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2001 DIGILAW 728 (PNJ)

Commodore Harjit Singh Kang v. H. C. Sharma

2001-07-20

J.S.NARANG

body2001
JudgmentJudgment J.S.Narang, J. 1. The petitioner has filed a petition under Section 13-A of the East Punjab Urban Rent Restriction Act, 1949 (amended upto date), hereinafter referred to as `the Act, for seeking eviction of the respondent from the demised premises. The case of the petitioner is that the House No. 475, Sector 15-A, Chandigarh, was owned by his father late Sardar Chandan Singh Kang. That, during his life time, he had inducted the respondent as tenant on the ground floor at a monthly tenancy of Rs. 180/-, payable in advance. Sardar Chandan Singh Kang died on September 3, 1986 leaving behind a Will, on the basis of which, the house devolved upon his widow Smt. Gurdev Kaur and his four sons namely Gurbhajan Singh Kang, Harjit Singh Kang (petitioner), Gursharan Singh Kang and Jasbir Singh Kang. The house in question was duly mutated in favour of the aforesaid persons in the records of the Estate Office, Union Territory, Chandigarh. It is averred that a family settlement was arrived at on December 25, 1994 by the successors. It is alleged that the tenanted premises were defined to have fallen to the exclusive lot and ownership of Smt. Gurdev Kaur and sons. Since the property had been inherited by all as aforesaid, the relationship of landlord and tenant with the respondent came into existence between them. 2. The petitioner was serving as a Commodore in Indian Navy and he retired on June 7, 1995. The petition for eviction has been filed in the capacity of a specified landlord within the meaning of Section 2(HH) of the Act. It is admitted fact that appointment of Commodore in Indian Navy is a public service in connection with the affairs of Union of India. It is averred that the petitioner does not own and possess any other accommodation in the urban area of Chandigarh and that he intends to reside in the demised premises on the ground floor. Additionally, it has been mentioned that the respondent (tenant) owns an eight marla double storey, house bearing No. 2390, Sector 44-C, Chandigarh. The said premises have been let out by the tenant at a monthly tenancy of approximately Rs. 5000/-. The respondent-tenant was required to vacate the premises but he refused to do so, which led to the filing of the petition. 3. Notice of the petition was issued to the respondent. The said premises have been let out by the tenant at a monthly tenancy of approximately Rs. 5000/-. The respondent-tenant was required to vacate the premises but he refused to do so, which led to the filing of the petition. 3. Notice of the petition was issued to the respondent. The respondent filed an application for seeking leave to defend which had been granted and that by way of filing written statement, certain objections have been taken :- (i) There is no relationship of landlord and tenant between the petitioner and respondent, as such, the petitioner does not have the locus-standi to maintain such petition; (ii) the petitioner is not a specified landlord and that the relationship of landlord and tenant has been admitted qua Smt. Gurdev Kaur, one of the successors of late Sardar Chandan Singh Kang; (iii) the petitioner is in use and occupation of Ist and IInd floor of the house in question, as such, there is no bona fide requirement of the landlord for seeking vacation of the premises. The petitioner is residing at Bombay with his family members and never resides at Chandigarh nor he has any intentions to shift to Chandigarh alongwith members of his family; (iv) the alleged family settlement dated December 26, 1995 is not a legal and valid settlement and that has been created to enable the petitioner to institute the petition as a specified landlord. Since partition of the property is not permissible in Chandigarh, such partition is hit by the provisions of The Capital of Punjab (Development and Regulation) Act, 1952 and the rules framed thereunder. Thus, no right accrued to the petitioner for the demised premises, as such, the petition is not sustainable and the same deserves to be demised; (v) the alleged Will stated to have been executed by late Sardar Chandan Kang was never acted upon after the death of the testator and does not confer any right on the petitioner and that the property in question has not been mutated accordingly in the record of the Estate Office, Chandigarh; (vi) the certificate of retirement has not been issued by competent authority and that the petition is not accompanied by duly sworn affidavit. On the pleadings of the parties, following issues were framed :- 1. Whether there exists relationship of landlord and tenant between the parties ? OPP 2. On the pleadings of the parties, following issues were framed :- 1. Whether there exists relationship of landlord and tenant between the parties ? OPP 2. Whether the petitioner requires the premises in dispute for his personal use and occupation bona fidely ? OPP 3. Whether the certificate of retirement has been issued by competent authority ? OPP 4. Relief. 4. The learned Rent Controller decided Issues No. 1 and 2 in favour of the respondent and against the petitioner. However, issue No. 3 has been decided in favour of the petitioner. In view of findings on issues No. 1 and 2, the petition has been dismissed by the Rent Controller vide impugned order dated November 7, 1998. 5. The factum of the house in question, i.e. House No. 475, Sector 15-A, Chandigarh, having been transferred into the names of the successors namely Smt. Gurdev Kaur, widow of late Sardar Chandan Singh Kang and Sarvshri Gurbhajan Singh Kang, Harjit Singh Kang, Gursharan Singh Kang and Jasbir Singh Kang sons of late Sardar Chandan Singh Kang has been correctly proved and has remained un-rebutted. The record in this regard had been summoned and one Shri Rajinder Sehgal, Clerk, Estate Office was examined as PW-1. This fact has been established in accordance with law. The document projecting family settlement is also stated to be on the record of the Estate Office. 6. The petitioner examined Shri B. Sahay, Assistant in the office of Naval Headquarters, Directorate of Personnel, New Delhi as PW-2 and he deposed as per the record, the petitioner, Commodore Harjit Singh retired from Indian Navy on June 7, 1995. He proved on record the order of retirement which has been issued under the signatures of Shri G.P. Chand, Deputy Director of Personnel. The said certificate has been exhibited as Ex.P1. The petitioner has stepped into witness box as PW-3 and has corroborated facts of succession, creation of tenancy in favour of the respondent by his father and also the factum of family settlement arrived at amongst the members of the family. The said document has been exhibited as Ex.P2. He has also stated that he does not own or occupy any other residential house in urban area of Chandigarh nor he has vacated any house. He has also stated that he requires the same for his personal use as he intends to reside in the said premises. The said document has been exhibited as Ex.P2. He has also stated that he does not own or occupy any other residential house in urban area of Chandigarh nor he has vacated any house. He has also stated that he requires the same for his personal use as he intends to reside in the said premises. The fact that the ownership of the house has devolved upon all the successors in equal share has been emphatically stated and proved beyond any doubt. Thus all the successors are the co-owners/co-sharers. 7. On the other hand, respondent has set up his defence that the petitioner had never been his landlord and that upto February 1996, he has produced the counterfoils/coupons of the money orders vide which the rent has been sent to Smt. Gurdev Kaur which have been exhibited as Ex.R1 to Ex.R18. Thus, the petitioner being a specified landlord of the respondent-tenant, did not arise as the factum of his being the landlord of the respondent-tenant has not been proved on the record, as such, the petition under Section 13-A of the Act is not sustainable and the same deserves to be dismissed. The factum of family settlement has also been denied and the plea is that such a document does not confer exclusive ownership qua the demised premises in favour of the petitioner, as the division of the property by metes and bounds is not permissible under the Capital of Punjab (Development and Regulation) Act, 1952. Since the exclusive ownership of the petitioner qua the demised premises has not been proved, the petitioner is not entitled to invoke Section 13-A of the Act. 8. Learned counsel for the petitioner has argued that the Rent Controller has fallen into error by holding that the petition is not maintainable by the petitioner qua the demised premises as he has not been held to be the landlord of the respondent and has held Smt. Gurdev Kaur Kang to be the landlord of the demised premises qua the respondent-tenant. It is admitted case that the house which was the ownership of late Sardar Chandan Singh devolved upon the successors and that the property stood transferred in the name of all the successors jointly. The petitioner is admittedly a co-owner of the house in question. It is admitted case that the house which was the ownership of late Sardar Chandan Singh devolved upon the successors and that the property stood transferred in the name of all the successors jointly. The petitioner is admittedly a co-owner of the house in question. It is the settled law that if one of the co-owners falls within the definition of specified landlord, he is entitled to maintain petition under Section 13-A of the Act and is, therefore, entitled to seek eviction of the tenant in pursuance thereto. The only contention which can be raised by the respondent is as permissible under Section 18-A (Sub-clauses 4 and 5) of the Act. The respondent is not entitled to any benefit if the rent has been sent to the other co-owner and not the petitioner. The rent sent to one of the co-owners shall be deemed to have been sent to all the co-owners of the premises. It has been established beyond any doubt that the demised premises are required by the petitioner and that he is not in possession or in ownership of any such house at Chandigarh and that he has retired from the service and that the certificate so produced has been held to be correct. The petitioner has fulfilled all the requirements as envisaged under Section 13-A for seeking eviction of the tenant. It has been further argued that so far as sufficiency of accommodation is concerned, it does not fall within the purview of the Rent Controller to determine as to what kind of accommodation is sufficient for the landlord and that in this regard, the law stands settled by the decisions rendered by this Court and the Apex Court. 9. Reliance has been placed upon judgments of this Court in Jagdish Singh Dairy v. Capt. Ranbir Singh Jolly, 1987(2) RCR 470 and Shri Kewal Krishan v. Smt. Lajwanti w/o late Shri Narain Dass, 1988(1) RCR(Rent) 62 (P&H) : 1988 HRR 170. It has been categorically held that a specified landlord owning the premises jointly with others can seek ejectment of tenant under Section 13-A. A joint owner is an owner of every nook and corner of the premises. In the case at hand, the personal need of the petitioner has gone unrebutted and that he has been non-suited only on the ground that he has failed to prove his relationship as landlord qua the respondent. In the case at hand, the personal need of the petitioner has gone unrebutted and that he has been non-suited only on the ground that he has failed to prove his relationship as landlord qua the respondent. However, the fact of his being co-owner of the premises has not been disputed and has gone unrebutted. The consent of the other co-owners is discernible from the family settlement which has been arrived at amongst the co-owners for permitting him to occupy the demised premises alongwith the mother. No doubt on the basis of family settlement, the partition of the property would not be executed by metes and bounds but by way of internal arrangement, the co-owners of the property are entitled to define their occupancy rights vis a vis each other which have been categorically established by way of producing the document defined as family settlement. 10. On the other hand, learned counsel for the respondent has argued that the relationship of landlord and tenant amongst the petitioner and the respondent has not been proved. It is the settled law that if such relationship is not proved, the petitioner shall not be entitled to any relief by way of eviction of the tenant. Reliance has been placed upon a Judgment of this Court in re : Ujagar Singh v. Lajpat Rai, 1986(1) RCR 505 (P&H). It has been further argued that sufficient accommodation is available to the petitioner and that the factum of division of the property by metes and bounds having not been established and not acceptable under law, the petitioner is not entitled to any relief by way of seeking eviction of the respondent by invoking Section 13-A of the Act. No other argument has been addressed. 11. I have considered the rival contentions of learned counsel for the parties and I am of the considered opinion that the Rent Controller fell into error by holding Smt. Gurdev Kaur as landlady qua the respondent. It is the admitted fact that the property in question devolved upon legal heirs of late Sardar Chandan Singh in pursuant to the Will and resultantly, the same has been transferred into the names of the successors accordingly, this fact stands unrebutted. The factum of retirement of the petitioner has also gone unrebutted. It is the admitted fact that the property in question devolved upon legal heirs of late Sardar Chandan Singh in pursuant to the Will and resultantly, the same has been transferred into the names of the successors accordingly, this fact stands unrebutted. The factum of retirement of the petitioner has also gone unrebutted. The respondent has not been able to show that the certificate which has been exhibited as Ex.P1, is not correct in any manner whatsoever. It has also been corroborated by the petitioner that the premises are required by him for his personal use and occupation on having retired from the service as Commodore in the Indian Navy. It is also corroborated that he is not in the ownership or possession or occupation of any other building in Chandigarh and that, he has not vacated any premises at Chandigarh. Thus, he fulfils all the ingredients as envisaged under Section 13-A. So far as the sufficiency of accommodation is concerned, the Rent Controller is not entitled to go into this fact and in this regard, reference may be made to the judgments of this Court in re : Shri Parkash v. Mrs. Bimla, 1998(2) RCR 171 and Surinder Sharma v. Zenobia Bhanot, 1998(2) RCR 487. This dicta has been followed by me in Mohinder Singh v. Dr. Verma, Civil Revision No. 1812 of 2000, decided on 10.5.2001. Thus, argument of learned counsel for the respondent is not impressive so far as it states that the petitioner alongwith his family have sufficient accommodation as the Ist floor and IInd floor of the premises are in their exclusive possession. In view of the law laid down by this Court and even otherwise, I am satisfied from the facts of this case as well that the petitioner is entitled to seek eviction of the respondent from the demised premises as specified landlord. 12. Petition is allowed. The finding of the Rent Controller upon issues No. 1 and 2 are reversed and that findings are returned in favour of the petitioner. The finding upon issue No. 3 is affirmed. 12. Petition is allowed. The finding of the Rent Controller upon issues No. 1 and 2 are reversed and that findings are returned in favour of the petitioner. The finding upon issue No. 3 is affirmed. The order dated November 7, 1998 passed by the Rent Controller, Chandigarh is set aside and that the petition under Section 13-A of the East Urban Rent Restriction Act, 1949 filed by the petitioner is allowed and the respondent is ordered to be evicted from the demised premises i.e. the Ground Floor of House No. 475, Sector 15-A, Chandigarh. 13. Learned counsel for the respondent has prayed that some time be granted for vacating the premises. I consider the prayer to be just and proper. The respondent shall deliver the vacant possession of the premises within three month from today i.e. the vacant possession shall be delivered on or before October 31, 2001, subject to the condition that the arrears of rent, if any, inclusive of the extended period shall be paid by the respondent to the petitioner within 15 days from today, failing which the extension so granted shall stand declined automatically. It is made clear, if the petitioner does not accept the rent within the aforesaid period, the respondent shall be at liberty to tender the same to the counsel for the petitioner within one week thereafter in cash or by way of demand draft drawn in favour of the petitioner. No costs.