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BANARASI DASS versus BRIJ BHUSHAN

High Court of Punjab and Haryana, Chandigarh

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Banarasi Dass v. Brij Bhushan - CR-3886-1995 [2006] RD-P&H 12857 (19 December 2006)

CR No.3886 of 1995 -: 1 :-

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH

CR No.3886 of 1995

Date of decision: December 15, 2006.

Banarasi Dass

...Petitioner(s)

v.

Brij Bhushan

...Respondent(s)

Present: Shri Tarunveer Vashisth, Advocate for the petitioner.

Shri Akshay Bhan, Advocate for the respondent.

Surya Kant, J.

This revision petition is directed against the order dated 12.11.1988 passed by the Rent Controller, Sangrur whereby the petitioner was ordered to be evicted from the demised premises consisting of half portion of stairs, as well as against the judgment dated 19.9.1995 passed by the Appellate Authority affirming the above stated eviction order. The petitioner's eviction has been ordered on the ground that the rented premises was constructed 70 years back, had become unfit and unsafe for human habitation.

[2]. The respondent-landlord filed the eviction petition alleging that half portion of the rented premises, i.e. the stairs along with a room on its south as well as a shop on its eastern side were purchased by him along with his brothers vide a registered sale deed dated 3.8.1971. He further averred that at the time of its purchase, disputed portion of the stairs was on lease CR No.3886 of 1995 -: 2 :-

with the petitioner whereas the room on southern side was on lease with Suraj Parkash. One shop on its eastern side was on lease with Naubat Rai.

It was alleged that the demised premises was constructed about 70 years back and is in dilapidated condition and has become unfit and unsafe for human habitation; the walls of the stairs were stated to have developed cracks with no mud in the joints and bricks had become naked; the roof could fall any time and the wooden planks had become lifeless and hollow; the steps of the stairs were also broken and its roof leaks profusely in rainy season. Eviction was also sought on the ground that the petitioner-tenant had not paid rent at the rate of Rs.12/- per month from 3.8.1971 to 31.12.1977 and after that at the rate of Rs.6/- per month upto the date of filing of the application. The plea of material alterations, thereby impairing the value and utility of the disputed premises, was also taken by the respondent-landlord. It may be mentioned here that in para 3 of the ejectment petition, the respondent-landlord specifically averred that "there is a relationship of landlord and tenant between the parties".

[3]. The petitioner contested the eviction petition by way of written reply dated 13.10.1986. Neither in para 3 of his written statement nor anywhere else, he denied the relationship of landlord and tenant between the parties. Since the stand taken by the petitioner in para 5 of his written statement shall have material bearing on the final outcome of this revision petition, the same is reproduced as below:- "5. Para No.5 is totally wrong and denied. In fact the total stairs were on lease with the respondent at the rate of Rs.12/- per month and were so let as shop to the respondent by its original owner Prem Dass and Bachan Dass about 30 years back. Half of the stairs were purchased by the applicant and CR No.3886 of 1995 -: 3 :-

his brother while the remaining half on the western side and the adjoining western side shop were purchased by the respondent himself. Therefore, the rate of rent of the half portion of the stairs remained Rs.6/- per month and was payable to the applicant and his brothers. This is denied that the demised premises (premises in dispute) were leased out @ Rs.12/- per month from 3.8.71 to 31.12.71. Rate of rent was Rs.6/- per month qua the portion of the applicant and their brothers. The rent has been tendered in the court as demanded from 3.8.71 to 31.12.77 @ Rs.12/- per month while from 1.1.78 to 31.12.86 @ Rs.6/- per month along with interest Rs.835/- and costs Rs.30/- totalling Rs.2437/- but the rent has been accepted only from 3.8.71 to 2.8.1986 along with interest with costs totalling Rs.2407/-. Therefore the applicant who has deliberately and mischievously demanded and accepted the amount which was neither due nor ever agreed to be payable, is as such liable for prosecution under the Rent Restriction Act.

Necessary sanction may kindly be granted in this regard and the applicant be prosecuted for the same. Excess paid amount may kindly be ordered to be refunded back on account of the counter-claim of the respondent." (emphasis applied) [4]. Both the courts, on appreciation of the evidence adduced by the respondent-landlord, have concurrently held that the stairs in dispute are in a dilapidated condition and can fall any moment. The demised premises, thus, has been held to be unsafe and unfit for human habitation. The petitioner has accordingly been ordered to be evicted on this ground. The plea that he has materially impaired the value and utility of the premises and/or has not paid the arrears of rent, however, have been turned down.

[5]. During the pendency of this revision petition, the respondent- landlord moved Civil Misc. Application No.7703-C of 2006 for vacation of stay and relied upon the photographs (Annexure A1) appended therewith to show that during the pendency of this petition, a part of the premises has CR No.3886 of 1995 -: 4 :-

almost collapsed. Pursuant thereto, though the interim stay has not been vacated, however, the main case has been taken up for final hearing.

[6]. The sole contention raised on behalf of the petitioner is that the petitioner had admittedly purchased half portion of the stairs in dispute vide a subsequent sale deed dated 3.8.1978, therefore, he has become co-owner in the premises and, thus, cannot be evicted from the same on the basis of his previous status as a tenant. It is argued that the sole remedy now left for the respondent is to seek partition of the subject property. Reliance has been placed upon three judgments of this Court in the cases of:- (i) Piara Lal & Ors. v. Tirath Singh, (1985-2) PLR 452; (ii) Gurbux Singh v.

Darshan Singh, 1987 HRR 14; and (iii) Khiali Ram (died) through LRs v. Santokh Singh, (2000-1) PLR 320.

[7]. On the other hand Learned Counsel for the respondent has relied upon a Division Bench judgment of this Court in the case of Sardarni Sampuran Kaur & Anr. v. Sant Singh & Anr., 1983 PLR 449 to contend that as the entire building is at the verge of collapse and is totally unfit and unsafe for human habitation, the expression "building" has to be viewed in its particular textual context and not with an inflexible absoluteness of the literal term. It is pointed out that the portion to which the petitioner has become co-owner, has also become unsafe and unfit for human habitation like the remaining half portion in which he is a tenant. He has also referred to para No.2 and 3 of the Grounds of Revision wherein the petitioner has admitted himself to be a tenant in half portion of the stair-case in dispute at the monthly rent of Rs.6/-.

[8]. There appears to be no quarrel with the legal preposition that once a tenant improves his status as a co/joint owner of the premises, his CR No.3886 of 1995 -: 5 :-

ejectment on the ground(s) available under the Rent Act would be impermissible and the only remedy with the landlord, who by virtue of the subsequent events stands reduced to the status of a joint/co-owner, will be to seek partition of property.

[9]. The question, however, arises as to whether or not the aforesaid plea is available to the petitioner. Admittedly, a portion of the stair-case in dispute was purchased by the petitioner vide sale deed dated 3.8.1978 (Ex.A10). The ejectment petition was filed against him on 6.8.1986, yet, the petitioner did not deny the relationship of landlord and tenant in his written statement dated 13.10.1986. On the contrary, in para 5 of the written statement, reproduced earlier, he has categorically admitted that after half of the stairs were purchased by him, he continues to be tenant in the half portion at the reduced rate of rent, i.e., Rs.6/- per month, though originally the stairs-case were taken on rent @ Rs.12/- per month. He further admitted his status as a tenant by averring that since the landlord had taken the rent in excess, the respondent was "liable for prosecution under the Rent Restriction Act".

[10]. Not only this, in para 2 and 3 of the Grounds of Revision, the petitioner has averred as follows:-

"2. That the stairs were taken on lease by the petitioner at the rate of Rs.12/- per month more than 35 years ago. The petitioner purchased half of the stairs case and thereafter the rent of the other portion purchased by the respondent was reduced to Rs.6/- per month.

3. That thus the half portion of the stairs is in portion of the petitioner as owner whereas the other half is in possession of the petitioner as tenant under respondent at the rate of Rs.6/- per month."

CR No.3886 of 1995 -: 6 :-

[11]. The petitioner, thus, continues to assert himself a tenant even after suffering the ejectment orders before the Rent Controller and the Appellate Authority.

[12]. The plea, as to whether or not the petitioner after purchasing half portion of the stairs-case had become joint-owner thereof and as to whether or not the ejectment petition was maintainable against him, is a mixed question of law and facts, which ought to have been specifically pleaded and proved. He has, however, not done so.

[13]. It appears that in order to retain exclusive possession and user thereof, the petitioner has been asserting himself to be owner of the half portion and a tenant in the remaining half portion of the stairs in dispute.

He, therefore, cannot be permitted to approbate and reprobate.

Consequently, the petitioner cannot be permitted to take the aforesaid plea in these revisional proceedings.

[14]. As far as the merits of the case are concerned, no serious challenge could be made by Learned Counsel for the petitioner to the concurrent findings of fact returned by the courts below that the stairs in dispute are in a dilapidated condition and at the verge of fall. It is amply proved that the premises is an old structure constructed more than 70 years before the eviction proceedings were initiated. Thereafter, 20 more years have passed. The building must have turned from bad to worse. No interference is, thus, called for in such like finding of fact in exercise of the revisional jurisdiction.

[15]. For the reasons aforesaid, I do not find any merit in this revision petition, which is, accordingly dismissed.

[16]. The petitioner shall, however, be at liberty to initiate CR No.3886 of 1995 -: 7 :-

appropriate action for the common use and/or partition of the stair-case after re-construction thereof and in accordance with law.

No costs.

December , 2006. [ Surya Kant ]

kadyan Judge


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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