Ayshomma and others v. Edappparambath Nabeesu and others (RCR No. 173/2008)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 25TH NOVEMBER 2010 / 4TH AGRAHAYANA 1932 RCRev..No. 173 of 2008() -----------------------RCA.39/2004 of RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP.59/2002 of MUNSIFF COURT, THALASSERY .................... REVISION PETITIONERS/SUPPLEMENTAL RESPONDENTS 2 TO 4 & 6 TO 8 LEGAL HEIRS OF RESPONDENT: ----------------------------------------------------------------- 1. AYSHOMMA, W/O.AYAMU, RESIDING AT SALI QUARTERS, SREE NARAYANA MADAM, NEAR RAJIVJI CLUB, MUZHAPPILANGAD - 670 662. 2. BEEVI, D/O.LATE AYAMU, -DO- 3. SARU, D/O.LATE AYAMU, -DO- 4. SUBAIDA, D/O.LATE AYAMU, RESIDING AT MAREENA MANZIL, NADU VALAPPIL, MUZHAPPILANGAD, PIN: 670 662. 5. RABI.K., W/O.LATE AYAMU, RESIDING AT RABIYAS, MOIDU BRIDGE, NEAR SEETHU MOSQUE, MUZHAPPILANGAD. 6. AYSHA, D/O.LATE AYAMU, RESIDING AT RAFEEQUE QUARTERS, P.O.KURICHIYIL, THALASSERY, KANNUR DISTRICT. BY ADV. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. RESPONDENT(S): APPELLANTS AND SUPPL.RESPONDENT NO.5/PETITIONERS --------------------------------------------------------------- 1. EDAPPARAMBATH NABEESU, W/O.USMANHAJI, RESIDING AT RAFEEQUE MANZIL, P.O.KURICHIYIL, THALASSERY. (DIED LRS RECORDED) - (R1 DIED AND R2 TO R5 ARE RECORDED AS LEGAL REPRESENTATIVES OF DECEASED R1 VIDE ORDER DATED 30/9/2008 IN I.A.2196/2008) 2. KHYRUNNISA, D/O.NABEESU, USMANHAJI, RESIDING AT REFEEQUE MANZIL, P.O.KURICHIYIL, THALASSERY. 3. YOUSUF, S/O. -DO- -DO- 4. RASHEED, S/O. -DO- -DO- 5. MAHATHU, S/O. -DO- -DO- 6. ABDULLAKUTTY, S/O.LATE AYAMU, RESIDING AT SALI QUARTERS, SREE NARAYANA MADAM, NEAR RAJIVJI CLUB, MUZHAPPILANGAD. (R6 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONERS VIDE ORDR DATED 19/1/2009 IN RCR NO.173/2008) ADV. SRI.C.P.PEETHAMBARAN FOR R5 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 25/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. -----------------------R.C.R.No. 173 OF 2008 ------------------------** Dated this the 25[th] day of November, 2010 ## **O R D E R** Pius C.Kuriakose, J. Under challenge in this revision under Section 20 is the judgment of the rent control appellate authority, Thalassery ordering eviction against the revision petitioners under sub section (3) of Section 11 reversing the order of the rent control court dismissing the rent control petition. 2. The rent control petition was instituted by the respondents 1 to 5, who were joint owners and landlords of the petition schedule building, under sub section (3) of section 11. The need that was projected in the rent control petition was that the 3[rd] respondent herein, one Yousuf, has no residential house of his own and hence the petition schedule building, which is an independent residential building, is needed for the occupation by Yousuf. Disputing the bona fides of the need, it was contended inter alia by the tenants that the 3[rd] petitioner Yousuf has got RCR.No.173/2008 2 his own house and that the first petitioner Nabeesu is having several houses of her own in her possession. The evidence before the rent control court consisted of Exts.A1 to A5, Exts.B1 to B3, oral evidence of PW1(none other than Yousuf) and RW1, one of the tenants. The rent control court on evaluating the evidence came to the conclusion that the need projected in the rent control petition is bona fide. However, eviction was declined on the reason that the landlords were having possession of other buildings and that they have not established special reason for eviction. 3. The landlords preferred RCA No.39/2004. In that appeal, the rent control appellate authority reappraised the pleadings and the evidence. That authority would reverse the findings of the rent control court and confirm the finding regarding the bona fides and conclude that the first proviso to sub section (3) of section 11 cannot have any application in the present case where the two buildings, which were evidently available under the vacant possession of the landlords (building Nos. 229 & 269) belonged to Nabeesu absolutely where as the petition schedule building belongs to all the landlords jointly. RCR.No.173/2008 3 Though the learned appellate authority would refer to the judgment of a Division Bench of this court in Asher v. Hassankutty Hajee (2004 (2) KLT 446) and keep in mind the principles laid down by the Division Bench in that case, the appellate authority held that the first proviso to sub section (3) of section 11 has no application in the present case. On the basis of the finding that the need is bona fide, the learned appellate authority would reverse the decision of the rent control court and ordered eviction. 4. In this revision under Section 20, various grounds are raised assailing the judgment of the appellate authority and Sri.K.V.Sohan, learned counsel for the revision petitioners and Sri.C.P.Peethambaran, learned counsel for the respondents addressed us extensively. 5. Mr. Sohan submitted at the very outset that the principles laid down by the Division Bench of this court in Asher v.Hassankutty Hajee (cited supra) cannot have application in the present case where in respect of the petition schedule building itself, the landlords are having only co-ownership. According to Mr.Sohan, in respect of the building having door numbers 229 & RCR.No.173/2008 4 256 also, the petitioners in the rent control petition are coowners. When we drew the attention of Mr.Sohan to the entries in Ext.B1 & B2 property tax assessment registers, which are to the effect that Nabeesu, the first petitioner in the rent control petition is the owner, learned counsel submitte that the same is the position regarding the petition schedule building. All these three buildings belong to the all the petitioners in the rent control petition jointly. 6. Mr.Peethambaran learned counsel for the respondents would submit that it is not correct to say that room having door Nos.229 and 256 belonged jointly to all the petitioners in the rent control petition. The learned counsel would draw our attention to the pleadings raised by the tenants and submit that the buildings having door Nos.229 & 256 belongs absolutely to Nabeesu apart from other buildings. As far as the petition schedule building is concerned, Mr.Peethambaran would submit that, it is the admitted case of the revision petitioners that the present building belongs to all the landlords jointly and hence the argument that the assessment register pertaining to the present building stands in the name of Nabeesu cannot hold RCR.No.173/2008 5 water. 7. We have considered the rival submissions addressed at the Bar. Having gone through the judgment of the appellate authority and the order of the rent control court, we have no difficulty to say that the finding concurrently entered by these authorities that the need projected in the rent control petition under sub section (3) of Section 11 is a bona fide one does not warrant interference in the contours of this court's jurisdiction under Section 20. The only question which arises seriously is whether the rent control petition is liable to fail by virtue of the first proviso to sub section (3) of Section 11. In order that the first proviso operates, it is necessary that if the landlord is in possession of another building of his own in the same city, town or village, and there should not be any special reason which will justify the order of eviction despite such ownership and possession. The principles laid down in Asher v.Hassankutty Hajee (cited supra) is that the building on the basis of which the first proviso to sub section (3) of Section 11 can be said to apply should belong absolutely to the landlord. The argument of Mr.Sohan that in a situation like the present RCR.No.173/2008 6 one where the landlords themselves are only co-owner, the principles in Asher v. Hassankutty Hajee (cited supra) will not apply, has only super physical attractiveness. The principles underlying sub section (3) of Section 11, according to us, is that it will be unjust to order eviction in a situation where the really needy person, for whose purpose the building is sought to be vacated under sub section (3) of Section 11, is in a position to occupy another building of his own without seeking anybodyelse's concurrence in the matter. The two buildings covered by Exts.B1 and B2 even according to the revision petitioner belong in common to all the landlords. In other words, without the concurrence of the other co- landlords , it will not be possible for the 3[rd] petitioner in the rent control petition to occupy those buildings. As far as the petition schedule building is concerned, all the landlords are agreeable to the idea of the 3[rd] petitioner occupying the same. According to us, the principles laid down in Asheer v. Hassankutty Hajee (cited supra) can be extended to the present situation also. 8. The revision necessarily has to fail and will stand dismissed. However, considering the fervent appeal of RCR.No.173/2008 7 Mr.Sohan for grant of longer period of time to surrender the petition schedule building, we are inclined to grant to the revision petitioners time till 30/6/2011 subject to the following conditions; i). One of the revision petitioners representing all of them shall file an affidavit within three weeks from today undertaking as follows; a). that the entire arrears of rent due till date inclusive of the rent which fell due after the filing of the rent control petition will be discharged within 30 days from today. b). that the building will be peacefully surrendered to the respondents landlords on or before 30[th] June 2011. ii). Once the execution court notices the affidavit to the above effect on time, that court will adjourn the execution proceedings to a day immediately after 30/6/2011. ii). If any of the undertakings in the affidavit are found to be violated by the revision petitioners, it will be open to the RCR.No.173/2008 8 execution court to advance the hearing of the execution petition and order delivery forthwith. **PIUS C.KURIAKOSE,JUDGE** **P.S.GOPINATHAN, JUDGE** dpk