IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 12TH JANUARY 2009 / 22ND POUSHA 1930 RCRev..No. 7 of 2009() ---------------------- RCA.12/2006 of II ADDL. DISTRICT COURT, TRIVANDRUM RCP.67/2004 of I ADDL.M.C.,TRIVANDRUM .................... REVISION PETITIONER/APPELLANT/CR.PETITIONER -------------------- M.MOHAMMED IBRAHIM, SON OF ABDUL KHADER, TC 41/1364, ATTAKULANGARA, TRIVANDRUM. BY ADV. SRI.K.L.NARASIMHAN B.PRAMOD. RESPONDENT(S)/RESPONDENTS/PETITINER: --------------- S.SHAJADI, AGED 65 YEARS, TC NO.41/1362, ATTAKULANGARA, TRIVADRUM NOW RESIDING AT ALUMKMOOTTUVILAKOM PURAYIDAM, ATTAKULANGARA, TRIVANDRUM. ADV. SRI.T.K.ANANDA PADMANABHAN FOR CAVEATOR SRI.VINOD J.DEV. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 12/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & M.C.HARI RANI, JJ. ------------------------ R.C.R.No.7 OF 2009. ------------------------ Dated this the 12th day of January, 2009 O R D E R Pius C.Kuriakose, J. The revision petitioner is the tenant and he impugns orders of eviction concurrently passed by the rent control court and the appellate court on the grounds under Section 11(3) and 11(4)(iii) of the Kerala Buildings(Lease & Rent Control) Act 1965. It was admitted by the revision petitioner in the objection filed by him before the rent control court that it was the respondent landlady's husband who let out the building to him and that during the life time of the respondent's husband rent used to be paid to him and after his demise the rent was being paid to the respondent herself. Notwithstanding that contention, at the appellate stage, a new contention was raised that the landlady does not have title over the land upon which the building is constructed. It was contended that a portion of the land is R.C.R.No.7 of 2009 2 Government puramboke and the other portion belongs to one Sainam Beevi who is respondent in Annexure-A order produced before this court. Interlocutory applications were filed before the rent control appellate authority to substantiate that contention by issuing a commission and conducting measurement and also for receiving documents which would apparently support the contention. Those interlocutory applications were dismissed by the rent control appellate authority, who took the view that a tenant, who has admitted the tenancy, is not entitled to deny the title of the landlady during the continuance of the tenancy in view of Section 116 of the Evidence Act. 2. The landlady's plea in the context of ground under Section 11 (4) (iii) was that the TRIDA has allotted a shop building to the revision petitioner tenant and that the said building is reasonably sufficient for the tenant's requirement. The defence of the revision petitioner to that plea was that the revision petitioner does not have absolute ownership over that building and that its ownership continues to vest with TRIDA. In the context of the ground under Section 11(3) it is contended that the landlady's son- in- law was in occupation of one of the R.C.R.No.7 of 2009 3 three rooms which belongs to the landlady and hence R.C.P. was liable to fail in view of the first proviso to Section 11 (3). The rent control court and the appellate authority have concurrently repelled the contentions of the revision petitioner and passed orders of eviction under Section 11(4)(iii) as well as under Section 11 (3) of the Act. 3. We have heard the submissions of Sri.B.Pramod, learned counsel for the revision petitioner. Our attention was drawn by the learned counsel to Annexure A-I order of the Land Tribunal. Annexure A-I is an order by which the Land Tribunal has dismissed the application filed by the respondent landlady for assignment of kudikidappu rights in respect 7 ½ cents of land upon which schedule building stands constructed. According to the learned counsel, suppression of the pendency of proceedings before the Land Tribunal by the respondent which have now culminated in dismissal, amounts to suppression of a material fact which dis entitle the landlady to relief under the provision of the Rent Control Act. As regards ground under Section 11(4) (iii), the learned counsel submitted that at any rate, the revision R.C.R.No.7 of 2009 4 petitioner does not have any possession over the building pointed out by the landlady as of now. 4. Since Sri.Vinod J.Dev had lodged a caveat on behalf of the landlady, we have heard the submissions of Sri.Vinod J.Dev also. Sri.Dev would resist the submissions of the learned counsel for the petitioner and submit that Section 116 of the Evidence Act operates as a complete bar to the Revision Petitioner disputing the landlady's title. 5. We have considered the rival submissions. The revision petitioner does not have a case that the landlady's title over the building which is subject of the rent control proceedings have come to an end on account of any deed of transfer or acquisition by or devolution of interests in favour of anybody else. The contentions are only regarding the landlady's interest over the land upon which the schedule building stands constructed. In rent control proceedings, the authorities including this court under Section 20 are concerned essentially with ownership over the building and also as to whether there is a landlord – tenant relationship between the parties in respect of the building forming subject matter of the proceedings. Admittedly, the building in R.C.R.No.7 of 2009 5 question was let out by the landlady's husband to the revision petitioner and after his demise the revision petitioner had attorned to the present landlady. That being the position, Section 116 of the Evidence Act operates as a bar. The courts below were, in our opinion, perfectly justified in repelling the contention of the petitioner denying the landlady's title. As for the eviction passed under section 11(3), we notice that the findings of the Rent Control Court and the appellate authority are based on evidence and are very reasonable findings. 6. Having regard to the contours of this jurisdiction under Section 20 of the Act, we do not find any warrant for interference. As for Section 11(4) (iii), the question is not whether the tenant continues to possess the building of the landlady. The question is whether the tenant came to have possession over a building, which is reasonably sufficient for the tenant's requirement. Even if the tenant transferred possession of that building subsequently, he cannot escape from the liability for eviction under Section 11(4)(iii). 7. The learned counsel for the petitioner sought for time to vacate. But, since order of delivery is already passed, we are not R.C.R.No.7 of 2009 6 inclined to grant time. The R.C.R. will stand dismissed. No costs. PIUS.C.KURIAKOSE,JUDGE M.C.HARI RANI, JUDGE After we pronounced the above order, the learned counsel for the revision petitioner submitted that it is not an application for grant of time that has been filed by the revision petitioner before the execution court. What has been filed is a petition for staying the execution till the disposal of the present revision petition. The counsel sought for time to surrender since that petition has already become infructuous in view of our disposing of the R.C.R. We enquired of the learned counsel for the caveator as to whether the caveator is having any objection to our granting time. The learned counsel submitted that there is no objection in granting one month's time provided an undertaking is given before the court below. 8. Under the above circumstances, we are inclined to grant R.C.R.No.7 of 2009 7 a month's time and direct the Execution Court to put off delivery(if delivery has not so far been taken place) by one month from today, subject to the following conditions; i). The revision petitioner shall file an undertaking before the Execution Court in the form of an affidavit stating unconditionally that the revision petitioner will surrender peaceful possession of the building to the respondent on or before 15/02/2009 and the arrears of rent, if any, will be discharged and that the rent which falls due subsequently will also to be paid to the respondent without fail. ii). The revision petitioner shall file such affidavit forthwith and once Execution Court notices that affidavit, that court will adjourn the case for delivery to 16/2/2009. PIUS.C.KURIAKOSE,JUDGE M.C.HARI RANI, JUDGE dpk