GANESH FLOUR MILLS Vs. RAMESH CHAND

JUDGEMENT

(1.) These are two appeals which would be disposed of by the same order as they arise out of a common order of Rent Control Tribunal. The appellant Company is a tenant of two partitions on the first floor of suit property. The respondent brought two applications for eviction on the ground of personal bonafide need. The Rent Controller allowed the eviction petition. In appeal the points urged before the Rent Control Tribunal was about the bonafide need and on the ground that the respondent was not the owner of the property in dispute. The Tribunal found that a partition has taken place in the family, with the result that the property in dispute had fallen to the share of the respondent. He also found that the respondent who was a practising advocate had only three rooms available to him, which, keeping in view bis position and his family were not sufficient for his need. He, therefore, affirmed the order of the Rent Controller and dismissed the appeals of the tenants who have now come up to this court in second appeal.

(2.) Mr. Khanna the learned counsel for the appellant had sought to challenge the partition decree by which the properly in dispute had fallen to the share of the respondent. He wanted to urge that the decree was obtained collusively only with a view to create a ground for eviction. A decree has been obtained from a competent court and the property in dispute has fallen to the share of the respondent. It is not for the tenant to challenge the partition decree obtained from a proper court. Mr. Khanna also wanted to urge that the partition decree was collusive and illegal because of the fact that the decree was not got registered. Frankly I am unable to appreciate the point. A decree has been obtained from a court and it is not open to the appellant to seek to go behind the decree and say that it was not a properly obtained decree. Collusiveness of the decree cannot be challenged in this collateral manner. The proper court has given a decree by which the respondent has got this house to his share. Whether that decree has been registered or not or whether it requires registration are irrelevant points in these proceedings. I may mention that though the certified copy was produced in the court below, no objection as to its non-registration was urged by the appellant before the courts below. As a matter of fact no grievance on any such ground has been taken before this court. This plea fails. Much argument has raised before me on the ground that the bonafide need of the respondent was not proved. It may however, be noted that this grouad as such was not seriously urged below because the Tribunal has noted that the only ground on which the judgment of the Rent Controller was challenged was that the partition allegedly effected between the respondents' family was brought into existance with a view to create a ground against the eviction of the appellant. The ground or the argument that there was existing sufficiency of accommodation with the respondent had hence he did uoi require the premises in dispute as such was not seriously urged before the Tribunal. That apart the tribunal has referred to the fact that there is one big room and two rooms on the ground floor which has fallen to the share of the respondent. He has noticed that the respondent is a practising advocate and his family consists of himself, his wife and his son who was then 13 years and his mother. Both the Rent Controller and the Rent Control Tribunal have come to the finding of fact that the existing accommodation with the respondent is not sufficient. Mr. Khanna has made a serious argument about the sufficiency of accommodation and sought to dissect the requirement of respondent into little bits of pieces. But the finding of bonafide need having given by courts below, being one of fact is immune from challenge in second appeal before this court. It is not shown that any wrong principles of law have been applied in coming to decision of bonafide need and there is no scope for interfering with this finding.

(3.) Mr. Khanna has also sought to raise the point that there was no locus standior respondent to bring the application. The argument being that five years have not elapsed since the respondent has become owner as required by S. 14(6) of the Rent Act. Now this point was never taken by the appellant in the courts below. No pleading being there the question of evidence could not arise. The only ground urged was that it was Smt. Tribeni Devi who was the owner and not the respondent. That plea was sufficiently met by the respondent by proving the partition decree by which the respondent has got the share of the joint family property i.e. the suit property in this case. If the appellant wished to raise the point of locus standi to maintain an application for eviction it was incumbent on him to raise this point specifically because this a matter of evidence and evidently the plea which relates to a question of fact cannot be allowed to be raised in second appeal. Prima facie as the decree says there was a partition of joint family property the argument also will be without merit because it cannot be disputed that a partition of joint family property does not amount to transfer or acquisition property, and in that situation the bar under section 14(6) of the Act would not be applicable to the present case.