High Court of Punjab and Haryana, Chandigarh
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Shri Baldev Raj v. Shri Ram Lal - CR-3508-2005  RD-P&H 2683 (27 April 2006)
CIVIL REVISION NO. 3508 OF 2004
DATE OF DECISION: May 03, 2006.
Shri Baldev Raj
Shri Ram Lal
CORAM: HON'BLE MR. JUSTICE JASBIR SINGH
PRESENT: Mr. R.K.Chhiber, Sr. Advocate, with Mr.Vikas Cuccria, Advocate, for the petitioner.
Mr. R.K.Sharma, Advocate, for the respondent.
Petitioner-landlord filed an application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (in short the Act) for ejectment of the respondent tenant from a portion of the house, description of which was given in that application. Ejectment was sought on the ground of non-payment of rent, personal necessity and the demised premises having become unfit and unsafe for human habitation.
It was case of the petitioner that he was landlord of the demised premises in occupation of the respondent. He had got the said property from his father through a Will, to which no objection had been raised by his sister, who is the other legal heir. It has further been said that he was working with the Union of India in the Department of Railways and was going to retire on March 31, 1999, after attaining the age of superannuation. After his retirement, he intended to settle at Fazilka, where his near and dear relations were residing. He owns agricultural land near to the said place. It was stated by him that the respondent is liable to be ejected for non-payment of rent, on account of his personal necessity and also that the demised premises had become unsafe and unfit for human habitation.
In reply to the said application, all the allegations levelled by the petitioner were controverted. It was pleaded that the ground of personal necessity put forward by the petitioner was non-existent and imaginary. Rent was tendered on the first date of hearing and on account of that the said issue had become redundant. Prayer was made for dismissal of the application for ejectment.
The Rent Controller, on appraisal of evidence, came to a conclusion that the ground of personal necessity of the petitioner was made out from the record and on that count, ejectment of the respondent was ordered. Respondent went in appeal, which was allowed by the Appellate Authority vide judgment dated April 5, 2004. Hence this revision petition. The Appellate Authority, while reversing the well- reasoned judgment of the trial Court, has opined that the petitioner had failed to prove that his ground of personal necessity, to occupy the demised premises, was genuine. To say so, it has been observed that in his application, the petitioner has not specifically stated that he was not in occupation of any other residential building and had not vacated such building, without sufficient cause, after the commencement of the Act in the said urban area. It has been held that as the petitioner had failed to prove the said fact, so he was not entitled to get the respondent ejected from the demised premises.
After hearing counsel for the parties, this Court is of the view that this revision petition deserves to succeed. It is apparent from the records that in his application for ejectment, the petitioner has specifically stated that he was landlord of the demised premises and he needed the same for his own use and occupation. The Appellate Authority below has failed to negative the findings given by the Rent Controller in that regard. The relevant portion of the judgment, passed by the Rent Controller, reads thus:
"14. Onus to prove this issue was on the petitioner and to prove this issue, he himself stepped into witness box as PW2 and also examined the Draftsman as PW1.
15.In the present case, admittedly the petitioner is the owner and respondent is the tenant over the property in dispute, meaning thereby the relationship of the landlord and the tenant is not under dispute. Now question arises whether the petitioner has any personal necessity to get the demised premises vacated from the tenant? Admittedly, the petitioner was a Central Govt. employee and was serving as Sub Station Master Railways. Admittedly, he was serving at Kurali at the time of filing of this petition.
Admittedly, his date of retirement was 31.3.99.
Admittedly 2 years service of the petitioner has been extended by the Central Govt. by a Special notification. It is admitted by the respondent in his cross-examination that another portion has been sold by the petitioner to Chander Kanta vide sale deed dated 4.9.1995 mark-C. He also admitted that one plot has been sold by the petitioner to Bhushan Lal vide sale deed dated 8.7.1993. It is also admitted by the respondent that petitioner has a wife, three sons and one daughter. He also admitted that one of his son is handicapped. It is also admitted by the respondent witness RW1 that only one room is in possession of the petitioner out of the total property.
Baldev Raj in his examination-in-chief specifically stated that except the property in dispute he owns no other property nor he got any property vacated since 1947. In his petition, he specifically stated that except the property in dispute he owned no other property at Fazilka nor he owned any property at Kurali, where he is presently residing. In the circumstances when the petitioner has been retired from his service in the year 31.3.2001, which is an admitted fact, he needs his own house.
16. Now question of his bonafide is to be decided first. Since the petitioner owns no other house at Fazilka except the property in dispute. He wants to settle down at Fazilka after his retirement alongwith his other family members, his needs seem to be bonafide. The arguments of the Ld. Counsel for the respondent that he has not mentioned all the ingredients as per section 13(3)(a) sub section (i) of the East Punjab Urban Rent Restriction Act, 1949, so he is not entitled to get the premises vacated is considered and find myself unable to agree with him. The Hon'ble Punjab & Haryana High Court in 1980-II RCR 108 clearly held that even if landlord fails to prove all the ingredients required u/s 13(3)(a)(i) but leads evidence to that effect, non-pleading of ingredients is not fatal to warrant dismissal of the application for ejectment. In the present case, the petitioner specifically led evidence on these facts. The petitioner has specifically mentioned in Para No. 6 of his petition that he has the portion in his possession is insufficient portion, which is shown green in colour in the site plan and he owns no other property at Kurali and he has given the detailed reasons for getting the property vacated. He has specifically stated in his evidence as well as mentioned in his pleadings that there were two houses previously and through a will, his father has given the property in dispute to the petitioner and the other house to his mother through a registered will, which is on the file as Mark-A. His mother died intestate and the house which was owned by his mother was divided between he and his sister Raj Kumari. Raj Kumari admittedly settled at Canada and she intends to sell that house. Since that property was impartible, that house has been sold as such to one Chander Kanta. This fact has been admitted by RW1. RW1 in his cross-examination specifically stated that that house consists of one drawing room, one room, one verandah and Chubara on the upper side and that house could not be partitioned. Since nature of that property was such that it could not be partitioned into two parts, petitioner under compulsion sold that property including the part of his share through a registered sale deed dt. 4.9.95 mark C. The sale deed is a registered document and is admissible in evidence as such, as per the law laid down by our own Hon'ble High Court in 1996-1 Punjab Law Reporter 579 and by the Hon'ble Kerala High Court in 1999 (Supplement)CCC- 217 and by the Hon'ble Apex Court of India in 2001-III RCR (Civil), where it has already been held by the Hon'ble High Courts and Hon'ble Supreme Court that u/s 65(1) of the Registration Act, the registered copy of the sale deed are admissible in view of the provisions of Section 65(f) of the Evidence Act and section 57 clause -V of the Registration Act, 1958. Since the certified copies of the sale deed are admissible in evidence, so the sale deed mark, A,B & C placed on file are admissible in evidence and can be read into evidence, though these documents have been marked as A, B & C." Contention of counsel for the respondent that as the petitioner has failed to state in his application that he was not occupying any other residential building in the urban area concerned and also that he had not vacated any residential building, without sufficient cause, in the said urban area and as such his application has rightly been dismissed by the Appellate Authority, deserves to be rejected. Even the Appellate Authority, after looking into various judgments of the apex Court and also of this Court, in para No. 16 has observed that it is not necessary to plead all the ingredients in the ejectment application but there must be evidence for proving the same and in the absence of any evidence regarding those ingredients for ejectment, it can be said that the ground of ejectment is not proved. The Appellate Authority has gone wrong by stating that the petitioner has failed to prove that he was not occupying any other residential building in the urban area concerned and also that he had not vacated any such building, without sufficient cause, after the commencement of the Act. It has been noticed by the Rent Controller that the demised premises is the only residential building available with the petitioner, in a small portion of which he was residing when the application was filed. The second house, which was a joint property and was not partible, had already been sold by the petitioner at the instance of his sister, a co-sharer. Records further reveal that in his deposition, the petitioner had specifically stated that apart from the house in dispute since 1947, he had not got any other house vacated and was not owner of any other house either as owner or as a mortgagee or otherwise. In his cross-examination, even no suggestion was put to the petitioner that he had been occupying any other residential building in Fazilka or that he had vacated any other residential house, without any sufficient cause.
Records further show that no such specific objection was raised even in the written-statement. It is apparent from the records that both the parties were alive to the situation. The respondent knew as to what was case of the petitioner and on what ground he was seeking his ejectment. The respondent even made an attempt to show that the petitioner land- owner had been occupying another house but the said contention was not accepted by the Rent Controller. Even that contention did not find favour with the Appellate Authority. It has come on record that the second house was a joint house, not partible and under compulsion, the same was sold by the petitioner about 4/5 years earlier to the filing of the present ejectment application. In view of the facts and circumstances of the case, this Court is of the view that the petitioner was successful in proving all ingredients of personal necesity to show that he needs the demised premises for his own use and occupation.
In view of facts mentioned above, this revision petition is allowed and the judgment passed by the Appellate Authority is set aside and that of the Rent Controller is restored. There will, however, be no order as to costs.
May 03, 2006. ( Jasbir Singh )
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