J.V.GUPTA,J - (1.) THIS is landlord's petition in whose favour an eviction order was passed by the Rent Controller but set aside in appeal.
(2.) SOM Nath was the original owner/landlord of the house in dispute. He purchased the same in the year 1960. It was given to Bodh Raj, his brother, on rent. Som Nath died on 9th August, 1976. After his death, his widow and children filed ejectment application on 3rd August, 1982, inter alia, on the ground that the tenant Bodh Raj was in arrears of rent with effect from 9th August, 1976, @ Rs. 150/- per month, and, secondly, they required the premises in dispute for their own use and occupation as it was no more possible for them to live in Village Jattuwal on account of the education of the children. Two registered notices were also served to the tenant on 31st August, 1980 and 31st July, 1981, requiring the latter to vacate the premises but he refused to do so. In the Written Statement filed by Bodh Raj, he admitted that Som Nath was his brother. He did not deny having received said registered notices from the landlords. He however, set up the plea of ownership of the house in dispute in himself and claimed that he was, in fact, the owner of the premises including the site of the house in dispute. According to him Som Nath had transferred this ownership of the house in the municipal records in his favour in the year 1966 and also handed over the title deeds to him; that on 5th January, 1967 he got a site-plan sanctioned from the Municipal Committee and raised construction therein at his own expense and since then he has become the full owner by adverse possession; that he had already filed a suit for declaration for his ownership rights in respect of the house in dispute which suit was pending at the time of the filing of the written statement. However, when he appeared as his own witness on 10th November, 1983, he admitted that the said suit had been dismissed. In the circumstances, he did not tender any arrears of rent, etc. The learned trial court found that there was a relationship of landlord and tenant between the parties as Bodh Raj had failed to prove his ownership as alleged by him in the written statement. Since no arrears of rent were tendered on the first date of hearing the eviction order was passed. In appeal the learned Appellate Authority reversed the said finding of the Rent Controller and came to the conclusion that there was no relationship of landlord and tenant between the parties, and, therefore, the application was liable to be dismissed. Dissatisfied with it, the landlords have filed this petition here. I have heard the learned counsel for the parties and also gone through the relevant evidence on record. It was admitted by Bodh Raj in his statement as RW 1 that the house was purchased by Som Nath in the year 1960. According to him, later on, in the year 1966 he had made certain material repairs in the said house after getting the necessary sanction from the Municipal Committee and on that basis, in the municipal record he was shown to be the owner of the house in the dispute. The sole basis for claiming the ownership in the house by Bodh Raj was that he had been shown in the municipal record as the owner. It is pertinent to note here that Bodh Raj himself had been the Municipal Commissioner in the said municipality. That being so, it was not difficult for him to get that entry made in his favour. Admittedly, there is no document executed by Som Nath deceased in favour of Bodh Raj, transferring his rights in the house in dispute. Even Bodh Raj admits that no such documents was executed. Not only that, Bodh Raj filed the suit for declaration that he was the owner of the house in dispute which was got dismissed. In these circumstances, it could not be concluded that Bodh Raj was occupying the house in dispute as an owner. The approach of the Rent Controller in this behalf was correct whereas the finding of the learned Appellate Authority was wholly wrong, illegal and misconceived. Bodh Raj was allowed to keep the premises by Som Nath in his lifetime as tenant. Vidya Devi, widow of Som Nath, has appeared in the witness-box and categorically stated so. Not only that both the brothers had joint business. Som Nath was illiterate whereas Bodh Raj, tenant, was Matriculate. All the accounts, etc., were maintained by him. In these circumstances, he was able to procure entries in his favour in the municipal record with respect to the house in question. The very fact that the suit filed by him was dismissed is sufficient to negative his claim that he is the owner of the house in dispute. Once it is so found, then on the basis of the statement of Vidya Devi AW 3, it can be safely held that Bodh Raj was occupying the premises in dispute as a tenant under her husband Som Nath. In the view of the matter, the finding of the Appellate Authority is hereby reversed and that of the Rent Controller is restored.
(3.) SINCE no arrears were paid on the first date of hearing, the respondents are liable to be ejected on that ground. Consequently, this petition succeeds, the order of the Appellate Authority is set aside and that of the Controller is restored with costs. Petition succeeds.;