IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 RCRev..No. 339 of 2006() ------------------------ RCA.61/2004 of D.C. & SESSIONS COURT,KOZHIKODE RCP.50/2001 of MUNSIFF COURT, NADAPURAM .................... PETITIONERS/SUPPLEMENTAL RESPONDENTS 8 TO 13/7(DIED) ---------------------------------------------------------------------- 1. KUNHAMI, W/O.LATE ABDULLA KOROTH, AGED 66 YEARS, KOROTH HOUSE, TUNERI AMSOM, DESOM, VATAKARA TALUK. 2. BIYYATHU, AGED 50 YEARS, W/O.THAYYULLATHIL MOIDU, THAYYATHIL HOUSE, TUNERI AMSOM, DESOM, VATAKARA TALUK. 3. HAMEED, AGED 46 YEARS, S/O.ABDULLA, KOROTH KALLANDIYIL HOUSE, P.O.TUNERI, TUNERI AMSOM, DESOM, VATAKARA TALUK. 4. LATHEEF, AGED 43 YEARS, S/O.ABDULLA KOROTH, OLANTHIKUNIYIL HOUSE, P.O.TUNERI, TUNERI AMSOM, DESOM, VATAKARA TALUK. 5. AYISHU, AGED 49, W/O.AMMED, THAMARAKUNNATH, T.K.HOUSE, ORKKATTERI AMSOM, ERAMALA DESOM, VATAKARA TALUK. 6. ASHRAF, S/O.ABDULLA KOROTHM AGED 40 YRS, KOROTH HOUSE, TUNERI AMSOM AND DESOM, VATAKARA TALUK. BY ADV. SRI.T.H.ABDUL AZEEZ SRI.T.B.HOOD RESPONDENT(S): RESPONDENTS 1 TO 6/PETITIONERS AND RESPONDENTS 1TO 6 ----------------------------------------------------------------- 1. MARKOTH NAFEESA, D/O.ABDULLA, AGED 70, RESIDING AT TUNERI AMSOM, VATAKARA TALUK, KOZHIKODE DISTRICT. RCR.339/06 2. MARKOTH RAMLA, D/O.MAMMED, AGED 40 YEARS RESIDING AT TUNERI AMSOM, VATAKARA TALUK, KOZHIKODE DISTRICT. 3. MARKOTH NISSAR, S/O.MANNED, AGED 26 YRS, RESIDING AT TUNERI AMSOM, VATAKARA TALUK. * 4. VARAPRATH PARKUM ELAVATHKANDIYIL BAVU KUNHI MOOSA HAJI,S/O.AMMAD HAJI, AGED 63 YEARS, VELOOR AMSOM, PERODE DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. * 5. MOILOTH KANDIYIL MAMOO, S/O.MOIDU, AGED 65 YEARS, RESIDING AT KUMMAMKODE DESOM, NADAPURAM DESOM, VATAKARA TALUK. * 6. MOILOTH KANDIYIL KHADERKUTTY MASTER, S/O.MOIDU, AGED 63 YEARS, RESIDING AT KUMMAMKODE AMSOM, NADAPURAM DESOM, VATAKARA TALUK. * 7. MOILOTH KANDIYIL ABOOBACKER, S/O.MOIDU AGED 61 YEARS, PURANAT HOUSE, KUTTIPURAM AMSOM, DESOM, VATAKARA TALUK. * 8. KARAYATH MAMI, D/O.MOIDU, AGED 48 YEARS, KUMMAMKODE AMSOM, NADAPURAM DESOM, VATAKARA TALUK. * 9. RAMLA, W/O.MOIDU, AGED 40 YEARS, NIRATHUMMAL HOUSE, VELLOR AMSOM, CHALAPPURAM DESOM, VATAKARA TALUK. (RESPONDENTS 4 TO 9 ARE DELETED FROM THE ARRAY OF PARTIES AT THE RISK OF THE REVISION PETITIONERS AS PER ORDER DATED 24/2/09 IN RCR.339/06) ADV. SRI.BASANT BALAJI FOR R1TOR3 SRI.G.S.REGHUNATH FOR R1TOR3 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 30/11/2009, THE COURT ON 30/11/2009 PASSED THE FOLLOWING: PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ. ``````````````````````````````````````````````````````` R.C.Rev. No. 339 of 2006 E ``````````````````````````````````````````````````````` Dated this the 30th day of November, 2009 O R D E R Pius C. Kuriakose, J. The supplemental respondents 8 to 13 in R.C.A.No.61/2004, who are the legal heirs of the deceased 7th respondent in the Rent Control Petition, being aggrieved by the order of eviction passed on the ground of arrears of rent (Section 11(2)(b)) and bonafide need for own occupation(Section 11(3)), are the revision petitioners. 2. R.C.P. No.50/2001 was filed by respondents 1 to 3 in the R.C.R., namely Nafeesa, Ramla and Nissar, seeking eviction on the ground of arrears of rent(Section 11(2)(b)), bonafide need for own occupation(Section 11(3)), subletting(Section 11(4)(i)) and user of the building in such a manner as to reduce the value and utility of the building(Section 11(4)(ii)). Those three respondents are hereinafter referred to as the landlords. The case of the landlords was that the petition schedule building was let out by their predecessor to three persons, namely Moidu, Kunhisooppy RCR.339/06 : 2 : and Moosa Haji, for the conduct of a flour mill on a monthly rent of Rs.45/-. Kunhisooppy surrendered his leasehold right to Moosa Haji, who is the 4th respondent. Moidu passed away and he is survived by respondents 5 to 9. After the death of the original tenant in January 1996, the payment of rent was defaulted. Respondents 4 to 9 sublet the building to the 7th respondent in the RCP, namely Koroth Abdulla(predecessor in interest of the revision petitioners). Subletting was not terminated despite notice. Arrears of rent was also not paid. Hence, the respondents are liable to be evicted on the ground of subletting and arrears of rent. The averment in the context of the ground of bonafide need for own occupation was that the 3rd respondent(the 3rd petitioner in the RCP Sri.Nissar), who was previously employed in a shop in Madras, quit his job for the purpose of looking after his aged and sick mother. He is presently unemployed. He intends to start a stationary business or a flour mill. 3. The 7th respondent, predecessor in interest of the revision petitioners, alone contested the RCP seriously. Respondents 5 to 9 herein, who were respondents 2 to 6 in the RCR.339/06 : 3 : RCP, contended that they are no longer tenants. According to them, they have surrendered vacant possession of the building in 1980 to the landlord. They denied the sublease also. The 7th respondent in the RCP contended that he had taken the building on rent directly from the original landlord Sri.Mammed on 11-04- 1980. It was an oral entrustment. Since then, it was he who was conducting the flour mill. The rent was enhanced to Rs.120/- in the year 1993. The 3rd petitioner in the RCP received rent from him till January 1999. Though rent for the subsequent period was tendered, the same was refused. The claim regarding bonafide need for own occupation was stoutly denied. It was contended by the 7th respondent that he was entitled to the protection of the second proviso to sub-section (3) of Section 11. He also disputed the allegation that on account of the user of the building, the value and utility of the building has been materially and permanently reduced. 4. The rent control court enquired into the matter. The evidence consisted of the oral testimonies of PWs 1 and 2, RWs 1 and 2 and CWs 1 and 2. Documentary evidence consisted of RCR.339/06 : 4 : Exts.A1 to A8, Exts.B1 to B8, C1, X1 and X2. The rent control court, on a consideration of the evidence, would decline eviction on all the grounds, except the ground under Clause (b) of sub- section (2) of Section 11. Respondents 1 to 3, the landlords, preferred appeal to the rent control appellate authority. The appellate authority found that the 7th respondent, the predecessor in interest of the revision petitioners, is a sub-tenant. It was also found that neither the 7th respondent nor his legal heirs will be entitled to get the order of eviction passed under Section 11(2)(b) vacated under Section 11(2)(c). It was also held that the revision petitioners are not entitled to the protection of the second proviso since they are only legal heirs of a sub-tenant. That authority, however, did not pass order of eviction on the ground of subletting since the statutory notice under the proviso to Clause (i) of sub- section (4) of Section 11 has not been sent. Thus, the appeal was allowed and order of eviction was passed on the ground of arrears of rent and bonafide need for own occupation. It is challenging the judgment of the appellate authority that the revision petitioners, who are legal heirs of deceased 7th respondent, the alleged sub- RCR.339/06 : 5 : tenant, have preferred this revision. 5. We heard the submissions of Mr.T.H.Abdul Azeez, learned counsel for the revision petitioners and those of Sri.G.S.Reghunath, learned counsel for the landlords. Very extensive submissions were addressed before us by Sri.Abdul Azeez. He submitted that the 7th respondent was the direct brother-in-law of the deceased original landlord. The residential building of the deceased original landlord was situated very near to the petition schedule building. For a very long period of 20 years since 1980 it was the deceased 7th respondent and after him the present revision petitioners, who have been carrying on flour mill business in the petition schedule building. Ext.B7 rent receipt book will show that rent was paid by the revision petitioners to the landlords and the landlords received the same from them. Even if the oral lease set up by the deceased 7th respondent was not established, the long delay caused by the landlords in seeking eviction on the ground of subletting will show that the landlords have recognised the 7th respondent as their own tenant. The finding that the 7th respondent was a sub-tenant, therefore, is RCR.339/06 : 6 : contrary to evidence and probabilities. Sri.Azeez submitted that the court has to draw a distinction between sublease which has been acquiesced at by the landlord and the sublease which is not acquiesced by the landlord. Here is a case where sublease has been acquiesced by the landlords. When the sublease is acquiesced at by the landlords, the alleged sublessee will acquire the status of regular tenants, who are entitled to all the protections under the Rent Control Act. On reading over to us the full text of the judgment of the appellate authority, Sri.Azeez argued that the observations made by the learned appellate authority as regards the findings stated to have been made by the rent control court will reveal that the appellate authority has misread the order of the rent control court. The rent control court did not find the status of the 7th respondent to be a sub-tenant. Sri.Azeez would submit that the case of the 3rd petitioner in the RCP(the 3rd respondent) was that he came back from Madras only because his mother fell seriously ill. There is no evidence at all to prove that his mother is having any ailment. The 3rd respondent did not have a consistent case as to what is the business that he is proposing to do in the RCR.339/06 : 7 : building, whether it is flour mill business or stationery business. This itself is indicative of absence of bonafides. Our attention was drawn by Mr.Azeez to Ext.B8 property tax assessment register. Sri.Azeez submitted that, as rightly found by the rent control court, Ext.B8 is a document, which enjoys presumptions under Section 26 of the Act. In the teeth of Ext.B8, it was the duty of the landlord to show that the building shown in Ext.B8 is not vacant. 6. All the submissions of Sri.Azeez were stiffly resisted by Sri.Reghunath. He drew our attention to the judgment in Varghese Ittoop Vs. District Judge [1991 (2) KLT 394]. The learned counsel argued that the 7th respondent and the present revision petitioners, who are only his legal heirs are sub tenants, who are not entitled to challenge the order of eviction. Strong reliance was placed by the learned counsel on the judgment of the Supreme Court in John Chandy & Co. (P) Ltd. Vs. John P. Thomas [2002 (2) KLT 220]. According to the learned counsel, mere inaction by the landlord over a long period of even 30 years will not lead to any inference of consent on the part of the landlord in the matter of sublease. The word used in the statute is consent RCR.339/06 : 8 : and if consent is to be found, it will have to be found on the basis of some overt or explicit act on the part of the landlord rather than mere inaction or inertia. 7. We have considered the rival submissions addressed at the bar. It is true that the 7th respondent is the direct brother-in- law of the original landlord. It is also true that there are indications in the evidence that it is the 7th respondent, who has been actually carrying on business in the petition schedule building to the knowledge of the original landlord over a long period of 20 years till the date of filing of the RCP. But, the question to be asked is as to what is the status of the 7th respondent and the revision petitioners, his legal heirs. The specific contention raised was that after Ext.A6 registered document was executed by the original tenant in favour of the 7th respondent, the original landlord let out the building to the 7th respondent, the alleged sublessee. The defence was that landlord tenant relationship based on the above oral entrustment was created between the original landlord and the 7th respondent. As noticed by the rent control court and the appellate authority concurrently, in the teeth of Ext.A6 registered RCR.339/06 : 9 : document of assignment executed by the original tenant in favour of the 7th respondent, the status of the 7th respondent as recorded in that document can only be that of an assignee from the lessee or a sub-tenant. Therefore, unless there is a clinching evidence to accept the case of the 7th respondent that subsequent to Ext.A6, there is oral entrustment by the original landlord under which a fresh landlord tenant relationship was created between the original landlord and the 7th respondent, the status of the 7th respondent will continue to be that of an assignee from the lessee. The finding of the appellate authority is that the oral lease set up by the 7th respondent has not been established. We also find extremely difficult to accept the case of an oral lease in the teeth of Ext.A1 rent kychit. Of course Ext.B7 would show that on a few occasions rent was received from the 7th respondent by the original landlord. But, the same will not amount to proving the oral lease set up by the 7th respondent. The position perhaps would have been different, if the defence of the 7th respondent was that the original landlord acquiesced at the sublease. But acquiescence is a matter to be specifically pleaded and proved. We do not find any RCR.339/06 : 10 : plea from the 7th respondent regarding acquiescence by the landlord at the sublease and on the contrary, the plea is one of denial of the sublease and setting up of a direct lease. Thus, the status of the 7th respondent has been rightly found by the appellate authority to be that of a sub-tenant only. If that be so, it has to be found that the revision petitioners who are only legal heirs of the sub-tenant are not entitled to challenge the order of eviction which is not challenged by the original tenant or his legal heirs. 8. We are of the view that the order of eviction passed by the rent control appellate authority on the ground of bonafide own occupation is perfectly justified. Admittedly, the 3rd petitioner in the RCP does not presently have any job or avocation for life. He is the only son of his mother. The rent control court declined the order of eviction on the ground of bonafide own occupation on three reasons. The first reason was that he has not produced any document to prove that he has resigned his job in Madras. The second reason was that as regards the business proposed to be carried on by him his case was in the alternative. The third reason was that he did not produce any evidence regarding his mother's RCR.339/06 : 11 : ailment. All these reasons were rightly found to be not sound. The appellate authority found that the rent control court was not justified in insisting that the 3rd petitioner in the RCP who was only assisting his cousin in a small time pant shop in Madras should produce a resignation letter. The appellate authority also found that the evidence of PW2 regarding the proposed business was very clear. His first desire was to carry on flour mill business and if for any reason he does not get licence to conduct flour mill business, he will carry on stationary shop. The third reason stated by the appellate authority was that if the need of PW2 is bonafide, allowing eviction would not depend on his mother's ailment. In our view, he being the only son of his aged mother, itself can be a justification for his preferring to come back to his home town. Thus, the finding of the appellate authority that the need is bonafide is well founded on evidence. The appellate authority found that the sub-tenant is not entitled to claim the protection of the second proviso to sub-section (3) of Section 11. The above finding is based on statutory provisions, including the judgment of the Supreme Court cited at the Bar. RCR.339/06 : 12 : 9. Sri.Azeez highlighted Ext.B8 and argued that an order of eviction under Section 11(3) cannot be passed when the landlord is in possession of another building of his own in the absence of special reasons. The argument is per se attractive but cannot be accepted for two reasons. Firstly the revision petitioners who are only sub-tenants are not entitled to challenge the order of eviction passed on the ground of bonafide need for own occupation. Secondly, Ext.B8 will not be of much assistance in the present case since the period to which it pertains to is not disclosed and does not disclose the name of the occupant of the building mentioned therein. 10. In short, our conclusion is that the finding of the appellate authority that the revision petitioners are only legal heirs of the sub-tenants is liable to be approved. This means that the order of eviction passed by the appellate authority on the ground of arrears of rent and bonafide own occupation is not liable to be challenged by the revision petitioners. The result of the above discussions is that the revision is liable to fail and the same will stand dismissed. RCR.339/06 : 13 : 11. Finding that the revision petitioners are sub tenants notwithstanding we feel that, on the facts and circumstances which attend on this case, there is justification for granting reasonably long period to them to vacate the premises. Accordingly, we direct the Execution Court not to order and effect delivery of the petition schedule building till 30/4/2010 subject to the following conditions; i) The Revision Petitioners shall file an affidavit before the Execution Court or the Rent Control Court as the case may be, within one month from today undertaking to give peaceful surrender of the petition schedule building to the landlords/respondents on or before 30/4/2010. ii) The Revision Petitioners shall pay or deposit consolidated amount of Rs.5,000/- towards occupational charges to the landlords/respondents within one month from RCR.339/06 : 14 : today and shall continue to pay every month at the rate of Rs.120/- per month till such time as surrender of the premises is made. Undertaking to that effect will also be incorporated in the affidavit to be filed as directed above. The Revision Petitioners will get the benefit of time granted under this judgment only if the above conditions are complied with. (PIUS C. KURIAKOSE, JUDGE) (K.SURENDRA MOHAN, JUDGE) aks/dpk