IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 RCRev..No. 117 of 2007() ------------------------ RCA.12/2004 OF RENT CONTROL APPELLATE AUTHORITY, KASARAGOD RCP.24/2003 OF RENT CONTROL COURT, KASARAGOD .................... PETITIONER IN R.C.R-RESPONDENT IN R.C.A.-PETITIONER IN RCP --------------------------------------------------------------------------- K.P.RAJASHEKHAR, S/O.LATE M.GANGADHAR, UNEMPLOYED, RESIDING AT NIAZ COMPOUND, NEAR SUBRAMANYA TEMPLE, NELLIKUNNU, KASARAGOD- KASBA VILLAGE, KASARAGOD TALUK, KASARAGOD DIST. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENT: APPELLANT IN R.C.A.- RESPONDENT IN R.C.P. -------------------------------------------------------- ABDUL RAZAK, S/O.KARIPODI ABDULKHADER HAJI, BUSINESSMAN, DOOR NO.K.M.C.III/903, GALAXY FOOT WEAR, M.G.ROAD, KASARAGOD P.O., KASARAGOD. ADV. SRI.K.V.SOHAN FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 20/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P.Q.BARKATH ALI, JJ. ----------------------------------------------- RCR. No. 117 of 2007 ----------------------------------------------- Dated this the 20th day of July, 2009 O R D E R Pius C.Kuriakose, J. The landlord is in revision against the judgment of the Rent Control Appellate Authority reversing the order of eviction passed by the Rent Control Court under sub-section (3) of Section 11 and dismissing the rent control petition filed by him. The landlord is a physically handicapped person and the need projected by him in the RCP under sub- section (3) of Section 11 was that he needs the building for his own occupation, so that he can carry on business in a Juice Centre-cum- Fruit Stall in this building which is situated in a commercially prime locality. He claimed title to the petition schedule building by virtue of a document marked as Ext.A1 to which himself and his siblings are parties. 2. The respondent resisting the RCP contended that RCR. N0. 117/07 -2- Ext.A1 document is a sham document. It was also contended that the need projected in the RCP is bereft of bona fides. Alternatively it was contended that he is entitled to the protection of the second proviso to sub- section (3) of Section 11. 3. The evidence before the Rent Control Court consisted of documents Exts.A1 to A11 and the oral testimony of the landlord as PW-1 on the side of the landlord. On the side of the tenant the same consisted of B1 to B4 and the oral testimony of the tenant as RW-1. The Rent Control Court on the basis of the evidence formulated requisite points including point No.1 as follows: “Whether the denial of title of the petitioner by the respondent is bona fide? On evaluating the evidence the Rent Control Court would answer all the points in favour of the landlord and accordingly pass an order of eviction under sub-section (3) of Section 11. One of the contentions which had been RCR. N0. 117/07 -3- raised by the tenant in his statement of objections was that the landlord is an L.I.C. Agent and that he is deriving income from that agency business. The Rent Control Court while holding regarding the need projected under sub- section (3) of Section 11 would find that the fact that the landlord is having L.I.C. Agency cannot disentitle him to seek the petition schedule building for doing the proposed business. 4. Against the order of eviction passed by the Rent Control Court the tenant preferred RCA No. 12/04 before the Rent Control Appellate Authority. No specific ground was raised by the tenant in the appeal challenging the finding of the Rent Control Court that the circumstances that the landlord is having LIC Agency cannot be of much consequence on his eligibility for getting eviction under sub- section (3) of Section 11. So also, no specific ground was raised by the tenant assailing the finding of the Rent Control RCR. N0. 117/07 -4- Court that the tenant's denial of the landlord's title is not bona fide. The Appellate Authority however, would interfere with the judgment of the Rent Control Court and hold that the landlord has not adduced evidence to show as to what was the income derived by him from the LIC Agency, so that the Rent Control Court and the Appellate Authority could decide whether the landlord's need to start the proposed business of Juice Centre and Fruit Stall is a bona fide one. On that reasoning the appeal was allowed and the RCP was dismissed. 5. Assailing the judgment of the Appellate Authority the present revision is filed raising various grounds. We have heard the submissions of Mr. P.B. Krishnan, learned counsel for the revision petitioner and those of Sri. K.V.Sohan, learned counsel for the respondent. Mr. Krishnan would assail the judgment of the Rent Control Appellate Authority and would request that the same be set RCR. N0. 117/07 -5- aside by restoring to the decision of the Rent Control Court. According to him, though a contention had been taken by the tenant that the landlord is having LIC Agency, the said contention was not seriously pursued by the tenant at the stage of evidence. Reading over to us the appeal memorandum filed by the tenant before the Rent Control Appellate Authority, Mr. Krishnan argued that the above contention was not pursued by the tenant before the Appellate Authority also. According to Mr. Krishnan, even the evidence of the tenant before the Rent Control Court was to the effect that the landlord has been an LIC Agent for 10 years. According to him even if it is true that the landlord is gaining some income from LIC Agency by way of commission, then also the need projected by him in the RCP to have business of Juice Centre and Fruit Stall started in the petition schedule building does not become malafide. The learned counsel argued that perhaps by opening the RCR. N0. 117/07 -6- Juice Centre and Fruit Stall it may be possible for the landlord to get more LIC Agency business also by displaying a board in the petition schedule building. Mr. Krishnan highlighted that the findings of the authorities below that the tenant is not entitled to the protection of the second proviso has been concurrently entered and there is no warrant at all for interference with those findings. 6. Sri.K.V.Sohan, learned counsel for the respondent tenant would resist all submissions of Mr. Krishnan very forcefully. He argued that A1 document was a sham document. According to him, it was only in the wake of the failure of the sisters of the present landlord in securing eviction on various requests that Ext.A1 was brought into existence by the sisters and the brother together. According to Mr. Sohan, the finding of the authorities below that the tenant attorned to the present landlord is not correct. What was stated in Ext.A4 was only that the tenant RCR. N0. 117/07 -7- is ready to attorn with the landlord in response to the landlord's request without prejudice to the tenant's right to deny the landlord's title in a proceeding for eviction. That will not become attornment in the real sense of the term. Mr. Sohan placed reliance on the judgment of this Court in Balan v. Philo, (1987(1) KLT 286) and argued that in this case where the tenant contended that the document under which the tenant claimed title records a sham transaction and that no title has actually passed to the landlord the Rent Control Court had a duty to enter a finding on the question. That duty has not been discharged in this case. Mr. Sohan relied on the judgment of the Supreme Court in Devi Das v. Mohan Lal, AIR 1982 SC 1213 for the same proposition. 7. We have considered the rival submissions. We are not much impressed by the argument of Mr.K.V.Sohan that the proceedings of the Rent Control Court and the Appellate RCR. N0. 117/07 -8- Authority are vitiated due to the reason that they did not consider the question whether the document of title relied on by the landlord was a sham one. It is true that neither the Rent Control Court nor the Appellate Authority raised a specific point as to whether the document of title, i.e., document No. 1952 of 2002 relied on by the landlord is a sham one. But both the authorities below specifically considered the question under section 11(1) of the Rent Control Act construing the contention that the document of title relied on by the landlord is a sham one as a contention in the denial of the landlord's title. Thus the point specifically formulated by the authorities was whether the denial of the title of the landlord by the respondent is bona fide? This point is elaborately considered by the Rent Control Court and it is found that the denial of the landlord's title is not bona fide. In the appeal preferred by the tenant, the Appellate Authority again formulated the preliminary RCR. N0. 117/07 -9- point whether the denial of title by the appellant is bona fide? The Appellate Authority considered that preliminary point in the light of judgment of the Full Bench of this Court in Parthakumar v. Ajith Viswanathan, 2006(2) KLT 250. Inter alia it was noticed that the revision petitioner did admit his status as a building tenant and that he came into possession of the building as a tenant under the landlord's sister Sumathi. The Appellate Authority relied on Ext.A5 ownership certificate, A6, A7 and A8 property tax assessment registers in respect of the building. Exts.A6, A7 and A8 were documents enjoying presumptions and probative value in terms of section 26 of Act 2 of 1965. These documents revealed the status of the petitioner in the RCP as landlord and respondent in the RCP as tenant. The Appellate Authority obviously held that there was no evidence adduced by the tenant to dislodge statutory presumptions regarding correctness of the entries in RCR. N0. 117/07 -10- Exts.A7 and A8. Both the authorities also noticed that in Ext.A4 reply notice sent by the tenant through his advocate it was agreed by the tenant that he will attorn to the petitioner in the RCP. More over, it is seen from the evidence that the contention that the title deed executed by the sisters of the landlord in favour of the landlord is a sham one is raised by the tenant mainly on the reason of under-valuation. In fact, in his evidence as RW-1 the tenant even stated that he is ready and willing to purchase the property for three times the value shown in Ext.A1 title deed. Inadequacy of consideration cannot be a reason for holding that a document is sham. Unless and until cogent evidence is adduced to show that no consideration has passed or that the consideration shown in the document did not actually pass between the parties it will not be possible to accept a contention that a document is sham. The finding of the Rent Control Appellate Authority confirming RCR. N0. 117/07 -11- the finding of the Rent Control Court that the tenant's denial of the landlord's title is not bona fide actually considers is a finding regarding the tenant's contention that Ext.A1 is a sham document. At any rate, the authorities under the Rent Control Act are to be concerned with existence of landlord tenant relationship between the parties and we find that they have been so concerned, and the finding that there is such relationship between the parties is founded on evidence oral, documentary and circumstantial. It is significant to note that the tenant who has suffered adverse findings concurrently in the context of the contention raised by him that the landlord's title is a sham one, has not chosen to challenge that finding separately. At any rate, we do not find any illegality, irregularity or impropriety warranting invocation of the revisional jurisdiction for setting aside the concurrent findings of the authorities below that the tenant's denial of landlord's title is not bona RCR. N0. 117/07 -12- fide. 8. The question which survives is whether the Appellate Authority was justified in setting aside the finding of the Rent Control Court that the need and the claim of the landlord that he wants the building for own occupation. The need projected by the landlord in RCP was that he is a physically challenged person and that he intends to start a Juice Centre and Fruit Stall in the tenanted shop room. The bona fides of the need was disputed. It was contended that the petitioner landlord was not handicapped or unemployed. It was contended that some of the rooms owned by the sisters of the landlord were remaining vacant. It was contended that the petitioner is working as insurance agent for the last 10 years and as real estate broker for the last 15 years. The tenant also contended that he is entitled to the protection of second proviso to sub-section (3) of Section 11. The parties adduced evidence and the landlord RCR. N0. 117/07 -13- relied on Ext.A1 title deed and Exts.A5 and A11 ownership certificates issued by the Municipality as well as building tax assessment registers A6 to A8 for establishing his title. He gave oral evidence as PW-1 in tune with his pleadings in the context of his need under sub-section (3) of Section 11. It was asked to him in cross-examination that whether he has not been an LIC Agent. That question was answered in the positive and stated that he had been an LIC Agent for 22 years. But in evidence the above line of questioning was not pursued any further. Not even a suggestion as to what was the income derived by PW-1 from that activity was put to PW-1. The suggestion that he was working as real estate agent was denied. In fact in his evidence as RW-1 though the tenant stated that PW-1 was working as an LIC Agent he did not make any further assertion that PW-1 was earning sufficient amount from LIC Agency for his sustenance. In fact, RW-1's evidence was that he came to RCR. N0. 117/07 -14- know that PW-1 is LIC Agent from others and he cannot say what PW-1's income is from LIC Agency business. It was this evidence of PW-1 and RW-1 which was appreciated by the Rent Control Court which had the advantage of recording this evidence. The Rent Control Court held that there was no evidence to show that PW-1 is getting sufficient income as an LIC Agent. That court found on the basis of the evidence that the landlord was working in an Arrack Depot till 1996 and that he lost his job due to the ban imposed by the Government on arrack shops and that the building in question was purchased by him with the welfare fund amount received by him on termination of his job in the arrack shop. It was found that PW-1 was a physically handicapped person without any employment or source of income sufficient for his sustenance and it was accordingly that the Rent Control Court found the need to be bona fide. That court also found that the tenant was RCR. N0. 117/07 -15- unsuccessful in establishing that he is entitled to the protection of the second proviso to sub-section (3) of Section 11. Thus eviction order under Section 11(3) was passed. The Appellate Authority under the impugned judgment allowing the tenant's appeal has held that the landlord has not established that he is not getting sufficient income for his livelihood from the LIC Agency business. It should be noticed in this context that neither in the counter statement filed by the tenant nor even during the cross- examination of PW-1 it is suggested that PW-1 is getting sufficient income from LIC Agency for sustaining him. RW-1 in fact admitted that he has no idea regarding the income being derived by PW-1 from his LIC Agency. A perusal of the memorandum of appeal preferred by the tenant will reveal that the case that the landlord is deriving income from LIC business and hence it is unnecessary for him to start his proposed business is not projected. The Appellate RCR. N0. 117/07 -16- Authority has reversed the decision of the Rent Control Court thinking that it is the burden of the landlord to establish that he does not have sufficient income as LIC Agent. Importantly, the Appellate Authority does not find that the landlord is getting sufficient income as LIC Agent. The finding is only that he has not established the factual position to be otherwise. We feel that the decision of the Appellate Authority is based on special pleadings and on an aspect which the tenant himself did not pursue seriously. 9. It appears to us that the Appellate Authority has viewed the case of the landlord with undue suspicion. It is not the requirement of law that in order that a landlord is giving an order of eviction under sub-section (3) of Section 11 he must be unemployed, destitute and confined to his house. Being an LIC Agent, it cannot be classified as a full time employment. No oblique motives in filing the RCP has been established, even according to the Rent Control RCR. N0. 117/07 -17- Appellate Authority. According to us, when the evidence is to the effect that the landlord is not deriving income sufficient for his sustenance from LIC Agency, the need projected by the landlord that he wants to conduct a Juice Centre business from the petition schedule building, the only building belonging to him, has been rightly accepted by the Rent Control Court to be a bona fide one. The interference by the Appellate Authority on that finding was illegal and hence there is every justification for interfering with that authority's finding. 10. As for the tenant's eligibility for protection of the second proviso, as already indicated by us, the Rent Control Court found on evidence that the tenant on whom is the burden to establish that he is entitled for the protection, was unsuccessful in establishing that he is entitled for protection. The Appellate Authority practically approves the above decision of the Rent Control Court. However, taking RCR. N0. 117/07 -18- the view that the tenant has the burden to prove that he is entitled to the benefit of the second proviso only when the landlord whose is need under sub-section (3) is a bona fide one, leaves the issue there. We are of the view that the finding of the Rent Control Court in the context of the second proviso to Section 11(3) which is practically endorsed by the Appellate Authority also, is founded on evidence. 10. The result is, that reversing the judgment of the Appellate Authority we order eviction under sub-section (3) of Section 11. However, by way of indulgence and taking into account the totality of the circumstances which attended in this case we are inclined to grant time till 30-3- 2010, however, subject to the following conditions: 1) The respondent tenant shall file an affidavit before the Execution Court, if E.P. is pending or before the Rent Control Court within three weeks from today stating that he RCR. N0. 117/07 -19- will peacefully surrender the petition schedule premises to the revision petitioner on or before 30-3-2010. It shall also be stated that he will discharge the arrears of rent if any, and will continue to pay occupational charges at the current rate of Rs.1,500/- per month till he actually surrenders the building. Once such an affidavit is filed the respondent will get the benefit of time granted under this judgment. This means that if affidavit is filed, delivery will not be ordered and effected of the petition schedule building till 30-3-2010. The RCR is allowed as above, but in the circumstances the parties are directed to suffer their costs throughout. (PIUS C.KURIAKOSE, JUDGE) (P.Q.BARKATH ALI, JUDGE) ksv/-