Dua, J.:— Ram Singh petitioner-landlord has come up to this Court in revision against the order of the District Judge, Amritsar, dated the 3rd of May, 1958 dismissing the appeal against the order of the Rent Controller whereby his petition for eviction of the respondent-tenant from the premises in dispute had been disallowed.

2. The petitioner claims to have purchased the house in question for a sum of Rs. 7,600/- from one Sant Singh on the 1st of October, 1956. The petitioner and his family have however been living in another house which was at one time owned by the petitioner's father; he has averred that this other house had in February 1950 been gifted by the petitioner's father in favour of the petitioner's mother. The petitioner has three school-going and two infant children and his case, as made out in his application in support of his claim for ejectment is that he purchased the house in dispute in these proceedings for the purpose of his own use and that this is a good ground for getting the premises vacated by the tenant. The defendant has resisted the claim on the principal ground that the petitioner is already in occupation of another house in the area of Amritsar and that he does not bona fide require the premises for his own use or for that of his family. It is not the tenant's case that the house in question is being sought to be vacated merely for the purpose of giving it at higher rent to others or for the purpose of realising from him higher rent. The Rent Controller came to the conclusion that the house, in which the petitioner is living has been in his possession for a number of years and therefore it must be considered that he is ‘occupying another residential building in the urban area concerned’ and is therefore not entitled to evict the tenant. The Rent Controller also observed that the gift deed, though registered, appeared to have been made at a time when the donor was heavily in debt and that the deed appeared to be collusive and colourable. On these findings the Rent Controller came to the conclusion that the evidence on the record did not show that the petitioner or his family bona fide required the premises in dispute for their own residence. When the matter went in appeal to the learned District Judge, he also dismissed the appeal on the ground that the petitioner, being a resident in the house which belonged to his father and which had recently been gifted to his mother, should be considered to be in occupation of another residential accommodation. It may be rioted that the learned District Judge did not affirm the observation of the Rent Controller that the gift appeared to be collusive; on the other hand, he appears to have been influenced mainly by the consideration that the petitioner's father and his mother both generally live at Hardwar and that the petitioner has been living in his parent's house since a very long time.

3. The landlord, feeling aggrieved by the order of the Rent Controller and the District Judge, has preferred a revision to this Court.

4. In my opinion, both the Rent Controller and the District Judge have approached the consideration of the case from a wholly illegal erroneous point of view. Normally speaking, a landlord is entitled to have the premises vacated by the tenant, unless he has bound himself by contract not to evict a tenant for a specified period. Under the Transfer of Property Act, there are certain conditions imposed with respect to the giving of notice, etc., before a tenant can be evicted. The East Punjab Urban Rent Restriction Act, 1949, which has made special provisions for the purpose of ‘restricting the increase of rent of certain premises situated within the limits of urban areas and the eviction of tenants therefrom,’ has laid down the circumstances under which alone a landlord is entitled to evict his tenant. The provision of law, with which we are concerned in the present case, is contained in section 13(3)(a) which reads thus:—

“13. (3)(a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession—

(i) in the case of a residential building, if—

(a) he requires it for his own occupation;

(b) he is not occupying another residential building in the urban area concerned; and

(c) he has not vacated such a building without sufficient cause after the commencement of this Act, in the said urban area;

5. The question is whether in the present case the petitioner can be considered to be ‘occupying another residential building in the urban area’ concerned so as to justify rejection of his petition for ejectment of the tenant. The learned counsel for the petitioner submits that the word ‘occupying’ as used in this section must be construed to mean that he is occupying another residential building as of right. If the occupation is merely permissive or, in other words, if he is merely a licensee, then his mere residence in or actual possession of such building, for however long a period it may be, cannot be considered to amount to occupation within the contemplation of section 13(3)(a). My attention has been drawn to Lal Chand v. Dr. Jai Bhagwan . Civil Misc. No. 581 of 1956., decided by a learned Single Judge of this Court on the 15th of April, 1958. In this case the landlord owned two houses in one of which he himself lived and the other had been let out to a tenant. The house, in which he was living, was in a dilapidated condition and one day it actually came down with the result that the owner had to vacate it. After vacating it he managed to secure for himself three small rooms belonging to some one else. This accommodation being insufficient for his requirements, he requested one of his relations to give him some accommodation in his (relations) house for a short period. On these facts the Rent Controller had dismissed the landlord's application for eviction of the tenant, and this order was upheld by the learned District Judge in appeal. The landlord aggrieved by these orders approached this Court under Article 227 of the Constitution of India. His petition was allowed by this Court and it was held that the landlord who was occupying emergency accommodation could not be said to be “occupying another residential building in the urban area concerned.” Another decision, to which my attention has been invited by the learned counsel for the petitioner, is Dr. Mohammad Ibrahim v. Syed Ahmed Khan . A.I.R 1950 Mad. 556., where it has been observed that a person must be deemed to be occupying a residential building at the time of an application for eviction if any of the members of his family including dependants reside in the building with his permission and on his account, though physically he himself might not be residing therein. “The test”, according to this decision, “is whether if he desires he cannot at any time go to reside in it”. Stress has been laid by the learned counsel for the petitioner on the above test laid down by the learned Judges in this case; the argument being that, unless it is open to a party to go and reside in the house whenever he desires, he cannot be considered to be occupying that house, and this test, according to the counsel, can only be satisfied if he has a right to go and reside in the house.

6. The learned counsel for the respondent has, on the other hand, drawn my attention to R.M.V Seshasayana Rao v. Manuri Venkatesa Rao . A.I.R 1954 Mad. 531., where it has been held that “when a building belonging to a joint family is leased out, the landlord is not an abstract juristic entity called ‘joint family’, but the members who constitute that family. When a coparcener, therefore, applies for possession under section 7(3)(a)(i) he will be entitled to an order, if he establishes that he requires the house for his own occupation, and he is not disentitled to that relief by reason of the fact that the family owns another house and members of the family are residing there, if he is himself not in occupation of it. He cannot be deemed to be in constructive possession of that house because other members of the family are in occupation thereof. The Act is concerned with actual and physical possession and not with the notional and constructive possession; and it will be foreign to the scheme of the Act to hold that occupation by one member should be construed as occupation by another when that other is not in fact in occupation.” In my opinion the reported case is hardly of much assistance to the respondent. There is no question here of a house belonging to the joint family constituted by the petitioner and his father. The learned District Judge has not given any finding on this point and the casual observation by the Rent Controller that the gift deed appeared to him to have been executed by the petitioner's father at a time when he was in debt can hardly amount to an adjudication of an issue of which a proper trial has been held. Unless a finding of the gift in question being void can be considered to be binding on the donee, whose title is sought to be adversely affected, I do not think it is open to the tenant to non-suit the landlord on the plea that the house gifted by his father to his mother still belongs to the father and that it continues to be a property belonging to the joint family constituted by him and his father the gift having been effected to defeat and delay the creditors of the donor. There was no plea, no issue and no proper trial of this part of the case and even the evidence merely consists of a bare assertion by the tenant alone that the gift in question was made benami to defraud the creditors; I must in the circumstances assume that the registered deed of gift is a genuine document and it represents the correct state of affairs and it is on this assumption that I have to determine whether the petitioner can be considered to be “occupying another residential building in the urban area” concerned. Indeed I am even doubtful if it is at all open to the tenant to challenge the genuine nature of the gift in the present proceedings on the ground that it was made to delay and defeat the donors' creditors; such gifts are in my opinion only voidable at the instance of the creditors in certain circumstances. However, in as much as I do not think it is established on this record that the gift is fictitious or benami or is intended to defeat or delay the creditors of the donor, it is not necessary to express any final opinion on the tenant's right to raise this point in these proceedings. As a matter of fact even with respect to the existence of coparcenary or joint Hindu family constituted by the petitioner and his father, the evidence is rather inconclusive.

7. The learned counsel for the respondent has also drawn my attention to one or two English decisions but those cases were concerned with the meaning of the word ‘occupation’ as occurring in statutes dealing with the liability to pay rates and taxes imposed on the occupiers of buildings. Those statutes not being in pari materia can hardly afford a suitable precedent for determining the meaning of the word “occupation” as used in the East Punjab Urban Rent Restriction Act, 1949. If the owner of property is to be deprived of its user on the ground that there is another property in his actual possession which can serve his purpose, then in my opinion in order to deprive him of the user of his own property he must be entitled as of right to possess and use the other property which must not be in his possession merely at the sufferance, mercy or whim of others; and, in my view it should make no difference that such other persons happen to be his very near relations. The word “occupation” in the context does, in my opinion, imply user or possession under colour of right. In this view of the matter, I am inclined to hold that the word “occupation” as contemplated by section 13(3)(a) of the East Punjab Urban Rent Restriction Act must mean “occupation” in exercise of a right and not dependent on another person's mere sweet will or sufferance, even though that other person be his own mother. The legislature in my view could not have intended to deprive the owner of a house of its user except where he is actually enjoying the user of some other residential building in assertion of a right; a right of user, which he can legally enforce. It is only in such circumstances that the restriction imposed on the right of the landlord to hold and use his property as he likes, may, in my opinion, be considered to be reasonable. To adopt the other construction namely that mere possession or user of another residential building by the landlord without his being entitled as of right to possess it is enough in law to deprive him of his right under section 13(3)(a) of the Act, to eject his tenant which he would otherwise possess, would, in my humble opinion, seem to impose a wholly unreasonable restriction on the owner's right to use and hold his property. This consequence could hardly have been intended by the legislature. The East Punjab Urban Rent Restriction Act has been enacted with the object inter alia of restricting the eviction of tenants from certain premises situate in urban area. The construction which I propose to place on section 13(3)(a) of the Act would, in my view, not only fully subserve the object which the legislature had in mind viz. to control and prevent the eviction of tenants on unsubstantial grounds but it would also at the same time safeguard and secure the legitimate rights in property of honest landlords who bona fide require the user of their own property.

8. Applying the above test to the facts and circumstances of the present case, in my opinion, the petitioner is not disentitled to have his premises vacated. There is no suggestion that the petition for ejectment is not bona fide for any other reason. The object and purpose of his application for ejecting his tenant, seems to me to be merely to enabie the petitioner to live in his own house with his family. There is no suggestion that he wants to let it out to someone else at a higher rent, or that this petition is meant to put undue pressure on the tenant for the purpose of realising higher rent from him. As a matter of fact the legislature has amply safeguarded the right of the evicted tenant, if the landlord does not occupy the premises in question, for the purpose for which possession is obtained by him, for a continuous period of twelve months from the date of such possession. Sub-section (4) of section 13 confers on the tenant a right in such a contingency to have the possession restored to him.

9. For the reasons given above, I would allow this petition, set aside the order of the District Judge as well as that of the Rent Controller and allow the petitioner's application under section 13 of the East Punjab Urban Rent Restriction Act. I would, however, allow two months' time to the respondent-tenant within which to vacate the premises. In the circumstances of this case I would leave the parties to bear their own costs throughout.

Petition allowed.