NARATI DEVI Vs. RAJ KUMAR

JUDGEMENT

(1.) THE suit of the plaintiff-respondents for possession and recovery of arrear of rent having been decreed by the learned trial Court and the appeal filed by the defendants having been dismissed by the Lower appellant Court, they have filed the present second appeal.

(2.) ALMOST 45 years back, on September 14, 1952, Nanak Chand took the property in dispute for their respondence and business of black smith on a rent of Rs. 5.00 per month. The defendants stopped paying rent in February, 1987. Vide registered notice dated April 2, 1988, the plaintiffs terminated the tenancy. On May 20, 1988, the suit was filed by Satish Kumar. Later on, three other persons filed an application under Order 1 Rule 10 of the Code of Civil Procedure on the ground that they had purchased the property from Satish Kumar. This application was allowed by the trial Court. The defendants contested the suit inter alia on the ground that vide judgment dated December 17, 1966, the property in dispute had been held to be rented land and thus the present proceedings were barred by the principle of res judicata. It was also submitted that the land had been rented out primarily for the purpose of business and as such it fell with the definition of 'rented land' in section 2 (f) of the Haryana Urban (Control of Rent and Eviction) Act, 1973. That being so, the civil suit was not maintainable.

(3.) THE solitary contention raised by Mr. M. S. Jain, Senior Advocate, was that since the land had been let out primarily for the purpose of business it fell within the definition of rented land as contained in section 2 (f) of the 1973 Act. That being so, the judgment and decree passed by the Courts below cannot be sustained. It was also contended that the decision given by the Rent Controller in the year 1966 would operate as res judicata. Section 2 (f) defines rented land as under : "rented Land" means any land let separately for the purpose of being used principally for business or trade. " A perusal of the above provision shows that whenever any land is let out "principally for business or trade" it would fall within the mischief of the Act. If the land is let out for trade and a small room is occupied by the Chowkidar, it would be said that the property is being used principally for business or trade. The residence of the Chowkidar would not mean that the land was not being used principally for business or trade. In fact, even the residence of the Chowkidar may be described as a step-in-aid of the business. However, in the present case, the firm finding has been recorded on a reading of the rent note that the premises had not been let out only or principally for business. In fact, the premises had been let out "for business and residence". Nanak Chand, the lessee, was 102 years old on January 23, 1991, when he appeared in Court and made a statement. He admitted that he had raised construction on the land in the year 1953-54. He was residing initially in the house of Takhat Singh and had shifted to the premises in dispute after obtaining the land on lease. Learned counsel for the appellants has not been able to refer to any evidence to show that the land was principally let out for the purpose of trade,. In this situation, the finding recorded by the two Courts calls for no interference. Still further, in view of the fact that the land does not fall within the definition of rented land, the Rent Controller would have no jurisdiction to try and decide the dispute relating to this property and the finding recorded by the Rent Controller would not operate as res judicata. Consequently, the claim made on behalf of the appellants cannot be sustained.