Lal Chand vs Parshotam Lal

Prem Chand Pandit, J.—This is a tenant''s revision petition against the decision of Appellate Authority reversing on appeal the order of the Rent Controller rejecting the eviction application.

The dispute relates to the first floor (upper storey) of house No. 261/1, situate in Katra Kanhayan in the City of Amritsar. This was taken on rent by Lal Chand on a monthly rent of Rs. 22/- for 11 months for residential purposes. On the ground floor of this building, there is a shop with some other tenant. This property belongs to Parshotam Lal and Gulshan Rai, who are sons of one Jagan Nath. The landlords filed an application before the Rent Controller for the ejectment of the tenant on two grounds--(i) that the tenant was in arrears of rent and (ii) that the premises were required by the landlords for their personal necessity and they were not in occupation of any other residential property in the urban area of Amritsar.

Since the arrears of rent were tendered on the first date of bearing, this ground of ejectment was no longer available to the landlords. As regards the ground of personal necessity, the Rent Controller rejected the same as having not been proved. When the matter went in appeal before the Appellate Authority, he reversed that finding, with the result that the ejectment application was accepted by him. That older is being challenged in this revision petition.

In order to succeed, the landlords, in the present case, had to establish two things--(a) that they required these premises for their (sic) and (b) that they were not occupying another residential (sic) the urban area concerned, namely, Amritsar City.

It has come in evidence that apart from this house (No. 261/-1), there is another house (No. 663) in this very Katra belonging to the landlords. This apart, there is another house in Mohalla Tahli Sahib Amritsar City, which belongs to Jagan Nath, their father. The case of the landlords in the eviction application was that they were residing with their father in the house, situate in Mohalla Tahli Sahibs. The (sic) that has been recorded by the Appellate Authority is that the entire balding, i.e. No. 663, belonging to the landlords, is in the occupation of their maternal-uncle Hans Raj. On the ground floor of this property, there is a shop, while its first floor as well as the second floor are being used by Hans Raj for his residence and it was on that basis that it was held by the Appellate Authority that the landlords was not in occupation of any other residential building in the urban area concerned.

It is undisputed that it has to be established by the landlords that Hans Raj was occupying house No. 663, which, admittedly, belonged to the landlords not as a licensee, but as a lessee. If any authority is needed for that purpose, reference be made to a Bench decision of the. Madras High Court, in which the main judgment was written by Rajamannar, C.J., in Dr. Mohammad Ibrahim Vs. Syed Ahmed Khan and Another, where it was observed :--

A person must be deemed to be occupying a residential building at the time of an application for eviction if any of the members of his family including dependents reside in the building with his permission and on his account; though physically he himself might not be residing therein. The test is whether if he desires he cannot at any time go to reside in it.

It was with that motive that the case set up by the landlords was that house No. 663 bad been given on rent to their maternal-uncle Hans Raj by virtue of a rent deed, Exhibit A. 1, Which was for a monthly tenancy Of Rs. 65/- Curiously enough, the position that was taken later on by the landlords, on the basis of which the above finding was recorded by the Appellate Authority, was not mentioned in eviction application or the replication filed by the landlords. As I have already said are short was stated in the ejectment application was that the landlords were residing in the house of their father as licensees and they bona fide required the property in dispute for their own use and occupation. It is significant to mention that in the said application, the landlords did not disclose that they had another house No. 663, which was situated in the same Katra, in which the house in dispute was. It was further not made clear that the said house had been given on rent to their maternal uncle Hans Raj. In the written statement file J by the tonight he had said that the landlords did own another house No. 663 Katra Kanhayan and the same was in their possession and, therefore, they could not file the present ejectment application. In the replication also, the landlords never stated that house No. 663 had been leased out by them to their maternal-uncle Hans Raj. On the present state of pleadings, it could be safely inferred, that the case, which later on developed in evidence, on behalf of the landlords was merely an after thought. Otherwise, the first thing that they would have admitted in the eviction application was that in the same Katra in which the property in dispute was situate, they had another house No, 663, which had in fact, been leased out by them to their maternal uncle Hans Raj. Even if this fact was not stated in the eviction application; surely when the tenant in the written statement had mentioned that the landlords owned another house in the same Katra and they were in possession thereof, they should have at least in the replication stated that the said house had been given on lease to their maternal-uncle. The absence of these pleadings on the part of the landlords clearly show that their plea that their maternal-uncle was residing in house No. 663 was an afterthought. It may also be mentioned that even in the notice. Exhibit A. 3, which the landlords had given to the tenant through an Advocate before filing the eviction application, nothing was stated about house No. 663 and its being given on lease to Hans Raj. Then again, it is in evidence that one of the landlords, namely, Parshotam Lal, when he appeared in the witness-box as A.W. 3, deposed that there was only one rent-deed, Exhibit A, 1, executed by Hans Raj, their maternal-uncle, in their favour, when he took house No. 663 on rent from them. Hans Raj, on the other hand, as A.W. 2, however, contradicted him and stated'' that there was two rent-deeds. As regards the rent-deed, Exhibit A. 1, it was, as I have already mentioned above, for Rs. 65/- per mensem and its bare-reading would show that according to it, only the shop on the ground floor had been taken on rent by the tenant. The words used there are "Siraf Ek Dookaan Manzil Zereen." If Parshotam Lal is to be believed, then only the shop had been given on rent to Hans Raj, with the result that the residential accommodation on the first floor and the second floor of house No. 663 was available to the landlords for their own occupation and, therefore, it could not be said that they were not in possession of any other residential building in the urban area concerned. If, however, the word of Hans Raj has to be accepted, then there were rent-deeds one for the shop and perhaps another for the residential portion of that house. If that be so, then one would have expected that the other rent-deed relating to the residential portion also would have been produced, which admittedly has not been done in the instant case. Then again, according to Hans Raj, he is residing in two rooms. But it has been proved on the record that in house No. 663, there are three rooms on the first floor and in addition to that, there is one Chaubara on the second floor. Even then, there would be one room and one Chaubara in possession of the landlords and it is not their case that this accommodation, namely, a room and a Chaubara, were insufficient for their needs. This apart, it is also in evidence that on the ground floor, where the shop is being run, the name of the shop is written as "Parshotam Di Hatti". Undoubtedly, Parshotam Lal is one of the landlords, who had filed the ejectment application. A photograph, Exhibit R.W. 3/2, has also been produced on the record and therein it is shown that Gulshan Rai, the other brother of Parshotam Lal, who is also one of the landlords, was sitting on the said shop. From all this, it appears that the persons, who are actually running the shop, are these two brothers, who are the landlords, and the story of the shop being run by Hans Raj and the residential accommodation in the same building being occupied by him has been made out merely to get the tenant evicted from the premises in question. The Rent Controller, as already mentioned above, had decided the case in favour of the tenant. The Appellate Authority, however; had reversed that decision, without even adverting to the various circumstances mentioned by the Rent Controller in support of his findings. I have gone through the judgment of the Appellate Authority and in my opinion, he had approached the consideration of the case from an erroneous point of view.

For the reasons given above, I would accept this petition, set aside the order of the Appellate Authority and restore that of the Rent Controller. In the circumstances of this case, however, I will leave the parties to bear their own costs throughout.