TEJA SINGH Vs. V J JACOB

JUDGEMENT

(1.) This is a defendant's second appeal in a suit for injunction to restrain the appellant from raising further constructions on the first floor of a house. The appellant is the owner of the building and the respondent is the tenant. A cross suit being suit No 624 of 1965 had already been filed by the appellant for an injunction restraining the present respondent from interfering with the appellant's right to raise further constructions on the first floor. That suit was simultaneously dismissed by the judgment under appeal. It may be here observed that the trial Court had on the other hand decreed the landlord appellant's suit and dismissed the tenant-respondent's suit. It was brought to my notice that a second appeal was preferred by the appellant from the decree dismissing his suit No. 642 of 1965 which was passed simultaneously by the lower appellate Court on the basis of the same common judgment. That appeal was rejected as time barred on the dismissal of the application under Section 5 of the Limitation Act, by an order of this Court dated 6th September, 1971. The preliminary question which has been raised by Mr. Mohd. Moonis, appearing for the tenant-respondent in this case is that the order rejecting that second appeal as time barred has the effect of making the judgment under appeal final and conclusive even as regards the present second appeal. An order rejecting an appeal as time barred after the dismissal of an application under Section 5 of the Limitation Act does not amount to a decree as held by me in Second Appeal No. 2604 of 1965 (Ram Pyara v. Mahadeo) decided on 8th September. 1981. The only effect of the rejection of that second appeal arising from Suit No. 642 of 1965 is to make the decree dismissing that suit final between the parties. So far as the judgment of the lower appellate Court in that suit is concerned that judgment was common in the first appeals arising from suit No. 642 of 1965 and the tenant's suit No. 767 of 1965. The judgment in the two suits being simultaneous, it cannot be said that the findings recorded in one suit can operate as res-judicata in another, and the judgment having been put in jeopardy in the present appeal, it has not become final and the bearing of the present second appeal is not barred by res- judicata. See Jai Narain Har Narain and another v. Bulaqi Das 1968 A. L. J. 1047 F. B. On the merits I am quite clear in my mind that the finding of the lower appellate Court cannot be sustained at all. The respondent was a tenant of the accommodation which is single strayed. There is no stair case to get on to the roof of the building. The appellant landlord wanted to raise further construction on the roof. The tenant wanted to prevent the landlord from doing so and set up the ground that even the roof was included within his tenancy so that the landlord could not build upon it. It was not a case of contractual lease governed by the Transfer of Property Act. It was a case of a tenancy of an accommodation protected by U P. Act III of 1947. An accommodation had to have a roof in order to afford a tenant protection under that Act, but that did not make the roof an accommodation in respect with the tenant was protected. So long as the tenant's use and occupation of the accommodation was not disturbed, there was nothing in U. P. Act III of 1947 which could prevent the landlord from exercising his rights of property over the building including the raising of further constructions on the roof. Reference has been made in the judgment of the lower appellate Court to Section 108 (c) of the Transfer of Property Act. Apart from the fact that it is impossible to say that the tenant was using the roof in the absence of any stair case to enable him to get on the top of the roof, the lower appellate Court has completely mis-applied and mis-understood the provisions of Section 108 (c) of the Transfer of Property Act. That provision affords protection against unlawful interruption of a lease. It contemplates that the lessee shall not by unlawfully evicted from the property leased during the subsistence of the lease and that his possession of the property leased shall not be otherwise disturbed. In the present case the possession of the respondent tenant could not be disturbed at all by the appellant's act of raising further constructions on the roof. The respondent tenant had under the circumstances no right in law to prevent the appellant landlord from raising further constructions on the roof, and an injunction restraining the appellant from doing so could not have been issued at all. In the result the appeal succeeds and is allowed with costs. The trial Court's decree dismissing the plaintiff-respondent's suit No. 767 of 1965 is restored with costs throughout. .