Abdul Hakkim v. Shamaz Abdul Majeed

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **THURSDAY, THE 10TH DAY OF AUGUST 2017/19TH SRAVANA, 1939** **RCRev..No. 66 of 2017 (B) -------------------------** **RCA 27/2014 of RENT CONTROL APPELLATE AUTHORITY/I ADDL.DISTRICT COURT, ERNAKULAM** **RCP 7/2012 of III ADDL.MUNSIFF COURT/RENT CONTROL COURT,ERNAKULAM** **REVISION PETITIONER/APPELLANT/RESPONDENT: ----------------------------------------** **ABDUL HAKKIM, AGED 58 YEARS, DOOR NO.43/2752,SHAKEELA COMPLEX, SRM ROAD, ERNAKULAM NORTH,KOCHI-682018.** **BY ADVS.SRI.P.M.MOHAMMAD SHIRAZ SMT.G.R.MANJU** **RESPONDENT/RESPONDENT/PETITIONER: --------------------------------** **SHAMAZ ABDUL MAJEED, AGED 36 YEARS,S/O.LATE ABDUL MAJEED, AMINA MANZIL, PONNARIMANGALAM, MULAVUKADU.P.O, ERNAKULAM-682504.** **BY ADVS. SRI.K.I..MAYANKUTTY MATHER (CAVEATOR) SRI.P.RAHUL** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 10-08-2017, ALONG WITH RCR. 72/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OKB** 'CR' K.HARILAL & P. SOMARAJAN, JJ. --------------------------R.C.R. Nos.66 of 2017 and 72 of 2017 --------------------------Dated this the 10[th] day of August, 2017 ## O R D E R ## **Harilal, J.** Since these revisions are filed challenging a common judgment passed by the Appellate Authority in RCA Nos.27/2014 and 34/2014 and the parties are common, the Rent Control Revisions are heard together and disposed of accordingly. 2. The revision petitioners are the tenants against whom an order of eviction has been passed concurrently under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, “the Act”). According to the landlord, the petition schedule shop rooms belonged to his parents Shakkeela Majeed and Abdul Majeed and the respondents in the Rent Control Petitions were tenants under them. After the death of his father, his mother and RCRs.66/17 & 72/17 **:2:** children entered into Ext.A1 partition deed and as per Ext.A1 partition deed the petition schedule shop rooms and remaining two other rooms situated in the ground floor were allotted to the petitioner and thereafter the tenants were attorned to him and they are paying rent to him. He bona fide needs the petition schedule building for starting a shop of hardwares and paints. He has no other building of his own to start the said business; but the tenants have in their possession other suitable buildings and other vacant buildings are available in the locality also. It is further averred that he was working abroad, for a short period, on temporary basis, and thereafter he was employed at IBM, Bangalore and then resigned the job and at present he has no avocation for his livelihood. 3. Both the tenants resisted the said contention contending that they are not aware of Ext.A1 partition deed executed by the mother of the landlord and they are still tenants under Shakeela Majeed, the mother of the petitioner. Further, they resisted the bona fides of the RCRs.66/17 & 72/17 **:3:** need and, according to them, it is a pretext for eviction only and they are entitled to get protection under the second proviso to Section 11(3) of the Act. After considering the rival pleadings and evidence on record, the Rent Control Court found that the denial of title of the landlord is so vague and sans bona fides. As regards the claim under Section 11(3) of the Act, the Rent Control Court found that the need projected was a bona fide one and the tenants are not entitled to get protection under the provisos to Section 11(3) of the Act. In appeals, the appellate court also concurred with the findings of the Rent Control Court and dismissed the appeals. 4. Though, these revisions have been filed on various grounds, the tenants mainly challenged the concurrent finding of the courts below that the denial of title is bereft of bona fides. According to them, as per the covenant in Ext.A1 partition deed, the landlord is not the landlord as contemplated under Section 2(3) of the Act. In other words, the mother of the present landlord alone is entitled RCRs.66/17 & 72/17 **:4:** to receive rent and they have been paying rent in the account of the mother. Therefore, she alone can file an application seeking eviction of the tenants, under the bona fide need. In order to substantiate the said argument, the learned counsel for the tenants drew our attention to the definition of “landlord” under Section 2(3) of the Act and the decision cited in **Mariamma v. Chinnamma John [2015 (2) KLT 521]** . 5. Per contra, the learned counsel for the landlord advanced arguments to justify the concurrent findings of the courts below, whereby the denial of title stands rejected on a finding that it lacks bona fides. According to the learned counsel for the landlord, the covenant incorporated in Ext.A1 is an internal arrangement between the mother and the son and the same is of no consequence at all for determining the right to file an application seeking eviction under Section 11(3) of the Act, particularly, when the covenant was neither enforced nor acted upon by the mother. In support of the aforesaid RCRs.66/17 & 72/17 **:5:** contentions, the learned counsel for the landlord cited **Narayanan K.N. v. Khadeeja and Another [2017 (3) KHC 798 (DB)]** and argued that in view of the aforesaid decision, the present landlord alone is entitled to file an application seeking an order of eviction under Section 11 (3) of the Act as he is the title holder in possession of the petition schedule building and the mother of the petitioner has no right to file such a Rent Control Petition after the commencement of Ext.A1 partition deed, even if the right to receive rent was reserved in her favour alone. 6. In view of the arguments advanced at the Bar, the question to be considered is, whether there is any illegality or impropriety in the concurrent findings of the courts below that the denial of title is so vague and sans bona fides. It is not disputed that the petition schedule shop rooms originally belong to the landlord's parents Shakeela Majeed and Abdul Majeed, the father Abdul Majeed is no more, thereafter the mother and children entered into Ext.A1 partition deed and as per that partition deed the RCRs.66/17 & 72/17 **:6:** petition schedule shop rooms are allotted to the present landlord. Going by the objections filed by the tenants to the Rent Control Petition, it could be seen that they have neither challenged the genuinenesses of Ext.A1 partition deed nor specifically denied the title of the present petitioner under Ext.A1. According to them, they are not aware of the execution of Ext.A1 partition deed and, to their knowledge, the mother of the petitioner Shakeela Majeed is the owner of the petition schedule shop rooms. In short, we also find that there is no specific denial of title of the present landlord, who filed the Rent Control Petitions. 7. Going by the objections filed by the tenants, against the application filed by the present landlord to receive Ext.A1 partition deed in evidence, there is no specific challenge against the right of the present landlord to file the Rent Control Petitions, in view of the covenant, under which they have now set up a defence in these revisions. In other words, neither in the objections filed to RCRs.66/17 & 72/17 **:7:** the Rent Control Petitions nor in the objections filed against the application to receive Ext.A1, the tenants have raised a contention that they are liable to pay rent to the mother of the present petitioner under the covenant and they have been paying rent to the mother. In the absence of specific denial of the petitioner's right to sue, under the denial of title and challenge against the maintainability of the Rent Control Petitions, under the covenant in Ext.A1, it could be reasonably presumed that the tenants were totally unaware of the covenant in Ext.A1 partition deed and the right of the mother to receive income, which would be derived from the petition schedule shop rooms, as per Ext.A1 partition deed. Therefore, we find that, as rightly found by the courts below, the denial of title is so vague and unfounded. 8. The next point to be considered is, what is the effect and impact of covenant in Ext.A1 partition deed and is it binding on the tenants? Admittedly, the execution of Ext.A1 was not informed to the tenants. More specifically, RCRs.66/17 & 72/17 **:8:** the tenants were not informed of the liability to pay rent to the mother of the present landlord, notwithstanding the execution of Ext.A1 partition deed. It is pertinent to note that the tenants have not challenged the genuineness and validity of Ext.A1 partition deed, so far. If that be so, we are of the opinion that the covenant is only an internal arrangement between the mother and the son and the same is not binding on the tenants, against whom the Rent Control Petitions were filed. Further, as rightly pointed out by the courts below, Exts.A2, A3 and A13 would show that Ext.A1 has come into force and now the petitioner herein is the owner in possession of the petition schedule shop rooms, though the aforesaid covenant was not enforced so far. Even though the learned counsel for the tenants vehemently contended that as per the covenant in Ext.A1 they are liable to pay rent to the mother of the present landlord and they have been paying rent to the mother of the present landlord, Ext.A13 Bank Statement shows that the said account is a Joint Account of the present landlord RCRs.66/17 & 72/17 **:9:** and his mother Shakkeela and the tenants have been depositing monthly rent in that Joint Account. Therefore, the tenants cannot be heard to say that they have been paying rent to the mother and thereby mother alone is the landlord. 9. In the above context, the decision of this Court in **Narayanan K.N. v. Khadeeja and Another [2017 (3) KHC 798 (DB)]** is relevant and the same would come into application. In this decision, this Court held that the exhaustive definition given to the word “landlord” cannot be availed of for all parties under the Act. It has only a limited application and it will not have application to Sections 11(3), 11(4)(iv) and 11(5) of the Act, which are dealing with the personal requirements of the landlord or a dependent of the landlord. In view of the aforesaid decision, we hold that the mother of the petitioner cannot file a Rent Control Petition seeking eviction, for her personal requirements or that of her dependent, as the ownership and possession of the petition schedule building RCRs.66/17 & 72/17 **:10:** vest in the present landlord under Ext.A1 partition deed. 10. The learned counsel for the tenants vehemently contended that the Rent Control Petitions without the juncture of the mother are not maintainable in view of Ext.A1 partition deed. We reject the said contention, in view of the decision referred above. That apart, no prejudice was caused to the tenants by the execution of Ext.A1 partition deed, whereby the petition schedule shop rooms were set apart in favour of the present landlord. We hold that the present landlord is entitled to file an application seeking eviction under Section 11(3) of the Act without the juncture of his mother. In the above analysis, we hold that there is no bona fides in the denial of title and there is no illegality or impropriety in the concurrent findings of the courts below that the denial of title is so vague and sans bona fides. 11. Coming to the concurrent findings under Section 11(3) of the Act, this Court is not inclined to re-appreciate the entire evidence on record and a revision is not an RCRs.66/17 & 72/17 **:11:** appeal in disguise. As regards the factual findings of the courts below, this Court is not inclined to substitute its own views, instead of the concurrent views of the courts below, unless it is found that the courts below have omitted to consider any relevant evidence or placed reliance on any irrelevant evidence or wrong proposition of law in the appreciation of evidence. Here, the tenants have no case that the courts below have placed reliance on irrelevant evidence or omitted to consider any valuable evidence. 12. As regards the bona fides of the need, being a state of mind, the landlord was examined as PW1 and the courts below concurrently found that nothing has been brought out to discredit his evidence. Therefore, we do not find any reason to interfere with the bona fides of the need found concurrently by the courts below. As regards the concurrent findings under the provisos to Section 11(3) of the Act, we do not find any reason to interfere with the same, when the courts below concurrently found that the tenants miserably failed to discharge the burden of proof RCRs.66/17 & 72/17 **:12:** under the provisos to Section 11(3) of the Act. In the above analysis, these Revisions will stand dismissed. 13. Having regard to the entire facts and circumstances of the case, the revision petitioners/tenants are given eight months' time from today to vacate the petition schedule shop rooms, on the following conditions: (1). The revision petitioners/tenants shall file affidavits, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that they will vacate the petition schedule shop rooms within eight months from today. (2). The revision petitioners/tenants shall deposit entire arrears, if any, within one month from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay rent without default. RCRs.66/17 & 72/17 **:13:** (3). In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the respondent/landlord will be at liberty to proceed with the execution of the eviction order. Sd/- K.HARILAL, Judge. Sd/P.SOMARAJAN, Judge. okb. //True copy// P.A. to Judge