IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931 RCRev..No. 12 of 2009() ----------------------- RCA.46/2007 of II ADDL. DISTRICT COURT, TRIVANDRUM RCP.57/2005 of I ADDL.M.C.,TRIVANDRUM .................... REVISION PETITIONER/APPELLANT/COUNTER PETITIONER -------------------------------------------------------------------- K.SANALKUMARAN THAMPI, S/O.KUMARA PILLAI, T.C.NO.25/2079, HINDUSTAN OPTICALS, DHARMALAYAM ROAD, AYURVEDA COLLEGE JUNCTION, THIRUVANANTHAPURAM, RESIDING AT KUMARAVILASATHU VEEDU, VATTAMANGALAM, RASSAIPURAM, NEYYATTINKARA. BY ADV. SRI.R.S.KALKURA RESPONDENT(S): RESPONDENTS/LEGAL HEIRS OF THE PETITIONER -------------------------------------------------------- 1. KUMARI BHAGAVATHY, W/O.RAJENDRABABU, RESIDING AT ROHINI, 311-B, FORT (VADAKKEKOTTA), KACHERIWARD, NEYYATTINKARA. 2. SAJEEV, S/O.RAJENDRABABU, RESIDING AT ROHINI, 311-B, FORT (VADAKKEKOTTA), KACHERIWARD, NEYYATTINKARA. 3. SARITHA D/O.KUMARI BHAGAVATHY, RESIDING AT ROHINI, 311-B, FORT (VADAKKEKOTTA), KACHERIWARD, NEYYATTINKARA. 4. SANDHYA, D/O.KUMARI BHAGAVATHY, RESIDING AT ROHINI, 311-B, FORT (VADAKKEKOTTA), KACHERIWARD, NEYYATTINKARA. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 04/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------ R.C.R.No. 12 OF 2009 ------------------------ Dated this the 4th day of November, 2009 O R D E R Pius C.Kuriakose, J. The tenant is the revision petitioner and against him orders of eviction have been passed on the grounds of arrears of rent under Section 11(2) and bona fide need for own occupation under section 11 (3) of the Act. He denied the title of the landlords and set up a rival title in himself. According to him, the building originally belonged to his grandfather and his grandfather conveyed the property to him by virtue of an oral gift. He contended alternatively that in any event title, if any, which the respondents/landlords were having over the building was lost to them by his long adverse possession of the building since 1977. He denied the allegation regarding the arrears of rent and the averments regarding the need set up by the landlords that the original landlord wants to occupy the building for carrying on business. The Rent Control Court raised a point as to whether the revision petitioner's denial of the landlords' title is bona fide. That point was decided against the revision RCR.No.12/2009 2 petitioner. Thereafter, on evaluating the evidence, which consisted of Exts.X1 to X1(g), A1 to A10, B1 to B5, oral testimonies of PW1 to Pw3 and CPW1, the Rent Control Court found that the rent is in arrear as alleged and that the need is bona fide and also that the tenant has failed to prove that he satisfies either of the ingredients of the second proviso to sub section (3) of Section 11. Accordingly, order of eviction was passed on both the grounds. 2. The appellate authority made reappraisal of the entire evidence and concurred with all the conclusions of the Rent Control Court and thereby confirmed the order of eviction. 3. In this revision, the revision petitioner assails the findings entered by the Rent Control Court and the Appellate Authority describing them as irregular, illegal and improper. Sri.R.S.Kalkura, learned counsel for the revision petitioner addressed us very strenuously and persuasively on the various grounds raised in the memorandum of revision. We have considered the submissions of Sri.R.S.Kalkura. We have carefully scanned the order of the Rent Control Court and the judgment of the Appellate Authority. According to us, the point as to whether RCR.No.12/2009 3 the denial of the landlords' title set up by the revision petitioner/tenant is bona fide has been rightly considered and decided by both the authorities below. It was found that the plea of having obtained title by virtue of oral gift was legally impossible in this case where admittedly the value of the building is more than Rs.100/-. It was also noticed that the materials placed on record, such as the property tax assessment register pertaining to the building, enjoying presumptions under Section 26 of Act 2 of 1965, are to the effect that the ownership of the building is with the petitioner in the RCP and that the status of the revision petitioner is only that of occupant tenant. It was accordingly held that the chances of the revision petitioner succeeding in the event of the issue being relegated to the Civil Court are very very remote. We are of the view that the learned Appellate Authority, which under the statutory scheme is the final court on facts, has kept in mind the relevant statutory provisions viz. Proviso to sub section (1) of Section 11 and the binding judicial precedents governing the point such as the judgment of the Full Bench of this court in Parthakumar v. Ajith Viswanathan (2006 (2) KLT 250)(FB) and Bharathi v Vinod (2008 (1) KLT 93 RCR.No.12/2009 4 (FB) and also the judgment of the Division Bench of this Court in Aboobacker v. Girija (1999 (1) KLT 553) and has rightly held that the conclusion of the Rent Control Court is a correct conclusion. As for the findings regarding the arrears of rent and bona fide need for own occupation and regarding the tenant's eligibility to the protection of the second proviso to sub section (1) of section 11, we notice that all those findings have been entered by the learned Appellate Authority on the basis of the evidence which is available on record and those findings did not suffer any illegality, irregularity or impropriety warranting invocation of the revisional jurisdiction of this court under Section 20 of the Act. Therefore, the RCR is liable to fail. However, considering the last plea of Sri.R.S.Kalkura that the revision petitioner, who is carrying on business and making out his livelihood, may be given a reasonable duration of time to surrender the premises, we are inclined to grant time to the revision petitioner till 31/5/2010 subject to the following conditions; The revision petitioner shall file an affidavit before the Execution Court or the RCR.No.12/2009 5 Rent Control Court as the case may be undertaking to discharge the entire arrears of rent as found by the Rent Control Court within 45 days from today and undertaking further to pay occupational charges at the current rent rates till such time as the revision petitioner give surrender of the building to the respondent as and when the same falls due. The revision petitioner shall also undertake through the same affidavit that he shall give peaceful surrender of the building to the respondent on or before 31/5/2010. It is made clear that the revision petitioner will be entitled for the benefit of time granted as above only if the affidavit is filed on time. Considering the above direction, we clarify that the revision petitioner will have 45 days of time from today for making requisite deposit and for getting the order of eviction vacated by filing application under Section 11 (2)(c). Once the affidavit as RCR.No.12/2009 6 directed above is noticed by the Execution Court, that court will adjourn the Execution Petition to 1/6/2010. PIUS C.KURIAKOSE,JUDGE K.SURENDRA MOHAN, JUDGE dpk