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2004 DIGILAW 265 (JHR)

Ramcharitra Burma v. Kiran Devi Tiberwal

2004-03-11

P.K.BALASUBRAMANYAN

body2004
ORDER P.K. Balsubramanyan, C.J. 1. This second appeal is by the defendant. The suit filed by the plaintiff was for eviction of the defendant under Section 11(1)(c) and 11(1)(d) of the Dinar Buildings (Lease, Rent and Eviction) Control Act. The plaintiff pleaded that the building was let out by one Kishore, the son of Jai Ram to the defendant; that the defendant was holding the building as a tenant; that Kishore, on 5.2.1993. had sold the building to the plaintiff; that the plaintiff issued a notice to the defendant calling upon him to vacate the premises as he had defaulted in paying the rent; that she had two unemployed sons and the building, a room having a dimension of 6 x 12 ft. was bona fide required by her for the starting of a business by her unemployed sons. The defendant resisted the suit questioning the exclusive title of Kishore, the assignor of the plaintiff, and the derivative title of the plaintiff over the room in question. He denied the bona fide requirement of the plaintiff and also pleaded that he had not defaulted payment of rent and, in any event, the advance of rupees four thousand and five hundred paid as security was liable to be adjusted towards rent and he could not be treated to be a defaulter. 2. Both sides adduced evidence. The Trial Court held that the defendant was let into possession by Kishore who had exclusive title over the building on the basis of a partition between him and his brother; that Kishore had conveyed the room in question to the plaintiff and that the plaintiff was entitled to seek eviction of the defendant as her tenant. It further held that the bona fide requirement pleaded by the landlord has been established since evidence was available to show that she had two unemployed sons and the plea that she wanted to provide them with the premises for the staring of a business was a genuine present need. it also held that since the dimension of the room was only 6 x 12 ft. with the road frontage being only 6 feet, a partial eviction in terms of the proviso to Section 11(1)(c) of the Act would not suffice and it was a case for eviction of the entire room on the ground of personal requirement. it also held that since the dimension of the room was only 6 x 12 ft. with the road frontage being only 6 feet, a partial eviction in terms of the proviso to Section 11(1)(c) of the Act would not suffice and it was a case for eviction of the entire room on the ground of personal requirement. But it accepted the plea of the defendant that he was not a defaulter, especially in the context of the amount of Rs. 4,500/- which had been paid as advance to the landlord and it was liable to be adjusted. Thus, a decree for eviction under Section 11(1)(c) of the Act was passed while declining the claim under Section 11(1)(d) of the Act. 3. Both the landlord and the tenant appealed against the decree. The landlord claimed eviction on the ground of default in payment of rent. The tenant challenged the decree for eviction on the ground of bona fide requirement. Before the Lower Appellate Court, it was essentially argued that the plaintiff had not derived a valid title. The Appellate Court reconsidered the entire oral and documentary evidence in the case. It found that on partition, Kishore had obtained exclusive title to the building and that the right, title and interest of Kishore had been conveyed to the plaintiff by a registered deed. It noticed the evidence in support of the document and also the presumption arising out of the registration of the document. It thus upheld the exclusive title of Kishore and the derivative title of the plaintiff. Proceeding further the Court found that the landlord had two unemployed sons and the requirement to start business by them and the need for providing premises for their track was acceptable, in the circumstances of the case. Thus, it agreed with the Trial Court that the bona fide requirement set up was established. It also found that it was not a case where partial eviction would meet the need of the landlord. It rejected the argument of the defendant that the landlord should have taken steps against the other tenant in occupation of a portion of the building. Thus, the appeal by the tenant was dismissed confirming the decree for eviction under Section 11(1)(c) of the Act. It rejected the argument of the defendant that the landlord should have taken steps against the other tenant in occupation of a portion of the building. Thus, the appeal by the tenant was dismissed confirming the decree for eviction under Section 11(1)(c) of the Act. In the appeal by the landlord, the Appellate Court came to the conclusion that the rent for the months of June and July, 1994 were outstanding and consequently the defendant must be held to be a defaulter and the Trial Court was not justified in refusing eviction under Section 11(1)(d) of the Act. Thus, the appeal by the landlord was allowed. Feeling aggrieved by the decree for eviction thus passed both under Sections 11(1)(c) and 11(1)(d) of the Act, this second appeal has been filed by the defendant. 4. Learned counsellor the appellant submitted that the finding that the defendant was a defaulter in payment of rent for the months of June and July, 1994 was not justified in the circumstances of the case, since the suit itself was filed on 2.8.1994, and going by Section 11(1)(d) of the Act, the tenant had time to pay the rent for July, 1994 until the end of August, 1994. If the eviction had only been on the ground of default in payment of rent, I would have examined the question in greater detail. But I find that in this preceding started in the year 1994, the landlord has clearly established her case for eviction under Section 11(1)(c) of the Act on the basis that she had two sons, who were unemployed, and that there was a need to provide them with a room for the starting of a business. Both the Courts below accepted the evidence on the side of the landlord I see no reason to interfere with the finding rendered by the Court below in this second appeal under Section 100 of the Code of Civil Procedure. 5. Learned counsel for the appellant concentrated his fire on the finding on the title set up by the plaintiff and tried to argue that neither the partition under which Kishore is said to have obtained exclusive title over the building nor the registered deed of assignment to the plaintiff has been proved in this case. I find it difficult to agree with this submission. I find it difficult to agree with this submission. An advertence to the judgment of the Courts below, especially that of the Appellate Court, shows that the witnesses to the document, the one who drafted the sale deed, and the one who typed the document were examined. There is also a presumption arising out of the registration of the document. There was no plea of impersonation. Of course, the burden of proof in case of impersonation would be on the defendant. In the circumstances, I find that the Courts below were fully justified in holding that the plaintiff had title to the building on the basis of the partition amongst the brothers, the sons of Jairam. Thus, I am satisfied that no substantial error of law has been pointed out justifying interference by this Court with the decree for eviction on the ground of personal requirement. That finding and the decree are fully sustainable. 6. In this situation, I see no reason to admit this second appeal. It is dismissed.