Himachal Pradesh High Court
Ghat vs Tahir Khan on 29 December, 2021
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 29th DAY OF DECEMBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CIVIL REVISION No. 60 OF 2020
BETWEEN:-
JAI DEV SINGH, SON OF LATE
SH.DHARAM SINGH, SHOE MAKER
BY PROFESSION, MOHALLA GUNNU
GHAT, NAHAN, DISTRICT SIRMOUR,
HIMACHAL PRADESH, RESIDENT OF
PETROL PUMP NAHAN, DISTRICT
SIRMAUR, HIMACHAL PRADESH.
r ...PETITIONER/TENANT
(BY SH. KARAN SINGH KANWAR, ADVOCATE.)
AND
TAHIR KHAN, SON OF SH. MOHD.
KHAN, RESIDENT OF MOHALLA
GUNNU GHAT, NAHAN, DISTRICT
SIRMAUR, HIMACHAL PRADESH. ...RESPONDENT/LANDLORD
(BY SH. OWAIS KHAN, ADVOCATE.)
Whether approved for reporting? Yes.
Reserved on: 9.12.2021
Decided on: 29.12.2021
This petition coming on for pronouncement this day, the
Court delivered the following:
JUDGMENT
Instant Revision Petition, under Section 24(5) of H.P. Urban Rent Control Act (herein after referred to the "Act") has been preferred against the order dated 24.12.2019, passed by learned District Judge, Sirmaur, exercising the powers of Appellate Authority under the Act (herein after referred to be the "Appellate Authority") in Rent Appeal No. 6-RA/14 of 2019, titled as Jai Dev Singh Vs. Tahir Khan, whereby order of eviction dated 25.6.2019 passed in Rent Petition No. 08/2 of 2013, ::: Downloaded on - 31/01/2022 23:30:35 :::CIS 2 Civil Revision No. 60 of 2020 titled as Tahir Khan Vs. Jai Dev Singh passed by Rent Contrller-2, Nahan, District Sirmaur, H.P., has been upheld.
.
2. Petitioner herein is tenant and respondent is landlord and hereinafter they have been referred as tenant and landlord respectively.
3. I have heard learned counsel for the parties and have also gone through the records.
4. It is admitted fact that Mohd. Khan, father of Tahir Khan (landlord) had rented out two shops to tenant. Mohd. Khan was having six children, i.e. two sons and four daughters. After death of Mohd.
Khan interest in the property devolved upon his six children. Landlrod herein is one of them. It is also admitted fact that not only landlord Tahir Khan, but his brother Mehtab Khan also filed Rent Petition under Section 14 of the Act for eviction of tenant Jai Dev Singh from the shops, under reference.
5. Learned counsel for the tenant has contended that there are six co-owners in the property having right over the shops and, therefore, petition filed by landlord is not maintainable, particularly when another landlord Mehtab Khan has also preferred rent petition for eviction of tenant from the same shops. Further that despite the fact that landlord had filed Rent Petition for eviction of tenant from two shops, the Rent Controller has splitted the tenancy by passing eviction order from one shop in favour of landlord in present petition.
6. It has been argued on behalf of tenant that there is no bonafide requirement of landlord as landlord has also failed to place on record sufficient material to substantiate his claim of bonafide requirement of the shops and further that he is not the landlord and, ::: Downloaded on - 31/01/2022 23:30:35 :::CIS 3 Civil Revision No. 60 of 2020 therefore, he is not entitled for maintaining the Rent Petition and there is dispute inter se children of original landlord and for that reason, tenant is .
depositing rent in the Court. It has been further contended that, as claimed by landlord, a partition decree has been passed amongst the children of Mohd. Khan, whereby equal share in the property has been given to Tahir Khan and Mehtab Khan, whereas four sisters have been held entitled for `1,00,000/- each and, therefore, Mehtab Khan is also having equal right alongwith Tahir Khan, whereas Rent Controller has passed eviction order of bigger shop in favour of Tahir Khan landlord, which is not in consonance with the claim put forth by the landlord with respect to his share in the property. It has been contented that landlord did not approach the Court with clean hands by claiming him to be absolute owner of two shops, whereas neither it was nor it is so and further that the property in reference has been divided during pendency of the petition, but at the time of filing petition, property was joint.
7. It has been also argued on behalf of tenant that Mehtab Khan had also filed eviction petition to evict the tenant from two shops, however, eviction order from one shop has been passed in his favour and against the tenant. According to learned counsel for the tenant, this course was not available with the Rent controller, rather both petitions should have been dismissed for having filed two petitions seeking identical relief i.e. eviction of tenant from two shops. Learned counsel for the tenant has contended that without giving any finding with respect to bonafide requirement, passing of eviction order against the tenant, on the said ground is perverse for being not substantiated by any material on record.
::: Downloaded on - 31/01/2022 23:30:35 :::CIS 4 Civil Revision No. 60 of 20208. Learned counsel for the landlord has submitted that landlord, after retirement, has no source of livelihood, except the shops .
and, therefore, he requires the shops bonafide, whereas tenant himself has admitted in his deposition in the Court that he is having share in the shops situated in Balmiki Basti to the extent of 29.5 meters and further that he is in possession of a shop on rent of `700/- in Hindu Ashram, where his son is running the shop and he has also admitted that out of three sons of tenant, one son is Trained Graduate Teacher, second is working with the tenant and third one is running the shop in Hindu Ashram, whereas landlord has no other shop to earn his livelihood.
9. Learned counsel for the landlord has referred pronouncement of the Supreme Court in Faruk Ilahi Tamboli & Anr.
Vs. B.S. Shankarrao Kokate (D) by LRs. & Ors., 2016 (1) CCC 805, wherein the Supreme Court in the same circumstances where tenant was having other shops/premises in his possession to run his business, either in his name or in the name of his wife, has upheld the eviction of tenant on the ground that comparative hardship would be that of the landlord as against the tenant.
10. By referring D. Sasi Kumar Vs. Soundararajan, (2019) 9 SCC 282, it is contended on behalf of landlord that there is no better proof than admission and in present case tenant has himself admitted that he is possessing shops at Hindu Ashram and Balmiki Basti and his sons are running the said shops and thus, alternative premises is available with the tenant, whereas landlord has no other shop and thus comparatively landlord is facing hardship more than that of tenant.
::: Downloaded on - 31/01/2022 23:30:35 :::CIS 5 Civil Revision No. 60 of 202011. Referring pronouncement of a Co-ordinate Bench of this Court in Ram Krishan Melu Vs. Kusum Bhasin, 2016 (2) CCC 189 .
(HP), it has been contended that landlord is the best judge of his bonafide requirement and in present case landlord has categorically averred in petition and deposed in the Court that after retirement landlord intends to run a business for earning his livelihood and, therefore, it would be wrong to say that landlord has failed to justify his bonafide requirement.
12. to Learned counsel for the landlord has also referred judgment of this Court in Prem Lal Vs. Soma Devi, 2019 (Supp) Shim. LC 349, wherein this Court, referring judgment of the Supreme Court in D.Sasi Kumar's case supra, has held that once the landlord has established his bonafide requirement, the tenant has no right to stall the eviction process on the ground that he is earning his livelihood from the premises in question and that on eviction it would be difficult for him to maintain his family and to earn his livelihood.
13. Lastly, it has been contended on behalf of landlord that tenant has no concern to raise question with respect to dispute between co-sharers/landlords as in view of definition of "landlord" in Section 2(d) of the Act, respondent is landlord and further that so called dispute between co-sharers after death of original landlord Mohd. Khan, stands settled and the shop in reference has come in the share of landlord herein, whereas another shop has been given to Mehtab Khan and in the Rent Petition filed by Mehtab Khan eviction order of tenant with respect to other shop has been passed.
14. Section 2(d) of the Act defines "landlord" as under:-
::: Downloaded on - 31/01/2022 23:30:35 :::CIS 6 Civil Revision No. 60 of 2020"landlord" means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf , or for the benefit, of any other .
person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorized, a specified landlord, and every person from time to time deriving title under a landlord."
15. Landlord herein is son of original landlord Mohd. Khan and he is one of the persons who have driven title under the original landlord and legal heirs of landlord are definitely entitled to be considered landlord and either of them on his own behalf or on behalf of all is entitled to maintain the eviction petition against the tenant. No doubt, in case there is dispute between landlords, the said dispute inter se landlords shall have no bearing upon right to file the Rent Petition by one or more of them, however, at the time of passing final order, Rent Controller may take into consideration established right of other landlord(s) in the property in question and may pass appropriate order accordingly.
16. In case, at the time of final adjudication of Rent Petition, title of the landlord, preferring Rent Petition is undisputed and clear after determining rights of co-sharers/co-owners in the property, then dispute, if any, amongst co-owners/co-sharers/landlords at the time of filing Rent Petition shall not have any adverse impact on the landlord with clear undisputed title who has preferred Rent Petition. Successor-in-interest of landlord is competent to file and continue the Rent Petition. In present case, at the time of deciding the Rent Petition, the matter with respect to inheriting the property by children of Mohd. Khan was settled by way of partition of the suit property, whereby Tahir Khan and Mehtab ::: Downloaded on - 31/01/2022 23:30:35 :::CIS 7 Civil Revision No. 60 of 2020 Khan were given 7/16 shares each to them and in addition remaining 2/16 share was also given to Tahir Khan and, therefore, Tahir Khan is .
having larger share than Mehtab Khan in the property of Mohd. Khan.
Therefore, there was no cloud on the title of landlord on the property in question and Rent Controller has rightly splitted the tenancy between Tahir Khan and Mehtab Khan by considering entitlement of Tahir Khan on bigger shop and that of Mehtab Khan on smaller shop, keeping in view partition of the entire property and it is apt to record that Mehtab Khan has also accepted the order passed by Rent Controller in his favour, entitling him for vacant possession of smaller shop from tenant.
17. Though learned counsel for the tenant has contended that there is no material to establish bonafide requirement of the landlord, however, it is also noticeable that it has been specifically stated by landlord in rent petition as well as in his deposition in the Court that after retirement, he wants to run a shop for earning better livelihood and there is no premises/shop available for him in the locality for doing so, whereas tenant has admitted himself, as referred supra, that he is having more than one other alternative shops in his possession to continue his business and, therefore, applying the principle of 'comparative hardship', as propounded by the Supreme court referred supra, landlord is entitled for possession after eviction of the tenant from the shop in question. Landlord has every right to enhance his income by utilizing his property including shop under tenancy, but by getting possession thereof in accordance with law.
18. Considering the reasons assigned by the Courts below for passing and upholding the eviction order, passed against the ::: Downloaded on - 31/01/2022 23:30:35 :::CIS 8 Civil Revision No. 60 of 2020 petitioner/tenant, I find no material infirmity, irregularity, illegality or perversity in the order passed by the Courts below. It is also settled law .
that the High Court, exercising the revisional jurisdiction in rent cases, has limited jurisdiction, unless there is material irregularity or illegality or infirmity or perversity in the order, concurrent findings returned by the Courts below, are not to be interfered with.
19. In view of above discussion, I find no ground warranting well as Appellate Authority.
r to interference in the impugned orders passed by the Rent Controller as 20 Accordingly, petition is dismissed with direction to the tenant to handover vacant possession of premises in question, in reference to the landlord Tahir Khan on or before 31st January, 2022, failing which landlord shall be entitled for taking appropriate course available with him for evicting the tenant from the premises. Landlord shall also be entitled for use and occupation charges being deposited by tenant in the Court with respect to shop proportionate to area of shop and rest shall be released to Mehtab Khan brother of Tahir Khan in whose share another shop has fallen. In case no such amount is found to be deposited by the tenant, then landlord shall also be entitled to recover use and occupation charges @ `3000/- per month for one shop fallen in his share from the tenant from the date of passing of eviction order by the Rent Controller till handing over vacant possession thereof to the landlord.
The petition stands dismissed in aforesaid terms.
(Vivek Singh Thakur), th 29 December, 2021 Judge.
(Keshav) ::: Downloaded on - 31/01/2022 23:30:35 :::CIS