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2009 DIGILAW 1532 (PNJ)

Baghel Singh v. Kotu Kumar Phull

2009-08-28

SURYA KANT

body2009
Judgment Surya Kant, J. 1. This order shall dispose of Civil Revision Nos.7201 of 2008 and 7202 of 2008, as the eviction orders challenged in both these revision petitions have been passed under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 at the instance of the same landlord though against two different tenants and common questions of law and facts are involved in both the cases. 2. For brevity, the facts are being taken from Civil Revision No. 7201 of 2008. 3. The respondent-landlord filed the present eviction petition under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (for short "the Act") for ejectment of the petitioner from the portion within the letters ABCDEF in the attached site plan, from the residential house situated in Ward No. 3, Mohalla Ralhan, Dasuya, District Hoshiarpur. The respondent averred that he was born and got education upto the higher secondary standard at Dasuya and after doing his B.Sc. in Engineering, he went to U.S.A. and served in the United States Army for over 28 years till he retired from the rank of Colonel on 30.4.2003. The respondent further averred that he is a citizen of United States of America and is, thus, Non Resident Indian in terms of Section 2 (dd) of the Act and being a "specified landlord"-cum-owner of the demised premises, he is entitled to seek eviction of the petitioner-tenant summarily under Section 18-A of the Act. 4. In order to prove his ownership qua the demised premises, the respondent explained that the house in question was jointly owned by Smt. Ram Piyari daughter of Sh. Lachman Dass Phull and the respondent; Smt. Ram Piyari was respondents fathers real sister who used to treat him like her own son and she died on 31.8.2002 leaving behind the respondent as her sole legal heir on the basis of a registered Will dated 16.1.1975. In other words, the respondent averred that he was already a co-owner of the demised premises alongwith Smt. Ram Piyari and became its sole owner after the death of Ram Piyari on 31.8.2002. 5. On receipt of notice as per Schedule-II of the Act, the petitioner-tenant sought and was granted leave to contest the ejectment petition by the Rent Controller, Dasuya vide its order dated 25.2.2004. 5. On receipt of notice as per Schedule-II of the Act, the petitioner-tenant sought and was granted leave to contest the ejectment petition by the Rent Controller, Dasuya vide its order dated 25.2.2004. The petitioner-tenant thereafter filed his written statement denying the joint ownership of the respondent and Smt. Ram Piyari as according to him, the previous Will dated 15.7.1958 produced by the petitioner refers to different houses owned by different persons. The petitioner-tenant also disputed the Will dated 16.1.1975 purported to have been executed by Smt. Ram Piyari bequeathing her share in the subject-house in favour of the respondent. It was denied that the respondent has any personal necessity for the house in dispute as he owns a residential house in Delhi where his other relations and family members are also settled and that he wants the tenants to be evicted to sell the entire property. The petitioner-tenant also disputed the site plan and claimed that he is residing in a different house. 6. The respondent, on the other hand, reiterated and further explained that he had been a co-owner of the demised premises since the death of his grand- father in the year 1959 as his grand-father Lala Lachman Dass Phull Willed a share of the house in favour of the respondent vide Will dated 15.7.1958. Thereafter, another co-owner of the house, namely, Sh. Narender Nath Phull sold his share in the house in favour of the respondent-landlord vide registered sale deed dated 4.8.1970. Later on, the remaining half share of the house owned by Smt. Ram Piyari also stood inherited by the respondent on the basis of the Will dated 16.1.1975, executed by Smt. Ram Piyari and in this manner, he has become absolute sole owner of the house in question. On the basis of the pleadings, the parties went on trial on the following issues :- "1) Whether the petitioner is entitled to get the demised property vacated from the respondent on account of his bona fide need and occupation ? OPP. 2) Whether Ram Piyari executed a valid Will in favour of the petitioner on 15.7.1958 and thus there exists relationship of landlord and tenant between the parties ? OPA. 3) Whether the petitioner is a Non Resident Indian and thus entitled to get the property in dispute vacated on account of his bona fide need as prayed for ? OPA. 4) Relief." 7. OPA. 3) Whether the petitioner is a Non Resident Indian and thus entitled to get the property in dispute vacated on account of his bona fide need as prayed for ? OPA. 4) Relief." 7. In order to prove his case, the respondent-"specified landlord" has produced one Gurdeep Singh, Deed Writer (PW-1), Sh. V.K. Sharma, Advocate (PW2), Harjinder Singh Sandhu, Draftsman (PW3), Dalip Rai Behl, Advocate (PW5), Janak Raj (PW6) and himself entered into the witness box as (PW4) and also produced various documents, a reference to which is being made in the later part of this order. 8. The petitioner-tenant, on the other hand, examined his attorney Satinder Kaur as RW-1 and one Sarwan Kumar as RW-2. His evidence was closed thereafter. 9. Before adverting to the evidence on record, a brief reference to the provisions of the Act may be made. 10. The East Punjab Urban Rent Restriction Act, 1949 has been amended by the State of Punjab by way of East Punjab Urban Rent Restriction (Amendment) Act (9) of 2001, whereby a summary procedure for ejectment of tenants by the NRI- landlords has been incorporated. Section 2 (dd) of the Act defines "Non- Resident-Indian" as follows :- "2 (dd) "Non-resident Indian" means a person of Indian origin, who is either permanently or temporarily settled outside India in either case - (a) for or on taking up employment outside India; or (b) for carrying on a business or vocation outside India; or (c) for any other purpose, in such circumstances, as would indicate his intention to stay outside India for a uncertain period." 11. Section 13-B enables a "Non Resident Indian/Specified Landlord", who has returned or intends to return to India, to recover immediate possession of a residential/scheduled or non-residential building occupied by his tenant, provided that such an NRI is owner of such building for a period of atleast 5 years before filing of the eviction petition. Section 13-B enables a "Non Resident Indian/Specified Landlord", who has returned or intends to return to India, to recover immediate possession of a residential/scheduled or non-residential building occupied by his tenant, provided that such an NRI is owner of such building for a period of atleast 5 years before filing of the eviction petition. Section 13-B reads as follows :- "13-B. Right to recover immediate possession of residential building or scheduled building and/or nonresidential building to accrue to Non-resident Indian :- (1) Where an owner is a Non-Resident Indian and returns to Indian and the residential building or scheduled building and/or non-residential building, as the case may be, let out by him or her, is required for his or her use, or for the use of any one ordinarily living with an dependent on him or her, he or she, may apply to the Controller for immediate possession of such building or buildings, as the case may be : Provided that a right to apply in respect of such a building under this Section, shall be available to only after a period of five years from the date of becoming the owner of such a building and shall be available only once during the life time of such an owner. (2) Where the owner referred to in sub-section (1) has let out more than one residential building or scheduled building and/or non-resident building, it shall be open to him or her to make an application under that sub-section in respect of only one residential building or one scheduled building and/or one non-residential building, each chosen by him or her. (3) Where an owner recovers possession of a building under this section, he or she shall not transfer it through sale or any other means or let it out before the expiry of a period of five years from the date of taking possession of the said building, failing which, the evicted tenant may apply to the Controller for an order directing that he shall be restored the possession of the said building and the Controller shall make an order accordingly." 12. Section 18-A of the Act provides special procedure for disposal of an eviction petition filed under Section 13-B of the Act and the relevant part thereof reads as follows : "18-A. Special procedure for disposal of applications under (Section 13-A or Section 13-B) - (1) Every application under (Section 13-A or Section 13-B) shall be dealt with in accordance with the procedure specified in this Section. (2) After an application under Section 13-A or 13-B is received, the Controller shall issue summons for service on the tenant in the form specified in Schedule-II. (3) (a) the summons issued under sub-section (2) shall be served on the tenant as far as may be in accordance with the provisions of Order V of the First Schedule of the Code of Civil Procedure, 1908. The Controller shall in addition direct that a copy of the summons be also simultaneously sent by registered post acknowledgment due addressed to the tenant or his agent empowered to accept the service at the place where the tenant or his agent actually and voluntarily resides or carries on business or personally works for gain and that another copy of the summons be affixed at some conspicuous part of the building in respect whereof the application under Section 13-A or Section 13-B has been made. (b) When an acknowledgment purporting to be signed by the tenant or his agent is received by the Controller or the registered article containing the summons is received back with an endorsement purporting to have been made by a postal employee to the effect that the tenant or his agent has refused to take delivery of the registered article and an endorsement is made by a process server to the effect that a copy of the summons has been affixed as directed by the Controller on a conspicuous part of building and the Controller after such enquiry as he deems fit, is satisfied about the correctness of the endorsement, he may declare that there has been a valid service of the summons on the tenant. (4) The tenant on whom the service of summons has been declared to have been validly made under sub-section (3), shall have no right to contest the prayer for eviction from the residential building or scheduled building and/or non- residential building, as the case may be, unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided, and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the specified landlord or, as the case may be, the widow, widower, child, grandchild or the widowed daughter-in-law of such specified landlord or the owner, who is a non-resident Indian in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction of the tenant........" 13. The above reproduced legislative scheme establishes beyond any pale of doubt that a "NRI-"Specified-Landlord" is entitled to seek eviction of his tenant summarily from the residential/scheduled/ commercial building if he requires such building for his own use and occupation or for his family, provided that the building is owned by him atleast for a period of 5 years prior to filing of the eviction petition. 14. Since the respondent in the instant case sought eviction of the petitioner under Section 13-B of the Act claiming himself to be a "Specified-Landlord", he was also required to prove that (i) he is owner of the demised premises for a period not less than 5 years before the filing of the eviction petition; (ii) he is a Non Resident Indian within the meaning of Section 2 (dd) of the Act; and (iii) he requires the premises for his own use and occupation or for his family. 15. In order to prove that the demised premises is owned by him, the respondent-landlord has brought on record plethora of documentary evidence including the Will dated 16.1.1975 (Ex.P-3) whereby Smt. Ram Piyari bequeathed half of her share in the demised premises in his favour. He has also produced the death certificate (Ex.P-4) of Smt. Ram Piyari who died on 31.8.2002. In order to prove that the demised premises is owned by him, the respondent-landlord has brought on record plethora of documentary evidence including the Will dated 16.1.1975 (Ex.P-3) whereby Smt. Ram Piyari bequeathed half of her share in the demised premises in his favour. He has also produced the death certificate (Ex.P-4) of Smt. Ram Piyari who died on 31.8.2002. The respondent has also produced the record from the office of Sub-Registrar to prove the execution of Will dated 16.1.1975 (Ex.P-5), besides producing the sale deed dated 4.8.1970 (Ex.P-6), whereby another co-sharer/co-owner, namely, Narinder Nath Phull had sold his share in the premises in favour of the respondent. The respondent has also proved on record the site plan (Ex.P6/B) in order to co-relate the title documents with the demised premises occupied by the petitioner and other tenants. Not only this, the respondent has further proved on record the Will dated 15.7.1958 (Ex.P-7), whereby his grand-father Lal Lachman Dass Phull had Willed a share of the demised premises in favour of the respondent. The General Power of Attorney dated 29.8.1978 (Ex.P-8), whereby the respondent had authorized his fathers sister Smt. Ram Piyari to let out the premises on his behalf and whereupon she inducted the petitioner as a tenant, has also been got exhibited. 16. Similarly, the respondent has brought on record his own birth certificate (Ex.P-10), followed by the certificate (Ex.P-11) of his having passed the higher secondary examination from D.A.V. Higher Secondary School, Dasuya, in March, 1962, in order to prove that he was born in Dasuya, District Hoshiarpur on 5.7.1947 and was brought up there and is, thus, of Indian origin. 17. Likewise, the respondent has proved on record the certificate of citizenship of the United States of America (Ex.P-13) as well as the certificate of his retirement from the Armed Forces of the United States of America (Ex.P-14). The respondent has further proved on record the passport issued by the United States of America (Ex.P-17 & P-18). In addition, the respondent has also brought on record a copy of the registration of his Overseas Citizen of India issued by the Consulate General of India at New York (Ex.P-19), to establish beyond any doubt that he is a Non-Resident-Indian. 18. In addition, the respondent has also brought on record a copy of the registration of his Overseas Citizen of India issued by the Consulate General of India at New York (Ex.P-19), to establish beyond any doubt that he is a Non-Resident-Indian. 18. Relying upon the aforestated documentary evidence, duly supported by the oral version of the respondent-landlord and other witnesses, the Rent Controller has passed an eviction order against the petitioner, giving rise to this revision petition. 19. I have heard learned counsel for the parties at some length, perused the impugned order as well as the original records of the Rent Controller. 20. Three fold contentions have been raised on behalf of the petitioner- tenant. Firstly, it is urged that the Will dated 16.1.1975, executed by Smt. Ram Piyari became operative after her death on 31.8.2002 and, thus, the respondent become owner of the property on 31.8.2002 only, whereas, the eviction petition has been filed by him in the year 2003 i.e. beyond the expiry of the minimum statutory period of 5 years provided under Section 13-B of the Act. Secondly, it is argued that the respondent-landlord owns a big house in Delhi which was also owned by Smt. Ram Piyari and, thus, the demised premises is not required by him for his own use and occupation or for his family. Thirdly, the respondent has led no evidence to prove that he is a NRI and that he has sufficient accommodation of 8-9 rooms in his possession in the same premises. 21. Having given my thoughtful consideration to the rival contentions, I do not find any merit in this revision petition. It stands established that the respondent-landlord became a co-owner in the demised premises way back in the year 1959 when his grand-father expired and who had already Willed a share of the demised premises in favour of the respondent vide Will dated 15.7.1958. The respondent further improved his status as a co-owner when he purchased share of Narinder Nath Phull in the demised premises vide sale deed dated 4.8.1970. The respondent further improved his status as a co-owner when he purchased share of Narinder Nath Phull in the demised premises vide sale deed dated 4.8.1970. Thus, even in the absence of the Will dated 16.1.1975 executed by Smt. Ram Piari bequeathing the remaining portion of the demised premises in his favour, the respondent was a co-owner for a period of more than 5 years prior to the filing of the eviction petition and was fully competent to seek the petitioners eviction under Section 13-B of the Act in that capacity, as ruled by the Honble Supreme Court in "Baldev Singh Bajwa v. Monish Saini, 2005(4) RCR(Civil) 492 : 2005(2) RCR(Rent) 470 : (2005)12 SCC 778", that "even if the landlord was not the sole owner of the property in dispute, there is no bar for him to take up the proceedings under Section 13-B of the Act." 22. As regards the second plea that the respondent owns a house in Delhi or that he does not require the demised premises for his own use and occupation or that sufficient accommodation comprising 8-9 rooms is already in his possession in the demised premises, the contention appears to be wholly misconceived and misplaced. The respondent has spent better half of his life in U.S.A. Going by his standards of living, there is nothing unreasonable if he wants to demolish the old premises and reconstruct the house fully equipped with the modern basic amenities. The site plan on record suggests that there is only one toilet in the entire house located outside. The premises is admittedly an old one existing even before the year 1958. The fact that the respondent has returned to India is not in dispute though his children and other family members might still be living in U.S.A. In the later years of his life, the respondents desire to spend time at a place where he was born and brought up, is quite natural. It will be too far fetched to assume at this stage that he has sought eviction of the petitioner in order to sell the demised premises at a better price. In any case, the Act has provided safe guard against such like mis-use of the eviction order as it prohibits the landlord from disposing of the vacated property for a period of 5 years. In any case, the Act has provided safe guard against such like mis-use of the eviction order as it prohibits the landlord from disposing of the vacated property for a period of 5 years. Though it was pointed out during the course of the hearing that the house in Delhi is also not in possession of the respondent-landlord and some litigation pertaining thereto is pending in the Courts at Delhi, yet I am of the considered view that the availability of house in Delhi has no bearing on the requirement of the respondent-landlord to spend his retired life in the house where he was born and brought up. The remedy added provisions of the Act duly recognize such a right of a NRI/Specified-Landlord. For the reasons aforestated, I do not find any merit in both these revision petitions which are dismissed with costs of Rs. 2500/- each. Petitions dismissed.