Krishan Lal Nanda vs Madan Lal

S.K. Jain, J.—The respondent Madan Lal sought ejectment of the petitioner-tenant from the room in question on the grounds that the later had not paid the rent to him with effect from 1-10-1984 to 30-12-1986 amounting to Rs. 3900/- besides house tax and interest; that the tenant had changed the user of the premises from residential to non- residential; and that he needed the said premises for his own use and occupation. The tenant denied the assertions of the landlord. As a result of the trial that followed, the Rent Controller rejected the stand of the landlord with regard to the change of user of the premises but accepted his plea that he needed the premises for his personal necessity. Therefore, he ordered the eviction of the tenant. On appeal, the Additional District Judge (Appellate Authority), Karnal affirmed the finding of the Rent Controller and dismissed the appeal. Through this revision petition, the judgment of the Appellate Court dated February 28, 1991, has been challenged.

Record of the lower authorities has been summoned and perused. The tenant tendered the arrears of rent demanded in the petition alongwith interest and costs as assessed by the Rent Controller. The landlord accepted the same vide his statement of even date and, therefore, the ground of non payment of rent was given up by the counsel for the landlord. In order to prove his plea that the tenant had changed the user of the premises in dispute from residential to non residential, the landlord has examined Mohan Lal PW3 and has himself, stepped into the witness box as PW 2. According to both of them, the demised premises was a room situated on the north-western corner of the house bearing No. B-43. It was let out to the petitioner for residential purpose but he had subsequently coverted the same into his clinic which act on the part of the tenant tentamounted to the convertion of the residential building into non-residential one. This oral evidence has been rightly disbelieved by the authorities below inasmuch as the landlord himself appearing in the witness box had admitted that one month prior to the letting out of the demised premises to the tenant, a shutter had been fixed on its door. Moreover, the statements of Krishan Lal tenant appearing as RW2 and those of Tara Chand RW3 and Jagan Nath RW4 inspire confidence when they say. that the demised premises was let out to the tenant for the purpose of running a clinic and that the tenant was residing with his father in Prem Nagar. Karnal. Mohan Lal PW3 was a witness from an independent source. He too has admitted that the tenant had been running his clinic in the demised premises. Exhibit R-2, Copy of an entry in the house tax register for the year 1985-86 in respect of the property of which the demised premises is a portion, has also been pressed into service. In the said document, one shop has been shown as a part of the property. No doubt, this document is a piece of evidence from an independent source but on the basis of the same, it could only be said that at the time of the house tax assessment, it was found that a shop was being run in one of its rooms.

As far as the question of ejectment on the ground of bonafide requirement of the landlord is concerned, it has come in the testimony of Krishan Lal tenant appearing as RW2 and his witnesses Tara Chand and Jagan Nath, RW 3 and RW 4 respectively that prior to the letting out of the room to the present tenant the same was with one tailor who remained there for several years. After his death it was let out to one Dr. Saggu who vacated it after living there for four or five years and then Krishan Lal tenant was inducted therein who opened his clinic. It has been argued that it was a non-residential building and the tenant could not be evicted therefrom. Learned counsel for the petitioner has relied upon Subhash Chander v. Giani Joginder Singh Sewing Machine 1989 95 P. L. R. 631 and has further submitted that it has come in evidence that a shutter had been fixed on the demised premises a month prior to its letting out to the tenant. So, it is evident that the same had been constructed for commercial purpose only and hence even if it is held that the landlord required the demised premises bonafide, the tenant could not be evicted there-from. Faced with this argument, learned counsel for the landlord has taken me through the statement of the tenant appearing as RW2 and his witnesses Tara Chand RW3 and Jagan Nath RW4 and has submitted that they have no where stated that the demised premises had been constructed as a shop. His submission is that merely because a shutter had been fixed prior to its letting out to the tenant it could not be said that the demised premises was non-residential in character.

In view of the above facts and circumstances of the case, I do not find any fault with the findings of the lower authorities to the effect that the demised premises had not been constructed as a shop from the very beginning and that whole of the House No. B-43, including the demised premises, was constructed as a residential house and further that originally, the demised premises alongwith the main portion of the house was being used by the landlord for his residence but later on the demised premises was let out to the tenant as a shop and that being so, it could not be held that the tenant had changed user of the premises in question from residential to non residential

Now on to the ground of personal necessity.

The correctness of the site plan Exhibit AI has been admitted by Manohar Lal Draftsman, Tara Chand and Jagan Nath RW-1, RW-3 and RW-4 respectively. According to the site plan, the landlord is in possession of one drawing room, two bed rooms, one entrance room by the side of stairs, one bath room, one store, pantary and a kitchen, besides court yard and entrance space whereas the tenant is in occupation of a room on the north western corner of the main building. Appearing as RW-2 Krishan Lal tenant has admitted that whole of the building except the demised premises was being used by the landlord as his residence. In para No. 1 of the written statement, on merits, it is averred that the remaining portion of the building was in occupation of the landlord and his wife and one unmarried son whereas other family members of the landlord were not residing at Karnal, being in service at Kurukshetra and Delhi. However, in his crossexamination, the tenant has admitted that in January 1988, marriage of the said unmarried son of the landlord was performed. Madan Lal landlord appearing as AW-2 has testified that one of his sons who was employed in Syndicate Bank since 1-8-1987 had been transferred from Delhi to Barota and was a daily passanger from Karnal. This evidence of the landlord has gone unrebutted. The tenant and his witnesses have shown their ignorance about this fact. It has also been established on record in the unrebutted testimony of Madan Lal landlord that a teen-aged daughter of his pre-deceased daughter was also residing with him. The landlord has also testified that his other married sons and two married daughters often visit him at Karnal and therefore, he also required accommodation for their stay. Under these circumstances, the authorities below have rightly held that the accommodation in possession of the landlord was insufficient for his requirement. It is now well settled that the landlord is the best judge of his residential requirement and has complete freedom in the matter and it is no concern of the Courts to dictate to the landlord how and in what manner he should live and to prescribe for him the residential standard of their own and that there was no law which deprived the landlord of the beneficial enjoyment of his property. In holding this view, I am fortified by the ratio laid down in Smt. Prativa Devi v. T. V. Krishnan 1987 H. A. R. 348

Tara Chand RW-3 and Jagan Nath RW-4 have admitted in their cross-examination that the main building of which the demised premises was a part, was being used by the landlord as his residence; that the houses in neighbourhood of the said property were also being used for residential purposes; that Vakilpura mohalla was a residential locality and portions of various houses in that mohalla are being used as shops. Both the lower authorities on the basis of appreciation of evidence on record have concurrently found that tenant failed to prove that the premises in question was constructed as an independent shop. It was in fact a portion of the main residential building. In Dr. Subhash Chander''s case (supra), it has been held that mere fact that a room of the main building was being used by the tenant as a shop, did not convert the building into a non-residential building and that merely because it was given for business purpose was not sufficient to hold that it had become commercial premises. More over, in Vinod Kumar Arora Vs. Surjit Kaur, . it has been held that even if the tenant had converted the residential building into a non-residential one, by mutual consent, it being violative of Section 11 of the Act, the landlord could not be deprived of seeking the ejectment of the tenant on the ground of his bonafide residential need.

Besides what has been stated above, I feel that sitting in revision, it is not possible for me to up-set the finding of fact. The ground of the petitioner in the present1 petition is that the above noted findings of fact recorded by the authorities below, were not well justified in the light of evidence on record. As has been laid down by their Lordships of the Supreme Court in M/s. Sri Raja Lakshmi Dying Works v. Rangaswamy Chettiar A. I. R. 1980 S. C. 1283. it is not within the scope of the revisional jurisdiction of this Court to upset the findings of fact recorded by the Appellate Authority on re-appraisal of evidence. This enunciation of law has repeatedly been followed by this Court.

For the reasons recorded above, this petition fails and is dismissed but no order as to costs.