Indermeet Kaur, J.@mdashThis is a second appeal which has challenged the impugned judgment dated 22.4.1994. Vide the aforenoted judgment and decree the First Appellate Court had endorsed the finding of the Trial Judge date 2.7.1985; the Trial Judge had dismissed the suit of the plaintiff.
2. On 4.8.2010, the following substantial question of law had been formulated which reads as under:
Whether the finding in the impugned judgment dated 22.4.1994 amounted to a perversity, if so, its effect?
3. Briefly stated the facts of the case are as follows:
(i) plaintiff is stated to be a tenant in the disputed premises i.e. Shop No. 38, Central Road, Bhogal Jangpura, New Delhi for the last 30 years. The property was owned by Pir Namni Nizamuddin Basti, New Delhi.
(ii) plaintiff alleged that a platform appurtenant to this shop forming its integral part has been under his tenancy from inception. This platform is in the use of the plaintiff for display of sweet meats.
(iii) In July 1966, the SDM with the police force had visited his shop with the allegation that that this platform was an encroachment of a public street; he threatened to demolish it.
(iv) plaintiff filed a Writ Petition.
(v) Present suit was thereafter filed. Prayer was that Municipal Corporation of Delhi (MCD)/Delhi Development Authority (DDA) be restrained and permanently injuncted from demolishing this platform which was not a part of public street and nor an encroachment of public land.
(vi) The defendant i.e. the MCD and the DDA contested the suit. The contention of the MCD was that the plaintiff had constructed a tin shed and chabutra in front of his shop on municipal road which is a part of municipal land; it was an illegal encroachment which could be removed under the provisions of u/s 322 of the Delhi Municipal Corporation Act (hereinafter referred to as the ''DMC Act'').
(vii) Defendant No. 2 i.e. the DDA was proceeded ex parte.
(viii) On 1.6.1968 suit was disposed of. It was decreed in favour of the plaintiff.
(ix) MCD filed an appeal. The First Appellate Court vide its judgment dated 26.3.1969 in RCA No. 259/1968 remanded the matter back to the Trial Court after recasting issue No. 2; the onus of which was placed upon plaintiff/respondent. This issue inter alia reads as follows.
Whether the platform in dispute is a part of the tenancy premises of the plaintiff and is not a part of the public place? OPP
(x) On 2.11.1978 the Sub Judge, First Class, Delhi disposed of the suit. It was decreed in favour of the plaintiff.
(xi) On 14.10.1980 in an appeal preferred by the MCD, the matter was heard and again remanded back to the Trial Court for disposal according to law. It was held that Local Commissioner who had been appointed in the Trial Court has submitted his report but the objections to this report filed by the defendant had not been considered being beyond limitation. The application of the MCD seeking enlargement of the time u/s 148 and 151 of the CPC to file objections had been rejected. This order was held not justified. The matter was accordingly remanded back on 14.10.1980 to decide the case afresh.
(xii) On 2.7.1985, the Trial Court decided the matter afresh. The Trial Court considered the objections filed by the MCD to the report of the Local Commissioner dated 1.6.1977. After discussing the report and the objections in length it concluded as follows:
With these observations, I conclude that the report of the local commissioner, dated 1.6.77 need not be set aside or completely ignored even through it lacks in information which would have been very material and significant in resolving the controversy between the parties.
(xiii) Issue No. 2 was the crucial issue. This issue was decided against the plaintiff and in favour of the defendant. After examination of the witnesses of the plaintiff and the witnesses of the defendant as also scrutiny of their depositions, the court inter alia held as follows:
18. The Local Commissioner in his report Dt.1.6.77 is already noted above, state that the disputed property fell in Khasra No. 250 But as already observed in the foregoing paras, the report of the local commissioner does not show the measurement of the shop and the platform in dispute distinctly. All that it shows was as to where Khasra No. 250 was located, and that the disputed portion fell within the Khasra. But it is no where shown as the record as to what was the total area of this Khasra and as to whether the whole area comprised in Khasra No. 250 was the area of the shop with disputed platform, or in other words, as to whether the area of the shop and platform was that only land comprised in Khasra No. 250. The Revenue Record relating to Khasra No. 250 have not been proved on record. In this view of the evidence on the record it is abundantly clear that the plaintiff has failed to prove that the land beneath the suit platform was part of his tenancy premises and not that of public road. The best evidence to prove the averments of plaintiff in this respect was the original "rent note" if any executed by the landlord in favour of the plaintiff. If no such rent deed was executed, other evidence, including the statement of the landlord could have been made available to show the exact dimension of the premises under the tenancy of the plaintiff. Another important piece of evidence would have been the building plan sanctioned by local authority, according to which the shop in dispute had been constructed. These plan would have clearly shown as to what was the actual property leased out to the plaintiff. No effort to make available this evidence has been made by plaintiff. This conduct leads us to the natural inference that this evidence, if produced would have gone against the case of the plaintiff.
19. In view of the aforesaid considerations, it is clear that the oral evidence with regard to the old existence of the ''chabootra'' on platform in dispute does not help the plaintiff in proving that it form part of the tenancy premises of the plaintiff existing beyond the actual taints of the public road. The plaintiff has not produced any cogent evidence to prove these facts in his favour. He has withheld important material in fact the best evidence available. In light of these facts, we must conclude that the disputed platform is an encroachment made by the plaintiff as municipal road existing adjacent to his tenancy premises.
20. Thus, the issue No. 2 is answered in the negative, against the plaintiff.
(xiv) The First Appellate Court vide judgment and decree dated 22.4.1994 endorsed the finding of the Trial Judge. The relevant extract of the finding of the First Appellate Court is inter alia reproduced as follows:
The pltf. had come to the court claiming that the platform formed integral part of his shop. The burden of proving that the platform was integral part of his was on the pltf. The pltf. is a tenant in the shop and the Landlord/owner of the shop was the best person to know as to what was the area given under tenancy of the pltf. The owner of the shop has not been made a party in the suit by the pltf. Neither the owner has been made as co-pltf. nor the owner has been made as a deft. while the owner was a necessary party. The pltf. has also not produced the owner in the witness box to depose as to what was the area of the premises which was given in tenancy of the pltf. and whether the Chabutra was the integral part of the shop or not. There is no dispute about the shop. The pltf. claims the tenancy of the shop and claims that Chabutra was integral part of the shop and he has been using the Chabutra for long time for display of sweets meals. The pltf. has produced Ulfat Rai as PWR-2 who stated that he has seen the Chabutra for the last 35 yrs. He, however, admitted that the Chabutra has been made pucca only 8-10 years back. He stated that MCD had subsequently made a foot-path so there was no Chabutra in existence towards the market. PWR-3 is Chander Bhan, an Official of Settlement Commissioner Office. He deposed that as per survey conducted on 18-8-49 the pltf. was in occupation of two rooms and one verandah which was being used as a shop with a ''chhapper'' in front. The testimony of PWR-2 and PWR-3 together makes it clear that the present shop which the pltf. claims to be under his tenancy was earlier a verandah in front of the rooms and it was being used as a shop. There was no Chabutra beyond verandah and there was merely a Chhapper. The pltf. later on converted the verandah into a shop and built a Chabutra outside the shop and stacked the claim that Chabutra was integral part of the shop. The premises in question was an leased premises from DDA even according to the pltf. The pltf. has not bothered to call in evidence those records which would have shown as to what was the area leased out by DDA to the owner. The testimony of Mr. S.S. Mittal from Land & Estate Deptt. of MCD who appeared as PW1 shows that the platform in dispute measures 19'' x 31/2'' and was on municipal land. He proved plant Ex.DX-1 and in this plant it is clearly shown that the width of the road was 20'' which was running between the shops but in front of the shop of the pltf. this width has been reduced to 17''8''''. The lease deed of the property has also been placed on record as mark A. The original sale deed was not produced as it did not contain the site plan. From the testimony of the pltf. witnesses coupled with the testimony of PW-1 Mr. Mittal it is clear that the pltf. was earlier running his shop in the verandah. He later on converted verandah into a shop and built a Chabutra outside the verandah-cum-shop which he started using from keeping his show-case etc. The pltf''s own witness has stated that this Chabutra was made pucca only 8-10 years back. The testimony of the pltf''s witness dis-prove the pltf''s assertion in the plaint that Chabutra was integral part of the shop. It also disproves the fact that the premises was rented out, to the pltf. as a shop. The pltf''s witness show that premises was not meant for shop but it was later on put into the use as a shop. It was a house with two rooms and a verandah. The local commissioner''s report as already stated is of no help in coming to the conclusion whether the chabutra was part of the shop or not. The lay out plan of the colony proved by deft. very clearly shows that chabutra was an encroachment on the public property.
4. Arguments have been addressed at length before this Court. Learned Counsel for the appellant has submitted that the findings in the impugned judgment are a perversity. Crucial evidence has been ignored; attention has been drawn to the version of Ulfat Rai PWR-2 who has stated that chabutra is in existence since last 30-35 years. It is stated that the suit had been filed in the year 1966; as per this version this chabutra is dated back to the year 1936 i.e. prior to the promulgation of DMC Act which had been promulgated in the year 1957. As such this Act i.e. the DMC Act would have no application to the instant case. Attention has been drawn to Section 317 of the DMC Act. It is pointed out that this provision is prospective in operation. u/s 317(2), it is only after a notice by the Commissioner that the owner or the occupier of any premises can be asked to remove the projection, if any, noted upon the street. Admittedly, no such notice has been given. Counsel for the appellant has placed reliance upon a judgment of this reported in
5. Respondent has countered these arguments. Attention has been drawn to the site plan of the disputed premises Ex.PW-10/2 (page 117 of the Trial Court record) where the shop and the chabutra has been depicted. It is pointed out that this chabutra is outside the boundary line. Attention has also been drawn to the lay out plan (page 127 of the Trial Court record) Ex.D, wherein also the chabutra depicted in red pencil has been shown to be jutting out of the boundary line. Attention has been drawn to para 12 of the plaint wherein the plaintiff has asserted that the shop had been constructed after the sanction of building plans. It is pointed out by learned Counsel for the respondent that it is the submission of the plaintiff himself that plans had been sanctioned by a government agency but the plaintiff had failed to produce the said plans. Attention has been drawn to the testimony of Mr. C. Mittal examined as PW-1, the Draftsman, Manager, Land and Estate, Municipal Corporation, Delhi who had proved this layout plan. He had deposed as under:
As per lay-out plan, the road should be 20 feet wide. But after the chabutra mark A, the width of the road has been reduced to 17''- 8". On one side the width of chabutra is 2''x 2" and on the other side 2''- 10".
It is contended that this version of PW-1 remained unrebutted. This oral version of PW-1 coupled with the documentary evidence i.e. the lay out plan and the site plan has established that the platform/chabutra was not a part of the tenancy premises but it was a projection upon public land.
6. In rebuttal, the learned Counsel for the appellant has relied upon a judgment reported in
7. This case has a chequered history. Suit had originally been filed in 1966. Judgment impugned before this Court after two rounds of litigation is the judgment dated 22.4.1994. There is no dispute to the proposition that Section 317 of the DMC Act is prospective in operation. However, the judgments relied upon by learned Counsel for the appellant reported in Haveli Ram and Gulzari Lal Jain (supra) do not come to his aid. In both the aforenoted cases a chabutra/platform was in dispute; yet in both the cases, there was no dispute to the fact finding that the chabutra/platform was in existence prior to the coming into force of the DMC Act of 1957; it was in these circumstances, that it was held that the chabutra is not liable to be demolished by taking resort to the provisions of Section 317, 320 and 321 of the DMC Act. Further in a bunch of contempt petitions being CCP Nos. 113/2004, 120/2004, 131/2004 and 136/2004 decided on 31.8.2004 a Bench of this Court had held that the DMC Act does not envisage a show cause notice to be issued to a person who constructs upon public land.
8. In the instant case both the fact finding Courts have held against the plaintiff. Report of the Local Commissioner dated 1.6.1977 had been relied upon by the two Courts below only to conclude the finding that the disputed property had fallen in Khasra No. 250. Trial Court had held that the plaintiff had not produced the sanctioned plan to show that his tenancy portion also included the disputed premise i.e. the chabutra; lease agreement had also not been produced for which also an adverse inference had been drawn against the plaintiff. The first Appellate Court had considered the version of PWR-2 Ulfat Rai who had stated that the chabutra was made pucca only eight to ten years ago. Version of PWR-3 Chander Bhan, Official from the Settlement Commissioner''s Office had also been considered who had deposed that as per the survey report conducted on 18.8.1949, the plaintiff was in occupation of the two rooms and one verandah which was being used as a shop with a chhappar. The First Appellate Court had after scrutiny and examination of these oral versions as also the documentary evidence which included the layout plan Ex.DX-1 held that there was no chabutra beyond the verandah; it was merely a verandah; plaintiff later on converted this verandah into a shop and built a chabutra outside the shop; plaintiff was wrongly staking his claim that the chabutra/platform is an integral part of the shop. Testimony of PW-1, Mr. Mittal, had stated that the width of the road was earlier 20 feet which was running between the shops but in front of the shop of the plaintiff the width had been reduced to 17 feet 8 inches by the construction of the chabutra.
9. These findings of fact by the two Courts below clearly call for no interference. These findings can in no manner be held to be perverse.
10. This Court is sitting in second appeal; it is not a third fact finding court. It can interfere in the finding of the two Courts below only if the finding in the impugned judgment amounts to a perversity. The expression ''perverse'' has been dealt with in number of cases. In
11. The judgment of Bhagwan Dass and the reliance upon para 14 of the same judgment does not help to the appellant as it was a case where a notice issues by the Corporation u/s 321 of the DMC Act was challenged, wherein, it was held that the burden of proving that the land in question was a public place or a street lay upon the municipality as that was the basis for giving the notice in question and burden to discharge this having been placed upon the plaintiff was incorrect. The facts of the said case are distinct and have no application to the present situation.
12. There is no merit in the appeal. It is dismissed.
