KEWAL KRISHAN Vs. KULWANT RAI

JUDGEMENT

(1.) THE applicant-petitioner Shri Kewal Krishan son of Lal Ram Narain along with respondents No. 2 to 10 purchased the property bearing No. M.C.J/811, vide sale deed dated December 20, 1974. A portion of the ground floor on Western side and the first floor shown in red colour in the site plan appended with the application was rented out to respondent No. 1 at a monthly tenancy of Rs. 430/-. The tenancy had been created on oral agreement for a period of eleven months and that a part of the building was to be used for business and the other part for residence. It has been alleged that the entire building has been defined as a residential building. The eviction application has been maintained on the following three grounds :-

(2.) RESPONDENT No. i.e. Kulwant Rai son of Bhola Nath has contested the application as tenant. He tendered Rs. 1250/- as rent for the period i.e. December 12, 1974 to December 19, 1979 at the rate of Rs. 250/- per annum and a sum of Rs. 192/- as interest thereon in respect of the alleged residential premises. He had also tendered another sum of Rs. 900/- as rent allegedly for the shop with effect from December 20, 1974 to December 19, 1979 at the rate of Rs. 180/- per annum and a sum of Rs. 138/- has been paid as interest thereon. A sum of Rs. 40/- has been tendered as cost. The tender is stated to have been accepted by the applicant under protest being short and for the property as one residential unit. The tenant has shown his ignorance about the change in the title in favour of the applicant, however, has admitted his occupation of the property as tenant. It has been alleged that the first floor is being used as a godown and the ground floor is being used as a shop as such, the premises in dispute is a non-residential building. Another objection has been taken that these being two distinct and separate tenancies, one petition for ejectment is not maintainable. The claim of the landlord that the premises are required for his own use and occupation has been emphatically denied. Since the demised premises cannot be defined as residential premises and have been let out as non-residential premises, the same cannot be got vacated on the ground of personal necessity. It has also been pleaded that the landlord owns a number of properties Jagraon City and apart from that, is in occupation of a big residential building, as he is living with his parents jointly and they are running a joint business. Upon replication the averments have been controverted and the pleadings in the application have been reiterated. Upon the pleadings of the parties, the issues have been struck and the parties have led documentary as well as ocular evidence.

(3.) IT may be noticed that the receipts for having received rent by the previous owner Sewa Singh have also been produced on record which have been exhibited as Ex.R1 to R13 for the period from 1958 to 1974. The perusal of the receipts established the fact that the premises were rented out at one time in the year 1958 though different rent ws settled for the two portions. The tenant has not produced the books of accounts for corroborating the factum of payment of rent of the shop etc. In fact, the evidence which has come on record and which has been noticed above, establishes the fact beyond any doubt that the demised premises had been taken on rent at one time as one unit though different rent was payable in respect of the portions. Since no rent note had been executed, the terms of the tenancy are not decipherable for establishing the nature of the building. The circumstantial evidence has to be taken into consideration for ascertaining the nature of the building. The description of the demised premises defined as upper story prima facie established that the building was used for residential purpose, which fact stands corroborated from the statement of Sewa Singh RW1. He has stated that Dr. Avtar Singh also resided in the demised premises (upper storey). The cumulative effect of reading the evidence shows that the upper story had been taken on rent for residential purposes though subsequently the stand taken by the tenant is that the said premises had been used as a godown but this fact has not been succinctly established. However, the lower portion had been and has been used as a shop. The fact that both the premises had been taken on rent at one and the same time, the definition of the word "residential building" as given in section 2(g) of the Act, qualifies the portion which may be used partly for residential and partly for non-residential purpose. The cumulative effect of description of the premises shall be residential. It shall be apposite to notice the definitions contained in the Act. Section 2(d) of the Act reads as under :-