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2006 DIGILAW 3665 (PNJ)

Narinder Kumar Shiv Kumar Dhawan v. Sunita Chopra

2006-10-09

HEMANT GUPTA

body2006
Judgment Hemant Gupta, J. 1. Tenant is in revision aggrieved against the order of ejectment passed by the learned Appellate Authority on the ground that the demised premises i.e. shop bearing No. B-VIII/2320, Rupnagar, Tehsil and District Rupnagar, is required by the respondent for use and occupation of one of the landlords, Pardeep Chopra. 2. One Vishnu Dutt, who was owner of the shop in dispute, let out the same to the present petitioner vide rent note Exh. P-2 dated 30.4.1975. Vishnu Dutt died on 14.12.1992. The respondents are the wife and son of predeceased son of Vishnu Dutt, namely, Satish Kumar Chopra. Vishnu Dutt had another son, Sohan Lal Chopra. The respondent No. 1-Sunita Chopra and wife of Sohan Lal Chopra, are real sisters. Deceased Vishnu Dutt had executed a Will dated 27.3.1990 in favour of his son Sohan Lal Chopra and his grandsons, i.e. sons of Satish Kumar Chopra, namely Pardeep Chopra and Rajnish Chopra. It has also come on record that Rajnish Chopra has since died and his share in the property has been inherited by his mother, Sunita Chopra i.e. wife of Satish Kumar Chopra. 3. The respondents sought ejectment in respect of the premises in dispute alleging that there was an oral partition in respect of commercial property and in such partition, another shop bearing municipal No. 1616/1 had fallen to Sohan Lal Chopra. It has further been pleaded that Pardeep Chopra was earlier studying but as he has not been able to qualify 10+2 examination and, therefore, the premises are required to enable him to start his own business in the premises in dispute. 4. Learned Rent Controller dismissed the petition, inter alia, on the ground that the respondents have not come to Court with clean hands inasmuch as the oral partition is not complete partition of the joint property i.e. residential house, plot in urban estate and agricultural land have not been partitioned. As per the respondents, only two shops have been partitioned whereas the demised premises is bigger than the shop which is in possession of Sohan Lal Chopra where the parties are already doing the business of selling milk. Learned Rent Controller found that Pardeep Chopra sits with Sohan Lal Chopra in Shop No. 1616/1 and is engaged in the business of selling milk and, thus, found that the respondents have failed to prove their requirement. Learned Rent Controller found that Pardeep Chopra sits with Sohan Lal Chopra in Shop No. 1616/1 and is engaged in the business of selling milk and, thus, found that the respondents have failed to prove their requirement. Learned Appellate Authority found that apart from the oral evidence of partition, there is documentary evidence corroborating the partition i.e. the record of the Municipal Committee for the year 1998-99 and the order dated 3.4.1999 wherein the property was mutated in the name of Sunita Chopra i.e. wife of Satish Kumar Chopra. In the house tax assessment records for the years 1998-99 and 2000-2001, the property in dispute has been shown in the name of Sunita Chopra and similar position is reflected in the assessment registers, Exhs. RG, RH and RI. The Court found that Kumar the respondents have no source of income and that Pardeep Chopra had dropped his studies. Believing such statement, learned Appellate Authority passed an order ejectment on the ground that the premises are required for bona fide use and occupation of the respondents herein. 5. Learned counsel for the petitioner has vehemently argued before this Court that the finding recorded by the learned Appellate Authority that the tenant has no right to challenge the family settlement after relying upon the judgment of this Court in Gurmail Singh v. Raghbir Singh, 2005(4) RCR(Civil) 373 : 2005(1) PLR 855, is not correct. It is contended that the said case was, in fact, a case based upon the title recognized by consent decree and is, therefore, distinguishable. Learned counsel for the petitioner has relied upon the following judgments reported as :- (i) Devi Dass v. Mohan Lal, 1982(2) RCR(Rent) 246 (SC) : AIR 1982 Supreme Court 1213; (ii) Chetan Dass Gupta v. Smt. Sushila Devi, 1983(1) RCR 585; (iii) Vasdev Nath v. Jagdish Parshad Gupta and others, 1993(1) RLR 23; (iv) Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate, AIR 1997 SC 998 : 1997(1) R.C.R.(Civil) 513 : 1997(2) R.C.R.(Rent) 148 : 1997(1) R.C.R.(Rent) 98. (v) Dr. Avtar Singh v. Ascharaj Lal, 2002(2) RCR 201; and (vi) Gurdial Singh and others v. Raj Kumar Aneja and others, 2002(1) R.C.R.(Rent) 194 : 2002(2) Supreme Court Cases 445. to contend that the family settlement relied upon by the respondents can be challenged by the tenant in proceedings to seek eviction of the tenant. (v) Dr. Avtar Singh v. Ascharaj Lal, 2002(2) RCR 201; and (vi) Gurdial Singh and others v. Raj Kumar Aneja and others, 2002(1) R.C.R.(Rent) 194 : 2002(2) Supreme Court Cases 445. to contend that the family settlement relied upon by the respondents can be challenged by the tenant in proceedings to seek eviction of the tenant. Such family settlement relied upon by the respondents is a sham transaction propounded only with a view to seek eviction of the petitioner. It was contended that such family settlement is alleged to be oral and is partial in respect of shops alone whereas agricultural land, residential house and another commercial plot have not been partitioned. Thus, the respondents have not approached the Court with clean hands. 6 However, I am unable to accept the argument raised by the learned counsel for the petitioner. 7. The oral partition is alleged to have been arrived at in the year 1998 and soon thereafter the same has been given effect to in the municipal records i.e. for the assessment years 1998-99 and 2000-01. In fact, receipts, Annexures R-1 to R-6 are the rent receipts for the payment of rent for the months of August, 1999 to July, 2000 produced by the tenant. Such rent has been paid by the petitioner to Smt. Sunita Chopra even prior to the filing of the ejectment petition on 18.9.2000. Still further, Sohan Lal Chopra had been examined as PW-4, who has also supported oral partition. Thus, by virtue of the oral evidence of the co-owners, the municipal record and the payment of rent by the petitioner after the said partition leaves no manner of doubt that the family partition of the commercial property was carried out and given effect to by the parties. 8. The finding recorded by the learned Rent Controller that since agricultural land, residential property and the plot have not been partitioned, therefore, the partition of the commercial property is sham is, in fact, based upon surmises and conjectures alone. There is no requirement that all the properties owned by the parties jointly have to be partitioned at one and the same time. The argument raised by the learned counsel for the petitioner that the family settlement is oral and partial is of no significance. There is no requirement that all the properties owned by the parties jointly have to be partitioned at one and the same time. The argument raised by the learned counsel for the petitioner that the family settlement is oral and partial is of no significance. Since the family settlement is alleged to be between the members of the same family, therefore, such family settlement need not be reduced into writing. No doubt, the parties are owner of some other properties such as residential house and agricultural land. But Late Vishnu Dutt was owner of only two shops. In one shop i.e. Shop No. 1616/1, one of the sons of Vishnu Dutt is carrying on the business of selling milk whereas the other shop is in possession of the present petitioner. Now, after the death of her husband, Sunita Chopra along with her son has sought the ejectment of the tenant to establish his son in business. Such requirement cannot be said to be lacking in any bona fide. It business jointly with Sohan Lal Chopra. It was pointed out that since wife of Sohan Lal Chopra and Sunita Chopra are real sisters, therefore, it is natural for Pardeep Chopra to carry on business with his uncle. I do not find any substance in the said argument. Even if Pardeep Chopra is carrying on business along with his uncle, that will not be a ground on the basis of which it can be said that an adult son must carry on business as a subordinate along with his uncle and he has no right to establish a separate business and to grow in life independently. 9. Still further, another argument has been raised that another commercial plot in the same urban area is available with the respondents and, therefore, the petitioners cannot be ordered to be evicted. It has come on record that the said plot is a vacant plot. As such, the same cannot be equated with the constructed property in busy market from which the eviction of the tenant is sought. 10. Lastly, learned counsel for the petitioner has vehemently argued that the learned Rent Controller has taken into consideration the comparative hardship of the tenant vis-a-vis the requirement of the landlord whereas the said aspect has not been considered at all by the learned Appellate Authority. 10. Lastly, learned counsel for the petitioner has vehemently argued that the learned Rent Controller has taken into consideration the comparative hardship of the tenant vis-a-vis the requirement of the landlord whereas the said aspect has not been considered at all by the learned Appellate Authority. The comparative hardship is not required to be considered under any provision of the Act. The Act contemplates the eviction of the tenant on proof of "bona fide requirement." The respondents herein have led evidence to the effect that the premises in dispute are required for their bona fide use and occupation. As a landlord, the respondents have a right to seek ejectment of the tenant on satisfaction of bona fade requirement. It is for the tenant to find out alternative accommodation for carrying on its business in accordance with law. However, he cannot compel the landlord that he cannot get premises vacated because the tenant is unable to find out another accommodation. 11. In view of the above discussion, I do not find any material irregularity or illegality in the finding recorded which may warrant interference of this Court in exercise of its revisional jurisdiction. Consequently, the revision petition is dismissed. 12. However, the petitioner is granted three months time to vacate the demised premises provided the petitioner deposits the entire arrears of rent within one month from today and also files an undertaking by way of affidavit before the learned Rent Controller to hand over physical vacant possession of the premises to the respondents herein on the expiry of the aforesaid period. The petitioner shall also file an undertaking to pay rent for the period he remains in possession. Such undertakings be filed within one month from today.