- (1.) Petitioner has filed this petition challenging the order dated 23.11.2012, whereby leave to contest the ejectment petition was granted to respondent No. 1. I have heard learned counsel for the petitioner and have gone through the record available on the file carefully.
(2.) Petitioner has sought ejectment of respondent No. 1 by moving a petition under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949. Rent Controller while granting the leave to contest the ejectment petition to respondent No. 1 has observed as under:- "Fifthly, tenant sought leave to contest on ground that petitioner was not landlord and respondent No. 1 was tenant under respondent No. 2. Respondent No. 2 is owner of the shop in dispute. Copy of rent note dated 18-4-198(sic) is on file which is in between Kuldeep Kaur and Ranjit Singh qua shop in dispute. Respondent No. 2 asserted that respondent No. 2 and her son are owners of property in dispute on the strength of Will dated 18-7-1979 executed by Ralla Singh but petitioner claimed that he was owner of disputed premises on the strength of Will dated 6-10-1967. Tenant asserted that Kuldeep Kaur and her son are owners of premises in dispute on the strength of Will dated 18-7-1979. In the absence of any rent note between respondent No. 1 and petitioner, petitioner can not said to be landlord of respondent No. 1. Will dated 6-10-1967 having been superseded by Will dated 18-7-1979 is a matter of evidence. Will dated 6-10-1967 in favour of Kultar Singh petitioner and his brother Avtar Singh but Will dated 18-7-1979 is in favour of respondent No. 2 and her son Harjinder Singh. Petitioner asserted that Will bequeathed shops in favour of petitioner but respondent No. 2 asserted that vide Will dated 18-7-1979 entire property at Dasuya was bequeathed in favour of Kuldeep kaur and her son Harjinder Singh. Copies of both Wills dated 18-7-1979 and 6-10-1967 are on file. Will dated 18-7-1979 later in time than Will dated 6-10-1967 and which Will is genuine is a matter of evidence. Learned counsel for petitioner relied upon judicial pronouncement report as 2010 (Suppl) Civil Court Cases 629 (P & H), 2010 (SUPPL) Civil Court Cases 487 (P & H), and Punjab Law Reporter VOL CXLIV-(2006-3) 182. Ratio of above said judicial pronouncements are not squarely applicable to the case of petitioner as ownership of petitioner is under cloud as there is subsequent Will dated 18-7-1979 in favour of respondent No. 2. Respondent No. 2 even filed petition against respondent No. 1 copies of which are on record and rent note was executed by respondent No. 1 in favour of respondent No. 2. Question of petitioner being landlord/co-owner is triable question and on this ground leave to contest is granted. Lastly, petitioner is required to establish that he is non-resident Indian, owner of the property for the last more than five years and bonafidely requiring the property. Petitioner is Non-resident India as is evident from copy of his passport issued by U.K. Bona fide need projected by petitioner is to be assumed to be genuine. Reliance is placed upon judicial pronouncement Balder Singh Bajwa v. Monish Saini, 2005 4 RCR(Civ) 492(SC) . Petitioner is not established to be owner for the last about 5 years as he claims to be owner on the strength of Will dated 6.9.1967 which is matter of evidence and leave to contest is granted on this ground."
(3.) Thus, in the present case, the tenant-respondent No. 1 had disputed the relationship of landlord and tenant between the parties. Case of the tenant is that Kuldip Kaur and her son were the owners of the premises in question on the basis of Will dated 18.07.1979. No rent note had been executed between the petitioner and respondent No. 1.;