IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 RCRev..No. 85 of 2003() ----------------------- RCA.163/1999 of RENT CONTROL APPELLATE AUTHORITY, THRISSUR RCP.53/1996 of THE RENT CONTROLLER , THRISSUR .................... REVISION PETITIONER/APPELLANT/PETITIONER: ------------------------------------------------------------- JOHNY, S/O. VEERAMPULLY CHAKKAPPAN, RESIDING AT CHERUR DESOM, VILVAVATTAM VILLAGE, THRISSUR TALUK. BY SR. ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SRI.R.RAJA RAJA VARMA SMT.M.R.VALSA SRI.SREEKANTH.K.R RESPONDENTS: RESPONDENTS/RESPONDENTS: --------------------------------------- 1. MUHAMMED KUNHI, PROPRIETOR, HOTE AMBASSADOR, P.O. ROAD, THRISSUR. 2. SARIMATH, S/O. MUSTHAFA. 3. RASHEEDA, D/O. MUSTHAFA. 4. SAMSHAD, S/O. MUSTHAFA. 5. HAZEENA, D/O. MUSTHAFA. 6. SHAHEENA, D/O. MUSTHAFA. 7. AKBAR ALI, S/O. MUSTHAFA. RESPONDENTS 2 TO 7 ARE RESIDING AT MUPPAKKATTU KOTTAKAKATHE, THANA P.O., KANNUR-12. R1 BY SR. ADV. SRI.C.KHALID FOR R1 SRI.N.GOPINATHA PANICKER FOR R1 SRI.R.O.MUHAMED SHEMEEM FOR R1 SRI.T.P.SAJID (THALASSERY) FOR R1 SRI.V.RAMKUMAR NAMBIAR FOR R2,3,5 & 6 SRI.V.RAMKUMAR NAMBIAR FOR R4 & 7 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 18/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ R.C.R. NO: 85 OF 2003 ----------------------------------------------------------------------------------- Dated this the 18th August, 2009. O R D E R SURENDRA MOHAN, J. The landlord has filed the above revision challenging the findings of the Rent Control Court as well as the Rent Control Appellate Authority dismissing his claim for eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The respondents are the tenants. 2. The petition schedule building originally belonged to Chakkapan, the father of the revision petitioner. On his death, the rights in respect of the building devolved on the petitioner and his brother George. The entire building was let out to the respondents as per a rent deed dated 22.12.1962 on a monthly rent of Rs.1,200/-. The rent has subsequently been enhanced to Rs.1,500/-. After the death of the father the tenants attorned to the petitioner and his brother and started paying rent to them. 3. While so, a partition took place among the petitioner and his brother George in respect of the property. Accordingly the right RCR 85/2003 2 to collect rent as well as the property were partitioned. The western half of the first and second floor of the building and the right to collect rent from the said portions were allotted to the petitioner and the eastern half of the first and second floor of the building and the right to collect rent from the said portions were allotted to George. The tenant was informed of the partition in writing. Thereafter, the tenant paid rent at the rate of Rs.1,000/- to the petitioner and Rs.500/- to the brother George for the months of November and December 1990 and January 1991. 4. The petitioner filed the Rent Control Petition RCP No: 53/1996 of the Rent Control Court, Thrissur, seeking vacant possession of the western half of the first floor and second floor for conducting a lodging business and the western room on the ground floor for shifting his tyre business by name Popular Agencies conducted from a rental premises on the post office road. He was forced to shift from the rented premises because the landlord thereof wanted vacant possession of the premises. It was alleged that there were other vacant buildings available in the locality for the tenants to shift their business and that the petitioner was not possessed of any other building for shifting his business. 5. The Rent Control Petition was contested by the RCR 85/2003 3 respondents, the legal representatives of the deceased tenant, contending that the need put forward was not bonafide. According to them, the landlord of the building in which Messrs. Popular Agencies was being conducted was not pressing for vacant possession of the premises. The tenants contended that, the need alleged was only a ruse for eviction. There were no other buildings available in the locality for the tenants to shift their business. The petition was filed only because of the refusal on the part of the tenants to enhance the rent. They also contended that a part of the tenanted premises could not be got vacated and that the revision petitioner had no right to maintain the petition on his own. 6. The Rent Control Court tried the petition on the above pleadings. The evidence in the case consists of the oral testimonies of P.W.1 and R.W.1 and Exts.A1 to A16 and Exts.B1 to B15 documents. 7. The Rent Control Court rejected the claim put forward by the revision petitioner and declined eviction on the ground that the tenancy right could not be partitioned. Therefore, the Rent Control Petition seeking eviction of a part of the tenanted premises was held to be not maintainable. It was found that the petitioner was in possession of another room and that the need alleged was not RCR 85/2003 4 bonafide. 8. The revision petitioner challenged the order of the Rent Control Court in R.C.A No: 163 of 1999 before the Rent Control Appellate Authority, Thrissur. The appellate authority found that the partition deed that was produced at the appellate stage could not be relied on because the same was executed in tune with the contentions of the revision petitioner in the rent control proceedings. The document was not admitted in evidence also for the reason that it amounted to splitting up of tenancy which was not permissible. The findings of the Rent Control Court as well as the appellate authority are under challenge in the above Rent Control Revision. 9. We have heard the learned senior counsel appearing for the revision petitioner-landlord as well as the learned counsel for the tenants at considerable length. We have also perused the records of the case. We have considered the rival contentions of the parties. 10. The only point that arises for consideration is whether the authorities below were right in rejecting the claim of the landlord on the ground that the partition deed was not proved. According to the counsel for the revision petitioner, the Rent Control Petition RCR 85/2003 5 was dismissed for the reason that the gift deeds Exts.A9 & A10 were not proved. It is pointed out by the counsel that the father of the revision petitioner had gifted the properties in favour of his two sons viz., the revision petitioner and his brother George conveying title in respect of portions of the scheduled premises to them. The partition deed was executed by the brothers only in terms of the recitals contained in the said gift deeds executed by their father. Therefore, it is pointed out that the finding of the appellate court that the partition deed was executed to suit the case of the revision petitioner in the above proceedings was without any basis. It is pointed out by the counsel for the revision petitioner that he was not given sufficient opportunity to prove the gift deeds and the partition deed. Therefore, he prays for another opportunity to adduce evidence in support of the said documents. 11. The counsel for the respondents on the other hand points out that sufficient opportunity had been given to the landlord and that there was no need for any further opportunity to prove the documents in dispute. It is pointed out that it would only be a futile exercise. We note that the finding of the Rent Control Court is to the effect that Exts.A9 and A10 gift deeds have not been properly proved. The partition deed had been produced by the RCR 85/2003 6 revision petitioner only before the appellate authority and therefore, the same has also not been let in evidence. In the facts and circumstances of the case, we feel that one more opportunity could be given to the revision petitioner-landlord to prove the documents relied on by him in support of his case. We also note that because of the lack of proof regarding the disputed documents, the authorities below have also not considered the genuineness of the need that was put forward by the revision petitioner in the proper perspective. 12. In the above circumstances, we set aside the order of the Rent Control Court in RCP 53/1996 and the judgment of the Rent Control Appellate Authority in RCA 163/1999 and remit the case to the Rent Control Court, Thrissur for fresh disposal. Both the landlord and the tenant shall be at liberty to adduce any further evidence, both oral and documentary as deemed fit by them. However, the Rent Control Court shall take note of the fact that the Rent Control Petition is of the year 1996 and shall make every endeavour to finally dispose of the same as expeditiously as possible, at any rate within a period of three months from the date of receipt of a copy of this order. 13. The parties shall appear before the Rent Control Court, RCR 85/2003 7 Thrissur on 22.9.2009. The Rent Control Revision is disposed of with the above directions. PIUS C.KURIAKOSE Judge K. SURENDRA MOHAN Judge jj PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. --------------------------------------- L.A.A.NO: --------------------------------------- JUDGMENT Dated: