JUDGMENT
M.L. Singhal, J.
1. This is revision directed against the ejectment order dated i.e. 8.10.2000 passed by Rent Controller, Bathinda, which was confirmed in appeal by Appellate Authority, Bathinda vide order dated 13.5.2002.
Facts :
2. Ved Parkash filed ejectment application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 for the ejectment of Roshan Lal from shop No.90, situated at Gandhi Market, Bathinda as shown in the site plan (Ex.A-9) attached to the application, it was alleged that this shop had been taken on rent by Roshan Lal from his father Gobind Ram at rental of Rs.400/- per month excluding all other taxes on 9.9.1986. In a family settlement this shop fell to his share. Memorandum of partition was drawn up on 16.8.1997. Roshan Lal thus became tenant by operation of law. He sought to eject him on the ground that he is in arrears of rent since 1.9.1994 at rental of Rs.400/- per month, excluding house tax. He is liable to pay him house tax since 1991-92 which he has paid to the Municipal Committee. He has not vacated any such premises within Urban Area of Bathinda without sufficient cause after the commencement of the aforesaid Act. He has also not disclosed of any such building. He has no other shop to look to for running business than this shop.
3. Roshan Lal-tenant contested this application. It was urged that he took this shop at monthly rental of Rs.400/- including all taxes. He never agreed to pay house tax to the landlord On the first date of hearing, he tendered all arrears of rent w.e.f. 1.9.1994 to 31.12.1998, interest and costs, totalling to Rs.24,150/- which was accepted by him. It was denied that the shop is required by him for his own use and occupation. Family settlement said to have been brought about is not genuine. It is a device devised to secure his ejectment. He owns various properties at Bathinda, As such, this shop is not the only one which he can look to for running his business.
4. On the pleadings of the parties, following issues were framed by the learned Rent Controller :
1- Whether the shop in question has fallen to the share of applicant in family settlement, if so, its effect? OPA
2- Whether the respondent is in arrears of rent since 1.9.94? OPA
3- If issue No.2 is proved, whether the tender made by respondent is valid? OPR
4- Whether the applicant requires the premises in question for personal use and necessity? OPA
5- Whether the applicant is entitled to get house lax from the respondent since 1991-92? OPA.
6- Whether the present application is barred in view of dismissal of earlier eviction application on similar grounds? OPR
7- Relief,
5. Vide order dated 15.10.2000, learned Rent Controller ordered the ejectment of Roshan Lal from this shop in view of his finding that this shop is bonafide required by the appellant for his own use and occupation, it was found that this shop fell to the share of Ved Parkash at a family settlement which was a genuine family settlement. It was found that this application is not barred because his father had claimed ejectment of Roshan Lal earlier on the ground of personal necessity, which was not accepted by the Court.
6. Roshan Lal-tenant went in appeal, which was dismissed by the learned Appellate Authority, Bathinda vide order dated 13.5.2002.
7. Not satisfied Roshan Lal-tenant has come up in revision to this Court.
8. It was submitted by the learned counsel for the petitioner that the family settlement set up by Ved Parkash was not a genuine family settlement. It was devised with a view to secure his ejectment after Ved Parkash’s father Gobind Ram had failed to secure his ejectment on the ground of bonafide requirement earlier. It was submitted that tenant is entitled to agitate that the family settlement between the member of family was not a genuine but was devised to secure his ejectment. In support of this submission, he drew my attention to Vasudev Natha v. Jagdish Prashad Gupta and Ors., 1993 H.R.R. 20.
9. In S.C. Leekha v. Air Commodore Mohinderjit Singh, 1998(2) R.C.R. 304, it was held that tenant can not challenge the relationship of landlord and tenant and family partition between the co-owners of the premises in summary proceedings under the Act for ejectment initiated for ejectment by the landlord. Family partition pleaded by the landlord has to be taken to be correct.
10. In this case both the Courts below have found as a fact that the family partition was genuinely entered between Gobind Ram and his sons. Ved Parkash filed suit No. 214 dated 22.9.1997 against Gobind Ram and his brother Krishan Kumar for declaration that he is owner of this shop in view of family settlement with consequential relief that his name be incorporated in the relevant record as owner. His suit was decreed vide order Ex.A1 by Sh Gurnam Singh, Civil Judge (Jr. Division), Bathinda on 5.5.1998. Ex.A2 is the decree drawn up by the Court. Gobind Ram is to leave the world soon or later, If Gobind Ram showed foresightedness that if he dies without effecting partition during his lifetime, there might be disputes about the properties among his heirs, he did no wrong if he devised a family settlement and bestowed this shop on his son Ved Parkash.
11. Learned counsel for the petitioner submitted that respondent does not require this shop bonafide for his own use and occupation. He and his brother are running business together. Assuming that respondent is not a pedlar, which he says he is and he is running business jointly with his brother, he cannot be kept tied for all times to come with his brother for running of business. Why cannot he ask for a shop for his own use and occupation i.e. for running his own independent business. It is quite clear that he does not own any other shop which he can look to for running his own independent business.
12. Both the Courts below have concurrently found that respondent needs this shop bonafide for his own use and occupation and for running his own business. Question as to whether the need of landlord is bonafide or not is not a question of law. It is a question of fact to be decided upon evidence led by the parties. Second appeal against a finding of bonafide need of landlord does not lie under Section 100 of Code of Civil Procedure, as no question of law is involved. In support of this submission, learned counsel for the respondent drew my attention to Ram Parsad Rijak v. Nand Kumar and Brothers and Anr. 1999 H.R.R. 46.
13. It is not permissible for the High Court to come to a different finding of fact unless finding of Rent Controller is so unreasonable that it should not have been reached on material available. In support of this submission, learned counsel for the respondent drew my attention to Sarla Ahuja v. United India Insurance Company Ltd., (1998)8 S.C.C. 119.
14. It was further submitted by him that there is no doubt that a landlord has to prove that he needs the building for his own occupation but there can be no warrant for presuming that his need is not bonafide. The Statute enjoins that Court should be satisfied about the requirement. In appropriate cases it is even open to the Court to presume that the landlord’s requirement is bonafide and to place the burden of disproving the presumption on the tenant. In support of this submission, he drew my attention to Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kifkunde and Anr. (1999)4 S.C.C. 1.
15. In this case no question of law is involved what to talk of substantial question of law. Case is concluded by concurrent finding of fact which is based on appreciation of evidence and is not vitiated by any perversity.
16. For the reasons given above, this revision fails and is dismissed with costs.
Counsel fee is assessed as Rs.2200/-. Petitioner is, however, allowed two months time to vacate this shop and put respondent-Ved Parkash in vacant possession thereof.