Abdulla Mohammed v. Pattillath Pathu (RCR Nos. 300 of 2011 and 301 of 2011)

## **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 9TH DAY OF JANUARY 2012/19TH POUSHA 1933** ## **RCR.No. 300 of 2011 ( )** **----------------------RCA.9/2007 of THE COURT OF THE RENT CONTROL APPELLATTE AUTHORITY, KASARAGOD RCP.5/2006 of RENT CONTROL COURT, HOSDRUG** ## **PETITIONER/APPELLANT/RESPONDENT/TENANT:** **-----------------------------------------------------------------------** **ABDULLA MOHAMMED, S/O.MAMMUNHI, RESIDING NEAR C.B.ROAD CHITTARI VILLAGE, P.O.CHITTARI, HOSDURG TALUK KASARAGOD DISTRICT.** ## **BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR** ## **RESPONDENT/PETITIONER/LANDLORD:** **------------------------------------------------------------** **PATTILLATH PATHU, W/O.N.V.ABOOBACKER, RESIDING AT KOLAVAYAL CHITTARI VILLAGE, HOSDURG TALUK P.O.CHITTARI-671 531, KASARAGOD DISTRICT.** **RR By SRI.D.KRISHNA PRASAD RR By SMT.S.SANTHY** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 09-01-2012, ALONG WITH RCR NO. 301/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **SD** ## **PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ.** ## **=====================** R.C.R. NOS. 300 & 301 OF 2011 **=====================** Dated this the 9[th] day of January 2012 ## ORDER ## **Pius C.Kuriakose,J.** Under challenge in these revisions is common judgment of the Rent Control Appellate Authority confirming the order of eviction concurrently passed by the Rent control Court against the revision petitioners on the ground under sub-section 3 of Section 11 of the Kerala Buildings (Lease & Rent Control)Act. The respondent - landlady had invoked the ground of arrears of rent also. However, eviction order was not passed on the ground of arrears of rent and the order declining eviction on the ground of arrears of rent has attained finality. Therefore, in these revisions, we need have to be concerned only with the legality, regularity and propriety of the eviction order passed under Section 11(3). The need projected by the respondent-landlady was that the buildings, which are adjacent rooms, are required bona fide so that she and her son (PW3)can conduct business in Home Appliances. By filing objections, it was preliminarily contended by the revision petitioners that the RCR 300 & 301/2011 -2- respondent/landlady does not have title over the buildings in question. It was contended that Ext.A1 gift deed relied on by the landlady for claiming title is a sham document brought into existence only for foisting a claim for evicting the revision petitioners. The bona fides of the need was disputed very strongly. It was contended alternatively by both revision petitioners that, at any rate, they are entitled for the protection of the second proviso to Sub-Section 3 of Section 11. The claim under the first proviso also was raised by the tenant who contended that the landlady's husband who himself was the owner of the building previously before he executed Ext.A1 was possessed of many vacant buildings. 2. The Rent Control Court conducted enquiry and in the enquiry the evidence consisted of Exts.A1 to A18, Exts.B1 to B6, Exts.C1 and C2 and the testimonies of PWs.1 to 3 and RWs.1 and 2. The Rent Control Court was very much impressed by the oral evidence given by PW1, the landlady and PW3, her son. The Rent Control Court accepted their evidence and found that the need projected by them is bona fide. The court would repel the plea that Ext.A1 is a sham document and it was found that RCR 300 & 301/2011 -3- Ext.A1 gift deed has taken effect. Considering the tenants eligibility for protection of the second proviso, it was found that both the tenants were entitled for the benefit of the first limb of the second proviso. However, as regards the eligibility of the second limb of the second proviso, it was found on the basis of documentary evidence adduced by the landlord that other buildings are available in the locality and that the tenant has not made even a serious enquiry as to the availability of other buildings. Accordingly it was held that the second limb is proved against the tenants/revision petitioners. In the result, the Rent Control Court ordered eviction under Section 11. The revision petitioners carried the matter in appeal to the Rent Control Appellate Authority. The Appellate Authority would make thorough reappraisal of the evidence and concurred with all the findings of the Rent Control Court. Accordingly, the appeals were dismissed. 3. In these revisions filed under Section 20, the grounds are raised assailing findings of the appellate Authority regarding the bona fides of the need, regarding the alleged sham nature of Ext.A1 and also regarding the tenant's eligibility for protection RCR 300 & 301/2011 -4- of the second proviso to Sub Section 3 of Section 11. 4. Shri Sharan Zhahir, learned counsel for the revision petitioners would address very strenuous submissions before us based on all the grounds raised in the memorandum of revision. The learned counsel submitted that Ext.A1 gift deed was brought into existence only because of the situation that the respondent's husband, the original landlord was possessed of a large number of the vacant buildings in the very same locality and will not be able to succeed in any petition for evicting the revision petitioner under sub-section 3 of Section 11. Notwithstanding Ext.A1, it is the land lady's husband who is collecting rent from the revision petitioners. The evidence on record will justify the conclusions that Ext.A1 has not come into effect and that it was never intended to be acted upon. Mr.Sharon Zhahir would attack the finding that the need is bona fide. According to him, there is contradiction between the version given by PW1, the landlady and PW3, her son. While PW1 stated that the proposed business will be conducted in partnership between herself and her son, while PW3, the son stated that he is going to conduct his own proprietary business. RCR 300 & 301/2011 -5- This contradiction is very material and is indicative of the total absence of bona fide in the need projected. Learned counsel would assail the finding that the tenants have not satisfied the second limb of the second proviso to Sub -Section 3 of the Act. According to him, the buildings which were subject matter of the various documents produced by the landlord were unsuitable for the tenant's purposes as they are conducting a large scale Plywood business in the rooms. There is no evidence to hold that a building suitable for shifting the plywood business is available in the locality. Learned counsel for the revision petitioners in his submissions made with reference to Room Nos. 1/599 and 1/600 submitted that these two rooms belong to the landlady herself. These two rooms fell vacant just prior to the execution of the rent control petitions. According to him, the first proviso to sub-section 3 of Section 11 operated against the landlady. He also submitted that at any rate the landlady's conduct in letting out two rooms indicate that there is not even a element of necessity in the need projected by the landlady. 5. Shri D.Krishnaprasad, learned counsel for the respondent-landlady per contra would support the impugned RCR 300 & 301/2011 -6- judgment. He would remind us of the limits of our jurisdiction under Section 20 of the Act and submit that in the present revisional jurisdiction, we are not expected to make a reappraisal of the evidence for the purpose of substituting factual findings arrived at by the Rent Control Appellate Authority which is final court of facts under the statute. As regards Room Nos.1/599 and 1/600, Mr.Krishna Prasad submitted that it came out in evidence not only through oral evidence but also through a commissioner's report that when compared to the petition schedule premises, those two rooms were very small and those rooms could not have been utilised for accomplishing the need for conducting a large scale business in Home Appliances. The no much dent could be made on the evidence given by PW1, landlady and PW3 the son, in spite of powerful cross examination. Mr.Krishnaprasad submitted that the explicit recitals in Ext.A1 coupled with convincing oral evidence given by PW2, previous landlord,who is the executant in Ext.A1, clearly shows that the tenants contention that Ext.A1 is sham document cannot hold water. Mr.Krishnaprasad submitted that if at all PW2 is collecting rent, RCR 300 & 301/2011 -7- the same is only as authorised by PW1 who is none other than his own wife. As the two limbs of the second proviso are in the conjunctive, revision petitioners cannot aspire for the benefit of the second proviso even if both of them are depending for their livelihood on the income from the business carried on in the petition schedule premises. 6. We have given our anxious consideration to the rival submissions addressed at the Bar. We have scanned the judgment of the appellate Authority and carefully gone through the order of the Rent Control Court. We notice that the finding that the need projected by the landlady is a bona fide one and the further finding that the tenant was unsuccessful in proving the non-availability of suitable buildings in the locality and also the finding that Ext.A1 document is not a sham document are all findings entered by the two statutory authorities appreciating the evidence which came on record. May be, it is true that PW2,landlady's husband the quandam lanndlord is possessed of other buildings. But we should notice that the rent control proceedings are initiated some four years after the gift deed,Ext.A1 was executed. PW2's evidence, which is to the RCR 300 & 301/2011 -8- effect that Ext.A1 deed has taken effect, was found convincing by the two fact finding authorities. Even if PW2 has collected rent from the revision petitioners after Ext.A1 was executed, the same can only be in his capacity as the husband of PW1, the landlady as authorised by PW1. We are not prepared to accept the argument of Mr.Sharan Zhahir that authorisation has to be in writing. Having regard to the intimacy of the relationship between PW1 and PW3 and having regard to the matters of every day life in our State, the authorisation can be oral. As for the finding concurrently entered regarding the bona fides of the need, as rightly argued by Mr.Krishnaprasad, such a finding is arrived at on appreciating the evidence of PWs.1 and 3. Both of them testified regarding the bona fides of the need. In material particulars, their version in chief examination was not shaken. True, there is some contradiction in that while the son said it will be his own proprietary business, according to the mother, it will be a partnership business between herself and her son. When we consider the fact that PW1 and PW3 are mother and son living under the same roof sharing same mess, this contradiction is not material. In short, we do not find any RCR 300 & 301/2011 -9- infirmity in the findings concurrently entered regarding the bona fides. 7. As for the challenge against the finding on the first proviso of sub-section 3 of Section 11 which is raised on the basis of building Nos.1/599 and 1/600, we are of the view that evidence on record including the commissioner's report shows clearly that there is no comparability between the petition schedule premises and those two rooms. 8. Last question which survives to be considered is the correctness of the findings against the tenants in the context of the second proviso to sub-section 3 of Section 11. It is well known that two limbs of the second proviso are conjunctive. The landlord produced the certified extracts of the property tax register pertaining to the various building in the locality as Exts.B1 to B6 in which are documents contemplated by Section 26 of Act 1964. The statute arouses presumption regarding the correctness of the entries therein and it is provided that those documents shall be accepted as proof of what is stated therein. In the teeth of the probative value given by the statute itself to such documents and the burden of proof as settled by the RCR 300 & 301/2011 -10- judgment of the Supreme Court in **Kunhamma v. Akkali Purushothaman[2007(3)K.L.T.99]** and Full Bench of this court in **Francis v. Sreedevi Varassiar[2003(2)K.L.T.230]** , we are sure that there is no infirmity about the findings concurrently entered by the two authorities that the tenants are not eligible for the benefit. Necessarily, these revisions will have to fail and the same will stand dismissed. 9. After we made our decision known to the learned counsel for the revision petitioners, he requested that at least one year's time be granted to surrender of the premises. His request was very stiffly opposed by Shri Krishnaprasad, learned counsel for the respondent. According to Shri Krishnaprasad, even if this Court is inclined to grant some time, the same will be on condition that occupational charges are enhanced. Having considered the submissions addressed by both sides regarding the question of granting time, we feel that there is justification for granting time to the revision petitioner till 31/10/2012 subject to certain conditions. RCR 300 & 301/2011 -11- 10. Result of the above discussion is as follows: These revisions are dismissed confirming the order of eviction passed under Section 11(3) of the Act. The Execution Court is directed to keep in abeyance all proceedings till 31/10/2012 subject to the following conditions. 1)Both the revision petitioners will file affidavit before the Execution Court or the Rent Control Court as the case may be undertaking to give peaceful surrender of the building on or before 31/10/2012 and undertaking further that occupational charges will be paid at the existing rent rate promptly till the actual surrender of the building is given. 2) Affidavit as directed above shall be filed within three weeks from today. 3) We make it clear that the revision petitioners will get time as allowed above only if they file affidavit and honour the undertakings therein. ## Sd/- **PIUS C.KURIAKOSE,JUDGE** ## **Sd/-** ## **ks.** ## **C.K.ABDUL REHIM, JUDGE** **True copy** ## **P.s.to Judge** RCR 300 & 301/2011 -12-