IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 RCRev..No. 253 of 2005 --------------------------- RCA.78/1998 of ADDL. DISTRICT COURT, THALASSERY RCP.11/1996 of RENT CONTROL COURT, THALASSERY .................... PETITIONERS/RESPONDENTS/RESPONDENTS -------------------------------------------------- 1. PUTHUKKUDI CHANDROTH ABOOBACKER HAJI, COMMISSIONA AGENT AND HILL PRODUCE MERCHANT, NEAR SOUTH INDIAN BANK, THALASSERY. 2. K.B.MOHAMMED MUKTHAR, S/O.ABOOBACKER HAJI, MANAGING PARTNER, MARBLE INDIA, NEAR SAIDAR PALLY, THALASSERY, KANNUR DISTRICT. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENT(S)/APPELLANT/PETITIONER ----------------------------------------------- CHOVVAKKARAN KELOTH PUTHIYA MALIYEMMAL THAHIRA, D/O.ABDUL KHADER, THALASSERY AMSOM, VADIKKAKAM DESOM, KANNUR DISTRICT. ADV. SRI.C.KHALID FOR R1 SRI.N.GOPINATHA PANICKER FOR R1 SRI.R.O.MUHAMED SHEMEEM FOR R1 SRI.T.P.SAJID FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 02/12/2010, ALONG WITH RCR NO.127 OF 2006,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C. R. PIUS C. KURIAKOSE & P. S. GOPINATHAN, JJ. ------------------------------------------------ R. C. R. Nos.253 of 2005 & 127 of 2006 ------------------------------------------------ Dated this the 2nd day of December, 2010 ORDER Pius C. Kuriakose, J The tenants as well as the landlady are in revision. RCR.253/05 is filed by the tenant and RCR.127/06 is filed by the landlady. The landlady sought to evict the tenants who are two in number [Respondents 1 and 2 in the Rent Control Petition (father and son)] on the grounds of arrears of rent under Section 11(2)(b), acquisition of other buildings under Section 11(4)(3), bona fide need for own occupation under Section 11(3) and also on the ground of cessation of occupation under Section 11(4)(v) of Kerala Buildings (Lease & Rent Control) Act (Act 2 of 1965). Order of eviction was passed in favour of the landlady by the Rent Control Court only on the ground of arrears of rent. The Rent C. R. R. C. R. Nos.253 of 2005 & 127 of 2006 -2- Control Appellate Authority has not only confirmed the order of eviction passed under Section 11(2)(b) but also allowed the landlady's appeal to the extent of ordering eviction under Section 11(4)(iii) also. 2. It was submitted at the very outset by Sri.B.Krishnan, the learned counsel appearing for the revision petitioners in RCR.253/05 that there may not be good reason for interference with the eviction order passed under Section 11(2)(b) and it will suffice if the tenants are given the benefit of getting that order vacated under Section 11(2)(c) by making requisite deposits. Therefore, we confirm the order of eviction passed by the statutory authorities concurrently under Section 11(2)(b) and say that this order is liable to be got vacated under Section 11(2)(c) by making requisite deposits within a period of one month from today. R. C. R. Nos.253 of 2005 & 127 of 2006 -3- 3. The need projected by the landlady under Section 11 (3) was that she wants to conduct wholesale business in raw-materials required for conducting bakery business with the help of her brother one Mr.Rayees. The bona fides of the need was disputed by the tenants who inter alia contended that the landlady belongs to the aristocratic family of Keyees of Thalassery and that the ladies of that family seldom do business. It was also contended that at any rate the tenants are entitled to the protection of the second proviso to sub section 3 of Section 11. 4. The landlady's allegation in the context of the ground of cessation of occupation was that the second respondent/ son is conducting marble business elsewhere and is not in occupation of the building at all. The further allegation was that the first respondent/father had become too old to conduct any business and that he also ceased to R. C. R. Nos.253 of 2005 & 127 of 2006 -4- occupy the building continuously for six months. 5. The defence of the tenant was one of the total denial and assertion that business in grocery continues to be conducted by the first respondent/father with the assistance of the second respondent/son. 6. The landlady sought eviction on the ground under Section 11(4)(iii) on the allegation that the tenants are in possession of building bearing door Nos.12/452, 11/883, 11/885, 11/898 and 10/446. The tenants denied these allegations. It was contended that the building having door No.12/452 is already transferred by the first respondent to RW2 under Ext.B5 document dated 18/10/1993. The defence regarding Buildings bearing Door Nos.11/883, 11/885 and 11/898 was that though the first respondent was originally the owner, he has already sold those three buildings to his minor daughter under Ext.B6 dated R. C. R. Nos.253 of 2005 & 127 of 2006 -5- 30/03/1987 and that at any rate, those buildings even on the date of Ext.B6 were under the possession of tenants and continues to be so. The defence regarding Door No.10/446, which was alleged to be possessed by the second respondent was that the second respondent does not have any independent possession and that a partnership firm in which the second respondent is a partner, is in possession. 7. The Rent Control Court conducted enquiry into the matter and the evidence before the Rent Control Court consisted of Exts.A1 to A6 and the oral evidence of Pws.1 and 2 on the side of the landlady and Exts.B1 to B10 and oral evidence of Rws.1 and 2 on the side of the tenants. On appreciating the evidence, the Rent Control Court took the view that none of the grounds invoked, except the ground of arrears of rent under Section 11(2)(b) stood established and dismissed the petition under all the other grounds. The R. C. R. Nos.253 of 2005 & 127 of 2006 -6- landlady preferred appeal as RCA.78/1998. The Rent Control Appellate Authority would make a re-appraisal of the pleadings and evidence and would under the impugned judgment allow the appeal to the extent of ordering eviction under Section 11(4)(iii) also. In the revision RCR.253/2005 filed by the tenants, they challenge the order of eviction passed under Section 11(4)(iii) while in RCR.127/2006 filed by the landlady, she challenges the judgment declining eviction on the ground under Section 11(3) and 11(4)(v). 8. Extensive submissions were addressed before us by Sri.B.Krishnan, learned counsel for the tenants and Sri.T.P.sajid, learned counsel appearing for the landlady. Sri.Krishnan would assail the judgment of the Appellate Authority ordering eviction under Section 11(4)(iii). He would draw our attention to the evidence in the case, especially Exts.B5, B6 and A4 as well as the oral evidence in R. C. R. Nos.253 of 2005 & 127 of 2006 -7- the case pertaining to the ground under Section 11(4)(iii). Mr.Krishnan would fortify his submissions on the authority of the judgment of Justice P.T.Raman Nayar (as His Lordship then was) in Konnappan v. Manikam (1967 KLT 585). Drawing our attention to the admitted position that under Ext.A3 rent kachit, the tenancy given to respondents 1 and 2 is a tenancy in common, Mr.Krishnan argued on the strength of the above decision that when such is the nature of the tenancy in this case, in order that eviction under Section 11(4)(iii) is ordered against the tenants, it is necessary that both of them should independently entail the liability to suffer such an eviction order on the basis of building possessed by both of them. For the same proposition, Mr.Krishnan relied on the judgment of a Division Bench of this Court in Kodiyil Abu v. Kodiyil Pathumma (ILR 1998(2) Kerala 605) pointing out that R. C. R. Nos.253 of 2005 & 127 of 2006 -8- building having Door No.10/446 alleged to be held by the second respondent is actually possessed by a partnership firm. Mr.Krishnan would submit on the basis of another judgment of a Division Bench of this Court in Abdussalam v. Bhaskaran (2005(3) KLT 71) that in order that Section 11(4) (iii) is attracted, it is necessary that the tenant himself should be in possession of the other building and not a partnership firm in which the tenant is a partner. Highlighting that there has been delay on the part of the landlady in moving for eviction on the ground under section 11(4)(iii) Mr.Krishnan would argue on the strength of the judgment of the Supreme Court in Ganapat Ram Sharma v. Gayatri Devi (AIR 1987 SC 2016) that the Apex Court has held that a landlord who is invoking the eviction ground under Section 11(4)(iii) should be quick in taking his action after accrual of the cause of action. Referring to the R. C. R. Nos.253 of 2005 & 127 of 2006 -9- judgment of a Division Bench of this Court in Varghese Ittoop v. Jossie (2002(2) KLT SN. 14) and the judgment of another Division Bench of this Court in Kanhangad Co-op. M.s. Society Ltd. v. Ganapathy Kamath (1995(1) KLT 681) Mr.Krishnan submitted that unlike in a case where the tenant constructs a building of his own reasonably sufficient for his requirements, in the present case where the allegation is only regarding acquisition of a building, the question whether the tenant is in current possession of the buildings pointed out by the landlady for the purpose of Section 11(4)(iii) is a material consideration. Learned counsel submitted that the circumstance that at the time when action was initiated by the landlady, the tenants did not have possession is a very material circumstance. Mr.Krishnan would, in his submissions, justify the judgment of the statutory authorities declining eviction on the grounds R. C. R. Nos.253 of 2005 & 127 of 2006 -10- under Section 11(3) and Section 11(4)(v). He submitted that there was no warrant at all for interfering with the decision to decline eviction on those grounds. 9. Sri.T.P.Sajid, learned counsel for the landlady would make a very formidable effort to resist the submissions of Mr.Krishnan regarding Section 11(4)(iii). Mr.Sajid would challenge the decision of the statutory authorities to decline eviction on the grounds under Section 11(3) and 11(4)(v). As regards Section 11(4)(iii) Sri.Sajid submitted that the arguments of Sri.Krishnan based on co-tenancy as distinct from joint tenancy are not material in the present case where the relationship between the first and second respondent - the two tenants, is that of father and son. The father - the first respondent, has already reached the twilight period of his life and is under the care and protection of his son. He highlighted Ext.A2 property tax R. C. R. Nos.253 of 2005 & 127 of 2006 -11- assessment register relating to the buildings covered by Ext.B6. He submitted that notwithstanding Ext.B6, in Ext.A2 the ownership of the building continues to be with the first respondent - the father. The Rent Control Petition was instituted on 23/09/93 and Ext.B5 under which the first respondent transferred Building No.12/452 is a document post litem. That document has to be ignored and it has to be found that the above sale was with the object of averting an order of eviction under Section 11(4)(iii). He submitted that despite the claim of the second respondent that Building No.10/446 is possessed by a partnership, absolutely no evidence is adduced by the second respondent or first respondent regarding the partnership business. 10. Mr.Sajid was even more emphatic in his support of the grounds raised in RCR.127/06 filed by the landlady. He would take us to the deposition of PW1 in full and submit R. C. R. Nos.253 of 2005 & 127 of 2006 -12- that her version that despite her belonging to an aristocratic family, she herself wants to conduct a business in the petition schedule building was not shaken in cross examination. He drew our attention to the evidence of PW2 also and submitted that the observations of the learned Appellate Authority that PW2 is an activist of a political party and will have no time to assist his sister in the conduct of business are without proper foundation in the evidence. He wanted us to appreciate the evidence of Pws.1 and 2 and conclude that the bona fides of the need projected by the landlady stands established on the basis of the evidence of those witnesses. According to Mr.Sajid, though it is true that the statutory authorities have not enquired into the tenants' liability for the protection under the second proviso, a remand to enter such findings would be unnecessary, as evidence is on record for this Court to appreciate the same. R. C. R. Nos.253 of 2005 & 127 of 2006 -13- The learned Counsel relied on the judgment of the Full Bench of this Court in Francis v. Sreedevi Varassiar (2003 (2) KLT 230). Mr.Sajid relied also on the judgment in Nazarudeen v. Padmakaran (2004(1) KLT S. N.99 (Page 77) and argued that unless the partnership is a registered one court should be slow in accepting the defence of partnership. 11. The learned counsel would attack the finding of the authorities below that eviction ground under Section 11(4) (v) is not attracted. According to him, it was relying on the account books produced by the tenants that the authorities below found that business is being conducted in the petition schedule premises and also on the basis of the failure of the landlady to take out a commission. The person who had written the accounts was not examined as a witness and in the absence of such oral evidence, the account books should R. C. R. Nos.253 of 2005 & 127 of 2006 -14- not have been relied on, so submitted Mr.Sajid. 12. We have very anxiously considered the rival submissions addressed at the Bar. We shall first deal with the revision filed by the landlady. The question to be considered in this revision is whether order of eviction is liable to be passed in favour of the landlady on the ground under Section 11(3) and under Section 11(4)(v). On going through the order of the Rent Control Court and the judgment of the Appellate Authority, we notice that the findings entered by the statutory authorities which are to the effect that the need projected by the landlady is not bona fide and also that cessation of occupation continuously for the statutory period of six months without any reasonable cause has not been established are findings entered on the basis of evidence - oral, documentary and circumstantial available in the case. It is true that PW1 the R. C. R. Nos.253 of 2005 & 127 of 2006 -15- landlady did mount the witness box and deposed in support of her claim. It is also true that her brother Rayees also gave evidence in support of his sister's claim. But what we find on a reading of the order of the Rent Control Court and the judgment of the Appellate Authority is that those two statutory fact finding authorities were not at all inspired by the testimonies given by those two important witnesses. We, in the present jurisdiction under Section 20, are not ordinarily expected to reappraise the pleadings and evidence for the purpose of substituting factual findings entered by the fact finding authorities particularly, when those findings are concurrent, reasonable findings founded on evidence. The pleaded case of the landlady was that she wanted to conduct business with the assistance of her brother Rayees. She has specifically pleaded that it is Rayees who will be managing the business and that Rayees is very much R. C. R. Nos.253 of 2005 & 127 of 2006 -16- experienced in conducting the proposed business. This pleaded case is given a go-by when she mounted the box. Her version in the witness box is that Rayees, her brother, will only be assisting her to a certain extent and that she herself will be in actual management of the business the entire day time after she has sent her children (four school going kids) to school and till they are back from school. When we analyse the evidence of PW2 it could be seen that the case that he endeavoured to prove is not the case that was spoken to by his sister. It would appear on a reading of his deposition that his assistance will be limited to the regular opening and closing of the shop. No wonder, the statutory authorities were not inspired by the versions of PWs.1 and 2. Another aspect which should be noticed is that the case projected by the landlady in the Rent Control Petition and pursued by her at trial is that she needs to R. C. R. Nos.253 of 2005 & 127 of 2006 -17- do business for the purpose of sustaining herself and her family. It became evident that even at the time when the Rent Control Petition was instituted, her husband was doing business in partnership at Neeleswaram and is presently employed in a foreign country. According to us, the statutory authorities rightly thought that the claim of the landlady under Section 11(3) was not a bona fide one. We do not find any reason to deviate from the findings entered in that regard by the statutory authorities. 13. The landlady's case under Section 11(4)(v) is weaker still. In a case, where the landlady alleges that the tenants have ceased to occupy the building continuously for more than the statutory period of six months, one would expect the landlady to bring in prima facie evidence in support of the allegations in the form of a report by a Commissioner on the basis of at least a surprise local R. C. R. Nos.253 of 2005 & 127 of 2006 -18- inspection. In the instant case, such an attempt was not made by the landlady for reason best known to her. Significantly, in the Rent Control Petition, the first respondent was described as doing business in the petition schedule building. Same was the position when Ext.A4 statutory notice was issued under Section 11(2)(b). The first respondent contended that he continues to do business in the petition schedule building. The 1st respondent received these notices in the petition schedule building itself. Though not pointed out by the statutory authorities, we feel this is a strong circumstance in support of the tenants' defence. Then, of course, the account book pertaining to the business conducted by the first respondent was produced. It is true that the person who wrote the accounts were not examined. But in the present case, where the landlady did not have the courage to take out a commission, the above technical R. C. R. Nos.253 of 2005 & 127 of 2006 -19- argument cannot find favour with us also. In short, we do not find any illegality, irregularity or impropriety about the judgment of the Appellate Authority and the Rent Control Court declining eviction under Section 11(4)(v). 14. We shall now examine the merits of the tenant's revision. In order that an eviction ground under Section 11 (4)(iii) is established, it is necessary for the landlady to prove by evidence that (a) tenant has already in his possession a building, or that (b) tenant subsequently, acquires possession of a building or (c) tenant puts up a building reasonably sufficient for his requirement in the same city, town or village. In the instant case, there is not even an allegation for the landlady that the tenants have put up any building. The landlady does not have any allegation that at the time of commencement of the present lease, the tenants were already in possession of other R. C. R. Nos.253 of 2005 & 127 of 2006 -20- building. However, we notice on a perusal of the evidence that some of the buildings, which were brought out in evidence by the landlady to be possessed by the tenants were in the possession of the tenants even before the commencement of the present lease. The landlady did not raise the allegation of the tenants being in possession of other buildings even at the time of commencement of the lease for the obvious reason that the tenants will have an effective defence to the same, that it was to meet the additional requirements that the present lease was entered into. 15. The raised allegations are only regarding subsequent acquisition of buildings in possession. Ext.A3 is the rent kaichit on the basis of which the subject lease is created. Going through the expressed terms of Ext.A3, the tenancy that is created under Ext.A3 is a tenancy in favour R. C. R. Nos.253 of 2005 & 127 of 2006 -21- of both respondents 1 and 2. In other words, it is a tenancy in common for respondents 1 and 2. Building No.12/452 is one of the buildings pointed out by the landlady for the purpose of Section 11(4)(iii). It is alleged by the landlady that the said building is in the possession of the first respondent. But, Ext.B5 dated 18/10/93 will show that the first respondent had parted with ownership and possession of that building in favour of RW2 who was examined as a witness on the side of the tenants. We notice that Ext.B5 is a post litem document. Like any other post litem document Ext.B5 is liable to be ignored. The question is whether by ignoring Ext.B5 we can order eviction against respondents 1 and 2. Necessarily, this question has to be answered against the landlady. This is because the tenancy which is subject matter of the RCP is a tenancy in common in favour of both the respondents whereas the tenancy in respect of building R. C. R. Nos.253 of 2005 & 127 of 2006 -22- No.12/452 is a tenancy exclusively in favour of first respondent. We are supported in our above view by the judgment of this Court in Konnappan v. Manikkam (1967 KLT 585) and also a judgment of the Division Bench of this Court in Pathumma v. Union of India (ILR 1998 (2) Kerala 605). 16. Building Nos.11/883, 11/885 and 11/889 are also alleged by the landlady to be held by the first respondent and the landlady relies on the possession of the above buildings by the first respondent in support of eviction ground under Section 11(4)(iii). Ext.B6 document will show that the first respondent/father has already parted with ownership and possession over these buildings in favour of his minor daughters at least six years prior to the filing of the Rent Control Petition. Sri.Sajid's argument that Ext.B6 document was executed by the father in favour of his minor R. C. R. Nos.253 of 2005 & 127 of 2006 -23- daughters with some oblique motives and that ownership and possession of these buildings was always retained by the father himself has only first blush attractiveness. We find that even going by Ext.B6, actual possession of the buildings which are subject matter of the lease deed was with three named tenants. The submission of Sri.B.Krishnan that even now those tenants are continuing in possession of those buildings was not disputed. What is required for the purpose of Section 11(4)(iii) is possession by the tenants or putting up of a building by the tenant. Eviction order under Section 11(4)(iii) cannot be passed against the tenant in this case based on the three buildings covered by Ext.B6. 17. The last building referred to by the landlady is building bearing door No.10/446. Even on the allegations of the landlady this building is in the possession of the second respondent who is only one of the co-tenants. As regards R. C. R. Nos.253 of 2005 & 127 of 2006 -24- this building, the defence of the second respondent is that he possesses this building as a partner of a partnership firm. Sri.T.P.Sajid's argument based the decision in Nazaruddin's case (cited supra) to which one among us [PCK(J)] is party cannot hold much water in this case where the landlady herself concedes in the Rent Control Petition that the second respondent is a Managing Partner of the firm by name Marble Industries. At any rate, since the nature of the tenancy of the subject tenancy is tenancy in common even if it is found that the second respondent in the RCP is in possession of that building an eviction order against both the tenants cannot be passed. We are therefore