JUDGMENT
Vinod K. Sharma, J.
1. The present revision petition has been filed against the order dated 20.4.2005 passed by the learned Rent Controller as confirmed by the learned Appellate Authority.
2. It may be noticed that the learned Rent Controller ordered the ejectment of the petitioner on the ground of non-payment of rent, building being unfit and unsafe for human habitation, impairment of the value and utility of the building in dispute and on the ground of change of user. However, the learned Appellate Authority ordered the eviction of the petitioner on the ground of non-payment of rent and on the ground that the building had become unfit and unsafe for human habitation. The reason for recording a finding that the petitioner was liable to ejectment on the ground of non-payment of rent was that the Courts below assessed the rent to be Rs. 500/- as against Rs. 250/- deposited by the petitioner-tenant. On 19th September, 2005, this Court while issuing notice of motion was pleased to pass the following order:
Relies upon the statement of the counsel for the landlord dated May 3, 2002 (Annexure P-4) wherein the tender made by the petitioner-tenant @ Rs. 250/- per month, had been accepted in a subsequent ejectment petition and subsequently the said petition was dismissed as withdrawn by the landlord. On that basis it is contended that the findings recorded by the learned Courts below with regard to the rate of rent @ Rs. 500/- per month, are wholly erroneous.
Notice of motion to the respondent for 28.11.2005.
In the meantime, dispossession of the petitioner shall remain stayed.
3. Learned Counsel appearing on behalf of the respondent has not controverted the factual position recorded in the order dated 19.9.2005. In view of this, learned Counsel for the petitioner contended that the rent of demised premises at the rate of Rs. 250/- per month was paid in court along with interest and costs and therefore, finding on issue No. 1 recorded by the learned Rent Controller as well as the Appellate Authority cannot be sustained. I find force in this contention and accordingly finding on issue No. 1 is reversed and it is held that the petitioner was not liable to be evicted on the ground of non-payment of rent. However, the order of eviction on the ground of building being unfit and unsafe for human habitation cannot be questioned and thus the revision petition deserves to be dismissed qua the said ground. The learned Rent Controller was pleased to record a finding regarding the building being unfit and unsafe as under:
After hearing Id. Counsel for the parties and after going through the record I find merit and substance in the contentions raised by the Id. Counsel for the petitioner. Rajesh Kumar Bansal attorney of petitioner Bhushan Kumar while appearing in the witness box as AW-5 has categorically deposed that the respondent Bimal Yadav had taken the house in dispute on rent for residential purposes but he changed the user of the premises in dispute. He started storing Sugar-cane in the premises in dispute in summer season and fish in the winter season without the consent of the landlord. This version of attorney of petitioner has been fully corroborated by AW-3 Charanji Lal, who has also deposed that respondent has changed the user of the premises in dispute without the consent of the landlord. He further deposed that respondent has started storing sugar-cane in summer season and fish in the winter season. Therefore, by doing so, the respondent has created nuisance for the inhabitants of the mohalla. Rajesh Kumar Bansal while appearing as AW-5 has also deposed on oath that the respondent has constructed open latrine in the premises in dispute as shown in site plan Ex. A-3 at point X without the consent of the landlord. His testimony has been fully corroborated by AW-3 Charanji Lal. Therefore, by constructing open latrine at point X in site plan Ex. A-3 without the consent of the landlord, the respondent has materially impaired the value and utility of demised premises. AW-5 has further categorically deposed that building in dispute is old one and is in dilapidated condition. It can fall at any time. The building in dispute is unfit and unsafe for human habitation. Roshan Lal Sharma, who is building expert while appearing in the witness box as AW has categorically deposed that he visited the spot on 30,4.2001, and inspected the building in dispute and after inspecting the building in dispute he opined that the disputed building is 60/70 years old. The condition of this building is very deteriorated. The Baithak mark X shown green in his site plan Ex. A-5, the walls and roofs of the building against said baithak have already been collapsed due to natural calamity. The disputed building is not worthwhile to live and absolutely unfit and unsafe for human habitation and it can collapse at any time. He proved his report As Ex. A-5 and site plan prepared by him at the spot as Ex. A-4, The respondent has not led any evidence to rebut the testimony of AW-4 Roshan Lal Sharma, Building Expert. Reliance can be placed upon Mathura Dass v. Prithvi Raj (1999-1) 121 P.L.R. 549 wherein it has been held as under:
Where building is unsafe and unfit for human habitation and building is 50 years old and landlord proving by oral evidence that building was unsafe and there after onus shifts on tenant to prove otherwise.
It has also been held in Tarsem Chand v. Niranjan Lal and Anr. (1989-1) 95 P.L.R. 390 as under:
The age of the building proved to be 60/70 years on the basis of expert evidence whole building of which the demised shop forms part is in a dilapidated condition and some portion of the shop in dispute is building outside -whether the shop is unsafe and unfit for human habitation and eviction can be allowed? Held, yes. The dilapidated conditions of the whole building of which the shop in dispute is a part could be taken into consideration to determine the condition of the ship in question itself.
If the landlord by appearing in the witness box and supported by another witness who is an building expert proved that the building is old one and unfit and can safe for human habitation, then onus shifts upon the tenant/respondent to prove otherwise. The respondent has not examined any Building Expert, who could rebut the testimony of AW-4 Roshan Lal Sharma Building Expert and could have proved that the building in dispute is fully fit and safe for human habitation. On the other hand, the testimony of AW-4 Roshan Lal Sharma Building Expert cannot be disbelieved. All the AWs were cross-examined at length by the Id. Counsel for the respondent but he has failed to extract anything out of their mouth in favour of the respondent. The evidence led by the appellant is most convincing and inspires confidence of the Court.
4. Learned Counsel for the petitioner has sought to contend that the report of the Building Expert relied upon by the learned Courts below could not be taken into consideration as the same is qua part of the building which was not in possession of the petitioner-tenant, neither the same was rented out to him This contention of the learned Counsel for the petitioner cannot be accepted as the report of the building Expert is qua the whole building including the demised premises in possession of the petitioner. Further more this Court has been pleased to hold in the case of Sunder Dass and Anr. v. Avinash Chander Sood (1992-1) 101 P.L.R. 220 that a finding regarding building being unfit and unsafe for human habitation, is pure question of fact and concurrent finding of fact recorded by the learned Courts below is not open to challenge in the revisional jurisdiction of this Court. Even the findings recorded by the learned courts below are not perverse, which can be interfered with in the revisional jurisdiction, as the petitioner-tenant failed to lead any evidence in rebuttal to the evidence produced by the landlord showing that the building was unfit and unsafe for human habitation.
5. No ground for interference is made out.
6. Dismissed.
7. However, the petitioner-tenant is granted three months’ time to vacate the demised premises.