V.K.GUPTA,J - (1.) THIS is landlord's petition in whose favour eviction order was passed by the Rent Controller but was set aside in appeal.
(2.) THE landlord Bhagwat Parshad sought the ejectment of his tenants from the demised premises which was rented originally to Nanak Chand Harijan on a monthly rent of Rs. 7. The said Nanak Chand died on 1.1.1975 and thereafter his widow Smt. Parmeshwari and his son Sher Jung continued in occupation on the same terms as tenants. According to the landlord, the tenants had changed the user of the premises in question and had started using the same for residence without his authority. It was also maintained that the tenants had also started tying a Jhota (he buffalo) in the demised premises and have thus materially impaired the value and utility of the demised premises. The tenants denied the said allegation of the landlord. According to them, the premises in question are residential building. Nanak Chand took the same for his residence about thirty years ago from Shri Ram Sarup, the father of the present landlord Bhagwant Parshad. It was also pleaded that Nanak Chand used to have a Jhota and a cart and since then his son is also having the same. The learned Rent Controller found that the tenants have changed the user of the premises in dispute. Since the premises was described as a shop throughout and, therefore, the same was meant for doing business. Since the tenants are residing therein it amounts to change of user. In view of this finding eviction order was passed on 29.9.1980. In appeal, the Appellate Authority reversed the said finding of the Rent Controller and came to the conclusion that there was no change of user as alleged by the landlord. Consequently, eviction order was set aside.
(3.) LEARNED counsel for the petitioner submitted that it has been found as a fact by the authorities below that the demised premises is a shop and it is not mentioned even in the three rent notes produced on the record. Thus, argued the learned counsel, if the demised premises was a shop then it will be deemed to have been let out for business purposes. Since admittedly the tenant is residing therein it amounts to change of user from one category to another, that is, from non-residential to residential. Thus, argued the learned counsel, the view taken by the Appellate Authority in this behalf was wholly wrong and illegal whereas the learned Rent Controller rightly found that there was change of user and the tenants were liable to ejectment on this ground. In support of his contention, he referred to the Full Bench judgment of this Court, reported in Des Rai v. Sham Lal, AIR 1980 P. and H. 229. He also referred to Mohammad v. Mst. Jannat Bi, 1971 RCJ 1;