JUDGMENT
Ashok Bhan, J.
1. One K.K. Sikand was the owner and landlord of the premises situated in Shastri Market, Kapurthala. Ranjit Singh, respondent-tenant (hereinafter referred to as ‘the tenant’) was sitting as a tenant on the first floor of the building in dispute, The building in dispute was sold in December, 1985 by K.K. Sikand to Subhash Chander, the present petitioner-landlord (hereinafter referred to as ‘the landlord’).
2. Landlord filed an ejectment petition against the tenant under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as ‘the Act’) from the rented portion of the house consisting of three rooms, a kitchen, bath room and terrace, details of which have been given in the rent petition, situated in Shastri Market, Kapurthala. It was stated that Ranjit Singh was inducted as a tenant by the previous owner K.K. Sikand in the premises in dispute and that the tenant had not paid the rent to him despite oral requests. Rent claimed was at the rate of Rs. 350/- per month. Ejectment was sought on the ground of non payment of rent as well as on the ground of personal necessity. It was stated that the landlord was married having three children and wife; that he was living in Joint ancestral house situated in mohalla Kaserian, Kapurthala, having five residential rooms besides kitchen and bath room etc. and that the landlord had five brothers, three married sisters and mother. Out of the brothers, four including the landlord live along with the family; that the landlord with his family was living in one room which was quite insufficient for their residence; that the building in dispute was purchased by the landlord with a view to shift his residence there; that on the second floor of the building in dispute there was one room of which the tenant had taken forcible possession; that the tenancy was limited to the portion on the first floor; that the landlord was not occupying any residential building in the urban area of Kapurthala except the residential room in the ancestral property in his possession and that the landlord had not vacated any such building without sufficient cause after the commencement of the Act in the urban area. In these circumstances, ejectment of the tenant was sought on the ground of arrears of rent as well as on the ground of personal necessity.
3. Tenant contested the case and filed the written statement denying the claim of the landlord. It was pleaded that the landlord had deliberately given wrong description and the boundaries of the house rented to him; that the room on the second floor was also a part of the tenancy let out to him and that the petition for partial ejectment of the tenant from a portion of the building was not maintainable. It was also averred that the landlord was a friend of the original landlord K.K. Sikand and the premises had been sold by the original landlord so that the present landlord could avail of the plea of personal necessity; that the plea of personal necessity was not available to the previous owner and the same could not be available to the present landlord as well; that the landlord did not require the premises in dispute for his own occupation as he had sufficient accommodation in his possession; that the ground floor of the building consists of a shop which had been rented out to him to carry on his business and that the premises in question had been rented out to him as godown to store goods to be sold in the shop on the ground floor. Thus, the disputed premises were not residential and could not be operated for residential purposes. Reference to some other litigation regarding recovery of rent and ejectment on the ground of non payment of rent initiated by K.K. Sikand, the original landlord was also made.
4. From the pleadings of the parties, following issues were framed:-
“1. What is the rate of rent of the premises in dispute (onus on parties).
2. Whether the tender made on the first date of hearing i.e. 25.9.86 is a valid tender ? OPR.
3. Whether the property in dispute has been wrongly described as alleged, if so, its effect ? OPR.
4. Whether the present petition has been filed for partial ejectment as alleged in preliminary objection No. 2 of the petition, if so, its effect ? OPR.
5. Whether this petition has been filed on behalf of original owner as alleged ? If so, its effect ? OPR.
6. Whether the disputed premises is not a residential one as alleged, if so, its effect ? OPR.
7. Whether the present petition is not maintainable as alleged in preliminary objection No. 5 of the written statement ? OPR.
8. Whether the petitioner has purchased the property in dispute from the original owner and has become a landlord qua the respondent ? OPR.
9. Whether the petitioner bonafide requires the premises in dispute for his own personal use and occupation of his family members and the accommodation in his possession is insufficient to his needs ? OPP.
10. Whether the petitioner does not own any other residential house in the urban area of Kapurthala except a residential room in his ancestral house and he has not vacated any such building without any sufficient cause after the commencement of the Act ? OPP.
11. Relief.
5. Before the Rent Controller, issues No. 1 to 3, 5 and 7 were not pressed. Issues No. 4, 6, 8, 9 and 10 were decided in favour of the landlord. Order of ejectment was passed by the Rent Controller against the tenant.
6. Aggrieved against the order passed by the Rent Controller, tenant filed an appeal which was accepted by the appellate authority. It was held that the landlord had sought the ejectment of the tenant from a portion of the tenanted premises and partial ejectment from a portion of the tenanted premises could not be granted. Findings on issue No. 4 recorded by the Rent Controller were reversed. On all other issues, findings recorded by the Rent Controller were affirmed. It was held that the landlord had established his bonafide requirement and was entitled to eject the tenant from the premises in dispute on the ground of bonafide personal necessity.
7. Aggrieved against the judgment and decree of the Appellate authority, landlord has filed the present revision petition, challenging the findings recorded by the Appellate authority on issue No. 4 only.
8. Counsel for the parties have been heard.
9. Landlord filed the petition for ejectment of the tenant from the premises consisting of three rooms, a kitchen, bath room and terrace i.e. the portion on the first floor of the building but the tenant was also in possession of one room on the second floor. The case of the landlord was that the room on the second floor was not the tenanted premises and the tenant had taken forcible possession of the same. Since it was not a tenanted premises, landlord could not seek tenant’s ejectment under the Act for which he could file a suit only for recovery of possession. He sought the ejectment of the tenant from the premises which were in his occupation as a tenant. As against this, the case of the tenant was that the room on the second floor was also a part of the tenanted premises and the landlord could not seek his ejectment from a portion of the rented premises which would tantamount to partial ejectment. During the course of arguments before the Rent Controller, counsel appearing for the landlord conceded the plea of the counsel for the tenant that Ranjit Singh was also a tenant in the room situated on the second floor of the building in dispute. Possession of the tenant in that room is an admitted fact. Once, this position was conceded that Ranjit Singh was the tenant of one room on the second floor as well, then presumably an argument was raised that he be also ejected from the said room. Rent Controller relying upon this statement of the counsel for the landlord and accepting the same decided issue No. 4 in favour of the landlord. It was held that Ranjit Singh has been considered as a tenant in the upper portion of the building also and, therefore, the petition ceased to be a petition for partial ejectment and the landlord sought the ejectment of the tenant from the entire premises which were in his possession including the room on the second floor. Lower Appellate Court reversed this finding of the Rent Controller on the ground that the landlord had sought ejectment of a portion of the tenanted premises which could not be permitted in view of the law laid down by this Court in Panna Lal v. Dev Jit, 1976 RCJ 817 = (1976) 78 P.L.R. 23 (S.N.) where it was held as under:-
“Held that it is not disputed that the tenant is paying the rent of Rs. 10.83 per month for whole of the ground floor and some other parts in the house. The application for ejectment has been filed by the landlord only for the ground floor. After taking into consideration all the circumstances, I find that the landlord could not file an application for ejectment for a part of the tenancy.”
10. There cannot be any dispute with the proposition that the landlord cannot seek ejectment of the tenant from a portion of the tenanted premises. He has to seek the ejectment of the tenant from the tenanted premises as a whole but in the present case, the plea of the landlord was that the room on the second floor was not a part of the tenanted premises and, therefore, he could not seek ejectment of the tenant under the Act. During the course of arguments, it was conceded by the counsel for the landlord that the room on the second floor was also a part of the tenanted premises and sought the ejectment of the tenant from the entire building on this concession. Although pleadings of the parties were not amended but from the reading of the order of the Rent Controller it can be assumed that the landlord after conceding that the room on the second floor was also a part of the tenanted premises sought the ejectment of the tenant from the entire premises. The entire premises in possession of the tenant had to be taken into consideration while considering the claim of the landlord for ejectment of the tenant on the ground of personal necessity of the landlord. Landlord established his bonafide need and the Rent Controller came, to the conclusion that the landlord was living in a small portion of the ancestral property in his possession and that he required the tenanted premises for his bonafide personal need. Once the landlord accept that the room on the second floor was also a part of the tenanted premises as claimed by the tenant, j he sought the ejectment of the tenant from the entire building in his possession and it cannot be held that the ejectment sought by the landlord, thereafter, remained an ejectment from a portion of the building. No doubt, originally, the case of the landlord was that the room on the second floor was not a part of the room on the second floor was also a part of the tenanted premises then he sought the ejectment of the tenant from the entire tenanted premises in his possession. It has wrongly been held by the Appellate authority that the landlord had sought the ejectment of the tenant from a portion of the building. Findings recorded by the Appellate authority on issue No. 4 are reversed and that of the Rent Controller are restored.
11. Learned counsel appearing for the tenant tried to challenge the findings recorded by the Courts below on issue No. 9 regarding personal necessity on the ground that the landlord was in possession of the whole of the ancestral building because his brothers were residing outside Kapurthala and that the landlord did not require the premises bonafide for his own use and occupation.
12. I do not find any substance in this submission. It has not been proved on the record that the brothers of Subhash Chander had relinquished their rights in the ancestral property and given the same to Subhash Chander. Subhash Chander was proved to be in possession of only one room on the second floor along with a kitchen. Subhash Chander has a wife and three children and the accommodation of one room in his possession, under the circumstances, has rightly been found to be totally insufficient for his personal need. No doubt, some of the brothers of Subhash Chander are not living at Kapurthala but from this fact alone, this cannot be assumed that he is in occupation of the entire building and his brothers have handed over the possession of their portion of the building also to Subhash Chander.
13. Findings recorded by the courts below on issue No. 9 regarding bonafide requirement of the landlord for his personal use and occupation of the tenanted premises are, thus, affirmed.
14. During the pendency of this revision petition, CM 1175-CII of 1994 was filed to bring on record a subsequent event. It was alleged in this application that the landlord has purchased property No. B-13/163-B Near Ghantaghar Chowk, Kapurthala, in the name of his wife Sanyogta Behal vide registered sale deed dated 7.11.1988, that after purchasing this property landlord had constructed two residential floors i.e. 1st and 2nd floors, on the property in question and has shifted his residence in the aforesaid property in the month of February, 1993, and that the premises in dispute were no longer required by the landlord for his personal use and occupation.
15. Reply to this application has been filed. It has been denied that the landlord has shifted his residence to the property No. B-13/163-B Near Ghantaghar Chowk, Kapurthala. It was averred that his wife had purchased property No. B-13/163-B Near Ghantaghar Chowk, Kapurthala on 7.11.1988; that the property in question is a commercial property, a shop measuring 24’x9’6″; that the sale deed depicted the nature of the property to be a shop; that the shop referred to above was destroyed completely due to a bomb blast regarding which F.I.R. 54 dated 2.6.1992 was registered at Police Station Kotwali, Kapurthala, and that one of his brothers Naresh Kumar was killed in this bomb blast. It was averred that the tenant had himself purchased a residential house and he no longer required the premises in his possession.
16. In view of the reply filed by the landlord to the application that the property purchased by his wife is a commercial property i.e. a shop, it cannot be prima facie, held that the landlord has come in possession of a residential house after the filing of the petition and that he was shifted his residence. Under the circumstances, it cannot be held that the landlord no longer requires the premises for his personal use and occupation.
17. For the reasons recorded above, the revision petition is accepted. Findings recorded by the appellate Court on issue No. 4 are reversed. Findings recorded by the Courts below on all other issues are affirmed. Tenant-respondent is ordered to be ejected from the premises in dispute. Tenant is granted three months time to vacate the premises provided he pays all arrears of rent (if any due) within one month from today and also continues to pay the agreed rent for the next three months by the 10th day of month following which the rent has become due. There will be no order as to costs.