IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 RCRev..No. 543 of 2005(A) ------------------------ RCA.183/2004 of D.C. & SESSIONS COURT,KOZHIKODE RCP.30/2002 of ADDL.M.C.,KOZHIKODE-II .................... REVISION PETITIIONERS/APPELLANTS/RESPONDENTS ------------------------------------------------------------ 1. SREEDHARAN NAIR, S/O.MADATHIL DAMODARAN NAIR, R/AT PALAKUNNATH MADATHUMKANDIYIL, IRINGADANPALLI ROAD, KOVOOR AMSOM DESOM, KOZHIKODE TALUK. 2. SISTER CHANDRAMATHI, RESIDING AT KASABA AMSOM AND DESOM, KOZHIKODE TALUK. 3. BROTHER GOPALAKRISHNAN, RESIDING AT KASABA AMSOM AND DESOM, KOZHIKODE TALUK. 4. BROTHER VENUGOPALAN, RESIDING AT KASABA AMSOM AND DESOM, KOZHIKODE TALUK. 5. SISTER PADMINI, RESIDING AT KASABA AMSOM AND DESOM, KOZHIKODE TALUK. 6. SISTER VIMALA, RESIDING AT KASABA AMSOM AND DESOM, KOZHIKODE TALUK. 7. SISTER SARADA, RESIDING AT KASABA AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR (...2) RCR.543/05 2 RESPONDENT(S): PETITIONER/RESPONDENT ------------------------- A.G.KANNAN, S/O.A.S.GOPALAKRISHNAN, RESIDING AT DOOR NO.19/905, KASABA AMSOM DESOM, KOZHIKODE TALUK. ADV. SRI.A.SUDHI VASUDEVAN THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 28/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.3191/2005 IN RCR.543/2005 DISMISSED. SD/- PIUS C. KURIAKOSE, JUDGE. SD/- C.K. ABDUL REHIM, JUDGE. 28.7.2010 okb /True copy/ P.A. to Judge C.R. PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- R.C.R. No.543 of 2005 ---------------------------------- Dated this the 28th day of July, 2010 O R D E R ---------------- Pius C.Kuriakose,J. Tenant is in revision challenging the concurrent orders of eviction passed against him by the Rent Control Court and the Appellate Authority. Eviction is granted against him on the ground of bonafide need for own occupation under Section 11(3). The prominent contention that was raised by the revision petitioner was his claim of permanent tenancy. The claim was on the basis of Ext.B1 document. It became evident that Ext.B1 document was executed between the predecessor in interest of the revision petitioners and the predecessor in interest of the respondent. The marking of Ext.B1 was strongly objected during trial by the landlord. The Rent Control Court however interpreted Ext.B1 to a document conferring immunity from eviction only for Damodaran Nair, predecessor in interest of the revision petitioners/ tenants who was inducted into the building by virtue of Ext.B1. Thus according to the Rent Control Court Ext.B1 does not create a permanent tenancy since any permanent tenancy has to be tenancy in perpetuity. RCR.543/05 2 The above view was endorsed by the Appellate Authority also. The Rent Control Court adjudicated the merits of claim for eviction under Section 11(3). The evidence on record before the Rent Control Court consisted of Exts.A1 to A14, B1 to B8 series and oral evidence of PW1 and RW1. On appreciating the evidence the Rent Control Court came to the conclusion that the need projected was bonafide and accordingly ordered eviction under Section 11(3). The Appellate Authority reappraised the evidence and concurred with the conclusion of the Rent Control Court and confirmed the order of eviction. 2. In this revision filed under Section 20, various grounds are raised assailing the finding of the statutory authorities regarding the bonafides of the need and the correctness of the order of eviction passed under Section 11 (3). The ground which is seriously raised is that the authorities below went wrong in their interpretation of Ext.B1 as a document not creating a permanent tenancy. We have heard the submissions of Sri. T.Sethumadhavan, learned counsel for revision petitioners and those of Sri. Sudhi Vasudevan. Even though Mr.Sethumadhavan addressed arguments on the basis of grounds raised, challenging the RCR.543/05 3 merits of eviction order passed, he gave more thrust in his submissions to the ground assailing the finding regarding perpetual nature of the tenancy. According to him, the interpretation by the statutory authorities that Ext.B1 is intended to benefit only Damodaran Nair and therefore Ext.B1 cannot be treated as a document creating a permanent tenancy is wrong. Learned counsel highlighted the following passages in Ext.B1 before us. “v}av oPÐLU jNÒ v WLqjOU WOaOUm°tOU RRWvwU Rvpv¨OÐfÃmRf Aj|Li}jRÕaO¾OvLSjL W-ogv¨Ps]S¨å] ¨OvLSjL, oPÐLU jNÒvImcR£ SjLŸ¨Orv]jL¤ SWaOkLaOW¥ vqO¾OvLSjL kLaOçfRÃÐOU j]ép] ¨OWpOU yÚf]¨OWpOU R\bvX]q]¨OÐO. ANkf}ƒ]foLpOU RWL Ã USfLrOU vqOÐfOoLp r]SÕrOW¥ KÐOU qºOU jNÒOWL¡ R\bvXORWLaOS¨ºfOoLWOÐO.” According to him, it is transparently clear from those words that Ext.B1 was intended to confer the benefit not only on Damodaran Nair but also on his posterity. 3. All the submissions of Mr.Sethumadhavan were resisted by Mr.Sudhi Vasudevan. We have considered the rival submissions addressed before us very anxiously. We have gone through the impugned judgment of the Appellate Authority as well as the order passed by the Rent Control RCR.543/05 4 Court. We have meticulously analysed the various recitals in Ext.B1 document. 4. We are unable to agree with the interpretation that is placed by the Appellate Authority and the Rent Control Court on Ext.B1 that B1 confers immunity from eviction only for Damodaran Nair, the predecessor in interest of the revision petitioners. According to us, Ext.B1 confers such immunity not only on Damodaran Nair but also on his successors in interest. The circumstances under which Ext.B1 was brought into existence are significant. Damodaran Nair, the predecessor in interest of the revision petitioners was in possession of a more spacious building belonging to the then landlord having Door No:19/192. The above building was surrendered by Sri.Damodaran Nair obliging request in that regard made by the then landlord. Damodaran Nair had insisted that he should be provided with another building if he is to surrender. It was accepting his insistence that building No.19/194, the present building, was let out to Sri.Damodaran Nair under Ext.B1. The intention of the parties was obviously to create a permanent lease in favour of Damodaran Nair and his successors. RCR.543/05 5 5. But the above view taken by us notwithstanding, we are in a position to sustain the finding of the statutory authorities that the revision petitioners are not entitled to set up a plea of permanent tenancy or permanent immunity from eviction. Ext.B1, as we have already found, creates a perpetual lease not only in favour of Damodaran Nair but in favour of all his successors. Section 17(1)(d) read with Section 49 of the Registration Act stands in the way of any claim of perpetual lease on the basis of Ext.B1 which is an unregistered document, being accepted. According to us Ext.B1 cannot be relied on as evidence of the perpetual lease which is claimed. At best Ext.B1 can be relied on as evidence of a collateral transaction as envisaged by proviso to Section 49. But here the main transaction sought to be proved is of a lease in perpetuity. Such a transaction cannot be created by Ext.B1. In the absence of a registered document for proving the transaction of perpetual lease or lease for a period of exceeding one year, Ext.B1 cannot come to the aid of the revision petitioner. The marking of Ext.B1 has to be confined to the extent of proving the collateral transactions other than the longevity of lease in question. RCR.543/05 6 6. As for arguments raised by Mr.Sethumadhavan, learned counsel for the revision petitioners against the merits of the eviction order passed against them, we are of the view that having regard to the attenuated nature of the jurisdiction which we are presently sitting, it is very difficult for us to say that the decision of the statutory authorities is vitiated, concurrent as they are, by illegality, irregularity or impropriety. The revision necessarily has to fail. However, we feel that this is a fit case where we should grant sufficient time to surrender the petition schedule building. In fact Sri. Sudhi Vasudevan, learned counsel for the respondent, stiffly resisted to our suggestion that a long period be granted. Nevertheless having regard to the finding that Ext.B1 document was executed between the predecessors of the parties concerned, we are inclined to allow an unusually long period of 18 months. Even as we dismiss the RCR we direct the execution court not to order and effect delivery of the petition schedule building to the respondent till 31.1.2012 provided the following conditions are satisfied by the revision petitioners: The 1st petitioner representing himself and all the other RCR.543/05 7 revision petitioners will file an affidavit before the execution court or the Rent Control Court, as the case may be, undertaking to give peaceful surrender of the building in question to the respondents or any one among them on or before 31.1.2012. It will also be undertaken that arrears of rent if any will be discharged within two months and that occupational charges at the current rent rate will also be paid as and when the same falls due, to the respondents. R.C.R is dismissed as above. Parties are directed to suffer their respective costs. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb