CIVIL REVISON NO.3841 OF 2007 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MAY 01, 2008 Paramjit Singh .....Petitioner VERSUS Kusum Lata ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Arihant Jain, Advocate, for the petitioner. Mr. K. K. Jain, Advocate for Mr. Parminder Singh, Advocate, for the respondent. **** RANJIT SINGH, J. The tenant-petitioner is ordered to be evicted from the shop at Patiala. He failed in his appeal filed before the Appellate Authority, Patiala and has now filed this revision petition impugning the orders directing his eviction. Kusum Lata filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act (for short, “the Act”) against the petitioner for his ejectment from the shop as described in the head note of the petition. The landlord sought eviction of the petitioner mainly on two grounds i.e. arrears of rent and that the shop was CIVIL REVISON NO.3841 OF 2007 :{ 2 }: needed for personal use. As per the pleadings, two shops had fallen to the share of Vijay Kumar in the family partition and lateron, decree was also passed on 28.7.1982 in this regard. Vijay Kumar had let out these shops to Paramjit Singh, petitioner and another shop to one Amarjit Singh. Agreed rate of rent as per the rent note executed was Rs.300/-. Later a petition under Section 19 of the Act was filed, where a compromise was effected between Paramjit Singh and Vijay Kumar and while settling the matter, the rent as agreed was settled as Rs.445/- per month. It is further pleaded that in a rent note dated 26.7.1990, it was stipulated that rent shall increase to the extent of 25% of the existing rent every five years. It is then pleaded that shop adjoining the shop with Amarjit had fallen to the share of respondent, Kusum Lata, in partition, which has taken place between Vijay Kumar and the respondent, who are husband and wife respectively. A memorandum of partition was also executed on 2.8.1999, mentioning that the shop on rent with the petitioner has fallen to the exclusive share of respondent, Kusum Lata. To substantiate her need of personal use, respondent Kusum Lata pleaded that her husband was Head Constable in the Railways Police and remained sick and so to augment her income, she had decided to open a boutique in the shop and as such, she needed the same for her own use and occupation. In his written statement filed, the petitioner contested the petition as well as the need as projected. He, however, admitted the execution of the rent note but stated that the rent settled was Rs.300/- per month. He has also conceded the increase of rent to CIVIL REVISON NO.3841 OF 2007 :{ 3 }: Rs.445/- per month but denied the stipulation that there was any clause for increase of rent to the extent of 25% of the existing rate of rent after every 5 years. The petitioner had also denied the family partition as pleaded. In fact, he also contested the ownership of Vijay Kumar to say that he was not competent to enter into the family partition. He admitted that the rent was being received by Kusum Lata but stated that she was doing so on behalf of her husband, Vijay Kumar. The parties went to trial on the relevant issues. Rent Controller decided the issues in favour of the respondent, leading to the eviction of the petitioner. The Appellate Authority has upheld the order of the Rent Controller. Mr.Arihant Jain, appearing for the petitioner, would first contend that the family partition, as pleaded, is a malafide. When questioned if the tenant can challenge the family partition in a proceedings under the Act, the counsel conceded that though it may not be generally permissible but tenant can always plead and prove that the partition is malafide and a sham transaction only for the purpose of seeking eviction. By referring to the evidence that the respondent wife was still residing with the husband, the counsel contends that partition was malafide and as such, respondent would not have any locus to file this eviction petition. He would further contend that wife could not have got a share in partition as she is not the co-owner. The counsel also points out that a shop, which was rented out to Amarjit Singh was sold to him and this would indicate that aim is to ensure increase in the rent. CIVIL REVISON NO.3841 OF 2007 :{ 4 }: The Rent Controller as well as the Appellate Authority have appreciated the evidence in this regard and come to the conclusion that the petitioner did not lead any cogent evidence to show that the family partition between Vijay Kumar and Kusum Lata is null and void. It is rightly observed by the Courts that Vijay Kumar has not challenged the title of Kusum Lata. The petitioner-tenant could not have validly challenged the partition but at the most could lead evidence to show that the family partition is sham or malafide. The petitioner could not lead much evidence to prove this aspect of assertion made by him. Rather, the respondent proved memorandum of family partition, which is dated 2.8.1999. Even reference has been made to the rent note, on the back of which mention was made about the family partition dated 1.4.1999, in which it was written that the shop under tenancy with Paramjit will now be owned by Kusum Lata. This writing was not only signed by Kusum Lata, Vijay Kumar and Jeevan Ram Goyal as witnesses but also by Paramjit Singh, petitioner. An expert was examined to prove the signatures of Paramjit Singh on the rent note, who gave evidence that the disputed signatures and the admitted signatures of Paramjit Singh were of the same person. Thus, the family partition, which is alleged to be malafide, in my view, was sufficiently established. The plea that it is/was a sham transaction can not be accepted. Not much submissions were made in regard to the personal necessity projected by the respondent. The main concentration of the counsel for the petitioner was on the partition as such and it being malafide just to seek eviction. Otherwise, the CIVIL REVISON NO.3841 OF 2007 :{ 5 }: respondent was able to establish her need to be bonafide for opening a boutique. The plea that another shop was sold to Amarjit Singh would also not make much difference in the case. It is submitted on behalf of the respondent that out of the two shops owned by her, she sold one as she was unable to get it vacated from the tenant. She has decided to start her own business in the second shop. The need projected by the respondent is also required to be appreciated from the angle of the landlord and nothing much was stated by the petitioner to rebut the need as projected. The judgment relied upon by counsel for the petitioner in the case of Rajinder Kumar Khanna and others Vs. R.K.Bajaj & Others, 1994 (2) Civil Court Cases 508 is only to the effect that partition can be challenged on the ground that the same was malafide, which the petitioner did but could not succeed. Thus, the ratio of law otherwise would be of no avail to him. I, thus, do not find any infirmity in the impugned order, which may call for any interference in exercise of revisional jurisdiction. The revision petition accordingly is dismissed. The petitioner is directed to hand over the vacant possession of the shop within the statutory period of three months from today. This shall, however, be subject to the condition that the petitioner would appear before the Court of Rent Controller and file an undertaking within a period of one month from today to hand over the vacant possession on the expiry of three months. He shall also deposit the arrears of rent due in advance till the date he vacates the demised premises. May 01 ,2008 ( RANJIT SINGH ) khurmi JUDGE