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2004 DIGILAW 908 (PNJ)

Surinder Kumar Jain v. Ravinder Kalra

2004-08-18

M.M.KUMAR

body2004
Judgment M.M.Kumar, J. 1. This petition filed by landlord- petitioners under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973, (for brevity the Act) challenges the judgment and findings recorded by the learned Appellate Authority, Karnal in its judgment dated 12.12.1990, whereby it has reversed the findings recorded by the Rent Controller, Karnal in his judgment dated 9.6.1989. The Rent Controller, Karnal had found that the landlord-petitioners bona fide required the demised premises for their own use and occupation and the tenant-respondent was liable to be evicted as provided by Section 13(3)(a)(i) of the Act. 2. Brief facts of the case are that the landlord-petitioners filed an application being Case No. 53 of 1987 on 22.9.1987 under Section 13 of the Act against the tenant-respondent seeking his eviction from the flat portion of shop-cum-flat bearing No. B-897, situated in Nai Mandi, Novelty Road, Karnal. The landlord-petitioners alleged to have purchased the aforementioned shop-cum-flat vide registered sale deed dated 4.6.1983 from one Dr. Khan Chand. The tenant-respondent is a tenant under the landlord-petitioners on a payment of Rs. 200/- per month as rent besides the house tax. A number of ground for ejectment of the tenant-respondents were initially pleaded. However, the only ground which survives for consideration in this petition is concerning personal necessity of the landlord-petitioners as provided by Section 13(3)(a)(i) of the Act. The allegations in the ejectment petition were that the landlord-petitioner No. 2 Sushil Kumar Jain was of marriageable age and he did not have any residential house/building in the Urban area of Karnal. He further asserted that he had not vacated any such building without sufficient cause after commencement of the Act in 1949 in the said Urban Area. It is stated by the learned counsel for the petitioner that after the filing of the petition in 1987, the aforementioned Sushil Kumar Jain has got married and also have children from the wedlock. 3. The stand of the tenant-respondent before the Courts below was that in fact the necessity of the landlord-petitioners is not bona fide as the petitioners belonged to a Joint Hindu Family which comprised of his brothers and parents. It was further alleged that they have been living together at House No. 6, Club Lane, Karnal which consists of 6-7 big rooms which belonged to his father Tikka Ram. It was further alleged that they have been living together at House No. 6, Club Lane, Karnal which consists of 6-7 big rooms which belonged to his father Tikka Ram. It has been asserted that the house was sufficient for residence of the petitioners. The petition was opposed by pleading that the same has been filed with mala fide intention to increase the rent. 4. The Rent Controller recorded a categorical finding that premises in dispute is required bona fide for occupation and use by the landlord-petitioners and the tenant-respondent is liable to be evicted. The finding on issue No. 1 further is that there has been an oral partition between the sons of Tikka Ram, the father of the landlord-petitioners and an amount of Rs. 2,00,000/- was found to have fallen to the share of the landlord-petitioner No. 2 Sushil Kumar Jain who is brother of landlord-petitioner No. 1. Out of that amount he had purchased the demised shop-cum-flat for a sum of Rs. 50,000/- and have invested the remaining amount in business conducted in the shop. It is the flat on first floor of the shop which has been rented out to the tenant-respondent. 5. On appeal, the appellate authority relying on voters list Ex. R1 came to the conclusion that the landlord-petitioners have been living in the house of his father situated on House No. 6, Club Lane, Karnal. The evidence with regard to oral partition was completely discarded and the necessity of the landlord-petitioners was not held to be bona fide. The approach of the Appellate Authority is revealed by paras 11, 12 and 13 which reads as under:- "So only last ground of eviction i.e. bona fide requirement of petitioner No. 2 to occupy the premises in question for his residence remains to be considered. Petitioner No. 2 Sushil Kumar PW1 as well as his father Tikka Ram PW2 have stated that in the partition the house No. 6 in Club Lane, Karnal has fallen to the share of four sons of Tikka Ram who are elder to said Sushil Kumar and cash amount of Rs. 2,00,000/- fell to the share of Sushil Kumar in the partition and out of that amount shop-cum-flat No. B-896 was purchased vide sale deed dated 4.6.1987 for Rs. 60,000/- and remaining amount was invested in the business of pipe etc. 2,00,000/- fell to the share of Sushil Kumar in the partition and out of that amount shop-cum-flat No. B-896 was purchased vide sale deed dated 4.6.1987 for Rs. 60,000/- and remaining amount was invested in the business of pipe etc. being run in the ground floor of this building and its first floor is premises in question. Both of them have further stated that Sushil Kumar carries on business on the ground floor of the said shop-cum-flat jointly with petitioner No. 1 Surinder Kumar but he (Sushil Kumar) resides with his father Tikka Ram PW2 in their village Bal Rangram and daily goes there but he feels difficulty in going to village in the evening on a day when there is too much of cash. According to their further testimony marriage of Sushil Kumar is not taking place as he does not have house at Karnal for living. Bal Kishan PW2 has also stated that the shop of Sushil Kumar is near his house at Karnal and Sushil Kumar resides with his father in the village. All the three witnesses have also stated that Sushil Kumar does not own any house in the urban area of Karnal. On the basis of the said oral evidence only, learned Rent Controller, Karnal held that petitioner No. 2 bona fide requires the premises in question for his residence as he is of marriageable age and he did not place reliance on the testimony of the tenant when he deposed that petitioners are residing in big house No. 6, Club Lane, Karnal. The Rent Controller failed to consider documentary evidence in the form of voter list of the petitioners copy Ex. R1 at all. This vital omission on the part of the Rent Controller, has resulted into miscarriage of justice in this case. A bare perusal of the said voter list Ex.R1 reveals that in the month of December, 1986 when its publication commenced and in early 1987 when publication of the voter list was finalised, both the petitioners as well as wife of petitioner No. 1 are residing in the said house i.e. house No. 6, Club Lane, Karnal on or near G.T. Road, Karnal. This document falsifies the said oral testimony led by the landlords in the form of testimony of petitioner No. 2 as PW-1 and his father PW2 when they have deposed that in oral partition the said house fell to the share of four brothers elder to Sushil Kumar and he got Rs. 2,00,000/-. Falsity of their oral testimony about such partition and about the said house in Club Lane, Karnal falling to the share of four brothers elder to Sushil Kumar is further writ large from material contradictions even in the oral testimony of Sushil Kumar PW-1 and his father Tikka Ram PW2 in as much as according to the former he got Rs. 2,00,000/- in cash in the year 1982 in that partition whereas according to the latter the alleged partition took place in the year 1980 and Rs. 2,00,000/- was not in cash but it was the produce from the land measuring 20 or 22 killas he owns in the village and according to testimony of both the amount of Rs. 2,00,000/- was never given to Sushil Kumar petitioner No. 2. Further fact that vide sale deed dated 21:7.1983 also the shop-cum-flat was not purchased in the name of Sushil Kumar alone but in his name and in the name of his brother Surinder Kumar jointly. So from the mere fact as per their testimony as well as that of tenant as RW1 that business of brothers of the petitioners are separate it cannot be concluded much less safely, in face of documentary evidence in the form of voter list Ex.R1 that the said house in Club Lane Karnal fell to the share of four sons of Tikka Ram elder to Sushil Kumar. Even if any partition took place that has only separate three sons of Tikka Ram other than the petitioners. Both the petitioners as is clear from the aforementioned circumstances are still joint in mess, residence and business and they are still residing in the said house near Club Lane on G.T. Road, Karnal. As per own testimony of Sushil Kumar one of his elder brothers has his separate house in urban estate, Karnal. Both the petitioners as is clear from the aforementioned circumstances are still joint in mess, residence and business and they are still residing in the said house near Club Lane on G.T. Road, Karnal. As per own testimony of Sushil Kumar one of his elder brothers has his separate house in urban estate, Karnal. From the above position it is clearly established that both the petitioners are having in their occupation the said house in Club Lane, Karnal which as per own testimony of Tikka Ram was constructed by him meaning thereby that it belongs to him and there is nothing Wrong in the petitioners including Sushil Kumar living in the house owned by their father." 6. Mr. C.B. Goel, learned counsel for the landlord-petitioners has argued that the oral partition between the brothers has been proved by the statement made by Tikka Ram AW-2 and further the statement of the Sushil Kumar Jain, AW-1. The learned counsel has further pointed out that it is admitted position by the tenant-respondent who appeared as RW-1 that the landlord-petitioners have been transacting their business on the ground floor of the shop-cum-flat of the demised premises. It is also admitted position that the aforementioned flat was purchased by the landlord-petitioners on 4.6.1983 from one Dr. Khan Chand and the tenant-respondent was inducted as a tenant. The learned counsel has argued that at the time of purchase of the shop-cum-flat, the age of Sushil Kumar Jain, landlord-petitioner No. 2 was 18 years and he was unmarried. After the filing of the petition, the necessity has even increased further because he is now married and has children from the wedlock. The learned counsel has also argued that the tenant-respondent is not entitled to challenge the oral partition entered between the brothers and father of the landlord-petitioners. Therefore, the findings could not be reversed by the Appellate Authority without any lawful basis. He has also pointed out that the Appellate Authority has placed reliance only on Ex.R-1, the voters list which cannot be taken to have conclusively established that the landlord-petitioners are permanent residents of House No. 6, Club Lane, Karnal. There is no other evidence on record for the Appellate Authority to conclude that they are permanent residents of that place. 7. Mr. There is no other evidence on record for the Appellate Authority to conclude that they are permanent residents of that place. 7. Mr. M.S. Sidhu, learned counsel for the tenant-respondent has submitted that the Appellate Authority has rightly come to the conclusion on the basis of voters list Annexure R1 that the landlord-petitioners are having a common mess with his other brothers and are living at House No. 6, Club Lane, Karnal. 8. After hearing the learned counsel for the parties, I am of the opinion that the question which falls for consideration is "whether the voters list alone would constitute a basis for setting aside the findings by the Appellate Authority with regard to the bonafide personal necessity of the landlord-petitioner.?" 9. It is pertinent to make a reference to the consideration on the afore-mentioned issues by the learned Rent Controller. A perusal of paras 9, 11, 12 and 13 reveals the approach adopted by the Rent Controller. The relevant excerpts from the afore-mentioned paras are extracted below for a facility of reference: "The only ground pressed at the time of arguments seeking eviction of the respondent is personal necessity of the petitioners to occupy the premises in question. The petitioners have claimed that petitioner No. 2 is of marriageable age and he is not having any such residential house/building in the urban area concerned and has not vacated such building without sufficient cause after commencement of the 1949 Act in the said urban area. To prove this plea the petitioner No. 2 has appeared as PW1 and has stated that he is not married. He has further said that he requires the premises in question for his own occupation. He has stated that he goes to the village after closing the shop and sometimes when the payments are more, it becomes difficult to go to the village. He has lastly said that he has not got himself married as he has no residential accommodation in the city....." xx xx xx xx xxx xxx xx "Case of the respondent is that the petitioners do not require the premises in question for their use. According to him there is a house No. 6 situated in Club Lane, Karnal, owned by the parents of the petitioners which has sufficient big room and they are sufficient to accommodate the petitioners. According to him there is a house No. 6 situated in Club Lane, Karnal, owned by the parents of the petitioners which has sufficient big room and they are sufficient to accommodate the petitioners. The petitioner who has stated that he has no other house in the city of Karnal, was cross examined at length in his cross-examination. He has stated that his three brothers live in house No. 6, Club Market, Karnal. He has stated that his father effected partition among his sons and the house situated near Club Market fell in the share of his brothers and to his share an amount of Rs. 2,00,000/- came out of which he purchased the demised premises for Rs. 60,000/- and invested the remaining amount in the business conducted in the shop. The father of the petitioners has also been examined as PW2 who has also supported the case of the petitioners. Bal Kishan has been examined as PW3 and he has stated that Sushil Kumar lives with his father in the village and in his opinion he does not own any other property in Karnal. The respondent has appeared as RW1. He has stated that he has not seen the house situated near Club Market from inside and accommodation he has stated is his guess. He was suggested that except the petitioners, all other brothers have their independent business. The respondent has admitted this suggestion. He also would not deny the suggestion that Sushil Kumar is unmarried and he has no other residential house in Karnal. Thus, there is no denial on the part of the respondent to the allegation of the petitioners of having no other residential house in Karnal and the petitioner being unmarried has the necessity of the house in question for being married." xx xx xx xx xx xx "..the petitioners have claimed that when the premises was purchased, it was let out to the respondent. The petitioner No. 2 appearing on 13.6.1988 has stated his age to be 23 years. When the premises was let out in the year 1983, petitioner No. 2 was of the age of 18 years and that was not marriageable age. After passage of three years, the petitioner became 21 years old and he attained marriageable age. The petitioner No. 2 appearing on 13.6.1988 has stated his age to be 23 years. When the premises was let out in the year 1983, petitioner No. 2 was of the age of 18 years and that was not marriageable age. After passage of three years, the petitioner became 21 years old and he attained marriageable age. Thus, there is change regarding necessity of petitioner No. 2 since the date of letting out of the premises to the respondent......" In view of my aforesaid discussion, I am of the opinion that the petitioners have succeeded in proving that they bona-fide require the premises in question for their use and the respondent is liable to eviction from the demised premises on the ground of bona-fide personal necessity. The issue is, therefore, decided in favour of the petitioner." 10 The above mentioned view of the Rent Controller makes it abundantly clear that case of the tenant-respondent was that on account of the availability of a big house belonging to Tikka Ram, father of the landlord-petitioner, in which they have been living with their father, therefore, the accommodation in the demised flat was not required and there is no bona-fide necessity. The Appellate Authority has observed that no reference has been made to the voters list (Ex.R.1) by the Rent Controller which was prepared in December, 1986 and finalised in early 1987. However, the Rent Controller has categorically considered the case of the tenant-respondent who had pleaded that the landlord-petitioners have been living with his father, Tikka Ram in House No. 6 Club Market, Karnal. On the basis of the voters list alone, the Appellate Authority has come to the conclusion that once they were found to be living with their father in 1986-87 then there is sufficient evidence to conclude that the necessity of the landlord-petitioner is not bonafide. The learned Appellate Authority has also doubted oral partition by making reference to the contradictions between the statements of various witness produced by the landlord-petitioner. However, reliance is placed on voters list Ex.R1 to show that even the partition is doubtful. 11. The learned Appellate Authority has also doubted oral partition by making reference to the contradictions between the statements of various witness produced by the landlord-petitioner. However, reliance is placed on voters list Ex.R1 to show that even the partition is doubtful. 11. This Court ordinarily does not interfere with the findings of facts but there is no bar if the interference is necessitated on account of perversity, misreading or non reading of evidence as has been held by the Supreme Court in the case of Mohinder Singh V/s. Madan Lal Sharma, 2002(1) S.C.C. 676 and Resham Singh V/s. Raghbir Singh, (1999)7 S.C.C. 263. Keeping in view the norms of interference under Section 15(6) of the Act settled by the Supreme Court it becomes necessary to examine whether the Appellate Authority was justified in interfering with the findings of facts recorded by the Rent Controller by solely relying upon the voters list. The evidence based on voters list cannot be regarded as substantive piece of evidence and it cannot constitute a basis for reversing the findings of the trial Court especially when the same fact which is sought to be established by placing reliance on the voters list has been considered by the trial Court namely that the landlord-petitioners have been living in the house of their father Tikka Ram i.e. House No. 6 Club Lane, Karnal. Such a piece of evidence which merely supports the other evidence with regard to the residence of the landlord-petitioners and the afore-mentioned plea having been expressly examined by the Rent Controller can be supporting piece of evidence and would not constitute an omission of material evidence warranting interference by the Appellate Authority under Sections 15(3) and (4) of the Act. Therefore, interference in the findings of facts recorded by the learned Rent Controller concluding that there existed a ground of bona-fide personal necessity of the landlord-petitioner was not warranted as it is based on a supporting piece of evidence which has been considered by the Rent Controller. 12. The Rent Controller has found that shop-cum-flat was purchased by the landlord-petitioner in the year 1983 and both the brothers have been running their business in the shop situated on the ground floor and the demised flat is on the first floor. Landlord petitioner No. 2 was 18 years of age at the time of purchasing the shop-cum-flat. 12. The Rent Controller has found that shop-cum-flat was purchased by the landlord-petitioner in the year 1983 and both the brothers have been running their business in the shop situated on the ground floor and the demised flat is on the first floor. Landlord petitioner No. 2 was 18 years of age at the time of purchasing the shop-cum-flat. Both these facts have been admitted by the tenant-respondent. It has further been shown that besides these two brothers namely Surinder Kumar Jain and Sushil Kumar Jain they have three other brothers also. The oral partition is sufficiently proved by the afore-mentioned circumstances. Oral partition even if not presumed to be proved, the bona-fide necessity of the landlord-petitioner has to be considered in the light of the evidence showing the total accommodation available to the landlord-petitioners and their father. For total number of three married brothers and parents, one house comprising of six rooms certainly would not be sufficient. I have excluded one brother which according to the statement of Sushil Kumar, as noticed by the Appellate Authority in the last line of para 12, is living in his separate house in the Urban Estate, Karnal. It is well settled that a tenant cannot be a party to the determination of the requirement of the landlord. For the afore-mentioned proposition of law reliance can be placed on two judgments of the Supreme Court in the case of Sarla Ahuja V/s. United India Insurance Ltd., 1998(8) S.C.C. 119 and Shiv Sarup Gupta V/s. Mahesh Chand Gupta 1999(6) S.C.C. 222. In the later judgment it has also been held when on objective determination by the Court the need to occupy the demised premises could be said to be natural, real, sincere and honest then the need has to be held to be a bonafide. Therefore, I find that the interference in the findings of facts recorded by the Rent Controller regarding the bona-fide necessity of the landlord-petitioners was not warranted on the basis of the voters list alone because such a piece of evidence would not make any material difference for determination of the afore-mentioned issue. 13. I am further of the view that in any case the necessity of the landlord-petitioner has now grown even further as the landlord-respondent No. 2 is admittedly married and has children. 13. I am further of the view that in any case the necessity of the landlord-petitioner has now grown even further as the landlord-respondent No. 2 is admittedly married and has children. In any case the families of three married brothers alongwith parents cannot continue to live in one house as the accommodation cannot be considered sufficient. Therefore, the necessity of the landlord-petitioner is bona-fide even if he was found to be living with his father in 1986-87 as has been found by the Appellate Authority. 14. For the reasons stated above, this petition is allowed. The findings recorded by the Appellate Authority are set aside and that of the Rent Controller are restored. The tenant-respondent shall hand over the vacant possession of the demised premises to the landlord-petitioner within a period of three months.