RAM KUMAR KHANNA Vs. RAJIV GARG

JUDGEMENT

(1.) THIS is tenant's petition against whom ejectment application was dismissed by the Rent Controller but eviction was ordered by the Appellate Authority.

(2.) THE landlord respondent who is a minor, filed the ejectment application through the guardianship of his mother Smt. Pushpa Devi for the ejectment as the tenant from the demised premises consisting of two rooms, one courtyard and a channel with boundaries given in para 1 of the petition, on the allegations that originally the demised premises were rented out to Ram Kumar Khanna on 16th May, 1972, by Dharam Pal, the father of the landlord, and subsequently rent note dated 26th May, 1972 (Ex.A1) was executed by the tenant in his favour, incorporating all the terms of the tenancy; that the property was a joint Hindu Family property which, in partition, fell to his share, i.e the share of the applicant, under a decree dated 27th March, 1976 passed by the civil court. The eviction was sought, inter alia, on the ground that the tenant had made addition and alterations in the demised premises which had materially impaired the value and the utility of the building. The tenant by way of written statement denied that he had made these alterations, as alleged, and pleaded that the premises let out to him consisted of four rooms, a courtyard, sheds, roofs of the rooms, store, latrines and channel, etc. It was pleaded that the premises were in the same condition when taken on rent and no alteration had been made by him.

(3.) LEARNED counsel for the petitioner/tenant submitted that the document Ex.A1 was not a rent note but a lease deed, as held by the learned Rent Controller, as it was signed by both the parties, i.e. the landlord and the tenant, as also attested by the witnesses. In support of this contention he referred to Harjas's case (supra) and Chooth Ram v. Sh. Deep Chand Jain, 1977 RCR 499. He further submitted that either the tenancy was oral or was based on document Ex.A1, since the said document was not admissible in evidence the learned Rent Controller had rightly considered the oral evidence as well as the documentary evidence led by the tenant to come to the conclusion that he had not materially impaired the value and utility of the premises, as the alleged construction was already there when the premises were let out on 16th May, 1975. An argument was also raised that Sections 91 and 92 of the Indian Evidence Act do not bar evidence to show the description of the property, and it was not a term of the deed for which the evidence was barred thereunder. Moreover, argued the learned counsel, Ex.A1 was not validly proved. The scribe who appeared in the witness-box did not know the tenant personally and the attesting witnesses were not produced by the landlord. According to the learned counsel, the premises were already in occupation of the tenant and he has been carrying on bicycle repairs, and, therefore, there was no occasion to raise any further construction. The landlord did not produce any witness from the locality to prove that the tenant had raised the alleged construction on the demised premises. Apart from that it is not every construction which diminishes the value and utility of the demised premises and the landlord has failed to prove that the alleged construction, if any, had impaired the value and utility of the demised premises, contended the counsel.