IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 308 of 1988 (O&M) Date of Decision: 14.1.2010 Manjit Kaur. ....... Appellant through Shri Kabir Sarin, Advocate. Versus M/S Punjab Sales Corporation,Mandi Gobindgarh and others. ....... Respondent through Shri Jagmohan Singh Chaudhary, Senior Advocate with Shri F.S.Virk, Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against judgment and decree dated 31.10.1987 passed by the Additional District Judge, Patiala (hereinafter referred to as `the first appellate Court') vide which the appeal of defendants-respondent nos. 1 to 3 preferred against judgment and decree dated 23.9.1985 of the Sub Judge Ist Class, Amloh (described hereinafter as `the trial Court') was allowed without disturbing the same qua other defendants-respondents. The plaintiff-appellant had filed a suit for permanent R.S.A.No.308 of 1988 (O&M) -2- .... injunction seeking to restrain the respondents from making any obstruction or hindrance in the construction to be carried out by her over the property marked as ABCD and EFGH in the site plan which was attached with the plaint. It was pleaded that the appellant is owner of the the shops which have been shown as nos. 1 to 8 in the site plan and the respondents are tenants therein under her. It was further pleaded that the appellant wanted to raise construction over these shops so as to build a second storey, but the respondents resisted the same compelling her to institute the suit for injunction. Upon notice, respondent nos.1, 2, 3 and 6 appeared and contested the suit, whereas the remaining respondents were proceeded against ex parte. In their joint written statement, respondent nos. 1 to 3 and 6 pleaded that the roof of the shops was part of their tenancy and consequently, the appellant could not interfere in the tenanted premises including the roof by raising any construction thereon. The parties went to trial on the following issues:- 1. Whether the plaintiff is entitled to the injunction prayed for?OPP 2. Relief. The trial Court decreed the suit of the appellant by holding that the roof and the stair-case were not included in the tenancy. Feeling aggrieved, respondent nos. 1 to 3 filed an appeal which was accepted by the first appellate Court and the findings of the trial Court qua them were reversed, whereas the judgment and decree of the trial Court R.S.A.No.308 of 1988 (O&M) -3- .... against other respondents were not disturbed. While reversing the findings of the trial Court, the first appellate Court relied upon the observations of this Court in B.S.Malik versus Dr.Nazar Singh and another, 1976 R.C.R. 145 and held that the appellant had failed to prove that there was a contract or agreement between her and the tenants of not leasing out the roof of the demises premises. This has resulted in the filing of the instant appeal by the appellant. Learned counsel for the appellant has contended that the findings recorded by the first appellate Court are perverse and deserve to be set aside. It has further been contended that eight shops are divided into two blocks with stair-case in the middle having a block of four shops on each side. He, thus, submitted with reference to the site plan that prima facie looking at it, the shops with roof cannot form part of the tenant premises as there is common stair-case to the block of four shops each and this would impliedly mean that each tenant has to trespass to the premises of the other tenant in the eventuality of any access being taken to the roof. Learned counsel for the appellant argued that apart from the fact that it can be inferred from a perusal of the site plan that roof was never a part of the tenanted premises, the respondents, who had set up a plea in that regard were required to prove in the positive and the first appellate Court has gone wrong by holding that the appellant failed to discharge her onus of proving the roof to be not part of the tenancy. He also drew my attention to the judgment dated 29.9.2008 rendered in Civil Revision Nos.126 to 128 of R.S.A.No.308 of 1988 (O&M) -4- .... 1987 which were the proceedings arising out from the petitions filed by the appellant under the provisions of East Punjab Urban Rent Restriction Act,1949 and wherein the factum of the roof not forming part of the tenancy was determined by the Rent Controller and the Appellate Authority and their findings were not disturbed by this Court. On the other hand, learned counsel for the respondents contended that the appellant, while appearing as a witness during the trial, did not produce the rent notes even though she had stated in her testimony that the roof was not part of the tenanted premises and, therefore, it was for her to prove the rent notes and the terms of the tenancy. I have thoughtfully considered the rival contentions and have gone through the whole record. According to the learned counsel for the appellant, the following substantial questions of law arise for consideration of this Court:- 1. Whether a person who pleads a fact, is required to prove it or whether the onus lies on the other side to prove in the negative? 2. Whether the findings of reversal recorded by the Lower Appellate Court are sustainable as the defendants- respondents have failed to prove by way of evidence and law that the stairs and the roof of the tenanted premises are part of the tenancy? 3. Whether the tenants have the rights over the roof of the tenanted premises and the stairs despite no specific contract R.S.A.No.308 of 1988 (O&M) -5- .... in favour of the tenants regarding status of the roof and stairs? A perusal of the impugned judgment shows that the appellant had merely filed a suit for permanent injunction seeking to restrain the respondents from interfering in the intended construction sought to be raised on the first floor of the tenanted premises. The respondents, who had contested the suit, had specifically pleaded that the roof was a part of the tenanted premises. It is a settled principle of law that a party, who pleads a fact, is required to prove the same by adducing cogent evidence. If the facts of the instant case are considered in the light of the above mentioned proposition of law, then it is evident that the respondents had failed to discharge their onus which was specifically on them. They did not lead any positive evidence to establish that the roof was a part of their tenancy. In this eventuality, the finding of the first appellate Court that the appellant should have proved this fact was totally erroneous. That apart, it has to be seen that in Civil Revision Nos. 126 to 128 of 1987 decided on 29.9.2008, the findings of the Rent Controller and the Appellate Authority with regard to the fact that the roof was not a part of the tenanted premises, were not disturbed. Even though, the judgment passed in the above mentioned Civil Revisions does not form part of the record of the instant Regular Second Appeal, yet, the Court is not precluded from looking at it being judicial pronouncement. R.S.A.No.308 of 1988 (O&M) -6- .... Besides this, a perusal of the site plan also reveals that the contention of the learned counsel for the appellant is not misplaced. The shops are divided into two blocks of four each with a stair-case in the middle and if the roof was a part of the tenanted premises, then in that eventuality, the user of the same would have been a trespassing on the premises in possession of the other tenant, which could never have been the intention of the tenancy so created in favour of the respondents. In any case, the first and foremost question is that the respondents, who initially raised this plea of the roof being a part of the tenancy were required to prove the same which they have not done and, therefore, the question of law as framed under item no.1 is to be answered that the respondents have failed to discharge their onus of proving that the tenanted premises was a part of the tenancy. In that eventuality, the questions of law under item nos.2 and 3 are also answered in favour of the appellant and it has to be held that there was no specific contract between the parties for user of the roof in favour of the tenants qua the tenancy in question. In the result, the appeal is accepted, the impugned judgment & decree are set aside and the judgment & decree passed by the trial Court are upheld. January 14,2010 ( Mahesh Grover ) “SCM” Judge