1. Heard Sri Komal Mehrotra, learned counsel for the petitioner and Sri Om Prakash, learned counsel for respondent No. 3.
2. The petitioner/landlord of the premises in question i.e. a shop, sought release of premises in question on the ground that he is totally unemployed and is in the need of the same. In rebuttal, the respondents/tenants filed affidavits that the petitioner has various sources of income i.e. from agricultural land, business etc. The Prescribed Authority vide order dated 14.05.1998 allowed release application of petitioner but on appeal, the appellate authority has reversed the Prescribed Authority's order. Hence, this writ petition has been filed by landlord/petitioner assailing the appellate order dated 01.10.1999.
3. It is contended that the appellate court on mere affidavits of tenants has non-suited the petitioner. In fact, no substantial evidence was adduced by tenants to show that petitioner is employed or engaged in agriculture or some other business, though onus to prove the same lay upon them.
4. From the application filed by petitioner-landlord for release of the shop in dispute, it is evident that the case set up by petitioner was that he is educated up to High School and unemployed. Neither he is engaged in any business nor in service. Except the shop in question, he has no personal property elsewhere available wherein he can start or commence his business. He intends to do business of vegetables wholesale shop (Sabzi ki adhat) and therefore, needs the shop. Hence, he sought eviction of tenants/respondents and release of shop in his favour for his personal need.
5. The respondents/tenants no. 1 to 4 and 6 contested petitioner's application and said that the shop in dispute was originally owned by petitioner's father late Abdul Rashid Qureshi who died many years ago. He left behind him seven sons including the petitioner who is not the sole owner of the shop in question. However, it is admitted that rent used to be collected by the petitioner. It is also said that during the lifetime of petitioner's father also, he (the petitioner) used to collect rent on behalf of his father. Thereafter, he stopped collecting rent and the same has been deposited by the respondents/tenants in Rent Dispute Case No. 106 of 1991 in the Court of Munsif, Rampur. The petitioner's father owned agricultural property measuring about 2.53 hectare. After his death the said land is being cultivated by petitioner and his brothers. Besides, the petitioner's deceased father owned four more shops and one house which are all rented. These facts were concealed by petitioner in the release application. The petitioner and his two brothers Tahir Maqsood and Zahid Maqsood are also doing business of collecting hides and skins in the name and style of the firm M/s Z. A. Trading Company. The petitioner's brother Zahid Maqsood used to hold a weekly market at village Shahjadnagar, Tehsil Sadar Kareilly road wherein petitioner used to collect tahbazari and fee and monthly income of the petitioner and his brothers is about Rs. 50,000/- per month. The petitioner's brother Tahir Maqsood is running a shop of sale of arms in the name of Rampur Gun House at Civil Lines, Rampur. The petitioner is running cars and buses on hire and also engaged in construction business.
6. The petitioner filed affidavit in which the agricultural land inherited from father by all the seven sons including petitioner is not disputed. However, he further said that the land is being cultivated by one of brothers of the petitioner who is showing no income therefrom and instead showing more investment than earning. The petitioner has never cultivated the said agricultural land. The four shops and houses referred to by the respondents belong to other brothers of petitioner who are collecting rent therefrom. The petitioner has no concern with the alleged Z. A. Trading Co., engaged in the business of hide and skins and has never collected any tahbazari etc., from the alleged weekly market. He also denied of plying vehicles on hire. Similarly, he also denied of being engaged in construction business.
7. When a person claims release of a shop alleging that he is unemployed and his statement is supported by his own affidavit, if such fact is disputed and denied by the other side, the burden of proof and initial onus lies upon the defendants to show that the landlord claiming himself to be unemployed is actually not unemployed but is employed. No negative evidence can be required to be adduced by a party but a party ascertaining a positive fact has the onus to prove it. In the present case, respondents/tenants except filing their affidavits in rebuttal to petitioner's claim being unemployed, did not adduce any evidence whatsoever. If somebody is engaged in the business of running vehicles on hire, a lot of documents and evidence can be collected to demonstrate it. Similarly, if somebody is a party in a firm or collecting tahbazari etc. again such evidence can also be collected. In the case in hand, no such evidence has been made available on record by the respondents/tenants at all. The mere fact that petitioner owns certain agricultural land having succeeded the same as legal heir, after the death of his father, does not mean that he is not entitled to engage himself in his own independent business, vocation, employment etc. of his own choice. Mere possession of property does not mean engagement in a business, or employment in vocation.
8. The trial Court has clearly said in its order dated 14.05.1998 at page 100 of the paper book that the tenants have failed to adduce any evidence in respect of alleged business and commercial activities wherein they alleged petitioner to be involved and engaged. They have only shown that the petitioner has some agricultural property but that is a joint ownership along with his six brothers. This by itself does not show that he is not entitled to start his own business by getting the shop in question vacated. The appellate court has also not found these findings to be incorrect but it has got influenced by the alleged standard of brothers of petitioner and also by the fact that agricultural and other land and property left by petitioner's father must be of very high value. These facts are totally irrelevant to determine bona fide need i.e. petitioner's requirement of the shop in question i.e. for the purpose of running his independent business.
9. Similarly, while considering comparative hardship, the appellate court has weighted his own views against the petitioner by observing that tenants have no other premises or business to look after themselves. It has failed to consider that there is no evidence otherwise to show that the petitioner has sufficient income also from any other source to maintain himself and his family after the death of his father. The property left by petitioner's father is succeeded by all the legal heirs but that does not mean that other brothers have any moral or legal obligation to maintain petitioner and his family which may have been assumed in respect to father who is admittedly no more.
10. In my view, the appellate court has not considered the matter in correct perspective. The impugned appellate court's order dated 01.10.1999, cannot sustain.
11. The writ petition is, accordingly, allowed. The appellate court order dated 01.10.1999 is hereby quashed and the judgment and order dated 14.09.1998 passed by Prescribed Authority is hereby restored and affirmed. However, respondents/tenants are granted six months time from today to vacate the premises in dispute and hand over vacant possession to the petitioner. The respondents/tenants shall also pay entire rent of the premises in dispute till date of vacating the premises in question, if any, failing which it shall be open to the petitioner to recover the said amount by getting this order executed in accordance with law.
12. The parties, however, shall bear their own costs.
Order Date :- 26.7.2012 Anand