Bharat Bhushan Parsoon, J.@mdashAmong others, ground of the premises having become unsafe and unfit for human habitation had been taken in a petition seeking ejectment of the tenant from the demised premises. Though the Rent Controller had dismissed the petition on 15.3.1999 finding no such ground to evict the tenant, the Appellate Authority under the East Punjab Urban Rent Restriction Act, 1949 (in short the Act) reversing the findings of the Rent Controller had ordered ejectment of the tenant on this count.
2. By way of this revision petition challenging order of 4.3.2002 of the Appellate Authority, Barnala, following grounds have been taken:-
1. Shamsher Singh AW5 was wrongly taken to be an expert;
2. Mere old age of the building was not enough to hold the building to be unfit and unsafe for human habitation;
3. In report Ex. A5, there was no finding that the premises in dispute were likely to fall in the near future;
4. Report Ex. A5 is unsupported by photographs of the demised premises and thus is not acceptable;
5. No notice had been issued by the Municipal Council to the effect that the building had become unfit and unsafe for human habitation;
6. Evidence of petitioner-tenant in the statement of RW1 and RW2 who had deposed that the building was not unsafe and unfit for human habitation, was ignored by the Appellate Authority;
7. Evidence of building expert Virender Kumar Gupta RW5 produced by the petitioner-tenant was wrongly ignored merely because he was less experienced;
8. No person from the locality was examined by the landlord to prove that the building had become unsafe and unfit for human habitation. Pawan Kumar, attorney of the landlord entering the witness box as AW6 has not been able to substantiate claim of the landlord;
9. Merely because the building had developed cracks or its walls were of mud mortar would not turn such building into the category of ''unsafe and unfit'' for human habitation; and
10. The landlord did not appear in the witness box as his own witness.
3. Seeking acceptance of the revision petition, reversal of findings of the Appellate Authority and consequent dismissal of the ejectment petition by way of restoration of judgment of 18.3.1999 of the Rent Controller has been sought by the tenant-revision petitioner.
4. Whereas Counsel for the petitioner reiterating grounds taken in the revision petition for assailing the impugned judgment of the Appellate Authority has urged that there is neither material nor evidence to substantiate the claim of the landlord that the building has become unsafe and unfit for human habitation, counsel for the respondent-landlord has urged that well written order of the Appellate Authority discussing each and every aspect while reversing the general and sweeping verdict of the Rent Controller of 15.3.1999, cannot be faulted on any score. Dismissal of revision petition has been sought.
5. Counsel for the petitioner referring to
6. Referring to
7. It is also urged that antiquity of construction of a building ipso facto is not a circumstance to conclude about its condition. Support has been sought from
8. It is correct that age of construction of a building ipso facto cannot be held to be determinative of fitness or unfitness of such a building for human habitation. Quality of construction as also its workmanship in addition to quality of building material used go a long way in determining longevity and usefulness of such construction.
9. Report (Ex. A5) proved by Shamsher Singh AW5 is not only elaborate and descriptive but is also pointed and focussed. It cannot be said to be of no value as has been urged by Counsel for the petitioner-tenant. Shamsher Singh AW5 did Overseer course in civil engineering from Civil Engineering School, Lucknow in 1953. This examination was conducted by the Controller of Examination Engineering Schools, U.P. Government Roorkee. He had been serving as Sectional Officer in different Departments in Government as also semi-Government departments for more than 18 years. He was supervising construction of new buildings, roads, bridges, canal lining and was also engaged in maintenance of old buildings and the roads. It is thus evident that he having worked in various capacities in different departments and having been educationally, technically and functionally qualified in his job, had acquired good experience of matters directly or indirectly connected with construction and maintenance of building as an expert in the line. After having been in service since long, he started his second innings as a building expert in 1973 and had appeared in different courts in such capacity of a building expert. Contention of Counsel for the petitioner-tenant that he is not an expert and his report (Ex. A5) is of no worth, is thus mis-founded and lacks merit.
10. Merely because his report (Ex. A5) is not supported by photographs as the tenant had not allowed him to go inside to take photographs of the premises, is not a circumstance to reject the said report.
11. If report (Ex. A5) is read in conjunction with oculatory account of building expert as AW5, it is evident that not only his report is detailed one with regard to structural components, i.e., roofs, walls and the floors but even with regard to functional parts, it is quite pointed. Not only he has reported about structural components of every room on each and every floor but he had also physically checked walls, roofs and floors using different gadgets such as hammer, screw driver, iron blade etc. Not only the visible parts but even he had reported about inaccessible parts by using ladder to climb up for examination of those parts. He had come to a firm finding with regard to category of construction of the premises as second class and had concluded that the walls are of mud mortar and bricks and for roofing wood batons were used. He had found that wood batons and rafters of the building had gone rotten. Taking the totality of the aspects into consideration, he had come to a conclusion that the building was unfit and unsafe for human habitation.
12. To prove to the contrary, the petitioner-tenant had also examined his own expert viz., Virender Kumar Gupta (RW5) who had proved his report Ex. R5. This expert witness had also been working as a Sectional Officer in the Punjab State Electricity Board from 1970 to 1976. There is nothing on record that he was connected with construction and maintenance inter-alia of the buildings or had experience of structural engineering. When he was pointedly cross examined, falling in line with the report (Ex. A5) of Shamsher Singh, he conceded that construction of the building was of second class and further that specifications and walls of the demised premises were made of mud mortar.
13. One distinguishing feature between the two reports (Ex. A5) and (Ex. R5) of Shamsher Singh and Virender Kumar Gupta respectively is that report (Ex. A5) is supported and sustained by various books and treatises on the subject cited by him in support of his physical examination of the premises, whereas no such details are available in report (Ex. R5). The Appellate Authority has although discussed both the reports in sufficient detail and has made detailed discussion to come to a conclusion that Ex. A5 was more acceptable being functionally correct and sustained by data and authorities of various authors on the subject, whereas report Ex. R5 was lacking in such particulars and thus was not acceptable.
14. Observations of the Appellate Authority while appreciating these two reports in para 13 of the impugned order is excerpted as below:-
"13. Now coming to the report of Varinder Kumar Gupta, RW5, it may be stated here that he joined PSEB in 1970 as Sectional Officer and resigned in 1976, as is evident from his report Ex. R-5. It means that his experience as compared to expert examined by the petitioner as AW-5 was far less. Under these circumstances, he could not be said to be the building expert in the true sense. No doubt, in his report, it was stated by him that there were no cracks, in the walls. He also stated that the wooden battens and rafters had not sagged. He also stated that the building is fit and safe for human habitation. However, his report and evidence are to base on any authentic book, regarding the condition of a building, like the one in hand. No doubt, in his report Ex. R-5, he stated that the age of the building was 40 to 45 years. However, he belied his report when during the course of his cross examination, he stated that it was correct that the construction of the wall with bricks and mud mortar comes under the head of second class specifications. He also admitted as stated above, that the walls of the demised premises were of mud mortar. Shamsher Singh, AW-5, on the basis of various books, cited by him, in his report Ex. A-5, stated that the age of such a building as about 70 years. On the other hand, no book was cited by Varinder Kumar Gupta, in his report Ex. R-5. Not only this, Varinder Kumar Gupta, during the course of his cross examination, admitted that the age of the walls G to H, in room R-03 was 100 years. This admission, made by him, in his cross examination, belied his report to the effect that the age of the building was 40/45 years. His evidence and report as compared to the evidence and report of Shamsher Singh, stand nowhere being not based on any scientific data and the actual position at the spot. Under these circumstances, no reliance on the evidence and report of this witness was required to be placed by the lower court. The lower court was thus wrong in placing reliance on the evidence and report of Varinder Kumar Gupta RW-5, for coming to the conclusion, that the building in dispute had not become unfit and unsafe for human habitation."
15. Even when report (Ex. A5) is tested on its own merit, there is detailed appraisal made by the Appellate Authority, which cannot be ignored.
16. It is thus to be noticed that report (Ex. A5) has not been blindly accepted by the Appellate Authority. Rather each and every aspect of the report has been evaluated by the Appellate Authority in its contextual reference to the position existing at the spot and opinion of the expert given on functional aspects in that context. Though it is little long discussion about report of Shamsher Singh (AW5) but appreciation of the same by the Appellate Authority for ready reference needs to be appended because a strong objection has been taken by the counsel for the petitioner-tenant that report (Ex. A5) is authored by a layman who claims to be an expert. Evaluation of report made by the Appellate Authority is reproduced as below:-
"... Now it is to be seen as to whether, Shamsher Singh can be termed as a building expert or not. In the first para of this technical report, in respect of the building in question, he gave description of his qualifications and experience. According to this report, he passed overseer course in Civil Engineering from Civil Engineering School, Lucknow in 1953. The examination was conducted by the Controller of Examination Engineering School. U.P. Govt. Rurkee. It is further evidence from his report that he served as Sectional Officer in different departments (Govt. or semi Govt.) for about 18 year and supervised the construction of new buildings, roads, bridges, canal lining and maintenance of old building and roads. He has been working as building expert since 1973 and appeared in different courts at Sangrur and Patiala District in about more than 1000 cases in the capacity of a building expert. It was further stated by him in the report that he had acquired good experience in all types of building matters as an expert in this line. According to his report the structural components i.e. Walls roofs and floor were physically checked by him with the use of small hammer, plumb bob, screw driver and long iron blade with the help of ladder for inaccessible parts as per requirements. He also prepared the site plan of the disputed shop, along with platform, at its back and of the first floor of the disputed shop. According to him and his report, the disputed shop is partly a double storeyed building situated in Tapa Mandi with its back abutting on school road, consisting of three rooms and a platform, one after the other at ground floor and a room (chobra) attached with a kitchen and bathroom, under stairs. According to his report, the walls of the building in question were constructed with brickwork in mud mortar with use of mega sized bricks 10" x 5" x 2-3/4" except wall ADDG and GH as shown in the site plan Ex. A-5, which have been built with modern bricks. The age of the building at the time of inspection was 70 years, except portion ABCD which was added at a later stage about 40 years before his inspection. He categorized the demised premises as second class building. According to him, the life of such a building is stipulated as 60 years vide page 34 of the Manual of Estimating and Earthwork by Prof. S.C. Goel and O.P. Jain. He further stated in his report that the life of salwood work in roof is about 60 years as per page 631 book of Estimating and Costing by Prof. B.N. Dutta, total strength of soft wood (chir wood) and salwood was 1200 Tbs/sft. and 2400 Tbs/sft respectively vide page 9/28 of handbook for Civil Engineers by Sh. P.N. Khanna. Their life is proportional to their strength. According to him, the life of soft wood work in the roof is 60x1200/2400 : 30 years. According to him, the soft wood is used as batons and boards in roofs of disputed shop and therefore the wood work in the roof had outlived their life. It was stated by the expert in his report that the walls ABCD and CD had presence of rehi in 3'' to 4'' height at base as suggested by dense shade in walls. He checked by scraping cement pointing in the corners A and D. The mud mortar used was transformed to lifeless non-cohesive powder which was the life line of walls.
The roof of room No. 1 contained 10 old 4" x 4-1/2" and 6 comparatively new batons 3" x 4-1-1/3" of soft wood laid in north and south direction on the walls with embossed flowered titles necessary earth and brickfloor at the top. All the batons had worn out and rotten at ends as they responded dull sound, during checking with small hammer. According to him, the batons had sagged by 1-1/2" to 2". The roof over them had correspondingly depressed. Two batons b13 and b10 as shown in the site plan Ex. A-5 had long splits 2'' and 4'' at bottom respectively. The roof floor was newly repaired in cement mortar in 4'' x3'' area individually at point V and W, as shown in the site plan Ex. A-5, through which the roof had leaked before repair. The leakage of wall and roof had been covered up under the white wash. The permissible deflections should not exceed 1/40" per foot span vide page no. 937 of Punjab PWD specification book 1963, which were worked out as 10.42/40:0.26 say 1/4" in this case. The batons were excessively sagged. According to him, the roof of this room was unsafe. The floor of this room, was disintegrated in a few patches. It was adversely affected by rehi, being caused by collected rain water during previous rains. The portion CDKH was built of mega bricks 10"x5"x2-3/4" pointed and segmental arches over doors and opening in wall CD as well as old fashioned pillars. All the walls of this room except DG and HG which were built in mud mortar using modern bricks at a later stage were old. The old walls were lime pointed and they were adversely affected by rehi. The corner joints had opened as vertical cracks marked as C/CI and C/C2 due to lack of bond such that C/CI and 10'' x 1/2" x thr/thr and C/C2 as 10'' x 1/4'' x thr/thr. The walls of room no. 3 could not be checked as they had been covered with cement bags and the respondent denied to expose them by rehandling some bags. However, the wall GH was checked on the side of adjoining shop of Sh. Jagan Nath, Krishan Chand. It had sunk with occurrence of 2" thick through/through 10-5" long gap just under the roof as marked C6 in the site plan Ex. A-5. Apart from it there were four 1/4" thick through/through horizontal cracks of variable lengths 1''-3" to 4"-1" in this wall marked as C2 to C5 at variable intervals in upper 6'' height. There was an inclined crack C1, 4'' x 1/4" x thr/thr rising up from floor level in corner H to the middle of this wall.
The roof of room No. 2 contained 13 long soft wood batons 5" x 4-1/2" with wooden board upon them. All the batons and boards had totally worn out and outlived due to aging. The batons had become rotten at the ends as the same were checked by finger rubbing in vacant gap on the battens ends on wall GF. The boards had developed wringles and become rotten as being adversely affected due to leakage and dampness. In the kitchen, the roof was found to be outlived due to the use of old soft wood therein.
The roof of room no. 3 was also found to be unsafe like that of roof of room no. 2. The roof of room no. 3 was checked in the middle and on checking it was found to be exposed. The batons and boards in the exposed portion had worn out and outlived and the remaining batons and boards had the same condition being of the same life and kind as that of room no. 2. The floor of room no. 2 was of bricks and cement plastered at a later stage. It was having the presence of rehi and thus adversely affected. It sounded hollow during checking with small hammer. The floor of room no. 3 was newly laid in lean cement mortar using old bricks. It was raised by 1'' x 3"-1/2" with respect to the level of the floor of room no. 2 the door chowkat had worn out and outlived. The original chowkat of almirah near the corner F had worn out and eaten up. A plain wooden frame having two planked leaves was fixed additionally over the original mouled rotten chowkat.
The roof of the room on the first floor was found to be newly white washed as to conceal the real condition of the same.
The walls of the room on the first floor had been constructed with brick work in mud mortar and cement pointed at a later stage. Corner joints had opened due to bad bonding as 1/8" vertical cracks marked as C/C1 to C/C4. Crack C-1 was an inclined crack 1/78th" x through/through for 6'' length starting from corner G1, rising from floor to middle of wall and then going up vertically as 3'' long. The condition and appearance of crack suggested the settlement of wall G1 and HI which was consequential to settlement of wall GH under it to the ground floor. The roof of first floor comprised 13 long battens (soft wood) 4" x 4-1/2" and 2 long battens 3"-4" with embossed flowered tiles and necessary layer of earth and brick floor at the top. The roof had been white washed in order to conceal its real condition. All the batons were found to be worn out and had outlived their age and utility. 12 batons (b2 to b13) had sagged by 3" and two batons b1 and b14 had sagged by 2" and 1-1/2" respectively. The roof had correspondingly depressed upon them. The deflection was also more than the permissible limit as per the Punjab PWD specifications Hand Book 1963. The batons b5 and b6 had fractured at middle and two more batons b11 and b12 had long splits 1/4th" x 1'' and 1/2" x 2'' respectively at bottom. All these batons had become exhausted outlived and badly become black on account of seepage of rain water. It was badly cracked and sounded hollow and the roof was unsafe. A new girder 6"x3" bearing stamp ISPAT 175x90 had been fixed in walls F1K1 and G1H1 as additional support to the unsafe roof batons against collapse of roof by cutting holes in walls and repairing the same in cement mortar.
Had the girder not been fixed as aforesaid the roof would have collapsed which would have resulted in collapse of outlived roof of room no. 3 of the shop. The joinery work in this room was also found to have outlived its utility and age. According to this Expert, the kitchen and bathroom were unsafe on account of non provision of any iron girder or beam under the walls. Crck C-2 was vertical through/through 1/4". there was 3'' x 6'' long crack in the western wall. The stair case was unsafe. The iron bars had become badly rusted and unfunctional. Thus, there was no bond with concrete around them as a result thereof. There were to pairs of long cracks 1/4" x 4" deep under the rusted iron bars as shown in the site plan Ex. A-5. The loose cover under the said rusted iron bars had totally left them and had swollen to become loose. The stair slab and the steps above it had depressed. The side of stair in the kitchen had been separate in 4''-8" x 1/8" x 4" deep."
17. Conclusion of the Appellate Authority after considering both the reports is as under:-
"The expert after inspecting the building in question as a whole and pointing the aforesaid defects and cracks came to positive conclusion that the building in dispute had become unsafe and unfit for human habitation. Varinder Kumar Gupta RW-5, the building expert, examined by the respondent who inspected the building, also admitted that the construction of the walls of the demised premises was with bricks mud and mortar. He further admitted that such construction fell within the definition of second class building. He also admitted that the wooden battens and rafters in the roof of the building in dispute were of soft wood. He also admitted during the cross examination that the wall GH of rear room R-3 shown by him in the site plan Ex. R-6 was of the age of 100 years. Since as per the report and evidence of both the experts one examined by the petitioner and the other examined by the respondent, the building could be defined as second class building and the walls were made with mud mortar and bricks and battens and after were of soft wood, it could certainly be said that the maximum age of such a building was 60 years. Since a number of big cracks were found in almost all the rooms walls of the building in dispute by Shamsher Singh AW5, the length and breadth whereof were mentioned in his report and the site plan, the soft wood battens and rafters of the building had rotten, it could certainly be said that the building had become unsafe and unfit for human habitation."
18. In the interface of clear finding of fact that the premises have become unsafe and unfit for human habitation, merely because no person from the locality has been examined by the landlord to make such deposition or that the tenant had examined Raj Kumar (RW1) and Surinder Kumar (RW2) to state that the building is not unfit and unsafe for human habitation, is a matter of no significance. These witnesses of the tenant never lived inside the premises. In addition, they had no occasion or experience to visit the premises even occasionally then how could they have been in a position to depose about the condition of the building qua human habitation? Thus, their statements being too sweeping and general and apparently made to support and sustain their fellow tenant in the vicinity, do not have any probative value for adjudication of the matter in controversy.
19. Similarly, merely because no notice has come from Municipal Council, Tapa for demolition of the building it being allegedly unfit and unsafe for human habitation, is not a circumstance to hold that the building is fit and safe for human habitation. There is no evidence brought by the tenant that any technical staff of the Municipal Council had ever visited the premises and had found it to be fit and safe. If the respondent was so sure of alleged fitness of the building for human habitation, he could have examined any member of the field staff of the said local authority to prove his point that the building was found fit and safe for human habitation even by such Authority. Non-service of notice by such Authority thus does not raise any presumptive proof of such building being fit and safe.
20. Even otherwise, it is not necessary for a building to be unsafe and unfit for human habitation to be imminently dangerous by fall. Threat of fall of the building is not sine qua non for declaring a building to be unsafe and unfit for human habitation.
21. Plea of the petitioner-tenant that non-examination of the landlord in the witness box is a ground to raise a presumption against him is wrong. In this case, Pawan Kumar AW6 is not a stranger either to the building or to the petitioner-tenant. Rather, as per own case of the petitioner-tenant, he had started his tenancy under the son of the landlord (respondent herein) and the present respondent had become his landlord only later. He was continuing to be tenant under the son of the present landlord for the last seven and a half years and thereafter had become tenant under the present landlord that is father of the earlier landlord. This Pawan Kumar attorney is the son of the present landlord. He is knowing each and everything about the building.
22. Thus, merely because he has come in the witness box as attorney of his father who is the present landlord of the tenant, he is not a stranger to the building or the tenant. Rather, he had knowledge of the building since long. He is not a persona non grata qua the building. Merely because Pawan Kumar AW6 has not been able to give technical specifications of the cracks in the walls, roofs or floors or has not been able to give size and dimensions of such damage to the building, though has stated about the facts as those existed at the spot clearly and elaborately deposing further about the physical and functional aspects of the premises, clearly deposing that it has become unfit and unsafe for human habitation, such deposition cannot be said to be of no significance.
23. By no means, testimony of Pawan Kumar AW6 touching closely physical and functional aspects of the premises could be compared to testimony of a technical expert as Shamsher Singh (AW5) whose testimony has already been appended in earlier part of the judgment. To accept such details with technical specifications and dimensions of the cracks and damage to the building rendering it unfit and unsafe for human habitation from Pawan Kumar AW6 on the lines of Shamsher Singh AW5 is expecting too much from a witness who is a layman on this pedestal.
24. Thus, looking from any angle, judgment of the Appellate Authority does not suffer from any factual or legal error. Findings of the Rent Controller on the issue of premises being unfit and unsafe for human habitation had correctly been reversed by the Appellate Authority.
25. For the foregoing discussion and there being no merit in the instant petition, the same is accordingly dismissed.
