Pearey Lal(Decd.) Thr.Lr'S v. Surendra Nath & Ors

judgment, therefore, cannot be maintained as far as the mezzanine and opening towards the roof is concerned."

¶32Tribunal further held;

"Assuming that the respondent was not entitled to use the roof since it was a single storey shop , its user was permissive and in any case roof is not part of the tenancy accommodation. At the most it could be an amenity attached to the shop in question which was given in tenancy in the form of Kutcha phoos, shop with stone slabs, wooden karies and attached tin shed. Since at the most roof falls in the category of an amenity no importance can be attached to the argument of Sh. Andlay in this regard."

¶33In Bhal Singh Malik (Supra) cited by learned counsel for appellant, it was observed that roof and stair case are part of building specially when it is one storeyed building and in the absence of contract to contrary, presumption is that these were let out along with the building.

¶34Even assuming for sake of arguments that roof formed part of tenanted premises, tenant has no right to make hole in the roof of tenanted premises. Making of hole in the roof of a premises certainly amounts to causing substantial damage.

¶35Regarding construction of mezzanine, as per Ex. AW1/R1, no permission was granted to the appellant.

¶36Thus no infirmity or illegality can be found in the impugned judgment. I also find no reason to disagree with the well reasoned findings of the Tribunal. Present appeal is, therefore, not maintainable and it is dismissed with costs which are assessed at Rs. 20,000/. Costs be paid by appellant to respondent, within four weeks, failing which trial court shall recover the same in accordance with law.

CM No. 27/2002

¶37Since, appeal has been dismissed, consequently this application also stands dismissed.

¶38Trial court record be sent back.

27th August, 2009

V.B.GUPTA, J. bhatti

* HIGH COURT OF DELHI : NEW DELHI RCSA. No.8/2002 & CM No.27/2002 % Judgment reserved on: 4th August, 2009 Judgment delivered on: 27th August, 2009 Shri Pearey Lal S/o. Shri Fateh Chand Since deceased now represented by:- (1) Shri Ghansham Sharma, S/o. Late Shri Pearay Lal, R/o. V-2, Green Park Extension, New Delhi ….Appellants Through: Mr. V.B. Andley, Sr. Adv. with Mr. Rajinder Mathur, Adv. Versus 1. Shri Surendra Nath S/o. Late Shri Daya Ram, R/o. 74/1, Yusuf Sarai, New Delhi. 2. Sarwati Devi (since deceased) Wd/o Late Shri Pearey Lal (a) Radhey Sham Sharma S/o. Late Shri Pearey Lal (b) Rakesh Sharma S/o. Late Shri Pearey Lal Both residents of V-2, Green Park Extension, New Delhi. (c) Veena Sharma D/o. Late Shri Pearey Lal R/o. 3/52, Suklan Gali, Chota Bazar, Shahdara Delhi-110032. (d) Sundri Sharma D/o. Late Shri Pearey Lal C/o. Shri Guru Dutt Sharma R/o. House No.1, Jawahar Colony, NIT, Faridabad. (e) Rajni Sharma D/o. Late Shri Pearey Lal R/o. A-64, Second Patel Nagar, Naya Bus Adda, Ghaziabad. (f) Shri Ghansham Sharma S/o. Late Shri Pearey Lal, R/o. V-2, Green Park Extension, New Delhi. ….Respondents. Through: Mr. M.R. Shamshad and Mr. Shahzad Hussan, Advs for R-1. Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. Present appeal has been filed against judgment dated 6th December, 2001 of Rent Control Tribunal (for short as "Tribunal"), Delhi, vide which appeal of respondent no.1 was allowed. 2. Brief facts are that respondent no.1, filed petition under Section 14(1)(j) of Delhi Rent Control Act (for short as "Act") in respect of a shop forming part of property No.74/5, Yusuf Sarai, New Delhi. It was alleged in the petition that Pearey Lal (since deceased)-the tenant, unauthorizedly and illegally removed the walls as shown yellow in site plan. He also unauthorisedly constructed mezzanine in the shop as shown in red in site plan and also made an opening in the roof of the shop. He also made some encroachment upon the terrace of shop on which he had no right. The tenant caused substantial damage to the premises in question and changed entire identity of the shop. The estimate loss assessed by respondent no. 1 was Rs. 50,000/-. 3. Eviction petition was contested by Pearey Lal (deceased), who in written statement, admitted relationship of landlord and tenant between the parties. It was stated that shop in dispute was taken on rent by Sh. Fateh Chand, father of late Pearey Lal in year 1950, from Daya Ram, father of respondent no. 1, where Fateh Chand was carrying on Halwai shop. At that time, shop consisted of a Phoos chappar in front and at its back portion was having pucca roof on wooden beams and stone slabs and portion behind it, had a tin roof. In December, 1973, Daya Ram-landlord, permitted Fateh Chand-tenant, to change the said tin roof into a pucca roof and to make necessary repairs at his own costs and consequently, rent was increased to Rs. 35/- p.m. On death of Daya Ram, his son Surendra Nath-respondent no. 1 herein became the landlord, while and on death of Fateh Chand, his son Pearey Lal became tenant. 4. In January, 1985, respondent no. 1 permitted Pearey Lal to change the roof of the entire shop and to increase the height by two feet, at his own cost for the purpose of construction of mezzanine in the shop. For granting this permission, respondent no. 1, took Rs.10,000/- from the tenant. As per said permission, the tenant got roof of the shop changed and increased the height of room by two feet. 5. Regarding removal of walls, it is alleged that petition does not specify when and how the walls were removed. With regard to construction of mezzanine, it is stated that it is neither illegal nor unauthorized. In any case, the same has been constructed with the permission of respondent no. 1, the landlord. 6. With regard to opening i