SOHAN LAL BEHL Vs. CHHOTEY LAL

JUDGEMENT

(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 &: 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. 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. 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.