RAM SINGH Vs. BANARSI DASS

JUDGEMENT

(1.) THIS is tenant's petition against whom ejectment application was dismissed by the Rent Controller, but the eviction order was passed in appeal. The premises in dispute is vacant land measuring 70' x 20' on which a room is also constructed. The same was let out to tenant Ram Singh on 1st March, 1973. The landlord filed the present ejectment application on 27th April, 1982, inter alia on the ground that the tenant has materially impaired the value and utility of the demised premises by constructing two chhapars on the vacant land; that the premises were given for residential purposes whereas the tenant was doing dairy business therein by keeping cattle; that the tenant being guilty of such act and conduct as are nuisance to the landlord and in the neighbourhood. The plea of non-payment of arrears of rent from 1st June, 1979 to 31st March, 1982 was also taken.

(2.) THE reply filed on behalf of the tenant, he denied all the averments made in the ejectment application. He pleaded that the premises were taken on rent for dairy purposes and not for residential as alleged. He denied that the rate of rent was Rs. 200/- as claimed by the landlord and also the plea that he has impaired the value and utility of the demised premises by constructing chhapars thereon. Not only that though he tendered arrears of rent as claimed on the first date of hearing, but at the same time took up the plea that the rent was already paid vide certain receipts. The learned Rent Controller found that the plea taken by the tenant for payment of arrears of rent was false and the receipts produced by him Exhibits R.3, R.4 and R.8 found to be forged ones. However, in view of the payment made on the first date of hearing, no ejectment could be ordered on this ground. The other pleas taken by the landlord were negatived. It was held that though the tenant has encroached upon the remaining land of the landlord adjoining the demised premises but it was of no consequence and it could not amount to nuisance as alleged by the landlord. As regards construction of two chhapars, the learned Rent Controller found that one of them is a smaller chhapar and the other is a cattle shed of the size of 11.6' x 8.3'. According to the learned Rent Controller, from the construction of the said Chhapars it could not be said that the tenant has impaired the value and utility of the demised premises. The plea of change of user was also negatived. Consequently, ejectment application was dismissed vide order dated 3rd March, 1987.

(3.) LEARNED counsel for the petitioner submitted that the whole approach of the Appellate Authority was wrong and illegal. The view taken by the Rent Controller was perfectly valid and the findings arrived at by the Rent Controller have been reversed in appeal arbitrarily on surmises and conjectures. According to the learned counsel, there was no plea of change of user there was no issue to that effect. Thus in the absence of any plea and the issue, the evidence, if any, could not be considered. In support of this contention, he referred to 1930 Privy Council 57, Smt. Chander Kali v. Jagdish Singh, AIR 1977 SC 2262 : 1977(2) RCR 604. He further submitted that construction of two Chhapars on the demised premises did not amount to impairing the value and utility of the demised premises particularly when the same was of temporary nature. In support of this contention he referred to Om Parkash v. Amar Singh and another, 1987(1) RCR 326 : AIR 1987 SC 617, Brijendra Nath Bhargava v. Harsh Wardhan, 1988(1) RCR 86 (SC) 1988(1) Supreme Court Cases 454 ; Devinder Singh v. Bhag Singh, 1981(1) RCR 331 and Amar Singh v. Haryana Dairy Development Corp. Ltd., 1985(1) RCR 501. He also argued that encroaching upon the remaining land of the landlord did not amount to nuisance as held by the Appellate Authority. In support of this he referred to Pirthi Raj v. Sardara, 1974 PLR 183. On the other hand, the learned counsel for the respondent-landlord submitted that since the parties knew their case from the very beginning and the evidence of the change of user was there, the findings arrived at by the Appellate Authority was perfectly valid and did not justify to be interfered with in the revisional jurisdiction. He further submitted that the tenant forged the receipt for payment of rent and thus keeping in view his conduct, his statement could not be believed and he was liable to be prosecuted for forging the documents. Not only that, by constructing two chhapars, he has materially impaired the value and utility of the dismissed premises, in view of the judgment of this Court reported in Sudershan Kumar v. Tejinder Singh, 1987(2) RCR 330.