ASHWANI KUMAR RANA Vs. BALSHARAN GAUTHAM

JUDGEMENT

(1.) THIS is tenant's petition filed under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (for brevity 'the Act') challenging concurrent findings of facts recorded by both the Courts below. It has been concurrently found by the Courts below that the landlord- respondent No. 1 requires the demised shop for his own use and occupation as he did not own any shop for running his medical practice. It has also been found that the landlord-respondent No. 1 is a Homeopathic doctor and possesses qualifications of Diploma in Pharmacy and in Dressers Course from Medical College, Amritsar as per the certificate Ex. A-3 issued by the Punjab Pharmacy Council in his favour. He is a registered Pharmacist and certificate Ex. A-2 shows that he was registered as a Homeopathy practitioner. Learned Appellate Authority has referred to the cross-examination of the tenant-petitioner wherein he has admitted that patients used to come to take medicine from the landlord-respondent No. 1 and on that basis, the Appellate Authority has recorded the following finding :

(2.) IT has further been found by the Appellate Authority after close scrutiny of Ex. A-3 that there is a passage from the main road leading to the house of the landlord-respondent. The demised shop is situated in front of the house of the landlord and adjoins the passage. Similar site plan has been placed on record as Ex. R-2 on which reliance has also been placed by the Appellate Authority. It has been concluded that there is only one passage to reach the main building situated behind the shop in dispute. The dimensions of the passage as well as of the shop in dispute are similar and in the family settlement one shop passage and two rooms have fallen to the share of the landlord-respondent No. 1. Therefore, the Appellate Authority has accepted that the necessity of the landlord-respondent No. 1 is genuine and bona fide which appears to be covered by the provisions of Section 13(3)(a)(i) of the Act.

(3.) SHRI Hemant Saini, learned counsel for the respondent has drawn my attention to paras 20, 21, 22 and 23 of the judgment of the Appellate Authority and argued that there is ample evidence substantiating that oral family settlement has been given effect. According to the learned counsel even if the judgment and decree dated 7.4.1995 is ignored the tenant- petitioner could not avoid ejectment because the oral family settlement to which reference has been made in the judgment and decree dated 7.4.1995 is not a paper transaction but is a living reality. The learned counsel has pointed out that after 7.4.1995 landlord-respondent No. 1 became the owner of the demised shop by operation of law and tenant-petitioner never paid any rent to the landlord-respondent No. 2. There is no receipt produced on record which may show that rent was ever collected by the landlord-respondent No. 2 after 7.4.1995. Learned counsel has pointed out that landlord respondent No. 1 has been running his clinic in the passage.