Haridasan and Dinesh Kumar v. Aji Raj

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **WEDNESDAY, THE 7TH DAY OF AUGUST 2013/16TH SRAVANA, 1935** **RCRev..No. 43 of 2013** **-------------------------** **AGAINST THE ORDER/JUDGMENT IN RCA NO.10/2011 OF RENT CONTROL APPELLATE AUTHORITY, MAVELIKARA DATED 06-11-2012** **.....** **AGAINST THE ORDER/JUDGMENT IN RCP NO.3/2007 OF RENT CONTROLLER, KAYAMKULAM DATED 27-03-2011** **....** ## **PETITIONER(S)/APPELLANTS/COUNTER PETITIONERS:** **----------------------------------------------------------------------------------** **1. HARIDASAN, S/O.NARAYANAN, RESIDING AT PAPPADIYIL VEEDU, FROM KOLLASSERIL VEEDU, PATHIYOOR KIZHAKKUM MURI, PATHIYOOR, KAYAMKULAM.** ## **2. DINESH KUMAR, S/O.HARIDASAN, -DO- -DO-** **BY ADVS.SRI.R.RAJASEKHARAN PILLAI SMT.SABINA JAYAN** ## **RESPONDENT(S)/RESPONDENT/PETITIONER:** **------------------------------------------------------------------------** **AJI RAJ, S/O.RAGHAVAN, RESIDING AT CHAITHANYA, ERUVA MURI, PATHIYOOR VILLAGE, KAYAMKULAM REPRESENTED BY THE POWER OF ATTORNEY HOLDER ASHA AJI RAJ, W/O.AJI RAJ, -DO- -DO-** ## **BY ADV. SRI.BECHU KURIAN THOMAS** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 07-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **R.C.REV.NO.43/2013** ## **APPENDIX** ## **PETITIONER'S ANNEXUES:** **ANNEX.1: COPY OF THE RENT DEED DTD. 11/01/1967. ANNEX.II: COPY OF THE REPORT DTD. 2/03/2006 OF THE REVENUE INSPECTOR.** ## **RESPONDENT'S ANNEXURES: N I L** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## **T.R.RAMACHANDRAN NAIR & A.V. RAMAKRISHNA PILLAI, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **R.C.R.No. 43 of 2013** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 7TH DAY OF AUGUST, 2013** ## **O R D E R** ## Ramachandran Nair, J. The tenants are in revision and the petition schedule room is part of a building having one more room, viz. room No.62. The schedule room herein is room No.61. The landlord purchased the building along with the appertenant land on 23.8.2004 by deed No.1519. 2. The landlord sought eviction on three grounds, viz. under Sections 11(2)(b), 11(3) and 11(4)(iii) of the Kerala Buildings (Lease & Rent Control) Act (for short 'the Act'). The Rent Control Court allowed eviction under Sections 11(3) and 11(4)(iii) of the Act and the Appellate Authority concurred with the same and further ordered eviction under Section 11(2)(b) of the Act also. 3. We heard learned counsel for the petitioners, Shri R. Rajasekharan Pillai and Shri Bechu Kurian Thomas, learned counsel for the respondent. 4. Learned counsel for the petitioners, Shri R. Rajasekharan Pillai submitted that the very approach made by the Rent Control Court and the RCR No.43/2013 -2- Appellate Authority on the plea raised by the tenants claiming the benefit under Section 106 of the Kerala Land Reforms Act is not correct. According to the learned counsel, no specific issue was raised on this plea by the Rent Control Court. Our attention was invited to the pleadings of the tenants as well as the findings rendered by the Rent Control Court and the Appellate Authority. 5. The landlord purchased the property from Smt. Vijayalakshmi Pillai under Ext.A8 document. As far as the plea under Section 11(2)(b) of the Act is concerned, arrears of rent is claimed from November 2004 onwards. The plea raised by the landlord with regard to the same was that the tenants had paid three months rent and then defaulted payment. 6. As far as the above plea is concerned, the Rent Control Court found that even though in the petition, the claim is raised from November 2004 onwards, in the notice Ext.A2 issued by the landlord it was specified that the rent is in arrears from the year 2006. No rent deed was produced. Accordingly, it was found that the landlord is not entitled for eviction under Section 11(2)(b) of the Act, as the rate of admitted rent cannot be determined in the absence of a rent deed. The Appellate Authority reversed the said finding by pointing out that the rent is actually in arrears from RCR No.43/2013 -3- November 2004 at the rate of Rs.500/- per month. The Appellate Authority was of the view that “when there is no specific denial in answer to the allegation that, the agreed rate of rent was Rs.500/- per month and except the outright denial of the relationship as found above, it is only probable to believe that the rent is in arrears from November, 2004 onwards.” 7. In fact, the plea raised by the tenants as regards the claim for rent by the landlord, as evident from para 4 of the objection, is that they were paying yearly pattom (rent) to Shri Kesava Pillai, who was the original owner of the property and after his death, there was no occasion for them to pay pattom and nobody has demanded pattom also. Therefore, it is not a case where the tenant has admitted the rate of rent at Rs.500/- . No rent deed has been produced in evidence and therefore actually with regard to the rate of rent claimed also, there is no positive evidence. In that view of the matter, it cannot be said that the order passed by the Appellate Authority directing eviction under Section 11(2)(b) of the Act is correct. Therefore, we vacate the same. 8. The plea under Section 11(3) of the Act is raised by the landlord in the following circumstances. The landlord is having some business abroad and he wants to start a business in supermarket in the petition schedule RCR No.43/2013 -4- building, as the situation in the foreign countries has become worse to conduct a business. The above plea was accepted by both the authorities, after an analysis of the evidence, viz. that of P.Ws.1 and 2. We will come to the details of the contentions later. 9. With regard to the plea under Section 11(4)(iii) of the Act, the tenants are denying the plea that D.W.1 has another building close-by which is having 8 rooms. The finding on this plea is against the tenants. It was also found that in the ground floor three rooms are remaining vacant. We will advert to this fact in the later part of the order. 10. The main contention taken by the learned counsel for petitioners is under Section 106 of the Kerala Land Reforms Act. The plea raised is that as per an oral lease five cents of land was put in possession by the then landlord Kesava Pillai. After getting possession of the plot, the petitioners constructed a small shed for conducting a teashop. In 1967 a lease deed was executed, wherein the tenants were allowed to construct a building for commercial purposes and pattom was fixed at Rs.100/- per year. Learned counsel submitted that it is not a case of denial of landlord tenant relationship but the claim is one of fixity of tenure. Therefore, a proper issue should have been framed by the Rent Control Court for examining the RCR No.43/2013 -5- said contention. It is submitted that both the authorities have approached the question without examining the claim for fixity of tenure in its true perspective and therefore the matter requires a remand. 11. Shri Bechu Kurian Thomas, learned counsel for the respondent submitted that going by the second proviso to Section 11(1) of the Act, the Rent Control Court should be satisfied as to whether the claim is bonafide or not. Herein, even in the evidence, the tenant admitted that he was born in 1947 and therefore in the year 1960 he will be only 13 years of age, which fact was considered by both the authorities to find that the claim of oral lease cannot be probable. It is also submitted that the document relied upon by the tenant, viz. Ext.B1 was not marked in evidence as it was only a photo copy. It is submitted that there is no iota of evidence to support the plea of fixity of tenure under Section 106 of the Kerala Land Reforms Act and both the authorities have passed reasoned orders in the matter. 12. Shri Rajasekharan Pillai, learned counsel for the petitioners points out that the date of Annexure A1 produced along with the Revision Petition, which is the document produced before the Rent Control Court, will enable the petitioners to claim the benefit under Section 106 of the Kerala Land Reforms Act as the same is before the crucial date, viz. RCR No.43/2013 -6- ## 20.5.1967 ( the document is being dated 11.1.1967). 13. The Rent Control Court has raised four points for consideration and point No.1 is: Whether there exist landlord-tenant relationship between the petitioner and the counter petitioners. In fact, the order in S.M.No.78/2006 which is a proceeding initiated under Section 72-C of the Kerala Land Reforms Act was also placed on record as Ext.A5. Going by the same, the claim of the tenants was for fixity as provided under Section 72-B of the K.L.R. Act and the Land Tribunal rejected the claim for want of evidence. It is submitted by the learned counsel for the petitioners that the said matter is pending in appeal before the Land Reforms Appellate Authority. As far as the plea under Section 106 of the K.L.R. Act is concerned, the Rent Control Court found that the onus to prove the same is on the tenants and apart from a mere statement that Shri Kesava Pillai had let out the property on the basis of an oral pattom, there is no documentary evidence to prove the same. The photo copy of the deed styled as pattom agreement, was not marked in evidence and the tenant failed to lay the foundation for its reception also. The plea raised by the tenants that they had constructed a building, was rejected on the finding that Ext.A7 assessment register of the Municipality shows that the property and the RCR No.43/2013 -7- building are in the ownership of the first petitioner/landlord and D.W.1, viz. the first petitioner herein is the tenant. It also showed that the original owner was Kesava Pillai and thereafter Smt. Vijayalakshmi Pillai, the vendor of the landlord. The Rent Control Court observed that the status of D.W.1 as seen from Ext.A7 is that of a tenant in shop NO.61. 14. Heavy reliance was placed by the Rent Control Court on the fact that in cross examination the tenant admitted that he was born in 1947 and therefore going by the year of transaction, viz. 1960, he will be only of the age of 13. It is in evidence that the original owner, Shri Kesava Pillai was an officer in Government Secretariat and normally he would not have allowed a boy, aged 13 years to take 5 cents of property for pattom. Regarding the age of the first petitioner tenant, learned counsel for the petitioners explained that going by the age in the written statement he was 59 years and therefore being an illiterate person, the statement regarding his year of birth in the deposition has no consequence. But as rightly pointed out by the learned counsel for the respondent, since the tenant has stated that he was born in 1947, there was nothing wrong in the court accepting the same and concluding that he will be only of the age of 13 as on 1960. Apart from Ext.A7, Exts. A10 and A11 were also before the Rent Control RCR No.43/2013 -8- Court which showed that building tax was being paid by P.W.2 and Smt. Vijayalakshmi Pillai, before P.W.2. 15. Even though vehement arguments have been raised by learned counsel for the petitioners to grant a further opportunity to the petitioners to adduce evidence in the matter, we find from the evidence adduced before the Rent Control Court that the same was sufficient to enable the Rent Control Court to find out whether the claim is bonafide or not. All opportunities have been provided to adduce evidence also. The burden was heavy on the tenants to prove that they have got a right to fixity of tenure under Section 106 of the K.L.R. Act. The oral evidence of D.W.1 was read through by the learned counsel for the respondent. We find from the deposition of D.W.1 that he has failed to establish anything by way of cogent evidence to show that he had constructed the building also. This is a case where the tenant miserably failed in establishing a claim under Section 106 of the K.L.R. Act. The Appellate Authority has considered the matter in detail, in the light of the legal position that as far as a claim under Section 106 of the K.L.R. Act is concerned, the Rent Control Court and the Appellate Authority can consider the same without referring the issue to the concerned Land Tribunal in the light of the dictum laid down by a Division RCR No.43/2013 -9- Bench of this Court in **Aravindaksha Menon v. Ali Akbar** (2011 (2) KLT 121). 16. We find from the judgment of the Appellate Authority that from para 6 onwards there is a detailed consideration of the issue. The Appellate Authority was of the view that the order passed in S.M.No.78/2006 also negatives the plea of the tenant. Even though the order passed in S.M.No.78/2006 is pending in appeal, the question before the Rent Control Court and the Appellate Authority was actually whether the claim would be termed as bonafide. We find that there is a proper consideration of the matter by the Appellate Authority also. Therefore, we are not inclined to accept the plea of the learned counsel for the petitioners that the matter will have to be remanded to the Rent Control Court for adducing fresh evidence. 17. We find from the proceedings that the plea under Sections 11(3) and 11(4)(iii) of the Act have been accepted by the authorities below in the light of the evidence adduced by the landlord, wherein P.Ws.1 and 2 have been examined. As far as the bonafide need is concerned, it cannot be said that the need projected is not genuine, as the landlord wants to establish a business of his own after purchase of a building. 18. The crucial finding regarding Section 11(4)(iii) also has gone RCR No.43/2013 -10- against the tenants, which according to us, is on appreciation of cogent evidence. It is in evidence that DW.1 is having a separate building having 8 rooms of his own very near to the petition schedule building, wherein three shop rooms are remaining vacant also. Therefore, the ingredients under Section 11(4)(iii) are squarely attracted to the facts of the case. 19. Lastly, the Appellate Authority, in para 10, has considered the two limbs of the second proviso to Section 11(3) of the Act and the position has been analysed in the light of the various decisions of this Court with regard to the burden of proof also. It was held that the burden is on the tenant and there is total absence of any proof and DW.1 admitted having his own building with vacant rooms. With regard to the income from the business also, no evidence was let in. Sitting in revision, we will not be justified in interfering with the said finding. For all these reasons, we confirm the orders passed by the courts below and dismiss the revision petition. Having regard to the pleas raised, we grant time till 31.1.2014 to the petitioners to vacate the petition schedule building on the following conditions: i) An affidavit will be filed by the petitioners before the Rent RCR No.43/2013 -11- Control Court within one month from today, undertaking to vacate the premises within the time stipulated by this Court. ii) The petitioners will continue to pay at the rate of Rs.500/- per month for the use and occupation of the building, reckoning from the date of this order itself, till vacant peaceful possession is handed over to the respondents; If any of the above conditions are not satisfied, the petitioners will not get the benefit of this order. No costs. **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **(A.V. RAMAKRISHNA PILLAI, JUDGE)** ## **kav/**