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2010 DIGILAW 2194 (PNJ)

Kishan Singh v. Mohinder Singh

2010-08-02

VINOD K.SHARMA

body2010
JUDGMENT Vinod K. Sharma, J. (Oral).:- This is tenants’ revision petition against the order dated 14.2.1992, passed by the learned Rent Controller as affirmed by the learned Appellate Authority ordering eviction of the petitioners from the demised shop on the ground of building being unfit and unsafe. 2. The respondent sought eviction of Kishan Singh son of Malkiat Singh on the ground, that the premises rented out to the respondent was old construction and it has outlived its life and is in dilapidated condition, therefore, it has become unfit and unsafe for human habitation. 3. The case of the respondent/tenant was, that originally shop was taken at the rate of rent of Rs.7/- (Rupees seven only) per month in the year 1942 thereafter certain repairs had been effected by the landlord at different stages and admittedly, the rent was enhanced to Rs.40/- (Rupees forty only) per month. Plea in the written statement was, that the landlord wanted to enhance the rent and on refusal of the tenant, petition was filed mala fide though the premises are in good condition. 4. The learned Rent Controller on the basis of the pleadings of the parties framed the following issues:- 1. Whether the respondent is liable to ejectment on the ground that the premises in dispute has become unsafe and unfit for human habitation?OPA 2. Whether the respondent is liable to ejectment on the ground of non-payment of arrears of rent? OPA 3. Whether the petition is liable to be dismissed in view of the preliminary objection No.1? OPR 4. Relief. 5. Learned Rent Controller recorded the following finding to decide Issue No.1 in favour of the respondent/landlord:- “It is admitted fact that tenancy is now about 50 years old. According to the petitioner, the building is 80 years old. Whereas according to the respondent and Expert witness examined by him the building is 60 years old. Building Expert witness examined by both the parties have admitted that the building is that of ‘C’ type construction and age of such construction is only 50 years. It clearly shows that present building has outlived its age. As per statement of respondent Kishan Singh landlord effected repairs last time in the year 1968, when the rent was increased to Rs.30/-. It clearly shows that present building has outlived its age. As per statement of respondent Kishan Singh landlord effected repairs last time in the year 1968, when the rent was increased to Rs.30/-. If any repairs were made by landlord in the year 1968, then it was long back and there should be no visible sign of such repairs in the year 1990-91 when the building expert of the petitioner and the respondent visited the premises and found wooden battons and some portion of the roof repaired and replaced. From the perusal of the photographs Ex.A.1 and A.2, it will quietly clearly come out that the premises are in bad shape. 7. When the tenancy is 50 years of old and the building has outlived its life and is that of ‘C’ type construction, then the contention of the petitioner and his building expert to the effect that the premises are unfit and unsafe for human habitation has to be believed. Under these circumstances, I hold that the respondent is liable to ejectment on this ground. This issue is decided against the respondents and in favour of the petitioner. 6. The tenant preferred an appeal against the judgment passed by the learned Rent Controller. Appeal was also dismissed by recording as under:- “10. After considering the evidence on the file and law on the point, I hold that mere old age of the building is no ground to hold that building is unsafe and unfit and damage to the roof also can be repaired even by heavy repairs but in this case the building in dispute is not suffering from these two defects alone but in this case, the landlord was proved that building material used in this shop is of mud only and that is why the building is ‘C’ Class building and the building has not out-lived its life only but RW 4 Bakshish Singh had admitted in his cross-examination that the wall of the shop on the Northeastern side had gone out of plumb to the extent of one to two inches only. Therefore, this admission of the Expert of the tenants clearly proves that the Expert of the Landlord has not given exaggerated report and that is why he had given correct report that the cracks had been developed in the walls and Arches and the walls had gone out of plumb and as such condition of the wall only is a result of weak foundation and in the present circumstances shop can fall at any time. Therefore, detailed report of the Expert of the landlord cannot be ignored without any rhyme or reason but he had also given the report that thereof cannot bear the extra load which the tenants are placing on the roof and for repairs to avoid leakage on the front. Therefore, in the present circumstances, the trial court had rightly held that the shop has become unsafe and unfit for human habitation. Moreover, in the present case, photographs produced by the parties on the file also clear cut proof of the weak condition of the shop. Moreover in this case, the appellant had admitted in cross-examination that some battons of the roof had been changed and he also admitted that the pillar on the Northern side had slightly bent and he had stated that there is weight of roof on that pillar. That only supports the case of the landlord that existing structures cannot stay without even with the extensive repairs of the building as walls have gone out of plumb and that shows that the foundation had depressed and the pillar has been placed to give support to the crumbling walls and that roof could stand on it. Therefore, I affirm the finding of the trial court had appeal has no force and same is hereby dismissed with costs. The tenants are given two months time to vacate the premises failing which landlord can file execution application for eviction of the tenants from the premises in dispute. Memo of costs be prepared. File be consigned.” 7. Taswinder Singh, grand-son of the petitioner/tenant has appeared in the court and has been shown photographs produced by the learned counsel for the respondent, these have been admitted by the grandson of the petitioner/tenant, therefore, are exhibited as Ex.P.1 to Ex.P.5. 8. Photographs being subsequent event can be taken into consideration for disposing of this revision petition. 9. Taswinder Singh, grand-son of the petitioner/tenant has appeared in the court and has been shown photographs produced by the learned counsel for the respondent, these have been admitted by the grandson of the petitioner/tenant, therefore, are exhibited as Ex.P.1 to Ex.P.5. 8. Photographs being subsequent event can be taken into consideration for disposing of this revision petition. 9. Photographs show that the findings recorded by the learned Rent Controller as affirmed by the learned Appellate Authority do not call for any interference by this court in revisional jurisdiction. 10. It may also be noticed here that Taswinder Singh admitted in court that Malkiat Singh, his father who had inherited tenancy right does not live in India and shop is closed for the last 5 years. 11. In view of the finding recorded, there is no merit in the revision petition. Revision is accordingly dismissed. 12. However, keeping in view the fact that the tenant has gone to U.S.A., and will have to come back or authorize some other person to hand over the possession, he is granted five months’ time from today to vacate the premises, and hand over vacant possession to the petitioner. No costs. ------------