Sharda Thakar vs Jagjit Singh

Surya Kant, J.—This Revision Petition is directed against the order dated 29.08.2008 passed by the Rent Controller, Garhshankar, District

Hoshiarpur whereby the petitioner has been ordered to evicted from the shop marked ABCD in the site plan and situated in Khasra No.520,

Khata No.290/304 in Ward No.5, Garhshankar, District Hoshiarpur. The eviction order has been passed in an eviction petition filed by the

respondent u/s 13B of the East Punjab Urban Rent Restriction Act, 1949 (for short ''the Act''). The Rent Controller has held that the respondent is

owner of the shop in dispute; there is a relationship of landlord and tenant and the petitioner who denied the title of the respondent and the

relationship of landlord and tenant, can not be permitted to question the need of the respondent qua the shop in dispute.

The facts may be noticed briefly.

The respondent filed the eviction petition u/s 13B of the Act, inter-alia, averring that the demised shop is owned by him along with his brothers

Harpal Singh, Surinder Singh and his mother Satwinder Kaur as they have inherited the same on the death of his father (Harbhajan Singh) on

29.09.1996. According to the respondent, the petitioner was inducted as a tenant by his father (later Harbhajan Singh) in the demised shop. The

respondent averred that he is a Non-Resident-Indian, who was born at Garhshankar and is settled in Canada and requires the shop in dispute for

his personal use and occupation as he has returned to India on 29.09.2004. The respondent further averred that no other premises has been got

vacated by him u/s 13B of the Act nor is he in possession of any other vacant shop. The eviction petition was filed on 29.11.2004.

The petitioner - tenant applied for leave to contest - denying the ownership of the respondent and his brothers/mother or his deceased father as

well as the relationship of landlord and tenant between the parties. The Rent Controller granted leave to contest and thereafter the petitioner filed

his written statement on inter-alia, denying the ownership of the respondent or his mother and brothers. He also denied that the shop in dispute is

constructed in Khasra No.520 and claimed that the shop is situated within the Lal Dora of the town. He also denied that the respondent or his

brothers and mother have inherited any property of Harbhajan Singh. He asserted that ""even if Harbhajan Singh had any interest or title in the shop

in dispute, the same has extinguished by lapse of time"". The petitioner further claimed that in the year 1990 he started doing barber''s job in front of

the shop by putting a Chair and table and since the shop was lying vacant, he ''occupied'' the same and started the barber work in the said shop in

August, 1990 and that Harbhajan Singh had no right or interest in the shop and he had become ''owner'' of the shop by way of ""adverse

possession"". The petitioner claimed alternatively that the respondent holds a Canadian Passport and is not an Indian and he being permanently

settled in Canada, has no intention to return to India.

The Rent Controller vide the impugned eviction order has answered most of the issues in favour of the respondent - landlord, giving rise to this

revision petition.

The counsel for the petitioner urged that the respondent has not only failed to prove his ownership qua the shop in dispute but his bona-fide

requirement as well, especially when he did not come forward to depose. Reliance has been placed upon the Hon''ble Supreme Court''s decision

in Nathi Devi Vs. Radha Devi Gupta, and of this Court in Basant Kumar v. Romesh Kumar Deora, 2008(2) RCR(Civil) 176.

Having heard learned counsel for the parties at some length and on perusal of the records, I am of the considered view that this revision petition

is devoid of any merit and is liable to be dismissed. Since the petitioner has chosen to deny the title of the respondent or his father - Harbhajan

Singh (since deceased) as well as the relationship of landlord and tenant between the parties, it is appropriate to refer to the evidence produced by

the respondent - landlord to establish his ownership qua the demised property. The respondent''s specific case is that the shop in dispute has been

constructed in a part of Khasra No.520 (1K-6M) which was previously owned by his father - Harbhajan Singh who died on 29.09.1996 in

Canada. In order to prove the same, the respondent has placed on record a copy of Jamabandies for the years 1996-97 (Ex.P3), 2001-02

(Ex.P4), site plan (Ex.PW4/A) and report of the Local Commissioner - a retired revenue Officer (Ex.P6) along with copy of the Ak-sajra

depicting different khasra numbers (Ex.P7).

From the report of the Local Commissioner read with the Ak-sajra, there remains no room to doubt that the shop in dispute falls in Khasra

No.520. No meaningful argument could be advanced on behalf of the petitioner to prove otherwise. Pertinently, the petitioner - tenant has led no

evidence whatsoever in support of his bald and vague plea that the shop in dispute falls within the Lal Dora (i.e., the habitable area of the village).

Learned counsel for the petitioner argued that Khasra No.520 (1K-6M) was never owned by Harbhajan Singh - father of the respondent as is

apparent from the Jamabandies for the year 1996- 97 and 2001-02 (Ex.P3 and P4) relied upon by the respondent. It was urged that as per the

entry in the column of ownership, Shamlat Taraf Rohinda Hasab Rasad Khewat is the owner of the subject land and the father of the respondent

(after his death he and other legal heirs of Harbhajan Singh) are shown only in cultivating possession thereof through the Central Government. I am,

however, not impressed by the contention for the reason that the column of ownership read with the description of the person(s) in cultivating

possession, clearly suggests that the land was owned by the proprietors of the village and Harbhajan Singh was in possession of half share in his

capacity as a Mustarka Malkan, i.e., being a co-proprietor of the village. The Jamabandi further shows that the said land is Gair Mumkin Abadi.

Thus, a part of the Khasra No.520 was possessed by the father of the respondent as his share in the joint holding of the village proprietors and in

his capacity as a co-proprietor of the village.

The contents of the above referred revenue record have been further sanctified by Santokh Singh PW3 who is a House Tax Clerk of

Municipal Committee, Garhshankar. He has deposed that he is working as a House Tax Clerk from last over 20 years and the entries in the

Register are made in his hand. He produced the House Tax Register for the year 2003 in which the shop in dispute is shown to have been

occupied by ""Sharda Hair Cutting"" as tenant and the same is owned by the respondent, his two brothers and their mother.

It is also proved on record that besides the shop in dispute, there are two more shops on the ground floor and another premises on the first

floor of the shop which were owned by the deceased Harbhajan Singh. A major part of the premises is rented out to Oriental Bank of Commerce

by Harbhajan Singh, whereas one Gurdeep Singh is a tenant on the first floor of the building. The said Gurdeep Singh has also entered the witness

box PW2 and has categorically deposed that the three shops are owned by the respondent, his two brothers and mother and that the petitioner

(Sharda Thakur) had paid rent, in his presence, in April, 2003 to Surinder Singh - attorney of the respondent.

The petitioner - tenant though has denied the relationship of landlord and tenant but the plea appears to have been taken with dishonest

intention to grab the property under the misconception that Harbhajan Singh had already passed away in Canada in the year 1996 and his widow

and children might not be interested to come back to India. The eviction petition filed by the respondent u/s 13B of the Act, however, appears to

have made the petitioner - tenant jittery who for the sake of denial, has disputed everything but without any intention to prove his bald pleas. The

Municipal record duly maintained in the discharge of official duties, explicitly discloses the petitioner''s status as a tenant in the demised premises -

a fact supported by another tenant in the same building as well. Yet the petitioner chose to deny the relationship and has concocted a totally

artificial and improbable story as to how he entered into possession of the shop in dispute. The conclusion drawn by the Rent Controller that the

petitioner was actually inducted as a tenant by the deceased Harbhajan Singh, thus, stands proved beyond any doubt and calls for no interference

by this Court.

The record further reveals that despite several opportunities given, the petitioner led no evidence except to examine himself nor produced any

documentary evidence to substantiate his frivolous pleas. He has also failed to explain as to who made investment for the construction of the shop

and still left it unattended to be occupied by a stranger, like the petitioner who, as per his own deposition, belongs to Uttar Pradesh. The shop is

located on the main State Highway and in a Municipal Area (earlier a village). How on earth it can be believed that some unknown person

constructed the shop and left it as a green pasture for the petitioner. On the other hand, the plea taken by the respondent - landlord that all the

shops were constructed by his father and let out to different tenants who are regularly paying rent to the respondent and his co-owners through

their Attorney - Surinder Singh PW1 inspires confidence and is trustworthy.

From the above discussion and on a combined reading of the documentary as well as oral evidence led by the respondent, it stands established

that the shop in dispute was constructed and owned by late Harbhajan Singh and after his death the same has been inherited by the respondent

along with two brothers and their mother. The respondent being a co-sharer in the demised premises is entitled to maintain the eviction petition u/s

13B of the Act. Similarly, the municipal and revenue record, coupled with the oral evidence led by the respondent leaves no manner to doubt that

the petitioner was inducted as a tenant by the father of the respondent and the denial of relationship by the petitioner is a false and motivated plea

to frustrate the legislative object behind Section 13B of the Act.

Since the petitioner chose to deny the title of the respondent as well as relationship of landlord and tenant between the parties, the Rent

Controller appears to be right in observing that the petitioner can not blow hot and cold and take a plea that the respondent has failed to prove his

bona-fide need for the premises or that he has not entered the witness box in this regard. Suffice it to observe that the Hon''ble Supreme Court in

Baldev Singh Bajwa Vs. Monish Saini, have held as follows:-

.....In our view there are in built protections in the relevant provisions, for the tenants that whenever the landlord would approach the Court he

would approach when his need is genuine and bona-fide. It is, of course, subject to tenants'' right to rebut it but with strong and cogent evidence.

In our view, (in) the proceedings taken up u/s 13B by the NRI landlords for the ejectment of the tenant, the Court shall presume that landlord''s

need pleaded in the petition is genuine and bona-fide. But this would not dis-entitle the tenant from proving that in fact that in law the requirement

of the landlord is not genuine. A heavy burden would lie on the tenant to prove that the requirement of the landlord is not genuine. To prove this

fact the tenant will be called upon to give all the necessary facts and particulars supported by documentary evidence, if available to support his plea

in the affidavit itself so that the Controller will be in a position to adjudicate and decide the question of genuine or bona fide requirement of the

landlord. A mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord''s favour that his

requirement of occupation of the premises is real and genuine.

The petitioner was under a heavy onus to dislodge the statutory presumption and prove that the respondent does not require the demised

premises. No evidence whatsoever has been led by the petitioner to prove that there is any other vacant shop in possession of the respondent or

that he does not require the demised premises to return and settle in India. As against this, it has been specifically averred in the eviction petition

that the respondent has returned to India in September, 2004. Soon thereafter the eviction petition was filed. Merely because of the prolonged

litigation that the respondent went back to Canada as he can not keep on waiting endlessly or sitting idle, does not mean that he has no intention to

return to India. In any case, the eviction of a tenant by an un-scrupulous NRI - landlord u/s 13B of the Act, has been well remedied by the

Legislation by incorporating stringent provisions like Section 13B(3) read with Section 19 of the act which provide penal consequences if a NRI -

landlord fails to occupy the vacated premises or again rents out/dispose of the same.

For the reasons afore-stated, I do not find any merit in this revision petition which is accordingly dismissed. The petitioner is also burdened

with costs of Rs.5000/- as he has been enjoying the property apparently without paying any rent to the respondent.