Punjab-Haryana High Court
Ganesh Misra vs Mrs. Savita Devi Sahajpal on 28 April, 2009
Author: Hemant Gupta
Bench: Hemant Gupta
Civil Revision No. 2323 of 2009 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No. 2323 of 2009
Date of Decision: 28.4.2009
Ganesh Misra ......Petitioner
Versus
Mrs. Savita Devi Sahajpal .......Respondent
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Shri A.K. Chopra, Senior Advocate, with
Ms. Shilpa Malhotra, Advocate, for the petitioner.
HEMANT GUPTA, J (Oral).
The tenant is in revision aggrieved against the order of ejectment passed by the Courts below.
One Guru Dutt Sharma was the owner of House No.4, Sector 2- A, Chandigarh. The ground floor of the said house has two bed rooms, drawing-dining, kitchen and two toilets, out of which one bed room on the front side is in occupation of the present petitioner, as a tenant. The first floor also consists of two bed rooms. One Sudhir Sharma, is the tenant of the first floor, against whom separate ejectment petition is pending.
The respondent-landlady has sought ejectment of the entire house for her bona-fide use and occupation. It is pleaded by the respondent that she was born and married in Nairobi, but the situation in Kenya has Civil Revision No. 2323 of 2009 (2) become worse and that all the Asians are suffering political wrath of local Africans. Thus, the respondent has sought the eviction of the petitioner- tenant on the ground that she has no future either in England or European countries and has thus, decided to go to her motherland. It is also pleaded that in fact, the house was owned by her father, Shri Guru Dutt Sharma, who died on 26.1.1967, leaving behind his wife Smt. Vidya Sharma; Vijay Sharma and Harsh Sharma and the respondent. The area in occupation of the petitioner was let out by her mother, who died on 8.5.1992. The respondent has propounded a registered Will, executed by Shri Guru Dutt Sharma, in her favour on 1.6.1966.
In reply to the eviction petition, the petitioner, inter-alia, raised objection that the respondent is not the exclusive owner of the property in question and that she has not approached the Court with the clean hands and that even the petition is bad for non-joinder of the necessary parties.
After giving opportunity to lead evidence, the learned Rent Controller returned a finding that in the record of the Estate Office, Chandigarh, the respondent is recorded as a co-owner of the house in question along with Smt. Vidya Devi; Vijay Sharma and Harsh Kumar and, therefore, as a co-owner, she is entitled to seek eviction of the tenant. It also found that the demised premises are required for bona-fide use and occupation of the landlady. In appeal, such finding has been affirmed.
In appeal, Harsh Kumar, brother of the respondent, moved an application for impleading him as a party to the appeal. In the said application, he has pleaded that he is not keen to oust the tenant and that the present petitioner is looking after the property in his absence and is a caretaker. The said application was declined by the learned Appellate Civil Revision No. 2323 of 2009 (3) Authority. It was found that the petitioner in his written statement has not taken a plea that the petitioner is not a tenant and that he is a caretaker-cum- licencee. It is not the case of the tenant that he has surrendered tenancy after the death of Smt. Vidya Devi and taken possession of the property as a caretaker on the instructions of Harsh Sharma. The learned Appellate Authority found that the application was filed by Harsh Sharma with ulterior purpose to shield the tenant to avoid his eviction. The Court held that one of the co-owners can move the eviction petition against the tenant.
Learned counsel for the petitioner has vehemently argued that the respondent has not sought eviction of the tenant as a co-owner. She has sought the eviction alleging herself to be an exclusive owner of the property and, therefore, the eviction petition filed by her could not have been entertained. Reliance is placed upon a judgment of Madras High Court reported as M. Chinniyan v. Kasthuri and others 2007(2) RCR 619. Reliance is also placed upon the Hon'ble Supreme Court judgment in M/s India Umbrella Manufacturing Co. & Others v. Bhagapandei Aggarwala (Dead) by Lrs. Smt. Savitri Aggarwala, (2004)3 SCC 178.
I do not find any merit in the argument raised by the learned counsel for the petitioner. No doubt, the landlady claims herself to be an exclusive owner in the eviction petition. But even if she is the co-owner of the property, then as a co-owner, she is entitled to seek eviction of a tenant. Mere fact that the landlady has asserted herself to be an exclusive owner in the eviction proceedings, does not make the eviction petition not maintainable. The pleadings of the parties are required to be appreciated on the basis of evidence led.
The argument that the eviction petition is not maintainable as Civil Revision No. 2323 of 2009 (4) one co-owner has objected to the eviction is not available to the tenant. The petitioner was inducted as a tenant by the mother of the respondent. After the death of the mother, the respondent is one of the legal heirs and also entitled to receive rent. The petitioner cannot deny title of his landlord. Therefore, the plea raised by another alleged co-owner that the petitioner is a caretaker in fact, contradicts the stand of the person, under whom the petitioner was admittedly inducted as a tenant. It is not the case of the petitioner that he is a licencee or a caretaker. The inter-se dispute(s) of the owners cannot be raised in the eviction proceedings as the Rent Controller has to examine the question of relationship of landlord and the tenant between the parties and to examine whether the landlady requires the premises for her bona-fide use and occupation.
The claim of the respondent is that of exclusive ownership on the basis of Will of Shri Guru Dutt Sharma. Even if in a civil suit in respect of estate of Guru Dutt Sharma, is to be decreed, the status of the respondent herein, will be that of a co-owner. As a co-owner, the respondent has a right to seek eviction of the tenant and such eviction order will enure for the benefit of all the co-owners. The petitioner, as a tenant, in any case, cannot be permitted to espouse the cause of a co-owner, who filed an application before the learned Appellate Authority. The judgment in M/s India Umbrella Manufacturing Company's case (supra), nowhere debars a co- owner to seek ejectment in such circumstances. The judgment of Madras High Court in M. Chinniyan's case (supra), is on its own facts without discussing any of the precedents on the subject. I, with respect, am unable to persuade myself with the view taken in the aforesaid case.
It is further argued that an application for additional evidence Civil Revision No. 2323 of 2009 (5) was filed before the learned first Appellate Court so as to produce on record letter dated 14.8.2007 written by the respondent to her sister-in-law Ms. Ranju. As per the said letter, the bona-fide of the respondent in seeking eviction of the tenant stands negated as the respondent has conveyed her intention to sell the property.
The petitioner is tenant of one room and a kitchen in a front portion of a 4 kanals house. The petitioner was inducted as tenant by the mother of the respondent. The possession of a small portion of a large building shows that the petitioner wants to use his possession to blackmail and harass the landlady of her valuable property. When a litigant is before the Court for number of years, different thoughts come to the mind of the litigant, but the same is not sufficient to return a finding that the respondent does not have any bona-fide personal requirement of her valuable property located in Chandigarh. Such letter, even if produced, would not be sufficient to reject the claim of the respondent for eviction.
Lastly, it is argued that apart from her bald statement, the respondent has not led any documentary evidence to assert her bona-fide requirement. No evidence in respect of harassment to the Asians in Nairobi has been produced. The respondent has furnished an affidavit in respect of her requirement. Both the Courts have returned a finding that the building in question is required by the landlady for her bona-fide use and occupation. Such finding is a finding of fact recorded by the Courts below after appreciation of evidence led by the landlady. There is no evidence to controvert the bona-fide requirement propounded by the landlady.
In view of the above, I do not find any patent illegality or material irregularity in the impugned orders, which may warrant Civil Revision No. 2323 of 2009 (6) interference by this Court in exercise of its revisional jurisdiction. Hence, the present petition is dismissed.
However, the order of ejectment shall not be executed till 31.5.2009.
(HEMANT GUPTA) JUDGE 28.4.2009 ds