SHASHANK SHEKHAR Vs. SURINDER KUMAR JAIN & ANR.

JUDGEMENT

(1.) The present second appeal under Section 100 CPC is directed against the judgment dated 07.03.2011 passed by the learned Additional District Judge -04(West), Tis Hazari Courts, Delhi, in RCA No. 37/10 tilted, 'Surender Kumar Jain Vs. Shri Shankar Shekhar & Anr.' The learned Addl. District Judge by the impugned judgment allowed the first appeal of the respondents/ defendants and set aside the judgment and decree passed by the trial court, namely, the learned Senior Civil Judge -cum -Rent Controller (West), Tis Hazari Courts, Delhi, in suit No.237/2006 filed by the appellant/plaintiff Shri Shashank Shekhar and Smt. Shanti Devi against the respondents herein. The trial Court had decreed a mandatory injunction in favour of the plaintiffs and against the defendants directing the defendants to restore possession with municipal chabutra marked in Red colour in the site plan (Ex.PW3/1), situated in front of property No. 234 -235, Ward No. V, Chandni Chowk, Delhi, after removing the wooden takht and the wooden show case with iron shutters placed over the wooden takht, to the plaintiffs. Other injunctive reliefs were also granted by the said decree in favour of the plaintiffs.

(2.) The case of the parties, as taken note of in the judgment of the trial court, are that late Shri Tara Chand Brij Mohan Lal, Advocate, ('TCBML' for short) was a tenant in respect of premises No. 234 -235, Ward No. V, situated at Chandni Chowk, Delhi. The said premises consisted of a stair case leading from ground floor to the first floor and second floor, and the first and second floor. TCBML was running his office on the first and second floor. The passage to the said office was through a chabutra on the ground floor. A part of the chabutra was situated on the municipal land, and TCBML was paying license fee in respect of the said chabutra to the Municipal Corporation of Delhi (MCD). In 1951, Shri Babu Ram Gupta approached TCBML to allow him to use the said chabutra on licence basis. TCBML allowed him to use the chabutra on payment of Rs.60/ - per month for a period of six months i.e. from January to 31 st March and from 1st October to 31st December every year, and @ Rs.45/ - per month during the period from April to September every year. After sometime, Shri Babu Ram Gupta requested TCBML that he was not interested to use the Chabutra and introduced the defendants to him and requested him to permit the defendants to use the said Chabutra on the same terms and conditions. TCBML agreed to allow the defendants to use the said Chabutra. The user of the Chabutra by the defendants was only as licensee of TCBML. Later on, the defendants put up a wooden takht and Almirah with shutters on the chabutra with the permission of TCBML. TCBML died on 26.12.1984 leaving behind the plaintiffs as his heirs and legal representatives. After 1984, the defendants continued to occupy the said Chabutra and also pay the licensee fee to the plaintiffs upto 31.03.1990. Thereafter, they stopped payment of license fee to the plaintiffs. The plaintiffs accordingly terminated the license verbally and called upon the defendants to remove the takht and Almirah from the chabutra and restore possession to the plaintiffs. The defendants did not oblige and threatened the plaintiffs with obstruction. Consequently, the plaintiffs filed the suit in question. The original plaintiffs in the suit were Smt. Shanti Devi, widow of TCBML and Shri Shashank Shekhar, son of TCBML. The plaintiffs claimed the following reliefs:

(3.) The suit was filed against two defendants, namely, Kapur Chand Bhatnagar and Shri Surinder Kumar Jain. The suit was contested by only defendant No. 2 -Shri Surinder Kumar Jain. Despite service, defendant No. 1 did not appear and was proceeded ex -parte by the trial court. The defence of the defendant No. 2 was that TCBML was a tenant in respect of first and second floor consisting of property Nos. 234 -235, Ward V, Chandni Chowk, Delhi and he had no tenancy in respect of any portion on the ground floor of the said property. The takht and shop on the platform in front of the landing of the staircase of the said property was not part of the tenancy of TCBML. Defendant No. 2 claimed that he and his father had been in possession of the property in dispute for almost 50 years, and they had become owners by adverse possession. Defendant No. 2 also claimed that the shop on the chabutra was under the occupation of one Shri Jasvinder Singh who was doing his business therein under the name and style of 'Beauty Corner'. He claimed that construction in the nature of permanent structure ­ duly fitted with electrical connection, was raised on the said chabutra. Therefore, even if it were a licence, the same could not be interfered with. Defendant No. 2 denied payment of any license fee by his father to the plaintiffs. He claimed that defendants were paying 'takht fee' to the MCD regularly. He claimed that defendant No. 1 was a mere ex -employee of defendant No. 2, and had been joined by the plaintiffs only to secure false evidence. An alternative plea was raised that the father of the defendant No. 2, namely, Shri Anand Mal Jain had purchased the said shop and, therefore, defendant No. 2 was the owner thereof in his own right.