JUDGMENT
Ashok Bhan, J.
1. Present revision petition filed by the tenant arises out of the following facts:-
2. Respondent – landlord (hereinafter referred to as the landlord) filed the ejectment petition against the tenant from House No. 4613 Gali Ghugan within the urban area of Municipal Committee, Fazilka. It was averred that the petitioner along with his two brothers were owners of the house in dispute and two other houses bearing No. 1542 and 1552, situated in Gali Bhagat Ram Monga, Tehsil Fazilka. Family settlement dated 27.12.1981 took place between the parties and the landlord became the exclusive owner of the House No. 4613. That the house in dispute was in occupation of the tenant at yearly rent of Rs. 500/- and that the tenant had not paid the rent w.e.f. 3.6.1975 till the date of filing of the application. The ejectment was sought on the following grounds:-
(a) That the tenant was a wilful and chronic defaulter who defaulted in making the payment of arrears of rent w.e.f. 3.6.1975 till the date of filing of the application at the rate of Rs. 500/- per annum; that the tenant did not pay the rent in spite of the several demands created to him;
(b) that the landlord required the demised premises bona fide for him as well as for the occupation of his family members; that the landlord was residing with his family consisting of his wife and four children who were college/school going along with his brother Joginder Paul. Joginder Pal also had two children and the total building in occupation of both the bothers in which they were residing consists of three bed rooms, two drawing rooms, two balconies; that the landlord was living at the mercy of his brother ; that he did not own any other house in the urban area of the City Fazilka and that he had not vacated any such house without sufficient cause after the commencement of East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act);
(c) that the tenant was guilty of causing material and strictural alterations in the demised premises thereby clearly impairing the value and utility of the demised premises;
(d) that the tenant without permission of the landlord got installed water pipes and electricity connection in the demised premises by digging up and damaging the walls and earth which led to the deterioration both in the condition of building as well as in its value and utility;
(2) that the building had outlived its utility and has become unsafe and unfit for human habitation and consequently requires reconstruction. After getting it vacated, the landlord shall reconstruct it to put his own residence in it.
3. Notice of this application was given. Tenant filed his written statement denying all the allegations in the petition and stated that the rent was Rs. 17/- per month – Replication was also filed. From the pleadings of the parties the following issues were framed :-
1. Whether the petition is bad for non-joinder of necessary parties ? OPR
2. Whether the respondent is liable to ejectment on the grounds mentioned in clauses (a) to (e) of para 4 of the petition ? OPA
3. What is the rate of rent ? Onus on parties.
4. Relief.
4. Before the Rent Controller, grounds (a) and (c) to (e) for ejectment were not passed by the learned counsel for the landlord at the time of arguments was that the landlord required the premises in dispute for his own as well as the occupation of his family members. Rent Controller decided the issue regarding the bona fide requirement of the landlord against him. It was held that the family settlement had not been proved regarding partition. Issue No. 3 regarding rent was also decided against the landlord and in favour of the tenant. The petition for ejectment was ordered to be dismissed. Landlord filed an appeal against the order of the Recent Controller. No arguments were addressed on issue No. 1. No arguments were addressed on grounds (a), (d) and (e) for ejectment of the tenant before the Appellate Court. Before the Appellate Court grounds (b) and (c) were pressed. Both these grounds were accepted by the appellate authority. It was held that the landlord required the premises for his bona fide use and occupation and that the tenant was guilty of causing material and structural alterations in the demised premises. Consequently, the appeal was accepted and order of ejectment was passed against the tenant.
5. I have heard the counsel for the parties at length.
6. Counsel appearing for the petitioner argued that since ground regarding the impairment and utility of the building was not pressed before the Rent Controller, the same could not be raised before the Appellate Authority and even if this point could be raised, the appellate authority should have remanded the case back to the Rent Controller for recording its finding on this ground. Learned counsel appearing for the landlord-respondent stated that he does not press the point regarding the impairment of value and utility of the building and the finding of the Appellate Authority on this point may be set aside. In view of this, the findings recorded by the appellate authority for ejectment of the tenant on the ground of material alterations and impairment of value and utility of the building are set aside.
7. The next point to be taken is with regard to the bona fide requirement of the landlord of the demised premises. Rent Controller had come to a conclusion that since the family partition was not duly registered, the same could not be taken into evidence. Lower Appellate Court reversed the finding holding that the family partition did not require any registration. I find myself in agreement on this point with the reasoning adopted by the appellate authority. Family settlement could be oral which could be proved subsequently and the same did not require any registration. Family partition stands proved from the testimony of AW1 Mathra Dass who is the scribe and AW2 Dr. Vijay Swami who was the attesting witness of the said family settlement. Bishan Lal AW 3 uncle of the landlord stepped in the witness box to state that family partition had taken place between the parties and according to that family settlement/partition, the house in dispute had come to the share of the landlord. Joginder Pal, the brother of the petitioner stepped in the witness box as AW 6 and accepted the partition which had taken place between the parties. Landlord himself stepped in the witness box to prove that family partition had taken place between the parties. Apart from all these there is a Civil Court decree Ex. A.W. 6/2, a judgment rendered by Sub Judge, Fazilka, dated 19.3.1983 vide which it has been held that House No. 4613 had fallen to the share of the landlord. In view of this overwhelming evidence, there is no escape from the conclusion that a valid partition had taken place between the brothers and as per that partition house in dispute had come to the share of the present landlord.
8. Landlord along with his four children and wife is living in House No. 1542 consists of two drawing rooms of the size of 13-1/4′ x 12′ each with a corridor of 8′ wide between them and there are two bed rooms on the ground floor. There being one room, varandah and two balconies on the second floor there being kitchen, toilet and bath. Joginder Paul has a living wife and two children. This accommodation is clearly insufficient for the family living there. Moreover, the landlord is living at the mercy of his brother and wants to shift to his own house which has fallen to his share after partition. There is no denial that four children of the landlord are college/school going and the landlord needs the demised premises for his personal use. Landlord has categorically stated that he has notvacated any house and that he does not own any other residential house in the locality. The requirement of the landlord of the premises in dispute for his own use and occupation is thus found to be genuine and bona fide.
9. The dispute under issue no.3 is whether the rent is Rs. 500/- per annum as alleged by the landlord or Rs. 17/- per month as alleged by the tenant. AW 9 Dool Chand stated in the year 1973 additional facility of pucca court-yard was provided to the tenant by the landlord and the rent was increased to Rs. 500/- per year. As against this, the tenant made his own statement to the effect that the rent was Rs. 17/- per month. Exs. A.W. 5/1 to A.W. 5/9 are copies of the assessment register for the years 1975-76 to 1982-83 for which the annual rent has been shown as Rs. 500/- and the name of the tenant is Ram La). This shows that the rent of the demised premises was Rs. 500/- per year and when these entries were made, there was no dispute between the parties regarding the rate of rent. This fact is further supported by the testimony of A.W. 4 who vide his report Ex. A.W. 4/1 in para 4 has mentioned that the both the parties had admitted that the compound was brick-laid down ten years back. All these factors combined go to show that the rate of rent was Rs. 500/- per year and not Rs. 17/- per month as alleged by the tenant. The findings recorded by the appellate authority on issue No. 3 are thus affirmed.
10. In view of the findings recorded above, this revision petition is dismissed, the impugned order of the appellate authority ordering ejectment of the tenant from the demised premises is affirmed with no orders as to costs. Tenant is granted time upto 31.10.1994 to vacate the premises provided he pays/deposits all arrears of rent including the rent for the month of October, 1994 by 15th of October,1994.