K.K. SADANANDAN S/O KOCHIPARAMBATH KRISHNANKUTTY v. T.N. MOHANANAN, K.C.VIJAYAN, K.C.JAYARAJAN, INDRABHAVAN, JOLLY JAYARAJAN, JINI, ABITHA, AJAY

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 20TH DAY OF MARCH 2017/29TH PHALGUNA, 1938** **RCRev..No. 256 of 2011 ( ) ---------------------------** **AGAINST RCA 62/2003 of I ADDL.RENT CONTROL APPELLATE AUTHORITY, THRISSUR DATED 22-01-2011** **AGAINST RCP 118/1998 of I ADDL.MUNSIFF COURT,THRISSUR DATED 30-112002** ## **REVISION PETITIONER/APPELLANT/PETITIONER:** **-----------------------------------------** **K.K.SADANANDAN S/O.KOCHIPARAMBATH KRISHNANKUTTY, R/AT PERINJANAM DESOM, KODUNGALLUR TALUK, THRISSUR DIST** **(THE, REVISION PETITIONER IS REP.HEREIN BY HIS POWER OF ATTORNEY HOLDER B.VIJAYAN, S/O K.BALAKRISHNA PANICKER, PATHAN'S BUILDING COMPLEX,ROUND NORTH, THRISSUR-680 01** **BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.JIBU P THOMAS SRI.MATHEWS RAJU SRI.A.R.NIMOD SRI.T.C.SURESH MENON** ## **RESPONDENTS/RESPONDENTS/RESPONDENTS:** **--------------------------------------** **1. T.N.MOHANAN** **S/O THOTTATHIL NARAYANAN RESIDING AT CHELAKKOTTUKARA DESOM, THRISSUR, TALUK.** **2. K.C.VIJAYAN, S/O.KANNARA CHATHUNNY, RESIDING AT VALAPPAD VILLAGE, CHAVAKKAD, TALUK, THRISSUR TALUK.** **3. K.C.JAYARAJAN, S/O.KANNARA CHATHUNNY, RESIDING AT EDAMUTTAM DESOM, VALAPPAD VILLAGE,, CHAVAKKAD TALUK, THRISSUR TALUK.(DIED)(ADDL. LR'S IMPLEADED)** **4. INDRABHAVAN, S/O.THOTTATHIL NARAYANAN, RESIDING AT CHELAKKOTTUKKARA DESOM, THRISSUR TALUK.** - ***5. JOLLY JAYARAJAN, WIDOW OF K.C.JAYARAJAN** - ***6. JINI, D/O LATE K.C.JAYARAJAN** - ***7. ABITHA,D/O.LATE K.C.JAYARAJAN** ***8. AJAY, S/O. LATE K.C.JAYARAJAN** **ADDITIONAL RESONDENTS 5 TO 8 ARE RESIGING AT KAMMARA HOUSE, (VIA) VALAPPAD, P.O. EDAMUTTAM, CHAVAKKAD VILLAGE, THRISSUR DISTRICT** ***(ADDL. RESPONDENTS 5 TO 8 ARE IMPLEADED AS PER ORDER DATED 18.6.2015 IN I.A. NO.1554 OF 2017 IN R.C.R. NO.256 OF 2011)** **R1,2,4 BY ADV. SRI.K.A.SATHEESA BABU** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 20-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **VPS** **K.HARILAL & RAJA VIJAYARAGHAVAN, V., JJ. -----------------------------------------R.C.R. No.256 of 2011** **----------------------------------------Dated this the 20th day of March, 2017** ## **O R D E R** **--------------** ## _**Harilal, J.**_ - 1.The petitioner is the landlord who filed R.C.P. No.118 of 1998 before the Rent Control Court, Thrissur seeking an order of eviction against the respondents under sections 11(2)(b) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act' for brevity). The parties are referred to as in the RCP. - 2.According to the petitioner, the petition schedule building was let out to respondents Nos.1 to 3 as per Ext.A1 rent chit and they were continuing in possession by holding over. They have failed to pay rent since 1997. Further, it is contended that respondent Nos.1 to 3 are not in possession of the petition schedule building and they have sublet the tenanted premises without the consent or knowledge of the petitioner to respondent No.4, who is running the business, at present, in 2 R.C.R. No.256/2011 the lease hold. Hence the petitioner caused to issue lawyers notice requesting to surrender the petition schedule building. But, the respondents did not oblige. Hence the rent control petition was filed seeking an order of eviction of the respondents from the petition schedule building. 3. The respondents 2 and 3 were set ex-parte. Respondent No.1 entered appearance and denied the allegations in the rent control petition. According to respondent No.1, the petition schedule building was taken on lease for the purpose of running a tailoring shop by name “Delight Tailors Corner”. It is a partnership firm consists of respondent Nos.1 to 4 as partners. The said partnership firm had been constituted on 15.9.1980 and the petition schedule building was taken on lease for the very purpose of running the proposed business mentioned in the partnership deed. It is further contended that the said business is being conducted in the petition schedule building by the partnership firm. The 1[st] respondent denied the allegation that rent was kept in arrears, as alleged in the petition. It is asserted that respondent Nos.1 to 3 have exclusive possession over the petition schedule building as R.C.R. No.256/2011 3 - partners of the said firm and they have not alienated their right or possession to the 4[th] respondent. According to the 1[st] respondent, respondent No.4 could not be made a party in Ext.A1 rent chit because he was out of station on the date of execution of the rent chit. With these averments, the 1[st] respondent sought for dismissal of the petition. - 4.The 4[th] respondent filed a counter contending that he is the managing partner of the firm “Delight Tailors Corner” to which the petition schedule building was let out. According to him, the firm was constituted before the petition schedule building was taken on lease for the very purpose of conducting the business of the firm and the firm is conducting a tailoring shop by name “Delight Tailors Corner”. He is not a sub-lessee, as alleged by the petitioner and he is holding the petition schedule building as the managing partner of the partnership firm to which the petition schedule building was leased out. - 5.On the aforesaid rival pleadings, both parties adduced evidence which consists of oral testimony of PW1 and RW1 and Exts.A1 to A5(b) and Exts.B1 to B4(a). After considering the aforesaid evidence on record, the Rent Control Court dismissed the R.C.R. No.256/2011 4 petition on a finding that the petition itself is not maintainable. - 6.Aggrieved by the dismissal of the rent control petition, the petitioner preferred Rent Control Appeal No.62 of 2003 before the Rent Control Appellate Authority, Thrissur and the Rent Control Appellate Authority after re-appreciating the evidence on record found that the rent control petition is maintainable and allowed the petition under sections 11(2)(b) but rejected the claim under section 11(4)(i) of the Act. Thus, the legality and propriety of the concurrent findings of the courts below on section 11(4)(i) of the Act have come up in revision before us. - 7.Heard the learned counsel appearing for the petitioner as well as the respondents. - 8.The learned counsel appearing for the petitioner contends that the Appellant Authority went wrong in finding that the petition schedule building was leased out to the partnership firm, as contended by the respondents. The lower appellate court failed to appreciate Ext.A1 rent chit in its correct perspective and went wrong in relying on Exts.B2 to B4. According to the learned counsel, the admission from the part of the 4[th] respondent himself was sufficient to arrive at a finding that the R.C.R. No.256/2011 5 petition schedule building was in the exclusive possession of the 4[th] respondent, with whom there was no landlord tenant relationship. - 9.On the other hand, the learned counsel appearing for the respondents advanced arguments to justify the findings of the Appellate Authority that the 4[th] respondent was not a sublessee, as contended by the petitioner. In order to substantiate the said contention, Exts.B2 to B4 were pressed into service. According to the learned counsel appearing for the petitioner, Exts.B2 to B4 would show that the tax was paid in the name of the partnership firm in which the 4[th] respondent is the managing partner and the tax was paid by the 4[th] respondent for and on behalf of the partnership firm by name “Delight Tailors Corner”. Therefore the lower appellate authority has rightly arrived at a finding that the 4[th] respondent was not a sub-lessee and he was the managing director of the firm for which the petition schedule shop building was let out and he was in possession of the shop building for and on behalf of the partnership firm. 10.Going by the impugned judgment passed by the courts below, R.C.R. No.256/2011 6 it could be seen that the petitioner has relied on Ext.A1 rent chit. On the other hand, the respondents have relied on Ext.B1 partnership deed and Ext.B2 to B4(a) tax receipts. According to the petitioner, the petition schedule shop building was let out to respondents 1 to 3 only and not to the partnership firm by name “Delight Tailors Corner”, as contended by the 4[th] respondent. According to the 4[th] respondent, the petition schedule shop building was let out to the partnership firm by name “Delight Tailors Corner”, in which he was the managing partner. Thus the respondent themselves admitted that at present the 4[th] respondent has been conducting tailoring shop in the petition schedule building for and on behalf of the partnership firm. - 11.This Court is of the view that the rights and liabilities of the petitioner and respondents as the landlord and tenant must be governed by Ext.A1 rent chit, under which the landlord tenant relationship has commenced, when there is no other document making alteration in the terms of Ext.A1 by common consensus of the landlord and tenant. Going by Ext.A1, it is seen that the petition schedule building was let out to respondent Nos.1 to 3 R.C.R. No.256/2011 7 in their personal capacity and the 4[th] respondent was not a party to Ext.A1 rent chit. So also this Court finds that the name “Delight Tailors Corner” does not find a place anywhere in Ext.A1, either as the name of the partnership firm or as the name of the tailoring shop. Therefore, it can be safely concluded that as per the rights and liabilities derives from Ext.A1, the 4[th] respondent is a stranger to the rental arrangement under Ext.A1. Even though it is contended that the 4[th] respondent could not be made a party to Ext.A1 as he was out of station on the date of execution of Ext.A1, no evidence has been adduced to substantiate the said contention. Even if that reason for omission to include the 4[th] respondent in Ext.A1 is taken at its face value, it can never be a sufficient reason to give a different interpretation to express terms of Ext.A1, so as to legalise wrongful possession of the 4[th] respondent. So we find that the petition schedule shop room was let out to respondents 1 to 3 under Ext.A1 and not to the partnership firm, as claimed by the respondents. 12.Coming to Exts.B1 to B4, it is seen that Ext.B2 is the receipt issued by the petitioner evidencing the monthly payment of R.C.R. No.256/2011 8 rent and these series of receipts stand in the name of the “Delight Tailors Corner”, Thrissur. 13.The learned counsel appearing for the respondents contends that these receipts are more than sufficient to arrive at a conclusion that the petition schedule shop building was let out to the partnership firm by name “Delight Tailors Corner”. We are unable to countenance the said argument on various reasons. Admittedly, the name of the tailoring shop is “Delight Tailors Corner”. So from the mere mentioning of the name “Delight Tailors Corner” in these receipts it cannot be presumed that these receipts were issued to the partnership firm “Delight Tailors Corner”, which was not a party to Ext.A1 rent chit. Even if these receipts are issued in the name of the partnership firm, which is not a party in Ext.A1, that cannot be taken as a ground to reject the claim under section 11(4)(i) of the Act in view of the decision of this Court in **Ganesh v. Varghese** (2005 (1) KLT 282). In this decision this Court held that “receipt of rent by the landlord during the currency of sublease by itself from the alleged sub lease is not a ground to hold that he is not entitled to eviction under section 11(4)(i) of the Act.” R.C.R. No.256/2011 9 14.Coming to the other receipts, it is seen that Ext.B3 is the receipt evidencing payment of the money towards renewal of sales tax registration in the name of “Delight Tailors Corner” and Exts.B4 and B4(a) are receipts evidencing payment of income tax. It is true that these are the receipts which would show the payment of tax to various statutory authorities for and on behalf of “Delight Tailors Corner”. Even if these documents are taken at its face value, these receipts are not binding upon the petitioner, as the same are self serving documents only. It cannot be presumed that those statutory payments of tax were effected with the consent or knowledge of the petitioner as it was not required to make such payments. It follows that such payments could have been made without the knowledge or consent of the petitioner. No inference can be drawn to the effect that the petitioner acknowledged or recognised the partnership firm as his tenant, in the absence of any valid and material evidence to the contrary. - 15.The question to be considered is whether there is any evidence to prove that subsequently the petitioner has given consent to conduct the tailoring shop in the petition schedule R.C.R. No.256/2011 10 building by the partnership firm allegedly constituted under Ext.B1, in which respondents 1 to 4 are partners. On an analysis of Exts.B1 to B4(a), we are unable to arrive at a conclusion that even though the landlord tenant relationship has commenced under Ext.A1, subsequently the petitioner has either consented to transfer the possession of the shop room to the partnership firm allegedly constituted under Ext.B1 or recognised the said partnership firm as his tenant. It is true that partnership firm by name “Delight Tailors Corner” was formed in the year 1980, before the commencement of the landlord tenant relationship between the petitioner and respondents 1 to 3 under Ext.A1. If the petition schedule shop building was let out to the said partnership firm, as contended by the respondents, certainly the rent deed could have been executed in the name of the said partnership firm or at least in the name of all the partners of the firm. So also no evidenciary value can be given to an unregistered partnership deed allegedly executed and kept secretly in their possession without the knowledge of the petitioner. 16.At this juncture the decision of this Court in **Muraleedharan** R.C.R. No.256/2011 11 **Nair A. v. Pazhani Vinayakan and Another** (2011 (2) KLT 934) assumes relevancy and significance. In this decision this Court held that mere occupation of the landlord about the occupation of the tenanted premises by a person other than the tenant will not prove that there was implied consent on the part of the landlord. Consent contemplated under section 11 (4)(i) of the act is a consent to subletting before the subletting. - 17.In the above analysis, we find that the respondents miserably failed to establish the landlord tenant relationship between the petitioner and the partnership firm by name “Delight Tailors Corner”. Therefore, no enquiry need be conducted as to the genuineness of Ext.B1 partnership deed. - 18.Going by the judgment under challenge, it has come out in evidence that the 4[th] respondent, who is a stranger to Ext.A1 rent chit, had himself admitted in evidence that he has been in exclusive possession of the petition schedule building. It is pertinent to note that the second and third respondent are exparte and thereby they virtually admitted the alleged sub lease in the rent control petition. We find that the courts below miserably failed to consider Exts.B1 to B4(a) in its correct legal R.C.R. No.256/2011 12 - perspective and they absolutely went wrong by relying on Exts.B1 to B4(a) to reject the claim of eviction under section 11(4)(i) of the Act. The appreciation of evidence on Exts.B1 to B4(a) is vitiated by the perversity. So also courts below failed to consider the rights and liabilities that derives by the petitioner and the respondents as landlord and tenant under Ext.A1, in its correct perspective. - 19.In the above analysis, we are inclined to set aside the rejection of petitioner's claim for eviction under section 11(4)(i) of the Act and we do so. Consequently, this revision petition will stand allowed in part. **Sd/-** ## **RAJA VIJAYARAGHAVAN, V. JUDGE** vps