SHRIMATI SATYA KUMARI Vs. SHRI AJUDHIA PARSHAD

JUDGEMENT

(1.) Smt. Satya Kumari filed an application for ejectment of Ajudhia Parshad from the shop in dispute on the ground that the same was unsafe and unfit for human habitation. The Rent Controller by order dated 21st January, 1976, found that the shop in dispute was not unsafe and unfit for human habitation, with the result that the ejectment application was dismissed. Smt. Satya Kumari went up in appeal. The Appellate Authority came to the following conclusion :

(2.) Shri B.K. Jhingan, appearing for the petitioner, has urged that the shop is 50 or 60 years old, built of mud mortar and was wholly unsafe and unfit for human habitation, as opined by two experts namely, Walaiti Ram, retired Executive Engineer, who appeared as A.W.1, and submitted his report, and Balwant Singh Kalsi who appeared as A.W. 4, whose report is also in line with the report of A.W. 1. Besides this, it is urged that above the shop, there was superstructure consisting of a Chobara in which there was a different tenant and against that tenant also an application was filed on the same grounds as in the present case and in that clause ejectment order was passed by the Rent Controller, which was maintained in appeal. His further submission was that the entire building was one and if upper storey has been found to be unsafe and unfit for human habitation, the same finding should be returned for the ground floor also. For this reliance is placed on Sakuntala Rajanna v. K. Kamala,1975 RCJ 9.

(3.) After hearing the learned counsel for the parties, I am of the view that there is no merit in this revision petition. In some cases if the upper storey is found to be unsafe and unfit for human habitation, the ground floor of the building may also be held to be so but on the facts of this case I find that the Courts below were justified in recording different findings for the upper storey and the ground floor and the reasons are not far to seek. It is true that the building was constructed about 50 to 60 years ago but it has come in evidence that the roof of the ground floor i.e., the shop was reconstructed about 15 years ago by putting lintel roof on girders and, therefore, unless, it is shown that the ground floor has been damaged to some extent, no finding can be recorded that the ground floor has become unsafe and unfit for human habitation. Both the cases were decided by the Rent Controller together on the same date, namely, 21st January, 1976, and in the case of the petitioner finding was recorded that the building was perfectly safe whereas in the other case the finding was that the same was unsafe and unfit for human habitation. In so doing, the Rent Controller accepted the statement of Parmodh Chander Building and Construction Engineer produced by the respondent who appeared as R.W. 3 as also on the inspection note prepared by the learned Judge. At the time of inspection the Rent Controller did not find any damage whatsoever in the shop in dispute and for that reason accepted the report of Parmodh Chander Building Engineer, in preference to the reports of the two engineers produced by the landlord. The additional ground is that in para 3(c) of the ejectment petition the plea was as under :-