Nazaruddin vs Ismaile Hussain

Vijay Kumar Shrivastava, J.—This revision u/s 23E of the Chhattisgarh Accommodation Control Act, 1961 (for short, "the Act") has been directed against the order dated 18-6-2001 passed by the Rent controlling Authority (for short, "the Authority"), Rajnandgaon in case No. 2A/90 of 1993-94, whereby he allowed the application of non-applicant u/s 23A of the Act for recovery of possession of the suit house. Non applicant Ismaile Hussain Phatami is the landlord of suit accommodation whereas applicant Nazaruddin as a tenant is continuing possession over the suit premises. The suit accommodation has been let for residential and non-residential purpose to the applicant. All these facts have not been disputed. Non-applicant was the Deputy Manager in Bhilai Steel Plant, Bhilai, who retired on 31-9-92, therefore, claiming himself to be a landlord u/s 23-J of the Act, filed an application for evicting the applicant from suit accommodation on the ground that he bonafide requires the suit house for his and his son''s residential and non-residential purposes. Applicant denied the claim and raised the plea (hat non-applicant did not give the details of his ownership as also he does not require the suit accommodation for his and his son''s residential or business purposes.

Both the parties adduced their evidence in support of their case. Learned Authority, after evaluating the evidence, held that the suit accommodation is required bonafide by the non-applicant for his and his son''s residential and business purposes and no other accommodation is available in his possession at Rajnandgaon.

Learned counsel for the applicant contended that the Authority shifted the burden on applicant to prove that the non-applicant does not require the suit house bonafide. The Authority has not considered the bona fide need of non-applicant and his son''s objectively and further relying on Sheela and Others Vs. Firm Prahlad Rai Prem Prakash, contended that without proving that non-applicant is the owner of suit accommodation no order for recovery of possession in his favour could be passed. Further relying on P.S. Pareed Kaka and Others Vs. Shafee Ahmed Saheb, contended that the High Court can go into legality or correctness of decision of the Authority and also re-appreciate the evidence.

On the contrary, non-applicant contended that burden of proof as per the Act itself has been shifted by the Legislature on tenant and admittedly non-applicant is co-owner of the suit premises, therefore, he can bring the suit for his and his son''s residential and nonresidential purposes without impleading other co-owners in the case and the Authority appreciating the evidence meticulously has held that no suitable accommodation at Rajnandgaon for residential and non-residential purposes is available with non-applicant who requires bonafide the suit accommodation for his and his son''s residential and nonresidential purposes.

Section 23-D(3) of the C.G. Accommodation Control Act, 1961 reads as below:

(3) In respect of an application by a landlord it shall be presumed, unless the contrary is proved, the requirement by the landlord with reference to clause (a) or clause (b), as the case may be of Section 23-A is bonafide,

From bare reading of the above provision, it is apparent that the pleading made by the landlord in application regarding his bona fide need is to be presumed true till contrary is proved. It means, the legislature itself has shifted the burden on tenant to prove that the landlord does not require the suit accommodation bona fide for his residential or non-residential purposes.

Nazaruddin himself examined in support of his case and in his evidence he admits that non-applicant has no other accommodation at Rajnandgaon. In his evidence he did not say that the non-applicant''s son has any business or is employed or has any accommodation of his own. Non-applicant to support his case adduced himself his son Murtuza and one more witness Hussain Ali. Ismaile Hussain in his evidence deposed that after retirement he intends to live and start business at Rajnandgaon, therefore, he needs the suit accommodation. His elder son Murtuza is unemployed, therefore, he requires the accommodation for his and his son''s residential and non-residential purposes. Murtuza has also deposed that he needs the suit accommodation for his residence and business. At present he is not doing any business due to paucity of accommodation. Both these witnesses deposed that they have no other accommodation at Rajnandgaon. In their cross examination also nothing substantial has been brought to discredit their evidence.

After retirement or before it, every guardian/father attempts to settle their children, therefore as non-applicant''s son is unemployed and has no business, it, is the duty of his father to establish him. Retired person also requires house for their abode. At present non-applicant is living in his wife''s house at Bhilai. All these facts clearly show that for residential and non-residential purposes, landlord/non-applicant needs the accommodation bona fide.

Applicant Nazaruddin in his statement deposed that the house belongs to Shakina Bi, the mother of non-applicant who is dead. Non-applicant is her heir. Non-applicant has two brothers and all the three brothers are the owners of the suit house; that means he admits that non-applicant is co-owner of the suit house.

Hon''ble the Supreme Court rendering judgment in Sri Ram Pasricha Vs. Jagannath and Others, has observed in para 30, the relevant portion thereof is (sic) below:

We are of the opinion that a co-owner is as much an owner of the entire property as any sole owner of a property is.

Counsel for the non-applicant relying on the decisions of Apex Court in the cases of Kanta Goel Vs. B.P. Pathak and Others, and Pal Singh Vs. Sunder Singh (Dead) by Lrs. and Others, contended that one of the co-owners/landlords can bring suit for eviction.

Section 23-A(a) of the CO. Accommodation Control Act, 1961 deals with the provisions regarding bona fide requirement of accommodation for residential purposes, Here, legislature has not created any impediment that the owner alone has right to claim accommodation for his residential purposes. Of course, in sub-clause (b) of Section 23-A of the Act, if the accommodation is required for non-residential purposes, such impediment is there.

Here, in the instant case, the suit accommodation has been let for composite purposes i.e. for residential as well as for non-residential. Non-applicant claimed suit accommodation for residential as well as for non-residential purposes. If bona fide requirement for residential purpose alone is established, in that case also landlord is entitled for recovery of the whole accommodation. Therefore, under the special provisions which contained under Chapter III-A of the C.G. Accommodation Control Act, if the landlord requires any accommodation for composite purpose i.e., residential as well as non-residential bona fide and successfully proves his bona fide requirement of that residential purpose alone, in that case also he is entitled to recover possession of the accommodation as a whole. Here in the instant case, non applicant is co-owner of the suit accommodation and other co-owners did not raise any objection, therefore, he being a landlord and owner has right to evict the applicant from the suit premises.

From the above discussions, it is established that suit accommodation has been let 10 applicant for residential and non-residential purposes. Non-applicant after his retirement requires bona fide suit accommodation for his and his son''s residential, and non-residential purposes and they have no other suitable accommodation in their occupation at Rajnandgaon, therefore, I am of the opinion that the learned Authority after due appreciation of the evidence passing the impugned order has not committed any illegality or irregularity.

In the result, the revision fails and is accordingly dismissed. Parties to bear their own costs.