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2009 DIGILAW 382 (PNJ)

Sunil Kumar v. Madan Gopal Suri

2009-02-24

K.KANNAN

body2009
JUDGMENT K.Kannan, J.(Oral):- The landlord, who obtained order of ejectment under the Haryana Urban (Control of Rent and Eviction) Act, 1973 under Section 13 (3A) suffered reversal of the decision at the Appellate Authority. The revision petitioner before this Court is the landlord. 2. The eviction was sought on the grounds of arrears of rent payable by the tenant from 14.04.1983 and on the ground of personal necessity that the non-residential premises were required for establishing his own business. The basis for the objection was that the father had died on 31.05.1983 when he was still minor and the petition had been filed even before his attaining majority. The fact that the father was the landlord was never in dispute. The objection taken by the tenant in his written statement and at the trial was that the petitioner was not his landlord and that the petitioner’s age as stated in the petition was not correct and that he was minor even at the date when the petition was filed. The Rent Controller found that the petitioner had satisfied the requirement under Section 13(3A) in relation to the proof of age as adduced by him and further held that the property had been allotted to him in oral partition between his mother and other brothers. The Rent Controller also found the requirement of the landlord to be bona fide and ordered eviction. 3. The Appellate Authority reversed the finding on every one of the issues framed. The Appellate Authority found that the petitioner was not the landlord and by reference to the revenue entry that his mother was shown as the owner held that the petitioner had not established that he was a landlord within the definition of the Act to obtain eviction but on the application of sub-section 3A, the Court found that the petitioner was still a minor on the date of the petition and the school certificate was not sufficient to establish the date of birth. On the bona fides of the landlord to obtain eviction, the Court found that the petitioner was still very young and nothing has been placed on record to show that he had any knowledge of the business. On the bona fides of the landlord to obtain eviction, the Court found that the petitioner was still very young and nothing has been placed on record to show that he had any knowledge of the business. On his financial resources, the Appellate Authority found the evidence that the petitioner had placed Rs.15,000/- as deposit in bank, the amount which he got at the partition and it was hardly sufficient to start a business. 4. Learned counsel appearing for the landlord impugns every one of the lines of reasoning adopted by the Appellate Authority. On the finding relating to the entitlement of the petitioner to treat himself as a landlord, it is urged that there had been a registered partition under which the petition mentioned properties and other properties had been allotted to Kishan Lal’s second wife Manbhawati and her children while certain other properties have been allotted to yet another wife of Kishan Lal and her children. As regards the property that fell to Manbhawati and her children, the mother in the petition herself come to the Court and deposed as AW-7 that the petition mentioned premises had been allotted to his son in oral partition. Yet another son of Manbhawati, Veer Bhan was examined as PW-8, who also deposed that the petition mentioned premises had been allotted to Sunil Kumar, the petitioner. The Appellate Authority was swayed by the fact that the mutation in the revenue records had been made after the death of Kishan Lal in the name of Manbhawati and therefore, the petitioner cannot treat himself as landlord. This finding is wholly erroneous if we consider the proof that is necessary in a rent control proceeding is no more than an entitlement of a person to collect the rent from the tenant. The tenant who had admitted the father, Kishan Lal, to be his landlord cannot insist that his widow Manbhawati alone is the landlord even after she gave evidence in Court that it was her son, Sunil Kumar, the petitioner who was the owner of the property to whom the rent shall be tendered. The tenant cannot have a choice in the manner of attornment when the person to whom he attributes the status as landlord herself gives evidence that yet another person namely her own son shall be treated as landlord. The tenant cannot have a choice in the manner of attornment when the person to whom he attributes the status as landlord herself gives evidence that yet another person namely her own son shall be treated as landlord. The extensive reasoning about ownership given by the Appellate Authority does not accord with requirements of law under the rent control proceedings. The finding rendered by the Appellate Authority on the abovesaid aspect is, therefore, set aside. 5. If the petitioner is the landlord, the other point for consideration is whether he comes within the four corners of subsection 3-A of Section 13 to establish his requirement. The first point would, therefore, be the evidence regarding the age of the petitioner. The date of birth of the petitioner was sought to be established through the date as entered in the school where the petitioner studied and passed out. It records the age as 06.03.1967 and a Clerk from the school was examined as AW-1. The date of death of the father was 31.05.1983. The reference to the correctness of the age was spoken to by the mother who, as conceded even by the Appellate Authority, was the most competent person to speak about the date of birth of her son. She has given the evidence in February 1987 and she recalled in her evidence in cross-examination that her son would be 20 years by the time it was Holi. It accords with the evidence adduced that the petitioner was born on 06.03.1967. The correctness of the entry was, however, objected by the respondent by reference to the fact that in the Primary School where the petitioner had been admitted, the age had been shown differently and if the entry in that school record was to be taken, it would be seen that the petitioner was still a minor. There was also evidence that the Municipal records themselves did not enter any date of birth. It is not infrequent in villages that the age is not entered in the Municipal records as soon as the child is born. Indeed, the compulsory registration of births and deaths has been a far cry from reality and there have been exhortations through judgments of the Hon’ble Supreme Court and other Courts that the birth and death shall be always compulsorily registered. Indeed, the compulsory registration of births and deaths has been a far cry from reality and there have been exhortations through judgments of the Hon’ble Supreme Court and other Courts that the birth and death shall be always compulsorily registered. Be that as it may, we ought not to be detained on the issue of age more than how the evidence has been placed in this Court and if the birth as registered in the school record is affirmed by the most competent evidence namely of the mother, the controversy as raised shall be taken as conclusively found in support of such evidence. The finding of the Appellate Authority that the petitioner was still minor at the time of presentation of the petition is, in my view, erroneous and contrary to the evidence. I, accordingly set aside the finding so rendered by the Appellate Authority. 6. The requirement of the landlord has been rejected on the ground that the petitioner was a person of “underage” and he had not established that he had any experience in the nature of business. The reasoning is untenable, for a person who seeks eviction for establishing his karyana business is not expected to have any experience. It is not a technical avocation. It is a simple act of trading which any person acquires by an exposure to that even for a few days. There was evidence that he had been associated with his brothers who were carrying on business. If he had no other building and he had established himself to be landlord entitled to eviction on the ground mentioned by him and the statutory requirements of sub-section 3A of Section 13 are satisfied, the Appellate Authority could not have looked beyond to test the bona fides. 7. The Rent Controller had considered the issue from a correct perspective and had held that the landlord had established his bona fides. The reversal suffered at the Appellate Authority was under the circumstances unjustified. 8. The landlord is entitled to obtain eviction of the premises in the hands of the tenant. The decision of the Appellate Authority is set aside and the civil revision petition is allowed. Time for eviction is three months. There shall be, however, no orders as to costs. ------------