Valmiki J. Mehta, J. (Oral)

1. This regular second appeal is filed by the plaintiff/landlord against the impugned judgment of the first Appellate Court dated 13.5.2013. The first Appellate Court by the impugned judgment allowed the appeal of the defendant/respondent and set aside the judgment dated 30.11.2012 of the trial court by which the trial court had decreed the suit for possession and recovery of damages filed by the appellant/plaintiff against the respondent/defendant.

2. The facts as pleaded by the appellant/plaintiff in the plaint were that vide a rent deed, Ex. PW 1/3, the suit property comprising of open land measuring 341 sq. yards forming part of 69, Najafgarh Road, New Delhi-110015 was let out to the respondent/defendant. The lease was created for a period of two years commencing from 1.6.1980 i.e ending on 31.5.1982. The premises were outside the Delhi Rent Control Act, 1958 inasmuch as what was let out was the land and not a built up premises. The tenancy was a monthly tenancy which was terminated by the notice dated 10.9.1997, and since the respondent/defendant failed to comply with the same by vacating the suit property the subject suit for possession and mesne profit was filed.

3. The respondent/defendant contended that what was let out was not land but a covered area/structure and, therefore, the suit premises fell within the protection of the Delhi Rent Control Act, 1958.

4. The relevant issues framed in this regard by the trial court were issue nos. 1 and 4 which read as under :

“1. Whether the plaintiff is entitled for the decree of possession of the suit property, as claimed? OPP

4. Whether suit of the plaintiff is barred by Section 50 of DRC ACT? OPD”

5. These issues were decided in favour of the appellant/plaintiff and it was held that what was let out was only land and not a constructed premises, and therefore, the respondent/defendant did not have protection of the Delhi Rent Control Act. Both the parties relied on their respective copies of the rent note. In the rent note filed by the appellant/plaintiff, Ex. PW-1/3, the expression “covered” was cut out whereas in the rent note filed by the respondent/defendant as Ex. PW-1/D1 the expression “covered” was not struck off. Trial court has firstly relied upon the rent receipts which referred to the tenanted area as land/open space to hold that premises which were let out were not constructed premises. The counterfoils of the rent receipts in this regard are Ex. PW-1/5 to PW-1/22. Secondly, the trial court has relied upon the documents Ex. PW-2/3 to Ex. PW-2/5 which were filed with the Municipal Corporation of Delhi for property tax purposes by the respondent/defendant and which showed that what was taken on lease was not a constructed premises but only land at rent of Rs. 343/- per month. The relevant observations of the trial court are contained in paras 21 to 24 and which read as under :

“21. In order to discharge the initial onus, Sh. Harish Virmani entered in the witness box as PW1 and he relied on Ex. PW1/3 which is rent note, but in the rent note the term of lease was mentioned as 2 years, but the rent note was not registered and as per the provision of section 17(1)(d) r/w section 49 of Registration Act, 1908 such a document is required to be compulsorily registrable and if the same not registered, it cannot be looked into, in proof of any term evidenced by such document, but it may be taken into consideration for collateral purposes.

22. In the present case, the relationship of landlord and tenant is not in dispute, neither there is any dispute as to rate of rent, the only dispute is whether built up property or open space was let out as it was the contention of the plaintiff that open space was let out and the contention of the plaintiff that open space was let out and the contention of the defendant was that built up property was let out and in the opinion of this court to determine the same, Ex. PW1/3 can be looked into since the said is m