IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 RCRev..No. 9 of 2008() ---------------------- AGAINST THE ORDER DATED 03/07/2007 IN RCA. 13 /2005 IN RCA.11/2005 of DISTRICT COURT, KASARAGOD RCP.21/2004 of PRL.MUNSIFF, KASARAGOD .................... REVN. PETITIONER/APPELLANT/RESPONDENT NO.2 ----------------------------------------------------------- RAJENDRAN K.V., AGED 40 YEARS, S/O. A.K.NARAYANAN VAIDYAR, RESIDING AT EROL KUNNUMMAL HOUSE, BARE VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.JAWAHAR JOSE SMT.CISSY MATHEWS RESPONDENTS: RESPONDENTS/PETITIONER & RESPONDENT NO.1 ----------------------------------------------------- 1. YASMIN MUSTHAFA, AGED 46 YEARS, W/O. P.M.MUSTHAFA, RESIDING AT PADINHAR MALIKA, KOTTIKULAM, PALLIKKARA-II VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. 2. K.V.BALAKRISHNAN, AGED 55 YEARS, S/O. K.V.KUNHIRAMAN, RESIDING AT KEEVEES COTTAGE, BEHIND RANJI THEATRE, KAPPIL BEACH ROAD, PALAKUNNU, PALLIKKARA VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 08/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.Balakrishnan Nair & P.N.Ravindran, JJ. ======================== R.C.R.No.9 of 2008 ======================== Dated this the 8th day of January, 2008. ORDER Balakrishnan Nair,J. The alleged sub tenant is the revision petitioner. The first respondent is the land lady. The second respondent is the tenant. 2. The land lady moved for eviction under Section 11(2)(b), 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as "the Act") of the tenanted premises. The brief facts of the case as put forward by the land lady are the following: 3. The tenant obtained the building on lease on the strength of a rent deed executed on 20.2.1975 for a period of 11 months on a monthly rent of Rs.45/-. The building was rented out for running a printing press called "Devi Printing Press". The rent was enhanced from time to time and finally, it was revised RCR 9/08 -: 2 :- to Rs.1,000/- per month. The tenant defaulted to pay the tent from 20.2.1999. For the rent received, the land lady was issuing receipts. She caused to issue a registered notice on 21.12.2000 claiming arrears of rent. The tenant did not reply to the notice. The second respondent in the R.C.P., who was the sub tenant, sent a reply notice on 31.1.2001 to the said notice making false averments. According to the land lady, the tenant transferred possession of the building to the petitioner herein by way of sub lease without her consent or knowledge. The same is illegal and is against the terms and conditions of the lease. Now the building is in the exclusive possession of the sub tenant. 4. On 21.12.2002 the land lady sent a notice directing the tenant to terminate the sub lease. To this also, the tenant did not reply. The sub tenant sent a reply on 30.1.2003. According to him, he obtained the room from the land lady on oral lease on 15.4.1991. But the land lady asserts that that the petitioner herein is not a tenant. There is no land lord - tenant relationship between them, according to her. In spite of the notice, the sub tenancy was not terminated. Therefore, she claimed eviction under Section 11(4)(i) of the Act. The land lady also put forward a case that her daughter Ayisha Nasreem is a Dentist and she required the room to start practice. She is depending on her mother for the room. So, she prayed for an order of eviction under Sections 11(2)(b), 11(3) and 11(4)(i) of the Act. 5. The revision petitioner, who was the second respondent in the R.C.P. filed a counter statement resisting the prayers in the RCR 9/08 -: 3 :- R.C.P. According to him, the first respondent in the R.C.P. was not the tenant. On the contrary, he was the tenant of the building under an oral lease from 15.4.1991. Initially the rent was Rs.100/-. Now it is Rs.1,000/-. He has paid all the rent in time. There are no arrears. The need alleged is not bonafide. So, he prayed for dismissal of the R.C.P. From the side of the land lady PW1 and PW2 were examined and Exts.A1 to A12 were marked. The second respondent in the R.C.P. was examined as RW1 and Exts.B1 to B15 were marked from his side. The Rent Controller allowed the application under Section 11(2)(b) and Section 11 (4)(i) of the Act. The Appellate Authority affirmed the said finding. Hence, this revision by the alleged sub tenant challenging the orders of the Appellate Authority as well as that of the Rent Controller. 6. The main question that arises for decision before us is whether the finding under Section 11(4)(i) of the Act rendered by the courts below is valid or not. According to the land lady, the second respondent herein was the tenant since 1975. He sub let the building in 1999 to the petitioner herein. According to the petitioner, Mr. Shyam Kumar was the earlier tenant who was running a printing press there. He vacated the building in 1991 and thereafter the petitioner took the building on oral lease in 1991. The Rent Controller as well as the Appellate Authority found that there was no evidence whatsoever to show that there was oral lease entered into between the land lady and the petitioner herein. Learned counsel for the petitioner would attack RCR 9/08 -: 4 :- the said finding pointing out that according to the land lady, the sub tenancy came into effect in the year 1999. Relying on Exts.B6, B9 and B10, he would contend that his possession of the tenanted premises relates back at least from 4.10.1991, the date of Ext.B6. According to the petitioner, the legal effect of Exts.B6, B9 and B10 was not considered by the Appellate Authority and therefore, the said judgment of the Appellate Authority is illegal, improper and irregular. 7. The learned counsel pointed out that Ext.B6 is a declaration filed by the petitioner herein before the Additional District Magistrate on 4.10.1991 for obtaining the necessary permit for running the Devi Printing Press. Ext.B9 is the notice issued by the District Collector, Cannanore to Mr.K.Shyam Kumar, who was the earlier tenant under the land lady. Ext.B9 is dated 16.3.1982. Ext.B10 is the copy of the possession certificate issued by the Special Executive Officer, Uduma Panchayath to the petitioner herein for obtaining telephone connection. Those documents would belie the claim of the land lady that the revision petitioner was put in possession of the building only in 1999. According to him, Ext.B9 would prove the possession of the earlier tenant. So, the learned counsel submits that had the Appellate Authority considered the legal effect of those documents, the outcome of the case would have been different. 8. We notice that the Appellate Authority has referred to the said documents. But the tenancy claimed by the petitioner RCR 9/08 -: 5 :- herein was not accepted by the Appellate Authority for the reason that there was no evidence for the oral lease stated to be granted in 1991. The Appellate Authority also relied on Ext.A1 lease deed executed in favour of the original tenant, the second respondent herein. The learned counsel also pointed out that the land lady has no consistent case regarding the issuance of rent receipts. So, the same also probablise his case that he has been paying the rent, but no receipts were being issued by the person receiving the rent on her behalf. Reference was made to the deposition of the land lady in her cross examination. 9. We are of the view that based on the materials on record, the finding of the Appellate Authority that the petitioner has failed to prove that he is a tenant under the land lady is correct. In view of the facts and materials before us, it cannot be said to be a perverse finding. Though the learned counsel would point out a lacuna in the case of the land lady, we are of the view that the same will not prove the tenancy of the petitioner under her. 10. In the result, we are of the view that the finding of the Appellate Authority regarding the sub tenancy is not illegal, improper or irregular warranting interference by us under Section 20 of the Act. 11. Both the authorities found that there is no evidence to show that arrears of rent was cleared by the tenant. Since the sub tenant is in revision before us, it is not necessary for us to consider the case under Section 11(2)(b) of the Act as the sub tenant can have no liability to pay arrears of rent. The finding on RCR 9/08 -: 6 :- arrears of rent will bind only on the original tenant. Since he is not before us, it is not proper for us to consider the validity of the finding on that point. In the result, the revision petition fails and it is dismissed. K.Balakrishnan Nair, Judge. P.N.Ravindran, Judge. ess 9/1