Chathoth Saleem v. Vannathi Valappil Muhammed Haji and Abdul Khader

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY, THE 10[TH] DAY OF AUGUST 2021 / 19TH SRAVANA, 1943** **RCREV. NO. 313 OF 2016** **AGAINST THE ORDER/JUDGMENT IN RCA 113/2014 OF ADDITIONAL** **DISTRICT COURT KOZHIKODE-III, KOZHIKODE** ## **REVISION PETITIONER/S:** **CHATHOTH SALEEM** **AGED 43, S/P. UMMER, ALANKAR TRADERS,PERAMBRA ROAD, PAYYOLI P.O., MELADI AMSOM,DESO, KOYILANDY TALUK, KOZHIKODE DISTRICT,PIN:673522.** **BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P** ## **RESPONDENT/S:** - **1 VANNATHI VALAPPIL MUHAMMED HAJI AGED 64, S/O ABDURAHIMANKUTTY, VADAKKE POVATHUKANDY HOUSE, THRIKKOTTUR AMSOM,DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT,PIN:673529.** **2 VANNATHI VALAPPIL ABDUL KHADER AGED 61, S/O ABDURAHIMANKUTTY, VADAKKE POVATHUKANDY HOUSE, THRIKKOTTUR AMSOM,DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT,PIN:673529. (APPELLANTS 1 AND REPRESENTED BY POWER OF ATTORNEY HOLDER, VANNATHI VALAPPIL SUBAIR,AGED 50, S/O ALI RESIDING AT ERANHIVALAPPIL HOUSE,PAYYOLI VILLAGE, MELADI DESOM, KOYILANDY TALUK,KOZHIKODE DISTRICT, PIN:673522.** **BY ADVS. K.DEEPA (PAYYANUR) AKHILA K NAMBIAR** **THIS RENT CONTROL REVISION HAVING COME UP FOR** **ADMISSION ON 10.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- R.C.R 313 of 2016 ## **ORDER** _Ravikumar, J._ The revision petitioner who was the respondent both in R.C.P.No.17 of 2012 on the files of the Rent Control Court, Payyoli and in R.C.A.No.113 of 2014 on the files of the Rent Control Appellate Authority, Kozhikode filed this revision petition under section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for brevity, the 'Act') challenging the order of the appellate authority to the extent it ordered his eviction under section 11(4) (iii) of the Act. The rent control petition was filed by the respondents herein claiming eviction of the revision petitioner under sections 11(3), 11(4)(iii) and 11(4) (v), of the Act. The Rent Control Court dismissed the Rent Control Petition and thereupon, the respondents herein viz., the petitioners therein, filed RCA.No.113 of 2014. The Appellate Authority reversed the order passed by the Rent Control Court under section 11(4)(iii) and allowed the eviction of the revision -3- R.C.R 313 of 2016 petitioner-tenant thereunder, but confirmed the order of the Rent Control Court under sections 11(3) and 11(4)(v) of the Act. It is in such circumstances that the respondent in those proceedings viz., the tenant, preferred the captioned revision petition challenging the order of the Appellate Authority to the extent the Appellate Authority reversed the finding under section 11(4) (iii) of the Act. For the sake of convenience, the parties are referred to hereinafter in this judgment as 'revision petitioner' and 'respondents', unless otherwise specifically mentioned. 2. Evidently, concurrent findings are there under sections 11(3)(iii) and 11(4)(v) of the Act against the respondents and they have allowed such findings to become final. In other words, the fact is that though they filed appeal against the order of the Rent Control Court dismissing the RCP on all distinct grounds and the appellate court confirmed the findings under sections 11(3)(iii) and 11(4)(v) of the Act and allowed the appeal only on the ground under section 11(4)(iii) of the Act, -4- R.C.R 313 of 2016 the respondents herein did not file an independent revision against the findings under sections 11(3)(iii) and 11(4)(v) of the Act or any cross-objection in this proceedings initiated by the adversary. This revision petition is filed by the revision petitioner-tenant solely challenging the finding of the appellate authority under section 11(4)(iii) of the Act. We referred to the said aspects as the learned counsel for the respondents made an attempt to challenge the order of the appellate authority under section 11(3) and 11(4)(v) of the Act, in a bid to sustain the said order, contending that even without filing an independent revision or taking up a cross objection in the captioned revision petition, by virtue of the provisions under Order XLI Rule 22 of the Code of Civil Procedure, it is open for the respondents to assail the correctness of the findings of the appellate authority as also the Rent Control Court under sections 11(3) and 11(4) (v) of the Act. 3. The core contention of the revision petitioner is that no -5- R.C.R 313 of 2016 sufficient pleadings were taken in the rent control petition for eviction under section 11(4)(iii) of the Act, and consequently, no sufficient evidence was also let in, to establish the ingredients to obtain an order thereunder. Furthermore, it is contended that the Appellate Authority ought to have found that it is the burden of the landlord to prove that the rooms in possession were reasonably sufficient for the tenant to use the same as his godown. 4. Per contra, the learned counsel for the respondents contended that in RCP proceedings, a meticulous scrutiny of the pleadings is unwarranted and what is required is only appreciation of the pleadings taking into account the entire circumstances and also to ensure that the the case of the landlord is understood by the tenant. In the same breath it is submitted by the learned counsel that requisite basic pleadings for eviction under section 11(4)(iii) are there in the rent control petition and sufficient evidence was also let in to obtain an -6- R.C.R 313 of 2016 order thereunder. Above all, it is contended that the revision petitioner tenant himself admitted the fact that he was in possession of a building in the same town. In the said circumstances, the landlord was not under an obligation in law, to establish that said building is reasonably sufficient for the requirement of the tenant and in fact, it was for the tenant to establish that it was not sufficient or suitable for him to conduct the business which he has been carrying on in the tenanted shop room. It is besides such contentions that an argument founded on Order XLI Rule 22 CPC and based on authorities was made to assail the findings under sections 11(3) and 11(4)(v) of the Act. In short, it is contended that an interference with the order of the Appellate Authority in exercise of the revisional jurisdiction is absolutely unwarranted. 5. There can be no doubt with respect to the position that a meticulous analysis of the pleadings is not to be adopted in rent control proceedings. But, that does not mean that proper, -7- R.C.R 313 of 2016 basic pleadings are unnecessary. We will now, proceed to consider the rival contentions. 6. As noticed hereinbefore, the rent control petition was filed seeking eviction of the revision petitioner- tenant under section 11(3), 11(4)(iii) and 11(4)(v) of the Act. Even after suffering adverse concurrent findings under sections 11(3) and 11(4)(v) of the Act, the respondents herein had not chosen to file independent appeal or cross objection in the captioned revision petition and still, they attempted to assail the findings thereon, in their bid to sustain the order of eviction. The learned counsel for the revision petitioner contended that it would not be open to the respondents to challenge the concurrent findings under sections 11(3) and 11(4)(v) of the Act without filing either an independent appeal or a cross objection. The learned counsel for the respondents countered the said contention by placing reliance on two Division Bench decisions of this Court in **Abdul Gafoor M.C v.** -8- R.C.R 313 of 2016 ## **K.Abdurahiman and another** [ **2015 (3) KHC 775]** and **Santha v. I[st] Additional District Judge [1994 (1) KLT 516]** . In **Santha'** s case, it was held:- “Where the landlord is granted relief lesser in nature or quality than that one bargained for, he will have to be deemed a person aggrieved by the order, entitled to file an appeal or revision in so far as the order is against him, even though it is unnecessary to file an appeal or revision.” Thus, a perusal of the decision in **Santha'** s case would reveal that the Division Bench held that where the landlord is granted relief lesser in nature than that one bargained for, he will have to be deemed as a person aggrieved by the order, entitled to file even an appeal or revision in so far as the order is against him, though it is unnecessary to file an appeal or revision. It was held therein further thus:- To illustrate, where eviction is sought on the grounds of arrears of rent, bona fide need and need for reconstruction, and it is allowed on the grounds of arrears of rent and need for reconstruction rejecting the case of bona fide need, an appeal or revision will lie at the -9- R.C.R 313 of 2016 instance of the landlord claiming eviction on the ground of bona fide need as well. We say so because while the order of eviction on the ground of bona fide need gives him an absolute right to possession, eviction on the other two grounds is not absolute. The order on the ground of arrears of rent is liable to be vacated on the tenant depositing the arrears within the time stipulated or the extended time granted by the court. An order passed on the ground of need for reconstruction is again not an absolute one, as the landlord is bound to put the tenant in possession of the building after reconstruction. Other such instances may be visualised. 7. A scanning of the position obtained in this case would reveal that the situation contemplated by the Division Bench in **Santha** 's case (supra) is totally different from the case on hand. In the case on hand, the Rent Control Court dismissed the prayer for eviction on all three distinct grounds viz., under sections 11(3), 11(4)(iii) and 11(4)(v) of the Act. In the appeal, the appellate court confirmed the findings of the Rent Control Court under sections 11(3) and 11(4)(v) of the Act. There can be no doubt with respect to the position that if an order of -10- R.C.R 313 of 2016 eviction was granted either under section 11(3) or under section 11(4)(v) of the Act, it would have given an absolute right of possession to the landlord, subject of course, of further challenge by the adversary. There can be no doubt that when there are concurrent findings in a rent control proceeding, normally, this Court will be very loath to interfere with such findings. Section 18(5) of the Act clearly states that the decision of the Appellate Authority shall not be called in question in any Court of law, except as provided in section 20. Unlike appellate power, the revisional power is limited and narrow and therefore, except on limited grounds, the revisional court cannot re-appreciate the evidence in order to differ from the conclusions of the two authorities below, going by the decision of the Hon'ble Apex Court in **Shaik Joffer Mahmood Shaik v. Kakkani Saheb** reported in **AIR 1975 SC 794.** In the decision in **Mathew v. Shamsuddeen (2002(1) KLJ 530)** , this Court held that interference by the High Court in revisional -11- R.C.R 313 of 2016 jurisdiction especially on concurrent findings is called for only when findings suffer from any inherent defect or are based on inadmissible or irrelevant materials or are perverse. In the decision in **M.S Zahed v. K. Raghavan (AIR 1999 SC 219)** , the Apex Court held that the power in revision could not be equated with the power of the Appellate Court and the revisionary power must fall short of the appellate Court's power of interference with a finding of fact when the finding of fact depends on the credibility of witnesses, there being a conflict of oral evidence of the parties. In short, in view of the authorities on the issue, it can be said that only in exceptional grounds, such findings could be interfered with in exercise of revisionary power. In the case on hand, it could not be said that it was unnecessary for the respondents to file a revision petition against the orders under sections 11(3) and 11(4)(v) of the Act. In **Santha** 's case (supra) itself, the Division Bench referred to the decision of the Hon'ble Apex Court in **Firm Sagarmal** -12- R.C.R 313 of 2016 **Vishnu Bhagwan v. Gauri Shankar [(1988) 4 SCC 719]** , in paragraph 16. It is only worthwhile to extract paragraph 16 in **Santha** 's case (supra) including the extracted portion in **Gauri Shankar** 's case (supra) and the same reads thus:- It is now for us to deal with the decision of the Supreme Court in Firm Sagarmal Vishnu Bhagwan v. Gauri Shankar, (1988) 4 SCC 719. The reliance is on the observations in para. 12 of the judgment, which apart from being obiter, did not expressly deal with the question with which we are faced. The landlord in that case applied for eviction on a number of distinct grounds, none of which found favour with the trial court, resulting in dismissal of the petition for eviction. The first appellate court concurred with the trial court in respect of all grounds except one, namely default in payment of rent, pursuant to which it struck off the tenant's defence. The High Court in second appeal, disagreed with the appellate court on this last finding; and then went on to reappraise the evidence on the other grounds concurrently found against the landlord by both the lower courts, upheld the landlord's claim on those points and dismissed the tenant's appeal. The Supreme Court condemned the exercise undertaken by the High Court, of reappraising the evidence, as - beyond its jurisdiction whether appellate or revisional. Having stated so, the court made -13- R.C.R 313 of 2016 some observations in para.12, in the alternative, that since the landlord had sought eviction on several distinct clauses of action, and those grounds had been rejected by the first two courts and eviction was ordered only one of the grounds, the landlord could not ' s seek to sustain the first appellate court decree on disallowed grounds which had nothing to do with the default in payment of rent. As we mentioned earlier, the court was not specifically dealing with the question now confronting us; besides the observations were only incidental as the court's conclusions in para.11 were sufficinet (sic.sufficient) to allow the tenant's appeal and set aside the order of the High Court. We are therefore of the view that this decision does not have the effect which counsel for the petitioners seeks to put on it. (underline supplied) 8. In view of the factual situation obtained in the case on hand through the evidence, there is no doubt that what is applicable is not the decision in **Santha** 's case (supra) and the decision of the Hon'ble Apex Court in **Firm Sagarmal Vishnu Bhagwan** 's case (supra) is squarely applicable to it. This is evident from a bare reading of paragraph 16, as extracted above -14- R.C.R 313 of 2016 and the factual position obtained in this case. In such circumstances, in the light of the decision in **Firm Sagarmal Vishnu Bhagwan** 's case (supra), the respondents herein who suffered concurrent findings under sections 11(3) and 11(4)(v) of the Act, but decided not to challenge findings on those distinct grounds, can be permitted to argue for sustaining the appellate authority's judgment only on the ground which was decided in their favour viz., under section 11(4)(iii) and not by permitting to put up challenge on the grounds which were concurrently found against them, as well, in the absence of an independent revision or in the absence of a cross objection in the revision filed by the adversary. 9. We will also consider the contention made relying on the decision in **Abdul Gafoor's** case (supra). In that case, this Court considered the scope of power of the Appellate Authority to modify the order of Rent Control Court. In that case, RCP was filed under sections 11(2)(b), 11(3) and 11(4)(i) of the Act -15- R.C.R 313 of 2016 and eviction was ordered only under section 11(4)(i). Before the Appellate Authority, evidently, while defending the appeal filed by the tenant, the landlord attacked the findings of the Rent Control Court against him under section 11(2)(b) and the Appellate authority upheld the landlord's contentions and reversed the findings of the Rent Control Court under section 11(2)(b). In the said circumstances, the Division Bench posed the question as to whether such an interference is permissible in the absence of an appeal filed by the landlord. 10. Obviously, the said question was answered by the Division Bench in **Abdul Gafoor's** case (supra) relying on earlier decisions of this Court in **Ganesh v. Varghese (2005 (1) KLT 282)** and **Susheela v. Balakrishnan (2014 (1) KLT 1004)** . In **Ganesh** 's case, the landlord sought eviction of the tenant under sections 11(2)(b), 11(3) and 11(4)(i), of the Act. The Rent Control Court allowed the petition only under section 11(4)(i) of the Act. In the tenant's appeal before the Appellate -16- R.C.R 313 of 2016 Authority, the landlord contended that the findings of the Rent Control Court under section 11(3) was illegal. The said contention of the landlord was rejected and the findings of the Rent Control Court was confirmed and thereupon, the landlord challenged the order of the Appellate Authority by filing revision petition before this Court. The Division Bench upheld the contention of the landlord under section 11(3) and ordered eviction. Thus, in **Ganesh** 's case, the questions whether the landlord could have, in the absence of an appeal filed by him, challenged the correctness of the findings of the Rent Control Court in an appeal filed by the tenant and whether such a landlord could have filed a further revision before this Court, were considered and answered. The Division Bench held that though Order XLI Rule 22 of the Code of Civil Procedure is not specifically applicable to appeals under section 18 or to revisions under section 20 of the Rent Control Act, the principle contained therein would always apply for Courts to do complete -17- R.C.R 313 of 2016 justice between the parties. Order XLI Rule 22 entitles the party not only to support the findings appealed against but also to state that the findings against him in the Court below in respect of any issue ought to have been in his favour, it was further held. Thereupon, the Division Bench in **Abdul Gafoor** 's case relied on **Ganesh** 's case (supra) as also in **Susheela** 's case (supra) and rejected the contention of the revision petitioner therein and held that even without filing an appeal under section 18 of the Act before the Appellate Authority, the landlord can challenge the findings adverse to him in the appeal and later in a revision preferred under section 20 of the Act. As noticed hereinbefore, the question was whether a non-appealing landlord who raised objection regarding correctness of the Rent Control Court in an appeal filed by the tenant, could maintain a revision petition before the High Court and it was answered in the affirmative. It is evident that in that case despite being a non-appealing party, the landlord was permitted to raise -18- R.C.R 313 of 2016 objections against those grounds which were found against by the Rent Control Court to sustain the order passed in his favour and on being aggrieved by the rejection of such contentions by the Appellate Authority, a revision was filed by the landlord. It is the maintainability of such a revision that was considered by this Court. 11. In the case on hand, situation is entirely different. The respondents herein who were the petitioners in the Rent control Petition suffered dismissal of the petition under all distinct grounds viz., under sections 11(3), 11(4)(iii) and 11(4)(v) of the Act and then, they themselves appealed against the findings on all those grounds before the Appellate Authority. However, on getting reversal of the order under section 11(4)(iii) of the Act, they have abandoned challenge against the concurrent findings under sections 11(3) and 11(4)(v) of the Act. As noticed earlier, an order of eviction under any of the grounds under sections 11(3) and 11(4)(v) of the Act would have given absolute -19- R.C.R 313 of 2016 possession of the demised premises to the landlord as they are distinct grounds. It is thereafter that in this proceedings, besides attempting to get sustained the order of the Appellate Authority passed in their favour under section 11(4)(iii) of the Act, they are attempting to get reversed the concurrent findings against them under sections 11(3) and 11(4)(v) of the Act, without filing revision petition or a cross-objection in the aforesaid revision petition. This position strengthens our view that the question involved in the case on hand falls squarely within the purview of the decision in **Firm Sagarmal Vishnu Bhagwan** 's case (supra). In other words, **Abdul Gafoor's case** (supra) is also inapplicable to the case on hand. Therefore, we unhesitatingly hold that the respondents herein cannot be permitted to attempt to get sustained the impugned judgment of the Appellate Authority by challenging the adverse findings therein under sections 11(3) and 11(4)(v) of the Act. The upshot of the discussion as above is that the respondents could be -20- R.C.R 313 of 2016 permitted to defend the revision petition only by supporting the finding of the Appellate Authority under section 11(4)(iii) of the Act. 12. Having answered the aforesaid point thus, we will now consider the contention of the revision petitioner-tenant that there was no sufficient pleadings in the rent control petition, in respect of the claim under section 11(4)(iii) of the Act for ordering his eviction and further that there is lack of evidence in that regard. As noticed earlier, the respondents herein resisted the said contention by contending that sufficient pleadings are taken in that regard in the rent control petition. Before adverting to the averments in the rent control petition in that regard, it is only apposite to refer to section 11(4)(iii) of the Act to understand what are the necessary basic averments required to seek eviction under section 11(4)(iii) of the Act. Section 11(4)(iii) of the Act reads thus:- _“11 (4)(iii). if the tenant already has in his possession a building or subsequently acquires_ -21- R.C.R 313 of 2016 _possession of or puts up a building, reasonably sufficient for his requirements in the same city, town or village; or"_ 13. In view of the unambiguous expressions in section 11(4)(iii) of the Act, there is absolutely no necessity to probe the issue further to find out the required basic pleadings in a rent control petition, in order to succeed and obtain an order of eviction. Evenafter referring to the position obtained from the relevant provision, we are of the considered view that the question is whether the revision petitioner is justified in raising such a contention in relation to the prayer for eviction under section 11(4)(iii), in this revision petition. We have no hesitation to answer it in the negative for more than one reason. 14. Admittedly, the respondents sought eviction under section 11(4)(iii) as well and the appellate authority ordered thereunder. There can be no doubt with respect to the position that what is admitted need not be proved. The indisputable and admitted position is that the revision petitioner-tenant is -22- R.C.R 313 of 2016 conducting business in sanitary wares, floor tiles, plumbing materials and hardware materials in the name and style ‘Alankar Traders’ in Payyoli Town and the petition schedule shop room is being used only as a godown for the said business. The fact that the demised premise was let out for the purpose of ‘godown’ is not at all in dispute. It is to be noted that during the cross-examination of the first respondent herein, who was examined as PW1, the revision petitioner himself brought it out that the plaint schedule shop room was let out for being used as godown for the business of ‘Alankar Traders’. That apart, while being cross-examined as RW1, the revision petitioner himself deposed to that effect. He would also admit during the crossexamination that plaint schedule shop room is taken on rent for using it as a godown for the aforesaid partnership business and that Noorudheen and Majeed are his business partners. In this appeal also, his case is as follows:- “ The petition schedule shop room is being used as a Godown for eking the livelihood of the Revision Petitioner herein and he -23- R.C.R 313 of 2016 is depending solely on the income derived from the business carried on in the petition schedule shop room.” 15. It is to be noted that the words ‘business’, ‘godown’ and ‘shop’ are not defined under the Act. In the decision in **Goa Urban Co-operative Bank Ltd. v. Noor Mohd. Sheikh Mussa and another [ (2004) 6 SCC 166]** , the Apex Court considered the meaning of the words ‘business’ and ‘godown’. “17.“Business” has been defined in Black's Law Dictionary as "activity or enterprise for gain, benefit, advantage or livelihood". 19. In Aiyar's Law Lexicon the word "godown" is defined as a 'store', a warehouse. Webster's New Twentieth Century Dictionary', Vol. I, 2[nd] Edn. defines the word “godown” to mean “in India, China, Japan, etc. a warehouse”. In the Concise Oxford Dictionary, 4[th] Edn., the meaning of this word is given as “warehouse in part of Asia, esp. India”. 20. “Warehouse” has been defined in Law Lexicon of British India, 1940 Edn., as 'a warehouse is, properly speaking, a building used for the purpose of storing goods imported at a reasonable rent." According to Stroud's Judicial Dictionary, 3[rd] Edn., a warehouse, in common parlance, certainly means “a place where a man stows or keeps his goods which are not immediately wanted for sale'. In -24- R.C.R 313 of 2016 Webster's New Twentieth Century Dictionary, Volume II, 2[nd] Edn., it means "a building where wares or goods are stored, as before being distributed to retailers, a storehouse". Though the term ‘shop’ has received, through judicial interpretation, an expanded meaning, for the purpose of the Act and also the purpose the parties have used the word it has to be understood in the sense it is understood in common parlance or as given in dictionaries. In the common parlance ‘shop’ is a place where activities connected with the buying and selling of goods are carried on. In Black’s Law Dictionary- Ninth Edition, its meaning is given as:- “ A business establishment or place of employment; a factory, office, or other place of business. 16. In this context, it is also relevant to note that the respondents herein have pleaded in the rent control petition that the revision petitioner got building more than sufficient for his requirements and the first respondent made such statement in the affidavit filed in lieu of chief examination. While being -25- R.C.R 313 of 2016 examined as PW1, the first respondent was not cross examined on his version that the revision petitioner/tenant was having a building more than sufficient for his requirements, in the locality. It is also to be noted that not even a suggestion was put to PW1 in respect of such aspects while he was being cross examined. The fact that ‘Alankar Traders’ is a partnership business is an admitted position. The fact that he was its Managing Partner and Noorudheen and Majeed are the other partners are also brought out in evidence. The fact that the three partners jointly acquired another two storied building in Payyoli Town itself, just 500 meters away from the building where ‘Alankar Traders’ is functioning, is also available as evidence. However, the contention of the revision petitioner is that the petition schedule shop room was taken out in his name and that he had not acquired any other building in his individual capacity. Hence, according to him, the acquisition of another building by the partners cannot be equated with acquisition of -26- R.C.R 313 of 2016 another building by him so as to attract the ground for eviction under section 11(4)(iii) of the Act. 17. In the contextual situation, it is relevant to refer to grounds ‘C’, 'D', ‘H’ and 'I' taken by the revision petitioner himself in the captioned Revision Petition. They read thus:- _“ C. The appellate authority ought not to have found that merely because the tenant was in possession of the additional rooms, the landlord would not be entitled for an eviction under Section 11(4) (iii) of the Act.”_ _D.The appellate authority ought to have found that the landlord ought to have proved that the rooms in possession were reasonably sufficient for the tenant to use the same as his godown._ _H. The appellate authority ought to have found that the tenant is not having in exclusive possession of the shop rooms said to have been in his possession and therefore the tenant was not liable to be evicted by invoking Section 11(4) (iii) of the Act._ _I.The appellate authority ought to have found that the evidence let in by the tenant that he was only a co-owner of the other rooms and was only in joint possession of the above rooms with the other co-owners and_ -27- R.C.R 313 of 2016 _therefore the contention raised by the landlords for invoking the Section 11(4)(iii) of the Act was totally unfounded and unsustainable in law.”_ 18. Evidently, the respondents had let in evidence to support their pleadings thereafter, the revision petitioner had also let in evidence to resist the prayers for eviction on the grounds under sections 11(3), 11(4)(iii) and 11(4) (v) of the Act. Obviously, contentions in grounds C’ , 'D' ‘H’ and 'I' appear to have been taken up by the revision petitioner with reference to the evidence on record. Even according to the revision petitioner, as is evident from Ground 'I', the appellate authority ought to have found that the evidence let in by him was to the effect that he was only a co-owner of the other rooms and was only in joint possession of those rooms with the other coowners and therefore, the contention raised by the landlords for invoking section 11(4)(iii) of the Act was totally unfounded and unsustainable in law. Ground 'D' in this revision petition would reveal that the case of the revision petitioner is that the appellate -28- R.C.R 313 of 2016 authority ought to have found that the respondents, the landlords ought to have proved that the rooms in his possession are reasonably sufficient for being used as his godown. Ground ‘H’ is to the effect that the appellate authority ought to have found that he is not in exclusive possession of the rooms said to have been in his possession. In this context, it is to be noted that paragraph 8 of the order in the RCP will show that, at first, the revision petitioner had taken up stand that he had not acquired any building as alleged by the respondents. During his cross-examination, initially, he denied the acquisition of the building, but later he would admit that he was paying building tax for the building bearing No.BL-738. Ext.C1 Commissioner report would reveal that it lies only 500 meters away from the petition schedule room. It is also evident from the order of the Rent Control Court that it clearly held that the respondents herein have discharged the burden by establishing that the appellant got another building in his possession. True that even -29- R.C.R 313 of 2016 thereafter the Rent Control Court went on to consider the question whether the respondents herein had succeeded in establishing the revision petitioner’s exclusive possession of the said building by any arrangements made between its co-owners. Finding its answer in the negative, the Rent Control Court held that the question whether it is reasonably sufficient he was only a co-owner of the other rooms and was only in joint possession of those rooms with the other co-owners for the requirements does not arise for consideration. The Appellate Authority considered the correctness of the findings under section 11(4) (iii) in detail as can be seen from the impugned order. In short, the indisputable position is that he was only a co-owner of the other rooms and was only in joint possession of those rooms with the other co-owners. As already noticed, in the rent control petition, the respondents herein have taken up the contention that the revision petition herein is in possession of a building in Payyoli town itself and it is reasonably sufficient for his -30- R.C.R 313 of 2016 requirement. Hence, the fact that the respondents have not specifically pleaded that the revision petitioner got a building in possession in the Payyoli town as a co-owner cannot be a reason to throw the case of the respondents. That apart, though the Rent Control Court clearly held that the respondents herein have discharged the burden by establishing that the appellant got another building in his possession and therefore, the question is whether the respondents herein had succeeded in establishing the revision petitioner’s exclusive possession of the said building by any arrangements made between its co-owners, the revision petitioner has not challenged the said finding and observation and, virtually, Ground ‘H’ in the appeal would go to show that it is the very case of the revision petitioner. Therefore, the question is whether the Rent Control Court was correct in its approach in formulating and deciding such a question in view of the pleadings and evidence obtained in the case on hand or whether the Appellate Authority has correctly, -31- R.C.R 313 of 2016 framed the point for consideration and decided it in view of the pleadings and evidence on record? 19. The Appellate Authority found that during the cross examination, the appellant therein/the revision petitioner herein, had admitted that the petition schedule shop room was taken on rent for being used it as a godown for his business being carried in the Payyoli Town by name 'Alankar Traders' and that there are three partners including himself, for the said business. On going through the evidence on record, we find that it is the true version of the evidence. It is the said partners viz., the revision petitioner and the two others who have acquired the other building, which is a two storied building, just 500 meters away from the 'Alankar Traders', that too in Payyoli Town itself. This is also indisputable position in view of the evidence on record. The revision petitioner himself would admit that he is a coowner of the said building along with Messrs. Noorudheen and Majeed When that be so, how can the revision petitioner -32- R.C.R 313 of 2016 contend that section 11(4)(iii) of the Act is inapplicable. Therefore, the point for determination is whether the order of the Appellate Authority reversing the order of the Rent Control Court under section 11(4)(iii) of the Act is legally correct or not ? Evidently, the revision petitioner contended that it is not legally correct by relying on the decision of this Court in **Abdussalam v. Bhaskaran [2005 (3) KLT 71]** . While considering the question the factual position of **Abdussalam’s case** is worthy to be noted. The admitted position therein was that the tenant therein became a partner of the firm by name ‘Hema Printing Works’ only after the commencement of the tenancy. That apart, in that case, the tenant was only having a share in the said partnership firm and further that the business conducted in the petition schedule premises belonged to him exclusively. In the case on hand, the factual position is totally different. The evidence given by the revision petitioner himself would reveal the admitted position that the petition schedule -33- R.C.R 313 of 2016 room is taken on rent to be used as a godown for the business of the partnership business by name ‘Alankar Traders’ and the revision petitioner and Messrs. Noorudheen and Majeed are its partners. It is the very same partners, including the revision petitioner who acquired another building in the very same Payyoli Town where they are conducting the business by name ‘Alankar Traders’. Therefore, according to us, the Appellate Authority has very rightly distinguished the decision and held it inapplicable to the facts of the case on hand. The dictum laid down therein is that ‘simply by the acquisition of vacant possession of a building by the partnership firm of which the tenant may be a partner, the tenant does not become liable to be evicted.’ We have no hesitation to hold that the Appellate Authority is correct in holding that the decision in **Abdussalam’s case** (supra) has no application in the factual scenario obtained in the case on hand. 20. The next contention of the revision petitioner is that -34- R.C.R 313 of 2016 the respondents had failed to establish that the rooms in his possession are reasonably sufficient for him to use as his godown. How can the revision petitioner contend that it is for the landlord to prove the same. This cannot be the position of law. In the decision in **Vackachan v. Kurian [2002(1) KLT 716]** , this Court held that when the landlord had established that the tenant is in possession of other buildings the burden is heavy on the tenant to prove that those buildings are not reasonably sufficient for his requirement. In **Parvathi Krishnan v. Joseph @ Jose [2007 (4) KLT 1062]** , this Court held that when the landlord establishes the ingredients of section 11(4)(iii), the burden shifts to the tenant to establish that the alternative building is not reasonably sufficient for his requirement. In the decision in **Kanhangad Co-operative Society Ltd. v. Ganapathy Kamath [1995(1) KLT 681)],** when the landlord established subsequent acquisition of building by the tenant and prima facie, established that the -35- R.C.R 313 of 2016 subsequently acquired building is reasonably sufficient for his requirements and it situates in the same city, town or village, it can only be taken that the landlord has discharged his burden and the onus must shift then on to the tenant to establish otherwise. As noticed earlier, the Rent Control Court did not go into the question whether the subsequently acquired building is reasonably sufficient for the requirements of the revision petitioner herein in view of the finding that there is no evidence on record to show whether the revision petitioner (respondent therein) is in exclusive possession of the building bearing No.BL-738. However, the Appellate Authority has considered the said question whether the subsequently acquired building is reasonably sufficient for the requirements of the revision petitioner herein pursuant to its finding that the landlords have succeeded in establishing that the tenant has acquired a building in the same town. The subsequently acquired building is larger in size than the petition schedule shop room and it is just 500 -36- R.C.R 313 of 2016 metres away from 'Alankar Traders', the business for the purpose of which the petition schedule shop room was taken on rent to be used as godown. In paragraphs 16 and 18 of the impugned order, the Appellate Authority considered the said question. This point is found in favour of the respondents herein. These aspects are not seen disputed, going by the grounds raised in the revision petition. The fact that the revision petitioner and the others have given those rooms on rent to some others cannot be raised against the respondents. The Appellate Authority is certainly empowered to appreciate the evidence on record to arrive at a finding as to whether the subsequently acquired building by the revision petitioner herein/tenant is reasonably sufficient for the requirements of the revision petitioner herein. Since it is a finding based on factual appreciation and it is not perverse in view of the evidence on record, it does not warrant any interference in exercise of the revisional power. -37- R.C.R 313 of 2016 For the foregoing reasons, we find absolutely no reason to interfere with the impugned order passed in R.C.A.No.113/2014. Accordingly, the R.C.R is dismissed. The learned counsel for the petitioner made a submission that a period of one year may be given for vacating the premises. We heard the learned counsel for the respondents also in the matter. On consideration of the rival submissions four months time is granted to the revision petitioner for vacating the premises. Sd/- **C.T. RAVIKUMAR JUDGE** sd/- **MARY JOSEPH JUDGE** TKS