The main legal point established in the judgment is that the appellants failed to prove the existence of tenancy in their favor, and one or more baridars could not create tenancy rights.

VALMIKI J.MEHTA, J.

RSA No.345/2014

1. This Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (CPC) is in fact only in the nature of cross objections by the respondents/defendants in RSA No.92/2013 for sustaining the judgments of the courts below dismissing the suit for declaration and injunction filed by the plaintiff, and whose legal heirs are now the appellants in RSA No.92/2013. Accordingly, this second appeal is disposed of by considering the present appeal as arguments for sustaining the judgments of the trial court and first appellate court which are challenged in RSA No. 92/2013.

This RSA is therefore disposed of as not pressed subject to the aforesaid observations.

RSA No.92/2013

2. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiffs in the suit challenging the concurrent Judgments of the courts below; of the Trial Court dated 31.1.2012 and the First Appellate Court dated 1.4.2013; by which the courts below have dismissed the suit filed by the plaintiffs seeking declaration and injunction with respect to claim of the plaintiffs of tenancy in premises being shop no.1, Kalkaji Mandir, Delhi comprising of two rooms and two varandas. I note that original plaintiff died pendente lite and he was substituted by his legal heirs and who hence became the plaintiffs. Reference to appellants/plaintiffs will include reference to the original plaintiff wherever the context so requires. Plaintiffs had also claimed the relief of injunction to restrain the defendants/landlords/respondents from allowing any person other than the plaintiff from opening another halwai shop in the entire premises of the Kalkaji Mandir.

3. While admitting this second appeal on 21.8.2013, the following substantial question of law was framed:

“Whether the judgments of the two courts below returning the concurrent finding are suffering from any perversity with regard to the issue as to whether the appellant was a tenant or a licensee in respect of the suit premises?”

4. The facts of the case are that the appellants/plaintiffs claimed tenancy of the suit premises. In para 21 of the plaint where the assertion of existence of the tenancy was first made, there is no date month or year given when the tenancy commenced. In paras 27 and 28 of the plaint plaintiff claims that he has paid rent of Rs.1,125/- per month and therefore he cannot be evicted without the due process of law as plaintiff’s tenancy is protected under the Delhi Rent Control Act, 1958. In para 32 of the plaint plaintiff pleads that he is in continuous possession for more than 12 years of the tenanted premises. In para 40 of the plaint plaintiff pleads an alternative case that in case the plaintiff is not found to be a tenant and only a licensee, even then he cannot be dispossessed without the due process of law. Paras 21, 27, 28 and 32 of the plaint and the relief para 44 of the plaint read as under:-

“21. That the plaintiff is a tenant of the Mandir Shri Kalkaji in respect of one shop bearing No.1 belonging to Mandir Shri Kalkaji for the last more than 12 years at a monthly rent of Rs.1125/-. The plaintiff carries on his business as a Halwai and prepared sweets for “Parshad” purposes and the premises in his tenancy consists of one big room, one small room and 2 verandahs. The plaintiff carries on business under the name and style of “Kalka Mai Ke Parshad Ki Kadimi Dukan. Yahan Parshad Acha Milta Hai” as sole proprietor of Pearey Lal Fateh Chand.

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27. That the plaintiff accordingly has paid rent of the said premises at the rate of Rs.1125/- per month to the Baridar of Thok Jogian, as well as to Baridars of Thulla Tansukh, Thulla Jas Ram, Thulla Bahadur and Thulla Ram Baksh against proper rent receipts.

28. That the plaintiff submits that he is a tenant with respect of the shop of Mandir Kalkaji and is paying Rs.1125/- per mensem as rent and cannot be evicted there from otherwise than in due cour