Chandra Ulakanathan v. Paneer Selvam

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY,THE 07TH DAY OF FEBRUARY 2018 / 18TH MAGHA, 1939** **RCRev..No. 44 of 2018** **AGAINST THE JUDGMENT IN RCA 11/2016 of III ADDL.DISTRICT COURT, PALAKKAD DATED 30-08-2017** **AGAINST THE ORDER IN RCP 53/2013 of ADDL.MUNSIFF COURT, PALAKKAD DATED 18-12-2015** **REVISION PETITIONER/APPELLANT IN RCA 11/2016 AND PETITIONER IN RCP 53/2013:** **CHANDRA ULAKANATHAN AGED 73 YEARS, WIFE OF ULAKANATHAN, HOUSE NO. 27, T. N. E. B. COLONY, MENAMBAD, AMBATHURE, CHENNAI, TAMIL NADU.** **BY ADVS. SRI.S.VINOD BHAT KUM.ANAGHA LAKSHMY RAMAN SRI.LEGITH T.KOTTAKKAL** **RESPONDENT/RESPONDENT IN RCA 11/2016 AND RESPONDENT IN RCP 53/2013:** **PANEER SELVAM AGED 63 YEARS, SON OF MAHALINGAM, R. V. G. LANE, MANNANCHIRA, PALAKKAD-678014.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 07.02.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev.No. 44 of 2018** **2** ## **O R D E R** ## _Ravikumar, J._ The landlord in respect of a building having an extent of 600 sq.ft situated in an extent of 3.27 cents of land comprised in survey Nos.772/4 and 774/4 in Koppam village filed this revision petition on being aggrieved by the judgment of the Rent Control Appellate Authority in R.C.A.No.11/2016 confirming the order of the Rent Control Court in R.C.P.No.53 of 2013 in relation to the findings under sections 11(4)(ii) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act (for brevity, 'the Act'). The said rent control petition was filed by the petitioner herein under sections 11(2)(b), 11(4)(ii) and 11(4)(iii) of the Act. The petition was allowed in part ordering eviction of the respondent herein/tenant under section 11(2) (b) and it was dismissed under section 11(4)(ii) and 11(4)(iii) of the Act. The revision petitioner herein filed R.C.A.No.11 of 2016 aggrieved by the dismissal of the rent control petition under sections 11(4)(ii) and 11(4)(iii) of the Act. As per the impugned judgment dated 18.12.2015, the appellate authority dismissed the appeal and confirmed the order in R.C.P.53 of 2013. It is in such circumstances **RCRev.No. 44 of 2018** **3** that the captioned revision petition has been filed. 2. We have heard the learned counsel for the revision petitioner. As noticed hereinbefore, the rent control petition filed by the revision petitioner was allowed in part and the respondent herein was directed to surrender vacant possession of the petition schedule building to the petitioner under section 11(2)(b). Hence, the question is whether the dismissal of the petition under section 11(4) (ii) and 11(4)(iii) of the Rent Control Court which was confirmed by the appellate authority invites interference. Essentially, the dismissal of the aforesaid claim petition under the said sections was based on factual findings. As noticed hereinbefore, there is concurrent finding by the courts below under those sections. When the appellate authority confirms the findings of the Rent Control Court, the scope of interference based on factual aspects is very limited in the light of the decision of the Constitutional Bench of the Hon'ble Apex Court in **Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh 2014** ## **(4) KLT 182 (SC)** . It was held therein thus:- _“The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court/Authority below is according to law and does not suffer from any error of law. A finding of fact recorded by Court/Authority below, if perverse or has been arrived at without consideration of the_ **RCRev.No. 44 of 2018** **4** _material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law.”_ 3. It is the case of the revision petitioner/the petitioner who was examined as PW1, that her father let out the plaint schedule building to the father of RW1 for conducting an ice factory in the year 1972. As noticed hereinbefore, the claim petition was filed under Sections 11(2)(b), 11(4)(ii) and 11(4)(iii) of the Act and the appeal was filed against the concurrent findings under Sections 11(4) (ii) and 11(4)(iii) of the Act. 4. Now we will consider the question whether the authorities below went wrong or were correct, in declining an order of eviction under Section 11(4)(ii) of the Act. Section 11(4)(ii) of the Act reads thus:- _“11(4)…......... (I) …..........._ _(ii) If the tenant uses the building in such a manner as to destroy or reduce its value or utility materially and permanently; or”_ A bare reading of the said provision would reveal that the intention of the legislature is to enable the landlord to protect the valuable rights of the lease of property. There can be little doubt with respect to the position that in order to attract the above said provisions there should **RCRev.No. 44 of 2018** **5** be an act from the part of the tenant causing either destruction of the value or utility of the building materially and permanently or reduction of its value or utility materially and permanently. It is also evident from the said provision that the burden to establish that the act on the part of the tenant would destroy the value or utility of the building materially and permanently or it would reduce the value or utility of the building materially and permanently, is on the landlord. Therefore, we will consider the case whether the courts below went wrong in holding that the revision petitioner had failed to establish such conditions, based on the evidence on record. In the Rent Control Petition, what was averred by the revision petitioner herein was that the respondent/tenant had demolished the boundary wall of the petition schedule property and changed the physical structure of the petition schedule building thereby made identification of the plaint schedule property difficult. The allegation of destruction of the compound wall was totally denied by the respondent/tenant. A commission was taken out in the case and after inspecting the property, he filed Exts.C1 and C2 reports along with Ext.C3 plan. It is to be noted that the commissioner was not examined. He had reported that RW1, who is the tenant, is conducting an ice **RCRev.No. 44 of 2018** **6** manufacturing factory in the petition schedule building. In Ext.C2 report, it is reported that the northern and eastern side of the plaint schedule building there is a compound wall and the properties on southern and western side of the petition schedule building belongs to the son of Kumaran and there is no demarcating boundary on that side. The authorities below noted that there is nothing in Exts.C1 and C2, which would indicate that the boundary of the plaint schedule building was demolished. That apart, it is the finding of the courts below that the evidence on record would not reveal that there was a compound wall on the southern and western side. In short, a perusal of the impugned order would reveal that there is absolute absence of any evidence revealing the existence of compound walls on both sides of the plaint schedule building. It is in such instance that the authorities below declined to accept the contention of the revision petitioner that the respondent/tenant had demolished the compound wall of the petition schedule building on both sides. Evidently, the Commissioner, who made such a report in Exts.C1 and C2, was not examined before the Rent Control Court. If the revision petitioner got objection to the reports he ought to have taken appropriate steps against such reports. In the absence of such steps, we cannot hold **RCRev.No. 44 of 2018** **7** that the authorities below had committed an error in relying on the said reports. In such circumstances, we do not find any reason to hold that the authorities below went wrong in declining to accept the contention of the revision petitioner that the tenant had demolished the compound walls on the southern and the western sides of the plaint schedule building. 5. To bring it under the purview of Section 11(4)(ii) and seeking for eviction, the revision petitioner had taken up another contention as well. It is his contention that the tenant who was examined as RW1 had constructed a separate floor in a higher height for the purpose of installing an ice cutter. True that in Ext.C1 report, the Commissioner had noted such a construction having a height of one meter on the western side of the plaint schedule property. Further, it was noted therein that the ice breaker was rust affected and its floor was damaged here and there. In the context it is to be noted that it was admitted by PW1 that the plaint schedule building was let out to the father of RW1 for the purpose of running ice factory and ever since it was let out, an ice factory was being conducted therein from 1972. In such circumstances, the authorities below held that the ice cutter being used there is an old one. Evidently, a suggestion was **RCRev.No. 44 of 2018** **8** put to the revision petitioner while being examined as PW1 as to whether the ice cutter and the floor were there even at the time of original lease. At any rate, the authorities below based on the evidence on record, held that there is absolute absence of evidence to hold that the ice cutter floor is a newly constructed one. An ice cutter is certainly an equipment which is being used in ice manufacturing business. Taking into account that the purpose for which the plaint schedule building was admittedly let out and also the fact that it has been let out in the year 1972 and since then the ice manufacturing business was being carried out there the authorities below held that its installation could not be said to be an act which would destroy and reduce the value or utility of the plaint schedule building materially and permanently. 6. The learned counsel appearing for the revision petitioner contended that while being examined as RW1 the respondent/tenant had admitted that such a construction was effected without a consent. It would appear that in such circumstances, the revision petitioner is entitled to get an order of eviction under Section 11(4)(ii). However, as noticed hereinbefore, we cannot lose sight on the fact that as far back in the year 1972, the father of the revision petitioner had let out **RCRev.No. 44 of 2018** **9** the plaint schedule building to the father of the respondent/tenant for the purpose of running an ice manufacturing factory. It is nobody's case that after its letting out such a factory was not being conducted. In other words, it is common case that such a factory is being conducted therein. In such circumstances, one cannot presume that the father of the respondent/tenant and after his demise the respondent/tenant, was conducting such a business without the aid of or without using such an ice cutter floor. That apart, it is the contention of the revision petitioner that a car shed was also constructed there by the respondent/tenant in the premises of the petition schedule building. Going by the definition of building the land apartment would also fall within the definition of building. The evidence on record would not reveal the real nature of the said construction. In other words, nothing is discernible from the evidence on record as to whether the said construction is a permanent one or a temporary one. If it is a permanent one, essentially, it is for the petitioner to establish that dismantling of such construction would destroy or reduce the value or utility of the property in which the petition schedule building situates, materially and permanently. In such circumstances, the mere fact that a car shed was constructed **RCRev.No. 44 of 2018** **10** therein would not be sufficient to order eviction of the tenant in terms of provisions under Section 11(4)(ii) of the Act. 7. Having carefully gone through the impugned award and hearing the learned counsel for the petitioner, we do not find any reason to hold that the authorities below entered into a finding that the revision petitioner had failed to prove that the respondent had used the petition schedule building in a manner so as to destroy and reduce its value or utility materially and permanently, without a proper appreciation of the evidence on record. In other words, we do not find any reason to hold that based on the evidence on record, the conclusions and findings arrived at by the authorities below in that regard is perverse or against the weight of evidence. 8. We will now consider the question whether the case of the revision petitioner that he is entitled to get order of eviction of the respondent/tenant from the petition schedule building under Section 11(4)(iii) of the Act got substance; and whether his claim was wrongfully rejected by the authorities below. Section 11(4)(iii) reads thus: _11(4) …........._ _(i) …........... (ii) …........... (iii) If the tenant already has in his possession a building or_ **RCRev.No. 44 of 2018** **11** _subsequently acquires possession of or puts up a building, reasonably sufficient for his requirements in the same city, town or village; or”_ 9. Evidently, the burden of proof under the aforesaid provision is also on the landlord. Only if the landlord establishes the fact that the tenant is in possession of other building reasonably sufficient for his requirements then and then only the onus will shift on the respondent/tenant to prove that those buildings are not reasonably sufficient for his requirement. True that the revision petitioner had succeeded in establishing that the respondent/tenant got in his possession a building No.25/654. But, the evidence on record would reveal that it is the residential building of the tenant. In such circumstances, it can only be held that the revision petitioner had failed to establish that he is entitled to get an order of eviction of the tenant under Section 11(4)(iii), merely because of the revision petitioner had established that the respondent/tenant is in possession of a building by itself would not entitle him to get an order of eviction under Section 11(4)(iii). In this case, as noticed hereinbefore, the building in possession of the tenant is his residential building and therefore, it could not be said that he is in possession of a building reasonably sufficient for his requirements to **RCRev.No. 44 of 2018** **12** run such a factory. 10. In such circumstances, the findings of the courts below under Section 11(4)(iii) of the Act under the impugned order and the judgment also cannot be said to be illegal or incorrect, warranting an interference of the exercise of the revisional power under Section 20 of the Act. In view of the discussion as above, we do not find any reason to interfere with the impugned judgment dated 30.08.2017, passed by the Rent Control Appellate Authority, Palakkad, in RCA No.11/2006 confirming the order passed in order dated 18.12.2015 passed by the Rent Control Court, Palakkad, in RCP No.53/2013. Consequently, this revision petition stands dismissed. ## **C.T.RAVIKUMAR** **JUDGE** **MARY JOSEPH JUDGE** spc/SKK/151118