K. Gangadharan Nair v. Thaykkatt Parambil Reena

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.HARIPRASAD & THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 19TH DAY OF MARCH 2021 / 28TH PHALGUNA, 1942 RCRev..No.448 OF 2019 AGAINST THE JUDGMENT IN RCA NO.3/2019 DATED 13-08-2019 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY/ADDITIONAL DISTRICT COURTIV, KOZHIKODE AGAINST THE ORDER DATED 30.11.2018 IN RCP NO.5/2016 ON THE FILE OF THE RENT CONTROLLER/MUNSIFF, KOYILANDY ## REVISION PETITIONER/RESPONDENT/RESPONDENT: K.GANGADHARAN NAIR AGED 58 YEARS S/O. NARAYANI AMMA, M/S. KALLANKI HARDWARES, MAIN ROAD, PANTHALYINI AMSOM AND DESOM, KOYILANDY POST, KOYILANDY TALUK-673305., KOZHIKODE DISTRICT. BY ADVS. SRI.K.RAKESH ROSHAN SMT.THUSHARA.V ## RESPONDENT/APPELLANT/PETITIONER: THAYKKATT PARAMBIL REENA AGED 38 YEARS W/O. BABURAJ, SWASTHAM, KANDIKUNIYIL HOUSE, PANTHALAYINI VILLAGE, POST PERUVATTOOR, KOYILANDY TALUK, REP BY CONSTITUTED POWER OF ATTORNEY HOLDER, BABY N.K, W/O. GANGADHARAN, KANDIKUNIYIL HOUSE, PANTHALYINI VILLAGE, POST PERUVATTOOR, KOYILANDY TALUK, KOZHIKODE DISTRICT. R1 BY ADV. SRI.V.V.SURENDRAN R1 BY ADV. SRI.P.A.HARISH THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 19.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.C.R.No.448 of 2019 2 ## O R D E R Dated this the 19th day of March 2021 … Ziyad Rahman A.A., J. This Rent Control Revision is filed by the tenant, challenging the order of eviction passed by the Rent Control Appellate Authority, Kozhikode in R.C.A. No.3/2019, which in turn was filed against the order passed in R.C.P.No.05/2016 of Rent Control Court, Koyilandy. The Rent Control Petition was filed by the respondent herein seeking eviction of the Revision Petitioner/tenant under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1956 (hereinafter referred to as ‘the Act’). 2. The averments in the Rent Control Petition are as follows: The Petition schedule building was originally leased out in favour of the Revision Petitioner/tenant by the mother-in-law of the respondent/landlord named Narayani in the year, 1985. The Revision Petitioner is conducting sale of hardware items, house utensils, agricultural equipments etc., in the petition schedule R.C.R.No.448 of 2019 3 building. Subsequently, the said Narayani conveyed the said property in favour of her son named Babu Raj, as per document No.1274 of 2003. Thereafter, the son of the said Narayani, who is the husband of the respondent herein, transferred the said property and the building in the name of the respondent as per Gift deed registered as document No.2184/2014 dated 21.8.2014. It is contended by the respondent that, at present she is residing along with her husband at Saudi Arabia. Their son is a student of NIT, Chathamangalam, Kozhikode and she wants to settle down in Koilandy along with her family members. It was further averred that, in order to earn livelihood, she wants to start the business of ready made garments in the petition schedule premises. Even though, the said intention was conveyed to the revision petitioner and sought vacant possession of the petition schedule building, the revision petitioner refused to do so. The Rent Control Petition was filed by her in the above circumstances, seeking eviction of the petitioner/tenant under Section 11(3) of the Act. 3. The Revision Petitioner appeared and filed a counter statement raising a contention that the bona fide need put forward by the respondent/landlord R.C.R.No.448 of 2019 4 is not genuine. It was contended that, the respondent/landlord does not have any intention to start any business in the petition schedule building and the need urged by her is only to evict the Revision Petitioner from the petition schedule building. 4. The evidence in this case consists of oral evidence of PW1 and PW2 and documentary evidence of Exts.A1 to A6 from the side of the respondent/landlord. From the side of the Revision Petitioner/tenant, RW1 was examined and documents Exts.B1 to B7 were marked. The Commission report was marked as Ext.C1. 5. After the trial, the Rent Control Court dismissed the said petition holding that, the transfer made in favour of the respondent/landlord by her husband was a sham transaction, as it was created only with an intention to evict the Revision Petitioner/tenant. It was also found that, the respondent/landlord is residing in Saudi Arabia and she had not visited the petition schedule building after 1985 and, therefore, it was found by the Rent Control Court that, under no circumstances, the need urged by the respondent herein can be treated as genuine. 6. Being aggrieved by the dismissal of the said R.C.R.No.448 of 2019 5 Rent Control Petition, the respondent herein filed R.C.A.No.3/2019 before the Rent Control Appellate Authority. After hearing both sides, the Rent Control Appellate Authority allowed the said appeal and ordered eviction of the Revision Petitioner under Section 11(3) of the Act. This Revision Petition is filed challenging the same. 7. Heard the learned counsel for Revision Petitioner and the learned counsel for respondent. 8. The learned counsel for the Revision Petitioner contended that, the document by which the respondent got title in respect of the petition schedule building, is a sham document. According to him, the said document was executed with the sole intention to get an order of eviction of the Revision Petitioner. It is his specific case that, the aforesaid building belonged to the husband of the respondent and as the husband of the respondent is having some other vacant rooms in his possession, they were aware that, a petition under Section 11(3) of the Act cannot be successfully prosecuted by them. Therefore, in order to avoid that technicality, a gift deed was executed in the name of the respondent herein and sought for eviction of the R.C.R.No.448 of 2019 6 tenant immediately after expiry of statutory period contemplated under the Act in this regard. 9. In response to the aforesaid contentions, the learned counsel for the respondent submitted that, the need put up by the respondent is genuine. The son of the respondent is studying in NIT, Kozhikode and she had also started construction of a house in her native place. Therefore, she wants to come back to her native place and settle down, for which she requires a regular income and hence petition schedule room is required for starting the business. According to the learned counsel, in order to ensure the regular income, the business of ready made garments is a necessity and the R.C.P. is filed in the above circumstances. 10. As mentioned above, the main contention on the part of the learned counsel for the Revision Petitioner is regarding the sham transaction of the petition schedule property in the name of the respondent. On analysis of the evidence available on record, it can be seen that, the respondent had mounted the box and asserted all her contentions in her deposition. Even though, she was subjected to a lengthy crossexamination by the learned counsel for the Revision R.C.R.No.448 of 2019 7 Petitioner, nothing was brought out to discredit the evidence of the respondent/landlord. It was re-iterated by her in her deposition that, she had already started construction of a residential building and her son is also studying in Kozhikode. Even though, the Revision Petitioner raised a contention as to the lack of bonafides in executing the gift deed in favour of the respondent, no evidence could be adduced by the Revision Petitioner in support of the same. On the other hand, the respondent through her deposition, asserted that, the documents were genuinely executed and she wanted to start the proposed business in the petition schedule building. From an overall analysis of the entire materials, there is nothing on record to interfere with the finding entered into by the Rent Control Appellate Authority in this regard. The observations made by the Rent Control Court reveals that, the question of bonafide need was found against the respondent only because of the reason that, the respondent had never visited the petition schedule property after 1985. The Rent Control Court also relied upon the judgment rendered by this Court in Joseph v. George Ittoop [2002 KHC 899] wherein, this Court R.C.R.No.448 of 2019 8 dismissed a petition under Section 11(3) of the Act by doubting the genuineness of a transfer by way of gift deed. As rightly found by the Rent Control Appellate Authority, the factual position in the said reported case is completely different from that are existing in this case. It is evident from a reading of the said judgment that, there were several materials before this Court while deciding the case of Joseph Vs George Ittoop, to the effect that there was a calculated attempt from the part of the landlord therein, to create such a document, only for the purposes of getting an order of eviction. However, in this case, apart from the mere averments made by the Revision petition, we do not find any such materials so as to arrive at a conclusion that the said document is a sham document. In this regard, it is also a factor to be taken note that, since the conveyance is made through a registered document, unless there are very strong materials to show that the said document is a sham document, the legality and validity of the same cannot be doubted. In this case such materials are lacking. 11. In the above circumstances, we are of the view that, the contentions raised by the Revision Petitioner R.C.R.No.448 of 2019 9 against the judgment passed by the Rent Control Appellate Authority in R.C.A.No.3 of 2019 are not sustainable. 12. In the result, the Revision Petition is devoid of any merit and hence it is dismissed. However, taking into account of the submission made by the learned counsel for the Revision Petitioner that, the Revision Petitioner is conducting a business in the petition schedule property since 28.5.1985, a reasonable time has to be given to him for vacating the premises, we are of the view that, the Revision Petitioner can be permitted to occupy the petition schedule premises upto 31.12.2021 subject to the following conditions: i) The Revision Petitioner/tenant shall file an undertaking before the Rent Control Court to the effect that, he will vacate the petition schedule premises on or before 31.12.2021; ii) The Revision Petitioner/tenant will pay the entire arrears of rent as on the date and also will continue to pay the contract rent as compensation for use and occupation of the building, till he vacates the premises; iii) If any of the above two conditions is R.C.R.No.448 of 2019 10 violated, the landlord is free to proceed with the execution of the eviction order. Sd/- A.HARIPRASAD JUDGE pkk Sd/ZIYAD RAHMAN A.A. JUDGE