SHANTILAL LALLUBHAI PUJARA Vs. KIRITKUMAR JAYANTILAL GHANCHA

JUDGEMENT

(1.) The petitioners are the original defendants. The respondents are the original plaintiffs. The respondents have filed Civil Suit No. 51 of 1987 for declaration that the petitioners (Landlady) had no right to construct rooms over the terrace of the rented premises and also prayed for interim injunction.

(2.) The trial Court had presumed that the tenants were in lawful possession of the terrace and can be deemed to be in possession of the entire premises, including the terrace, and the suit terrace prima facie forms part and parcel of the premises leased to the tenant. The learned Appellate Judge came to the conclusion that there was absolutely no such prima facie evidence showing and suggesting that the suit terrace was part of the rented premises. 2.1. The suit premise consists of only ground floor structure and there is no upper storey.

(3.) It is also very important to note that earlier the landlord had filed a Civil Suit No. 44 of 1978 before the learned Judge (J.D.), Dhrangadhra, on the ground of reasonable and bona fide personal requirement. The requirement was held proved and the trial Court had passed a Decree for possession. However, the appellate Court reversed the decree for possession in Civil Appeal No. 193 of 1980. For doing so, the learrned Appellate Judge observed that the tenant is entitled to make use of the terrace till the construction comes to be made by the landlord, and the landlord is entitled to make any construction on the terrace. This judgment was rendered on 29-7-1983. Thereafter, the landlord prepared a plan for the pro-construction and got it sanctioned from the Municipality and obtained necessary permission for construction on the terrace. 3.1. Thus, when the landlord was to proceed with the construction, the tenant filed the present suit for injunction and has obtained a temporary injunction to restrain the landlord from carrying out the construction on the terrace.