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2007 DIGILAW 1420 (DEL)

RUKMANI DEVI v. ANIL KUMAR

2007-07-19

J.M.MALIK

body2007
J. M. MALIK, J. ( 1 ) CM No. 1949/2007 (for condonation of delay) for the reasons stated in the application, the delay is condoned. Application is allowed and disposed of. ( 2 ) RSA No. 33/2007 and CM No. 1947/2007 adumbrated in brief the facts of the second appeal filed by appellant/tenant are these. One Sh. Sita Ram Bhandari was the owner of premises no. 5844/57, Ram Durg Building, Jawahar Nagar, Malkaganj Chowk, Delhi, wherein the shop bearing Nos. 9 and 10 were situated. He sold this property to the plaintiffs/respondents vide registered sale deed dated 3rd January, 1996. The appellant was a tenant in respect of shop No. 10. In the suit filed before the trial court the respondents alleged that the appellant forcibly took possession of verandah in front of shop No. 9 and later on fixed the shutter in the verandah. The respondents asked the appellant to hand over the said verandah to them but the request made by them fell on deaf ears. Thereafter, a legal notice was served upon the appellant but it did not produce the desired result. Consequently, the respondents filed the present suit for possession and also claimed Rs. 100 per month as damages for use and occupation of the verandah in dispute. ( 3 ) THE main defence set up by the appellant was that the verandah in question was under use, possession and occupation of the appellant since the inception of the tenancy which was created by the previous owners in the name of deceased Trilok Singh and Umed Singh. There was no occasion for the appellant to illegally and unauhorisedly trespass into the verandah. The verandah was very much within the tenancy of the appellant and other legal heirs of late trilok Singh. There is no change in the terms of tenancy after the death of trilok Singh or after the purchase of property in questions by the respondents. ( 4 ) THE trial court vide its order dated 24th December, 2004, decreed the suit with costs and awarded damages for use and occupation of the disputed portion to the respondents at the rate of Rs. 100 per month from 1st January, 1997 till the actual possession of verandah is handed over to the plaintiffs/respondents. The First Appellate Court also dismissed the appeal filed by the appellant vide its order dated 27th July, 2006. 100 per month from 1st January, 1997 till the actual possession of verandah is handed over to the plaintiffs/respondents. The First Appellate Court also dismissed the appeal filed by the appellant vide its order dated 27th July, 2006. ( 5 ) ALTHOUGH in his appeal, counsel for the appellant has drafted as many as six substantial questions of law, yet before me only one question was raised. Counsel for the appellant vehemently argued that the Exhibit PW4/2, which is a letter dated 12th August, 1974, purported to have been written by the tenant to his former landlord was not considered. In this letter, the tenant had written to his then landlord that shop No. 10 was with him at a rental of Rs. 80/- and that he wanted to use the verandah situated outside the landlord's shop by affixing a shutter. He also offered to increase rent by Rs. 5/- if his offer was accepted. Learned counsel for the appellant pointed out that this is a crucial document and the same was not considered by the courts below. He opined that in view of this document the verandah in question stood included in the tenanted premises. ( 6 ) THE learned counsel for the appellant partakes more of illusions than in reality in assuming that Ex. PW4/2 ipso facto brings the verandah into their tenancy. At the best it can be said that this was an offer made by the appellant. There is not even an iota of evidence which may go to show that the said offer was ever accepted by his then landlord. The appellant has failed to show that the rent of premises in dispute was ever increased to Rs. 85/- after 12th August, 1974. Counsel for the appellant himself admitted that no such evidence is available. This is also an indisputable fact that payment was always made against the rent receipts. The appellant has failed to show any receipt where the rent was increased to Rs. 85 per month. Appellant's version does not just stack up. ( 7 ) SECONDLY, the stand set up by the appellant in the written statement is ajar with Ex. PW4/2. Rent deed Ex. PW4/1 reveals that tenancy came into force on 1st April, 1970. In the written statement, it was averred that this verandah was with the tenanted premises since the very inception of tenancy. ( 7 ) SECONDLY, the stand set up by the appellant in the written statement is ajar with Ex. PW4/2. Rent deed Ex. PW4/1 reveals that tenancy came into force on 1st April, 1970. In the written statement, it was averred that this verandah was with the tenanted premises since the very inception of tenancy. Such like incongruous stands dampen the ardour of the appellant's case. ( 8 ) COUNSEL for the appellant has failed to prove that any finding given by the lower court is erroneous or suffers from any illegality or infirmity. Consequently, RSA No. 33/2007 is dismissed at admission stage. CM No. 1947/2007 also stands dismissed. The records of both the courts below be sent back forthwith along with a copy of this judgment.