VIJAY KUMAR Vs. JATI

JUDGEMENT

(1.) THIS petition is by the landlords who have consistently failed before the two subordinate authorities to seek the eviction of the respondent-tenant on the grounds specified in section 13 (2) (ii) (b) and (iii) of the East Punjab Urban Rent Restriction Act 1949 (for sho, the Act ). The following facts have, however, been conclusively settled by the said authorities;

(2.) INITIALLY, one Sarup Chand was the owner of the demised property and he had rented it out to Mamu Respondent. On Former's Death, his widow Smt. Bachni Devi succeeded and sold the property in question to the present petitioners vide sale deed dated 26. 4. 1974, exhibited as A. W. 4/1. The present petition was filed by the vendees on 5. 10. 1976, on a wide variety of grounds, yet the abovenoted two grounds are the only ones which survive for consideration. In order to substantiate the above-noted two grounds, the learned counsel for the petitioners places primary reliance on rent note dated 24. 7. 1959, Exhibit A. W. 3/1, and the evidence of Bachan Lal A. W. 3, a marginal witness of the same, and Gian Chand A. W. 6. Bachan Lal deposed that the premises in question were leased out to respondent Mamu for carrying on some commercial activity (Karobar) as recorded in A. W. 3/1. Both the Witnesses further deposed that initially Mamu did start some sort of a tea shop in these premises but later on started residing therein and thus converted the same into a residential building. What is high-lighted by Mr. Battas, their learned counsel, is that once the tenant had admitted vide rent note Exhibit A. W. 3/1 that the property had been rented out to him for the purpose of carrying on some business or trade, he could not put it to any other use or convert it into a residential property as has been done now and the case is squarely covered by Clause (b) of Sub Section (2) (ii) of section 13 of the Act, meaning thereby that the tenant is using the building for a purpose other than the one for which it was leased out to him. As against this, the case of the respondent-tenant which, as already indicated has been consistently accepted by the two subordinate Courts, is that as a matter of fact this property was leased out to him by Sarup Chand deceased some thirty years ago and right from the said date he has been using it as a residential property. The recitation in the rent note Exhibit A. W. 3/1 executed on 24. 7. 1959 that he was to run some sort of a business in these premises was only a ruse or a device adopted by the deceased landlord to seek his ejectment at a latter date. In order to substantiate this plea of his, he firmly relies on five receipts, Exhibits A-1 to A-5, to establish the payment of rent for the demised premises which has been described therein as a house. The genuineness of these receipts has been accepted by the Courts below. Besides this, the said authorities have also accepted the evidence of the tenant that at the time when this rent note Exhibit A. W. 3/1 was executed, he was serving in the Military and, therefore, there was no occasion for his mentioning or agreeing to the carrying of any business in these premises at the time when the rent note was scribed. According to him, right from the date the property was rented out to him, he was using it as a residential building and continues to do so even now. Having examined the evidence in the light of the submissions of the learned counsel for the parties, I find no good grounds to disagree with the conclusions recorded by the lower Courts. The language of receipts, Exhibits A-1 to A-5, clearly establishes that even prior to the execution of the rent note Exhibit A. W. 3/1, the respondent-tenant was using the premises in question as a house. He continued to use the same in the similar manner even subsequent to the execution of A. W. 3/1. Therefore, no element of factual change of user of the demised premises can be said to have been established on record.

(3.) IN order to substantiate the second ground that the respondent-tenant has committed such acts which have materially impaired the value or utility of the building in question, the learned counsel for the petitioners points out that the respondent-tenant has constructed or fixed some sort of a Chullah on the Chabutra in front of the building and has also opened a window by the side of the door. However, there is no conclusive evidence on record as to the time or date when this Chullah was constructed and as per the stand of the respondent it was there right from the day the property was leased out to him. Similarly, there is no evidence that the respondent-tenant ever constructed or opened a window in any part of the demised premises. Even otherwise, it appears difficult to hold-incase the stand of petitioners is to be accepted-that with the raising of the Chullah and the opening of the window, the value and utility of the demised premises stand in any way impaired or diminished and that too materially. Above all this, it is also not clearly established that the above alterations were carried out by the respondent-tenant after the purchase of the property by the petitioner-landlords.