IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 17TH AUGUST 2010 / 26TH SRAVANA 1932 RCRev..No. 250 of 2010() ------------------------ RCA.48/2003 of ADDL.DISTRICT COURT (ADHOC)-II, MANJERI RCP.21/2001 of MUNSIFF COURT, MANJERI .................... PETITIONERS -------------------- 1. ALLIPARA SAINABA, W/O.KASIM LAKSHAM VEEDU, KONDOTTY PULIYAM PARAMBU PO MALAPPURA DISTRICT 2. K.ABOOBACKER ALIAS BAPPU S/O.KOMBATHIL MOHAMMED 'KOMBATHIL HOUSE' KANNAMANGALAM PO TIRUANGADI TALUK MALAPPURAM DISTRICT 3. FATHIMA, D/O.KASIM, KOMBATHIL HOUSE KANNAMANGALAM PO TIRUANGADI TALUK MALAPPURAM DISTRICT 4. RASACK, S/O.KASIM 'KOMBATHIL HOUSE' KANNAMANGALAM PO TIRUANGADI TALUK MALAPPURAM DISTRICT 5. SUBAIDA, D/O.KASIM 'KOMBATHIL HOUSE' KANNAMANGALAM PO TIRUANGADI TALUK MALAPPURAM DISTRICT 6. HAFSATH, D/O.KASIM 'KOMBATHIL HOUSE' KANNAMANGALAM PO TIRUANGADI TALUK MALAPPURAM DISTRICT 7. RAMLA, D/O.KASIM 'KOMBATHIL HOUSE' KANNAMANGALAM PO TIRUANGADI TALUK MALAPPURAM DISTRICT 8. SIDHEEQ, S/O.KASIM 'KOMBATHIL HOUSE' KANNAMANGALAM PO TIRUANGADI TALUK MALAPPURAM DISTRICT 9. ANAS(MINOR), S/O.KASIM 'KOMBATHIL HOUSE' KANNAMANGALAM PO TIRUANGADI TALUK MALAPPURAM DISTRICT (9TH PETITIONER IS REPRESENTED BY GUARDIAN-MOTHER-FIRST PETITIONER) BY ADV. SRI.R.RAJESH KORMATH RESPONDENT(S): --------------- 1. N.T.SAFIDABI ALIA SAFIYA W/O.KINATHIYIL YOUSUF HAJI CALICUT ROAD, PERINTHALMANNA PERINTHALMANNA PO MALAPPURAM DISTRICT 2. KINATHIYIL YOUSUF HAJI S/O.KUNHALAVI HAJI CALICUT ROAD, PERINTHALMANNA PERINTHALMANNA PO MALAPPURAM DISTRICT 3. K.KESAVAN, MANJERI PO ERNAD TALUK MALAPPURAM DISTRICT 4. MOHAMMED HASSAN, S/O.KASIM 'KOMBATHIL HOUSE' KANNAMANGALAM PO TIRUANGADI TALUK MALAPPURAM DISTRICT 5. ASHRAF, S/O.KASIM 'KOMBATHIL HOUSE' KANNAMANGALAM PO TIRUANGADI TALUK MALAPPURAM DISTRICT THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 17/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RCR.250/2010 IA.2100/2010 IN RCR.250/2010 DISMISSED. 17-08-2010. SD/- PIUS C.KURIAKOSE, JUDGE SD/- C.K.ABDUL REHIM, JUDGE PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ``````````````````````````````````````````````````````` R.C.R. No. 250 of 2010 ``````````````````````````````````````````````````````` Dated this the 17 th day of August, 2010 O R D E R Pius C.Kuriakose, J. Under challenge in this revision petition under Section 20 of Act 2 of 1965 is the judgment of the rent control appellate authority confirming the order of eviction passed against the revision petitioners on the ground of subletting. In fact, the respondents had invoked the ground of arrears of rent also. But eviction on the ground of arrears of rent was declined and it is understood that the order of declining eviction has become final. Hence, we need be concerned only with the ground for eviction on the ground of subletting. 2. The tenant of the building was one Kasim. Kasim is no more. Upon demise of Kasim, his tenancy rights devolved upon Kasim's legal heirs, namely, revision petitioners 1 and 3 to 9 and respondents 4 and 5. The allegation of the landlord under Section 11(4)(i) was that after the demise of Kasim, his legal heirs, who alone are the tenants, did not carry on any business in the RCR.250/2010 : 2 : building. They have either sublet or transferred possession of the building unauthorisedly to one Aboobacker, who is the second petitioner herein. The allegation of sublease or transfer was denied by the revision petitioners. It was contended that after the demise of Kasim, as the other revision petitioners were not well versed in conducting business, Sri.Aboobacker, who is a nephew of Kasim, used to assist the other revision petitioners occasionally in the matter of conducting business. The Rent Control Court enquired into the matter and at trial, the evidence consisted of the oral evidence of PW1, brother of the first respondent and that of RW1, the tenant, and RW2, the alleged sub lessee. The documentary evidence consisted of Exts.A1 to A6 and Ext.B1 series and B2. Ext.C1 was the Commissioner's report and the Commissioner was examined as CW1. Exts.A4 and A5 were property tax assessment registers maintained by the Manjeri Municipality in respect of the building in question during the period from 1985-86 to 1989-90 and 1991-92 to 1995-96. In these documents, it is shown that Aboobacker or one Kesavan(another alleged sub lessee) is in possession. Ext.A6 is a similar document RCR.250/2010 : 3 : in which the person in possession is named as Aboobacker. Exts.B1 series and B2 are mainly receipts against the issuance of profession tax and licence fee or certified extracts of the licence issue register. All these documents will go to show that the trade licence in respect of the business continues to be in the name of Kasim. The Rent Control Court, on appreciating the evidence, came to the conclusion that the landlord was successful in proving the existence of the eviction ground under Section 11(4)(i). The appellate authority made a reappraisal of evidence and concurred with all the conclusions of the Rent Control Court and confirmed the order of eviction. Accordingly, the RCA filed by the revision petitioners was dismissed. 3. In this revision under Section 20, various grounds have been raised assailing the judgment of the appellate authority confirming the order of eviction passed on the ground of subletting. Sri.Rajesh R.Kormath, learned counsel for the revision petitioners, addressed very persuasive submissions before us on the basis of all those grounds. Placing strong reliance on the judgments of the Supreme Court in Smt.Krishnawati Vs. Shri.Hans Raj [(1974) 1 RCR.250/2010 : 4 : SCC 289] and Associated Hotels of India Ltd. Vs. S.B.Sardar Ranjit Singh [AIR 1968 SC 933] and the judgment of a learned Single Judge of this Court in Abdul Rahiman Kunju Vs. Rent Control Revisional Authority [1992 (2) KLT 600], Sri.Rajesh R.Kormath argued that in order that an eviction ground under Section 11(4)(i) is made out, it is absolutely necessary that exclusive possession of the building in question is transferred unauthorisedly by the tenant . In the instant case, the best that will emerge from the document is that along with the tenants, the alleged sub lessee is also in possession. Such possession, according to the learned counsel, will not amount to exclusive possession by the alleged sub lessee. According to the learned counsel, eventhough in terms of Section 26 of Act 2 of 1965, documents like Exts.A4, A5 and A6 are eligible for probative value, in this particular case, apparent errors have crept into those documents and, hence, much credence should not be given to those documents. Counsel highlighted that even the landlord's name is wrongly mentioned in the documents. Counsel pointed out that the name of Kesavan was shown in the RCP as the RCR.250/2010 : 5 : second respondent. The revision petitioners are not aware of Sri.Kesavan. Kesavan was not served with notice, submitted by the learned counsel. According to the learned counsel, the appreciation of evidence by the statutory authorities was erroneous and this was resulted in miscarriage of justice. 4. We have very anxiously considered the submissions of Sri.Rajesh R.Kormath. We have gone through the judgment of the appellate authority as well as the order of the Rent Control Court. We are unable to accept the arguments of Sri.Rajesh R.Kormath that it is necessary that the possession over the petition schedule premises should be exclusively transferred or that the petition schedule premises should be sublet unauthorisedly by the tenant for establishing ground under Section 11(4)(i). According to us, unauthorised subletting or unauthorised transfer of possession of the premises in the entirety or of a part of the premises will be sufficient for constituting eviction ground under Section 11(4)(i). In the present case, we notice that on the basis of evidence, particularly Exts.A4, A5 and A6, it has been found by the statutory authorities that Sri.Kesavan and Aboobacker were in possession. RCR.250/2010 : 6 : The specific explanation of the tenants regarding the presence of Aboobacker, which is practically conceded, is that Aboobacker is a nephew of late Kasim and is only assisting the other petitioners occasionally in the matter of conducting business. But, Exts.A4, A5 and A6 are documents envisaged by Section 26 of Act 2 of 1965 and when such documents are placed on record, the entries therein are to be accepted as proof of what is stated therein. It is a very strong presumption that is raised by documents like Exts.A4, A5 and A6. The question is whether the revision petitioners have been able to dislodge that presumption by adducing evidence. The evidence adduced on the side of the revision petitioners was mainly licence fee receipts and professional tax receipts. All these documents show the name of Kasim. Kasim, admittedly, is no more. Only somebody other than Kasim can conduct business even if the licence stand in the name of Kasim. The question is as to who is conducting the business. It is noticed by the statutory authorities that the respondents in the RCP were not able to show that the tenants were conducting any business. Mr.Rajesh R.Kormath's argument was that when licence stands in the name RCR.250/2010 : 7 : of Kasim, it has to be presumed that Kasim's legal heirs are conducting the business. We cannot assume as to who is actually conducting the business in the absence of cogent evidence pertaining to actual conduct of business. In the absence of such evidence, the statutory authorities were justified in concluding that eviction ground under Section 11(4)(i) is made out. In the present jurisdiction under Section 20, this Court is not expected to enter sufficient findings on facts and substitute such findings entered by the statutory authorities, especially when it is relying on evidence that the statutory authorities have entered findings on the fact. According to us, it is reasonable findings which have been entered by the statutory authority, particularly by the appellate authority, which under the statutory scheme on the final court on facts. These findings are findings founded on evidence documentary, oral and circumstantial. Within the contours of our jurisdiction under Section 20, we do not find any warrant for interfering with those findings. The RCR will stand dismissed. Mr.Rajesh R.Kormath would, at this juncture, submit that if notice is issued, there is likelihood of the respondents receiving much higher rent RCR.250/2010 : 8 : from the revision petitioners and allowing the revision petitioners to continue in possession. He also submitted that if the respondents are unwilling to allow the revision petitioners to continue in possession, the revision petitioners should be granted at least one year's time to surrender the premises. Hence, even as we dismiss the RCR, we are inclined to issue notice to the respondents in view of the submissions of Mr.Rajesh R.Kormath. The result is that the RCR is dismissed in limine. (PIUS C.KURIAKOSE, JUDGE) (C.K.ABDUL REHIM, JUDGE) aks