TMI Blog1976 (4) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeded only on the basis of the findings of the courts below. It may be sufficient, Therefore, to notice the relevant findings of the Tribunal on only the questions argued in this appeal. (3) After observing that the landlord had simply pleaded in para 18(3) in the eviction petition that he was the owner of the premises in dispute and needed the premises bona fide for his residence and for his family members who are dependent upon him, the learned Tribunal noted that the appellants have not been taken by surprise by reason of the landlord not having specifically stated that he had no other reasonably suitable accommodation. In other words, the learned Tribunal understood the said pleading as complying with the requirements of section 14(1)(e) of the Act and, as I understand the learned Tribunal that it was not necessary to re-state as. a ground in the eviction petition the expressions employed in the statute. (4) The learned Tribunal also held that the brother of appellant No. 1 (appellant No. 2) was in exclusive possession of the premises in dispute and that this amounted to parting with possession under section 14(1)(b) two questions, both of some nicety, have alone been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th v. Smt. Pritam Kumari 1961 P.L.R. 865, a decision relied upon by the Tribunal that it was not necessary for the landlord to re-state in the application the statutory conditions. After noticing the above decision reference was also made by Narula C. J. to a decision of the Supreme Court in Attar Singh v. Inder Kumar 1967 P.L.R. 83 that in order to succeed under a similar provision the landlord has not only to prove that he needs the premises for his own use but he also has to prove that he is not in possession of any other such premises in the urban area in question and also to prove that he had not vacated any such premises without sufficient cause after the commencement of this Act. The following observations of Wanchoo J. (as he then was), speaking for the Supreme Court, on page 87 are apposite to the present situation : TURNING now to sub-cl. (c) we find that the landlord has not only to prove before he can get the tenant evicted on the ground that he requires rented land for his own use that he is not in possession of any other rented land for the purpose of his business in that urban area but also to prove that he had not vacated any rented land without sufficient cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if let in, without such a pleading, can be looked into (vide Siddik Mahomed Shah v. Mt. Saran and others. (9) The Rent Control Tribunal conceded in paragraph 22 of his order that no specific plea had been taken by the landlord that he had no other reasonably suitable residential accommodation. I am afraid that the Tribunal has not properly perceived the scope of the objection that the landlord had not stated that he had no other reasonably suitable accommodation, by persuading itself, perhaps a little too easily, that there had been no surprise spring on the tenant by the landlord. (10) In this case it is admitted by the landlord that he was the owner of premises No. 1056 which he had let out to Sundar Lal for running a factory. But a further question arose whether prior to such letting it had been used for residential premises. Yet another question raised was whether the landlord or his wife was the owner of house 1049, stated to be gifted to the wife. At least regarding the former an enquiry, as a fact, became necessary and it seems difficult for me to assert that these cause no surprise, getting sporadic admissions from witnesses without a pleading may not be sufficient. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and a half. (III)The petitioner who is owner of the premises needs the premises bona fide for his residence and the residence of his family members who are dependent upon him. (IV)The respondent No. 1 has illegally sublet, assigned, or has parted with possession of the premises to respondent No. 2 without the consent of the petitioner. (13) There was no reference to any other item of property either belonging to or said to belong to the landlord. THE tenant is not expected to make a research himself and un-aided by any such allegation by the landlord concerning the number of other premises that he owns or can be said to own and which he is unable to reduce to possession for the purposes of his residence as claimed. The tenant should have a fair opportunity of making an inquiry regarding them and to make counter-assertions, if any. In reply to the above blanket allegations the tenants could not be expected to make any better pleading that what was seen in the above-noticed paragraph 18. (14) In the replication the following alone was pleaded by the landlord :. PARA 18 with all its clauses is incorrect and is denied. Clausewise reply submitted hereunder : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spoken about the fact of adoption and his statement can at least be regarded as prima facie evidence of adoption. It is true that he admits the existence of a deed of adoption and of its non-production in the Court. This admission, however, would not render oral evidence inadmissible because it is not by virtue of a deed of adoption that a change of status of a person can be effected. A deed of adoption merely records the fact that an adoption had taken place and nothing more. Such a deed cannot be likened to a document which by its sheer force brings a transaction into existence. It is no more than a piece of evidence and the failure of a party to produce such a document in a suit does not render oral evidence in proof of adoption inadmissible. We, Therefore, agree with the High Court that the plaintiffs' suit for partition of their half share in the property was not incompetent because Shankarlal was not made a party thereto. THE same must be extended to non-traverse in the replication of averments made in the written statement. (16) There is no application even for amendment of the application for eviction. The position taken during the arguments was that even withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w that it was not sufficient to hold that he was merely a licensee. The question which is material to consider is whether on the basis of the brother being in possession, without more, it can be held that the other tenant (brother) had parted with possession of the whole or any part of the premises as laid down by section 14(l)(b) of the Act. Section 14(l)(b) may be read: THAT the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord , (19) PART with possession has to be understood in the legal sense; this expression has been interpreted by this Court in some decisions but before noticing them it may be useful to refer to the concept of family which was explained by a Division Bench of this Court consisting of H. R. Khanna C. J. (as he then was) and Prakash Narain J. in Gobind Dass v. Kuldip Singh 1970 RCR 511. The term family is not capable of concise definition because what constitutes a family in a given set of circumstances or in a particular society depends upon the habits and ideas of persons Constituting that so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent No. 2 is the real brother of the first respondent. The case of the tenants is that the first respondent was maintaining the second respondent and his family who were dependent on the former. The only assertion, by the landlord in reply to this averment in the replication, was that the first respondent had sublet, assigned or had parted with possession of the premises and that the second respondent was in exclusive possession of the premises. (23) What was relied upon by the courts below was the separate ration cards,, which were held to militate against their being members of a joint family ( though Muslims) and the absence of a presumption among Muslims of their being members of a joint family. The actual evidence adduced by the respondents (tenants) was that the mother collected the rations and that there was a joint mess. The family was a large one; the demised property alone was not sufficient; the members had to occupy not only house No. 888 but also house No. 1039/50, which were almost opposite to each other. The father had died in 1964 and the first appellant was made tenant on 1-1-1965. (24) Tribunal in vain to find out anything therein to show either that ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is family has been residing in the demised property for 6 months immediately before the date of filing of the application. The Tribunal observed that it has been. proved that neither the tenant nor any member of his family had been residing in the premises for more than six months prior to the filing of the eviction petition, this was only on the view that he held Abdul Aziz was not a member of the family. The decided cases show the concept of the family itself is such that it could include two Mahammadan brothers as well. To say that a Muslim brother is not a member of the family and to further say that since the brother (now tenant) was found to be living in the demised premises it was a case of his brother tenant not living in that demised premises attracting section 14(l)(d) is, it seems to me, to argue in a circuity. That is the reason why I have noticed the only two points that arise for decision in this case are those under section 14(l)(e) and (b) but not (d). (29) In the result no ground has been made out for eviction either under section 14(l)(e) or (b). Each of these raises a substantial question of law warranting interference with the decree of eviction passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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