SOHAN LAL BEHL v. CHHOTEY LAL — 1998 DIGILAW 161 (DEL)

Usha Mehra ( 1 ) NOTICE in this second appeal was issued to determine the following questions of law, namely, (1) whether the respondent pleaded in his written statement that lease granted to him comprised any built up structure, (2) if it be found that the respondent put forth no such plea, then did the Courts below have jurisdiction to find a case not pleaded by the respondent, and (3) whether on the evidence on record it was possible for the Courts below to hold that a structure existed on the land at the time when lease was granted to the respondent. ( 2 ) IN order to determine the above questions we may have a glance to the relevant facts of the case. It was the case of this appellant (plaintiff before the Trial Court) that a portion of vacant plot of property bearing No. 6/c, Kohlapur Road, Chandrawal (Jawahar Nagar), Subzimandi, Delhi was let out to this respondent, Mr. Chhotey Lal at Rs. 16. 00 per month. The premises leased out to the respondent comprising 75 sq. yards of vacant piece of land. Since respondent did not pay any rent w. e. f. 1st September, 1968 to 28th February, 1969, the appellant herein determined the tenancy w. e. f. 1st March, 1969 by notice dated 20th January, 1969 which was served on the respondent herein on 22nd January, 1969. The reafter w. e. f. 1st March, 1969 to 30th September, 1969 appellant claimed damages for the use and occupation of the premises. Respondent Chhotey Lal took the plea that the suit was barred under the Slum (Improvement and: Clearance) Act, 1956. Civil Courts had no jurisdiction to entertain the suit without the appellant first obtain permission of the Competent Authority. Even otherwise suit was barred under the provisions of Section 50 of Delhi Rent Control Act, 1958 and that the notice dated 20th January, 1969 was invalid and ineffective. Moreover, suit had not been properly valued for the purpose of Court fee and jurisdiction. On merits, he took the plea that the demised premises was not a vacant piece of land. Premises was let out on lease for building purposes with permission to respondent to raise construction over the demised plot of land. He was allowed to raise construction according to his requirements on the demised plot of land from the time of inception of the lease. Premises was let out on lease for building purposes with permission to respondent to raise construction over the demised plot of land. He was allowed to raise construction according to his requirements on the demised plot of land from the time of inception of the lease. He had raised construction with the consent and knowledge of the plaintiff (present appellant ). No objections were raised by the appellant. As regards arrears of rent his plea was that he deposited the same in the Court of Additional Rent Controller for the period 1st December, 1968 to 31st December, 1969. He also took the plea that he being an illiterate and not conversant with the English language, plaintiff i. e. present appellant took advantage of the same and thereafter a long period of inception of tenancy he issued rent receipts in which he wrote that the demised premises was a vacant plot. These receipts were issued with ulterior motive. He had been running a workshop in the demised premises. For the safety of his tools and other goods he raised some construction for which the appellant never raised any objection. With this background partics went to trial. The learned Civil Judge- decreed the suit in favour of the appellant on 16th September, 1975. This respondent filed an appeal before the Senior Sub-Judge which was dismissed on 9th February, 1976. Against the order of the Senior Sub-Judge respondent herein came up in the High Court. This Court remanded the case on the question whether the vacant piece of land was let out or not? After the remand suit was again decreed on 13th October, 1977. However, in appeal the Additional District Judge allowed the appeal and set aside the decree vide impugned order dated 7th November, 1978. It is in this background that the above three legal issues were framed at the time of admission. ( 3 ) WHILE answering question No. 1, reference to the initial written statement filed by the respondent is very relevant. Reading of the same shows that there was no construction existed on the site plan demised premises was let out to the respondent. Para. No. 1 on merits of the written statement filed on 18th February, 1970 by this respondent reads as under : 1. That para No. 1 of the plaint is not admitted as stated. Reading of the same shows that there was no construction existed on the site plan demised premises was let out to the respondent. Para. No. 1 on merits of the written statement filed on 18th February, 1970 by this respondent reads as under : 1. That para No. 1 of the plaint is not admitted as stated. The defendant submits that the plaintiff is the owner of Plot No. 6-C, Kohlapur Road, Jawahar Nagar, Delhi over which he constructed a building bearing Municipal No. 5335. It is emphatically denied that the lease of the defendant was in respect of the vacant plot of land. The lease, however, was for building purposes with permission to the defendant to raise and/or construct structures thereon. In pursuance of the lease, the defendant raised constructions over the demised plot of land from the time of the conception of the lease with the consent and knowledge of the plaintiff. However, the plaintiff never objected to the constructions so raised by the defendant even by now. Reading of this reply shows that when demised premises was let out to the respondent it consisted of only a vacant piece of land. The defence as presented in his written statement shows that by virtue of the lease he was authorised to build or raise construction on that piece of land. He nowhere stated in that written statement that built up premises was allotted to him or there existed a construction on that land. His defence had been clear and simple that by virtue of lease he was authorised to raise construction over the plot. And that construction he could raise with the consent and knowledge of the landlord i. e. this appellant. This, to my mind, tantamounts to an admission on the part of the respondent that only vacant piece of land was let to him. In this view of the matter, he can safely be concluded that the plea raised by the respondent was that he had the authority to raise construction on the plot let out to him. No document of lease showing that he was authorised to raise construction had been produced by the respondent. ( 4 ) AT a later stage plaintiff/appellant amended his plaint. It was in response to amended plaint that this respondent filed a written statement on 9th April,1974. No document of lease showing that he was authorised to raise construction had been produced by the respondent. ( 4 ) AT a later stage plaintiff/appellant amended his plaint. It was in response to amended plaint that this respondent filed a written statement on 9th April,1974. In the written statement to the amended plaint, this respondent for the first time took the plea that the property in suit was not a vacant plot but there was boundary walls and tin shed thereon. He also took the plea that he was allowed to raise and/ or construct structure thereon according to his requirements as per the terms of the lease. In the written statement to the amended plaint he also took the plea that since the time of inception of lease there existed constructed property bearing No. 5335 duly assessed to house tax. He also raised some more construction for the safety and protection of his goods which he did with the knowledge and consent of the plaintiff (appellant herein ). This plea raised in the additional written statement was contrary to the stand taken by the respondent in the original written statement filed by him as well as to the reply (Exhibit P-8) filed by him before the Competent Authority under the Slum (Improvement and Clearance) Act. Appellant in his application under Section 19 of the Slum (Improvement and Clearance) Act Exhibit p-7 specifically stated that he had let out a vacant piece of land, of portion of plot No. 6/c to the respondent. The fact that vacant piece of land was let out further finds mention in Paras No. 2 and 3 of the said application (Exhibit P-7 ). In reply vide Exhibit P-8 this respondent admitted the averments of paras 2 and 3 of the application (Exhibit P-7 ). In reply contents of para No. 2 of the application were not denied by this respondent. So far as para No. 3 is concerned, he admitted the contents of para 3 of the application to be correct. In reply to para 4 he admitted that a plot was let out to him. Reply by this respondent to para No. 4 of the application reads as under: ( 4 ) THAT para No. 4 of the application is wrong and is emphatically denied. Reply seriatim is as under : (A) That sub-para (a) is denied. In reply to para 4 he admitted that a plot was let out to him. Reply by this respondent to para No. 4 of the application reads as under: ( 4 ) THAT para No. 4 of the application is wrong and is emphatically denied. Reply seriatim is as under : (A) That sub-para (a) is denied. The petitioner has purposely not stated if the building plan in respect of the plot in dispute have been approved by the Municipal Corporation of Delhi. Even otherwise, the said plot is under the possession of other tenants apart from the respondent. It is not stated whether the petitioner has initiated proceedings against them also. The respondent understands that the petitioner has not initiated proceedings to get possession of the plot in dispute from other tenants. Under these circumstances, the present petition is mala fide and misconceived. ( 5 ) IN reply to sub-para (b) of para 4 this respondent admitted that plot was let out to him. He, however, questioned the appellant s allegation of his mis-using the plot. Beside this admission made vide Exhibit P-8, the inspection survey report by the Municipal Corporation of Delhi (Exhibit DW-5/1) corroborates the fact that Chhotey Lal (respondent herein) was having his iron godown in an open space. The MCD s survey report clearly fortifies the plea of the appellant and depicted the actual position at the site i. e. the respondent was using the open plot for his commercial activities. This inspection was done as far back as on 16th December, 1972. The report Exhibit DW-5 /1 proves the point of the appellant that open land was let out. Further reading of the initial written statement filed by this respondent coupled with his reply Exhibit P-8 and the report Exhibit DW-5/1 leads to an irresistible conclusion. That conclusion arrived at by the First Appellate Court cannot be sustained as the same is contrary to the oral as well as documentary evidence available on record. The First Appellate Court even ignored the admission of the respondent that no lease was executed in this case. If there was no lease then how in his written statement he could take the plea that he was authorised to raise construction as per the terms of the lease. In absence of there being any lease the defence set up by the respondent falls to the ground. If there was no lease then how in his written statement he could take the plea that he was authorised to raise construction as per the terms of the lease. In absence of there being any lease the defence set up by the respondent falls to the ground. An unsubstantiated plea is like a half cooked food difficult to appreciate and digest. Hence it can be said that even in its written statement the respondent had not taken the plea that premises was let out to him rather his stand had been that piece of plot was let out with permission to build. ( 6 ) WHETHER this averment of the respondent would amount to "premises"? To understand the same we have to turn to the pleas raised by the respondent in his additional written statement wherein he took the plea that on the land let out to him there was boundary walls and tin shed constructed thereon. The question that a rises is, whether existence of boundary walls and tin shed would constitute "premises" within the meaning of Section 2 (i) of Delhi Rent Control Act (in short the Act ). Section 2 (i) of the Act defines "premises" as under : Section 2 (i): "premises" means any building or part of a building which is, or is intended to be, let separately for use as a residence or for commercial use and for any other purpose, any includes - (I) the garden, grounds and out houses, if any, appertaining to such building or part of the building; (II) any furniture supplied by the landlord for use in such building or part of the building; but does not include a rook in a hotel or lodging house. Readings of the provisions of Section 2 (i) of the Act shows that ground or open land independently cannot be called the premises. It is only when building is given on rent that could constitute premises. Appurtenant of the building would not amount to premises. It has been so held by the Supreme Court in the case of Koti Saroj Anamma and Anr. v. Jonnalagada Malleswara Rao, 1995 (2) Scale page 445, wherein it was observed that shed being only an accessory to the main lease it would not come within the purview of Rent Control Act. It was only an adjunct. It has been so held by the Supreme Court in the case of Koti Saroj Anamma and Anr. v. Jonnalagada Malleswara Rao, 1995 (2) Scale page 445, wherein it was observed that shed being only an accessory to the main lease it would not come within the purview of Rent Control Act. It was only an adjunct. Such a shed meant to cover the saw mill machinery can hardly be called a house or even a hut. Dominant purpose of the lease as in this case was to let out vacant piece of land. The construction was to be raised by respondent as per his own showing subsequently as per his requirements. Law is settled that if the construction is raised by the landlord then it would amount to building but if the construction is raised by tenant then lease would be of the open land and not of any building. For support reference can be made to the decision of the Supreme Court in the case of Harish Chandra and Anr. v. Mohd. Ismail and Ors. , (1990) 4 SCC page 493. ( 7 ) WHETHER tin shed as alleged was there at the time of letting cannot be accepted in view of the overwhelming documentary evidence on record, namely, the counter foils of rent receipts Exhibits P-l to P-5 dated 5th December, 1966, 1st September, 1967,22nd May, 1968,24th June, 1968 and 16th May, 1967 respectively which bears the signatures of the respondent. Reading of these exhibits shows that only vacant piece of land was let out to the respondent. Exhibits P-l to P-5 i. e. the counter foils read with Exhibit P-8 and the admission made by respondent in his original written statement amply proves the case of the appellant that vacant plot was let out to respondent. It was for the respondent to place on record the lease to contradict the stand of the appellant and to show that tin shed existed on this plot when the premises was let out to him. But the respondent failed to produce the lease. Reliance by respondent to the house tax assessment is of no relevance because that pertains to property bearing No. 5335, Kohla Pur Road belonging to constructed portion in occupation of the appellant and other tenants but not of vacant land let out to the respondent. . But the respondent failed to produce the lease. Reliance by respondent to the house tax assessment is of no relevance because that pertains to property bearing No. 5335, Kohla Pur Road belonging to constructed portion in occupation of the appellant and other tenants but not of vacant land let out to the respondent. . Had there been a tin shed and boundary walls in existence atthe time of inception of lease nothing prevented this respondent of mentioning this fact in his first written statement or in his reply (Exhibit P-8 ). The defence raised by the respondent that being illiterate the appellant got his signatures in one go on the counter foils Exhibits P-l to P-5 does not appeal to reason. The suit was filed as far back as on 30th October, 1968 and the receipts have been issued upto May, 1968. Prior to filing of the suit the appellant had served legal notice on the respondent claiming rent and then determining his tenancy. Suit was filed after the determin ing of his tenancy and receipt of legal notice, therefore, it does not appeal to reason that the respondent would have signed the counter foils of rent receipts at the asking of the appellant in one go without looking into the contents of the same or signed on the dotted lines at the asking of the appellant. The site plan Exhibit P-l 3 also corroborates the fact that it was an open vacant land which was let out. However, respondent relied on Exhibit D-l, rent receipt to show that in this receipt it had not been mentioned "vacant Land". To my mind, this argument has no force. Mere nonmentioning of the words "vacant land" in the rent receipt would not mean that tin shed existed or some structure had already been in existence. If that had been the position then specific mention of the same ought to have been there in the rent receipt. The respondent failed to produce rent receipts issued to him on flimsy grounds. Reliance on Exhibit D-1, therefore, was of no avail to the respondent nor it proves that tin shed existed on the premises in question when the land was let out to him. Exhibit D-1 is dated 23rd January, 1968 whereas Exhibit P-3 is dated 22nd May, 1968 on which it is mentioned that premises consisted of vacant piece of land. Reliance on Exhibit D-1, therefore, was of no avail to the respondent nor it proves that tin shed existed on the premises in question when the land was let out to him. Exhibit D-1 is dated 23rd January, 1968 whereas Exhibit P-3 is dated 22nd May, 1968 on which it is mentioned that premises consisted of vacant piece of land. For this reason also no much significance can be attached to Exhibit D-1. ( 8 ) CHHOTEY Lal, respondent appearing as his own witness admitted that he raised construction over the vacant piece of land and also admitted that no lease was executed. Therefore, his defence in the written statement stood falsified. He has in fact failed to substantiate his plea that as per the term of lease he was authorised to raise construction or tin shed existed rather his admission that no lease was executed show that it was a sham defence taken by him in the written statement. From the documents placed on record coupled with the admission made by respondent in written statement as well as reply Exhibit P-8 show that premises when let out was a vacant land and that the tin shed or boundary walls were constructed by him. Since the construction was raised by the tenant hence the open land would not become premises within the meaning of Section 2 (i) of the Act. Apex Court in the case of Prabhat MIG Society v. Banwari Lal, 37 (1989) DLT 437 observed that what the Rent Control Act contemplates is a building let out qua buildings, may be with appurtenant land but not a land let out for use as land merely because there may be a small building on it. Relevant question is what was the dominant subject matter of the allotment, land or the building? From the documentary evidence discussed above, it can be said that vacant land was let out. It the respondent had raised some structure or tin shed or boundary wall that would not change the dominant purpose for which the premises was let out. The respondent cannot take advantage of the existence of a tin shed or the boundary walls. From the documentary evidence discussed above, it can be said that vacant land was let out. It the respondent had raised some structure or tin shed or boundary wall that would not change the dominant purpose for which the premises was let out. The respondent cannot take advantage of the existence of a tin shed or the boundary walls. This Court in the case of Sobha Singh v. Sant Dass, 35 (1988) DLT page 341 held that where a plot of land was leased out and if the tenant raises temporary structure on the same, removable on termination of tenancy, the plot of land did not become premises as defined in Section 2 (i) of the Act. Thus a suit for possession in such circumstances will be triable by a Civil Court and not by the Rent Controller. The observations of this Court in the case of Sobha Singh (supra) squarely apply to the facts of this case. This Court in the case of S. Ajit Singh v. Smt. Ram Swaroopi Devi. 63 (1996) DLT 599 also took the same view. Even if tin shed existed and was appurtenant to the land still it would not fall in the definition of "premises". Supreme Court in the case of Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and Ors. , AIR 1960 SC 100 and Basant Singh v. Janki Singh and Ors. , AIR 1967 SC page 341 and observed that an admission is the best evidence that an opposing party can rely upon and though not conclusive is decisive of the matter, unless successfully withdrawn or proved erroneous. In this case. as already mentioned above, there is an admission on the part of the respondent made in his original written statement as well as reply Exhibit P-8 that vacant piece of land was let out to him. This admission is supported by the counter foils of rent receipts Exhibits P-1 to P-5 bearing respondent s signatures showing that vacant piece of land was let out to him. Admission made by him in the documents quoted above as well as in his oral testimony is decisive in the matter. He has not been able to prove his admission as erroneous nor has at any time withdrawn the admissions made by him. Admission made by him in the documents quoted above as well as in his oral testimony is decisive in the matter. He has not been able to prove his admission as erroneous nor has at any time withdrawn the admissions made by him. Regarding tin shed and boundary walls he could not prove the same having been constructed by the landlord rather when confronted he had to admit that no lease was actually executed. He even failed to produce rent receipts, hence adverse presumption can be drawn against him. On the contrary counter foils Exhibits P- 1 to P-5 falsify his stand. In fact respondent miserably failed to show that the admission made by him vide his original written statement and in Exhibit P-8 were not correct or in what circumstances those were made. In the absence of which these admissions would remain binding on him. ( 9 ) MR. P. P. Malhotra, Senior Advocate appearing for the appellant contended that even in the additional written statement no different plea had been taken. In the additional written statement this respondent except saying that on the vacant piece of land there exist tin shed and boundary walls, he nowhere elaborated when this was constructed or that this tin shed had been constructed by the landlord. The respondent was not permitted by the Court to amend paras on merits of his written statement. No permission was sought by the respondent from the Court to amend his paras on merits of his written statement. In the absence of such a permission by the Court, the additional written statement or raising of new plea in the additional written statement to the admission already made in the original written statement could not be entertained nor considered. To support his argument he placed reliance on the decision of Himachal Pradesh High Court in the case of Sawan Singh and Ors. v. Radha Kishan and Ors. , AIR 1980 HP page 8 and of this Court in the case of Rukhsana Sultana v. Mohinder Kaur, 1983 RLR page 776. It is well settled , principle of law that amendment introducing new or different case and seeking to displace the plaintiff completely from the admissions made by the defendant in the written statement cannot be allowed. , AIR 1980 HP page 8 and of this Court in the case of Rukhsana Sultana v. Mohinder Kaur, 1983 RLR page 776. It is well settled , principle of law that amendment introducing new or different case and seeking to displace the plaintiff completely from the admissions made by the defendant in the written statement cannot be allowed. Even if the plaintiff is allowed to amend the plaint then defendant has no untrembled power to give a totally different written statement from the one originally filed by him. His reply to additional written statement must be confined to the amendment made in the plaint. But unfortunately the respondent herein took up a plea not consistent with the one taken in his original written statement. Hence this new plea being not allowed by the Court nor any permission sought hence cannot be considered. Therefore, no weightage can be attached to the plea raised without the permission of the Court. Even otherwise as pointed out above, the dominant purpose of letting out the demised premises was the vacant land. The mere existence of tin shed which can at best be called accessory to the main letting would not bring the case under the purview of Rent Control Act. Tin shed at best can be called only an adjunct. Therefore, it cannot be called a premises let out by the appellant to the respondent. ( 10 ) SO far as the witness produced by the respondent, namely, Shri Sher Singh, DW-6 no much weightage can be attached to his testimony because he admitted that the property was not let out in his presence. Similarly DW-2 admitted that terms of lease were not settled in his presence nor he was present at the time when respondent took aforesaid premises on rent. It was the case of the respondent that Lakhi Ram had taken this premises on rent but said Lakhi Ram, had not been examined. So far as RDW-1 is concerned he also admitted that the plot was vacant except a dairy, which was not even the case of the respondent. Therefore, no reliance can be placed on his testimony. Moreover he could not tell the name of the dairy, As far as the testimony of 0m Prakash Goel, RW-2 is concerned, his testimony is contrary to the defence of the respondent. Therefore, no reliance can be placed on his testimony. Moreover he could not tell the name of the dairy, As far as the testimony of 0m Prakash Goel, RW-2 is concerned, his testimony is contrary to the defence of the respondent. It was respondent s own case that boundary walls over the plot were constructed as per the lease in the year 1944-45. Whereas according to Mr. Om Prakash Goel the boundary wall was raised with the bricks of the year 1937. The testimony of Mr. 0m Prakash Goel also does not help the case of the respondent. ( 11 ) RELIANCE by Counsel for the respondent on the decision of the Supreme Court in the case of Nalanikant Ramadas Gujjar v. Tulsibai (Dead) By LRs. and Ors. , (1996) 5 SCC page 394 is of no help to him. In that case the Apex Court was concerned with the definition of the "premises" under the Bombay Rent Act. Under the Bombay Rent Act Section 5 (8) defines the "premises" which means any land not being used for agricultural purposes. Therefore, under the Bombay Rent Act even A land is covered under the definition of "premises". But that is not so, so far as the Delhi Rent Control Act is concerned. Therefore, this judgment is of no help to the respondent. The contention of learned Counsel for the respondent that if a party erroneously admits a fact he is entitled to show that it was a result of error. There is no quarrel with this proposition. But the fact remains that respondent miserably failed to show that the admission made by him vide counter foils Exhibits P-1 to P- 5, reply Exhibit P-8 and original written statement were made erroneously or as a result of any error. No such explanation was rendered when respondent appeared in the witness box. Therefore no mileage can be made by the respondent from this principle of law. ( 12 ) FOR the reasons stated above, this appeal is allowed. The impugned order passed by Additional District Judge is set aside. Judgement and decree passed by Shri Satnam Singh, Sub-Judge, Delhi dated 13th October, 1977 is hereby upheld and approved with costs throughout.