Shri Nand Kishore vs Shri Jagdish Chander Jain

J.M. Tandon, J.—The property bearing number B. IV. 232, Kucha Malerimal, Ludhiana is owned by Jagdish Chander Jain Respondent and is in occupation of Nand Kishore, Petitioner as a statutory tenant. The Respondent, on behalf of his father, had let out the premises to Amar Nath, father of the Petitioner, in February, 1947, allegedly for business and residential purposes Amar Nath died in 1957. On 15th September, 1973 the Respondent filed an ejectment application against the Petitioner on the grounds of non-payment of rent ; personal necessity and the Petitioner having impaired its value and utility.

The arrears of rent was tendered and accepted on the first date of hearing. The Petitioner denied that the value and utility of the property had been impaired or that he was liable to be ejected on the ground of personal necessity on the part of the Respondent as the property had been let out exclusively for commercial purpose.

The Rent Controller, vide order dated 2nd May, 1979, held that the Petitioner had not impaired the value and utility of the property. The property had been let out for business and residential purposes and it could be got vacated for the bona fide requirement of the landlord. The Respondent required the demised premises for his married son. The petition was accepted and the Petitioner was directed to vacate the premises within 3 months. The Petitioner filed an appeal against the order of the Rent Controller which was dismissed by the Appellate Authority vide order dated 10th February, 1983. It is under these circumstances that the Petitioner has filed the present petition.

The main contest between the parties is about the use of the premises for which it was let out. In the rent note (mark ''A'') dated 7th February, 1947, executed by Amar Nath about the premises in dispute for the period 17th Janaury, 1947 to 16th Januay, 1950 at the rate of Rs. 10/- per mensem, it is written that the same had been let out for business and residential purposes.

The Respondent landlord produced AW 3 Ayodhia Parkash who stated that he was a partner of Amar Nath, father of the Petitioner from 1944 to 1951 and he used to visit the premises in dispute daily. He did not visit the premises after the death of Amar Nath. Amar Nath had set up his factory on the ground floor of the premises in dispute and his residence was on the first floor. The Respondent appeared as his own witness and stated that his father Jyoti Parsbad had let out the premises in dispute to Amar Nath (father of the Petitioner) in 1947 at Rs 10/- per mensem. Amar Nath died on 7th December, 1957. In 1959 an application for ejectment of the Petitioner was filed which was dismissed on the basis of compromise and the rent was increased from Rs. 10/- to Rs 20/ per mensem. The premises in dispute consists of 3 rooms, one above the other and its area is about 26 square yards Amar Nath, as also the Petitioner, used to reside in their joint house and also in the house in dispute. Amar Nath had set up hosiery business in the shop on the ground floor. Amar Nath had installed two hosiery machines. His father Jyoti Parshad died in 1967. He required the home for his married ton Rajinder Kumar Rajinder Kumar was married in 1970. At present Rajinder Kumar is residing with him, but he has a separate mess. The relations between his wife and his daughter-in-law are strained. The relation between the two remained cordial for about 7 or 8 months after the marriage of Rajinder Kumar and thereafter their relations became strained. The accommodation with him consists of one room and two stores on the ground floor and two rooms on the first floor of the house which is in his occupation. His family consists of his wife, three sons and five daughters. His eldest son Rajinder Kumar is aged 33 years and his other sons are 27 and 25 respectively. Two of hit daughters are married. The accommodation with him is insufficient for the requirement of his family.

Rajinder Kumar has also appeared as a witness. He stated that he is married and has 3 school-going children. He is residing with his father. The accommodation in their occupation is insufficient and the premises in dispute are required bona fide. AW 1 Narinder Kumr is another son of the Respondent. He alto supported the case of the Respondent.

RW Nand Kishore, Petitioner, stated that the accommodation in possession of the Respondents consists of 5 rooms and a kitchen. The Respondent has 3 sons and 5 daughters. Rajinder Kumar, son of the Respondent, and the latter''s 2 daughters are married. Rajinder Kumar has 3 children The Respondent does not need the house for personal requirement. Prior to him, his father Amar Nath lived in the premises in dispute and the same had been taken on rent from Jyoti Parshad, father of the Respondent in about 1947. He denied that the premises in dispute had been taken for residential purposes.

Section 2(7) of the Registration Act, 1908 reads:

"Lease" includes a counterpart, kabuliyat, an undertaking to cultivate or occupy, and an agreement to lease;

The rent-note mark ''A'' is signed by Amar Nath apart from 2 attesting witnesses. It is neither signed by Jagdish Chander Jain Respondent, nor his father Jyoti Parshad. It it evident that this document shall be lease deed in terms of the definition of "lease" quoted above.

The relevant part of Section 17 of the Registration Act reads:

"Documents of which registration it compulsory -(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely.-

... ... ...

(d) leases of immovable property from year to year ; or for any term exceeding one year, or reserving a yearly rent;

... ... ...

The rent note mark ''A'' being a lease deed, is compulsorily registerable u/s 17(1)(d) This document is unregisterable. It is, therefore, inadmissible in evidence.

The contention of the Learned Counsel for the Respondent is that the purpose for which the premises had been let out can be as certained from the unregistered rent note mark ''A'' under proviso to Section 49 of the Registration Act. The contention is without merit. The proviso to Section 49 reads:

Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 or as evidence of part performance of a contract for the purposes of Section 53-A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument.

It it clear that the purpose for which the premises in dispute had been let out by the rent-note mark *A'' was primary and it is not a collateral transaction in terms of proviso to Section 49. The unregistered rent-note mark ''A'' cannot, therefore, be received in evidence to ascertain the purpose for which the premises had been let out to the father of the Petitioner in 1947.

The Respondent has, stated that the premises had been let out for business and residential purposes to the Respondent''s father in 1947. The father of the Respondent had set up hosiery factory on the ground floor and he lived in the upper floor. The Respondent has admitted that the. premises had been let out to his father in the year 1947 and prior to him, his father lived in the premises in dispute. Amar Nath father of the Petitioner died in 1957. The Petitioner has clearly admitted that his father lived in the premises in dispute till about 1957. It is thus, proved that Amar Nath used the premises in dispute for purposes of business and residence. It would be reasonable to infer that Amar Nath used the premises for purposes of business and residence as the same bad been let out to him for twin-purpose.

The Learned Counsel for the Petitioner has argued that in 1951, an ejectment application had been filed against the father of the Petitioner on the ground that the premises in dispute were required for commercial purpose. According to, the law then prevailing, non-residential premises, could be got vacated only for commercial purpose. The ejectment application was, of course, dismissed on 28th January, 1953. This is a circumstance which negatives the plea of the Respondent that the premises had been let out for business and residential purposes. The contention is without merit. The ejectment application filed against the Petitioner in August, 1951 has not been produced. The copy of the order of the Rent Controller dated 28th January, 1953 indicates that the plea of the father of the Respondent against Amar Nath that he required the premises in dispute for expanding hit business, did not prevail. It is difficult to infer there from that the premises had been let out only for, commercial purpose in 1947 to Amar Nath. The Rent Controller, as also the Appellate Authority, have rightly held that in view of the evidence led by the parties, it stands proved that the premises had been let out to Amar Nath in 1947 for the purposes of business and residence and the same shall, therefore, be treated as residential which can be got vacated by the landlord for personal requirement.

Jyoti Parshad, father of the Respondent died in 1967. Amar Nath father of the Petitioner died in 1957. It is not disputed that the Petitioner is a statutory tenant of the premises under the Respondent The family 6f the Respondent consists of his wife, 3 sons and 5 daughters Two daughters and eldest son of the Respondent were married at a time the ejectment application Was filed in 1973. The married son of the Respondent has 3 school-going children. The accommodation with the Respondent consists of 5 rooms. The Respondent requires the premises in dispute for hit married son. It is also his case that the accommodation in His occupation is not sufficient for his family. Apart from the fact that there is nothing to doubt the claim of the Respondent that the accommodation with him it not sufficient for hit personal requirement he can get the premises in dispute vacated for the residence of his married son The concurrent finding of the Rent Controller and the Appellate Authority on this point in favour of the Respondent is affirmed.

In the result, the revision fails and is dismissed. No order at to costs.

The Petitioner is allowed three months time to vacate the premises in dispute.