Govindan Kanhirankalath v. Donsy Rajeeve & Sheeba Manoj

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL &** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 28TH DAY OF JUNE 2018 / 7TH ASHADHA, 1940** **RCRev..No. 156 of 2018** **AGAINST THE JUDGMENT IN RCA 155/2014 of ADDL. DISTRICT COURT, VADAKARA DATED 08-12-2016 AGAINST THE ORDER IN RCP 55/2013 of MUNSIFF COURT, NADAPURAM DATED 22-09-2014** ## **REVISION PETITIONER(S)/APPELLANT/RESPONDENT** **GOVINDAN KANHIRANKALATH, S/O. KANNAN, AGED 67 YEARS,TRADER, PRASANTHI (H), DARSANA TEXTILES, THOTTILPALAM, KAVILUMPARA AMSOM, VATAKARA TALUK, PIN-673 513.** **BY ADVS.SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA** ## **RESPONDENT(S)/RESPONDENTS/PETITIONERS:** **1. DONSY RAJEEVE,** **W/O. RAJEEV, D/O. EBRAHIM, AGED 45 YEARS, HOUSE WIFE, KURICHYANIYIL (H),CHAPPANTHOTTAM, KAVILUMPARA AMSOM DESOM, PIN-673 513.** ## **2. SHEEBA MANOJ,** **W/O. MANOJ, D/O. JOSEPH, AGED 46 YEARS, HOUSE WIFE, KURICHIYANIYIL (H), CHAPPANTHOTTAM, KAVILUMPARA AMSOM, DESOM, PIN- 673 513.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 28-06-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **K. HARILAL & SHIRCY.V., JJ.** ------------------------------------------------ R.C.R.No.156 of 2018 ---------------------------------------------Dated this the 28[th] day of June, 2018 ## **ORDER** ## **K.Harilal, J.** The revision petitioner is the respondent in R.C.P.No.55/2013 of the Rent Control Court, Nadapuram as well as the appellant in R.C.A.No.155/2014 of the Rent Control Appellate Authority, Vatakara. He is a tenant under the respondents landlords. The respondents filed the said Rent Control Petition seeking an order of eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control Act, 1965, (hereinafter referred to as the “Act” for short), on the ground that they bonafide need the petition schedule building for starting a Beauty Parlour-cum-Fancy Centre and Ready-made shop. The revision petitioner herein objected the said application contending that the need projected in the application is not bonafide. The Rent Control Court, after considering the rival pleas and the evidence on record, passed an order of eviction against the revision petitioner herein under Section 11(3) of the Act. Aggrieved by the said order though the revision petitioner has filed the aforesaid Rent Control R.C.R.No.156/2018 2 Appeal before the Appellate Authority, the Appellate Authority also, after re-appreciating the evidence on record concurred with the findings of the Rent Control Court and dismissed the appeal. Thus, the legality and correctness of the concurrent findings of the court below whereby an order of eviction has been granted under Section 11(3) of the Act are assailed in this revision petition. 2. Heard the learned counsel for the revision petitioner. The scope and extent of consideration under Section 20 of the Act are confined to legality and propriety of the findings of the courts below only and there is no scope for re-appreciation of evidence on factual findings, unless the said findings are found perverse. Coming to the concurrent findings of the court below, it is the case of the respondents that they have purchased the plaint schedule building by virtue of Ext.A2 sale deed and they _bonafide_ need the petition schedule building for starting Beauty Parlour-cum-Fancy Centre and Ready-made shop. They claimed that they have basic knowledge and acquaintance with the said business. The first respondent has passed the Beautician course and she is holding a certificate for the same. The second respondent has studied upto Pre-degree. The petition schedule building is R.C.R.No.156/2018 3 located in an ideal place suitable for housing such a business and they have financial capacity to start the said business. They have no other place of their own to start the said business. Even though their husbands are having buildings in the same locality, no buildings are suitable for the said business as no rooms are facing towards the road. The revision petitioner is not depending upon the income from the scheduled business and several other vacant rooms are available in the locality. On the aforesaid premises, they sought for an order of eviction under Section 11(3) of the Act. The revision petitioner resisted the said application contending that the need projected in the petition is not _bonafide_ and it is only a ruse for eviction. The sale deed in favour of the respondents was executed with a _malafide_ intention to evict the revision petitioner from the petition schedule building. The revision petitioner is depending on the income derived from the business in the petition schedule building and no other suitable vacant buildings are available in the locality to shift his business from the petition schedule building. On the aforesaid rival pleas, both the parties went to trial and adduced evidence. The evidence consists of the oral testimony of PW1 and RW1 and the documentary evidence R.C.R.No.156/2018 4 Exts.A1 to A3 and B1 to B6 series and Court Exhibits-X1 to X8. 3. Though this revision petition has been filed on various grounds, the learned counsel for the revision petitioner mainly point out that the courts below concurrently failed to appreciate the _malafide_ intention of the respondents to evict the revision petitioner from the petition schedule building. Ext.A2 sale deed was executed collusively by the earlier landlord, who is none other than the mother-in-law of the respondents. Earlier, the mother-in-law had filed R.C.P.No.41/93 against the revision petitioner herein and his brother and that RCP was settled and lease was changed to the name of the revision petitioner. Subsequently, the mother-in-law had filed R.C.P.No.79/2005 against one Mr. Madhu for eviction of an adjacent room and obtained an order of eviction. Subsequently, the same room was entrusted to Madhu. The evidence of PW1 would disclose that the above said room was evicted for starting a business of her husband. But, subsequently, the said room was given to the said Madhu and her husband has not started any business as alleged in the said earlier Rent Control Petition. According to the learned counsel for the revision petitioner, in view of the previous litigations between the mother-in-law and the revision R.C.R.No.156/2018 5 petitioner and his brother and one Mr. Madhu on the ground of _bonafide_ needs, it could be presumed that the present petition for an order of eviction for the _bonafide_ need of the daughterin-laws is also a ruse for eviction only. The courts below have not considered the aforesaid previous litigations in the backdrop of the present petition. 4. Going by the impugned order passed by the Appellate Authority, it could be seen that, in paragraphs 13 and 14, the Appellate Authority has elaborately considered the aforesaid points raised by the learned counsel for the revision petitioner and got it rejected. It is true that the petition schedule buildings belong to the respondents by virtue of Ext.A2 assignment deed executed by one Claramma, the mother-in-law of the respondents. Ext.A2 was executed in the year 2011, after the death of the husband of Claramma. Here, the case of the revision petitioner is that Ext.A2 is a sham document and not supported with the consideration and it was created with an intention to evict the tenant. PW1 was cross examined on that line. After evaluating the oral evidence of PW1, the courts below concurrently found that PW1 has clearly deposed the circumstances under which the petition schedule building was transferred in favour of the respondents by R.C.R.No.156/2018 6 Claramma. It is evident from Ext.A2 that the said transfer of the property including the petition schedule building was effected for a consideration of Rs.1 lakh and the evidence of PW1 disclosed that Claramma was in need of money during the time of execution and it was executed after the death of her husband. Thus, PW1 has given evidence to prove their case that the transfer of the property including the petitioner schedule building under Ext.A2 was a genuine transaction for consideration. We do not find any reason to interfere with the concurrent findings of the courts below as regards the genuineness of transfer of petition schedule building under Ext.A2. We do not find any kind of perversity in the said finding. 5. R.C.P.No.41/1993 was filed against the revision petitioner and his brother. Admittedly, the said Rent Control Petition was settled by changing the entrustment in the name of the revision petitioner from his brother. It is pertinent to note that it is evidenced by Exts.X6 to X8 that the said proceeding was initiated by Claramma against the revision petitioner and his brother under Section 11(4)(i) of the Act on the ground that the original tenant, the brother of the revision petitioner had subleased the premises to the revision R.C.R.No.156/2018 7 petitioner. It is true that the said Rent Control Petition was settled and the room was entrusted to the revision petitioner in the year 1994. As rightly observed by the courts below, the said settlement is of no consequence at all in the instant case as the settlement was with the earlier landlord. At this juncture, it is to be remembered that the previous litigation on any ground including Section 11(3) of the Act is not at all fatal to the claim for eviction on _bonafide_ need if the subsequent petition is filed under the change of circumstances. The Appellate Authority relied on the decision of this Court in _**Basheer**_ v. _**Ramani Gopalan**_ (2014(1) KHC 436(DB)), wherein this Court held that _“it cannot be said that merely because of an earlier occasion an eviction petition was filed, the plea for occupation under 11(3) of the Act as of now is effected in view of change of circumstance brought in evidence by landlord.”_ 6. Similarly, R.C.P.No.79/2005 was also filed by the earlier landlord against one Madhu seeking an order of eviction under Section 11(3)of the Act on the ground that she _bonafide_ needs building for her husband. Subsequently, her husband died and she again entrusted the petition schedule building to Madhu. The said litigation or subsequent change of entrustment is of no consequence at all in the instant case as R.C.R.No.156/2018 8 the respondents are the subsequent purchasers who have no involvement in the earlier transactions. We are of the opinion that while considering the _bonafides_ of the need projected by the respondents, the relationship between the earlier landlord and the respondents is of no consequence at all as the respondents are _bonafide_ purchasers of the petition schedule building, under Ext.A2. With the above analysis, we find that the courts below have meticulously considered the previous litigations under the Act between the previous landlord and her tenants and rightly held that those litigations are of no consequence at all in the instant case. We do not find any illegality or impropriety in any of the findings, whereby the courts below rejected the aforesaid point raised by the revision petitioner before the courts below. Hence this revision petition fails. 7. The learned counsel for the revision petitioner sought for some time to vacate the tenanted premises. 8. Having regard to the facts and circumstances of the case and submission at the bar, the revision petitioner is given six months' time from today to vacate the petition schedule building on the following conditions: (i) The respondent in the Rent Control Petition R.C.R.No.156/2018 9 shall file an affidavit within a period of two weeks from the date of receipt of a copy of this order, expressing an unconditional undertaking that the petition schedule building will be vacated within six months. (ii) The respondent/tenant shall deposit the entire arrear of rent, if any, in the Rent Control Court or Execution Court, as the case may be, within a period of three weeks from the date of receipt of a copy of this order and shall continue to pay rent without default. (iii) In the event of failure to comply any of the conditions stated above, the time granted to vacate the premises will stand automatically repealed and the petitioners/landlords will be at liberty to proceed with the execution of the eviction order. This Rent Control Revision petition is devoid of any merits and dismissed accordingly. sd/- ## **K.HARILAL, JUDGE.** sd/- ## **SHIRCY.V., JUDGE.** acd