JUDGMENT
N.K. Sodhi, J.
1. This revision petition filed by the tenant is directed against the order dated 12.1.1998 passed by the Rent Controller whereby the application filed by the former seeking leave to defend the eviction proceedings has been dismissed.
2. Air Commondore (Retd.) Mohinderjit Singh son of Col. Kehar Singh respondent (for short the landlord) filed a petition under Section 13-A of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter called the Act) seeking ejectment of the petitioner-tenant on the ground that the (landlord) was a specified landlord who retired from service on 31.3.1997 and he did not own and possess any other suitable accommodation at Jalandhar where he intends to reside and that the demised premises were repaired for his own use and occupation.
3. In respondent to the summons issued by the Rent Controller, the tenant appeared and filed an application seeking leave to contest the ejectment petition and filed an affidavit stating the grounds on which he wanted to contest the same. The tenant denied the relationship of landlord and tenant between the parties and asserted that he never paid rent to the land lord but the same was paid to Kehar Singh who, according to the tenant, was the landlord of the demised premises. It was denied that any family settlement as alleged had taken place and it was further pleaded that alleged partition was a sham transaction and the plea had been taken only for the purpose of getting the tenant evicted from the premises in dispute. The tenant also pleaded that the landlord had filed a similar petition against another tenant namely Vinod Kumar and as such the ejectment petition was not maintainable. The tenant further pleaded that the landlord had other accommodation in Jalandhar Cantt and was, therefore, not entitled to seek ejectment under Section 13- A of the Act.
4. The application seeking leave to defend was contested by the landlord and it was pleaded that the demised premises were the joint property of the landlord and other co-owners and that on a family partition the same fell to the share of the landlord who thereby became the landlord of the tenant and was, therefore, entitled to seek ejectment of the petitioner. It was also pleaded that the tenant had no right to challenge the family settlement between the co-owners. On a consideration of the averments made in the affidavits filed by both the parties, the Rent Controller came to the conclusion that there was a family partition between the landlord and other co-owners and that the property in dispute fell to the share of the landlord and that the tenant had no right to question the ownership of the property. It was held that there existed a relationship of landlord and tenant between the parties and that the landlord was entitled to file the ejectment petition. The Rent Controller also found that the landlord retired from Air Force on 31.3.1997 and was, therefore, a specified landlord within the meaning of the Act. As regards the plea that the landlord had filed similar application against another tenant and, therefore, the petition seeking ejectment of the petitioner was not maintainable, the Rent Controller found that no such petition had been filed and that a petition for the ejectment of another tenant under Section 13 had been filed which did not debar the filing of the petition under Section 13-A of the Act. The Rent Controller also found that the landlord did not have any other suitable accommodation at Jalandhar Cantt. as alleged by the tenant. In view of the aforesaid findings the Controller came to the conclusion that the petitioner-tenant was not entitled to defend the ejectment petition and consequently dismissed the application filed by the tenant seeking leave to defend.
5. I have heard counsel for the parties and having gone through the impugned order find no merit in the petition.
6. It was strongly contended by Mr. Dadwal, learned counsel for the petitioner that the ejectment petition under Section 13-A of the Act was not maintainable since the ejectment of his client was sought from non-residential premises namely first floor of shops No. 6 and 7 in Mohalla No. 21, Jalandhar Cantt. This argument cannot be accepted for two reasons. Firstly, no such plea was raised before the Rent Controller and the same cannot be allowed to be taken up for the first time in a revision petition before this Court. Secondly, the heading of the ejectment petition makes it clear that the same had been filed by the landlord to recover possession of the residential premises shown red in the plan which was attached to the petition and those premises were on first floor of shops 6 and 7. It is clear that first floor had been rented out to the petitioner for residential purposes from where his ejectment is being sought. In this view of the matter, it cannot be said that the tenant is being evicted from a non-residential building.
7. The next argument of the learned counsel for the petitioner is that there exists no relationship of landlord and tenant between the parties since the rent was being paid by the petitioner to Col. Kehar Singh father of the landlord, who according to him, is the landlord and not the respondent. This argument is also without any merit. The petitioner is a tenant over the demised premises and has no right to challenge the ownership of the landlord. As per the averments made in the affidavit filed by the landlord-respondent a family partition took place between the co-owners and that the demised premises alongwith some other property fell to the share of the landlord. In my opinion, the Rent Controller was right in holding that the tenant cannot challenge the validity of the family partition in the summary proceedings for ejectment initiated by the landlord. In view of the affidavit filed by Air Commodore Mohinderjit Singh the fact that a family partition took place and that the premises in question fell to his share will have to be taken as correct for the purpose of the present proceedings and in this view of the matter, it cannot but he held that there existed a relationship of landlord and tenant between the parties.
8. No other point was raised.
9. In the result, the revision petition fails and the same is hereby dismissed leaving the parties to bear their own costs.