IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 16TH DECEMBER 2008 / 25TH AGRAHAYANA 1930 CRP.No. 2826 of 2002(F) ----------------------- RCA.5/2001 of ADDL. RENT CONTROL APPELLATE AUTHORITY, KOTTAYAM RCP.7/1995 of RENT CONTROL COURT, PALA .................... REVN. PETITIONER(S): APPELLANTS-RESPONDENTS 7 AND 14 IN RCOP 7/95 ----------------------------------------------------------------- 1. LEELAMMA,VELLARINGATTU HOUSE, PONAD KARA,LALAM VILLAGE, P.O.NECHIPUZHOOR,MEENACHIL TALUK, KOTTAYAM. 2. SHIJU, S/O.CHANDY KURIAN, RESIDING AT DO. DO. BY ADV. SRI.S.EASWARAN. RESPONDENT(S): RESPONDENTS- PETR. & RESPONDENTS 1,2,3,4&5 ------------------------------------------------ 1. ABRAHAM KORAH, S/O.KORAH, ANITHOTTATHIL HOUSE,LALAM KARA, LALAM P.O., LALAM VILLAGE,MEENACHIL TALUK, KOTTAYAM. (DIED) 2. THANKAMMA EMMANUEL,W/O.CHANDY KURIAN, RESIDING AT VELLARINGATTU HOUSE, HOUSE NO.270 IN WARD 7 OF ATHIRAMPUZHA PANCHAYAT, P.O.ATHIRAMPUZHA,KOTTAYAM. 3. ALEX EMMANUEL,S/O.EMMANUEL,DO.DO. 4. THOMAS EMMANUEL, DO.DO. DO. 5. REGI EMMANUEL, DO. DO. DO. 6. KOCHU RANI EMMANUEL,D/O.EMMANUEL,DO. DO. CRP 2826/2002 ADDL. RESPONDENTS : 7. KUNJNAMMA, W/O.LATE ABRAHAM KORAH, ANTHITHOTTAHIL HOUSE, LALAM KARA, LALAM P.O., LALAM VILLAGE, MEENACHIL TALUK, KOTTAYAM, 8. GEORGE KUTTY, S/O. LATE ABRAHAM KORAH, ANTHITHOTTAHIL HOUSE, LALAM KARA, LALAM P.O., LALAM VILLAGE, MEENACHIL TALUK, KOTTAYAM. 9. THOMASKUTTY, S/O.LATE ABRAHAM KORAH, ANTHITHOTTAHIL HOUSE, LALAM KARA, LALAM P.O., LALAM VILLAGE, MEENACHIL TALUK, KOTTAYAM. (R1 DIED. ADDL. RESPONDENTS 7 TO 9 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 1ST RESPONDENT AS PER ORDER DT. 23.1.07 ON IA NO.208/07.) ADV. SRI.V.G.ARUN – ADDL.R7 TO R9 SRI.T.R.HARIKUMAR THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/12/2008, ALONG WITH CRP NO. 309 OF 2003, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRP 2826/2002 ORDER ON CMP NO.7096/2002 DISMISSED. 16.12.2008. SD/- K.BALAKRISHNAN NAIR, JUDGE. SD/- M.C.HARI RANI, JUDGE. /TRUE COPY/ K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ----------------------------------------- C.R.P. NOS. 2826/2002 & 309/2003 ----------------------------------------- Dated 16th December, 2008. ORDER Balakrishnan Nair, J. C.R.P.No.2826/2002: This Civil Revision Petition is filed against the judgment of the Additional Rent Control Appellate Authority, Kottayam in R.C.A.No.5/2001, arising out of the order of the Rent Controller, Pala in R.C.O.P.No.7/1995 dated 30.9.2000. The R.C.O.P was filed by the landlord Mr.Abraham Korah. He died during the pendency of the revision before this Court and his legal representatives are impleaded as additional respondents 7 to 9 herein. The landlord sought eviction of the tenant under Sections 11(2)(b), 11(3), 11(4)(i) and 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as “the Act”). 2. The brief facts of the case, as pleaded by the landlord, are the following: He is the owner of the tenanted room. The said room was CRP 2826/02 & 309/03 2 leased out to the original tenant Mr.Emmanuel by his father. It was under a registered rent deed executed on 8.6.1955. Initially, the monthly rent was Rs.35/-, which was revised from time to time. The rent from May, 1990 was in arrears. At the relevant time, the agreed monthly rent was Rs.125/-. The original tenant died in 1973 and thereafter, his legal heirs were occupying the room as tenants. Later, they put in possession one Mr.Chandy Kurian as sub tenant, who is the brother of the original tenant Emmanuel. The rent control petitioner, on coming to know of the sub lease, issued a notice to terminate the sub lease. But, the same was not done. Demanding arrears of rent also, he had earlier issued a notice. The landlord's son Thomaskutty Abraham was an educated unemployed youth. He wanted to start a business in hardwares and sanitary materials. He was depending on his father for getting a suitable room for starting the business. Further, the building was in a dilapidated condition, which required reconstruction. The adjacent buildings have been reconstructed recently. In view of the development of the area where the building is located, reconstruction of the building is highly necessary. Therefore, eviction was sought under CRP 2826/02 & 309/03 3 Sections 11(2)(b), 11(3), 11(4)(i) and 11(4)(iv) of the Act. 3. During the pendency of the proceedings, the sub tenant Mr.Kurian, who was the 6th respondent in the R.C.O.P. Died and thereupon, his legal representatives were impleaded as supplemental respondents therein. Only the sub tenant Mr.Kurian contested the matter. According to him, the original tenant Emmanuel surrendered the building to the landlord on the expiry of the two years' term of the lease executed in 1955. Therefore, Mr.Chacko, the brother-in-law of Mr.Kurian took the building on lease from the father of the present landlord and started a business there. Mr.Kurian, the present sub tenant was a partner in that business. In 1984 the partnership firm was dissolved. Mr.Chacko retired from the business and thereafter, Mr.Kurian was in possession of the room. He approached the father of the landlord, who executed a rent deed in his favour. So, Mr.Kurian is a tenant in his own right, on the strength of the rent deed executed by the landlord's father, it was submitted. The claim regarding arrears of rent was denied by Mr.Kurian (6th respondent in the R.C.O.P). In view of the above facts, the allegation of sub lease was also unfounded, it CRP 2826/02 & 309/03 4 was submitted. The building in his possession was strengthened by him. Therefore, it is unnecessary to reconstruct the same. The claim of the landlord's son for the room is only a ruse to get eviction. Therefore, Mr.Kurian prayed for dismissal of the R.C.O.P. 4. From the side of the landlord, Exts.A1 to A10 were marked and from the side of the alleged sub tenant Exts.B1 to B28(a) were marked. Ext.X1 was marked as third party exhibit and Ext.C1 was marked as court exhibit. From the side of the petitioner landlord, P.Ws. 1 to 3 were examined and from the side of the counter petitioner, C.P.Ws.1 to 6 were examined. The Rent Controller, after hearing both sides, allowed eviction under Sections 11(4)(i) and 11(4)(iv) of the Act and rejected the claim for eviction under Sections 11(2)(b) and 11(3) of the Act. Challenging the order of the Rent Controller, additional respondents 7 and 14 in the R.C.O.P., who are the legal heirs of Mr.Kurian, filed R.C.A.No.5/2001. The landlord filed R.C.A.No.6/2001, challenging the findings against him under Sections 11(2)(b) and 11(3) of the Act. The appeal filed by the alleged sub tenant's legal heirs was dismissed and the appeal filed by the landlord CRP 2826/02 & 309/03 5 was allowed in part. The claim for eviction under Section 11(2)(b) was allowed and the claim under Section 11(3) was rejected. 5. Challenging the judgment of the appellate authority in R.C.A.No.5/2001, this revision is filed by the legal heirs of the alleged sub tenant and challenging the judgment in R.C.A.No.6/2001, the connected C.R.P. No.309/2003 is filed by them. 6. We heard Mr.Easwaran, learned counsel for the revision petitioners and Mr.T.R.Harikumar for the landlords. The learned counsel for the revision petitioners mainly attacked the finding of sub tenancy entered by the Rent Controller, which was affirmed by the appellate authority also. The learned counsel submitted that the Municipal records would show that the licensee of the business in the tenanted premises was initially Mr.Chacko, the assignor of the alleged sub tenant and later the licence was in the name of the sub tenant. The rent was being paid from time to time by the alleged sub tenant and it was received by the landlord also. Therefore, the findings of the authorities below are perverse and so, they are liable to be interfered with, it is submitted. CRP 2826/02 & 309/03 6 7. The learned counsel for the landlords, on the other hand, submitted that except the lease deed executed in 1955 by the original landlord in favour of Emmanuel, there is no other lease deed executed by the landlord in favour of Mr.Chacko or in favour of the partnership firm of Chacko and Kurian (alleged sub tenant). Admittedly, the alleged sub tenant is in possession of the tenanted room. So, it is for him to show under what authority he is in occupation of the room. Though he claimed that there was a lease deed executed in favour of his partnership firm, he has failed to produce it or prove the same. 8. From the evidence on record and the deposition of witnesses, we find that the original tenant Emmanuel came to occupy the room under Ext.A2 lease deed. Thereafter, no lease deed was executed concerning the room. But, Mr.Kurian is found to be and is admittedly in possession of it. So, the irresistible inference that can be drawn is that he has come to occupy the room only as a sub tenant. The fact that he paid rent or it was received by the landlord, will not legitimise his occupation. For the purpose of the Act, he is only a sub tenant. Therefore, we find nothing wrong with the finding of the authorities CRP 2826/02 & 309/03 7 below that Mr.Kurian was a sub tenant. 9. We also notice that the finding that the building requires reconstruction has been found by the courts below concurrently. The landlord has produced Exts.A8 and A9 approved plan and permit issued by the Municipality for the reconstruction of the building. He has got the means to undertake the construction. Further, the building is an old tiled building in a fast developing area. If the landlord wants to reconstruct it into a modern building, so that it will fetch more revenue for him, the same is definitely a ground available under Section 11(4)(iv) of the Act. The Commissioner's report also supported the claim of the landlord. So, the findings of the authorities on this point in favour of the landlord cannot be said to be perverse or based on no evidence. It is a finding of fact, with which this Court cannot interfere in exercise of its revisional jurisdiction. In the result, the Civil Revision Petition fails and it is dismissed. C.R.P.No.309/2003: 10. As mentioned earlier, this revision is directed against the judgment in R.C.A.No.6/2001 of the Additional Rent Control CRP 2826/02 & 309/03 8 Appellate Authority, Kottayam. The petitioners herein feeling aggrieved by the finding of the appellate authority that the landlord is entitled to get eviction under Section 11(2)(b) of the Act also, have filed this revision. After hearing both sides and taking into account the consensus arrived at based on the submissions made at the bar by both sides, we direct that the rent deposited before the Rent Control Court as per the orders of the courts from time to time can be withdrawn by the landlords. The revision petitioners shall pay the rent starting from the period in relation to which the rent was already deposited, up to the time they give vacant possession of the tenanted premises, either directly to the landlords or deposit the same before the Rent Control Court. With the above direction, the Civil Revision Petition is disposed of. K.BALAKRISHNAN NAIR, JUDGE. M.C.HARI RANI, JUDGE. Nm/ CRP 2826/02 & 309/03 9 K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. --------------------------------------- C.R.P. NOS.2826/2002 & 309/2003 --------------------------------------- ORDER 16.12.2008.