J.V.GUPTA, J. - (1.) THIS is landlords petition in whose favour, eviction order was passed by the Rent Controller but the same has been set aside in appeal.
(2.) THE demised premises consist of the front portion (ground floor) of House No. 52, Sector 2-B, Chandigarh. The whole building has three storeys. The ground floor in occupation of the tenant consisting of two rooms, dining-cum-drawing, kichan, bath-room, a store and a servant quarter, was given on a monthly rent of Rs. 1,200/- by Sushil Kumar, son of Shri Shanti Sarup Dewan. The ejectment application dated 12th August, 1982, was filed by Shri Sushil Kumar on the ground that the premises in dispute were required for his bonafide use and occupation. It was stated that he was then residing in a rented house No. 2, Sector 28-A, Chandigarh, and was occupying its ground floor; that he wanted to shift to his own house mentioned above, as the accommodation with him was not suitable and sufficient for his need. It was also pleaded that the landlord did not own any other residential building nor had be vacated any house after coming into force of the East Punjab Urban Rent Restriction Act, 1949, in the urban area concerned, nor was he occupying any other house except the ground floor of H. No. 2, Sector 28-A, Chandigarh. In the Written Statement it was pleaded that the landlord was residing comfortably in H.No. 2, Sector 28-A, Chandigarh, which place was just close to his business premises; that the plea of personal requirement use not bonafide and the ejectment application had been filed with a view to increase the rent. The learned Rent Controller after discussing the entire evidence came to the conclusion that the premises in dispute were bona-fide required by the landlords. It may be stated here that during the pendency of the ejectment application, Sushil Kumar, landlord, died and his legal representatives, namely his widow, his mother and three minor children, were brought on record. It is also pertinent to note that originally, the whole building of H. No. 52, Sector 2-B, Chandigarh, belonged to late Shri Shanti Sarup Dawan. He died leaving behind two sons and a widow. The premises in dispute had fallen to the share of Sushil Kumar, son of Shri Shanti Sarup. On the evidence produced on behalf of the landlords, the learned Rent Controller came to the conclusion that "It is on record by way of statement of the petitioner Kanan without being any challenge that the front portion of House No. 52 Sector 2-B Chandigarh had fallen to the share of deceased Sushil Kumar while the equal portion on the back side on that building had fallen to the share of his brother Ashwani Kumar. The respondent admitted that Ashwani Kumar never took rent from him in respect of the disputed portion, although he had been coming for collection of proportionate water charges of the disputed portion. This fortifies the stand of the petitioners that there was a mutual partition after the death of Shant Sarup and while the disputed portion had fallen to the share of Sushil Kumar, the portion on the back side came to the share of Ashwani Kumar, who was dealing with that portion as a landlord/owner." Consequently, eviction order was passed on 31 October, 1983. In appeal, the learned Appellate Authority took the view that the landlords were occupying the ground floor of a ten Marla house and demised premises seem to be almost of the same area as the accommodation in the possession of the landlords at present. It further found that the accommodation in their possession was just near to the place of their business whereas the demised premises were quite a few miles away therefrom. It was also observed that the landlords were paying Rs. 300/- p.m. as rent of the portion with them while they were getting Rs. 1,200/- p.m. as rent from the tenant. According to the Appellate Authority further, it had not been pleaded or stated that the landlords were under any obligation to vacate the premises in their possession in Sector 28-A, Chandigarh, and on these grounds it found that the requirement of the landlords was not bonafide. Consequently, it set aside the eviction order. Dissatisfied with the same, the landlord has filed this petition in this Court.
(3.) DURING the pendency of this petition, an affidavit dated 6th December, 1984, was filed on behalf of Mrs. Kanan Dewan, widow of late Shri Sushil Kumar, whereby certain facts subsequent to the filing of the revision petition were sought to be brought on record. It was stated therein that her daughter Kumari Nidhi Dewan had joined the Government College for Girls in Sector 11, Chandigarh, in Pre-Medical Class; that her second daughter Kumari Veenu Dewan would be joining the said College in May/June, 1985 and that her third daughter Kumari Charu Dewan was a student of L.K.G. in Government Model School, Sector 20-D Chandigarh, which was quite far of from her present tenanted house whereas the Government Model School, Sector 10, Chandigarh, was at a walkable distance from her house No. 52, Sector 2, Chandigarh. She further stated that in H.No. 53, Sector 2, Chandigarh, lived Shri Ram Lal Aggarwal, and Shri Yog Parkash Aggarwal, the real uncle (Phupha) of Dewan Sushil Kumar, her late husband, i.e., very adjacent to the premises in dispute, and they can be very helpful to her in her present circumstances as he had to go out during the day to look after her business. It was further averred by her that on 28th November, 1984, the landlady of the house presently occupied by the deponent, as a tenant, namely the ground floor of H. No. 2, Sector 28-A, Chandigarh, had served her with legal notice through her advocate Shri Pradeep Kumar, terminating her tenancy after the expiry of 15 days from the receipt of that notice, when she was required to deliver the vacant possession of the said premises failing which she would have to pay damages for the use and occupation of the said premises at the rate of Rs. 600/- per mensem, and that her landlady would have to file a petition for her ejectment. No counter affidavit was filed to these averments on behalf of the present tenant-respondent. However an affidavit dated 3rd December, 1985, was filed by Shri S.S. Bawa, tenant, wherein it was stated that the third portion of H.No. 52, Sector 2-B, Chandigarh, (alleged to have fallen to the share of Shmt. Parkash Diwan), which was in occupation of P. Pandarwani, IAS, Director of Sports, Haryana Government, as a tenant, had been vacated by him during the pendency of the present petition, but it had not been occupied by the landlord-petitioners and instead had been let out for an enhanced rent of Rs. 1,050/- p.m. In reply to the siad affidavit, Mrs. Parkash Diwan, wife of late Dewan Shanti Sarup, has filed an affidavit dated 7th January, 1986, wherein it has been stated that she is the absolute owner of the back portion constructed on the first floor of H.No. 52, Sector 2-B, Chandigarh, which has been let out by her as she cannot live on the first floor because she cannot go up stairs as advised by the doctors and that her only course of livelihood is the income from rent.;