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2003 DIGILAW 791 (PNJ)

Kewal Krishan (Landlord) v. Kulwant Rai

2003-05-22

J.S.NARANG

body2003
Judgment J.S.Narang, J. 1. The applicant-petitioner Shri Kewal Krishan son of Lala Ram Narain along with respondents No. 2 to 10 purchased the property bearing No. M.C.J/811. vide sale deed dated December 20, 1974. A portion of the ground floor on Western side and the first floor shown in red colour in the site plan appended with the application was rented out to respondent No. 1 at a monthly tenancy of Rs. 430/-. The tenancy had been created on oral agreement for a period of eleven months and that a part of the building was to be used for business and the other part for residence. It has been alleged that the entire building has been defined as a residential building. The eviction application has been maintained on the following three grounds:- (i) The tenant has not" paid the rent since the purchase of the building i.e. December 20, 1974; (ii) The term of the tenancy has expired; and (iii) The tenanted premises are required by the landlord for his own use and occupation and that he is not occupying any other residential building in the area of Municipal Committee Jagraon and has not vacated any such building after the commencement of the Act." 2. Respondent No. 1 i.e. Kulwant Rai son of Bhola Nath has contested the application as tenant. He tendered Rs. 1250/- as rent for the period i.e. December 12, 1974 to December 19, 1979 at the rate of Rs. 250/- per annum and a sum of Rs. 192/- as interest thereon in respect of the alleged residential premises. He had also tendered another sum of Rs. 900/- as rent allegedly for the shop with effect from December 20, 1974 to December 19, 1979 at the rate of Rs. 180/- per annum and a sum of Rs. 138/- has been paid as interest thereon. A sum of Rs. 40/- has been tendered as cost. The tender is stated to have been accepted by the applicant under protest being short and for the property as one residential unit. The tenant has shown his ignorance about the change in the title in favour of the applicant, however, has admitted his occupation of the property as tenant. A sum of Rs. 40/- has been tendered as cost. The tender is stated to have been accepted by the applicant under protest being short and for the property as one residential unit. The tenant has shown his ignorance about the change in the title in favour of the applicant, however, has admitted his occupation of the property as tenant. It has been alleged that the first floor is being used as a godown and the ground floor is being used as a shop as such, the premises in dispute is a non residential building. Another objection has been taken that these being two distinct and separate tenancies, one petition for ejectment is not maintainable. The claim of the landlord that the premises are required for his own use and occupation has been emphatically denied. Since the demised premises cannot be defined as residential premises and have been let out as non residential premises, the same cannot be got vacated on the ground of personal necessity. It has also been pleaded that the landlord owns a number of properties in Jagraon City and apart from that, is in occupation of a big residential building, as he is living with his parents jointly and they are running a joint business. Upon replication the averments have been controverted and the pleadings in the application have been reiterated. Upon the pleadings of the parties, the issues have been struck and the parties have led documentary as well as ocular evidence. 3. The Rent Controller has allowed the application, categorically holding that the premises in dispute is a residential building i.e. the first floor and that the lower portion though being used as a shop. Reference has been made to the definition of the word "non-residential building" as contained in Section 2(b) of the Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as "the Act") and that reference has also been made to the definition of the word "residential building", as has been given in Section 2(g) of the Act. Reliance has been placed upon a judgment of this Court rendered in re: Tirath Ram Chadha v. Tara Singh (1977)79 P.L.R. 901, in which it has been held that a building which is partly residential and partly non-residential would be treated as residential building. Reliance has been placed upon a judgment of this Court rendered in re: Tirath Ram Chadha v. Tara Singh (1977)79 P.L.R. 901, in which it has been held that a building which is partly residential and partly non-residential would be treated as residential building. He has placed reliance upon the documentary evidence such as the voters list Ex.A19 whereby votes of the respondent and his family have been made, reflecting the premises in dispute as residential. 4. It may be noticed that the receipts for having received rent by the previous owner Sewa Singh have also been produced on record which have been exhibited as Ex.R1 to R13 for the period from 1958 to 1974. The perusal of the receipts established the fact that the premises were rented out at one time in the year 1958 though different rent was settled for the two portions. The tenant has not produced the books of accounts for corroborating the factum of payment of rent for the shop etc. In fact, the evidence which has come on record and which has been noticed above, establishes the fact beyond any doubt that the demised premises had been taken on rent at one time as one unit though different rent was payable in respect of the portions. Since no rent note had been executed, the terms of the tenancy are not decipherable for establishing the nature of the building. The circumstantial evidence has to be taken into consideration for ascertaining the nature of the building. The description of the demised premises defined as upper story prima facie established that the building was used for residential purpose, which fact stands corroborated from the statement of Sewa Singh RW1. He has stated that Dr. Avtar Singh also resided in the demised premises (upper story). The cumulative effect of reading the evidence shows that the upper story had been taken on rent for residential purposes though subsequently the stand taken by the tenant is that the said premises had been used as a godown but this fact has not been succinctly established. However, the lower portion had been and has been used as a shop. The cumulative effect of reading the evidence shows that the upper story had been taken on rent for residential purposes though subsequently the stand taken by the tenant is that the said premises had been used as a godown but this fact has not been succinctly established. However, the lower portion had been and has been used as a shop. The fact that both the premises had been taken on rent at one and the same time, the definition of the word "residential building" as given in Section 2(g) of the Act, qualifies the portion which may be used partly for residential and partly for non residential purpose. The cumulative effect of description of the premises shall be residential. It shall be apposite to notice the definitions contained-in the act. Section 2(d) of the Act reads as under:- (d) "non-residential building" means a building being used- (i) mainly for the purpose of business or trade; or (ii) partly for the purpose of business or trade and partly for the purpose of residence, subject to the condition that the person who carries on business or trade in the building resides there: Provided that if a building is let out for residential and non residential purposes separately to more than one person, the portion thereof let out for the purpose of residence shall not be treated as a non-residential building. Explanation.- Where a building is used mainly for the purpose of business or trade, it shall be deemed to be a non residential building even though a small portion thereof is used for the purpose of residence; (g) "residential building" means any building which is not a non-residential building; (h) and (i) xxx xxx xx xx" 5. The plea of personal necessity of the landlord has been accepted by the Rent Controller and a finding has been returned that the landlord i.e. Kewal Krishan resides with his mother and that the said premises are the sole ownership of his mother. It can be conveniently noticed that the landlord is living at the sufferance of his mother and that he is not in occupation of the building in his own right. However; during the pendency of the application, another fact which has come into existence i.e. children of the landlord have got married, resultantly, the addition of members in the family. It can be conveniently noticed that the landlord is living at the sufferance of his mother and that he is not in occupation of the building in his own right. However; during the pendency of the application, another fact which has come into existence i.e. children of the landlord have got married, resultantly, the addition of members in the family. The accommodation in possession of his mother, herein the landlord resides at her sufferance, has not been found to be sufficient for the landlord. Thus, the need of the landlord stands established beyond any doubt. Resultantly, the issue in this regard has been returned in favour of the landlord. The order dated November 2, 1981, passed by the Rent Controller had been challenged by way of appeal before the appellate authority. 6. The Appellate Authority has formed an opinion upon the basis of the evidence that the building in question comprised of two distinct tenancy units and both of them have been let out under a separate contract of lease. It has been noticed in the statement of Sewa Singh RW1 that about 27 years ago Kulwant Rai tenant had rented out the shop alone and it is 2-3 years thereafter the Chaubara had been rented out. It is this statement which has gone unchallenged. The rent of both the premises has been described separately. It has been noticed that the receipt Ex.R4 dated May 12, 1960, pertains to the rent for the shop for the year 1959-60 whereas receipt Ex.R.7 dated May 4. 1960 pertains to the Chaubara for the same period. Same is the status reflected in the receipts Exs.R5, R6, R8 and R9 respectively. The documentary evidence produced from the Municipal Committee. Jagraon to the effect that the entire building was assessed to house tax as one unit and that the assessment orders have been proved as Exs.A1 and A2. This evidence has been discarded by the appellate authority on the premises that the municipal record is incapable of sheding any light in respect of the controversy that the premises had been let out at different times and that the record does not indicate whether the portions of a single structure are one or multiple tenancy units, even if the tenant is same. So far as the judgment of the apex Court rendered in re: Miss Sanyal v. Gian Chand. So far as the judgment of the apex Court rendered in re: Miss Sanyal v. Gian Chand. A.I.R. 1968 S.C. 438, is concerned, the same has been distinguished on the premises that the demised premises had not been let out for residential or non residential purpose under one contract and that the same should not be treated as one tenancy. Resultantly, the appellate Court has reversed the finding of the Rent Controller and has held that the two tenancies are distinct and separate from each other. It has been further held that the shop on the ground is undoubtedly a non residential building. So far as the demised premises upon the first floor are concerned reliance has been placed upon the fact that the premises no doubt were taken on rent for residential purpose but long before filing the application, which is stated to have been filed in the year 1979, the said premises came to be used as a godown. This plea has been corroborated by Gurcharan Singh RW2, Satnam Singh RW3 and Sarwan Singh RW4, whose evidence on this point has remained undemolished. The tenant while appearing as his own witness deposed that the first floor was being used as a godown. This statement, has not been called in question. However, receipt Ex.R2 dated November 2, 1971. has been referred to in which the Chaubara has been described as "commercial". Similarly, in the receipt Ex.R3. vide which the rent for the year 1973-74. has been received, the upper floor has been described as godown. The cumulative effect of these receipts have been taken into consideration by the Appellate Authority and it has been opined that the decisive character of a building let out for a purpose would stand qualified at the time of institution of the application. It has been further observed that on the premises of this evidence, the Chaubara cannot be termed as residential premises and would be definitely defined as "non residential building". Reference has been made to a judgment of the apex Court rendered in re: Dr. Sewa Singh v. Smt. Ravinder Kaur and Anr., 1970 All India Rent Control Journal 614, and that the judgment of this Court rendered in Jagjit Singh Cheema v. G.S. Sardana 1984(1) R.C.R. 182 (Punjab), has not been relied upon in view of the dicta of the Apex Court. Sewa Singh v. Smt. Ravinder Kaur and Anr., 1970 All India Rent Control Journal 614, and that the judgment of this Court rendered in Jagjit Singh Cheema v. G.S. Sardana 1984(1) R.C.R. 182 (Punjab), has not been relied upon in view of the dicta of the Apex Court. It has been mentioned that perhaps the dicta of the apex Court rendered in Dr. Sewa Singhs case (supra) was not brought to the notice of this Court and, therefore, the contrary view has been taken. Resultantly, the premises have been defined and taken as non residential buildings and that the claim of the landlord i.e. requirement of the premises for personal necessity has been declined. The finding of the Rent Controller on issue No. 1 has been reversed. The appeal has been accepted vide judgment dated December 3, 1984, as a sequel thereto the application of the landlord has been dismissed. 7. The judgment rendered in Dr. Sewa Singhs case (supra) had been doubted by the apex Court and vide order dated 19.2.1987, the Division Bench of the apex Court referred the matter to a larger Bench while passing the order in Roshan Lal Nirolas case. The reference order reads as under:- "The correctness of the view in Dr. Sewa Singh v. Smt. Reminder Kaitr and Ors. (1971)2 S.C.C. 981. is questioned before us. It has been held in that case that once a building is found to be a "Scheduled Building" within the meaning of Section 2(h) of the East Punjab Urban Rent Restriction Act, 1949 , no order for eviction on the ground of bona fide requirement of the landlord can be passed under Section 13(3)(a)(i) of the Act. The question raised is of general importance and likely to recur and in our opinion, deserves a hearing by a larger Bench. Let the papers be laid before Honble the Chief Justice of India for appropriate directions." 8. The apex Court decided the said case on December 10, 1992 reported as Roshan Lal Nirula v. Smt. Santosh Mahendroo (1993-2)104 P.L.R. 303 (S.C.). Let the papers be laid before Honble the Chief Justice of India for appropriate directions." 8. The apex Court decided the said case on December 10, 1992 reported as Roshan Lal Nirula v. Smt. Santosh Mahendroo (1993-2)104 P.L.R. 303 (S.C.). It has been categorically held that in view of the clear provisions whereby the residential building and scheduled building have been defined, there can be no manner of doubt that scheduled building does not cease to be a residential building during its user for a schedule purpose even though it ceases to be scheduled building when such user ceases. However, their Lordships of the Supreme Court upheld the finding in respect of personal need of the landlord and resultantly the civil appeal had been dismissed. 9. In the case at hand, the Appellate Authority while relying upon the dicta of Dr. Sewa Singhs case (supra) has held that the building on the first floor is a non residential building. Resultantly, the ground of personal necessity in respect of the premises for eviction of the tenant, has been held to be not available to the landlord. The ground of change of user having not been pleaded, no finding has been returned thereon. 10. After hearing learned counsel for the panics. 1 am of the view that the present petition deserves to succeed. It has been found as a matter of fact that the building had the character of residential building and that being so the Appellate Authority has fallen into error in non suiting the petitioner on the premises that the building is to be termed as scheduled building, therefore, the petitioner i.e. the landlord cannot seek eviction of the tenant from the demised premises. In view of the dicta of the apex Court rendered in Roshan Lal Nirulas case (supra), the petitioner cannot be non suited as the personal necessity of the landlord has been discussed and considered succinctly on the basis of the evidence brought on record. The Rent Controller has held that the petitioner is living at the sufferance of his mother along with his family and during the pendency of the petition, the children have got married, the family has become bigger and resultantly they definitely require the demised premises for their personal use and occupation. The Rent Controller has held that the petitioner is living at the sufferance of his mother along with his family and during the pendency of the petition, the children have got married, the family has become bigger and resultantly they definitely require the demised premises for their personal use and occupation. The Appellate Authority has not considered this aspect, and has non suited the petitioner on the basis of the dicta in Dr. Sewa Singhs case (supra). The tenant has not been really able to controvert the personal necessity of the landlord. It is also the settled law that the personal need and necessity for occupation of the demised premises depends lots on the requirement of the landlord and if in a given case the landlord is able to establish the personal need upon he basis of the evidence and the facts brought on record, there is no reason to decline the indulgence to the landlord on that premises. Thus, the appellate authority fell into error in holding the building to be scheduled building whereas the demised premises cannot be said to have been segregated while creating tenancy. The basic character of the building remains residential and subsequently also retains the same character. The personal need of the landlord having been established beyond any doubt, the irresistible conclusion would be that the application of the landlord must be allowed. 11. In view of the above, the petition is accepted and the order of the Appellate Authority dated 29.9.1984 is set aside and that of the Rent Controller dated 2.11.1981, is affirmed. No costs.