IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 10TH APRIL 2008 / 21ST CHAITHRA 1930 RCRev..No. 101 of 2008() ------------------------ RCA30/00-ADD.DIST.COURT(ADHOC),KSRGD,RENT CONTROL APP.AUTHORITY AUTHORITY RCP.11/1999 of PRL.MUNSIFF, KASARAGOD, RENT CONTROLLER .................... REVISION PETITIONER/RESPONDENT/RESPONDENT ----------------- NARAYANA SHETTY, S/O.KUNHANNA SHETTY RESIDING AT DERAMBALA IN KULOOR VILLAGE KASARAGOD TALUK & DISTRICT, POST CHARLA BY ADV. SMT.T.D.RAJALAKSHMI SRI.E.R.VENKATESWARAN RESPONDENT/APPELLANT/PETITIONER: ------------- CHOYI CHETTIAR, S/O.KRISHNA CHETTIAR 75 YEARS, HINDU, LANDHOLDER, RESIDING AT DERAMBALA I KULOOR VILLAGE KASARAGOD TALUK AND DISTRICT POST CHARLA BY THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 10/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. -------------------------------------------------------------------------------- RCR No.101 of 2008 -------------------------------------------------------------------------------- Order Balakrishnan Nair, J. The tenant is the revision petitioner. The landlord is the respondent. The landlord moved for eviction of the tenanted building under Ss.11(3) and 11(4) (ii) of the Kerala Buildings (Lease & Rent Control) Act. The building was rented out to the tenant on 26.05.1998 for a monthly rent of Rs.250/- for a period of 11 months. The said period expired on 26.4.1999. The landlord is having a large family. He has got paddy cultivation in 1.5 acres of land and he has got a few arecanut trees also. He was a weaver. His eye sight is failing and he is suffering from tuberculosis also. Therefore, he has stopped weaving. So he wanted the scheduled building to start the business in vegetables to augment his income. Therefore, he requires the building bona fide. So the claim under S.11(3) was made. The tenant stored diesel and kerosene in the tenanted building and caused damage to the building, reducing its value materially and permanently. Therefore, eviction was sought under S.11(4)(ii) also. 2. The tenant resisted the petition contending that the landlord has no title over the property. According to him, his brother Sri.Poovappa Shetty is the RCR 101/08 2 owner of the building. The tenant also submitted that the landlord does not have a large family. Three of his daughters are already married away and he is getting substantial income from the paddy field and arecanut trees. The tenant also claimed that he is depending on the income from the tenanted building for his livelihood and no other suitable room is available in the locality to shift his business. Before the Rent Controller, from the part of the landlord, PW1 and PW2 were examined and Exts.A1 to A8 were marked. The tenant got himself examined as RW1 and from his side, Exts.B1 to B13 were marked. The Rent Controller held that the denial of title is not bona fide, but rejected the claim for eviction under Ss.11(3) and 11(4)(ii). The landlord appealed. On appeal, the finding under S.11(4)(ii) was affirmed. But the appellate authority reversed the finding under S.11(3) and ordered eviction on that ground. Hence this revision by the tenant. 3. The learned counsel for the tenant submitted that the landlord is having paddy cultivation and arecanut cultivation, yielding substantial income. Regarding the claim that he has got a large family, it is contended that three of his daughters are already married away. Having regard to the facts of the case, it is incredible that the landlord will start some business at this late age, it is RCR 101/08 3 contented. The learned counsel also pointed out that there is no proper finding by the appellate authority on the second proviso to S.11(3). Therefore, the learned counsel for the tenant prayed for interference by this court with the direction of the appellate authority ordering eviction under S.11(3). 4. We notice that the finding regarding denial of title has become final at the appellate stage itself as the tenant did not file any appeal or cross appeal against that finding. The landlord stopped working as a weaver because of his poor eye sight and also for the reason that he is suffering from tuberculosis. If such a person thinks of starting a business in vegetables, the same cannot be described as not a bona fide requirement. Even assuming he has got substantial income to support his family and the size of the family he has to support is small, still nothing prevents him from thinking of doing some business which will increase or augment his income. In the above circumstances, the finding of the Rent Controller that the requirement of the landlord is not bona fide is plainly untenable and perverse. The appellate authority has rightly reversed it. Having regard to the present state of law, concerning bona fide requirement, the contentions raised by the learned counsel for the revision petitioner cannot be accepted. RCR 101/08 4 5. The appellate authority noticed that the tenant failed to prove what is the business he is doing in the tenanted premises and what is the income generated from it. We find that the said finding of the appellate authority is perfectly legal and valid. The burden of proving the ingredients under the second proviso to S.11(3) is on the tenant. Going by the materials on record, there is nothing produced by the tenant to show the nature of business run by him and the income derived therefrom. Therefore, he has failed to prove the first limb of the second proviso to S.11(3). So, he is not entitled to get the protection of the second proviso, even if there are no buildings in the locality to shift his business. In the result, the revision petition fails and it is dismissed. K.BALAKRISHNAN NAIR,JUDGE 10.04.2008 P.N.RAVINDRAN, JUDGE sta RCR 101/08 5