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2013 DIGILAW 705 (HP)

Deepak Sharma v. Rachana Yadav

2013-07-31

DEV DARSHAN SUD

body2013
JUDGMENT Dev Darshan Sud, J. This revision petition has been preferred by the tenant against the judgment of the two Courts below granting an order of possession to the respondents-landlords. The respondents instituted application under Section 14 of the H.P. Urban Rent Control Act, 1987 on the pleadings that they are the owners of the entire fourth floor (attic portion) of building bearing M.C. No. 73/6 Ram Bazar Shimla-1. The possession of the premises was sought by eviction of the petitioner herein on the ground that the premises in occupation of the tenant are bonafide required by first respondent-Smt. Rachan Yadav. She is presently residing in the tenanted accommodation of her husband at Annadale, Lower Kaithu, Shimla which according to her was not sufficient and suitable to her husband, who was ailing. It was pleaded that Sh. Sunil Yadav husband of the first respondent herein was not keeping good health since 1990 and suffering from Pulmonary Tuberculosis. He has been advised by the doctors to avoid exertion and avoid walking on steep slopes. Sh. Sunil Yadav husband of the first respondent is having his business in Stall No.8 situated just opposite the building from which eviction was sought and coming and going from Annadale to Ram Bazar everyday involves very strenuous walk on steep slopes which was not congenial to his health. The business premises occupied are very small which also did not permit him to take rest during the day for which purpose the present building was required where he could rest in case he was exhausted. It was pleaded that the demised premises building No. 73/6, Ram Bazar, Shimla comprises of five storeys out of which the ground floor consists of two shops, one of which is with tenant and the other is in occupation of respondent No.4 herein, who is carrying business therein. The first floor is in the tenancy of one Sh. Rajeshwar Lal for the last thirty years. The second is in the possession of respondent No.4 which has fallen to his share in family arrangement. This portion was occupied by his family consisting of his wife, one college going daughter and one school going son. The accommodation in the second floor does not meet the requirements of the fourth respondent herein. The second is in the possession of respondent No.4 which has fallen to his share in family arrangement. This portion was occupied by his family consisting of his wife, one college going daughter and one school going son. The accommodation in the second floor does not meet the requirements of the fourth respondent herein. The third floor of the building is in occupation of the second and third respondents herein which has fallen to their share along with the first respondent-landlady. The third respondent is an Advocate, who has been married and that the respondents have not vacated any premises after the commencement of the Act. 2. The petition was resisted by tenant-Deepak Sharma on a number of grounds. Three issues were settled on the pleadings. The first one was with respect to the bonafide requirement of the petitioners as pleaded; the second was that there is no relationship of landlord and tenant between petitioners No.1 to 3 and respondent. The third issue was whether the petition is bad for non-joinder of necessary parties. 3. Adverting to the evidence on record, PW3 Dr. Rajinder Mehta, has stated that Sh. Sunil Yadav son of Sh. Sadhu Ram was a Tuberculosis patient and he proved on record medical certificate Ext.PW3/A and identifies treatment Ext.PW3/B and Ext.PW3/C. PW4 Sh. Narain Chand Sharma states that he along with his brother Sh. Laxmi Dutt Sharma and Smt. Kartaro Devi are the owners of Sharma Cottage, Annadale and that the husband of respondent No.1 Sh. Sunil Yadav is his tenant. This accommodation consisted of one room, one kitchen, bathroom and one small combined verandah. He stated that the premises in possession of Smt. Rachna Yadav are dark and dingy which are not sufficient for her requirement. 4. PW5 Dr.Surinder Kashyap states that Sh. Sunil Yadav was suffering from Tuberculosis and proves on record medical treatment Ext. PW5/A to Ext.PW5/M. PW6 Sh. Tek Chand stated that he is the brother of Sh. Sudershana Sethi and Smt. Kavita Sethi and that there was a family settlement between the parties with respect to the building. PW7 Sh. Bhupinder Sethi stated that his mother Mohinder Kaur @ Pushpa Sethi was the owner of the building. 5. On the basis of evidence on record, the learned Rent Controller holds that the demised premises which are in occupation of the tenant are bonafide required by the respondents-landlord. PW7 Sh. Bhupinder Sethi stated that his mother Mohinder Kaur @ Pushpa Sethi was the owner of the building. 5. On the basis of evidence on record, the learned Rent Controller holds that the demised premises which are in occupation of the tenant are bonafide required by the respondents-landlord. On the second issue as to whether there was a relationship of landlord and tenant between the parties, it is specifically proved that demised premises were rented out to tenant-Deepak Sharma. These findings have been re-affirmed by the learned appellate Court. Rent note Ext.PX executed by the petitioner was sought to be disputed in appeal. The learned appellate Court has affirmed this note holding that the report of the hand writing expert does not discredit the note which was executed by the tenant-petitioner. Both the Courts below have concurrently found that the tenant Sh. Deepak Sharma petitioner herein when he appeared as RW1 states that the ration card is in his name and in the name of his wife and children with respect to the premises in dispute and nobody else resides there. In any event, he was very evasive about Annexure: PX which was executed by him and seemed to be avoiding answering direct questions. 6. Learned counsel submits that the findings of the two courts below are not in accordance with law and addressed some arguments on the question as to whether there was, in fact, relationship of landlord and tenant between the parties. In the face of Ext.PX, I cannot accept the submission of the learned counsel for the petitioner herein that he is not residing therein as it was the admission of the petitioner herein that the ration card was in his name and in the name of his wife and children and there was no evidence that the other so called legal heirs of deceased Sh. Mehar Chand Sharma were residing with him at the time of death of Sh. Mehar Chand Sharma. The deed conclusively establishes only the occupation of the petitioner, his wife and children. 7. This petition has been preferred under Section 115 of the Code of Civil Procedure though it has to be treated under Section 24 of the H.P. Rent Control Act but in any eventuality, the re-assessment of the evidence is only permissible in case of perversity. The deed conclusively establishes only the occupation of the petitioner, his wife and children. 7. This petition has been preferred under Section 115 of the Code of Civil Procedure though it has to be treated under Section 24 of the H.P. Rent Control Act but in any eventuality, the re-assessment of the evidence is only permissible in case of perversity. What I find from the record is that there is no perversity of assessment of the evidence and the conclusions arrived at by the learned Courts below are in accordance with the evidence on record. There is, thus, no merit in this petition, which is accordingly dismissed. All miscellaneous applications are also disposed of.