IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 2ND SEPTEMBER 2011 / 11TH BHADRA 1933 RCRev..No. 126 of 2011(B) ------------------------------ RCA.4/2004 of DISTRICT COURT/RENT CONTROL APPELLATE AUTHORITY, KASARAGOD RCP.44/1989 of ADDL. MUNSIFF COURT, HOSDRUG .................... REVISION PETITIONER/RESPONDENTS/SUPPLEMENTAL RESPONDENTS 2 TO 9 -------------------------------------------------------------------------------------- 1. B.M.SUBRAYA HEGDE, AGED 70 YEARS, S/O.LATE VASUDEVA HEGDE, BANGARA MANJESHWAR VILLAGE, POST MANJESHWAR, KASARAGOD DISTRICT. 2. GANAPATHI HEGDE, AGED 68 YEARS, S/O.LATE VASUDEVA HEGDE, BANGARA MANHJESHWAR VILLAGE, POST MANJESHWAR, KASARAGOD DISTRICT. 3. SASRASWATHI HEGDE, AGED 65 YEARS, W/O.LATE DEVARAYA HEGDE, BANGARA MANJESHWAR VILLAGE, POST MANJESHWAR, KASARAGOD DISTRICT. 4. RAVICHANDRA HEGDE, AGED 42 YEARS, 5. VASUDEVA HEGDE, AGED 44 YEARS, 6. SRINIVASA HEGDE, AGED 36 YEARS, 7. SANDHYA, AGED 40 YEARS, 8. VIDYA, AGED 38 YEARS (RESPONDENTS 4 TO 8 ARE CHILDREN OF LATE DEVARAYA HEGDE, ALL ARE RESIDING AT BENGARA MANJESHWAR VILLAGE, POST BANGARA MANJESHWAR, KASARAGOD DISTRICT.) BY ADV. SRI.KODOTH SREEDHARAN RCRev..No. 126 of 2011(B) -2- RESPONDENT(S)/SUPPLEMENTAL 2ND APPELLANT/LEGAL HEIRS OF THE PETITIONER: -------------------------------------------------------------------------------- NALINI SHENOY, AGED 69 YEARS, W/O.LATE M.NARASIMHA SHENOY, R/AT LOWER CAR STREET IN HOSBETTU VILLAGE, MANJESHWAR, KASARAGOD DISTRICT. ADV. SRI.V.V.ASOKAN SMT.RUKHIYABI MOHD KUNHI THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 02/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ R. C. R. No.126 of 2011 ------------------------------------------------ Dated this the 2nd day of September, 2011 ORDER Abdul Rehim, J The respondents/tenants in RCP.44/89 on the files of the Rent Control Court, Kasaragod are the revision petitioners. The Rent Control Petition was instituted by the deceased original landlord seeking eviction under Sections 11(2) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965, on the grounds of arrears of rent and unauthorised material alterations caused by the tenants to the scheduled building. It is alleged that the tenants have defaulted payment of rent from 31/03/65 onwards. Further, they have unlawfully cut coconut trees and pulled down a portion of the old house with an intention of re-constructing it. It is also alleged that they have effected material alterations to the shop building. The tenants have put up RCC roof to the existing old building and all the construction R. C. R. No.126 of 2011 -2- activities were without any knowledge or authority of the landlord. According to the landlord the tenants have committed waste and damage in the 'A' schedule property and used the building in such a manner to destroy and reduce its value and utility, materially and permanently. 2. During pendency of the Rent Control Petition, the arrears of rent was cleared payment and therefore, eviction was declined under Section 11(2)(b). With respect to eviction sought under Section 11(4)(ii), the trial court found that the landlord was unsuccessful in proving the ingredients required for ordering eviction under Section 11(4)(ii), and hence declined eviction under that ground also. In appeal, the Appellate Authority had reversed the findings and ordered eviction under Section 11(4)(ii). The contention raised by the tenants that they have only improved the tenanted premises by constructing additional buildings and renovating the old and dilapidated portions, has not been accepted by the Appellate Authority. Referring to various decisions of this Court, it was observed that any R. C. R. No.126 of 2011 -3- replacement of old walls with new ones, removal of old flooring with new floorings, removal of old tiled roof with new roof and replacement of doors etc. will amount to reconstruction and such activities will amount to material alterations in point of view of the landlord. In such cases the landlord will be justified in considering that the tenants have transgressed the limits and authority and can be evicted by invoking Section 11(4)(ii). In the case at hand, after a thorough re-appraisal of the evidence on record, the Appellate Authority found that the construction activities carried out by the tenants will amount to material alterations and hence, they are liable to be evicted on the grounds specified under Section 11(4)(ii). 3. In the revisional jurisdiction vested on this Court under Section 20 of the Act, we are not supposed to re- appraise the evidence on record. But, since the findings of the courts below are divergent, we made a thorough scanning of the findings arrived by both the courts below and also done a quick re-appraisal of the evidence on R. C. R. No.126 of 2011 -4- record. We do not find any material illegality, irregularity or impropriety in the findings of the appellate authority, warranting interference of this Court on invoking the attenuated jurisdiction. 4. Sri.Kodoth Sreedharan, learned counsel appearing for the revision petitioner, contended that the land wherein the tenanted building is situated was subject matter of a ceiling case initiated against the landlord under the provisions of the Kerala Land Reforms Act and that the land in question along with the building was taken over by the state Government as excess land. Therefore, it is contended that the legal heirs of the original landlord ceased to have any interest in the land and on the building. Reference was made in this regard to a proceeding of the Taluk Land Board. But Sri.V.V.Ashokan, learned counsel appearing for the respondents/landlords submitted that it is not at all correct to say that the buildings was taken over by the Government as excess land, nor it has been surrendered. According to him, the order issued by the Taluk Land Board identifying R. C. R. No.126 of 2011 -5- the site as excess land was under challenge in a revision petition (CRP No.516/04) filed before this Court under Section 103 of the KLR Act and this Court had allowed the revision and set aside the order of the Taluk Land Board. It is further stated that the landlord was allowed to submit fresh option with respect to the lands to be surrendered as excess land. Sri.Kodoth Sreedharan is not in a position to dispute correctness of the above submission. Therefore, we are not inclined to entertain the revision petition on the ground that the landlords have lost rights or interest in the property and the building situated therein. 5. Under the above mentioned circumstances, we do not find any legally tenable ground warranting interference of this Court to reverse the impugned findings. Therefore, the revision petition fails and the same is accordingly, dismissed. 6. After we pronounced the order, Sri.Kodoth Sreedharan, learned counsel appearing for the revision petitioner, made an appeal to this Court to permit one year R. C. R. No.126 of 2011 -6- time to the revision petitioners/tenants to vacate the premises. The above request was stiffly opposed by Sri.V.V.Ashokan, learned counsel for the respondent. Considering the facts and circumstances attendant in this case, we feel that the revision petitioners can be granted time for a period of 8 months from today to vacate the premises, subject to the following terms. 7. The execution court is directed to defer effecting delivery of possession of the scheduled building for a period of 8 months from today, subject to the following conditions:- a) The first revision petitioner will file an affidavit for himself and on behalf of other revision petitioners before the Rent Control Court or the execution court, as the case may be, undertaking to handover peaceful and vacant possession of the tenanted premises within a period of 8 months from today. Such affidavit shall be filed within a period of 3 weeks from today. b) The revision petitioners shall make payment of arrears of rent if any due, within a period of one month from R. C. R. No.126 of 2011 -7- today, and shall continue payment of occupational charges at the rate of the prevailing rate of rent, till the date of surrender of the premises. 8. Unless the arrears of rent and occupational charges are paid within the stipulated time, the respondents/ landlords will be free to proceed with execution and to take delivery of possession of the building in question, immediately. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/- R. C. R. No.126 of 2011 -8- R. C. R. No.126 of 2011 -9- PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. ------------------------------------------------ R. C. R. No.126 of 2011 ------------------------------------------------ Dated this the 21st day of June, 2011 ORDER Pius C. Kuriakose, J Sri.V.V.Asokan, the learned counsel for the respondent/ landlord submitted that it is not at all correct to say that the building had been taken over by the Government on the basis of a finding by the Taluk Land Board that the buildings site is excess land to be surrendered. According to Sri.Asokan, the order of the Taluk Land Board identifying the site of this building was challenged by the landlord in revision under Section 103 K.L.R Act. This Court allowed the revision and set aside that order and now the matter has been remanded to the Taluk Land Board with a direction that the landlord should be allowed to submit a fresh option. Sri.Kodoth Sreedharan, the learned counsel for the petitioner R. C. R. No.126 of 2011 -10- sought for time to verify the correctness of the submissions made by Sri.Asokan. Post after seven days in the petition list. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/-