The tenant did not have the right to interfere with the construction of the first and second floors of the building, as the initial presumption that the roof is let out along with the building was rebutted by the circumstances of the case.

Hemant Gupta, J.

1. The plaintiff is in revision aggrieved against the order passed by the learned first Appellate Court on 20.10.2007, whereby an application for ad interim injunction for restraining the defendant-respondent from interfering in any manner in the construction work to be raised on first and second floor of House No. 1043, Sector 37-B, Chandigarh, was dismissed in appeal.

2. The present petitioner filed a suit for permanent injunction alongwith an application for ad interim injunction claiming herself to be the owner and landlord of the suit property. The petitioner has alleged that the respondent is a tenant on the ground floor except stair-case at a monthly rent of Rs.3500/- per month and that she wants to raise construction on the first and second floor of her house. It has been further pleaded that on 09.09.2007, she has kept some building material on the roof of ground floor and started construction work, but the defendant interfered in the same. The police was called and the work was stopped. Therefore, she sought the injunction.

3. In the written statement, the defendant denied the fact that the plaintiff is owner and landlady of the house. In fact, it was asserted that Tejinder Singh son of Rattan Singh is the owner and that he is his tenant. The defendant, inter alia, pleaded to the following effect:

"1......The house in dispute including roof is let out to the defendant by Tejinder Singh son of Rattan Singh. Shri Tejinder Singh is permanently settled in USA and comes to Chandigarh very rarely. Therefore, the roof of the house is in possession of the defendant since the inception of the tenancy from September, 1983. He has been using the roof of the house during the whole of the year. Under these circumstances, the plaintiff if he has purchased the house in dispute, cannot raise construction of house on the first and second floor."

4. The respondent further asserted that the entire house is on rent with him and, therefore, the plaintiff cannot restrain the defendant not to place any article in front of the stair-case.

5. The petitioner filed a rejoinder giving the detail of purchase of property from Tejinder Singh vide sale deed dated 14.9.2005. It was denied that the house in dispute including roof was let out to the defendant by Tejinder Singh or that roof of the house is in the possession of the defendant since the inception of the tenancy in September, 1983. Reference was made to the written statement filed by the respondent in the eviction proceedings initiated by Tejinder Singh against the respondent, wherein the respondent has stated that he is a tenant only on the ground floor of the house.

6. Learned trial Court granted ad interim injunction in favour of the present petitioner restraining the defendant from obstructing in raising of construction by the plaintiff over the terrace of the ground floor. However, the learned first Appellate Court accepted the appeal of the respondent and dismissed the application for ad interim injunction.

7. Learned counsel for the petitioner has vehemently argued that the property in dispute is a 10 marlas house, wherein three storeyes are permitted to be constructed i.e. ground floor, first floor and second floor. Since the previous owner has constructed only ground floor, therefore, the respondent was inducted as a tenant only in respect of ground floor. There was no agreement to not to construct first and second floor. Therefore, the respondent, tenant on the ground floor, does not have any right on the terrace of the ground floor, so as to prohibit the owner i.e. the petitioner from raising construction on the first floor and second floor. Learned counsel for the petitioner has referred to the written statement filed by the respondent in eviction proceedings attached with the present revision petition as Annexure P-6. It is pointed out that the respondent has pleaded that he was tenant of the entire first floor of the 10 marla house bearing House No. 1