IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 14TH SEPTEMBER 2010 / 23RD BHADRA 1932 RCRev..No. 182 of 2008() ------------------------ RCA.19/2007 of RENT CONTROL APPELLATE AUTHROITY , PALAKKAD RCP.10/2006 of RENT CONTROL COURT, ALATHUR .................... REVISION PETITIONER/APPELLANT/RESPONDENT --------------------------------------- MOIDEENKUTTY, S/O.AHAMMEDKUTTY RESIDING AT MANAPPATTUPOTTAYIL HOUSE MANGALAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU RESPONDENT(S)/RESPONDENT/PETITIONER: --------------- SAKKIR HUSSAIN, S/O.ABDUL MMUTHALEEF RESIDING AT VADAKKENCHERRY ANGADIYIL KIZHAKKENCHERRY ROAD, VADAKKENCHERRY AMSOM ALATHUR TALUK, PALAKKAD DISTRICT THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 14/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. ------------------------ R.C.R.No. 182 OF 2008 ------------------------ Dated this the 14th day of September, 2010 O R D E R Pius C.Kuriakose, J. Under challenge in this revision petition under Section 20 is the judgment of the Rent Control Appellate Authority, Palakkad confirming the order of eviction passed against the revision petitioner tenant on the grounds under sub section (3) of Section 11 and clause (b) of sub section (2) of Section 11. 2. At the very outset, it was submitted by Sri. V.Chitambaresh, learned senior counsel for the revision petitioner, that since the order of eviction passed under Section 11(2)(b) is only tentative, it will suffice if the petitioner is granted time to get that order vacated. The learned senior counsel submitted that the Rent Control Court and the Appellate Authority went wrong in holding that the denial of the landlord's title made by the revision petitioner is not bona fide. The learned counsel drew our attention to Ext.B1 lawyer notice, which was sent by the landlord, wherein it was claimed that the RCR.No.182/2008 2 landlord has come up to own the building by virtue of Ext.A1 Gift Deed executed by his father, the previous landlord. Mr.Chitambaresh submitted that Ext.A1 gift deed was actually executed only after Ext.B1 lawyer notice was issued. According to the learned senior counsel, it is transparently clear therefrom that the very execution of the gift deed was with ulterior motives. Mr.Chitambaresh also submitted that Ext.A1 gift deed should have been properly proved by examining at least one witness especially since there was a specific contention that Ext.A1 is a sham document. The learned senior counsel would assail the finding of the statutory authorities that the need is bona fide. According to the learned counsel, the petitioner landlord was having a paint manufacturing unit at Coimbatore, which is hardly 40 kms. away from the petition schedule building apart from owning extensive landed properties at Vadakanchery, which was just 25 kms from the petition schedule building. There is considerable income for the landlord from his paint manufacturing unit and the properties at Vadakanchery. The learned senior counsel submitted that it has come out in evidence through the report submitted by the advocate commissioner that RCR.No.182/2008 3 the father of the landlord was having vacant possession of at least two rooms. If there was an element of necessities, the son could have commenced the proposed business in either of those rooms. By not doing so, it has been demonstrated that the need is without even an element of necessity. The learned counsel would assail the finding of the authorities regarding the protection of the second proviso to sub section (3) of Section 11. 3. We have very anxiously considered the submissions of the learned senior counsel for the revision petitioner. We have gone through the order of the Rent Control Court as well as the judgment of the Appellate Authority. It is trite that the authorities under the Rent Control Act are not ordinarily concerned with the question of para mount title over the building in question, but they are concerned only with the existence of landlord tenant relationship between the parties. Admittedly, the revision petitioner is a tenant in the building. But, according to him, the landlord is not the petitioner in the RCP, but the petitioner's father. Ext.A1 gift deed has evidently been executed by the father of the petitioner in the RCP. Ext.A1 was executed some 20 days after Ext.B1 lawyer notice was issued. It is clear RCR.No.182/2008 4 to our mind that by the time Ext.B1 lawyer notice was issued, decision had been taken in the family for the execution of Ext.A1 gift deed and instructions were imparted to the author of Ext.B1 on that basis. The fact that Ext.A1 is executed within a period of 20 days will show that the reference to the gift deed in Ext.B1 as a fatal accompli is a mistake. We are not at all impressed by the submission of Sri.Chitambaresh that Ext.A1 gift deed has not been proved. It is not for a stranger, the revision petitioner, to contend that Ext.A1 has not come into effect or that is a sham document. The property admittedly belongs to the father. The father and the son, the donor and donee, are one when they say that Ext.A1 is executed. According to us, the statutory authorities were justified in concluding that Ext.A1 gift deed has taken effect.The owner under Ext.A1, the petitioner himself, has got himself examined as PW1.It was noticed by the learned Rent Control Court and the Rent Control Appellate Authority, the final fact finding authority under the statutory scheme, that the the version of PW1 in chief examination that he bona fides need the building for the purpose of conducting the by cycle repairing business was not shaken despite searching RCR.No.182/2008 5 cross examination. When the evidence of PW1 inspired the fact finding authorities, we in this revisional jurisdiction are not expected to reappraise the evidence and arrive at a different conclusion. We do not find anything unreasonable or improper about the findings concurrently entered by the Rent Control Court and the Appellate Authority under the 1st proviso to section 11(3). Evidently the petitioner, landlord in the RCP, does not own the buildings which were reported by the commissioner to be vacant. The owner of those buildings is his father. The first proviso to sub section (3) of Section 11 can have application only if the landlord is found to be in possession of building owned by him. That is not the case here. Hence, the first proviso does not apply. Then the question is whether the landlord has demonstrated the bona fides by commencing the business in a building belonging to his father. According to us, in the present situation where the father has already executed a gift deed in respect of the petition schedule building, even the father cannot be blamed for not requesting his son for commencing business in another vacant building belonging to the father. 4. It has been found concurrently that the tenant is not RCR.No.182/2008 6 entitled to the protection of the second proviso to sub section(3) of Section 11. The first limb of that proviso is concurrently found in favour of the tenant. But, since both the limbs are in the conjunctive, in view of the finding that the second limb is not satisfied i.e. that there are other buildings available in the locality is against the tenant, necessarily it has to be held that the tenant is not entitled to the protection of the second proviso to sub section (3) of Section 11. 5. As a last plea, Mr.Chitambaresh, learned senior counsel requested that the tenant be granted at least one year's time to surrender the premises. We do not think that we will be justified in granting so much of time without issuing notice to the landlord. However, we feel, on the totality of the facts and circumstances attending on this case, that there is justification for granting seven months' time to the revision petitioner tenant. 6. The result of the above discussions is as follows; i). The revision petition fails and the same will stand dismissed. ii). The Execution Court is directed not to order and effect RCR.No.182/2008 7 delivery of the petition schedule building for a period of seven months from today subject to the following conditions; The revision petitioner shall file an affidavit before the Execution Court within three weeks from today undertaking to give peaceful surrender of the petition schedule building to the landlord/decree holder within seven months from today and undertaking further that within one month from today he will discharge the arrears of rent found by the Rent Control Court to be due from him inclusive of the rent due up to date. It will also be undertaken that for the coming months also he will pay occupational charges at the current rent rate of Rs.1,000/- per month without fail. The revision petitioner will get benefit of time granted above only if the affidavit as directed above is filed on time. PIUS C.KURIAKOSE,JUDGE P.S.GOPINATHAN, JUDGE dpk RCR.No.182/2008 8 PIUS C.KURIAKOSE,JUDGE P.S.GOPINATHAN, JUDGE dpk