C. V. Mathachan v. Vellamattathil V. M. Chacko

1 RCR No.447 of 2019 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 10TH DAY OF DECEMBER 2019 / 19TH AGRAHAYANA, 1941** ## **RCRev..No.447 OF 2019** **AGAINST THE ORDER/JUDGMENT IN RCA 16/2017 DATED 02-04-2019 OF THE RENT CONTROL APPELLATE AUTHORITY, KALPETTA , WAYANAD** **AGAINST THE ORDER/JUDGMENT IN RCP 27/2015 DATED 15-07-2017 OF THE RENT CONTROL COURT(MUNSIFF MAGISTRATE), SULTHAN BATHERI** ## **REVISION PETITIONER/S:** **C.V.MATHACHAN, AGED 55 YEARS S/O C.P. VARKEY, ROYAL DRIVING SCHOOL, MYSORE ROAD JUNCTION, SULTHAN BATHERY TALUK, WAYANAD DISTRICT - 673 592.** **BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA** ## **RESPONDENT/S:** **VELLAMATTATHIL V.M.CHACKO, AGED 64 YEARS S/O MATHAI, NAGARAMCHAL, NOOLPUZHA P.O., KUPPADI VILLAGE, SULTHAN BATHERY TALUK, WAYANAD DISTRICT, PIN - 673 592.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 10.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 RCR No.447 of 2019 ## **ORDER** ## **K.HARILAL, J.** The revision petitioner herein is the tenant who is confronting with an order of eviction passed against him, under Sec.11 (3) of the Kerala Buildings (Lease and Rent Control Act) (for short 'the Act') by the Rent Control Court and confirmed by the Rent Control Appellate Authority. (The parties are referred to as tenant and landlord respectively). 2. The landlord filed RCP No.27/2015, under Sec.11(3) of the Act, on the ground that he bona fide needs the petition schedule building, to start an auto consultancy for his son, who is a dependent on him, for the tenanted premises. Now he is conducting an auto consultancy in the name and style 'Vikas Cars' very near to the tenanted 3 RCR No.447 of 2019 premises and the same is running in a rented building. The landlord has purchased the property, which consists of the tenanted premises with an intention to shift his son's existing auto consultancy from the rented building and expand the business after making necessary alterations in the building. He has no other buildings of his own in his possession to shift his existing business from the rented building and the tenant is not depending upon the income from the business in the tenanted premises. Several other buildings are available in the locality to shift his business from the tenanted premises. 3. The tenant resisted the claim for eviction on bona fide need, contending that the need projected is not bona fide and it is a ruse for eviction only. According to the tenant, the landlord has other buildings of his own to shift the business from the rented premises. It is also contended that 4 RCR No.447 of 2019 there is no landlord-tenant relationship and the landlord is not a title holder of the petition schedule building. The document relied on by the landlord is a sham one and resulted from the collusion between the landlord and the previous building owner. In short, the document is intended for evicting the tenant from the tenanted premises only. So also it is contended that no other vacant rooms are available in the locality to shift his business and he is depending mainly on the income which is being derived from the business in the tenanted premises. 4. On the rival pleadings, both parties adduced evidence and after considering the evidence on record, the courts below concurrently found that the denial of title is not bona fide and the need projected by the landlord is bona fide, the claim for eviction is not hit by the first proviso to Sec.11(3) of the Act and the tenant is not entitled to get protection under the second proviso to 5 RCR No.447 of 2019 Sec.11(3) of the Act. 5. The legality, propriety and regularity of the aforesaid findings are challenged in this revision petition. 6. Heard the learned counsel for the revision petitioner/tenant. 7. The sum and substance of the arguments advanced by the learned counsel for the revision petitioner/tenant is that the tenant has disputed the identity of the petition schedule shop room and the landlord has failed to prove the identity of the petition schedule shop room beyond doubt. Secondly, it is contended that the courts below have miserably failed to consider the availability of other vacant buildings in the possession of the landlord in its correct perspective and thereby the finding under the first proviso to Sec.11 (3) of the Act is vitiated by perversity. 8. The scope and extent of interference under 6 RCR No.447 of 2019 Sec.20 of the Act is very limited and confined to legality, propriety and regularity of the findings of the courts below. The revisional court, under Sec.20 of the Act, is not permitted to re-appreciate the factual findings, unless the findings are vitiated by perversity. Bearing the aforesaid legal proposition in mind, we have examined the concurrent findings of the court below, by which the order of eviction has been passed against the tenant. 9. Coming to the argument that the courts below have failed to consider the challenge against the identity of the building, going by paragraph 23 of the impugned judgment passed by the Appellate Authority, we find that the Appellate Authority has specifically considered and rejected the aforesaid contention. The Appellate Authority specifically found that the building number shown in the rent control petition is different from the building number shown in the lease deed. But, it has come 7 RCR No.447 of 2019 out in evidence that the building numbers were changed periodically and therefore, on the basis of the building number alone, identity cannot be decided. It is to be borne in mind that the tenant himself admitted that he is in possession and occupation of the petition schedule building, owned by the landlord and for which eviction is sought for. The tenant has no case that the lease deed relied on by the landlord relates to any other building. The tenant defended the rent control petition with full and clear knowledge, after understanding the identity of the petition schedule shop room, in its correct perspective. After analysing the title deed and the lease deed, the Appellate Authority found that eviction is sought for in respect of the building shown in the lease deed and the said building was purchased by the title deed produced by the landlord. Therefore, the Appellate Authority is justified in rejecting the contention that the landlord has not proved the identity of the petition 8 RCR No.447 of 2019 ## schedule building beyond doubt. 10. Coming to the challenge against the findings, under the first proviso to Sec.11 (3) of the Act, we further find that the said contention also was considered by the Appellate Authority as can be seen from paragraph 32 of the impugned judgment. The Appellate Authority specifically observed that the tenant's contention that the landlord is having other building is not substantiated with any document other than the oral assertion in the box. Therefore, there is no reason to interfere with the findings under the first proviso to Sec.11(3) of the Act. 11. On an overall analysis of the findings, we find that the bona fides of the need was proved by examining the landlord and nothing has been brought out to discredit his evidence. The courts below have placed reliance on the oral deposition of PW1, the landlord. It is trite law that bona fide is a state of mind and if the landlord faces the cross- 9 RCR No.447 of 2019 examination and stood by the need projected in the rent control petition, the court below can be justified in finding that the need projected is bona fide, in the absence of any contra evidence from the part of the tenant. 12. As regards the challenge against the title, the courts below meticulously examined the title deed, as well as the lease deed, produced by the landlord and it has come out in evidence that the landlord has purchased the tenanted premises, by a registered deed No.480/13 of SRO Sulthan Bathery from the erstwhile landlord and that the lease deed was executed for monthly lease in favour of the erstwhile landlord. Going by Sec.109 of the Transfer of Property Act (for short 'T.P Act'), we find that the transferee, the landlord, will step into shoes of the erstwhile landlord, with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy. In the light of Sec.109 of the T.P Act, this Court in **1984 KHC 63 Haji** 10 RCR No.447 of 2019 **Hassainar and Company vs Chacko Joseph** specifically held that a transferee of landlord's rights would step into the shoes of the landlord and the transferee will get all the rights and liabilities of the transferor landlord, in respect of the subsisting tenancy. The Section does not insist that the transfer of landlord's right would come into effect only if the tenant atones. Atonement by the tenant is unnecessary to confer validity to the transfer of the landlord's rights. 13. In view of the aforesaid legal proposition, we find that even if the tenant herein is not atoned to the landlord, the landlord will get all the rights and liabilities of the erstwhile landlord, against the tenant herein. The Appellate Authority is justified in finding that there is no bona fides in the denial of title also. We do not find any kind of illegality or impropriety in the findings, whereby the courts below concurrently passed an order of eviction against the tenant. Hence, the revision fails and 11 RCR No.447 of 2019 dismissed accordingly. 14. The learned counsel for the revision petitioner/tenant prayed for some time to vacate the tenanted premises. The learned counsel for the landlord submitted that a reasonable time can be granted to vacate the tenanted premises. 15. Having regard to the submissions at the bar, the revision petitioner/tenant is given three months' time from today to vacate the tenanted premises on the following conditions: (1) The revision petitioner/tenant shall file an affidavit, 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 he will vacate the petition schedule shop room within three months from today. - (2) The revision petitioner/tenant shall deposit - the 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 the rent without default. 12 RCR No.447 of 2019 (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 landlord will be at liberty to proceed with the execution of the eviction order. Sd/- **K.HARILAL JUDGE** Sd/- Sks/16.12.2019 **C.S.DIAS JUDGE**