Gopal Singh (Died) through his L.Rs. vs Devi Charan (Died) through his L.Rs.

S.S. Sudhalkar, J.—The petitioner is the tenant in the suit premises and the respondents are owners of the same. The ejectment petition was filed against the petitioner and one Charajit Singh on various grounds including the ground that the premises has become unsafe and unfit for human habitation. The eviction order was passed on the ground that the premises has become unsafe and unfit for petitioner has filed an appeal against the said order which was dismissed. Hence this revision petition has been filed by the petitioner-tenant.

I have heard learned counsel for the parties.

Learned counsel for the petitioner has taken me through the evidence recorded in this case. The contention of the counsel for the petitioner is that the part of the building which is occupied by the petitioner cannot be said to have become unsafe and unfit for human habitation though the other part of the building might have become unsafe and unfit for human habitation and, therefore, the eviction order against the petitioner may not fee upheld. Learned counsel for the respondents argued that even the suit premises i.e. the part of the building in possession of the petitioner has also become unsafe and unfit for human habitation and, therefore, the Courts below were right in deciding the case in favour of the respondents.

Various witnesses have been examined by the parties. Out of the witnesses examined by the parties, AW1 Om Parkash is the purchaser of the property; AW2 Prem Parkash (who has also been examined as PW5) is the Building Inspector of Municipal Committee, Yamuna Nagar; AW3 Faqir Chand is Mason; AW4 Hukam Chand is general power of attorney of Devi Charan landlord and AW6 S.P. Gupta is a retired Civil Engineer. RW1 Lachhman Singh is an Engineer, examined by the petitioner. This is the main evidence which was led before the trial Court.

AW2 Prem Parkash has deposed that the plan for the reconstruction of the shop was not approved as it was against bye-law,s. In the cross-examination, he has stated that the plan was submitted in respect of demolition of the entire premises and reconstruction of the same. This witness, therefore, does not help the petitioner in any way.

AW3 Faquir Chand who is Mason has stated that the building in dispute cannot be repaired and it has to be reconstructed. According to him, there are cracks in the walls of two rear rooms situated on ground floor of the building in dispute. Round sleepers and rafters are, broken. Roof of upper storey has collapsed and 4-5 rafters of chobara have given in. He has also stated that there are cracks in the walls of the upper room and debris are lying on the roof. In the cross-examination this witness has deposed that two rooms on the, ground floor stand collapsed.

AW6 S.P. Gupta has stated that he worked as Civil Engineer in Railway for 40 years and that he is working as Consulting Engineer now-a-days. He has deposed that he had seen the upper storey of the building in dispute and also the lower portion of the same. According to this witness, the said building should be reconstructed as the same cannot be repaired and it is not fit for human habitation. He has given detailed report. He was cross-examined at length but it has not come out from his cross-examination that the opinion given by this witness cannot be accepted. Learned counsel for the petitioner-tenant has argued that the above evidence does not go to show that the premises in dispute are unsafe and unfit for human habitation as the portion which has fallen down is first floor of the building and the premises in dispute is on the ground floor of the building. He has cited various cases in support of his arguments. In the case of Lachhman Das of Ludhiana v. Roshan Lal 1989 Haryana Rent Reporter 628 cited by learned counsel for the tenant, the petitioner was in occupation of a godown and a chaubara on its first floor was demolished as the same had become unfit for human habitation. It was held in that case that in the absence of any finding about the unfitness of the portion occupied by the tenant, his eviction cannot be sought on this ground.

Learned counsel for the petitioner-tenant has also cited the case of Piara Lal Vs. Kewal Krishan Chopra, . In that case roof of one room in leased portion had fallen down and there was no finding that rest of the building was damaged or had become weak and it was held in that case that the eviction on that ground was improper.

There is no dispute regarding the principles laid down in the cases cited above. The question now is whether the suit premises cannot be said to be unfit and unsafe for human habitation. As stated earlier, expert witness i.e. AW6 S.P. Gupta has stated that the building in question is not fit for human habitation and according to him, it has to be reconstructed as it cannot be repaired. The tenant has also examined his expert witness i.e. RW1 Lachhman Singh who is an Engineer. The other witnesses examined by him are not expert witnesses. RW1 Lachhman Singh has stated that he has seen the building in dispute. He has also stated that he has seen lower storey of building from inside as well as from outside. He has also deposed that he has seen the same after going upstairs also. He has stated that two walls of rear upper rooms have been demolished. The bricks and girder are not, lying there rather a heap of mud is present. According to this witness, there is a passage 3 feet wide which has been blocked temporarily by raising a pole. A wall is existing towards the west without any support and the remaining walls have been demolished. A room is constructed on the upper storey towards front. three holes in its roof have been made intentionally, so that rain water may enter the room and the roof collapse. He has also stated that the it appears as if the bricks have been removed with hand from the rear wall standing without any support. He has also deposed that in case the walls give in, the collapse of roof is inevitable and the wall which is in existence can fall any time due to storm at the speed of 70-80 miles per hour. He has also stated that the owner do not care for the maintenance of the roof rather they want to demolish it. He has further stated that at one side'', the wall is without any support and there are some holes in the roof and that a heap of mud and lime etc. is lying on the roof. He has further stated that "It makes it clear that the owner wants to cause damage". According to his opinion, lower portion of the building is safe and that repair and maintenance can improve the condition of upper roof and room.

This is a case in which a part of the dilapidated building is state to be safe by RW1 who is an expert witness of the tenant. Of course, it is not a rule that 1f one part of the building collapses, the other has to collapse. It is found from the underlined portion of the translated deposition of RW1, that this witness has not come with an open mind. He was not expert to advise regarding the intention of the landlord. However, if the evidence of this witness is accepted, then there is possibility of the wall of the upper floor giving in and roof collapsing and that will certainly damage the lower portion which is stated to be safe. The question is whether the landlord can be compelled to repair the upper portion of the building so that the lower portion can become safe. In my opinion, this cannot be the law. If the upper portion of the building has become unsafe, it is of course for the landlord to remove the upper portion. However, taking the building as it is, the possibility of damage to the lower portion cannot be ruled out. It is not shown to me that a tenant can require a landlord to demolish or repair the upper portion of the building which is not rented premises.

The above observations is made to clear the position if the statement of RW1 Lachhman Singh is accepted. However, from the deposition of this witness itself, as stated above, the witness appears to be opining of the intention of the landlord and does not appear to be an independent witness and when this is the position there is no reason to not accept the evidence as brought toy the respondent-landlord to prove this case.

In the result, I find no reason to interfere with the findings recorded by the Courts below. This revision petition being without merit deserves to be dismissed and the same is dismissed as such.