## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU**
**WEDNESDAY, THE 11TH DAY OF OCTOBER 2017/19TH ASWINA, 1939**
**RCRev..No. 357 of 2016 D --------------------------**
**AGAINST THE ORDER/JUDGMENT IN RCA 8/2013 OF THE RENT CONTROL APPELLATE AUTHORITY(ADDITIONAL DISTRICT JUDGE-I),THALASSERY DATED 30-06-2016**
**AGAINST THE ORDER/JUDGMENT IN RCP 280/2004 ON THE FILE OF THE RENT CONTROL COURT (ADDITIONAL MUNSIFF), KANNUR DATED 12-11-2012**
**REVISION PETITIONER(S)/RESPONDENT/RESPONDENT: --------------------------------------------**
**AYADATH PUTHIYAPURAYIL SUBAIDA, D/O ISMAIL, LOTUS CAFE, CP VI/551, PUTHIYATHERU P.O CHIRAKKAL, KANNUR DISTRICT.**
**BY ADVS.SRI.K.R.AVINASH (KUNNATH) SRI.ABDUL RAOOF PALLIPATH SRI.E.MOHAMMED SHAFI**
**RESPONDENT(S)/APPELLANT/PETITIONER:**
**-----------------------------------**
**CHIMMINIYAN SHAHANA, D/O GANGADHARAN, AGED 34 YEARS, RESIDING AT CHIRAKKAL AMSOM, PUZHATHI DESOM, KANNUR DISTRICT, REPRESENTED THROUGH HER POWER OF ATTORNEY HOLDER C. GANGADHARAN, S/O C. RAGHAVAN, AGED 72 YEARS, CHIMMINIYAN HOUSE, P.O CHIRAKKAL, KANNUR 670 011.**
**R1 BY ADV. SRI.G..SREEKUMAR (CHELUR) (CAVEATOR)**
**THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 11-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**K.HARILAL & A.M.BABU, JJ. .......................................... RCR No. 357 of 2016 ........................................... Dated 11[th] October, 2017**
## **ORDER**
## **K.HARILAL, J.**
The divergent findings under the first proviso to Sec.11 (3) of the Kerala Buildings (Lease and Rent Control) Act ('the Act' for short) have come up in this revision preferred by the respondent/tenant. The petitioner has sought for an order of eviction under Sec.11 (3) and 11 (4) (i) of the Act. In the earlier round of litigation, the Rent Control Court granted an order of eviction under Sec.11 (4) (i) and rejected the claim under Sec.11 (3) of the Act. The tenant preferred an appeal challenging the order of eviction under Sec.11 (4) (i) and the landlady filed a cross-objection therein challenging the rejection of the claim for eviction under Sec.11 (3) of the Act.
2. After considering the appeal and cross-objection, the Rent Control Appellate Authority set aside the impugned findings under the 1[st] proviso to Sec.11(3), passed by the Rent Control Court and remitted the Rent Control Petition back to the Rent Control Court, after confirming the bona fides of the need and the findings of the Rent Control Court that the respondent/tenant is not entitled to get protection under
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second proviso to Sec.11 (3) of the Act. The Rent Control Court was directed to consider and pass revised order on the basis of the fresh findings under the first proviso to Sec.11 (3) of the Act. After the remand, both parties adduced evidence under the first proviso to Sec.11 (3) of the Act and after considering the entire evidence on record, the Rent Control Court rejected the claim under Sec.11 (3) of the Act on a finding that it is hit by the first proviso to Sec.11 (3) of the Act and rejected the claim under Sec.11 (4) (i) of the Act on a finding that the petitioner has failed to prove the alleged sub-lease. In the appeal preferred by the petitioner, the appellate authority confirmed the rejection of claim under Sec.11 (4) (i) of the Act. But, reversed findings under the first proviso to Sec.11 (3) and granted an order of eviction under Sec.11 (3) of the Act. Thus, this revision is filed challenging the legality and propriety of the divergent findings under the first proviso to Sec.11 (3) of the Act only.
3. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent.
4. In the Rent Control Petition, the petitioner has specifically stated that she has no other suitable building in her possession to conduct the proposed business. But the respondent, in his counter statement, has not disputed the said
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contention and she has not raised a contention that the petitioner has any other building in her possession to conduct the proposed business. Thus, the availability of alternative buildings in the possession of the petitioner was not raised in the pleadings. But, during the course of trial, the respondent has contended that the petitioner has first floor of the petition schedule building, in her possession, to conduct the proposed business. However, the Rent Control Court at the first instance found the same and the said finding was debated earlier before the appellate authority and the appellate authority found that the evidence on record under the first proviso to Sec.11 (3) is not sufficient to arrive at a conclusive finding and the parties were given an opportunity to adduce further evidence also, after the remand.
5. According to the respondent, the first floor of the petition schedule building is also owned and possessed by the petitioner and the same is lying vacant. It is needless to say that the initial burden of proof as regards the availability of vacant room in the possession of the landlady is on the tenant. Therefore the first question to be considered is whether the respondent has successfully discharged the initial burden of proof. As regards this aspect, the Rent Control Court found that the petitioner has already admitted the ownership and
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possession of the first floor before the appellate authority and therefore no enquiry need be conducted as regards the ownership of the first floor. We find that the Rent Control Court absolutely went wrong by arriving at a finding, when the earlier findings with respect to the findings under the first proviso to Sec.11 (3) was set aside and remitted the Rent Control Petition back to the Rent Control Court for conducting a fresh enquiry, under the first proviso to Sec.11 (3) of the Act, after affording an opportunity to both parties to adduce evidence. The Rent Control Court should not have been carried away by the discussions of the appellate authority under the first proviso to Sec.11 (3) of the Act when the remand under the first proviso was an open remand.
6. As regards the ownership of the first floor, no document has been produced by the respondent and the petitioner has contended that she has one-fourth right only in the first floor of the building. It was incumbent upon the respondent to produce documentary evidence to prove the ownership and possession of the petitioner of the first floor of the building. On the other hand, the petitioner had produced Exts A10 and A10(a) certified copies of the relevant entries made in the building tax assessment register of the Panchayat. Going by Exts A10 and A10(a), it could be seen that one Jeeja
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Kumari is the owner of the disputed up stair portion and the same is in possession of one Sudhakaran. The certified copies of building tax assessment registers are valid evidence to prove ownership and possession of the buildings as per Sec.26 of the Act. Thus, we find that even though the respondent has failed to prove the ownership and possession of the petitioner, of the up stair portion of the petition schedule building, the petitioner has succeeded in disproving the said contention of the respondent by producing Exts A10 and A10(a), in evidence. But the Rent Control Court has failed to analyze Exts A10 and A10(a) in their correct perspective. In short, the respondent has failed to discharge the initial burden of proof under the first proviso to Sec.11 (3) of the Act.
7. That apart, Ext C1 commission report shows that the up stair portion of the petition schedule building has no convenient or suitable access from the ground floor. One old stair case is situated behind the petition schedule building. In the absence of convenient entry to the first floor, it cannot be said that the first floor is suitable for conducting a ready made garment business. It has come out in evidence that the building itself is an ancient old building and the building is facing towards national highway on the western side. But the upper portion of the first floor of the building is facing towards east
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and facing a market road only. As far as textile business is concerned, the first floor cannot be equated with the ground
## floor and this Court in **2002 (6) SCC 16 (Dhannalal vs**
**Kalawatibai & Ors)** held that the first floor of a building cannot be equated with ground floor of the building for conducting sales shops. Moreover, it is not for the tenant to dictate as to where the landlord should start the business and what business he should do **(2010 (1) KLT 971 (Venugopalan Nair vs Mohamed Kunhi)** . In the above analysis, we find that the appellate court is justified in finding that the respondent has failed to discharge the initial burden, but the petitioner has succeeded in proving that she is not an absolute owner in possession of the first floor. No other point was raised for our consideration, in this revision.
8. The learned counsel for the petitioner sought for sometime to surrender vacant possession of the petition schedule shop.
9. Having regard to the submission made by the learned counsel, the respondent is given time till 30.4.2018 to vacate the tenanted premises subject to the following conditions. The respondent shall file an affidavit expressing an undertaking to vacate the premises on or before 30.4.2018. It shall also be undertaken, in the same affidavit, that no further
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time will be sought under any circumstance for vacating the tenanted premises. The affidavit shall be filed before the executing court, within a period of two weeks from the date of receipt of the copy of this order. The entire arrears of rent, if any, shall be paid within a period of one month from the date of receipt of the copy of this order. Rent shall be paid on or before the due date, till vacation of the tenanted premises.
This revision petition is dismissed. We direct the parties to bear their respective costs.
**K.HARILAL Judge**
**A.M.BABU Judge**
_sks/12.10.2017_
