IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 19TH OCTOBER 2010 / 27TH ASWINA 1932 RCRev..No. 313 of 2010() ------------------------ RCA.108/2007 of RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE RCP.181/2004 OF RENT CONTROL COURT KOZHIKODE-I .................... REVISION PETITIONERS (S)/APPELLANTS/RESPONDENTS: -------------------- 1. V.AHAMMED KOYA AGED 53 YEARS, S/O. USMAN KOYA, VANISSERY VEEDU, NAGARAM AMSOM DESOM OF KOZHIKODE TALUK REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, VANISSERY MAMMU KOYA, AGED 63 YEARS S/O. LATE C.V. MAMMU KOYA, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. 2. M.M.ALIKOYA, AGED 64 YEARS, S/O. ABDULLA KOYA, MALIKKARAKATH MALIYEKKAL NAGARAM AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.K.M.FIROZ SMT.M.SHAJNA RESPONDENT(S)/RESPONDENT/PETITIONER: --------------- PADINHARE PALLIVEETTIL KUNHEEBI, D/O. BARAMIVALIYAKATH ABDUL KHADER BARAMI, SENIOR TRUSTEE BARAMI VALIYAKAM THARAVAD NAGARAM AMSOM DESOM, KOZHIKODE TALUK. 678002 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 19/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ------------------------ R.C.R.No. 313 OF 2010 ------------------------ Dated this the 19th day of October, 2010 O R D E R Pius C.Kuriakose, J. Under challenge in this revision under Section 20 is the Judgment of the Rent Control Appellate Authority confirming the order of eviction passed against the revision petitioners on the grounds of arrears of rent and sub letting. 2. We do not find any warrant at all for interfering with the order of eviction concurrently passed on the ground of arrears of rent in this jurisdiction especially since it is trite that any order of eviction passed on the ground of arrears of rent is tentative and is liable to be vacated by making requisite deposits under Section 11(2)(c). We confirm the order of eviction passed on the ground of arrears of rent, however granting to the revision petitioners one month's time from today for getting that order vacated by making requisite deposits and filing necessary application before the Rent Control Court. 3. The substantive ground, on which the eviction order is RCR.No.313/2010 2 passed, is the ground of an objectionable subletting/transfer. The case of the landlord was that the building is let out to the first respondent in the RCP (first revision petitioner) on the basis of kooli kychit on 31/12/1983 and that the first respondent is no longer in occupation of the petition schedule building. It is alleged that the possession of the building is presently exclusively with the 2nd respondent (2nd revision petitioner). It is alleged that the status of the second respondent is that of a sub tenant or unauthorized transferee. It is further alleged that the sub lease became known to the landlord only just prior to the institution of the RCP and that despite a statutory notice issued under the proviso to Section 11 (4)(i), the sub lease was not terminated. It is also averred in the RCP that the first respondent has left India. 4. The defence of the revision petitioners to the ground of sub lease was one of denial of the lease agreement dated 31/12/1983 and a contention that the building was obtained by one Usman Koya(father of the first revision petitioner) and the second revision petitioner jointly in the year 1964 on the basis of an oral lease for the purpose of conducting a ration shop. It is RCR.No.313/2010 3 contended that after Usman Koya passed away on 4/4/1969, the legal heirs of Usman Koya including the first revision petitioner and also the second revision petitioner have been conducting the ration shop in partnership in the petition schedule premises. The Rent Control Court would throughly analyse and appreciate the evidence adduced by the parties consisting of testimonies of PWs1 and 2 , RWs1 and 4 and documents Exts.A1 to A9 and B1 to B48 apart from summoned documents Exts.X1 to X1(b). The Rent Control Court would come to the conclusion that the respondents in the RCP had failed in establishing their contention that possession of the second revision petitioner is on the basis of an oral lease which dates back to 1964. As a consequence, it was held that the version of the landlord was probable and true. In this connection reliance was placed by the learned Rent Control Court on the rent receipts, all of which continue to be issued, in the name of Usman Koya only, who as already stated is the father of the first revision petitioner/first respondent in the RCP. On the basis of the above finding, it was held that eviction ground under Section 11 (4)(i) is made out and order of eviction was passed. RCR.No.313/2010 4 5. The learned Rent Control Appellate Authority considered the appeal preferred by the Revision Petitioners and reappraised the pleadings and the evidence. That authority would concur with all the findings of the Rent Control Court and confirm the order of eviction. 6. In this revision under Section 20, various grounds have been raised assailing the judgment of the Appellate Authority. It was very fervent submissions which were addressed before us by Sri.Firoz .K. M, the learned counsel for the revision petitioners on the basis of the grounds in the Revision petition. Drawing our attention to the averments in the Rent Control Petition, Mr.Firoz submitted that evidence available in the case established to the very hilt that much prior to 31/12/1983, the date of the alleged entrustment, a ration shop was being conducted in the petition schedule premises by the second revision petitioner also. In the teeth of the evidence including Ext.X1, which is a public document, it is inevitable that the landlord's case of entrustment of the building to this revision petitioner alone on 31/12/1983 failed. What has been found by the authorities is that Usman Koya was the original tenant and that the first revision petitioner RCR.No.313/2010 5 is at best only one of the legal heirs of Usman Koya. The learned counsel highlighted that the statutory intimation notice, which is to be issued for maintaining in the Rent Control Petition on the ground of sub letting under the proviso to Section 11 (4)(i), has been issued in this case only to the first revision petitioner who is only one of the legal heirs of the tenant. The RCP is liable to fail on that reason, so submitted Mr.Firoz. The learned counsel then submitted that the building in question is a Wakf property. The learned counsel referred to the notification issued by the Government under Section 25 of Act 2 of 1965 and submitted that the properties have been excluded from the Act 2 of 1965 and for that reason also the Rent Control Petition should have been found to be not maintainable. The learned counsel submitted that the judgment of the Appellate authority is illegal, irregular and improper as the appreciation of evidence by that authority has been throughly erroneous. The learned counsel requested that this court issues notice so that a second look can be had on this case. 7. Persuasiveness of the submissions of Mr.Firoz notwithstanding, when we remind ourselves of the contours of RCR.No.313/2010 6 our present jurisdiction under Section 20, we do not find any warrant for interference with the judgment of the Appellate Authority. In this jurisdiction we are not ordinarily expected to make a reappraisal of the evidence. We notice on a reading of the judgment of the Appellate Authority that the findings entered therein in the context of ground under Section 11(4)(i) are all reasonable findings apparently made on the basis of correct appreciation of the pleadings and evidence. Specific defence of the revision petitioners was that the alleged sub lessee, the second revision petitioner, is a joint tenant in his own right and not a sub lessee. The basis for this defence was the oral lease of 1964 in favour of Usman Koya, the father of the first and second revision petitioners. There was a further contention that the ration shop business, which is being conducted in the petition schedule building, is a partnership business. To begin with Usman Koya and the second revision petitioner were the partners and presently both the revision petitioners are partners. As rightly noticed by the statutory authorities, there was no legal evidence on the basis of which these defences could have been accepted by the statutory authorities. True, in the Rent Control RCR.No.313/2010 7 Petition, the landlord refers to entrustment in favour of the first respondent on the basis of a Kooli kychit dated 31/12/1983. It was submitted by Mr.Firoz that an endeavour was made by the landlord to bring on record the Photostat copy of such a Kooli kychit. Whatever that be, as rightly pointed out by the Appellate Authority, all the rent receipts, which were actually placed on record, would show that the tenant was Usman Koya who significantly is the father of the first revision petitioner. Going by the statutory definition of the tenant legal heir of the deceased tenant is also a tenant. May be all the legal heirs of the deceased tenant are tenants. But it is trite that tenancy right which devolves upon the legal heirs on the demise of a tenant is a joint tenancy. In other words, right of tenancy devolves upon the whole body of legal representatives. According to us, non impleadment of other legal heirs will not be fatal as the body of legal heirs is substantially represented by the first revision petitioner. 8. The submission of Mr.Firoz that the property is a Wakf property does not appeal to us. Though such an alternative contention was also raised, it is seen from the RCR.No.313/2010 8 judgment of the Appellate authority that the revision petitioners practically gave up that contention. We are not inclined to permit the revision petitioners to re agitate that issue which was not pursued before the Appellate Authority. The revision necessarily has to fail and will stand dismissed without any order as to costs. The Revision Petition will stand dismissed. No costs. PIUS C.KURIAKOSE,JUDGE P.S.GOPINATHAN, JUDGE dpk