IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 2ND MARCH 2010 / 11TH PHALGUNA 1931 RCRev..No. 70 of 2010() ----------------------- RCA.90/2006 of RENT CONTROL APPELLATE AUTHOIRTY THALASSERY RCP.264/2005 of RENT CONTROL COURT KANNUR .................... REVISION PETITIONERS/APPELLANTS/RESPONDENTS --------------------------------------------------------------- 1. P.T.P.KHADEEJA, W/O.KUNHI MOIDEEN, AGED 80 YEARS,NO OCCUPATION, RESIDING AT P.T.P.HOUSE,NEAR KATTILEPALLY PO, PAPPINISSERY GATE, PAPPINISSERI. 2. P.T.P.FATHIMA,D/O.KUNHI MOIDEEN, AGED 55 YEARS,NO OCCUPATION, RESIDING AT P.T.P.HOUSE,NEAR KATTILEPALLY PO, PAPPINISSERY GATE, PAPPINISSERI. 3. P.T.P.RUKHIYA,D/O.KUNHI MOIDEEN, AGED 48 YEARS,NO OCCUPATION, RESIDING AT P.T.P.HOUSE,NEAR KATTILEPALLY PO, PAPPINISSERY GATE, PAPPINISSERI. 4. P.T.P.HAMZAKUTTY,S/O.KUNHI MOIDEEN, AGED 49 YEARS,NO OCCUPATION, RESIDING AT P.T.P.HOUSE,NEAR KATTILEPALLY PO, PAPPINISSERY GATE, PAPPINISSERI. 5. P.T.P.KABEER,S/O.KUNHI MOIDEEN, AGED 40 YEARS,TRADER, RESIDING AT P.T.P.HOUSE,NEAR KATTILEPALLY PO, PAPPINISSERY GATE, PAPPINISSERI. 6. P.T.P.NASEER,S/O.KUNHI MOIDEEN, AGED 37 YEARS,TRADER, RESIDING AT P.T.P.HOUSE,NEAR KATTILEPALLY PO PAPPINISSERY GATE, PAPPINISSERI. BY ADV. SRI.V.RAMKUMAR NAMBIAR RESPONDENT(S): RESPONDENT/PETITIONER ------------------------------------ VELIKKAKATH ABDUL NAZAR, S/O.ABDULLAKUNHI, AGED 51 YEARS, SIRAJ MANZIL, MATTOOL SOUTH, THROUGH POWER OF ATTORNEY HOLDER AYAR HANEEF AHAMMED, S/O.MOHAMMED KUNHI, AGED 45 YEARS, TRADER, SIRAJ MANZIL, MATTOOL SOUTH, KANNUR. ADV.SRI.MOHAMMED MUSTAQUE THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 02/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ R.C.R.No. 70 OF 2010 ------------------------ Dated this the 2nd day of March, 2010 O R D E R Pius C.Kuriakose, J. The tenants, being the legal heirs of the original tenant, have come up in revision being aggrieved by the order of eviction concurrently passed against them by the Rent Control Court and the Appellate Authority on the ground under Section 11(3) and also under Section 11(4)(iii). The case of the landlord in the context of the ground under Section 11(3) was that the building is required bona fide for occupation by the landlord's son so that he can conduct a flour mill. The bona fides of the need was disputed by the revision petitioners/tenants, who raised several contentions. It was contended by them that they have got emunity from eviction by virtue of Section 106 of the Kerala Land Reforms Act. They contended that the land was leased to their deceased father and the building was put up by him long prior to 20/5/1967. They also contended that at any rate they are entitled for the protection of the second proviso to sub section 3 of Section 11. RCR.No.70/2010 2 2. It was by referring to a particular building that the landlord alleged that the tenants are liable to be evicted on the ground under Section 11(4)(iii). The contention of the tenants was that the above building is the personal acquisition of one among the revision petitioners and the other revision petitioners having not acquired possession of any building are not liable to be evicted on the ground under section 11 (4)(iii). The Rent Control Court enquired into the matter and at trial the evidence consisted of Exts.A1 to A17, Exts.B1 to B28 apart from the oral evidence of PW1, who is the Mukthiar holder of landlord and PW2 the son for whom the landlord wanted the building to be evicted. On the side of the tenants, the 7th respondent was examined as RW1. The Rent Control Court on appreciating the evidence, came to the conclusion that the landlord was successful in establishing both the eviction grounds invoked. It was also concluded that the tenants have miserably failed in proving that what was let out to their father was land and the building in question was put up by their father. It was also found that the tenants have failed in proving that they satisfy either of the ingredients of the second proviso to sub section (3) of Section RCR.No.70/2010 3 11. On the basis of such findings eviction order was passed against the revision petitioners on both the grounds. 3. Though the revision petitioners preferred an appeal to the Rent Control Appellate Authority and the above authority reappraised the evidence, the Appellate Authority concurred with all the conclusions of the Rent Control Court and confirmed the order of eviction under Section 11 (3) and 11 (4) (iii). 4. In this revision filed under Section 20, various grounds have been raised assailing the judgment of the Rent Control Appellate Authority and Sri.V.Ramakumar Nambiar, learned counsel for the revision petitioners addressed us on the basis of all the grounds. All the submissions of Sri.Ramakumar Nambiar was resisted by Sri.Mohammed Mustaque learned counsel for the respondents/landlord. We have scanned the judgment of the Rent Control Appellate Authority as well as the order of the Rent Control Court which was confirmed by the Rent Control Appellate Authority. We have kept in mind the guidelines governing the exercise of revisional jurisdiction under Section 20. We notice from the judgment of the Appellate Authority that the finding entered therein that the need urged by the landlord is a bona fide RCR.No.70/2010 4 as well as the finding that the tenants have failed in establishing that they are entitled to the protection of Section 106 of the Kerala Land Reforms Act and the further finding that they were unsuccessful in proving that they are entitled to the benefit of the second proviso to section 11 (3) are all findings founded on evidence. PW2, the defacto claimant, gave inspiring evidence before the Rent Control Court. We do not find any irregularity, illegality or impropriety with the authorities below relying on PW2's evidence and holding that the need urged is bona fide. Equally so, we do not find any infirmity about the findings entered by the authorities below in the context of Section 106 of the Act and the second proviso to sub section (3) of Section 11. 5. The grounds raised by the revision petitioners in the context of the eviction order passed under Section 11(4)(iii) cannot be said to be unattractive. But we notice that the findings have been entered concurrently by the authorities below that the revision petitioners, as a body, have come to possess the building referred to by the landlord though the same stands under the ownership of only one of them. What Section 11(3) requires is possession and not ownership. Having regard to the RCR.No.70/2010 5 contours of our jurisdiction under Section 20, we do not find any warrant for interference. 6. The result of the above discussion is that the revision fails and will stand dismissed. However, considering the last request of Sri.V.Ramkumar Nambiar that a reasonably long period of time be given to the revision petitioner to surrender the premises, even as we dismiss the revision petition and confirm the orders of eviction, we are inclined to direct the Execution Court not to order and effect delivery of the petition schedule building till 31/10/2010 subject to the following conditions: i). The 7th revision petitioner representing himself and the other revision petitioners shall file an affidavit before the Execution Court undertaking to surrender peaceful possession of the petition schedule building to the respondent on or before 31/10/2010. Through the same affidavit, it will also be undertaken that the entire arrears of rent if any will be discharged within one month and that occupational charges at the RCR.No.70/2010 6 current rent rate will also be paid as and when the same falls due without fail. ii). Affidavit as directed above shall be filed within one month from today. We make it clear that the revision petitioners will get the benefit of time granted under this judgment only if the affidavit is filed on time. The RCR is dismissed subject to the above directions. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM , JUDGE dpk