the defendants. ( 22 ) THE defendants have also contended that since these alleged alterations in the premises by them are sought to be assailed by the plaintiff in this suit, and relief by way of declaration and injunction is being sought, the suit would be barred by time as Arts. 58 and 113 of the Limitation Act permit three years period for obtaining such declaration and injunction. These alterations according to the defendants were within the knowledge of the plaintiff from sixties when he stated that he had been going to the roof of the house in 1963-64, and in any case knew of them in 1977 when the eviction petition was filed. Earlier also it is stated that an eviction petition was filed in 1975 but the same was against defendant No. 2 and not the firm, and as such was later withdrawn. According to the defendants, the plaintiff should be treated to have in any case acquiesced in these alterations in the demised premises if found to have been done by them. ( 23 ) LACHES in seeking relief in this regard by civil action may disentitle grant of equitable relief of mandatory injunction. It is another thing that a cause for claiming eviction may or may not exist on this score under the Rent Control Legislation. The suit having been brought long after the expiry of three years of the effecting of alterations is barred for mere declaration and mandatory injunction at this belated stage. This is irrespective of whether the defendants carried out those alterations or they were by the plaintiff himself or with his approval or acquiescence. The suit having been brought long after the expiry of three years of the effecting of alterations is barred for mere declaration and mandatory injunction at this belated stage. This is irrespective of whether the defendants carried out those alterations or they were by the plaintiff himself or with his approval or acquiescence. See in this regard the decisions reported as AIR 1981 J and K 79 Suraj Prakash v. Jagdish Raj, AIR 1981 Mad 220 ; R. S. Muthuswami Gounder v. A. Annamalai, AIR 1971 Raj 112 ; Jagan Nath v. Kachhulal, and AIR 1983 SC 452 K. Satyanarayana v. K. Ramaiah. ( 24 ) ANOTHER plea raised from the side of the defendants has been that the rent note Ex. P. 1 produced by the plaintiff is inadmissible in evidence because it is unregistered. In support reliance is placed upon two decisions reported as Amar Singh v. Surinder Kaur, AIR 1975 Madh Pra 230 (FB) and Satish Chand Makhan v. Govardhan Das Byas, AIR 1984 SC 143 . The plaintiff, however, has referred to AIR 1971 Delhi 243, J. N. Banerjee v. Sohan Lal Bhargava for pleading that the purpose of lease being only a collateral matter, unregistered lease deed can be used for ascertaining it. In my view, however, the discussion in this regard would be academic as it has already been noted above that it is difficult to hold that the document Ex. P. 1 produced is a genuine one which had been executed inter se parties. That apart, what the plaintiff is seeking is the non-existence of something in this document or negative part thereof. His case is that the roof did not form part of this rent note. This ascertainment, therefore, is not with regard to what forms part of this document, but the absence of the same. To this extent the document can be surely looked into irrespective of it being unregistered or unstamped. In other words, if it is accepted that this document was, in fact, executed inter se parties, and it shows that the roof did not form part of the demised premises. the plaintiff would be competent to refer to it to this extent. ( 25 ) THERE is. therefore, no bar to looking into a document to ascertain whether a certain matter alleged to form part of it in fact is not its part. the plaintiff would be competent to refer to it to this extent. ( 25 ) THERE is. therefore, no bar to looking into a document to ascertain whether a certain matter alleged to form part of it in fact is not its part. It is rather for the party claiming exclusion from evidence and consideration of a matter on the ground that it forms part of an unregistered or unstamped document to show that it actually exists there. This is not the position in the present case. ( 26 ) THE defendants have referred to a decision of this Court in the case Ramjilal Mahender Kumar v. Naresh Kumari, (1983) 24 Delhi LT 100 : (AIR 1984 Delhi 95), wherein it was observed that roof is a part of building specially when it is one storeyed and in the absence of any contract to the contrary the initial presumption would be that it is let out along with the building. These observations were made while adjudicating upon the temporary injunction application under 0. 39, Rr. 1 and 2 Civil Procedure Code. , and it was held that if such injunction was not granted and the defendants either dispossess the plaintiffs from roof or shop or raise structure on the roof it would create trouble and cause irreparable injury to the plaintiffs. It was also observed that if the plaintiffs finally succeed it might not be possible for the Court to require the defendants to remove the structure so raised by them. Another decision relied upon by the defendants is of Punjab and Haryana High Court reported as 1976 Ren CR 145 B. S. Malik v. Dr. Nazar Singh, wherein also it was observed that roof and stair-case are part of a building specially when it is one storeyed, and in absence of contract to the contrary, the presumption is that these were let with the building. ( 27 ) MR. Vohra appearing for the plaintiff has contended that the nature of the demised premises in the present case is shop simpliciter, and the entire business, storage of merchandise etc. are done by the defendants within the shop. The roof is notbeing utilised for any of these purposes. ( 27 ) MR. Vohra appearing for the plaintiff has contended that the nature of the demised premises in the present case is shop simpliciter, and the entire business, storage of merchandise etc. are done by the defendants within the shop. The roof is notbeing utilised for any of these purposes. It is thus just lying waste, and considering the commercial importance that the Defence Colony market has acquired, and further taking into account the scarcity of built-up properties in Delhi, both commercial and non-commercial, the defendants should not be allowed to sit on the fence. They, it is pointed out, cannot themselves effect any construction on the roof, and their attitude not to allow the plaintiff to do so would be displaying an approach of dog in the manger. The space of the roof is thus being allowed to lie idle which can be utilised for far greater advantage and result not only in further commercial activity in the market, but substantialm the side of the defendants, on the other hand. it has been pleaded that since the entire shop has been let out to them, and the roof forms part of the shop, the plaintiff cannot be allowed to dispossess them from the roof which forms part of the demised premises, and this too without recourse to the Delhi Rent Control Act. In the present case it is pointed out. not only the rent note has not been produced, there is the testimony of independent witnesses who have stated that the roof was part of the rented premises, and the evidence has also come that the defendants have been keeping their bardana, crates etc. . and their servants have also been sleeping there. As regards the plaintiff s plea that he wants to in fact effect constructions on the roof, the same has been negatived by the Rent Controller and Rent Control Tribunal, and the motive of the plaintiff is to harass the defendants and make them to vacate the shop and finish their livelihood and business, and then sell the property at substantial amount. ( 28 ) I have given my utmost and prolonged consideration to the entire matter. So. far as Ex. ( 28 ) I have given my utmost and prolonged consideration to the entire matter. So. far as Ex. P. 4 in which the defendants had intimated that plans were not being sanctioned, the plaintiff has not produced any copy of the alleged plans which he had got prepared from the architect and sent to the defendants. No other evidence in this regard apart from the plaintiffs statement is available. In the circumstances again the defendants explanation cannot be treated as entirely beside the mark. The crucial question still remains whether the roof of the shop constitutes part of the demised premises with the defendants. The genuineness of the rent note Ex. P. 1 has already been doubted as per discussion above. Two decisions in the cases Ramjilal Mahender Kumar (AIR 1984 Delhi 95) and B. S. Malik (1976) Ren CR 145 (supra) raise the presumption that when a single storeyed building is let out, the roof constitutes part of demised premises. First of these cases was of a shop. There is also evidence that the defendants have been in possession of the roof inasmuch as not only they have been keeping the entrance to the stair-case leading to the roof locked from inside, they have been keeping their left-overs like bardana etc. there. Perhaps in summer their servants may be sleeping there. The oral evidence in this regard corroborates their version that the roof is with them. The assertion by the plaintiff that he had been going to the roof and has been in its possession is not borne out by any other evidence. In the totality of these circumstances, it would not be wrong to conclude that the roof forms part of the demised premises. At the same time there is force in the contention of Mr. Vohra that the roof is not being utilised for any material purpose, or for the business storage of merchandise etc. which the defendants are doing in the shop. At the same time there is force in the contention of Mr. Vohra that the roof is not being utilised for any material purpose, or for the business storage of merchandise etc. which the defendants are doing in the shop. It is thus lying idle and waste, and considering the commercial importance that the Defence Colony market has acquired, and taking into account the scarcity of the built-up properties in Delhi, both commercial and non-commercial, the defendants should show a gesture of co-operation and goodwillin permitting other floors to be built over the roof, and they can be given the first choice of obtaining on rentat least the first floor of the property from the plaintiff. It should also not be difficult to effect construction on the upper floors without getting the shop vacated inasmuch as the construction material can be taken upstairs from the back side entrance. Appropriate security with the raising of walls of the passage can be provided to the defendants shop. In this modem age with the cities undergoing fast development and growth, it would be sheer anachronism if a single storeyed structure is allowed to exist because of the adamancy and recalcitrant attitude of the tenants. Concepts which could be considered as legitimate in the past can, therefore, now no longer be treated as valid. Pressure tactics to induce the landlord to sell the property in sheer helplessness should also not be given oblique patronage. All this view is just being expressed ex facie as in the ultimate analysis the ejectment from the demised premises or allowing possession over part of the same to the landlord would essentially be a matter within the domain of the Delhi Rent Control Act proceedings. In case both the sides see reason, construction on the upper floors can be effected without dispossession of the defendants or disturbance in any manner of their business. The interest of both the sides can thus be secured. Of course, in case the plaintiff does not effect any construction on the roof and above or plans to sell off the property to a third party with advantage of roof in his possession, then in that case the allowance of possession to him of the roof should get reversed and treated as non-existent, and the roof still considered as being with the defendants. ( 29 ) IT is therefore, for the parties to assert their contentions in this regard before the Bench before which the second appealis now pending against the dismissal of the eviction petition. It will of course be entirely with the learned Judges to adopt such course or make such orderas they may consider appropriate. ( 30 ) HAVING made these observations, so far as issue No. 1 is concerned, in the situation as it is, the same has to be answered in the affirmative. ( 31 ) AS regards issue No. 2 the defendants have brought out the manner in which they shifted the shutter of the shop in front of the verandah when the two adjoining shops had constructed walls to include their frontal verandahs in their shops. At present no shop in the market is stated to have open verandah, and all have included the same within their shops. This position has been there for long, and though obvious to the Land and Development Officer, they have not chosen to take any action. In the circumstances, the inclusion of the verandah has resulted in accretion to the plaintiffs property, and cannot be made the subject-matter of grievance. Similarly the back verandah and court-yard, even if covered by the defendants, though the evidence on record of independent persons is to the contrary, cannot be objected to by the plaintiff. A tenant is entitled to make adjustment in the demised premises to make them suitable to his requirements, and the landlord cannot be heard to take exception to them, and that too alter the lapse of a long period, when no damage, impairing the premises and material alteration has resulted which cannot be restored back to the original position by the tenant at his own cost whenever he vacates the same. No order 245 of removal at this stage is, therefore, called for. ( 32 ) ISSUE No. 3: There was no specific finding in the proceedings under the Delhi Rent Control Act that the roof constituted part of the demised premises. Issue No. 4: ( 33 ) THERE is no question of allowing any monetary compensation in view of the finding under issue No. 2. Issue No. 5: ( 34 ) SO far as seeking declaration and injunction with regard to the additions and alterations, it has already been observed that they arc in existence from long. Issue No. 4: ( 33 ) THERE is no question of allowing any monetary compensation in view of the finding under issue No. 2. Issue No. 5: ( 34 ) SO far as seeking declaration and injunction with regard to the additions and alterations, it has already been observed that they arc in existence from long. Under Arts. 58 and 113 of the Limitation Act, the three years period had much earlier expired, and that was not only when the alterations were effected but also when the plaintiff had come to know of them. It moreover cannot be termed as a case of continuous cause. Rather inaction on the part of the plaintff can be treated as an act of acquiescence. ( 35 ) ONE relief claimed by the plaintiff in the suit is that the defendants should be restrained from obstructing him or his agents from entering the shop at reasonable times to inspect its conditions. This the defendants should allow as a landlord is entitled to inspect his property. Of course the plaintiff will avail of this facility with due deference to the business of the defendants and without causing any obstruction or annoyance. Subject to this, decree, the rest of the suit of the plaintiff is dismissed, leaving the parties to bear their own costs. ( 36 ) AND lastly there is criminal Miscellaneous No. 875 of 1985 which the defendants have moved under S. 340 Criminal Procedure Code for launching prosecution against the plaintiff for fabricating the rent note Ex. P. 1. After considering the entirety of the circumstances, I am of the opinion that this is not a fit case for recourse to any such action. There is no gain- saying that such proceedings cannot be allowed. to be resorted to for satisfaction of private vendetta. For the good relationship between the parties, considering that they are landlord and tenants, and further the desirability of gesture of co-operation and goodwill about which reference has been made above, such action must be negatived.