Raj Kishen and another vs Ajit Kumar and others

J.V. Gupta, J.—The petitioners have filed this revision petition against the order of the Appellate Authority, Ambala dated 14th August, 1980 whereby the order of the (sic) Controller ejecting, the tenant-respondents was set aside and the application for ejectment was dismissed.

The petitioners Raj Kishan and. Jai Kishan filed an ejectment application seeking eviction of their tenant Kulwant Rai (now deceased) from the premises Nos. 5251-5251/A Mohalla Shambhu Attar Gur Mandi, Ambala Cantt. inter-alia on the ground of bona fide requirement for personal use and occupation. It was pleaded in the ejectment application that they had purchased the house in question on 9th September, 1977 vide Exhibit A1, for a sum of Rs. 12,000/- for their own use and occupation as they did not possess any other house in Ambala Cantt. It was further pleaded that the petitioners required the house in question for their own use and occupation bona fide and at present they are residing in a house which is owned by their father Shri Sarup Chand Sharma and brother Shri Ram Kishan. The accommodation in his house is highly insufficient. In the written statement filed on behalf of the deceased tenant Kulwant Rai it was stated that the petitioners are occupying a palatial house at Ambala Cantt in their own right. The accommodation in this house is more than sufficient for their requirement. It is incorrect that the house occupied by the petitioners is owned by their father and brother. The same is owned by the petitioners. In the replication filed on behalf of the petitioners it was specifically stated that the petitioners are residing in House No. 5238 which belongs to their father Shri Saroop Chand Sharma and his brother Shri Ram Kishan, as licencees. They have otherwise no concern with this house The accommodation in the said house is insufficient even for the family of its owners It was further stated that there are four rooms in the said house No 5238 besides kitchen etc. Whereas the members residing in the same are nine. This accommodation is highly in sufficient and that is why the petitioners purchased the present house for their use and occupation On the pleadings of the parties the Rent Controller framed the following issues:--

(1) Whether the respondent is liable to ejectment on the grounds mentioned in the petition? OPA.

(2) Relief.

The learned Rent Controller after going through the entire evidence and the case law cited at the bar came to the conclusion that the petitioners are not in possession of any other building in their own right and as such there was bona fide need of the tenanted premises for their own use and occupation and ultimately passed an order of ejectment. In appeal, the learned appellate authority, has reversed this finding of the Rent Controller mainly relying on the judgment of this Court reported as Karnail Singh v. Vidya Devi 1980 (1) R.C.R. 592. According to the appellate authority the landlord petitioners are occupying House No. 52 8 which according to them belongs to their father and brother, in their own right and therefore they are not entitled to seek ejectment from the tenanted premises. Feeling aggrieved against this order, the landlord petitioners have come up in revision in this Court.

The Learned Counsel for the landlord petitioners vehemently contended that it has been amply proved on the record that the requirement of the petitioner is bona fide one. They purchased the house in dispute with the purpose of living therein as the accommodation in the house of their father and brother was insufficient. It was further contended that in any case the petitioners are occupying the said house as licencees and therefore it could not be said that they are living their as a matter of right. According to the Learned Counsel in Karnail Singh''s case (supra) it was only if the landlord was occupying the premises as owner, landlord, tenant, mortgagee with possession or any other form recognised by law having right in property that he would not be able to claim eviction of his tenant from other premises in the same urban area which according to the Learned Counsel does not include the licencees Occupation by a licencee, according to him, is not by way of any right but is at the mercy of the owner of the premises. In any case, according to the Learned Counsel, the accommodation in the house belonging to their father and brother is insufficient. Plan of the said house is Exh. A 5 produced on the record which shows the living accommodation therein. On the other hand, the Learned Counsel for the respondents contended that there is no evidence to prove the bona fides of the landlord. In the present case according to the counsel the decree Exh. A 2 dated 27th May, 1977 vide which the father of the petitioners and his brother became owners by filing a suit is a collusive one and does not bind the respondents The accommodation he say in the house of their father is more than sufficient where they have been living since long. Mere recital in the sale deed Exh. A. 1 that they purchased the property for their residence is no evidence to prove their bona fides.

I have heard the Learned Counsel for the parties at a great length and have also gone through the evidence on the record. The accommodation in House No. 5238 belonging to their father and the brother is given in Exh. A. 4 The living accommodation therein is four rooms besides the kitchen and an open terrace and the members of the family living therein at present are nine as stated by Jai Kishan petitioner who appeared as A. W. 3. Moreover, from the pleadings of the parties it is quite evident that the landlords categorically stated in the ejectment application as well as in the replications that at present they are living as licencees in the house of (heir father and the brother and the accommodation therein is insufficient. Under these circumstances, it could not be said that the tenants were taken by surprise in this behalf Jai Kishan, Landlord, who appeared as A.W. 3 has categorically stated that the accommodation in their possession is insufficient. He has further given the number of the members living therein. No question has been put to him in his cross examination in this respect The only cross examination is to the effect that there was no partition between the brothers in respect of house No 5238. As a matter of fact, it becomes immaterial whether the petitioners are residing in the House No. 5238 as licencees or otherwise. Once it is proved that the accommodation therein is insufficient, the landlords are entitled to seek ejectment of their tenants. Moreover, the tenants are not entitled to challenge the family arrangement, if any, between the brothers and the father regarding house No. 5238. As a matter of fact, the decree of the trial court Exh. A 2 is dated 27th May, 1977, whereas the petitioners purchased the house in dispute on 9th September, 1977, for their own residence. The approach of the learned appellate authority in this regard is illegal and improper. Even if the ratio of Karnail Singh''s case (supra) is applied that does not mean that the landlords are not entitled to seek ejectment of their tenants under any circumstance Once it is proved that the accommodation in their possession whether as licencees or otherwise is insufficient, the landlords are entitled to seek ejectment of their tenants u/s 13(3) (a) (i) of the Haryana Urban (Control of Rent and Eviction) Act, 1972 (hereinafter referred to as the Act'' Even in Karnail Singh''s case (supra) it has been observed that there is no bar in the way of the landlords if they can prove that the residential building in their occupation is utterly unsuited to their needs and requirements and did not meet the same and, therefore, the occupation of the other building must commensurate with the requirements or needs of the landlord. This aspect of the case was never gone into by the appellate authority. It was on this account that the evidence in the case was read in this Court since the Rent Controller has decided the issue in favour of the landlords. From the evidence as observed earlier, it is amply proved on the record that the landlords bona fide required the premises for their own use and occupation and the accommodation in their occupation at present is insufficient to meet their requirement.

As a result of the above discussion, this petition succeeds and the order of the learned Appellate Authority is set aside and that of the Rent Controller directing the ejectment of the respondent is restored with costs However, the respondents are allowed two months time to vacate the premises provided the arrears, if any, and advance rent for two months is deposited with the Rent Controller within three weeks and they further undertake to hand over the vacant possession of the premises in dispute after the expiry of the said two months period.