9911796707
TMI Blog1999 (10) TMI 763X X X X Extracts X X X X X X X X Extracts X X X X ..... litigation, has already been pending for more than 13 years, it is not proper to remand the matter for fresh consideration. Hence, we have gone through the entire evidence on record by perusing the original record ourselves for disposing of these appeals finally. 3. The respondent herein filed suit No. 557/86 on the file the Court of Senior sub-Judge, Delhi against the appellant and the Municipal Corporation of Delhi for a permanent injunction restraining the defendants therein from dispossessing him from the tuck shop in premises No, G-19, N.D.S.E. Part-I, New Delhi-110049 and occupying the same and constructing anything on the same in any way. That suit was filed on 14.7.86. In the body of the plaint it was alleged that on the night of 12.7.1986 the defendant No. 1 therein with the help of local police threw the entire goods of the plaintiff from the tuck shop in the verandah and started constructing basement and covering the tuck shop of the plaintiff's place with the glass which was refuted and objected to by the plaintiff but the local police had not helped the plaintiff and the officials of the Municipal Corporation had also sided with the appellant herein in raising t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neither party appeared before that Court, obviously because the main petition had already been dismissed as withdrawn, but the High Court went on to confirm the order of the Appellate Authority holding that there was no merit in the revision petition. 5. Even when the first suit filed by the respondent was pending and there was an order of interim injunction in his favour, the respondent filed a second suit bearing No. 793AS6 on the file of the Sub Judge, Delhi against the appellant under Section 6 of the Specific Relief Act from which the present appeal arises. The prayer in the suit was for grant of decree for possession in favour of the respondent in respect of part of the tenanted premises as shown red in the site plan attached therewith in the premises bearing No. G-19, New Delhi South Extension Part I, New Delhi. The basis of the claim in the suit was that the respondent became a tenant on or about 1.11.1969 under one Saraswati Devi through her attorney Lal Chand Gaur at a monthly rent of Rs. 200. It was alleged by the respondent that the appellant purchased the premises on 12.2.1969 and became the landlord of the premises and therefore he became a tenant under the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd against the respondent's case of tenancy failed to consider the evidence on record on that footing. In other words, his argument is that once the basis of the claim made by the respondent that he came into possession of the property as a tenant of the Appellant's predecessor-in-title has been found against, the Court ought to have realized that the respondent could never have been the tenant on the property and consequently he could not have been in possession of the same as such. It is rightly pointed out that the respondent had no alternative pleading that if his case of tenancy under the appellant's predecessor is found against, he should be considered to have become the tenant of the appellant on a later date after the appellant purchased the property. Such an inconsistent alternative plea could not have been raised by the respondent and as a matter of fact it was not raised. (ii) The second contention is that the dispossession of the respondent was completed in 1984 and the suit having been filed in November 1986 was clearly barred by limitation. It is submitted in this connection that both the courts have erroneously discredited the document proving the paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also proceeded on the footing that Issue No. 7 covers the question of limitation. The second contention of learned counsel for the respondent is that the dispossession of the respondent was only in July or August 1986 and it was not in due process of law and consequently the appeal deserves to be dismissed. 10. We have already referred to the specific averment in the plaint that the respondent became a tenant under one Saraswati Devi though her attorney Lal Chand Gaur on 1.11.1969 at a monthly rent of Rs. 200. In the very same paragraph in the plaint it is averred that the appellant purchased the property on 12.2.1969 and became the landlord of the premises whereupon the respondent became a tenant under the appellant by operation of law. On the face of it, the averments are inconsistent and do not make any sense. In order to verify whether the date ₹ 1.11.69' was found in the original plaint, this Court called for the original record and it is now seen that the same date is mentioned in the original plaint without any room for any doubt. Even assuming for a moment, that the date was a mistake for ₹ 1.11.68' as now sought to be contended, there being no eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... predecessor-intitle and that the respondent had been engaged on daily wages through his brother Ajit Prasad or other relatives to sell pan etc. It is also his plea that other persons besides the respondent were similarly engaged on daily wages. It was however, pleaded that the respondent was not regular in attendance and when his services were not engaged, he requested the appellant's brother Ajit Prasad to recommend to the appellant to give a last chance by engaging him as a panwala on daily wages. That was in about July 1986. Taking pity on his condition and on the assurance of Ajit Prasad that the respondent would behave properly, the appellant engaged his services. Immediately thereafter, the respondent filed the first suit for injunction claiming to be a tenant. This specific plea of the appellant was supported by his own evidence and the evidence of Ajit Prasad as DW-3. The correctness of the plea and accetability of the evidence have not been considered by the Trial Court anywhere in its judgment though they have been referred to as part of the narration of facts. The Trial Court has not even trained an issue on that question. The Trial Court having found expressly agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent proceeding is in error in placing any reliance on the said order of the Sub-Judge. 15. The Trial Court has placed reliance on some inspection report of 1972 of House Tax Department for holding that the tuck shop was inside the premises bearing No. G-19, N.D.S.E. Part I and that a wooden almirah was earlier inside the wall which had been pushed away thereafter. None of the said matters is relevant in this case. The two crucial questions are whether the respondent was in exclusive possession of the premises as claimed by him and whether he was dispossessed within a period of six months prior to the date of the suit. Unfortunately, the Trial Court has ignored the relevant materials with regard to the said questions and overlooked that the specific case put forward by the respondent has been negatived by itself. 16. The report of the local commissioner appointed in the first suit 557/86 disproves the averments made by the respondent in the plaint in that suit as well as the plaint in the second suit. It is worthwhile mentioning here that the averments in Para 5 of the plaint in the earlier suit are sufficient to prove that he was already dispossessed and yet he prayed for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suggestion whatever to the appellant or his witnesses that he started the unauthorised construc-tion sometime in 1984 and completed it much later in 1986. In the absence of any such suggestion to the witnesses of the appellant and in the absence of any such evidence on the side of the respondent, the Courts below are not justified in assuming that the payment of compounding fee does not support the case of the appellant that the unauthorised construction was completed in 1984. 20. The High Court has made the following observation in Paragraph 13 of its judgment : 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 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 . The above observation is wholly unwarranted as it is not the case of the respondent that the basic structure of the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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