1979 PLP 774 (CLC)

(4) Whether the respondent has paid or tendered the rent in accordance with law? (5) Whether the property in dispute is a scheduled building and what is its effect? (6) Relief. ,

2. The learned Rent Controller found Issues Nos. 1, 2 and 5 in favour of the appellant, and issues Nos. 3 arid 4 against him. As a result of these findings he ordered the ejectment of the respondent by his order dated 9-7-1977.

3. In appeal the learned Additional District Judge found on concession of the learned counsel for the appellant that issue No. 2 was redundant and no ejectment could be directed on its basis unless it was held that the unauthorised construction had impaired the value or utility of the property materially. The issue about personal requirement was answered against the appellant on the ground that from the evidence led by him it was clear that he claimed possession of the disputed premises for residential purpose alone and since the property in dispute was a scheduled building, he could not eject the respondent unless he proved that it was required by him either for use as a scheduled building or for use for a non-residential purpose.

4. I have heard the learned counsel for the parties. On going through the record I find that the evidence of Muhammad Sadiq A. W. 1 as well as of the deceased appellant himself clearly made out that he required the premises for office as well as for residential .purpose. The finding of the learned Additional District Judge on issue No. 1 cannot, therefore, be con sidered to be a finding of fact. He has clearly misread the record. But this will not be of any benefit to the appellant since I am in complete agreement with the argument of the learned counsel for the respondent that the requirement of the deceased appellant for his office was entirely personal to him. This requirement ceased after his death. The present position is that the requirement of his heirs and successors-in-interest is only for using the property for residential purpose. I also agree with the argument of the learned counsel for the respondent that a scheduled building cannot be got vacated for being used as a residential building.

5. Subsection (3) of section 13 categorises the buildings for the purpose of personal requirement as follows :- (i) residential building; and (ii) non-residential building or a scheduled building or or rented land. It is clear from clause (i) (a) of subsection (3) that in the case of a residential building the landlord has to prove that he is not occupying another residential building suitable for his needs at the time, in the same urban area in which such building is situated. It is also clear from clause (ii) (b) of sub section (3) (a) that so far as non-residential building, scheduled building or a rented land are concerned the landlord has to prove that he is not occupying in the same urban area in which such building is situated for the purpose of his business any other such building or rented land suitable for his needs at the time. The word `such' points out that he should not be in possession of a non-residential or a scheduled building. This interpretation is further reinforced by the language of the sub-clause that hey should prove that he is not in possession of such building for the purpose; of his business which means that he can acquire a non-residential building scheduled building or a rented land when his object is to run business in the tenanted premises. In the case of non-residential building or rented land the landlord's object should be exclusively business In the case of requirement of a scheduled building his object may be two-fold i.e. business as well as residence. In any case none of the building of this category or classification can be obtained by him unless one of his object or the main object for use of the building is to use it for the purpose of business or trade. It is no doubt true that even a scheduled building can be obtained for being used as a non-residential building but I am definite that such a building cannot be acquired for the purpose of being used solely; as a residential building. Since the object of the successors-in-interest of the deceased appellant is only to use this building as a residential building and the building is a scheduled building, the case would fall under sub -clause (ii) and the ejectment of the respondent cannot be ordered on this ground. .

6. The next question is of section 13(2). The issue "whether the respondent had made some unauthorised construction and had violated the terms of the tenancy and was liable to be ejected" was conceded b; the learned counsel for the appellant on the ground that no order of ejectment could be passed on the basis of the finding on this issue. This is a concession on a point of law and is binding neither on the parties nor upon this Court. It is clear from the facts stated above that one of the grounds and that was a separate ground, for ejectment was that the respondent had without the previous consent of the landlord and in violation of the terms of the tenancy had illegally raised unauthorised constructs in the premises. It appears that the learned counsel had been under an erroneous impression that this objection would fall under clause (iii) of subsection (2) of section 13 which provides that a tenant can be ejected if he has committed such acts as are likely to impair materially the value or utility of the building or rented land. This assumption is not correct. The ground which is the subject-matter of issue No. 2 is clearly covered by sub-clause (b) of clause (ii) of subsection (2) of section 13 which provides that a tenant can be ejected if he without the written consent of the landlord . . . . . has infringed and condition of the tenure on which the building or rented land is held by the landlord, and which is different from clause (iii) of subsection (2) which deals with a case when the tenant damages the property. The learned counsel and the learned first appellate Court both have confused the ground of issue No. 2 with the ground on which issue N-c. 3 is based. The appellate Court's finding on issue No. 2 is unsustainable in law.

7. There is no condition in the rent note Exh. A. W. 3/1 allowing the respondent to make any construction or to desist from making such con struction. In these circumstances the conditions of tenancy would be governed' by section 108 of the Transfer of Property Act which deals with the rights and liabilities of the lessor and the lessee. It provides that in the absence of a contract or local usage to the contrary the lessee of the immovable permanent structure.

8. It is true that section 108 of the Transfer of Property Act is not one of those sections which have been made specifically applicable to Punjab by a notification under section 1 of that Act, but the principles underlying the provisions have been applied to cases arising in the Province in which this Act hat not been made applicable as being in consonance with justice, enquiry and good conscience. This rule is now established but I may refer to only a few authorities on this point. Milkha Singh v'. Shankari (A I R 1947 Lab. 1), Nizam Din v. Ram Sukh (A I R 1931 Lab. 286), Gain Singh v. Atam Ram (A I R 1933 Lab. 374 = 141 1 C 596), Teja Singh v. Firm Kalavan Das Chet Ram and another (A I R 1925 Lab. 575 = 91 1 C 778), Tara Chand v. Sher Singh (A I R 1936 Lab. 944), Was Dev v. Firm Dheru Mal (A I R 1940 Lab. 291). There are authorities in which the principle of section 108 has been applied. Keshav Chander v. Sher Singh (A I R 1937 Lab. 930) (clause (c) of section 108), Dhuram Narain v. Labh Singh (A I R 1920 Lab. 390). Similarly in Abdul Rahim v. Municipal Committee of Delhi (A I R 1927 Lab. 225), it was held that a lessee of a building cannot even add a structure to it or it might have different effect from what was contemplated when the lease was given.

9. In my view the principle of clause (b) of section 108 must have universal applicability since on no principle of law or equity a tenant can be allowed without the consent of the landlord to deal with the tenanted property as a property owned by him and to make any interference ;with its structural constructions or by adding to it.

10. If it is proved that the appellant had made any structural change and had constructed any permanent structure, it will be proved that he has infringed the terms of the tenancy. I have gone through the record from this point of view. The case of the appellant has been that the respondent had illegally raised an unauthorised construction on the top floor. In his written statement this was denied by the respondent. A. W. I Muhammad Sadiq, Advocate in his examination-in-chief made a statement that about two years ago unauthorised construction had been made by the respondent without the permission of the landlord. In cross-examination he stated that this construction was in the form of a barsati. He, however, denied that he had ever gone on the top floor. A. W. 4 Mirza Moharram Ali stated in his examination-in-chief that the respondent had constructed a pukhta barsati on the top floor and its weight had resulted in cracks in the walls. There is virtually no cross-examination on this point. The only cross-examination question put to him on this point was about the expenses. The witness reiterated in his cross-examination that the barsati was a pacca construction and about Rs. 200 to Its. 3000 must have been spent on it. Malik Bahsa-ud-Din deceased appellant in addition to making a reference to this illegal construction also produced in support of his case notice A. W. 5/2 served by the Corporation upon the respondent. He was not cross-examined on this point.

11. The respondent examined Ch. Abdul Waahid, Advocate R. W. 1, Ziaul Islam R. W. 2, Malik Bashir R. W. 3 Muhammad Anwar R. W.

4. None of them made any statement in rebuttal of these statements. In his own statement the respondent stated that he had not raised any unauthorised construction and in any case the value of the property was not impaired. He was cross-examined about the actual construction made by him. But he denied it. During the course of this appeal a Local Commissioner was appointed by this Court. He showed in the site plan prepared by him that, there was a room, a veranda and a latrine on the top floor. One of the doors of the room was closed by masonry. In regard to the veranda, he stated that it appears to have been covered as a room by raising walls and making a `baton floor' with three beams but now it has again been converted into a veranda by removing the roof.

12. The learned counsel for the appellant, however, submitted that there was no veranda now. It was for this reason that I put the query to the respondent himself. He supported the learned counsel for the appellant that there is no veranda but submitted that he had only temporarily covered the courtyard but had removed the temporary structure. It is, therefore, admitted before me that the allegation that the courtyard bad been converted into the form of a room by the respondent is admitted as correct. The question is whether this was a permanent con struction or only a temporary covering as the respondent alleges. It is clear from the said report that for the purpose of making the roof walls had also been raised. Three beams were put on the walls and in this manner the construction was made. This -supports the evidence of the appellant that the statement of the respondent denying any construction is not correct. He had made the construction and this construction was permanent. Though the roof has been removed the walls are still there. It also appears. clear that at the time when the Local Commissioner visited the spot, there was some construction in the nature of a veranda which has now been removed. In these circumstances it is established on record that the respondent had raised, contrary to the conditions of the tenancy and without the permission of the landlord a permanent structure which during the pendency of these proceedings he has partly removed. The finding that he has been interfering with the structure of the premises is further supported by the fact that the respondent, as is evidenced from the Commissioner's report, had closed one of the two doors of the room of the top floor with masonry. This fact was admitted by the respondent and his counsel before .me. The case as set up by the appellant on the basis of sub-clause (b) of clause (ii) of subsection k2) (a) of section 13 has been established.

13. The learned Additional District Judge has apparently not given any finding on this question since he also appears to be under a misapprehension that the case of the appellant is based upon clause (iii) of subsection (2) (a) although as stated above that is an altogether different ground. Issue No. 2 cannot, therefore, be considered to be a superfluous issue. It was an issue as stated above based, upon sub-clause (b) of clause (ii). The appellants have been able to make out a case on the basis of issue No.

2. I reverse the finding of the learned Additional District Judge on this matter and find this issue against the respondent and in favour of the appellant.

14. I accept the appeal with costs, set aside the order of the learned Additional District Judge and restore the order of eviction passed by the learned Rent Controller. K. M. A. Appeal accepted.