ORDER

M.M. Kumar, J. – This is tenants petition filed under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (for brevity ‘the Act’) challenging concurrent findings of facts recorded by both the Courts below. It has been concurrently found by the Courts below that the landlord-respondent no.1 requires the demised shop for his own use and occupation as he did not own any shop for running his medical practice. It has also been found that the landlord-respondent no.1 is a Homeopathic doctor and possesses qualifications of Diploma in Pharmacy and in Dressers Course from Medical College, Amritsar as per the certificate Ex.A.3 issued by the Punjab Pharmacy Council in his favour. He is a registered Pharmacist and certificate Ex.A.2 shows that he was registered as a Homoeopathy practitioner. Learned Appellate Authority has referred to the cross-examination of the tenant-petitioner wherein he has admitted that patients used to come to take medicine from the landlord-respondent no.1 and on that basis, the Appellate Authority has recorded the following findings:

“……… Thus, the landlord has been successful in proving that he was a practising doctor in Homeopathy. From the evidence on record, it is evident that the landlord is running his clinic in the passage to his house and requires the premises in dispute to run his clinic. The shop in dispute is in front of the residential house of the landlord. The need of the landlord in the present case is genuine and cannot be said to be a mere desire to get the premises in question vacated. The judgements relied upon by the counsel for the appellant are not applicable to the facts of the present case and fail to advance the case of the appellant. The learned Rent Controller had rightly allowed the ejectment petition. The impugned judgement does not call for any interference.”

2. It has further been found by the Appellate Authority after close scrutiny of Ex.A.3 that there is a passage from the main road leading to the house of the landlord-respondent. The demised shop is situated in front of the house of the landlord and adjoins the passage. Similar site plan has been placed on record as Ex.R.2 on which reliance has also been placed by the Appellate Authority. It has been concluded that there is only one passage to reach the main building situated behind the shop in dispute. The dimension of the passage as well as of the shop in dispute are similar and in the family settlement one shop passage and two rooms have fallen to the share of the landlord-respondent no.1. Therefore, the Appellate Authority has accepted that the necessity of the landlord-respondent no.1 is genuine and bona-fide which appears to be covered by the provisions of Section 13(3)(a)(i) of the Act.

3. Shri Vikas Behl, learned counsel for the tenant-petitioner has argued that family settlement dated 1.1.1990 on which reliance has been placed by the Appellate Authority has never been produced and the judgement and decree dated 7.4.1995 passed in Civil Suit No.406 of 1994 of 1.9.1994 is collusive decree in which reference has been made only to some oral family settlement. According to the learned counsel, the afore-mentioned decree obtained by the landlord-respondent no.1 is not admissible piece of evidence as the same is required to be registered under Section 17 of the Registration Act, 1908. The learned counsel has maintained that the family settlement is fraudulent in nature because landlord-respondent no.2 who is father of landlord-respondent no.1 actually owns number of shops and family settlement has been made in such a manner that the demise should could be got vacated.

4. Shri Hemant Saini, learned counsel for the respondent has drawn my attention to paras 20,21,22 and 23 of the judgement of the Appellate Authority and argued that there is ample evidence substantiating that oral family settlement has been given effect. According to the learned counsel even if the judgement and decree dated 7.4.1995 is ignored the tenant-petitioner could not avoid ejectment because the oral family settlement to which reference has been made in the judgement and decree dated 7.4.1995 is not a paper transaction but is a living reality. The learned counsel has pointed out that after 7.4.1995 landlord-respondent no.1 became the owner of the demised shop by operation of law and tenant-petitioner never paid any rent to the landlord-respondent no.2. There is no receipt produced on record which may show that rent was ever collected by the landlord-respondent no.2 after 7.4.1995. Learned counsel has pointed out that landlord-respondent no.1 has been running his clinic in the passage.

5. After hearing the learned counsel for the parties, I am of the considered view that the tenant-petitioner has no right to challenge the family settlement as has been held by this court in the case of Ram Lal vs. Harbhagwan Dass 1995(2) Rent Law Reporter 557. It has been repeatedly held by the Supreme Court that even oral partition of Hindu Undivided Family property is not prohibited. Reference in this regard could be made to the judgements of the Supreme Court in the cases of Nani Bai vs. Gita Bai AIR 1958 SC 706 and Roshan Singh vs. Zile Singh AIR 1988 SC 881 and Hans Raj Agarwal vs. CIT 2003(2) SCC 295. Moreover, oral partition to which reference has been made has been implemented as is evident from the fact that landlord-respondent no.1 has to run his clinic from the passage and that father of landlord-respondent no.1 has not been paid rent by the tenant-petitioner after 7.4.1995 i.e. after the judgement and decree passed on the basis of family settlement. In such a situation no doubt can be entertained with regard to the genuineness of the oral partition. Moreover, both the Courts below have concurrently found that the need of the landlord-respondent no.1 is bona-fide and it has to be considered as covered by Section 13(3)(a)(i) of the Act as interpreted by the Supreme Court in the case of Harbilas Rai Bansal vs. State of Punjab (1996)1 SCC 1. In Harbilas Rai Bansal’s case (supra) it was categorical held that the amendment incorporated by Punjab Act no.29 of 1956 was ultra vires of Article 14 of the Constitution as it deleted the right of occupation of commercial building on the ground of personal necessity, while retaining the same in respect of residential building.

6. In view of the above, this petition fails and the same is dismissed.

Petition dismissed.

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