A.I. Joseph v. A.A. Mathachan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 03RD DAY OF JULY 2019 / 12TH ASHADHA, 1941** ## **RCRev.No.157 of 2018** **AGAINST THE ORDER IN RCP 6/2013 of ADDITIONAL MUNSIFF & RENT CONTROL COURT,KOCHI DATED 25-07-2016** **AGAINST THE JUDGMENT IN RCA 81/2016 of ADDITIONAL DISTRICT COURT - VII, ERNAKULAM DATED 26-02-2018** ## **REVISION PETITIONER/1ST RESPONDENT/PETITIONER:** **A.I.JOSEPH AGED 70, S/O ITTIKURIA, AKANATH HOUSE,NEDUNGAD, NAYARAMBALAM, ERNAKULAM, PIN-682509.** **BY ADVS. SRI.T.KRISHNANUNNI (SR.) SMT.MEENA.A. SRI.ASHWIN SATHYANATH SRI.SAJU.S.A SRI.VINOD RAVINDRANATH** ## **RESPONDENTS/APPELLANT AND RESPONDENTS 2 TO 8/RESPONDENTS:** **1 A.A.MATHACHAN AGED 49, S/O A.C ANTONY, AKANATH HOUSE, NEDUNGAD,NAYARAMBALAM, ERNAKULAM, PIN-682509.** **2 M.K SHAJAN MANAPILLY HOUSE,EDAVANAKAD VILLAGE, EDAVANAKAD PO,ERNAKULAM, PIN-682502.** R.C.R.No.157/18 -:2:- - **3 A.A CHACKO AGED 62, S/O ANTONY, AKANATH HOUSE,EDAVANAKKAD, ERNAKULAM, PIN-682502.** - **4 A.A VARKEY AGED 60, S/O ANTONY, AKANATH HOUSE, EDAVANAKKAD, ERNAKULAM, PIN-682502.** - **5 ROSY VARGHESE AGED 67, W/O VARGHESE, PANJIKKARAN HOUSE, NARAKKAL.** - **6 MARY PAULOCHAN AGED 66, W/O PAULACHAN, MOODAYIL HOUSE,KAYAPARAMBU, ANGAMALY PO, ERNAKULAM DISTRICT, PIN-683572.** - **7 RANI KURIACHAN AGED 57, W/O KURIACHAN, VAZHAPPILLY HOUSE,KUZHUPPALLY, PO.AYYAMPILLY, PIN-682501.** - **8 RENNY JOHNSON AGED 54, W/O JOHNSON, KANNAMPUZHA HOUSE,THAMARACHAL, KIZHAKKAMBALAM PO, PIN683562.** **BY ADVS. SRI.ANIL S.RAJ SMT.ANILA PETER SMT.K.N.RAJANI SMT.P.A.SULEKHA SRI.B.BILWIN SRI.K.P.SHIBU SRI.RADHIKA RAJASEKHARAN P. SRI.SAJEN THAMPAN SRI.S.SUDHEESH** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 18.06.2019, THE COURT ON 03.07.2019 PASSED THE FOLLOWING:** R.C.R.No.157/18 ## -:3:- ## **O R D E R** ## _**Shaffique, J.**_ The revision is filed challenging an order passed by the Rent Control Appellate Authority in RCA No.81/2016. By the impugned judgment, the appellate authority had reversed the finding of the Rent Control Court and had come to a conclusion that the tenant is entitled for protection from eviction u/s 106 of the Kerala Land Reforms Act, 1963. 2. The short facts of the case are as under and the parties are described as shown in RCP No.6/2013. The Rent Control Petition has been filed by the petitioner/landlord to evict the tenants claiming that the building is bonafide required for the landlord to conduct business, u/s 11(3) of the Kerala Building (Lease and Rent Control) Act. According to the petitioner, he is a retired Bank Manager and he intends to do financial consultancy in the petition schedule room and he does not have any other suitable rooms in his custody and therefore, he requires vacant possession of the same and that his need is bonafide. R.C.R.No.157/18 -:4:- 3. According to the landlord, petition schedule room was taken on monthly rent by 1[st] respondent Sri.A.C.Antony, and the 2[nd] respondent was carrying on the business. The 3[rd] respondent was impleaded as a respondent since his name was shown as occupier in the Panchayat Assessment Register. According to him, 3[rd] respondent was in no way connected with the tenancy and it is a manipulation done at the instance of respondents 1 and 2 and to avoid unnecessary litigation, he was made a party in the case. It is further contended that while respondents 1 and 2 were carrying on the tenancy, they constructed a room attached to the petition schedule room on the land belonging to them. Thereafter, they partly removed the wall on the eastern side of the building and treated it as a single building. Petitioner or his predecessor did not object to it. The respondents started metal works in the said room. Electricity supply was taken with the consent and approval of the predecessor of the petitioner. According to the petitioner, the rent of the building was `500/per month. 4. Respondents having filed their objection inter alia R.C.R.No.157/18 ## -:5:- contended that 2 cents of vacant land was taken on lease under an oral agreement from Mr.Ittikaria, father of the petitioner during the month of September, 1964 on a ground rent of `25/- per year to conduct a workshop after constructing a building. Pursuant to the said arrangement, the 1[st] respondent had constructed the petition-schedule shop room in the said building in December, 1964. Since they were closely related, no document was executed between them and since then, the property is in the exclusive possession and enjoyment of the tenants. In so far as the land was taken and a building was constructed for commercial purpose, they claimed protection u/s 106 of the Kerala Land Reforms Act (hereinafter referred to as the KLR Act) _inter alia_ contending that they cannot be evicted from the petition-schedule premises. They also denied the bonafide need projected by the landlord and also claimed protection under the proviso to S.11(3) of the Act. 5. Before the Rent control Court, on the side of the petitioner, PW1 and PW2 were examined. Exts.A1 to A9 series and Exts.X1 to X4 were marked on the side of the petitioner. RW1 R.C.R.No.157/18 ## -:6:- to RW3 were examined and Ext.B1 is the document marked on the side of the respondents. 6. The Rent Control Court allowed the petition on a finding that the landlord's need for the building was bonafide and the tenant is not entitled for any protection under the proviso to S.11(3). It was also found that the claim of the tenant u/s 106 of the KLR Act is not proved. The tenant carried the matter in appeal and while the Rent Control Appellate Authority concurred with the view of the Rent Controller regarding the bonafide need of the landlord, reversed the finding rendered by the Rent Control Court regarding the benefit u/s 106 of the KLR Act and accordingly, dismissed the RCP on a finding that the tenant is entitled for protection from eviction u/s 106 of the KLR Act. 7. We heard the learned counsel appearing on either side and have perused the records. 8. As far as the claim of the landlord for eviction on the ground of bonafide need is concerned, the finding of the Rent Controller and the Appellate Authority are concurrent and we do not find any material to take a different view as there is no R.C.R.No.157/18 ## -:7:- impropriety, perversity or illegality in the said finding. Hence, we have no hesitation to confirm the same. 9. The main contention urged by the learned counsel for the revision petitioner is with reference to the finding of the appellate authority regarding the claim of the tenant for protection u/s 106 of the KLR Act. S.106 of KLR Act reads as under:- _“_ _**106. Special provisions relating to leases for commercial or industrial purposes-** (1) Notwithstanding anything contained in this Act, or in any other law, or in any contract, or in any order or decree of Court, where on any land leased far commercial or industrial purpose, the lessee has constructed buildings for such commercial or industrial purpose before the 20[th] May, 1967, he shall not be liable to be evicted from such land, but shall be liable to pay rent under the contract of tenancy, and such rent shall be liable to be varied every twelve years._ _**Explanation** - For the purposes of this section,-_ _(a) “lessee includes a legal representative or an assignee of the lessee: and_ _(b) “building” means a permanent or a temporary building and includes a shed._ _(1A) The lessor or the lessee may apply to such authority as may be prescribed for varying the rent referred to in subsection (1), and thereupon such authority may, after taking into consideration such matters as may be prescribed and_ R.C.R.No.157/18 -:8:- _after giving the lessor and the lessee an opportunity of being heard, pass such orders on the application as it deems fit._ _(2) If, between the 18[th] December, 1957 and the date of commencement of this Act, any decree or order of Court has been executed and any person dispossessed by delivery, such person shall, on application before the Land Tribunal, be entitled to restoration of possession:_ _Provided that, before restoration, such person shall be liable to pay-_ _(i) the compensation paid by the landlord for any improvements in the land and, subsisting at the time of restoration:_ _(ii) the compensation for any improvements effected subsequent to the delivery:_ _Provided further that he shall not be entitled to restoration if the property has passed on to the possession of a bonafide transferee for value._ _(3) Nothing contained in sub-section (1), sub-section (1A) and sub-section (2) shall apply to lands owned or held by the Government of Kerala or a local authority._ _**Explanation:** - For the purposes of this sub-section, “local authority” includes the Cochin Port Trust and any University established by an Act of the Kerala State Legislature.”_ 10. The tenant in the above case claimed that land was taken on lease paying a ground rent of `25/- per year in the year 1964 and thereafter the 1[st] respondent has constructed a building in the said property for his commercial use. The building was R.C.R.No.157/18 ## -:9:- constructed in the year 1964 and thereafter used as a workshop. Initially, power was not available and therefore they started it as a handmade sheet metal unit and after getting the power connection, the business was continued as a welding workshop. 11. In order to have the benefit of S.106(1), the tenant has to prove that he had taken the land alone on lease either for commercial or industrial purpose and he had constructed building for such commercial or industrial purpose before 20[th] May, 1967. If he is able to prove the aforesaid fact, he gets protection from eviction with the only obligation to pay rent under the contract of tenancy, which is to be varied every twelve years. A learned Single Judge of this Court in _**Mammu Haji and Company v. Vasanthalakshmi**_ [2014 (3) KHC 213] held that as far as claim u/s 106 of the KLR Act is concerned, the burden of proof absolutely lies on the lessee who claims protection under the said provision. He will have to adduce evidence to the effect that land alone was taken on lease by him, that he had made construction in that property for industrial or commercial purpose prior to 20/5/1967. Earlier judgments had also been referred in the said R.C.R.No.157/18 ## -:10:- judgment and there cannot be any controversy in the matter. 12. The question is whether the tenant had proved the aforesaid facts. The tenant had put up a contention regarding oral lease. The 1[st] respondent died during the pendency of the RCP and his legal heirs had been impleaded. The 2[nd] respondent was examined as RW1. He was only 45 years at the time when the Rent Control Petition was filed in the year 2013 and apparently he cannot have any direct knowledge about the lease created purportedly in the year 1964. Though it was contended that based on an oral lease, ground rent was fixed at `25/- per year, there is no evidence to prove payment of ground rent from 1964 onwards. Even in the affidavit filed by RW1, he does not have a case that any ground rent was paid at any time thereafter. 13. RW2 is a person who was aged 67 years and he filed a chief affidavit stating that he started working since 1961. He also worked for construction of a building as directed by Sri.A.C.Antony (1[st] respondent) along with three other carpenters. It took about a week. The necessary material for construction was purchased and the wages were paid by Sri.A.C.Antony. Apparently R.C.R.No.157/18 -:11:- he does not say when the building was constructed. During crossexamination, he deposed that the construction was over in the year 1964 and it started in the year 1961. 14. RW3 is a person who is aged 86 years and in his chiefexamination he stated that he had constructed a building at the instance of the 1[st] respondent. He does not remember the year in which construction was made. According to him, it was about 55 years back. The wages were paid by the 1[st] respondent. 15. The evidence of RW2 and RW3 at best would prove only the fact that a building was constructed at the instance of 1[st] respondent and according to them, it is the disputed building. But there is no clarity in their evidence as to when the building was constructed. Two factors have to be proved by the tenant while claiming the benefit of S.106. One is that the land was taken on lease. The evidence of RW1 to RW3 will not support the aforesaid fact that the land was taken on lease by the 1[st] respondent from the predecessor of the petitioner. Unless there is evidence to prove that land was taken on lease, mere construction of a building by itself will not give the benefit of S.106 to the so-called R.C.R.No.157/18 ## -:12:- tenant. There is no evidence to prove that any commercial activity was being done in the premises prior to 20/5/1967. According to the respondents, they were doing some hand works, but no material is available to arrive at such a conclusion. Further, the assessment register had been produced in the case. Ext.X1 is the extract of the register. The room is numbered as 459/9. The name of the owner is stated as A.I.Joseph and the name of the occupant is shown as A.C.Antony. The building is assessed to tax. This _prima facie_ shows that the owner of the building is the petitioner. When ownership of the building is with the petitioner, the contention that the building was constructed by the tenant falls to the ground. When there is no evidence to prove that the property was taken on ground rent in the year 1964 as claimed and when there is no evidence to prove that any ground rent was paid subsequently, the oral lease is not proved. Even assuming that some structure was constructed in the property, it does not mean that a lease had been created in favour of the respondent. The Rent Control Court found that in the absence of any such evidence, an oral lease cannot be R.C.R.No.157/18 -:13:- substantiated especially when the building is in the name of the landlord/petitioner and it apparently indicates that the building was constructed by the landlord. The Court below did not take into confidence the testimony of RW2 and it was found that his answers were not correct and he was not a skilled worker. The evidence of RW3 was also not believed as he was only giving an approximate period when the construction was alleged to have made. RW2 and RW3 do not know as to who had constructed the basement of the building. According to them, they have only constructed the frame of roof, side and top coverings. PW2 who is the Secretary of the Edavanakkad Panchayat has given evidence. He had produced the assessment register during 1993 to 1998 especially page Nos.43, 51, 52, 53, 54 and 56, which were marked as Ext.X1 series and page 92 was marked as Ext.X2. He was further examined and he had produced Exts.X3 and X4 as well. 16. PW1 however admitted the fact that the building was given on rent by his father in the year 1968. Ext.A5 would prove payment of tax by the petitioner for the assessment year 2012- R.C.R.No.157/18 -:14:- 13. Ext.A6 is corresponding entry in Ext.X1, which would prove that the name of the owner of the building No.459 is the petitioner and it has been assessed to tax at `81/- and the name of occupant is written as A.C.Antony (1[st] respondent). 17. The appellate authority however observed that the evidence of RW2 and RW3 supports the case of the respondent and there is no reason to suspect them. Since the father of the petitioner and 1[st] respondent were cousins, they did not chose to make any written document. It was therefore held that if the lease was that of a building, in all probability, there would have been a written agreement with building number rent etc, which is not the case. Further, reference was made to the deposition of PW1, wherein he stated that the 2 cents property was part of 6¼ cents of land. Other than the petition-schedule building, there is another building and the balance land is left vacant. The other portion was given on lease and another person had constructed the same prior to 1965 and the said land was given to a person by name Appi for rent. He had constructed a building there. This statement of PW1 was taken as the reason for the lower appellate R.C.R.No.157/18 -:15:- Court to arrive at a conclusion that there is a probability that building was constructed by the 1[st] respondent. Such a finding, according to us, is erroneous. But he clarifies that there was a registered document between PW1's father and Appi. He also states that there is a document for the same. This aspect of the matter has not been considered by the lower appellate Court. When the petitioner's father had given a land on lease in favour of Appi, it was based on a registered instrument. As far as the 1[st] respondent is concerned, there is absolutely no such document. That the petitioner and 1[st] respondent were relatives by itself will not be a reason to arrive at a finding that they did not feel it necessary to prepare any documents. PW1 during his crossexamination has further stated that the petition-schedule building was given on rent in the year 1968 and thereafter respondents 1 and 2 were conducting a workshop. 18. Apparently, this is a case in which the tenants were unable to prove that the 1[st] respondent had taken land on lease prior to 20/5/1967 and has constructed a building for commercial purpose. It is relevant to note that though notice was issued as R.C.R.No.157/18 ## -:16:- Ext.A1 on 22/11/2012 calling upon respondents 1 and 2 to vacate the premises, no reply is seen send by the respondents. In the light of the aforesaid facts, we are of the view that the Rent Control Appellate Authority committed serious error in appreciating the evidence and had arrived at an erroneous finding that the tenant was entitled to protection u/s 106 of the KLR Act. 19. As already stated, when the tenant has to prove that there was a lease of land prior to 20/5/1967, and the said fact is not proved by cogent evidence, merely based on the testimony of RW2 and RW3, who are alleged to have participated in a construction of a portion of the building, an oral lease prior to 20/5/1967 cannot be assumed. It is only if the oral lease of land is proved, that the lessee constructing the building prior to 20/5/1967 arises. If a trespasser constructs a building prior to 20/5/1967, such a person will not be entitled for the benefit of S.106. This is a case in which the landlord admits that the 1[st] respondent was the tenant and the business was being managed by the 2[nd] respondent. But according to the landlord, the tenancy R.C.R.No.157/18 ## -:17:- started in 1968 and Ext.X1 proves that the building was in the name of the landlord and he has been paying tax to the local authority. In the light of the aforesaid circumstances, we are of the view that the order passed by the Rent Control Court has to be sustained. In the light of the aforesaid finding, this revision is allowed. We set aside the judgment dated 26/2/2018 in RCA No.81/2016 of the Additional District Judge, Ernakulam thereby sustaining the order passed by the Rent Control Court. Learned counsel for the respondent/tenant sought for time to surrender possession of the petition-schedule building. Taking into consideration the fact that the tenant was in occupation of the building for a quite long time and he has right to continue business, it is only appropriate that some time is given to him. We, therefore, direct the respondent/tenant to surrender possession of the premises within six months from today on the following conditions:- (i) He shall file an affidavit before the Rent Control Court that he shall vacate the premises within a period of six months R.C.R.No.157/18 -:18:- from today. (ii) The tenant shall pay the arrears of rent, if any, and continue to pay the rent as agreed upon between the parties till the premises is vacated. **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/N.ANIL KUMAR** Rp //True Copy// **JUDGE** PS to Judge