Punjab-Haryana High Court
(O&M) Rameshwar Dayal vs Krishan Kumar on 3 July, 2024
Neutral Citation No:=2024:PHHC:083601
CM-7671-C-2019 in/and XOBJS No.15 of 2019 in/and RSA No.3244
of 1987 (O&M); RSA No.953 of 1988 (O&M); and CR-2480 of 1988
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Reserved on : May 28, 2024
Date of Decision : July 03, 2024
1. CM-7671-C-2019 in/and
XOBJS No.15 of 2019 in/and
RSA No.3244 of 1987 (O&M)
Rameshwar Dayal ... Appellant
Versus
Krishan Kumar Sanghi (deceased)
through LRs and others
...Respondents
************
2. RSA No.953 of 1988 (O&M)
Chatur Bhuj Sharma ... Appellant
Versus
Prem Parkash and others ...Respondents
****************
3. CR No.2480 of 1988
Rameshwar Dayal ... Appellant
Versus
Krishan Kumar ...Respondent
*****************
CORAM: HON'BLE MR. JUSTICE DEEPAK GUPTA
Argued By : - Mr. Ajay Jain, Advocate for the appellant/petitioner.
Mr. P.R. Yadav, Advocate
for respondent Nos.1, 7 and 8 - Cross Objectors.
DEEPAK GUPTA, J.
The aforesaid cases - RSA No.3244 of 1987 and Cross Objection No.15 of 2019 arising therefrom; RSA No.953 of 1988; and Page no.1 out of 20 pages 1 of 20 ::: Downloaded on - 21-07-2024 13:36:57 ::: Neutral Citation No:=2024:PHHC:083601 CM-7671-C-2019 in/and XOBJS No.15 of 2019 in/and RSA No.3244 of 1987 (O&M); RSA No.953 of 1988 (O&M); and CR-2480 of 1988 CR No.2480 of 1988, pertain to the same property involving the same parties and so, are being taken together for disposal.
2. In order to avoid any confusion, parties shall be referred as per their status before the trial court. Trial court record was called. 3.1 The relevant facts, necessary for disposal of these cases, are that Rang Raj Prasad & his sons Jagdish Prasad etc. were owners of a Haveli situated in Narnaul Town. They transferred a portion of this Haveli in favour of Krishan Kumar Sanghi son of Shri Ram Sanghi by way of a registered Gift Deed dated 24.12.1979 in lieu of ₹18,000/-; and transferred another portion of the Haveli in favour of Prem Prakash & Jawahar Lal Sanghi (brothers of Krishan Kumar Sanghi) by way of registered sale deed dated 24.12.1979 also for ₹18,000/-. 3.2 Rameshwar Dayal (appellant in RSA No.3244 of 1987) filed a civil suit No.12 of 1981, impleading the vendors, the vendee Krishan Kumar and brothers of vendee as defendants, seeking pre-empt the transfer made by way of gift deed dated 24.12.1979 in respect of one portion of Haveli by claiming that he was a tenant on the said portion of Haveli @ ₹3.50/- per month since 1960. He further claimed that it was a sale on the part of vendors Rang Raj Prasad & others and that in order to defeat his rights of pre-emption, it was camouflaged as a gift. He further claimed the market value of the property in question to be ₹2,000/-. He further pleaded custom of pre-emption in the town of Narnaul. 3.3 The contesting defendants Krishan Kumar Sanghi and his Page no.2 out of 20 pages 2 of 20 ::: Downloaded on - 21-07-2024 13:36:58 ::: Neutral Citation No:=2024:PHHC:083601 CM-7671-C-2019 in/and XOBJS No.15 of 2019 in/and RSA No.3244 of 1987 (O&M); RSA No.953 of 1988 (O&M); and CR-2480 of 1988 brothers Prem Prakash & Jawahar Lal Sanghi filed a joint written statement, denying the right of plaintiff - Rameshwar Dayal to pre-empt the transaction by submitting that there was no sale and rather, it was a gift by way of gift deed dated 24.12.1979. They further pleaded that tenancy of plaintiff - Rameshwar Dayal by way of rent deed dated 19.05.1960 was for fixed tenure, which had expired and now the plaintiff was in unauthorized possession of the property in question. The contesting defendants further denied prevalence of any custom of pre- emption in Narnaul Town and thus, disputed the right of plaintiff to pre- empt the transaction and prayed for dismissal of the suit. 3.4 The vendors - defendants, i.e. Rang Raj Prasad and his sons were proceeded ex parte.
3.5 After framing necessary issues and taking evidence produced by the parties, the Trial Court held that deed dated 24.12.1979 in question was a sale and not a gift; and that actual market value of the property was ₹2,000/- and not ₹18,000/-. Plaintiff was found to be tenant on the property in question. However, plaintiff was non-suited on the ground that he had failed to prove the custom of pre-emption in the Narnaul Town and so, did not have the right to pre-empt the sale. With these findings, the suit was dismissed on 21.11.1986. 3.6 This dismissal of the suit of plaintiff Rameshwar Dayal led to filing of Civil Appeal No.15 of 1987 by said plaintiff Rameshwar Dayal and cross-objections No.63 of 1987 by contesting defendant-
Page no.3 out of 20 pages 3 of 20 ::: Downloaded on - 21-07-2024 13:36:58 ::: Neutral Citation No:=2024:PHHC:083601 CM-7671-C-2019 in/and XOBJS No.15 of 2019 in/and RSA No.3244 of 1987 (O&M); RSA No.953 of 1988 (O&M); and CR-2480 of 1988 vendee - Krishan Kumar Sanghi. Plaintiff was aggrieved by the finding to the effect that there was no custom of pre-emption in Narnaul Town, due to which his suit was dismissed; whereas cross-objector/defendant No.1 was aggrieved against the finding of the Trial Court to the effect that transaction in question was not a gift and rather, a sale and that market value was not ₹18,000/- and was rather ₹2,000/-. 3.7 However, the civil appeal as well as the cross-objections were dismissed by the first appellate court of learned District Judge, Narnaul, vide judgment dated 28.07.1987.
3.8 Dismissal of the suit by way of concurrent findings of the courts below, led the plaintiff to file RSA No.3244 of 1987; whereas, defendant No.1 - cross objector filed cross objection No.15 of 2019 (filed on 24.04.2019) against the dismissal of his cross objections by the first appellate court. Alongwith this said cross-objections, he also filed CM No.7671-C of 2019, so as to condone the delay by pleading that there is delay of 153 days only in filing the same.
4.1 Chatur Bhuj Sharma, the father of Rameshwar Dayal (plaintiff of above suit N: 12 of 1981) filed a separate suit No.38 of 1981, claiming pre-emption of the sale dated 24.12.1979, in respect of portion of the Haveli, which was sold to Prem Prakash & Jawahar Lal Sanghi. He also claimed to be tenant on that portion of Haveli, which was sold by way of the impugned sale deed @ ₹2/- per month. He also claimed that consideration of ₹18,000/- as mentioned in the sale deed was ostensible Page no.4 out of 20 pages 4 of 20 ::: Downloaded on - 21-07-2024 13:36:58 ::: Neutral Citation No:=2024:PHHC:083601 CM-7671-C-2019 in/and XOBJS No.15 of 2019 in/and RSA No.3244 of 1987 (O&M); RSA No.953 of 1988 (O&M); and CR-2480 of 1988 and that the market value was much lesser; that there was custom of pre- emption in the Municipal Town of Narnaul.
4.2 The contesting defendants of that case, i.e. vendees - Prem Prakash & Jawahar Lal Sanghi refuted the claim of the plaintiff by denying the tenancy and also by denying any custom of pre-emption in the town of Narnaul.
4.3 After framing necessary issues and taking evidence produced by the parties, the Trial Court held the plaintiff to be a tenant; that sale price of ₹18,000/- was fixed in good faith and actually paid; that there was custom of pre-emption in the Municipal Town of Narnaul and therefore, plaintiff was entitled to pre-empt the sale. However, it was further found by the Trial Court that plaintiff - Chatur Bhuj Sharma was tenant only in the approximately 1/5th area of the sold portion of Haveli and so, he had right to pre-empt only that portion, on proportionate payment of ₹3,600/-. Suit was accordingly decreed by way of judgment dated 29.03.1985.
4.4 Contesting defendants of the above case, i.e. Prem Prakash & Jawahar Lal Sanghi filed Civil Appeal No.410 of 1985. Allowing the appeal, it was held by the First Appellate Court that plaintiff - Chatur Bhuj Sharma had failed to prove the tenancy as well as the alleged prevalent custom of pre-emption. After holding so, the judgment of the Trial Court was set aside and the suit was dismissed, by accepting the appeal on 04.11.1987.
Page no.5 out of 20 pages 5 of 20 ::: Downloaded on - 21-07-2024 13:36:58 ::: Neutral Citation No:=2024:PHHC:083601 CM-7671-C-2019 in/and XOBJS No.15 of 2019 in/and RSA No.3244 of 1987 (O&M); RSA No.953 of 1988 (O&M); and CR-2480 of 1988 4.5 This led to filing of RSA No.953 of 1988 by the plaintiff of the case, i.e. Chatur Bhuj Sharma.
5.1 Apart from the aforesaid litigation, Krishan Kumar Sanghi (defendant No.1 of Civil Suit No.12 of 1981 / appellant of RSA No.3244 of 1987) also filed an ejectment petition under Section 13 of the Haryana Urban Control of Rent & Eviction Act, 1973 against Rameshwar Dayal - tenant on the ground that said respondent /tenant is in the arrears of rent; that building has become unfit and unsafe for human habitation and that same is required for his bonafide use and occupation. 5.2 The respondent of the petition, i.e. Rameshwar Dayal contested the petition. The arrears of the rent were tendered. The relationship of landlord and tenant was denied. The bonafide need of the demised premises was refuted.
5.3 After framing necessary issues and taking evidence on record, learned Rent Controller vide order dated 29.06.1987 in Rent Petition No.2 of 1980 declined the ejectment by holding that petitioner - landlord had failed to prove any of the grounds, on which he had sought the ejectment of the respondent - tenant.
5.4 Petitioner - Krishan Kumar Sanghi filed Rent Appeal No.13 of 1987 against this order dated 29.06.1987. Accepting the appeal, learned Appellate Authority reversed the findings of the Rent Controller qua the ground of ejectment on the basis of bonafide necessity of the petitioner. Accepting the appeal, it was held that tenant was liable to Page no.6 out of 20 pages 6 of 20 ::: Downloaded on - 21-07-2024 13:36:58 ::: Neutral Citation No:=2024:PHHC:083601 CM-7671-C-2019 in/and XOBJS No.15 of 2019 in/and RSA No.3244 of 1987 (O&M); RSA No.953 of 1988 (O&M); and CR-2480 of 1988 vacate the demised premises on the ground of bonafide requirement of landlord-appellant - Krishan Kumar Sanghi.
5.5 This has led to filing of CR No.2480 of 1988.
6. I have considered submissions made by Ld. counsel for both the parties and have appraised the entire paper book as well as the Trial Court record carefully, with the able assistance provided by learned counsels.
x CM-7671-C-2015 in/and x XOBJS No.15 of 2019 in/and x RSA No.3244 of 1987 (O&M)
7. This RSA deserves to be dismissed for the simple reason that even prior to dismissal of the suit on 21.11.1986, seeking to pre-empt the sale, the Revenue Department of Government of Haryana, by way of a Gazette Notification dated 08.10.1985 had already declared - 'that no right of pre-emption shall exist in respect of sales of land falling in the areas of any Municipality in Haryana.'
8. It is the settled preposition of law that a person seeking to pre-empt the sale, must have the right to pre-empt not only on the date of sale, but also on the date of filing of the suit and also on the date of passing of the decree by the Court of first instance. Reliance in this regard can be placed upon "Didar Singh v. Ishar Singh", (2001)8 SCC 52, which was later on also relied by the Hon'ble Supreme Court in "Pirthi v. Mohan Singh", 2011(9) SCC 107.
9. In the present case, the transaction in question took place on Page no.7 out of 20 pages 7 of 20 ::: Downloaded on - 21-07-2024 13:36:58 ::: Neutral Citation No:=2024:PHHC:083601 CM-7671-C-2019 in/and XOBJS No.15 of 2019 in/and RSA No.3244 of 1987 (O&M); RSA No.953 of 1988 (O&M); and CR-2480 of 1988 24.12.1979 by virtue of a gift deed, which the Courts below have found to be a sale by way of concurrent finding. It is not in dispute that property in question, i.e. Haveli, the portion of which has been purchased by contesting defendant - Krishan Kumar Sanghi, exists in the Municipal Town of Narnaul. Although, both the Courts below have held that existence of custom of pre-emption is not proved in the Town of Narnaul, but even if without holding so, such a custom is assumed to exist for the sake of arguments, and that at the time of sale on 24.12.1979 or at the time of filing of the suit on 16.01.1981, plaintiff had the right to pre-empt the sale, he definitely had lost that right, when the suit was decided by the Court of first instance on 21.11.1986, because prior thereto, the Notification dated 08.10.1985 had already been issued by the Revenue Department of Government of Haryana declaring that no right of pre- emption shall exist in respect of sales of land falling in the areas of any Municipality of Haryana.
10. Learned counsel for the appellant Mr. Ajay Jain, could not refute the aforesaid legal position. For this short reason itself, RSA No.3244 of 1987 is hereby dismissed with costs.
11. Coming to Cross Objections No.15 of 2019, this deserved to be dismissed being hopelessly barred by limitation. The finding to the effect that transaction dated 24.12.1979 was not a gift and rather, a sale and that market value was only ₹2,000/-, rendered by the Trial Court on 21.11.1986 and affirmed by the First Appellate Court by dismissing the Page no.8 out of 20 pages 8 of 20 ::: Downloaded on - 21-07-2024 13:36:58 ::: Neutral Citation No:=2024:PHHC:083601 CM-7671-C-2019 in/and XOBJS No.15 of 2019 in/and RSA No.3244 of 1987 (O&M); RSA No.953 of 1988 (O&M); and CR-2480 of 1988 Cross Objections on 28.07.1987, has been challenged by the defendant - Cross Objector by filing Cross Objections No.15 of 2019 on 24.04.2019, i.e. more than 30 years later.
12. It has been wrongly pleaded in the application for condition of delay that limitation to file Cross Objections started on 25.01.2018, when the respondents were served with a notice of actual hearing of appeal. It has been rightly contended by learned counsel opposite, i.e. counsel for the appellant that after filing of the appeal in 1987 and its admission on 19.01.1988, CM No.2567-C of 1990 under Order 39 Rule 1 and 2 CPC was notified to the opposite party on 21.08.1990 and the alienation of the property in question was stayed thereafter on 07.09.1990, in the presence of the counsel for both the parties, the order dated 21.08.1990 was made absolute.
13. Once, the presence on behalf of both the parties was marked on 21.08.1990, then merely death of one of the parties and substitution of his LRs on record, will not start fresh limitation from the date of service of the LRs.
14. As such, application bearing CM No.7671-C of 2019 seeking condonation of delay in filing the Cross Objections is hereby dismissed and with the dismissal of the said application, Cross Objections No.15 of 2019 also stands dismissed being hopelessly barred by limitation, with costs.
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15. This appeal is the off-shoot of original suit No.38 of 1981 and has been decided by the Court of first instance, i.e. Trial Court on 29.03.1985, i.e. prior to the Notification dated 08.10.1985 of the Revenue Department of the Government of Haryana, whereby right of pre-emption ceased to exist, in respect of the land falling in the areas of any Municipality in Haryana. As such, the proposition of law as applicable in RSA No.3244 of 1988, will not be applicable to the facts of this case.
16. In the aforesaid case, right to pre-empt is sought by Chatur Bhuj Sharma by claiming tenancy @ ₹2/- per month and by further pleading custom of pre-emption in Narnaul Town. As noticed earlier that though his contentions to this effect were accepted by the Trial Court, but the First Appellate Court has held that neither his tenancy was proved nor the custom of pre-emption in Narnaul Town was proved and because of these findings, the suit for pre-emption was dismissed.
17. Contention of learned counsel for the appellant -plaintiff to the effect that defendant had not denied the tenancy, is found to be factually incorrect. Written statement of defendants - Prem Prakash & Jawahar Lal Sanghi would reveal that it was emphatically denied that plaintiff - Chatur Bhuj Sharma was tenant in the Haveli in question. While appraising the evidence on record in this aspect, it has been observed by the First Appellate Court in its judgment dated 04.11.1987 as under:-
Page no.10 out of 20 pages 10 of 20 ::: Downloaded on - 21-07-2024 13:36:58 ::: Neutral Citation No:=2024:PHHC:083601 CM-7671-C-2019 in/and XOBJS No.15 of 2019 in/and RSA No.3244 of 1987 (O&M); RSA No.953 of 1988 (O&M); and CR-2480 of 1988 "8. Concededly, the plaintiff has no documentary evidence in the shape of rent note or rent receipts to fall back upon for substantiating the plea of tenancy raised by him. The only fact appearing in the statement of Chaturbhuj plaintiff pre-emptor was that he was inducted in possession as a tenant over the house property in suit in the year 1946 by the previous owners and that during his absence to Hyderabad, his son Rameshwar was threatened and coerced to execute a rent note in the year 1960 in respect of some portion of that property, whereas the remaining continued to be with him as a tenant on a monthly rent of Rs. 2/-. That vague and bald assertion made by the plaintiff was no evidence of the fact that he had been in occupation or some portion of the house property as a tenant after the year 1960. That narration given by him was too inconsistent to be taken notice of. He has not explained as to how the entire tenancy created in his favour on a monthly rent of Rs.2/-, came to be sub- divided into two portions-one in favor of his son Rameshwar on a monthly rent of Rs.3.50 and the remaining continuing with him on a monthly rent of Rs.2/-. Strangely enough, the plaintiff was not in possession of even a single rent receipt although the premises were stated to be in his occupation for the last over 3 or 4 decades. He could not tell us as to when the last payment of rent was made by him to the owner(s). On the own showing of plaintiff, the owners have launched ejectment proceedings against his son Rameshwar.
9. There was no justification for the ld. trial Court to have over looked another fundamental flaw. The description of the portion of the house pleaded by the plaintiff to be in his occupation as a tenant was totally at variance with that given in suit plan. Ex.PW4/A drafted at his instance by Prahlad Rai Sharma, PW4. It was asserted by Prahlad Rai Sharma, PW4 that this plan was drafted by him at the instance of plaintiff and the disputed portion had been delineated in red. When confronted with that patent defect in the case of the plaintiff, an attempt was made by his ld. counsel to disown that plan saying that that pertained to the portion in occupation of his (plaintiff) son Rameshwar. There is absolutely no explanation for some such somer-sault taken on behalf of plaintiff. It was not at all conceivable as to how the 1d. trial court proceeded to pass decree in respect of the disputed portion shaded in red in plan Ex.PW4/A when it was the very case of the plaintiff that he was not at all in occupation thereof as a tenant.
10. None of the other witnesses examined on behalf of plaintiff has Page no.11 out of 20 pages 11 of 20 ::: Downloaded on - 21-07-2024 13:36:58 ::: Neutral Citation No:=2024:PHHC:083601 CM-7671-C-2019 in/and XOBJS No.15 of 2019 in/and RSA No.3244 of 1987 (O&M); RSA No.953 of 1988 (O&M); and CR-2480 of 1988 asserted about his occupation as a tenant over some portion of the house. What at best could legitimately be deducted from the statements of Dina Nath PW2, Ram Niwas PW3 and Onkar PW5 was that he (plaintiff) and his son had been residing in that house for the last over several years. It was clearly asserted by Dina Nath PW-2 in an unequivocal manner that he was not aware as to whether the plaintiff's occupation over a portion of that house was as a tenant or otherwise. The other witness Ram Niwas PW-3 where asserted that the plaintiff occupied different and his son Rameshwar portions of the house. The stand taken by other witness Onkar that he considered plaintiff to be owner of that property was quite ludicrous."
18. After going through the evidence available on record, I do not find any reason whatsoever so as to disturb the well-reasoned judgment of First Appellate Court in holding that plaintiff - Chatur Bhuj Sharma failed to prove his tenancy. There is neither any illegality nor any perversity in the said finding. Learned counsel for the appellant could not point towards any flaw in the aforesaid finding.
19. Thus, it has been found by the Appellate Court that appellant
- Chatur Bhuj Sharma was not a tenant on any portion of the Haveli, which he sought to pre-empt. Once, it is found that plaintiff Chatur Bhuj Sharma was not a tenant on the portion of the Haveli, the sale of which he sought to pre-empt, it is obvious that he does not have any right to pre- empt the sale.
20. Apart from above, without holding so, but assuming for the sake of the arguments that plaintiff was the tenant on the portion of the Haveli, which he sought to pre-empt, he was still required to show that there existed a custom of pre-emption in the Municipal Town of Narnaul.
Page no.12 out of 20 pages 12 of 20 ::: Downloaded on - 21-07-2024 13:36:58 ::: Neutral Citation No:=2024:PHHC:083601 CM-7671-C-2019 in/and XOBJS No.15 of 2019 in/and RSA No.3244 of 1987 (O&M); RSA No.953 of 1988 (O&M); and CR-2480 of 1988 He was required to prove the essential characteristics of custom like immemorial existence, reasonableness, certainty and continuity, as has been held in Shadi Lal v. Surinder Kumar 1972 PLJ 471.
21. In order to contend that there was a custom of pre-emption in Narnaul Town, learned counsel for the appellant has referred to judgment dated 26.08.1992 BK (corresponding to 1933 AD) of High Court of Judicature at Patiala in Civil Revision No.62 of 1991, titled as "Ala Rasi & Rahimdin v. Karam Allah", reported in 1933 Patiala Law Reports 281, wherein it was observed that custom of pre-emption existed in small town of Narnaul.
22. Learned First Appellate Court has rightly observed that the aforesaid judgment of 1992 BK (corresponding to 1933 AD) was not sufficient proof of existence of custom of pre-emption of sale of urban immovable property made in the year 1979 AD. The legal position has been rightly observed by the First Appellate Court to the effect that onus to plead and prove the custom regarding pre-emption existing in a town lay on the plaintiff and the proof of custom is not confined to judicial precedent alone and instead, it is required to be established by proof in the shape of instances and further, all its essential characteristics like immemorial existence, reasonableness, certainty and continuity must also be established.
23. In the present case, apart from judicial pronouncement of 1992 BK, i.e. 1933 AD, learned counsel for the appellant could not draw Page no.13 out of 20 pages 13 of 20 ::: Downloaded on - 21-07-2024 13:36:58 ::: Neutral Citation No:=2024:PHHC:083601 CM-7671-C-2019 in/and XOBJS No.15 of 2019 in/and RSA No.3244 of 1987 (O&M); RSA No.953 of 1988 (O&M); and CR-2480 of 1988 attention of this Court towards any evidence whatsoever showing prevalence of any such custom in the Narnaul Town.
24. It will not be out of place to mention that the cited authority i.e., 1933 Patiala Law Reports 281, related to Muslim Tribe. Not a single instance after 1933 could be produced by the appellant to show that custom of pre-emption continued to exist in the town of Narnaul after partition of the country. As per the legal position, continuity of custom is one of the essential ingredient, which is certainly lacking in the present case.
25. In view of the aforesaid discussion, it is held that even if appellant - Chatur Bhuj Sharma is held to be a tenant, still he has no right to pre-empt the right of sale in question in the absence of custom of pre- emption in Narnaul Town.
26. Consequent to above, this Court does not find any merit in RSA No.953 of 1988. The same is also hereby dismissed with costs. CR No.2480 of 1988
27. Although the landlord sought ejectment of the tenant (petitioner herein) on various grounds from the demised premises, but the Rent Controller by way of his order dated 26.09.1987 dismissed the petition. In appeal filed by the landlord (respondent herein), the Appellate Authority has allowed the ejectment of the tenant from demised premises only on the ground of personal necessity/bonafide requirement of the landlord by way of order dated 22.08.1988.
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28. Though the terminology `bonafide requirement' has not been defined in the Haryana Rent Act but in Raghunath G. Panhale v. M/s Chagan Lal Sudarji and Company, 1999(2) RCR(Rent) 485, the Hon'ble Supreme Court has enumerated the following guidelines:-
1. Requirement of landlord must be both reasonable and bonafide.
2. The word "reasonable" connotes that requirement is not fanciful or unreasonable. It cannot be mere desire.
3. The word requirement coupled with the word reasonable means that it must be something more than mere desire but need not certainly be a compelling or absolute or dire necessity.
4. A reasonable and bonafide requirement is something in between a mere desire or wish on one hand that a compelling or dire or absolute necessity at the other end.
5. It may not be need in praesenti or within reasonable proximity in the future. The word bona fide means that need must be honest and not be trained with any oblique motive.
6. Language of provision cannot be unduly stretched or strained as to make it impossible for landlord get possession. Construction of relevant statutory provision must strike a balance between right of landlord and right of tenant.
7. Court should not proceed on assumption that requirement of landlord was not bona fide and that tenant could not dictate to the landlord as to how he should adjust himself without getting possession of tenant premises.
29. Further, in M/s Rahabhar Productions Pvt. Ltd. v. Rajendra K. Tandon, 1998(1) Rent Control Reporters 482, it has been observed by the Apex Court as under:-
"The phrase "bona fide need" or "bona fide requirement" occurs not only in the Delhi Rent Control Act but in the Rent Control legislation of other States also. What is the meaning of this phrase has been considered innumerable Page no.15 out of 20 pages 15 of 20 ::: Downloaded on - 21-07-2024 13:36:58 ::: Neutral Citation No:=2024:PHHC:083601 CM-7671-C-2019 in/and XOBJS No.15 of 2019 in/and RSA No.3244 of 1987 (O&M); RSA No.953 of 1988 (O&M); and CR-2480 of 1988 times by various High Courts as also by this Court and requires no citations to explain its legal implications. Even then reference may be made to the decision of this Court in Ram Das v. Ishwar Chander and others, 1988(1) RCR(Rent) 625, in which it was indicated that "bona fide need" should be genuine, honest and conceived in good faith. It was also indicated that landlord's desire for possession, however honest it might otherwise be, has, inevitably, a subjective element in it. The "desire" to become "requirement"
must have the objective element of a "need" which can be decided only by taking all relevant circumstances into consideration so that the protection afforded to a tenant is not rendered illusory or whittled down. These observations were made in respect of the provisions contained in E.P. Urban Rent Restriction Act, 1949."
11. The bonafide requirement of a landlord depends upon facts and circumstances of each case and there cannot be a strait jacket formula for this purpose. The burden lies upon the landlord to establish that the accommodation is bonafide required by him for personal use. While adjudicating whether the requirement is bonafide or not, it is to be seen objectively and not subjectively by the Court though, the landlord is the best judge of his requirement. The need of the landlord must exist so as to distinguish it from mere wish or desire.
30. In Sarla Ahuja Vs. United India Insurance Company Ltd. 1998 (2) Apex Court Journal 704, it has been held by Hon'ble Supreme Court that when landlord asserts that he requires building for his own occupation, Rent Controller shall not proceed on presumption that requirement is not bona fide. Hon'ble Supreme Court held as under:
"When a landlord asserts that he requires his building for his own occupation, the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case, it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by the Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bonafide of the requirement Page no.16 out of 20 pages 16 of 20 ::: Downloaded on - 21-07-2024 13:36:58 ::: Neutral Citation No:=2024:PHHC:083601 CM-7671-C-2019 in/and XOBJS No.15 of 2019 in/and RSA No.3244 of 1987 (O&M); RSA No.953 of 1988 (O&M); and CR-2480 of 1988 of the landlord, it is quite unnecessary to make an endeavor as to how else the landlord could have adjusted himself."
31. In Anil Kumar and another Vs. Makhan Singh Grewal 2018 (2) RCR (Rent) 519, the legal position has been reiterated to the effect that landlord is the best judge of his requirement and tenants cannot impose their opinion. Same is the position with respect to Courts. Bonafide requirement has to be seen from prism of personal necessity of landlord.
32. In the light of aforesaid legal position, it is required to be seen as to whether landlord (now respondent) has been able to prove his bonafide need for the tenanted premises.
33. As is evident on perusal of the Trial Court record, the Rent Controller had rejected the petition for ejectment on ground of personal necessity on the plea that site plan showing the present occupation with the tenant, in which he was residing with his father and other family members, had not been proved. Besides, father of the petitioner had expired during the pendency of the petition and that his brothers had started living separately. However, rejecting the aforesaid contentions/ground, whereby ejectment petition was dismissed, it has been observed by learned Appellate Authority in para No.4 of the order dated 22.08.1988 as under:-
" 4. After hearing the learned counsel for the parties, I am of the view that the order of Rent Controller dismissing the petition cannot sustain. It is not necessary to prove the site plan of the premises presently occupied by the Page no.17 out of 20 pages 17 of 20 ::: Downloaded on - 21-07-2024 13:36:58 ::: Neutral Citation No:=2024:PHHC:083601 CM-7671-C-2019 in/and XOBJS No.15 of 2019 in/and RSA No.3244 of 1987 (O&M); RSA No.953 of 1988 (O&M); and CR-2480 of 1988 father of the petitioner. From the evidence on record, the accommodation occupied by the father has been amply proved and this evidence cannot be thrown on the ground that the site plan had not been exhibited or proved on record. The appellant/petitioner does not own any other accommodation except the premises in dispute, which is occupied by the respondent and simply because he is residing in the ancestral house with his parents, brothers and sisters having 16 members of the family, it cannot be said that he is not entitled to get the premises vacated for his own requirement. It is well settled principle of law that the requirement of landlord has to be seen from the point of view of the landlord and I am supported in my view by a judgment of the Punjab & Haryana High Court reported as Bhagwanti versus Hans Raj 1984(2) R.L.R. 660. The appellant/petitioner wants to live in his own house and in Rai Kishan and another Versus Ajeet Kumar and others 1982(2) Rent Law Reporter 663, it was held that if the landlord was in occupation of the premises belonging to his father and brother and the accommodation was not sufficient for his need, then he was entitled to seek eviction of the tenant. In Ram Lubhaya Kapoor Versus Prag Nath 1986 Haryana Rent Reporter 608, it was held that if the landlord purchased the property in his own name and sought eviction of the tenant on the ground of personal requirement, then merely because he was occupying some premises does not dis-entitle him to seek ejectment of the tenant on the ground of his personal requirement. In Tirath Ram Versus Smt. Sumitra 1982(2) Rent Law Reporter 635 it was held that merely because the landlord has some share in the property would not be a bar to seek ejectment of the tenant for his personal requirement."
34. After appraising the evidence on record and in the light of legal position noticed earlier, I don't find any aberration in the aforesaid observations made by the Appellate Authority. Landlord alongwith his father, married brothers and sisters i.e., as many as 16 family members, were residing in an accommodation. Even if the father expired during the pendency of the petition and brothers got separate share in the ancestral property of his father, it is obvious that the small house consisting of 3-4 rooms as was observed by the Trial Court had been partitioned amongst Page no.18 out of 20 pages 18 of 20 ::: Downloaded on - 21-07-2024 13:36:58 ::: Neutral Citation No:=2024:PHHC:083601 CM-7671-C-2019 in/and XOBJS No.15 of 2019 in/and RSA No.3244 of 1987 (O&M); RSA No.953 of 1988 (O&M); and CR-2480 of 1988 them and so, it can be very well assumed that a very small portion must have come to the share of the petitioner.
35. Apart from above, it is the definite findings of both the Courts below that petitioner did not own any other immovable property in the urban area of Narnaul nor had vacated the same after the Act of 1949. As such, the finding of the Appellate Court deserve to be sustained to the effect that petitioner was able to prove his bonafide requirement. It is the landlord, who is the master of his needs. Tenant or even the Court cannot dictate the landlord about his requirement, or as to how much accommodation will be sufficient for him and his family.
36. Faced with this situation, learned counsel for the petitioner- tenant has faintly argued before this Court that petition by landlord was filed in 1980 and now we are in year 2024 and that by now, the need of the original petitioner i.e., landlord must have vanished, as even said landlord has since expired.
37. I do not find merit in this contention. No doubt that landlord has since expired and a period of approximately 44 years has passed since the time of filing of the petition, but at the same time, the progeny of the landlord has succeeded his rights and have even been brought on record as his LRs, so, the bonafide necessity of the landlord exiting in 1980 cannot be ignored as of now.
38. Apart from above, this Court cannot lose sight of the fact that landlord had purchased the property in 1979 with the hope that he Page no.19 out of 20 pages 19 of 20 ::: Downloaded on - 21-07-2024 13:36:58 ::: Neutral Citation No:=2024:PHHC:083601 CM-7671-C-2019 in/and XOBJS No.15 of 2019 in/and RSA No.3244 of 1987 (O&M); RSA No.953 of 1988 (O&M); and CR-2480 of 1988 with his family shall shift to the property purchased by him by vacating the small portion of the ancestral property, in which he was residing alongwith his father, married brothers and sisters etc. A period of 45 years has expired since the purchase of the demised property, but he has not been able to derive fruits of his purchase. So much so, his hopes that one day he will get the possession of demised property to live therein, have already dashed, as he has left this world and now, it is his progeny only, who will get the property. In case, the contention of the tenant (petitioner herein) is accepted, it will be depriving even the legal heirs of deceased- landlord from the deriving fruits of the property.
39. Having noticed all the aforesaid facts and circumstances, this Court does not find any illegality or perversity in the impugned order or any reason to disturb the well-reasoned findings of the Appellate Authority, ordering the ejectment of the tenant (petitioner herein) from the demised premises on the ground of bonafide necessity of the landlord. As such, holding the present revision to be devoid of any merit, the same is hereby dismissed with costs.
Copy of this order be placed on each file. Pending applications, if any stands disposed of.
July 03, 2024 (DEEPAK GUPTA)
Sarita JUDGE
Whether reasoned/speaking: Yes
Whether reportable: Yes
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