IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 8TH FEBRUARY 2011 / 19TH MAGHA 1932 RCRev..No. 31 of 2008() ----------------------- (RCA 38/2006 OF THE RENT CONTROL APPELLATE AUTHORITY, (1ST ADDL. DISTRICT JUDGE) KOZHIKODE) (RCP 74/2003 OF THE RENT CONTROL COURT(ADDL. MUNSIFF-II), KOZHIKODE) REV. PETITIONER/APPELLANT/RESPONDENT -------------------------------------------------------- VAYALILAKATH ABDUL NAZAR, S/O MAMMED KOYA, RESIDING AT VALIYAKATH HOUSE, VALIYAPADOM PARAMBA, PAYYANAKKAL, KOZHIKODE. BY ADV. SRI.V.V.SURENDRAN RESPONDENT/RESPONDENT/PETITIONER ------------------------------------ PARUTHITHODI MAMMAD KOYA, S/O SAIDALAVI, RESIDING AT PARUTHITHODI HOUSE, PAYYANIKKAL, KOZHIKODE. ADV. SRI.NIRMAL. S THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 08/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: I.A.NO.253 OF 2008 IN RCR NO.31 OF 2008 DISMISSED. 8.2.2011 SD/- PIUS C.KURIAKOSE, JUDGE. SD/- N.K.BALAKRISHNAN, JUDGE. PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------- R.C.Rev. No.31 of 2008 ---------------------------------------------------- Dated this the 8th day of February, 2011 Order Balakrishnan, J. The short but important question that arises for consideration in this revision filed by the tenant, who suffered an order of eviction under Sections 11(2)(b) and 11(3) of Kerala Act 2 of 1965 (for short 'the Act') is whether 'gumpty shop' which is the subject matter of the petition for eviction is a 'building' as defined under Section 2(1) of the Act. 2. The landlord filed petition for eviction under Sections 11 (2)(b), 11(3) and 11(4)(iii) of the Act. The claim made under Section 11(4)(iii) of the Act was disallowed by the Rent Control Court. It was not pursued thereafter. The Rent Control Court ordered eviction under Section 11(2)(b) and 11(3) of the Act. The appeal filed by the tenant was dismissed. 3. The case of the landlord who is the respondent in this revision is that the 'gumpty' shop (which is almost like a bunk) described in the petition schedule was originally leased out to the father of the revision petitioner by the predecessor-in-interest of R.C.Rev.31/2008 2 the respondent in August, 1990 with a stipulation to pay Rs.50/- as monthly rent. After the respondent/landlord purchased the whole property, a fresh lease deed (kychit) was executed on 2.2.1996 whereunder the revision petitioner agreed to pay a monthly rent of Rs.100/- to the landlord. The landlord contended that the tenant kept the rent in arrears from January, 2003 onwards and hence sought eviction under Section 11(2)(b) of the Act. It was further contended by the landlord that he has no job or avocation and in order to eke out his livelihood, he bonafide needs the petition schedule building for starting a stationery business. 4. The claim was resisted by the tenant contending that no rent was kept in arrears and that the need projected by the landlord is not bonafide. It was also contended that the respondent is having other business and that he is having other buildings of his own in his possession. Further, it was contended that the tenant is depending mainly on the income from the petition schedule building for his livelihood and there are no other suitable buildings available in the locality. It was also contended that the R.C.P. is not maintainable. R.C.Rev.31/2008 3 5. The Rent Control Court found that the gumpty shop which is the subject matter of the R.C.P. would come under the definition of building and hence the objection regarding maintainability raised by the tenant was turned down. The Appellate Authority also concurred with that view. The rent control court found that the tenant could not prove the discharge pleaded by him. The need putforward by the landlord was found to be bonafide and since the tenant could not succeed in establishing the two ingredients required for getting protection under the second proviso to Section 11(3), order of eviction was passed under Section 11(3) also. It was also found that the tenant could not prove that the landlord owns and is having in his possession any other building suitable for conducting business. As stated above, the Appellate Authority upheld the decision rendered by the learned Rent Controller. 6. Sri.P.V.Harish, the learned counsel for the revision petitioner would submit that though in the rent control appeal serious challenge was made with regard to the finding entered by the Rent Controller as to the maintainability of the petition on the ground that the subject matter of the R.C.P. is not a building as R.C.Rev.31/2008 4 can be seen from ground nos.6 to 18, the learned Appellate Authority did not advert to those grounds and hence on that ground itself the decision rendered by the Appellate Authority has to be set aside. On going through the judgment of the learned Appellate Authority, it is seen that all the grounds which were urged by the tenant were considered and as such it has to be found that these grounds were not so seriously pressed into service before the learned Appellate Authority. Whatever that be, the first question to be considered is whether 'gumpty' shop described in the petition schedule is a building as defined in Section 2(1) of the Act. 7. In Ext.A1 rent deed dated 2.2.1996 and in the schedule to the R.C.P. the building was described as a structure having a length of 12 feet and width of 6 feet made up of wooden planks. It has walls on the three sides made up of wooden planks. The roof was made of asbestos sheets painted in black. The main point canvassed by Sri.Harish, the learned counsel for the revision petitioner is that it was specifically noted in Ext.A1 and in the schedule to the petition that the structure was laid on four wheels. So much so, according to the learned counsel, it is a R.C.Rev.31/2008 5 mobile unit and not a structure attached to the earth. Mr.Nirmal, learned counsel appearing for the respondent would submit that although the description in the original rent deed executed by the father of the tenant in favour of the then landlord was reiterated in Ext.A1 and in the R.C.P. the real state of affairs is that the gumpty shop has been built to rest on laterite stones placed or fixed on all the four corners. In support of that argument, the learned counsel relies upon the observations made by the Advocate Commissioner in Ext.C1 report. 8. The observations made by the Advocate Commissioner in Ext.C1 with regard to the wooden structure, that the walls on the three sides are made of wooden planks and that in the front side there is a wooden sheet which can be used as the door as well as a platform for keeping the articles for sale do conform to the description of the same mentioned in the R.C.P. and in Ext.A1 rent deed. But it was specifically noted by the Commissioner that the wooden structure was seen fixed or laid on laterite stones of a height of 2 feet found on all the four corners. Roof of the structure was made up of asbestos sheets. 9. For a better understanding, definition of building R.C.Rev.31/2008 6 occurring in Section 2(1) of the Act is extracted hereunder: (1) “building” means any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purposes and includes - (a) the garden, grounds, wells, tanks and structure, if any, appurtenant to such building, hut, or part of such building or hut, and let or to be let along with such building or hut; (b) any furniture supplied by the landlord for use in such building or hut or part of a building or hut; (c) any fittings or machinery belonging to the landlord, affixed to or installed in such building or part of such building, and intended to be used by the tenant for or in connection with the purpose for which such building or part of such building is let or to be let, but does not include a room in a hotel or boarding house;” It can be seen that the definition of building is an inclusive one and not exhaustive. Going by the definition, it can be seen that the building takes in a hut or part of a hut, let or to be let separately for residential or non-residential purposes. For the purpose of this case, the inclusive portions of the definition of building is not relevant since the dispute does not pertain to appurtenant land or any structure built on it, let out to the tenant. In Oxford Advanced Learner's Dictionary the word 'building' is defined as a structure such as a house, office block or factory that has a roof and four walls. In Collins Cobuild R.C.Rev.31/2008 7 Dictionary also the word 'building' is defined as a structure that has a roof and walls, for example, a house or a factory. Learned counsel for the revision petitioner would submit that the word 'building' occurring in Section 2(1) must receive its natural and ordinary meaning and so it must be a structure or edifice enclosing a space within its walls, and usually, but not necessarily, covered with a roof. Mr.Harish, learned counsel for the revision petitioner has relied upon the decision in A.Satyanarayan Shah v. M.Yadgiri [ (2003) 1 S.C.C. 138] to fortify his submission that even if it is a wooden structure, it should be of permanent nature standing on land and having walls and roof and not a structure which can be easily removed from one place to another, especially when the schedule to the petition and Ext.A1 would show that the structure was on four wheels and not fixed to the earth. In the decision cited supra the definition of building under Section 2(iii) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 was under consideration before the Apex Court. The term building was defined in the said Act as follows: “2.(iii) 'Building' means any house or hut or part R.C.Rev.31/2008 8 of a house or hut, let or to be let separately for residential or non-residential purposes and includes- (a) the gardens, grounds, garages and outhouses if any, appurtenant to such house, hut or part of such house or hut and let or to be let along with such house or hut or part of such house or hut; (b) any furniture supplied or any fittings affixed by the landlord for use in such house or hut or part of a house or hut, but does not include a room in a hotel or boarding house;” Learned counsel submits that the first part of the definition in the A.P.Rent Control Act is in pari materia with the first part of the definition of the building occurring in Section 2(1) of Kerala Act 2 of 1965. While interpreting the definition of A.P.Rent Control Act mentioned above, it was held by the Apex Court: “The expression “hut” cannot be restricted only to huts or cottages intended to be lived in. It will also take any shed, hut or other crude or third-class construction consisting of an enclosure made of mud or by poles supporting a tin or asbestos roof that can be put to use for any purpose -residential or non- residential, in the same manner as any other first- class construction.” The Apex Court had considered the definition of 'building' contained in clause (ii) of Section 2 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 in the decision in Suryakumar Govindjee v. Krishnammal [ (1990) 4 SCC 343]. This decision was referred to by the Apex Court in Satyanarayan R.C.Rev.31/2008 9 Shah's case cited supra. The meaning of the word 'building' given in Black's Law Dictionary (5th edition) as “a structure or edifice enclosing a space within its walls, and usually, but not necessarily, covered with a roof” was also considered by the Apex Court in the decision in A.Satyanarayan Shah v. M.Yadgiri [ (2003) 1 S.C.C. 138). It was further held in the aforesaid decision that the term building has to be interpreted liberally and not narrowly. In that case it was held that a wooden structure, which is in the nature of a permanent structure standing on the land and which has walls and roof though made of wood, would fall within the definition of building as defined in clause (iii) of Section 2 of the A.P.Rent Control Act. Since that part of the definition of the building occurring in Section 2(iii) of the A.P.Rent Control Act is in pari materia with Section (2)(1) of the Kerala Act 2 of 1965, the decision rendered by the Apex Court in the aforesaid case can be made applicable to this case as well, the learned counsel for the revision petitioner submits. But, according to the learned counsel for the revision petitioner, the Apex Court emphasized the fact that the structure should be of a permanent structure standing on the land and not on four wheel as in this R.C.Rev.31/2008 10 case. There can be no doubt that in the context in which the term 'building' has been used it has to be so interpreted as to include therein a structure having some sort of permanency and capable of being used for residential or non-residential purpose. 'Gumpty' mentioned in this case is not a very small structure which can be easily lifted or removed. If it is to be removed from one place to another, the planks used for the walls, doors etc. and the sheet of the roof have to be detached one after the other. The revision petitioner contends and is not disputed by the landlord that earlier the gumpty was at site 'B' shown in the sketch appended to Ext.C1 report and was shifted to site 'A' which is marked by the Commissioner in the sketch appended to the report. The evidence would show that the gumpty was originally situated blocking the direct entry from the road to the building situated behind and so it was removed to site 'A'. There is no case for the tenant that after it was built at the site 'A' it was ever removed. There is also no case that this gumpty was on four wheels though that was the description in Ext.A1 lease deed. So much so, the contention that the gumpty is actually a mobile one and can be moved from one place to another and as such it lacks R.C.Rev.31/2008 11 permanency cannot be accepted. 10. The decision in Vannattankandy Ibrayi v. Kunhabdulla Hajee (AIR 2003 S.C. 4453) was also cited by the learned counsel for the revision petitioner. In that case, the subject matter of tenancy was completely destroyed and as such it was held that the tenant can no longer use the said shop which was the subject matter of the lease and it was held that the Act is not intended to govern vacant land. Since the subject matter of the tenancy was not in existence having destroyed the super structure and so the landlord cannot claim recovery of possession of vacant site under the Act and that the only remedy available to him is to file a suit in the civil court for recovery of possession of land. The facts dealt with therein are totally inapposite to the facts of this case. It was further held in the above decision that the words 'parts of building' used in the definition do not refer to land on which building is constructed. Since the tenancy in respect of the building stood extinguished by destruction of the subject matter of the tenancy, the question which cropped up for consideration in that case was whether the tenancy cannot be said to be continuing since the tenancy of the shop presupposes a R.C.Rev.31/2008 12 property in existence and there cannot be a subsisting tenancy where the property is not in existence. 11. Bearing in mind the principles enunciated by the Apex Court and the meaning of hut which also is a building as defined in Section 2(1) of the Act, the crucial point to be adverted to is whether the 'gumpty shop' is an easily removable one and whether it has some sort of permanency as contended by the landlord. As has been elucidated in Ext.C1 report, the said structure has been in existence for quite a long time and is built in such a fashion that it rests completely on the laterite stones placed on the ground and it is not placed on wheels. That much permanency is seen attached to it. It follows that it is not an easily removable one nor is it a mobile structure. 12. It is submitted by the learned counsel for the landlord that no specific case was putforward by the revision petitioner in the counter statement filed by him to the effect that the building described in the schedule to the R.C.P. is not actually a building or that it is only a mobile one and so the R.C.P. is not maintainable. Though a general statement is seen in the counter statement that the R.C.P. is not maintainable, it was not R.C.Rev.31/2008 13 specifically stated that gumpty mentioned in the R.C.P. is not a building. In other words, the jurisdiction of the Rent Control Court to maintain the R.C.P. was not challenged at all. 13. Yet another aspect also, according to Mr.Nirmal Sajendran, learned counsel for the landlord assumes importance. It is pointed out that it was not specifically stated in the counter statement that the gumpty, the structure in question is a mobile one nor was it stated that the said structure was placed on four wheels. It could be seen that the parties joined issue and let in evidence understanding the word gumpty as a building as defined under Section 2(1) of the Act. It is also worthwhile to note that the tenant has pleaded that the claim for eviction putforward by the landlord is hit by the first proviso to Section 11 (3). Further, the tenant has also raised a plea that he is entitled to the protection under the second proviso to Section 11(3). From the Commissioner's report and the evidence obtained in this case, it could be seen that though the structure was not fixed on the land by using cement or mortar or mud, it was placed on stones and not on wheels. Thus, according to the learned counsel for the landlord, the facts aforesaid would also loom large R.C.Rev.31/2008 14 against the case pleaded by the tenant. 14. Learned counsel for the revision petitioner would submit that if it is actually a point which affects the inherent jurisdiction of the court, the Rent Control Court is not precluded from raising that point at the time of final hearing and that was why a specific point was raised by the Rent Control Court. It is true that though a specific ground was not raised by the tenant that the gumpty mentioned in the R.C.P. is not a building as defined in Section 2 (1) of the Act, at the time of argument it was specifically raised and hence the Rent Control Court dealt with that point in extenso. Considering the oral evidence given by the parties and the facts obtained from the Commissioner's report, the Rent Control Court came to the conclusion that the gumpty mentioned in the petition is having some sort of permanency. Though gumpty is a wooden structure since it rests on the laterite stones placed on the lands and is not easily removable, there can be no doubt that it would attract the expression 'hut' which as per Section 2(1) is a building and as such the contention raised by the tenant that gumpty is not a building is only to be turned down. R.C.Rev.31/2008 15 15. It was contended by the tenant that the rent was duly discharged by him. To prove the plea of discharge, he relied upon some entries made in Ext.B2, a note book prepared by him. Though it was stated by him that the initials found therein were put by the landlord, that was stoutly denied by the landlord. Since the entries in Ext.B2 were seen to be self serving, the court below was not inclined to place reliance on the same. The view so taken by the court below was accepted by the learned Appellate Authority also. The tenant could not prove the discharge pleaded by him. As such the concurrent finding entered by the two courts below cannot be upset by this court in revision. 16. It was sworn to by P.W.1, the landlord that he has no job or avocation and so he intends to start a stationery business in the petition schedule building. Though it was contended by the tenant that P.W.1 is doing broker business and is conducting other business as well, no acceptable evidence could be adduced by him. Even if it is assumed that during the pendency of the R.C.P. he was doing some business, it cannot be held that on that ground the landlord should be nonsuited, for the tenant cannot expect the landlord to sit idle till he gets vacant possession of the R.C.Rev.31/2008 16 petition schedule building. Similarly, though it was contended by the tenant that the landlord is having another gumpty shop in his possession, that was also found against by the two statutory authorities. 17. It was stated by P.W.1 that a petition was filed to evict the tenant in possession of another gumpty shop since that gumpty shop was on the verge of collapse. There is no evidence to show that the landlord is in possession of another building of his own so as to attract the first proviso to Section 11(3). In order to disentitle the landlord from getting eviction under Section 11(3) the tenant must prove that the landlord has in his possession another building of his own. It was also contended that the building situated behind the gumpty shop belongs to the landlord. But, no document could be produced to show that the landlord is the absolute owner of that building. The business conducted in the building situated behind the gumpty was run by the brother of P.W.1. That shop is stated to be held by P.W.1 and his brother. It was held in Asher v. Hassankutty Hajee (2004 (2) KLT 446): “The expressions “his own” “in his possession” R.C.Rev.31/2008 17 used in the first proviso to S.11(3) would show one's exclusive ownership and possession. Words “his own” “in his possession” excludes all others from the ownership or possession of the property. In other words, the test is that a landlord who has building of “his own” “in his possession” has the right of possession, right to enjoy and right to dispossess, i.e., jus sibi habendi and jus alteri non habendi or jus prohibendi. If he is a co-owner along with others he may have only restricted power of dispossession. Since each co-owner is interested in every infinitesimal portion of the subject matter and each has the right, irrespective of the quantity of his interest to be in possession of every part and parcel of the property jointly with the others. Exclusive ownership and possession are sine qua non for invoking the first proviso to S.11(3).” The burden to establish that the landlord is the owner and in exclusive possession of another building is on the tenant. After analysing the evidence threadbare, the courts below came to the conclusion that the need projected by the landlord is bonafide and that he has no other building of his own in his possession to start the business intended by him. The concurrent finding entered by the two courts are founded on legal evidence. It is not unsound or wholly erroneous. This court cannot reappreciate the evidence so as to take a different conclusion. 18. It was also argued by the learned counsel for the revision petitioner that the tenant is entitled to the benefit of R.C.Rev.31/2008 18 second proviso to Section 11(3). Here also there is a concurrent finding that the tenant failed to prove both