Bal Kishan vs Raj Kumar

V.K. Jhanji, J.—This shall dispose of Civil Revisions No. 1163 and 1181 of 1993.

Both the revision petitions are by the tenants, directed against the order of the Appellate Authority whereby they have been ordered to be ejected from the premises in dispute on the ground that the building has become unfit and unsafe for human habitation and that the landlord requires the same for his personal necessity. Petitioner in Civil Revision No. 1163 of 11993 is occupying the premises on rent at the rate of Rs. 10/- per month, while Petitioner in Civil Revision No. 1181 of 1993 is occupying the premises at the rate of Rs. 15/- per month. Ejectment of the tenants was sought on the grounds, namely:

(i) That the building has become unfit and unsafe for human habitation;

(ii) non-payment of rent;

(iii) personal necessity of the landlord; and

(iv) change of user.

On contest by the Petitioners, ejectment applications filed by the landlord were dismissed by the Rent Controller, but in appeal by the landlord, the appellate Authority has set aside the judgment of the Rent Controller and as a consequence thereof, has ordered ejectment of the tenants. Hence, the present revision petitions.

The appellate Authority has ordered ejectment of the tenants on two grounds; namely, that the demised premises have become unfit and unsafe for human habitation, and, that the landlord requires the premises for his own occupation and for occupation of his family. In order to conclude that the building has become unfit and unsafe for human habitation, reliance has been placed by the appellate Authority on the statement of Expert witness, A.W.5, examined by the landlord. The Building Expert on inspection of building submitted his report, Exh. AW-5/1. This Expert has opined that the building is not fit for human habitation and is beyond repairs and requires reconstruction. He on inspection has opined that the entire plaster has fallen down and the stones of southern and eastern walls are bulging out. Wooden rafters are damaged. Relevant portion of his report reads as under:

Portion marked red (ground floor) in the enclosed plan is occupied by Sh. Bal Kishan. Room No. v. is common and is being used as passage and working place by Sh. Gulab Chand also. Construction of the building is very old and it appears that roofs of ground floor except that of entrance and basement were replaced about 60-70 years back. Original roof of entrance and basement are constructed with stone patties resting on walls whereas replaced roofs are constructed with Brick arches in lime mortar supported on R.S. Joists.

Walk 18" thick constructed with slate stone and small brick in lime morter and plastered with same morter are in dilapidated condition, stones are missing at places. Due to age lime morter has lost its adhesive power and pulverizes when pressed between thumb and fingers. Lime plaster has totally crumbled down from external surfaces. Morter from wall joints has peeled off upto 1" depth at places, stones from east and south wall can be easily picked up with hand, Cracks marked C.C. have developed at places East Wall has bulged and is out of Plumb by about 3-1/2".

Wooden lintels provided over Door openings have decayed. Roof at a height of 10'' is constructed with brick arches in lime morter plastered with same morter supported on R.S. Joists and lime concrete terracing. Lime Plaster from the soffits of arches along with morter from arch joints has totally peeled up in Room No. 1,2 and V. In Room No. 5 bricks have displaced along the joints at places marked red. No comments are offered for Room No. 3 as Plastic cloth ceiling has been provided just to cover up the condition of the roof. Lime concrete terracing is worn out and cracked.

C.G.I. Sheets provided in the shed are very old rusted and worn out. Wooden Purlin provided at one end of the Tin shed is broken and propped with wooden post marked red.

Flat Brick flooring provided in the rooms is totally broken.

Conclusion: On the basis of my observations stated as above, I am of the definite opinion that the building has out-lived its life, beyond repairs and requires re-construction. It is structurally unsafe and unfit for human habitation.

Against this, Respondent examined Sh.B.S.S. Bhalla, R.W.2, Sub Divisional Engineer (Regd.). He is his report, Exh. RW-2/A opined that the building requires only yearly repairs and not re-construction. In his report, he stated that the building has been totally ignored for periodical yearly repairs and the lime plaster is in the process of falling from ceiling. He found that the building is of Class-II category and was constructed some time in the year 1935. Appellate Authority on perusal of the photographs of the building proved on record, found that the report of A.W.5 - Er. Y.D. Adlakha is more reliable and believing that report, has held that the building has outlived its utility and has become unfit and unsafe for human habitation. The contention of counsel for the Petitioners that the report of the Building Expert (A.W.5) does not spell out any reason as to why the building is unfit and unsafe for human habitation, is without any merit. A.W.5-Building Expert, in his report has given detailed account of the condition of the building. On perusal of photographs proved on record, I am also of the view that appellate Authority is perfectly justified in saying that one wall near the door is totally damaged and is in crumbling stage. Photographs, Exhs. AW-64, AW-6/5, and Aw-6/6, show the dilapidated condition of the building. Report, Exh.RW-2/1 submitted by Er.B.S.S. Bhalla examined by the tenants is vague. In his report, he has laid stress on the thickness of the walls without mentioning that the plaster has completely fallen down and the stones used in the construction of the building are bulging out as is clear from the photographs produced on the record. Inspection-note submitted by the Rent Controller is also of no help to the tenants as the Rent Controller himself did not place any reliance on his inspection note. Moreover, a reading of the inspection-note of the Rent Controller shows that he is in. his note has not pointed out any infirmity in the report of A.W.5- Expert, Er.Y.D. Adlakha. Counsel for the Petitioners cited some judgments of this Court to contend that merely because the building suffered a few cracks or is more than 60 years old, would not mean that it has become unfit and unsafe for human habitation. There is no dispute with this proposition. In order to determine the dilapidated nature, whole of the construction has to be taken into consideration. Considering that the material used in the construction of the building was slate stone. Nanak Shahi Bricks (small bricks) and lime morter, the building is nearly 100 years old and not 60 as has been found by the building Expert examined by the tenants. It was after considering the condition of the building in its entirety, the learned appellate Authority had come to the conclusion that the building is unfit and unsafe for human habitation. The finding being based on appreciation of evidence calls for no interference.

In order to contest the ground of personal necessity, tenants in their written statement stated that the landlord owns a residential house on Pataudi Road, but no evidence has been brought on record to prove this assertion. The family of the landlord consists of five members, namely, the landlord himself, his wife and three grown-up children. Keeping in view the size of the family and the fact that the landlord does not own any house in the urban area concerned except the house in dispute, the Authorities below have rightly concluded that the claim of the landlord to seek eviction of his tenants is bona-fide one. The contention of counsel for the Petitioners that since the landlord is staying in the house of his mother the premises in dispute are not required by him for his requirement, is without any merit. The landlord is not in occupation of any residential building in his own right and is living at the sufferance of his mother in a house belonging to her. Landlord''s statement that his mother has asked him and his family to vacate the premises has been believed by the appellate Authority and there is nothing on record to persuade this Court to take a different view than the one taken by the appellate Authority. More so, occupation of the residential building by the landlord has to be in his own right and not at the sufferance of another.

Consequently, both the revision petitions, C.R. No. 1163 and 1181 of 1993, being without any merit shall stand dismissed. However, Petitioners are allowed three months'' time to vacate the premises provided they deposit the entire arrears of rent, including that of three months, within one month from today and also file an undertaking in writing within one month that they shall hand over the vacant possession of the premises to the landlord on or before the expiry of period allowed by this Court.