Civil Revision No. 5807 of 2007 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Revision No. 5807 of 2007 Date of Decision: 6.11.2008 Madan Lal alias Goga and Another …Petitioners Versus Mohinderpal Singh Virdi ... Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Baldev Raj Mahajan, Advocate for the petitioner. Kanwaljit Singh Ahluwalia, J. Mohinder Pal Singh Virdi, landlord, had filed an application under Section 13 of the East Punjab Rent Restriction Act, 1949, for eviction of Dhani Ram, respondent No.3 and his two sons Madan Lal alias Goga and Balbir Kumar alias Billu, respondents No.1 and 2, respectively, from two Kotharies and a verandah forming part of Haveli Dhanna Singh, detailed and described in the head note of the application. It was stated in the application that demised premises formed a part of big Haveli known as Haveli Dhanna Singh, which was owned by Jaswant Singh, father of the landlord. Respondent No.3 Dhani Ram, father of respondents No.1 and 2 was inducted as a tenant at a monthly rent of Rs.24/-. Jaswant Singh father of the landlord died on 2.8.1995 Civil Revision No. 5807 of 2007 2 and thereafter his son Mohinderpal Singh, respondent/applicant was paid rent and, therefore, relationship of landlord and tenant was formulated between the respondent/applicant and the petitioners to the present revision petitions as tenants. It was pleaded in the rent petition before learned Rent Controller that the demised premises in possession of the tenant consist of kotharies, verandah, courtyard and passage, which are lying in dilapidated condition as the Haveli being more than 100 years old has outlived its utility and age. It was further pleaded that the walls had developed cracks. The mortar has outlived its age. Roof of the kotharies is made up of sirki kannas. The wooden material is infested with termite and has become shallow. The tenanted premises has become irreparable. Heavy rains in 1995 have made the tenanted premises unfit for human use and occupation. It was further averred that the neighbourers have made complaints to the Commissioner, Municipal Corporation, Amritsar, that there is an apprehension of falling down of the kotharies and it endanger human life. Therefore, the main ground on which eviction was sought was that the building has become unfit for human habitation. The second ground for eviction of tenant was that the tenant had not paid arrears of rent since April 1990. Notice of the application was issued. Petitioners-tenants filed reply and took preliminary objection. The question of maintainability of the application was raised on the ground that petition was bad for mis-joinder of necessary parties as the applicant had not joined Jasbir Kaur daughter of original landlord as party. But on merits, description of the demised premises and rent of the tenanted premises was admitted, however, relationship of landlord Civil Revision No. 5807 of 2007 3 was challenged. It was denied that building has become dilapidated and unfit and unsafe for human habitation. Material averments made in the eviction application were denied. Replication was also filed. Thereafter, learned Rent Controller, Amritsar, had framed the following issues:- 1. Whether the premises in dispute have become unfit and unsafe for human habitation? OPA 2. Whether the petition is bad for mis-joinder of necessary parties? OPR 3. Whether the demised premises have not been correctly described in the petition, if so, its effect? OPR 4. Relief. Landlord had examined Buta Singh, Building Expert as AW.1, Rajan Sharma, Clerk of Court was examined as AW.2, who placed on record summoned file of the Court. Swaraj Singh, AW.3, Photographer, proved on record the photographs of the disputed site. Mohar Singh, AW.4, and Raj Pal Singh, AW.5, neighbourers were examined to say that during heavy rains in the year 1995, major portion of the shop had fallen, therefore, building is unfit and unsafe for human habitation. Mehar Chand, Record Clerk, AW.6, had brought the record. Raman Sharma AW.7 and Ashok Kumar AW.8, Clerks from Municipal Corporation, Amritsar, placed and proved on record applications submitted by the residents of the locality to Municipal Corporation regarding lying of debris of the demolished area in the street. Vikas Sodhi AW.9 also brought the summoned file. Jagir Singh AW.10 stated that on 9.10.1986 Civil Revision No. 5807 of 2007 4 and 17.10.1995 regarding the condition of the building applications were received. Landlord himself appeared as AW.11. Various documents were tendered. Petitioners-tenants also examined neighbourers namely Suresh Kumar as RW.1, and Kamaljit Singh as RW.2. Arvinder Singh RW.3 proved his Technical Inspector Report Ex.R1, site plan Ex.R2 along with photographs Ex.R3 to Ex.R15 and the negatives are Ex.R16 to Ex.R23. Madan Lal, petitioner No.1-tenant appeared as RW.4 in his individual capacity and on behalf of other tenant. Learned Rent Controller took into account the entire evidence, and concluded as under:- “…After considering the photographs on record, in the light of testimonies of AW1, AW4, AW5, and AW10 it can very safely be concluded that the building has outlived its age and is no more fit and safe for human habitation. As the petitioner has discharged the initial onus of this issue, therefore, it was incumbent upon the respondents to rebut the onus and to establish on record that the condition of building is fit and safe for human habitation” Arguments advanced by the parties were considered and it was concluded that property in dispute has become unfit and unsafe for human habitation and the tenants are liable to be evicted so that the landlord can reconstruct the same. The conclusion of learned Rent Controller reads as under:- “17. On the basis of above discussion, I am of the considered view that the property in dispute has become Civil Revision No. 5807 of 2007 5 unfit and unsafe for human habitation and as such tenant is liable to be evicted so that landlord could reconstruct the same. From the facts available on record it is also abundantly clear that the tenant has constructed a wall besides the demolished wall without the consent of the petitioner. Accordingly, this issue is decided in favour of the petitioner and against the respondents”. Eviction application was accepted and the petitioners were directed to hand over the vacant possession of the premises in dispute within a period of three months from the date of order. Aggrieved against the same, petitioners filed an appeal. Learned Appellate Authority minutely considered the evidence and documents on record, and considered rival submissions made by the parties. It surfaced during the arguments before learned Appellate Authority that the property in dispute was constructed about 100 years ago with Nanakshahi bricks. The entire premises is in dilapidated condition. One bar has fallen down. The roof is made of reed and is supported by wooden ballas. It was considered that on the wall Tarpal is lying and Tarpal is in torn condition. Learned Appellate Authority also considered and concluded that wooden roof of one room had fallen down and the roof of other room and verandah is in falling down condition. The tenants had converted the fallen down roof portion with plastic paper to save themselves from rain. It also considered that floor of demised premises as well as the common passage and open yard is katcha one, badly effected by damages, with pit holes and un- smoothness. The floors had sunk down and had become uneven. Civil Revision No. 5807 of 2007 6 Learned Appellate Authority also relied upon testimony of the Expert and considered the ratio of various judgments cited and found no merit in the same and thereby confirmed the findings of learned Rent Controller and dismissed the appeal. I have heard Mr. B.R.Mahajan, learned counsel for the petitioners. In view of the evidence adduced on the record and concurrent findings returned by the two Courts below, Mr. Mahajan has failed to impress me. The arguments raised that Jasbir Kaur has not been impleaded cannot be accepted as after the death of Jaswant Singh, rent was being admittedly paid to the respondent-landlord. Learned Rent Controller has not decided ownership of the property but relationship of landlord and tenant. Therefore, there was no legal necessity to implead Jasbir Kaur. The tenant having paid the rent to the respondent-landlord cannot state that the other members of the family who have also succeeded to the estate of Jaswant Singh should also be impleaded. Another argument raised before me is that both the landlord and the tenants had examined the neighbourers, therefore, there was nothing before the two Courts below to give credence to the witnesses examined by the landlord as the witnesses examined by the tenants also aspire confidence. Oral testimony alone is not sufficient. Both the Courts below have arrived at concurrent findings of fact besides oral testimony have relied upon evidence of Expert, photographs, and the fact that the complaints were made to the Municipal Corporation. The two Courts below have formulated the opinion taken into consideration oral and documentary evidence. The view formulated by the two Courts below Civil Revision No. 5807 of 2007 7 cannot be said to be perverse or perfunctory. The view taken by the two Courts below is one of the views, therefore, while exercising revisional jurisdiction, learned counsel for the petitioners has failed to persuade me to disturb the well reasoned findings recorded by the two Courts below. Therefore, I find no merit in the present revision petition and the same is dismissed. (Kanwaljit Singh Ahluwalia) Judge November 6, 2008 “DK”