IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 8TH AUGUST 2011 / 17TH SRAVANA 1933 RCRev..No. 316 of 2011() ------------------------ RCA.31/2008 of RENT CONTROL APPELLATE AUTHORITY, THRISSUR RCP.131/2005 of RENT CONTROL COURT,THRISSUR .................... REVISION PETITIONERS/APPELLANTS/RESPONDENTS 1 & 2: ---------------------------------------------------------------------- 1. RUKSNA, W/O.MUHAMMED ANSARI, SRI SAI KRIPA, GANDHI NAGAR, 2ND STREET, PERINGAVU, THRISSUR. 2. WAHEEDA, W/O. MUHAMMED SALIN, T.C.VII-593, P.O. CHEROOR, THRISSUR. BY ADV. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.K.RAVI (PARIYARATH) RESPONDENT(S): RESPONDENTS/PETITIONER AND RESPONDENTS 3 TO 6:- -------------------------------------------------------------- 1. P.D.MOHANAN, S/O.LATE P.D.DAMODHARAN, "USHUS", KARIKKAD P.O., THRISSUR.680005 2. P.D. GOPALAN, S/O.P.C.AMODHARAN, PRABITHA NIVAS, KARIKKAD P.O., THRISSUR.680005 3. P.D.VISWANATHAN, S/O.P.C.DAMODHARAN, SREE VENKITESWARA TOURIST HOME, WEST NADA, GURUVAYOOR, THRISSUR.680136 4. E.Y ABDUL KHADER, SANA SILKS AND SAREES, ROUND WEST, DAMODAR & SONS COMPLEX,THRISSUR.680001 5. AJEESH ABDUL KHADER, SANA SILKS AND SAREES, ROUND WEST, DAMODAR & SONS COMPLEX, THRISSUR.680001 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 08/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ R.C.R.No. 316 OF 2011 ------------------------ Dated this the 8th day of August, 2011 O R D E R Pius C.Kuriakose, J. Under challenge in this revision filed by the tenants under Section 20 of Act 2 of 1965 is the judgment of the Rent Control Appellate Authority confirming the order of eviction passed by the Rent Control Court on the ground of sub letting/objectionable transfer (under Section 11 (4)(i) of Act 2 of 1965). 2. The case of the landlords was that the building was let out to the two tenants under Ext.A1 lease deed on 13/6/1991 for the purpose of conducting textile business under the name and style "Moideensha's Silk Garden" and that contrary to the terms of Ext.A1, the tenants have sub let or transferred physical possession of the building to respondents 5 and 6 in the rent control petition unauthorisedly and that presently it is a new business under the name and style of 'Sana Silks & Sarees' which is being conducted in the building. The alleged sub tenants, RCR.No.316/2011 2 respondents 5 and 6 in the rent control petition, did not contest the rent control petition. But, the tenants contended that there is no objectionable sub lease or transfer. Ext.A1 stands in the name of two persons individually and the very purpose of the lease was to conduct business in partnership under the name and style of 'Moideensha's Silk Garden' and that it is the very same business which is being presently continued in the building. The Rent Control Court enquired into the mater and in the enquiry evidence consisted of Exts.A1 to A5, Exts.B1 to B3 and the oral evidence of PWs1 and 2 and that of RW1. On evaluating the evidence, the Rent Control Court came to the conclusion that ground under Section 11(4) stood established in the case and accordingly ordered eviction. 3. Though the tenants preferred an appeal to the Rent Control Appellate Authority, the learned Appellate Authority on making a reappraisal of the evidence would concur with the findings of the Rent Control Court. Accordingly, the appeal was dismissed. 4. In this revision filed by the tenants under Section 20, they have raised various grounds assailing the judgment of the RCR.No.316/2011 3 Appellate Authority. Sri.G.Sreekumar learned counsel for the revision petitioners addressed arguments based on all the grounds. Mr.Sreekumar drew our attention to the oral evidence of PW1 and submitted that PW1 has admitted that the rent is being paid by the partners of the firm 'Moideensha's Silk Garden' and in the teeth of this admission the findings, concurrent though they may be, entered by the Rent Control Court and the Appellate Authority that objectionable sub lease is established cannot be sustained. According to the learned counsel, even prima facie evidence is not adduced by the landlords to show that there has been transfer of possession and much less exclusive possession of the building in favour of the alleged sub lessees. The learned counsel submitted that the evidence of PW1 was even to the effect that the objectionable sub lease was made after the statutory intimation notice under the proviso to Section 11(4)(i) was issued. If that be so, the present rent control petition is not maintainable in law. 5. We have given our anxious consideration to the submissions of Sri.Sreekumar. Even though the findings are concurrent, we have gone through the evidence of PW1 in RCR.No.316/2011 4 deference to the submissions of Mr.Sreekumar that PW1 has admitted that the lease is in favour of a partnership firm. The short question, which arises for decision by us, is whether the finding concurrently entered by the Rent Control Court and the Appellate Authority that the eviction ground of sub letting/objectionable transfer under section 11 (4)(i) has been established in this case warrants interference. According to us, the above question can be answered only in the negative. Ext.A1 governs the lease in question. Going by Ext.A1 it is seen that the lease is not in favour of a partnership firm, instead it is in favour of two individuals, the revision petitioners. It is not disputed that the respondents 5 and 6 are in physical occupation of the building. When it is admitted that the respondents 5 and 6 who are per se strangers to the arrangement of lease are in occupation, the tenants, who alone are entitled to be in possession of the building, have an obligation to explain as to what is the jural relationship between them and the respondents 5 and 6. As already stated, the specific contention is that the respondents 5 and 6 are partners of Moideensha's Silk Garden. As rightly observed by the learned RCR.No.316/2011 5 Appellate Authority, if it is a partnership firm, whether it be Moideensha's Silk Garden or Sana Silks & Sarees that is conducted business, the same is an aspect capable of evidence that too documentary evidence at the disposal of the revision petitioner and other partners of the firm in question. We notice that the evidence adduced by the tenants is the oral evidence of RW1 only. In short, the learned Appellate Authority and the Rent Control Court were justified in concluding that the tenants have failed to show that the lease is in favour of partnership and at any rate to show that it is a partnership firm which is presently conducting business and further that the alleged sub lessees are partners of that partnership. We do not find any warrant for interference within the narrow contors of our jurisdiction under section 20. The Revision will have to fail and will stand dismissed. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM, JUDGE dpk