IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 RCRev..No. 220 of 2004() ------------------------ RCA.4/2000 of DISTRICT COURT, THRISSUR RCP.47/1997 of MUNSIFF COURT,CHAVAKKAD .................... PETITIONER/RESPONDENT/RESPONDENT ------------------------------------------ JIJU P.CHERIYAN, S/O.PULIKKOTTIL CHERIYAN, KUNNAMKULAM VILLAGE AND DESOM, THALAPPILLY TALUK. BY ADV. SRI.MOHAN PULIKKAL SRI.ROJO J.THURUTHIPARA RESPONDENT(S): APPELLANT/PETITIONER. ------------------------------------ USMAN, S/O.KARUVATTUPARAMBIL ABDUL HAJI, OTHALLUR AMSOM AND DESOM, PONNANI TALUK. ADV. SRI.B.KRISHNA MANI SRI.SIHBA.S. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 11/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R.No.220 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of August, 2009 ORDER Pius.C.Kuriakose, J. The tenant is in revision against the judgment of the Rent Control Appellate Authority ordering eviction under Sub Section 3 of Section 11 in reversal of the order of the Rent Control Court. The landlord invoked the grounds of arrears of rent, bonafide own occupation and also the ground of user of the building in such a manner as to reduce the value and utility of the building. The Rent Control Court allowed eviction only on the ground of arrears of rent. The tenant did not prefer any appeal against that order and that ground does not survive for consideration any longer. The Rent Control Court declined to order eviction on the ground of bonafide own occupation and the ground under Section 11(4)(ii). In fact, the Rent Control Court declined order of eviction under Section 11(3) mainly on the reason that the landlord had come into possession of a building having door No.502 originally in the possession of a tenant by name Mathew and presently in the RCR.No.220/04 2 possession of another tenant by name Babu. It was during the pendency of the rent control proceedings i.e. 4 or 5 months prior to the commencement of the trial that the landlord took fresh rent chit from the above said Babu. The landlord's version was that the building never came into his vacant possession . According to the landlord, Mathew, a former tenant, only transfered the building to Babu and the landlord became obliged to take a rent chit from Babu. The Rent Control Court did not become inclined to accept this version of the landlord. According to the Rent Control Court, the fact that a fresh rent chit was taken from Babu will indicate that the landlord had come into vacant possession of the building. In this regard, the Rent Control Court relied on the recitals in the rent chit which were to the effect that it is the landlord who is putting Babu in possession. 2. The Appellate Authority on re-appreciation of the evidence of PW1- the landlord and CPW1-the tenant, accepted the version of the landlord . Accordingly, it reversed the finding of the Rent Control court . According to the Appellate Authority, since it is the tenant's contention that the building came into the vacant possession of the RCR.No.220/04 3 landlord upon surrender by Mathew, it was the tenant's burden to prove that Mathew had surrendered the premises to the landlord. In that view of the matter, order of the Rent Control Court was reversed and eviction was ordered under Section 11(3) . 3. We have heard the submissions of Sri.Mohan Pulickal, learned counsel for the petitioner/tenant and those of Sri.B.Krishnamani, learned counsel for the respondent/landlord. Sri.Mohan Pulickal would assail the findings of the Rent Control Court. He would read over to us the full text of the oral evidence of PW1 and CPW1. According to the learned counsel, the learned Appellate Authority has unnecessarily imported the principles of Transfer of Property Act into this case. Admittedly, a rent chit was executed and on the terms of the rent chit, the landlord only put Babu in possession . That being the position, there is no warrant for holding that the landlord never came into the possession of the building. Sri.B.Krishnamani, learned counsel for the respondent/landlord would support the reasoning of the Appellate Authority. 4. We have anxiously considered the rival submissions RCR.No.220/04 4 addressed at the Bar. Since we found it necessary to reappraise the evidence of PW1 and CPW1 for appreciating the arguments , we have made such a reappraisal. We are in agreement with the learned Appellate Authority. Admittedly, the first proviso to Sub Section 3 of Section 11 does not in strict sense apply to this case. It is the case of the tenant also that at the time when statement of objections were filed by him, the room having door No.502 was possessed by Mathew, a former tenant. If that be so, when the tenant contends that Mathew put the landlord in possession so as to enable the landlord to put Babu in possession, the tenant had the burden to prove that the building came under the vacant possession of the landlord. That burden has not been discharged. The appreciation of evidence by the Rent control Appellate Authority according to us is quite proper and we do not find any illegality, irregularity or impropriety in the finding of the Appellate Authority regarding the circumstances under which a rent chit was taken from Babu by the landlord. 5. The result of the above discussions is that we do not find any warrant for correcting the judgment of the Rent Control Appellate RCR.No.220/04 5 Authority. As his last submission, Sri.Mohan Pulikkal requested for one year's time to surrender the premises. We are not inclined to grant so much time. However, we feel that there is justification for granting time till 31/03/2010 since it is a small time tea shop which is being conducted by the petitioner. Even as we confirm the judgment of the Appellate Authority and dismiss the RCR, we direct the Execution Court not to order or effect delivery of the petition schedule building in favour of the landlord till 31/03/2010 subject to the following conditions; 1) The revision petitioner files an affidavit within one month from today stating that he will unconditionally and peacefully surrender the building to the landlord/respondent on or before 30/03/2010. 2) It will also be stated by the revision petitioner in the affidavit that he will discharge arrears of rent, if any, within one month and will continue to pay occupational charges at the current rent rate promptly and regularly till such time as he surrenders the building. RCR.No.220/04 6 The tenant/revision petitioner will get the benefit of time granted under this judgment only if he files the affidavit on time. We are told that amounts have been deposited by the revision petitioner before the court below towards arrears of rent. It is needless to mention that such amounts will be released to the landlord on application. PIUS C.KURIAKOSE JUDGE P.Q.BARKATH ALI JUDGE sv. RCR.No.220/04 7