Kapil Dev Gupta vs Ram Kishan

D.V. Sehgal, J.—Kapil Dev Gupta Petitioner invoked the jurisdiction of the learned Rent Controller, Patiala, u/s 13-A of the East Punjab Urban Rent Restriction Act, 1949 (for short ''the Act''), by filing an application for ejectment of the Respondent, who is tenant under him, from two rooms, one kitchen and one baithak adjacent to the deodhi on the ground floor of house No. 1398/2, situated in Jand Gali near Darshani Gate, Patiala. He alleged in the application that the said premises were let out to the Respondent for the purposes of residence at the rate of Rs. 60/- per month Thus, there was a relationship of landlord and tenant between the parties He claimed that he was in the service of the Government of India and was posted at Delhi and it was for this reason that he had let out the said premises to the Respondent. He retired from service on 30.9.1981 and wanted to settle permanently at his native place Patiala in the house in dispute. He, therefore, prayed that an order should be passed in his favour for recovery of possession of the premises from the Respondent. He averred that he neither owned nor was occupying any residential house in the urban area concerned, nor had he vacated such a building without sufficient cause after the commencement of the Act.

Notice of the application was given by the learned Rent Controller to the Respondent who moved an application for leave to contest the ejectment application. He was granted leave and the learned Rent Controller proceeded to decide the application on merits taking into consideration the defence raised by the Respondent and ultimately dismissed the application of the Petitioner vide order dated 13.9.1986. The Petitioner is aggrieved against the order and has therefore invoked the jurisdiction of this Court under the proviso to Sub-section (8) of Section 18-A of the Act.

I have heard the learned Counsel for the parties and have also gone through the pleadings and the evidence brought on the record by the parties before the learned Rent Controller. I am satisfied that the order under revision passed by the learned Rent Controller is contrary to law and is perverse. It has resulted in miscarriage of justice. This would be evident from the discussion that follows.

The case of the Petitioner as brought out through his application and the evidence adduced is that his grand-father Telu Ram was the owner of house No. 1398/2 situated in Jand Gali near Darshani Gate, Patiala, of which the demised premises is a part. On the death of Telu Ram, his three sons, namely, Lachhman Dass, Ram Chand and Chet Ram, succeeded to his estate and became the owners of the said house in equal shares. They affected an oral partition of the house and have been in separate possession of their respective portions.

They have also been paying house-tax separately. The case, thus, set up by the Petitioner was supported by Bhim Aggarwal A.W.2. He proved on the record by the site plans of the house Exs A.W.2/A and A.W.2/B. The site plan Ex. A W.2/A depicts the accommodation in the house in dispute on the ground floor. It shows that the portion of the house shown in green colour is in possession of Lachhman Dass son of Telu Ram. It consists of two rooms, one Dalan and one kitchen. The portion shown in the red colour had fallen to the share of Ram Chand son of Telu Ram. It consists of three rooms, a baithak near deodhi and a kitchen It is not in dispute that the Petitioner is the only son of Ram Chand. On the death of Ram Chand, the Petitioner became the owner of the said portion of the house and out of this portion he let out two rooms, one baithak and one kitchen to the Respondent while he continued to keep in his possession one room in the rear shown in the red dots. The site plan Ex. A W.2/B pertains to the first floor of the said house. It consists of three rooms and an open terrace. These rooms are shown in green colour and had fallen to the share of Chet Ram son of Telu Ram. On the death of Chet Ram. these are owned by his two sons-Dhanan Jai and Bhim Aggarwal A.W.2. It is further not in dispute that out of these three rooms two rooms were let out by Bhim Aggarwal to Ram Kishan Respondent while one room shown in green dots continued to remain in the occupation and possession of Dhanan Jai and Bhim Aggarwal themselves. It was further not disputed before me that on an application for ejectment u/s 13 of the Act filed by Dhanan Jai and Bhim Aggarwal the eviction of the Respondent from the aforesaid two rooms was ordered by the Rent Controller, Patiala, on 31.1.1986. The ground of eviction that was established was that Dhanan Jai who was in Government service had since retired on ataining the age of superannuation. During the period of his service he was living in Delhi and on retirement he wanted to come back to his native town and occupy the aforesaid two rooms let out to the Respondent along with one room already in occupation of the two brothers on the first floor of the house. An appeal filed by Ram Kishan Respondent against the order of ejectment dated 31.7.1986 from the two rooms on the first floor of the house in dispute was dismissed by the learned Appellate Authority, Patiala. on 21.4.1987. Civil Revision No. 671 of 1987 filed in this Court was dismissed in limine by J. V. Gupta, J. on 25.5.1987.

It is in toe above perspective that the grounds raised in defence to the application of the Petitioner in this case have to be evaluated. He contended that seven rooms in the house in dispute are lying vacant and if the Petitioner really intended to shift to Patiala he could easily accommodate himself in those rooms. The learned Rent Controller was swayed to accept this contention. Ex. R. 1 is a plan of the house in dispute and it depicts the accommodation on the ground floor as well as on the first floor. The accommodation so shown in this plan exactly corresponds to accommodation detailed in the site plans Exs A W.2/A and A W.2/B. The rooms which are shown to have been locked are the two rooms, dolan and the kitchen which fell to the share of Lachhman Dass and who was is in occupation of the same. The Petitioner does not have any right to occupy this portion. Another room on the ground floor which has been shown as locked is in fact the only room in occupation of the Petitioner. Thus, the accommodation that is left on the ground floor consists of two rooms, a baithak and a kitchen which the Respondent admits is in his possession as tenant under the Petitioner The baithak has been wrongly shown as "room locked" in the plan Ex. R. 1 while in fact this baithak, which is near the deodhi. is admittedly in occupation of the Respondent as a tenant. Likewise, on the first floor of the house one room which has been shown in red colour and is alleged to be locked is in occupation of Dhanan Jai and Bhim Aggarwal, sons of Chet Ram, to whose share the accommodation on the first floor had fallen and is in their occu-pation Thus except the room on the ground floor which is admittedly in occupation of the Petitioner, there is no other accommodation available to him and this one room cannot be said to be "any other suitable accommodation" within the meaning of Section 13-A of the Act for the purposes of residence of the Petitioner.

The learned Rent Controller has unnecessarily dilated in detail on the question whether or not an oral partition of the house in dispute had taken place amongst the three sons of Telu Ram after his death The Respondent himself has been a tenant in the two rooms on the first floor of the house under Bhim Aggarwal son of Chet Ram while he is admittedly a tenant in two rooms, one baithak and a kitchen on the ground floor under the Petitioner, who is son of Ram Chand. It is thus clear that when Chet Ram and Ram Chand were owners in possession of their separate portion of the house in dispute, an equal separate portion had fallen to the share of Lachhman Dass son of Telu Ram who is in occupation of the same. There could, therefore, be no manner of doubt that Lachhman Dass is the owner in possession of the portion on the ground floor shown in blue in the plan Ex. A. W. 2/A. These admitted facts alone should have been sufficient for the learned Rent Controller to hold that the three sons of Telu Ram were in possession of separate portions of the house irrespective of the fact whether any oral partition amongst them was or was not proved. The speculation of the learned Rent Controller, therefore, that there are seven vacant rooms available in the house for the Petitioner to occupy is wholly devoid of any basis.

The other ground of defence which was raised by the Respondent was that the Petitioner is a widower. No doubt he has retired from service but he owns a house in Vasant Vihar, Delhi, where his three sons are residing with him. His sons are married and have children. It was contended that the ground of requirement of the demised premises of the Petitioner for his own occupation is mala fide. The Petitioner attempted to counter this defence by stating that he did not have cordial relations with his daughters-in-law and remains in mental tension at Delhi There is also a great deal of rush and air pollution in Delhi and he wants to lead a peaceful life in his ancestral house at Patiala where he has spent his childhood and had his education. The learned Rent Controller launched himself on a detailed enquiry to find out whether or not the need for the premises by the Petitioner is bona fide and concluded that Delhi is a better place to live. The premises is dispute do not have modern amenities for residence and that uncordial relations of the Petitioner with his daughter in law and the air pollution in Delhi were only lame excuses which he had put forward to seek eviction of the Respondent from the demised premises.

I am of the view that the learned Rent Controller while launching himself on the above enquiry has acted in direct contravention of law and thus the order passed by him suffers from a serious error in exercise of his jurisdiction. In Dr. Dina Nath v. Smt. Santokh Kaur etc. (1987) 91 P. L. R. 171, I held, inter-alia, as under:-

The words "He does not own and possess any other suitable accommodation in the local area and ''intends to reside'' in Section 13-A of the Act have a different connotation a d are not to be equated with the words ''he is not occupying any other residential building in the urban area concerned'' and ''he requires it for his own occupation'' respectively used in Section 13(3)(a)(i) of the Act. The case law having a bearing on the terms used in the latter provision of the Act is of no assistance in understanding the meaning and scope of the former.

I had further observed that a retired Government servant who is a ''specified landlord'' within the meaning of Section 2(hh) of the Act has a right to recover possession of the premises owned by him u/s 13-A of the Act if he satisfies the Controller that he does not own and possess any other suitable accommodation in the local area in which he intends to reside. Thus, once the Petitioner expressed his intention to reside in his native town of Patiala in the residential house owned by him and satisfied the aforesaid condition, he has a right to recover immediately the possession of the demised premises, which is admittedly a residential building. The learned Rent Controller could not go into the question of ''bona fide need etc."

Consequently, I allow this revision petition, set aside the order dated 13.9.1986 passed by the learned Rent Controller and further allow the application u/s 13-A of the Act filed by the Petitioner and pass an order of recovery of possession of the premises in dispute by the Petitioner from the Respondent.

At the request of the learned Counsel for the Respondent, he is, however, allowed three months'' time to vacate the demised premises and hand over its vacant possession to the Petitioner on the condition that he deposits the entire amount of arrears of rent along with future rent for three months within one month from today in the Court of the Rent Controller for payment to the Petitioner On his failure to do so, the Petitioner shall be entitled to recover possession of the premises in dispute immediately by taking out execution of this order. The parties are, however, left to bear their own costs.