Civil Revision No. 2123 of 2008 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 2123 of 2008 Date of decision : 21.1.2010 Dalip Singh ....Petitioner Versus Gurdev Singh ...Respondent **** CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. B.R.Mahajan, Advocate for the petitioner Mr. Ashok Jindal, Advocate for the respondent. S. D. ANAND, J. The petitioner herein is the landlord who was unsuccessful in obtaining a decree for ejectment of the respondent from the tenanted premises from the learned Rent Controller and also the learned Appellate Authority. Both the Courts negatived the plea raised by him that he required the premises for personal bonafide necessity. At the trial, the non-payment of rent was also raised as a plea for ejectment of the respondent. The averment made by the petitioner was that the rent was payable at the rate of Rs.700/- per month. Against it, the plea raised by the respondent- tenant was that the agreed rate of rent of Rs.450/- per month. Both the Courts recorded a concurrent finding that rate of rent payable for the tenanted premises was Rs.450/- per month. Civil Revision No. 2123 of 2008 -2- **** Insofar as the controversy about the rate of payable rent is concerned, the finding recorded by the learned Rent Controller and also the Appellate Authority deserves concurrence. Insofar as the evidence adduced by the petitioner is concerned, it consists of his testimony as AW-2 and testimony of AW-1 Tara Singh. Insofar as the AW-1 Tara Singh is concerned, he nowhere owned up the averment made by the petitioner that oral tenancy had come into being in his presence. The petitioner also did not name Tara Singh as a person who was present at the time of oral tenancy was agreed upon. In the course of the petition, there is no reference to any person who may have been present at the time of oral tenancy was agreed upon. However, in the course of the replication, there is a precise mention that oral tenancy had come into being in the presence of Sukhwinder Singh and Bhupinder Singh. Both the aforementioned person were not examined by the petitioner at the trial. Infact, Bhupinder Singh was examined by respondent as RW-2 who supported the version of the respondent only that the rent was agreed upon at the rate of Rs.450/- per month. In the light thereof, I have no reservations in upholding the finding recorded by both the Courts that rent for the tenanted premises was payable at the rate of Rs.450/- per month. Insofar as the other premise on the basis whereof ejectment was applied for (and granted) is concerned, both the Courts negatived petitioner's plea. In my considered view, that finding, concurrent though, deserves invalidation. The reasons Civil Revision No. 2123 of 2008 -3- **** therefore are as under:- Both the courts recorded a finding of want of bonafides on the part of the petitioner in the relevant behalf by pointing out that he is about 80 years of age and he had not been able to explain who will cultivate his agricultural holding, if he was to be allowed to run the business in the tenanted premises. In that context, the Appellate Authority observed as under:- “Non explanation must imply that his need is not bonafide and he has sufficient source of income from agricultural land and from the sale of milk of buffaloes which he has been keeping.” The finding recorded by both the Courts is oblivious of fact that there is categorical testimony of the respondent to the effect that he cultivates the land by tractor. There was no suggestion to him that his health status does not almit of energy adequate enough to look after agricultural holding and also to run the business. Though the petitioner-land lord, on his own showing, was about 79 years of age on the date he was examined at the trial and he also conceded having two buffaloes, he was equally categorical in asserting that he does not require the tenanted premises for his bonafide occupation. It is in his affidavit Ex. AW/2/A itself that he would like to run the business of fertilizers and cattle feed etc. in the premises. It would be relevant to notice here that the respondent-tenant had averred, in the course of his affidavit Ex. RW1/A, that he is running a business of cattle feed in the tenanted premises. It follows therefrom that this Civil Revision No. 2123 of 2008 -4- **** shop is ideally located for running cattle feed business. The respondent-tenant had averred that the landlord owns about 10 buffaloes. As against it, there was categorical statement made by the petitioner that he only owns two buffaloes. In the absence of any evidence to falsify the categorical averment made by the petitioner- landlord about the number of buffaloes he is maintaining, it is obvious that he cannot be expected to run dairy business with that number of buffaloes. Further, the respondent has not been able to adduce any substantive evidence on record to prove an averment in the pleadings that the petitioner also has another shop in the village. That averment, though reiterated in the course of affidavit Ex. RW1/A, has not been substantiated at the trial by adducing any independent corroborative evidence supportive thereof. 8-9 acres of land is not big an area which could be said to be adequate enough to keep the land owners through out the day and all along in the year particularly when there is evidence that the petitioner cultivates that land with tractor. The business of cattle feed and fertilizers is akin to agriculture and, infact, the tenanted premises are being utilised by the respondent in running that business only. The tenanted premises are, thus, ideally suited for running of the business aforementioned. In the absence of any evidence to the effect that petitioner has frail health or feeble or weak constitution, it cannot be assumed that he would not able to undertake agricultural job and run the business simultaneously. The agricultural holding owned by the petitioner and also the tenanted Civil Revision No. 2123 of 2008 -5- **** premises are located at Verka which cannot be described to be a big town from any angle. The petitioner could, thus, very manage both the avocations. The negativing of the plea of bonafide necessity by both the Courts was not in order. The implicit reliance placed in the context upon the advance age of landlord was inappropriate in the absence of any evidence to the effect (qua health status of the petitioner). In the light of foregoing discussion, petition shall stand allowed. The judgment rendered by the learned Rent Controller as well as learned Appellate Authority shall stand set aside. The respondent-tenant is ordered to be ejected from the tenanted premises. The respondent-tenant is given one month time from today to vacate the premises under reference. January 21, 2010 (S. D. ANAND) Pka JUDGE