IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 23RD MARCH 2011 / 2ND CHAITHRA 1933 RCRev..No. 197 of 2010(A) ------------------------------ RCA.22/2004 of II ADDL. RENT CONTROL APPELLATE AUTHORITY, KOLLAM RCP.24/2001 of ADDL. RENT CONTROL COURT, KOLLAM .................... REVISION PETITIONERS/COUNTER PETITIONERS/RESPONDENTS ------------------------------------------------------------------------ 1. K.REGHUNATHAN,AGED 70 YEARS, KOLLANTAZHIKOM VEEDU,KOTTAKKAKOM WARD, KOLLAM VILLAGE,KOLLAM. 2. RAVEENDRAN,AGED 60 YEARS, JYOTHI,M.C.NO.761,NORTH OF ANANDAVALLEESWARAM TEMPLE,CUTCHERY WARD,KOLLAM. BY ADV. SRI.R.SATISH KUMAR RESPONDENT(S): APPELLANT/PETITIONER ----------------------------------------------- NANIAMMA SATHIAMMA,SREE BHAVAN,FROM ILLIKULATHU VEEDU,MEMANA MURI,KRISHNAPURAM VILLAGE KARUNAGAPPALLY TALUK. ADV. SRI.K.SUBASH CHANDRA BOSE FOR R1 SMT.T.S.MAYA (THIYADIL) FOR R1 SMT.PRINCY XAVIER FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 23/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. ------------------------------------------------ R. C. R. No.197 of 2010 ------------------------------------------------ Dated this the 23rd day of March, 2011 ORDER Balakrishnan, J The challenge in this revision filed by the tenants is against the order of eviction passed under Section 11(4)(i) by the learned Appellate Authority which was in reversal of the order passed by the Rent Control Court rejecting the claim for eviction under Section 11(4)(i) of the Act. The landlady contended that the petition schedule building was let out to the first revision petitioner and that without her knowledge and consent, it was subleased to the second revision petitioner. The plea of sublease was resisted by the revision petitioners contending that the second revision petitioner whose parents are no more was actually brought up in the house of the first revision petitioner and that the R. C. R. No.197 of 2010 -2- second revision petitioner is not a sub lessee. It was stated that the second revision petitioner is also conducting business in the petition schedule building along with the first revision petitioner as a partner. 2. Before the Rent Control Court the landlady was examined as PW1 and Exts.A1 to A3 were marked. The revision petitioners were examined as DW1 and DW2 and Exts.B1 and B2 were marked. Commissioner's Report and mahazar were also marked as Exts.C1 and C2. 3. The learned Rent Controller found that the landlady has failed to discharge the initial burden that the tenant has parted with exclusive possession of the tenanted premises to the second counter petitioner. The learned Rent Controller has also held that the landlady has failed to prove that there was transfer of exclusive possession of the tenanted premises to the second counter petitioner and that there is no evidence to show that exclusive legal possession R. C. R. No.197 of 2010 -3- is with the second revision petitioner and thus the sublease pleaded by the landlady cannot be sustained. The learned Appellate Authority found that admission made by the revision petitioners would show that the second revision petitioner is also conducting business in the petition schedule building. The fact that the telephone connection obtained in respect of the petition schedule building stood in the name of the second revision petitioner was also taken into account by the learned Appellate Authority to hold that there was transfer of exclusive possession in favour of the second counter petitioner. The non production of the lease deed also does not assume any importance in view of the fact that there was no case for the revision petitioners that the rent deed did authorise the tenant to sublet the premises. Since no acceptable evidence was adduced by the revision petitioners to hold that there was actually a partnership in respect of the business conducted in the R. C. R. No.197 of 2010 -4- petition schedule building and since the revision petitioners failed to prove the terms and conditions on which the second revision petitioner was put in possession of the petition schedule building it has to be inferred that there was transfer of exclusive possession of the tenanted building in favour of the second revision petitioner and thus reversing the order passed by the Rent Control Court, order of eviction was passed by the learned Appellate Authority. 4. Sri.R.Sathish Kumar, the learned counsel appearing for the revision petitioners has made strenuous arguments and submitted that the learned Appellate Authority was not justified in reversing the order passed by the learned Rent Control Court since the learned Rent Control Court being the first court of facts had got an opportunity to scan the evidence properly. The learned counsel would further submit that when the case of the revision petitioners is that the second revision petitioner is doing business in the petition R. C. R. No.197 of 2010 -5- schedule building as a partner along with the first revision petitioner it only means that it was a partnership business and that there was no parting of exclusive possession in favour of the second revision petitioner. The learned counsel has further submitted that if it can be discerned that there was only a partnership business the question of parting with exclusive possession would not arise and in which case it cannot be said that there was objectionable subletting or transfer of possession so as to entitle the landlord to get an order of eviction under Section 11(4)(i). It is true that if the tenant could prove that another person was inducted into the business conducted by him only as a partner and that it was a genuine partnership business, then certainly it may not amount to sub lease since the original tenant still retains possession of the tenanted premises. In other words, if the tenant also is a partner conducting business, there would be no transfer of exclusive possession and in which event the R. C. R. No.197 of 2010 -6- landlord cannot claim eviction under Section 11(4)(i). This submission has been stoutly opposed by Sri.Subhash Chandra Bose the learned counsel appearing for the landlady and submitted that the admission made by PW1 and PW2 would make it clear that the business conducted in the petition schedule building, namely, auto consultancy is actually done by the second revision petitioner (DW2). Though it was vaguely contended by the revision petitioners that there was a partnership business no document whatsoever was produced by them to show that there was in fact a partnership business. If the tenant fails to prove that there, in fact, existed a partnership business then certainly the evidence and circumstances would support the case set up by the landlady that there was transfer of exclusive possession of the tenanted premises in favour of the second revision petitioner. In this connection Sri.Subhash Chandra Bose would draw our attention to the R. C. R. No.197 of 2010 -7- fact that telephone connection was obtained for the petition schedule building in the name of the second revision petitioner. The learned counsel submitted that if there was no transfer of exclusive possession and if the premises was not in the domain or control of the second revision petitioner it will not be possible for him to obtain a telephone connection to the petition schedule building. The learned counsel submitted that the Rent Control Court has overlooked the evidence adduced in the matter and the admissions made by the revision petitioners and so the learned Appellate Authority was perfectly justified in reversing the order passed by the Rent Control Court. The prima facie burden cast on the landlady is to prove that a person other than the tenant was in occupation of the petition schedule building. That was discharged. The burden would then be on the tenant to prove the jural relationship between himself and the other person found in the tenanted R. C. R. No.197 of 2010 -8- premises. Since admittedly the second revision petitioner is conducting business in the petition schedule building, though according to the revision petitioner it is only a joint venture, the initial burden which was to be discharged by the landlady having been discharged the burden is heavily on the revision petitioner to dislodge the presumption that there was no transfer of exclusive possession. Since the understanding or arrangement made between the tenants and the sub tenant would be in secrecy which cannot be discovered by the landlady, the landlady cannot be expected to prove the terms and conditions on which the sub tenant is conducting business or was put in possession of the same. If as a matter of fact it was only a joint venture that was conducted in the petition schedule building there would have been some accounts or other records showing the sharing of profits among the partners but no such document was produced. In the absence of any such reliable evidence the R. C. R. No.197 of 2010 -9- finding of the learned Appellate Authority cannot be found to be erroneous. 5. We have scanned the judgment of the appellate Authority and the order passed by the Rent Control Court. We find that the learned Appellate Authority has correctly analysed the evidence and has come to a right conclusion that there was objectionable sublease or transfer of exclusive possession of the tenanted premises in favour of the second revision petitioner. As such, the order of eviction passed under Section 11(4)(i) is only to be confirmed. 6. The result therefore, is that the RCR fails and is dismissed accordingly. Sri.Sathish Kumar, the learned counsel appearing for the revision petitioners submits that at least one year time may be granted to the revision petitioners to surrender the premises. This request is opposed by the learned counsel for the landlady/ respondent. However, we are inclined to grant time till R. C. R. No.197 of 2010 -10- 31/12/11, but on the following conditions:- The revision petitioners shall file an affidavit within three weeks from today undertaking that they will surrender vacant possession of the petition schedule building on or before 31/12/11 to the landlady and that they will discharge the entire arrears of rent, if any, within one month from today and further that they will pay occupation charges at the rate of Rs.500/- per month with effect from 01/04/11. The revision petitioners will get the benefit of time granted as above only if they file the affidavit on time and honours the undertakings contained therein. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/- R. C. R. No.197 of 2010 -11-