IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 RCRev..No. 20 of 2009() ----------------------- RCA.4/2006 of D.C. & SESSIONS COURT,KOLLAM BRCOP.2/2003 of MUNSIFF COURT, KARUNAGAPPALLY .................... REVISION PETITIONER/APPELLANTS IN RCA --------------------------------------------------------- 1. SABEER, S/O.ISHAQ KUNJU, SAJITHA MANZIL, KALLELIBHAGOM MURI, THODIYUR VILLAGE, KOLLAM. 2. FATHI MUTHU, W/O.ISHAQ KUNJU, SAJITHA MANZIL, KALLELIBHAGOM MURI, THODIYUR VILLAGE, KOLLAM. 3. SADHEENA, D/O.FATHI MUTHU, SAJITHA MANZIL, KALLELIBHAGOM MURI, THODIYUR VILLAGE, KOLLAM. 4. SABEENA, D/O.FATHI MUTHU, SAJITHA MANZIL, KALLELIBHAGOM MURI, THODIYUR VILLAGE, KOLLAM. 5. RAFI, S/O.ISHAQ KUNJU, SAJITHA MANZIL, KALLELIBHAGOM MURI, THODIYUR VILLAGE, KOLLAM. 6. SAKKEERA, D/O.FATHI MUTHU, SAJITHA MANZIL, KALLELIBHAGOM MURI, THODIYUR VILLAGE, KOLLAM. 7. FADHAS, S/O.ISHAQ KUNJU, SAJITHA MANZIL, KALLELIBHAGOM MURI, THODIYUR VILLAGE, KOLLAM MINOR REPRESENTED BY MOTHER AND GUARDIAN FATHI MUTHU. 8. AFZANA, D/O.FATHI MUTHU, SAJITHA MANZIL, KALLELIBHAGOM MURI, THODIYUR VILLAGE, KOLLAM MINOR REPRESENTED BY MOTHER AND GUARDIAN FATHI MUTHU. BY ADV. SRI.M.P.RAMNATH SRI.T.GOPALAKRISHNAN SRI.P.RAJESH(KOTTAKKAL) RESPONDENT(S): RESPONDENTS IN RCA/PETITIONER IN RCP --------------------------------------------------- 1. LALITHA, JASMINE HOUSE, CONVENT ROAD, FACTORY WARD, ALAPPUZHA. 2. MUHAMMED KUNJU, KURUNGATTU FANCY, NO.66 KP III WARD, PADA SOUTH MURI, KARUNAGAPPALLY. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 20/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & M.C.HARI RANI, JJ. ------------------------ R.C.R. No.20 of 2009 ------------------------ Dated this the 20thday of January, 2009 O R D E R Pius C.Kuriakose, J. The Revision petitioners are the respondents 1 and 3 to 9 in the Rent Control Petition, which was filed on the grounds under Sections 11(4) (i) and 11(4) (iii) of Act 2 of the Kerala Buildings (Lease And Rent Control) Act 1965 and against them orders of eviction have been concurrently passed under both the grounds. The parties will be referred to as the landlords, tenants and the alleged sub tenant. The 2nd respondent in the Rent Control Petition was the alleged sub tenant. The case of the landlords in the context of the ground under Section 11(4)(i) was that the building in question at the time of letting had only one assessment number from the local Panchayat and that after commencement of the tenancy, it was assigned two assessment numbers in view of the partition wall separating the rooms into eastern and western halves and the eastern half portion having R.C.R..No. 20/2009 2 Door No. 656 is retained by the tenants and the western half portion having Door No. 655 has been transferred/sublet to the alleged sub tenant unauthorisedly. The case is that the original letting was in favour of Sri. Ishaq Kunju, who is predecessor-in- interest of the tenants and that upon the demise of the above said Ishaq Kunju, the tenancy has devolved jointly upon the revision petitioners. The defence of the revision petitioners tenants to the case of sub lease was one of total denial. It was contended that the statutory demand notice envisaged by the proviso to Section 11(4)(i) was never received by them. According to them, legal possession of the premises has always been retained by them only. The landlords' case in the context of ground under Section 11 (4)(iii) was that both the first respondent in the Rent Control Petition as well as the alleged sub tenant owned and possessed other buildings in the same village and that they are carrying on their business in those buildings. The defence of the revision petitioners to the above case was that the arrangement in respect of the other building, as pointed out by the respondents, had been in existence even at the time of original tenant Ishaq Kunju and therefore, it cannot be R.C.R..No. 20/2009 3 stated that the building allegedly possessed by the first respondent in the Rent Control Petition is reasonably sufficient for the requirement of the tenants. The evidence before the Rent Control Court consisted of Ext.A1 to A6, PW1 and PW2 on the side of the landlords and Exts.B1(a) to B1(p) and CPW1 on the side of the tenants. The alleged sub tenant, though he remained ex parte, was not examined as witness by either of the parties. A Commissioner was appointed ex parte by the Rent Control Court and the Commissioner filed a report which is not seen marked and it is not referred to by the Rent Control Court or for that matter by the appellate authority. The Rent Control Court, relying mainly on Ext.A5 and A6 property tax assessment registers, held that the landlords had established prima facie that the western half portion of the building had been transferred to the alleged sub tenant and in the absence of any evidence from the side of the revision petitioners for rebutting the presumption aroused by Exts.A5 and A6, concluded that the ground under Section 11 4 (i) stood established. As regards the ground under Section 11 (4) (iii) also the Rent Control Court held that in view of the contention of the revision petitioners that even R.C.R..No. 20/2009 4 the alternate building pointed out by the landlord had been taken on lease by late Ishaq Kunju, the possession of that building and the ownership of the business carried on in that building is with the revision petitioners jointly and held that ground Under Section 11 (4) (iii) is made out. The Rent Control Appellate authority reappraised the evidence and concurred with the conclusions of the Rent Control Court and confirmed the orders of eviction passed by the Rent Control Court. 2. Sri.M.P.Ramnath, learned counsel for the revision petitioners addressed us very strenuously on the various grounds raised in the revision petition. As regards ground under Section 11 (4) (i), the learned counsel submitted that there was no legal evidence to hold that the statutory notice under proviso to Section 11(4) (i) had been served on the revision petitioners tenants. He submitted that the Commissioner, who had inspected the petition schedule building at the time of the commencement of the rent control petition, had not reported about the physical presence of the alleged sub tenant in the petition schedule building. On the contrary, his report was that R.C.R..No. 20/2009 5 the alleged sub tenant was doing business in another building, three buildings away from the schedule building. Regarding Exts.A5 and A6, he submitted that going by Ext.A5, possession of the eastern portion of the schedule building is not with the revision petitioners, but is with their deceased father Ishaq Kunju. That is clearly a mistake committed by the local authority in continuation of the entries in the assessment record for the previous years. The entries in relation to the western portion of the building, that the same is in possession or occupation of the alleged sub tenant, was also a mistake which could have been got corrected by the landlords, who have been appraised of the mistake by the tenants. Sri.Ramnath would also highlight before us the evidence of PW1, the son of the landlady, which is to the effect that he does not know as to when the sub lease was made and conceded that at the time of his examination as PW1 sub lease has been terminated. As regards the ground under Section 11(4)(iii), Sri.Ramnath submitted that the statutory notice under Section 11(4) had been issued only to the first revision petitioner, who was the first respondent in the rent control petition. But, as regards that submission, the learned R.C.R..No. 20/2009 6 counsel fairly conceded that the position is covered against the revision petitioners by the judgment of this court in Saiffuddin v. Prakasan (2004 (2) KLT 551). But, he argued that the question, whether possession of another building by one of the joint tenants will amount to possession by all other joint tenants so as to entail liability for eviction under Section 11 (4) (iii), is the question which arises seriously for consideration in this appeal. That question, which is a purely legal question, was never considered by the authorities below and for that reason there is legal infirmity about the orders passed by the Rent Control Court and the Appellate Authority concurrent though they are, submitted Mr.Ramnath. 3. We have anxiously considered the submissions of the learned counsel. We have gone carefully through the orders passed by the Rent Control Court and the Appellate Authority. We have reminded ourselves about the contours of our jurisdiction under Section 20 which is revisional in nature where our enquiry has to be confined to the issue whether the orders passed by the authorities under the Rent Control Act are vitiated by illegality, impropriety or irregularity warranting correction R.C.R..No. 20/2009 7 under Section 20. We find that the conclusions of the court below on both the grounds are founded on evidence and the circumstances which attend on the case. When findings have been entered by the authorities under the Act based on the evidence and when those findings are found to be reasonable, normally this court under Section 20 is not expected to interfere with them. The argument of the learned counsel for the revision petitioners that the petition for eviction under Section 11 (4) (i) was liable to be dismissed for want of statutory notice has been considered by the authorities below. It was not disputed that the notice was sent to the first respondent, who is admittedly one of the joint tenants being legal heir of the deceased Ishaq Kunju by registered post in a cover which was properly addressed to him. The authorities below, in our view, were presently justified in presuming that the notice was served on the first respondent. Service of notice on him will amount to service of notice on other revision petitioners, who are joint tenants in view of the principles of law laid down in Saiffuddin' case(supra). It is difficult to accept the argument of Sri. Ramnath that the alleged sub tenant had nothing whatsoever to R.C.R..No. 20/2009 8 do with the western portion of the schedule building. Exts.A5 and A6 are certified copies of the property tax assessment registers pertaining to that portion of the building. Those two documents are property tax assessment registers governed by Section 26 of Act 2 of 1965, which is quoted below. “26. Executive authorities of local bodies to furnish certified extracts from property tax or house tax assessment books: The Executive authority of a Municipal Council(or Township Committee) or Panchayat or the Revenue Officer of a Corporation shall, on application made in this behalf and on payment of such fee as may, from time to time, be fixed by the Government, by notification in the Gazette, grant to the applicant a certified copy of the extract from the property tax or house tax assessment book of the Municipal Council (or Township Committee) or Panchayat or Corporation, as the case may be, showing the rental value of the building or buildings in respect of which application has been made, relating to the period specified in the application. Such certified copy shall be received as evidence of R.C.R..No. 20/2009 9 the facts stated therein in proceedings under this Act.” Thus, law mandates that Exts.A5 and A6 shall be received as evidence of the facts stated in Exts.A5 and A6 in proceedings under the Rent Control Act. Thus a very strong presumption is aroused regarding the correctness of the facts recorded in Exts.A5 and A6. Such presumption could have been dislodged by the revision petitioners by adducing equally convincing evidence. No such evidence was seen adduced. The best evidence on the side of the revision petitioners was to examine the alleged sub tenant, who according to him, is not at all interested in the schedule building, but is doing his own business elsewhere. Non examination of the alleged sub tenant, according to us, is circumstance of considerable consequence. They could have examined neighbouring shopkeeper atleast which is also not done. It is seen that the authorities below, particularly the rent control authority, which under the statutory scheme is final court on facts, has appreciated the evidence properly through the right perspectives and has decided the issue correctly. R.C.R..No. 20/2009 10 4. The same is the position as regards the ground under Section 11(4) (iii). There is certainly considerable force in the arguments of Sri.Ramnath that the pleadings raised by the landlords in the context of this ground are not satisfactory. The landlord has only pleaded that the first revision petitioner has come to own and possess another building in the same village and is doing business therein. There is no pleading at all that the said building is reasonably sufficient for the tenants' requirements nor is there any pleading to the effect that the joint tenants are in possession of that building. But, when we go through the statement of objection filed by the revision petitioners, we notice that they have certainly understood the landlords' case as one invoking statutory ground under Section 11 (4)(iii). They have contended, inter alia, that the alternate building alleged by the landlords to be in possession of the first respondent was being possessed by the original tenant Ishaq Kunju himself. Since such a contention is raised, it is not necessary for us to consider the legal question raised by Sri.Ramnath in the context of the ground under Section 11(4) (3). We notice that the Rent Control Appellate Authority has R.C.R..No. 20/2009 11 found on appreciating the evidence that the Revision petitioners, admittedly in possession of another building, have not substantiated by adducing cogent evidence that the said building is not reasonably sufficient for their requirements. The authorities below have specifically pointed out that best evidence to substantiate the contention that the alternate building possessed by the tenants is not sufficient for the tenants' requirement is the report of a commissioner on the basis of the local inspection. We also agree with that view and hold that there is no warrant for interfering with ground for eviction under Section 11 (4) (iii). 5. For the above reasons, this Revision petition fails. Sri.Ramnath, learned counsel for the petitioners would finally request for grant of atleast one year's time to vacate the premises. In deference to the ability and learning deployed by the learned counsel in his arguments and taking into account the circumstances attending on this case, we feel that there is justification for granting six months time even without issuing notice to the respondents. Accordingly, even as we confirm the order passed by the Rent Control Court and the Appellate R.C.R..No. 20/2009 12 authority and dismiss the revision petition, we are inclined to grant six months time subject to the following conditions; i). The first revision petitioners will file an affidavit on behalf of the other revision petitioners also before the Execution Court(Munsiff Court, Karunagappally) undertaking to peacefully surrender the petition schedule rooms to the respondents on or before 21/7/2009 and undertaking further to discharge the arrears of rent, if any, which has accrued in respect of this building and to pay the rent which falls subsequently till the date of surrender without fail. ii). If such an affidavit is filed by the first revision petitioner before the Execution Court within three weeks from today, execution petition, if any, filed by R.C.R..No. 20/2009 13 the respondents, will be adjourned to 22/7/2009. PIUS.C.KURIAKOSE,JUDGE M.C.HARI RANI, JUDGE dpk