## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN**
**THURSDAY, THE 19TH DAY OF OCTOBER 2017/27TH ASWINA, 1939**
**RCRev..No. 46 of 2016 ()**
**-------------------------**
## **AGAINST THE JUDGMENT IN RCA 130/2012 of ADDL.D.C, COURT OF RENT CONTROL APPELLATE AUTHORITY, THALASSERY**
**AGAINST THE ORDER IN RCP 151/2008 of MUNSIFF COURT, THALASSERY**
## **REVISION PETITIONERS/APPELLANTS/RESPONDENTS:**
**------------------------------------------------------------------**
## **1. CHEERAPURATH HARIS, AGED 62 YEARS**
- **S/O ABDUL KHADER, RESIDING AT UMHAIS, THALASSERY AMSOM DESOM, NEAR GOVT. GIRLS HIGH SCHOOL, THALASSERY TALUK.**
## **2. INDIAN UNION MUSLIM LEAGUE,**
**KAYYATH WARD, COMMITTEE PRESIDENT C. HARIS, THALASSERY AMSOM, VADIKKAKAM, DESOM, THALASSERY TALUK.**
**BY ADVS.SRI.C.KHALID SRI.T.V.MAMMOOTTY SRI.V.P.MAHAMMOOD SRI.N.A.JOSEPH SRI.K.P.MOHAMED SHAFI SMT.K.S.HASEENA SRI.PHIJO PRADEESH PHILIP SMT.K.REEHA KHADER SMT.K.K.NESNA**
## **RESPONDENT/RESPONDENT/PETITIONER:**
**------------------------------------**
## **BARAL THAYIPRATH MUHAMMED BASHEER**
**AGED 62 YEARS, S/O ABDUL RAHIMAN, RESIDING AT FALAH, THIRUVANGAD, AMSOM DESOM, THALASSERY TALUK, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER PUTHIYAPURAYIL CHATHODI SHABIDA, AGED 47 YEARS, W/O MUHAMMED BASHEER,**
**NO OCCUPATION, RESIDING AT FALAH, THIRUVANGAD AMSOM DESOM, THALASSERY TALUK-670101.**
**BY ADV. SRI.R..PARTHASARATHY [CAVEATOR] BY ADV. SRI.R.PARTHASARATHY BY ADV. SRI.RAJESH V.NAIR**
**THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 19-102017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
## **K. HARILAL, & ANU SIVARAMAN, JJ.**
## **-------------------------------------------------RCR No.46 OF 2016**
**--------------------------------------Dated this the 19[th] day of October, 2017**
## **J U D G M E N T**
## **K. HARILAL.J.**
This revision petition has been filed against the impugned judgment passed in R.C.A No.130/2012 on the files of the Rent Control Appellate Authority (Additional District Judge-I, Thalassery). According to the petitioner, the petition schedule building has been rented out to the first respondent for imparting religious education, by Exhibit A1 Kachit; but in contravention of the terms of the said Kachit, the 1[st] respondent has subleased the petition schedule building to the 2[nd ] respondent. Now the party office of the 2[nd] respondent is functioning in the building. Exclusive possession of the petition schedule building was hand over to the 2[nd] respondent by the 1[st] respondent without the consent of the petitioner. So the 1[st] respondent is liable to be evicted from the petition schedule building under Section 11(4)(i) of the
RCR No.46 OF 2016
2
Kerala Buildings (Lease and Rent Control) Act (Herein after referred to as 'the Act).
2. The respondent resisted the said claim under Section 11(4)(i) of the Act contending that he has not transfered possession of the petition schedule building to the 2[nd] respondent. According to him, the petition schedule building is in the possession of the 1[st ] respondent himself as President of the Indian Union Muslim League. So also it is contended that since he is the President of the 2[nd] respondent Political Party, he has the right to use the petition schedule building as the office of the 2[nd] respondent political party.
3. On the aforesaid rival contentions, both the parties adduced evidence which consists of the oral testimony of PW1, RW1 and Exhibits A1 to A4 and C1. After considering the aforesaid evidence on records, the Rent Control Court allowed the petition under Section 4(i) of the Act and granted an order of eviction to the petitioner. Though, he had preferred an appeal the Appellate Authority also confirmed the findings of the Rent Control Court and dismissed the appeal. Thus, the legality and propriety of the
RCR No.46 OF 2016 3
concurrent findings of the court below under Section 4(1) of the Act have come up in revision.
4. Heard the learned counsel for the respondent/tenant. The sum and substance of the argument advanced by the learned counsel for the petitioner is that since the 1[st] respondent is the president of the 2[nd] respondent political party, the 1[st] respondent has the right to use the petition schedule building for the functioning of the 2[nd] respondent political party also.
5. The landlord tenant relationship between the petitioner and the 1[st] respondent is not disputed. Similarly, it stands admitted that the tenancy had commenced under Exhibit A1 Kachit and the Kachit was executed by the 1[st] respondent in his personal capacity and in the Kacheet, it is specifically mentioned that the petition schedule shop room was rent out to the first respondent for conducting religious classes.
6. The initial burden of proof under Section 11 4(i) of the Act is on the landlord. But this Court in the decision in **1999(3) KLT 502 (Armughan vs. Rajasekharan)** held that the initial burden of proof would stand discharged if the
RCR No.46 OF 2016 4
physical possession of the tenanted premises by the Sub lessee is proved. Then the burden shifts to the tenant to prove the exact relationship between himself and the person in occupation and to rebut the presumption of sublease. In the instant case, in order to substantiate the alleged sublease, the petitioner was examined as PW1 and a Commission was appointed to ascertain the occupancy status and possession of the petition schedule building. The petitioner has testified the transfer of possession to the 2[nd] respondent and the occupancy thereof by the 2[nd] respondent without his consent. The Commissioner in Exhibit C1 report specifically stated that at the time of his inspection, flags of the 2[nd] respondent political party were also seen in front of the petition schedule building. So also it is reported that a board stating 'C.H Center' was also placed in front of the petition schedule building. Obviously, it could be reasonably presumed from the report that the 2[nd] respondent political party has been in occupation of the petition schedule building. When RW1 was examined, he admitted that the rent for the building is paid by the President of Indian Union Muslim League party but there is no evidence to prove that
RCR No.46 OF 2016 5
the petitioner has received rent from the 2[nd] respondent political party. Thus, the oral evidence of PW1 coupled with Exhibit C1 report would prove that the 2[nd] respondent political party is in occupation of the petition schedule building, without the consent of the petitioner/landlord. But the 1[st] respondent has no case that the 2[nd] respondent political party is not in occupation of the tenanted premises and it is his case that he being the president of the 2[nd] respondent political party, has the right to use the tenanted premises as office of the 2[nd] respondent political party.
7. It is to be borne in mind that Exhibit A1 rent deed was executed by the 1[st] respondent in his personal capacity. Indisputably, the 2[nd] respondent, political party has a different and distinct legal entity recognized by Election Commission. Therefore, even if the first respondent is the President of the 2[nd] respondent political party, the occupation of the 2[nd] respondent political party cannot be deemed to be the occupation of the first respondent to whom the petitioner has rented out the petition schedule building. That apart since the shop room was taken on rent and the tenancy has commenced under Exhibit A1 rent deed
RCR No.46 OF 2016 6
executed by the 1[st] respondent in his personal capacity, the 2[nd] respondent political party has no right to use it under the guise that the first respondent is the President of the 2[nd] respondent political party. The rights and liabilities of both parties flow from the terms of Ext.A1 rent deed only. So the 1[st] respondent cannot use it as the office of the 2[nd] respondent political party, on the reason that he is the president of the 2[nd] respondent political party. Thus, sublease is clearly manifested in the admitted evidence adduced by the 1[st] respondent himself. In the above analysis, we do not find any kind of illegality or impropriety or irregularity in any of the findings whereby the courts below concurrently passed an order of eviction under Section 11(4) of the Act. This revision petition is dismissed.
The learned counsel for the petitioner prayed for 6 months time to surrender vacant possession of the petition schedule building. Having regard to the facts and circumstances of the case, the petitioner is given two months time to vacate the tenanted premises provided that the petitioner shall file an affidavit expressing an undertaking that he will surrender the petition schedule building within
RCR No.46 OF 2016
7
two months before the Rent Control Court within a period of two weeks from the date of receipt of the copy of this order.
Sd/-
**K. HARILAL, JUDGE**
Sd/-
**ANU SIVARAMAN, JUDGE**
sab
