IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 3459 of 2010 (O&M) Date of decision: 17th August, 2010 Ramesh Kumar and others … Petitioners Versus Smt. Kamla Rani and others … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Baldev Raj Mahajan, Advocate for the petitioners. KANWALJIT SINGH AHLUWALIA, J. Mohinder Partap was a tenant in a part of the building, bearing Old No.284/5, East Mohan Nagar (New No.642/XV, Alibaksh Road, Krishna Gali, outside Ram Bagh Gate), Amritsar. The property in question was rented out to Mohinder Partap at a monthly rent of Rs.18/- by custodian of the evacuee property. This property was purchased by one Panna Lal in auction and a conveyance-deed to this effect was also executed on 2nd June, 1997. The petitioners herein are the legal heirs of Mohinder Partap and have inherited the tenancy. Similarly, the respondents herein are the legal heirs of Panna Lal and have succeeded to the ownership of the property by way of succession. Mr.Baldev Raj Mahajan, Advocate appearing for the petitioners, has challenged the findings recorded by both the Courts below, whereby eviction of the petitioners-tenants was caused. During the course of arguments, Mr.Mahajan has not only assailed the grounds on which ejectment order has been passed by the Rent Controller, Amritsar and affirmed by the appellate authority, but has also questioned the locus-standi of the respondents to file the eviction Civil Revision No.3459 of 2010 (O&M) petition, by terming them not being the owners and landlord of the property. Briefly stated, the respondents pleaded in the eviction petition that from the date of auction, i.e. 26th December, 1959, they became landlords of the property and Mohinder Partap, their tenant. Mohinder Partap died in the year 1983. Eviction of the tenants was sought on the following grounds: (a) That they have failed to pay or tender the rent in respect of the premises at the rate of Rs.18/- per month with effect from 26th November, 1959 till date; (b) The tenants had ceased to occupy the premises for a continuous period of more than four months without sufficient cause from the date of filing of the eviction petition, as the premises was lying unoccupied, locked and closed. The electricity and water meters were also disconnected; (c) The demised premises was required for own use and occupation of the landlords, for carrying on a business. The ground of personal necessity pleaded was that after the demise of Panna Lal, his two sons Ramesh Kumar and Ashok Kumar intended to install textile looms. It was stated that at the time of filing of the eviction petition, Ramesh Kumar was engaged in the business of small Karyana shop, whereas Ashok Kumar was running a canteen in Radhika Prints. (d) The premises in dispute was allotted to Mohinder Partap by the Rehabilitation Department for his residence, but Mohinder Partap had changed the user thereof for the industrial purposes, without the consent of the landlord by installing an industry for making cycle parts. 2 Civil Revision No.3459 of 2010 (O&M) The Rent Controller had drawn the following issues: 1. Whether the tender made by the respondent is invalid? OPA 2. Whether the respondents have ceased to occupy the demised premises? OPA 3. Whether the petitioners need the demised premises for their own use and occupation for carrying on their business? OPA 4. Whether the respondents have changed the user of the demised premises for industrial purpose which resulted into material impairment of the property without the consent of the petitioner? OPA 5. Whether there exists relationship of landlord and tenant between the petitioners and respondents? OPA 6. Relief. Thereafter, the tenants examined twelve witnesses. Regarding the relationship of landlord-tenant, the Rent Controller gave the following finding: “9. The petitioner has proved the sale certificate as Ex.AW7/1, vide which the property was allotted to the petitioner by the Tehsildar (Sales) and he has also proved on record Ex.AW7/2, which is a notice of Form-F and another notice given by the District Rent and Managing Officer, which is Ex.AW7/3 and the respondents are alleging that the number of the property mentioned in the petition and in the said sale certificate are different but the petitioner has examined AW-12 Ashok Kumar, who in his oral evidence has deposed that it is the same property, which was allotted to them by the Custodian Department and where the respondent is a tenant. He has further proved that the number of the property had been changing from time to time 3 Civil Revision No.3459 of 2010 (O&M) and at present, the number of this property is 284/V and new number given by the Municipal authorities is 642/XV and there is no contrary evidence produced by the respondent to prove that both the demised premises, i.e. one in which the respondent is a tenant and the other, which was allotted by the Custodian Department for petitioner, is a different property and thereafter, the petitioner has produced on record assessment register Ex.A/1, in which, it is mentioned that Panna Lal is the owner and some part of the property is in occupation of Mohinder Pal. It is proved on record that Panna Lal is the predecessor of the petitioner and Mohinder Pal is the predecessor of the respondent and it is also shown in the assessment register that Mohinder Pal is a tenant in the said property. … … …” The Rent Controller further held that from the house-tax assessment register Ex.A/1 and the site plan Ex.A/9 coupled with the admissions made by RW-2 Hardeep Singh in his cross-examination and the testimony of AW-12 Ramesh Kumar, it is proved on record that the petitioners were tenants under the respondents qua the property purchased vide sale certificate Ex.AW-7/1. The Rent Controller further held that the petitioners were bound to pay the rent to the landlords from 20th July, 1962 onwards, when they had become owners of the property. To say so, reliance was placed upon the testimony of Som Nath AW-2 and Ashok Kumar. However, the petitioners had tendered rent from the month of June 1997 upto the date along with cost and interest, as they had taken a specific stand that the custodian department had made no assignment of the rent in favour of the respondents-landlords. The Rent Controller held that the tenants have failed to prove that before the year 1962 they had paid rent to the custodian department. Mr.Mahajan has assailed the ground of personal necessity and has stated that Ramesh Kumar son of Panna Lal is carrying on the business of a small Karyana shop and Ashok Kumar, who used to run a 4 Civil Revision No.3459 of 2010 (O&M) canteen in Radhika Prints, is not doing any business after closure of Radhika Prints. Thus, both the brothers have no experience to run textile power looms and accordingly, the ground of personal necessity is not made out, rather the same has been pleaded only for the sake of causing eviction of the petitioners-tenants. This contention was also raised before the Rent Controller, who validly negated the same by saying that a landlord, before starting the business, was not supposed to prove his experience. But at the same time, the Rent Controller stated that since the custodian department had rented out the premises for residential purposes to the tenants, the landlords are not entitled to seek eviction of the residential property for commercial purposes. Therefore, the ground of personal necessity was not accepted by the Rent Controller. Having held that the residential property cannot be used for commercial purposes, the Rent Controller came to a conclusion that the tenants have changed the user of the property from residential to commercial. To come at this conclusion, besides the testimony of the witnesses, reliance was also placed upon an order Ex.A/H passed by the High Court, pertaining to the earlier round of litigation. Thus, it was held that the petitioners-tenants are liable to be evicted on the ground of change of user of the property from residential to commercial. The Rent Controller also repelled the contention raised by the petitioners-tenants that the respondents-landlords are guilty of taking contradictory stand. It was urged that on the one hand the tenants had been accused of changing user of the property from residential to commercial and on the other it was pleaded that the tenants had ceased to occupy the demised premises for the last more than four months. From the evidence adduced, there is enough material to hold that the property let-out for residential purposes was used for manufacturing cycle parts by a firm, under the name and style of ‘M/s 5 Civil Revision No.3459 of 2010 (O&M) Vijay Cycle Industry’. However, later-on this factory was shifted to East Mohan Nagar, Amritsar. To justify disconnection of the electricity meter, it is also the stand of the petitioners-tenants that the property was being used as a godown, as it has been urged that in the godown electricity was not required. The petitioners-tenants have projected that for a godown, water or electricity connection is not required. The respondents-landlords had examined Natha Singh Clerk of the Electricity Board as AW-10 and Shiv Darshan Junior Engineer as AW-11 to prove that the electricity meter, which was in the name of M/s Vijay Cycle Industry, was permanently disconnected on 24th August, 2001 on their request. The witness produced by the petitioners-tenants, i.e. Hardeep Singh RW-2 admitted that in the premises, Ravi Metal Industries had started functioning. The Rent Controller, from the testimony of witnesses produced by the landlord, came to a conclusion that the premises was lying locked, electricity meter was disconnected, no account books were produced and thus, the tenants had also ceased to occupy the premises in question. The above said findings have been affirmed by the appellate authority. The appellate authority relied upon the documentary evidence, where Mohinder Partap had admitted before the Settlement Commissioner that the property in question was converted into a commercial establishment to hold that there was a change of user. Furthermore, it relied upon the record of the Electricity Board Ex.A/A, wherein it was mentioned that the premises was locked on numerous dates. Counsel for the petitioners has failed to dislodge the concurrent findings of fact recorded by both the courts below. No new argument has been raised. Rather, it has been urged that the Courts below have failed to appreciate the evidence in its right perspective. The 6 Civil Revision No.3459 of 2010 (O&M) revisional Court has only to examine as to whether the approach adopted by both the courts below is perverse or not. After examining the judgments of both the courts below, this Court is of the opinion that the orders passed by the Courts below are neither perverse nor perfunctory. Thus, there is no merit in the present petition and the same is hereby dismissed in limine. [KANWALJIT SINGH AHLUWALIA] JUDGE August 17, 2010 rps 7