CR No.5538 of 2005 -1- ******* IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.5538 of 2005 Date of decision:01.02.2011. Arya Pritinidhi Sabha Haryana Dayanand Math, Rohtak ...Petitioner Versus M/s Ahuja Brothers and another ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Bikram Choudhary, Advocate, for the petitioner. Mr. Lokesh Sinhal, Advocate, for the respondents. ***** RAKESH KUMAR JAIN, J. The landlord is in revision against the orders of the Courts below by which his eviction petition has been dismissed. The petitioner has alleged that he is owner/landlord of land measuring 08 Kanals, situated within the revenue estate of village Sarai Khawaja, now known as Gurukul Inderprastha Industrial Estate, Faridabad which was let out to respondent No.1 by way of registered lease deed dated 11.09.1978 for a period of 20 years up to 10.09.1998 for the purpose of running a stone crusher. The said lease was determined by a legal notice dated 24.08.1998 sent to the respondents vide registered post on 26.08.1998. The petitioner sought eviction of the respondents, inter alia, on the grounds of ceased to occupy, personal necessity and failure to pay the rent per year amounting to `4,850/-. In reply, the allegation of ceased to occupy was denied and alleged that the respondents are still carrying on their business of breaking stones in the demised premises and the grounds of personal necessity and arrears of rent were denied. On the pleadings of the parties, following issues were framed: - “1. Whether the respondent has ceased to occupy CR No.5538 of 2005 -2- ******* the premises in question and is liable to be evicted on this ground?OPP. 2. Whether the petitioner requires the premises for his personal bona fide necessity?OPP. 3. Whether the respondent is in arrears of rent, if so to what effect?OPP. 4. Relief.” The petitioner examined Kedar Singh as PW1 and Prem Krishan as PW2 besides tendering documents. The respondents examined Sanjeev Ahuja as RW1 and tendered some documents, but no evidence was led by the petitioner in rebuttal. Basically, the issue before the Courts below was as to whether the respondent No.1 has ceased to occupy the demised premises. Both the Courts below concurrently held against the petitioner. Learned counsel for the petitioner has argued that the demised premises was let out for running a stone crusher which has been shifted by the respondents in the year 1992 to Palli Crusher Zone pursuant to an order of the Supreme Court by imposing ban on stone crushing in that area. Therefore, it is submitted that the demised premises is lying vacant and unused. Learned counsel for the respondents, however, has submitted that the demised premises is not lying vacant as held by both the Courts below and is being used for the purpose of breaking stones manually and as such question of ceased to occupy does not arise. In his support, he has also relied upon a decision of this Court rendered in the case of Arjan Dass by LR's Vs. Krishan Kumar of Ludhiana, 1991 HRR 112 to contend that the landlord has to prove by positive evidence that the tenant had ceased to occupy the demised premises for a continuous period of four months without reasonable cause. The mere fact that the tenant was doing another part time business, cannot prove the fact that he had ceased to occupy the demised premiss. On the other hand, learned counsel for the petitioner has relied upon an unreported judgment of this Court passed in CR No.5537 of 2005 titled as `Arya Pratinidhi Sahbha, Haryana Vs. Darshan Lal Ahuja' decided on 27.08.2010 in which the controversy was almost similar. I have heard both learned counsel for the parties and perused the CR No.5538 of 2005 -3- ******* record with their able assistance. Admittedly, the demised premises was let out for a fixed term of 20 years for the purpose of running of stone crusher which was ordered to be closed by the Supreme Court and the respondents had been allotted alternative site in the Crushing Zone of Palli where they have already shifted. The question, thus, arises is as to whether after shifting to the allotted crushing zone, the respondents are using the demised premises for the purpose of breaking stones, as alleged. The learned Appellate Authority has simply relied upon the statement of RW1 who had stated that they had constructed godown and labour quarters over the demised premises where activity of breaking of stones is being carried out by manual process. The part of the statement with regard to construction of godown and labour quarters is conspicuous by its absence in the written statement where only averment is made that the demised premises is being used for breaking stones. Therefore, the evidence beyond pleadings cannot be accepted. Moreover, the petitioner has examined another witness who had corroborated the stand taken by the landlord, whereas the respondents have not brought any other witness to prove their continuous occupation over the demised premises except for his bald statement. The judgment relied upon by learned counsel for the respondents in the case of Arjan Dass by LR's (supra) would not be applicable because it was held in that case that if the tenant is doing another part time business, then it would not prove that he has ceased to occupy the demised premises but in the present case there is no evidence brought on record by the respondents except for the statement that they are in occupation of the demised premises where they are doing the business of breaking stones manually. Rather the judgment relied upon by learned counsel for the petitioner in the case of Arya Pratinidhi Sahbha (supra) squarely applies to the facts of this case which was also a case of renting out of land and the ground of eviction was ceased to occupy. In that case also, the land was used for stone crusher which was shifted by the tenant after the order of the Supreme Court in the year 1992 and had claimed that they are using the said land for the purpose of breaking stones manually. In the said case, it was held that “admittedly, the respondent, on the leased land, was CR No.5538 of 2005 -4- ******* carrying on the business of Stone Crusher. In the year 1992, the Hon'ble Apex Court, vide order dated 15.05.1992, had prohibited the operation of Stone Crushers. For rehabilitation of the Stone Crushers, a separate land was carved out in Palli Zone. The case of the petitioner is that the respondent/tenant succeeded in the draw of lots and has been allotted an alternative site for establishing his business.” “Furthermore, the tenant has raised a plea that he has been manually breaking the stones at the demised premises.” “The plea coined that heavy stones were manually broken by hiring one labourer in modern times look unnatural, improbable and unconvincing.” Thus, the learned Courts below have completely misread the evidence on record by observing that the demised premises is in actual occupation of the respondents which is being used by them for stone breaking by manual process where they had also constructed a godown and labour quarters which is not mentioned at all in the written statement. Hence, in the considered view of this Court, the respondents have ceased to occupy the demised premises. The revision petition is, thus, allowed and the respondents are ordered to be evicted from the demised premises. However, the period of two months is granted to the respondents to vacate the demised premises. No costs. February 01, 2011 (RAKESH KUMAR JAIN) vinod* JUDGE