Ram Parsad vs Surinder Kumar

Rakesh Kumar Garg, J.—This is tenant''s revision petition challenging the impugned order R.C.P. is not a building. In other words, the jurisdiction of the Rent Control Court to maintain the R.C.P. was not challenged at all.

Yet another aspect also, according to Mr. Nirmal Sajendran, learned counsel for the landlord, assumes importance. It is pointed out that it was not specifically stated in the counter statement that the gumpty, the structure in question is a mobile one nor was it stated that the said structure was placed on four wheels. It could be seen that the parties joined issue and let in evidence understanding the word gumpty as a building as defined u/s 2(1) of the Act. It is also worthwhile to note that the tenant has pleaded that the claim for eviction put forward by the landlord is hit by the first proviso to Section 11 (3), Further, the tenant has also raised a plea that he is entitled to the protection under the second proviso to Section 11(3). From the Commissioner''s report and the evidence obtained in this case, it could be seen that though the structure was not fixed on the land by using cement or mortar or mud, it was placed on stones and not on wheels. Thus, according to the learned counsel for the landlord, the facts aforesaid would also loom large against the case pleaded by the tenant.

Learned counsel for the revision petitioner would submit that if it is actually a point which affects the inherent jurisdiction of the court, the Rent Control Court is not precluded from raising that point at the time of final hearing and that was why a specific point was raised by the Rent Control Court. It is true that though a specific ground was not raised by the tenant that the gumpty mentioned in the R.C.P. is not a building as defined in Section 2(1) of the Act, at the time of argument it was specifically raised and hence the Rent Control Court dealt with that point in extenso. Considering the oral evidence given by the parties and the facts obtained from the Commissioner''s report, the Rent Control Court came to the conclusion that the gumpty mentioned in the petition is having some sort of permanency. Though gumpty is a wooden structure since it rests on the laterite stones placed on the lands and is not easily removable, there can be no doubt that it would attract the expression ''hut'' which as per Section 2(1) is a building and as such the contention raised by the tenant that gumpty is not a building is only to be turned down.

It was contended by the tenant that the rent was duly discharged by him. To prove the plea of discharge, he relied upon some entries made in Ext.B2, a note book prepared by him. Though it was stated by him that the initials found therein were put by the landlord, that was stoutly denied by the landlord. Since the entries in Ext.B2 were seen to be self serving, the court below was not inclined to place reliance on the same. The view so taken by the court below was accepted by the learned Appellate Authority also. The tenant could not prove the discharge pleaded by him. As such the concurrent finding entered by the two courts below cannot be upset by this court in revision.

It was sworn to by P.W.1, the landlord that he has no job or avocation and so he intends to start a stationery business in the petition schedule building. Though it was contended by the tenant that P.W.1 is doing broker business and is conducting other business as well, no acceptable evidence could be adduced by him. Even if it is assumed that during the pendency of the R.C.P. he was doing some business, it cannot be held that on that ground the landlord should be nonsuited, for the tenant cannot expect the landlord to sit idle till he gets vacant possession of the petition schedule building. Similarly, though it was contended by the tenant that the landlord is having another gumpty shop in his possession, that was also found against by the two statutory authorities.

It was stated by P.W.1 that a petition was filed to evict the tenant in possession of another gumpty shop since that gumpty shop was on the verge of collapse. There is no evidence to show that the landlord is in possession of another building of his own so as to attract the first proviso to Section 11(3). In order to disentitle the landlord from getting eviction u/s 11 (3) the tenant must prove that the landlord has in his possession another building of his own. It was also contended that the building situated behind the gumpty shop belongs to the landlord. But, no document could be produced to show that the landlord is the absolute owner of that building. The business conducted in the building situated behind the gumpty was run by the brother of P.W.1. That shop is stated to be held by P.W.1 and his brother. It was held in Asher Vs. Hassankutty Hajee,

The expressions "his own" "in his possession" used in the first proviso to S.11(3) would show one''s exclusive ownership and possession. Words "his own" "in his possession" excludes all others from the ownership or possession of the property. In other words, the test is that a landlord who has building of "his own" "in his possession" has the right of possession, right to enjoy and right to dispossess, i.e., jus sibi habendi and jus alteri non habendi or jus prohibendi. If he is a co-owner along with others he may have only restricted power of dispossession. Since each co-owner is interested in every infinitesimal portion of the subject matter and each has the right, irrespective of the quantity of his interest to be in possession of every part and parcel of the property jointly with the others. Exclusive ownership and possession are sine qua non for invoking the first proviso to S.11(3).

The burden to establish that the landlord is the owner and in exclusive possession of another building is on the tenant. After analysing the evidence threadbare, the courts below came to the conclusion that the need projected by the landlord is bona fide and that he has no other building of his own in his possession to start the business intended by him. The concurrent finding entered by the two courts are founded on legal evidence. It is not unsound or wholly erroneous. This court cannot reappreciate the evidence so as to take a different conclusion.

It was also argued by the learned counsel for the revision petitioner that the tenant is entitled to the benefit of second proviso to Section 11(3). Here also there is a concurrent finding that the tenant failed to prove both the ingredients so as to claim the protection under the second proviso. The evidence would show that apart from the income from the business carried on in the petition schedule building, he has other source of income also. That apart, the tenant could not prove that there are no other suitable buildings available in the locality for shifting his business. The tenant cannot expect to get a building for a meagre rent of Rs.100/- P.M. The contention that for the buildings, if any, available, he may have to pay huge amount as rent and so he cannot be ordered to be evicted is devoid of any merit. The concurrent findings entered by the courts below regarding the second proviso also cannot be upset in revision u/s 20 of the Act. The result therefore is that the R.C.R. fails and is dismissed. The revision petitioner is granted six months time to vacate the petition schedule building on condition that he should file an affidavit within three weeks from today undertaking to surrender peaceful possession of the petition schedule building to the landlord within six months from this date and he should also undertake that he will pay the entire arrears of rent within one month from this date and would continue to pay the occupation charges at the current rate till he surrenders the building. The extension of time granted would be subject to the filing of the affidavit and due compliance of the undertakings given thereunder.