SHAIK YAKUB SAHEB Vs. K KISHANLAL

JUDGEMENT

(1.) This proceeding arises out of a petition for eviction of a tenant, which has been allowed by the original and appellate authorities but rejected in revision by the District Judge, Nellore.

(2.) The petitioner, a landlord, resides in a house owned by him in Komati Street, Nellore, bearing Municipal No. 35, Ward No. 21. It is his residential building. But he has taken to business. He was doing rice business in partnership outside Nellore, but was keeping his rice bags in one or the other of his rooms in his residential building. In the month of July, 1959, he started his business of gold and. silver and for that business he purchased the suit hous'e, bearing No. 475 of Ward 12 of Chinabazaar in Nellore, for Rs 14,000, under a registered sale deed dated 10th August, 1959, Exhibit P-1. The respondent was a tenant under the petitioner's vendor, who after the transaction of sale on nth August, 1959, informed him by a notice in writing that he had sold the property. On 22nd August, 1959, the petitioner also issued a notice, Exhibit P-3, to the tenant asking him to vacate the house, as it is required for his business. The tenant denied the right of the petitioner on the ground that his lease period extended upto March, 1960. It appears that the tenant had originally occupied the house under a rental deed in the year 1950 for a period of 5 years only, but this term was extended till 16th January, 1960 under an oral agreement. The petitioner waited till the expiry of the said term and when the respondent still refused to vacate the premises, he applied to the Rent Controller, Nellore, for eviction. The tenant resisted this petition on more than one ground. His main defence was that the petitioner was not engaged in gold and silver business and that even if he had that business he has got a non-residential building of his own and therefore is not entitled to evict him from the premises under the provisions of the Madras Buildings (Lease and Rent Control) Act. The Rent Controller negatived his contentions and passed an order of eviction on 3rd February, 1961. He granted three months' time to vacate. On appeal, the learned Subordinate Judge, Nellore, as appellate authority, agreed with the order of the Rent Controller. On revision preferred under section 12-B of the Act, the District Judge, on the ground that the petitioner was doing gold and silver business in some portion of his own residential building, found that the building is of a mixed character and that since it was to that extent converted into non-residential building, the petitioner is not entitled to evict the respondent.

(3.) It would appear from the order of the learned District Judge that the building in the possession of the respondent being used partly for residential and partly for business purposes it is neither residential alone nor exclusively non-residential. As observed by the learned Judge, the petitioner was originally a dealer and had business in rice and, according to his admissions, was using part of his residential building for this business. Recently, he started a shroff business and is carrying on the same business In his own premises. The building that he is occupying is therefore of a mixed character, and having regard to the user which he as P.W.1 admits, in the opinion of the learned District Judge it must be held to be non-residential building. The learned District Judge however, remarked in his judgment that though user of the building appears to be the proper index, no specific issue was framed by the original authority and no direct evidence in respect thereof was let in. Notwithstanding that there was no evidence pointedly adduced in that behalf, the learned District Judge came to the conclusion on the available material that the building In the possession of the respondent was of a mixed character. In the result, he held that since the building was not principally a residential building and was being used also for non-residential purposes, the petitioner, under the provisions of section 7(3)(a)(iii) of the Act, has no right to evict. Aggrieved by this order, the landlord has come up in revision to this Court.