Kotakkatt Abdul Khader v. Chaliyedath Jemshad Babu, Jasmine Babu, and Kadeeja

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR THURSDAY, THE 18TH DAY OF OCTOBER 2012/26TH ASWINA 1934 RCRev..No. 357 of 2012 () ------------------------RCP.63/2009 of RENT CONTROL COURT/PRL.M.C.,KOZHIKODE-II RCA.117/2011 of RENT CONTROL APPELLATE AUTHORITY-II/ II ADDL. D.C. KOZHIKODE ## REVISION PETITIONER(S)/APPELLANT/RESPONDENT: ---------------------- KOTTAKKATT ABDUL KHADER, S/O.KUNHALIKUTTY HAJI RESIDING AT KARIPUR AMSOM AND CHIRAYIL DESOM ERNAD TALUK, MALAPPURAM DISTRICT BY ADVS.SRI.T.KRISHNAN UNNI (SR.) SRI.SAJU.S.A SRI.K.C.KIRAN SMT.P.A.SHEEJA SMT.MEENA.A. ## RESPONDENT(S)/RESPONDENTS/PETITIONERS: -------------- 1. CHALIYEDATH JEMSHAD BABU, S/O.CHALIYEDATH BABU, RESIDING AT VELIPRAM AMSOM AND DESOM KOZHIKODE TALUK AND DISTRICT - 673001 2. CHALIYEDATH JASMINE BABU, S/O.CHALIYEDATH BABU, RESIDING AT VELIPRAM AMSOM AND DESOM KOZHIKODE TALUK AND DISTRICT - 673001 3. CHALIYEDATH KADEEJA, S/O.CHALIYEDATH BABU, RESIDING AT VELIPRAM AMSOM AND DESOM KOZHIKODE TALUK AND DISTRICT - 673001 ## BY // THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 18-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## M.SASIDHARAN NAMBIAR & C.T.RAVIKUMAR,JJ. --------------------------------------------R.C.R.No.357 OF 2012 --------------------------------------------Dated 18[th] October, 2012 ## ORDER ## Sasidharan Nambiar,J. The tenant in R.C.P.63/2009 on the file of Rent Control Court-II, Kozhikode is the revision petitioner. He is challenging the order of eviction concurrently granted by the Rent Controller and the Appellate Authority under Section 11(3) of Kerala Buildings (Lease and Rent Control) Act. The petitioner schedule building admittedly belongs to respondents 1 and 2 landlords. Petitioner obtained it on lease on 7/10/1988, on a monthly rent of Rs.750/-. Petition is filed for eviction under Section 11(3) contending that the building is required for the bonafide need of respondents 1 and 2 to start a television, DVD player and Radio service centre by the second RCR 357/12 2 respondent and in spite of the demand the petitioner did not surrender possession. The petitioner resisted the claim admitting the tenancy but contending that the need is not bonafide and is only a ruse for eviction. It was contended that respondents are in possession of the down stair portion of the building as well as other buildings belonging to the father of respondents 1 and 2 and therefore, under the first proviso to Section 11(3), an order of eviction cannot be granted. It was also contended that petitioner is mainly depending on the income being derived from petition schedule building and no other suitable building is available in the locality to shift his business and therefore, he is entitled to protection under second proviso to Section 11(3). RCR 357/12 3 2. Rent Control Court on the evidence found that the need alleged is bonafide and the down stair portion of the building is leased out to other tenants and is not in the possession of the respondents. It was also found that though father of respondents 1 and 2 owned a building lying on the western side of the road and said rooms are now converted into single room, and it is in the possession of his legal heirs and that room does not exclusively belong to respondents 1 and 2 and therefore, first proviso to Section 11(3) is not applicable and hence no special reasons need be proved by the respondents. On the second proviso to Section 11(3), it was found that petitioner is mainly depending on the income being derived from the petition schedule building, but he did not establish that no RCR 357/12 4 other suitable building is available in the locality to shift his business. Though petitioner challenged that order before Rent Control Appellate Authority, Kozhikode, the Appellate Authority on re-appreciation of the evidence confirmed the findings of the Rent Control Court on both the points and dismissed the appeal. It is challenged in the revision. 3. Argument of the learned counsel appearing for the petitioner is that both the Rent Control Court and the Appellate Authority did not properly appreciate the evidence. It was pointed out that admission of PW1 who was examined on behalf of the respondents establish that respondents 1 and 2 are in possession of a building on the western side of the road and though it belonged to their father, the father is no more and hence respondents 1 and 2 are RCR 357/12 5 also co-owners and in such circumstances, without establishing special reasons, Courts below should not have granted an order of eviction under Section 11(3). Learned counsel also argued that having found that petitioner is mainly depending on the income being derived from the petition schedule building, when there is no evidence to prove that any other suitable building is available in the locality to shift the business, the benefit under second proviso to Section 11(3) should have been granted and hence the order of eviction is not sustainable. 4. Learned counsel appearing for the petitioner read over the counter statement filed in the R.C.P claiming the benefit of second proviso to Section 11(3) as well as, the plea on the first proviso. The factual findings RCR 357/12 6 of the Rent Controller and the Appellate Authority that the need of respondents 1 and 2 alleged in the R.C.P is bonafide, is based on the evidence and cannot be challenged. Though in the counter statement petitioner contended that respondents are in possession of other buildings, there is no specific plea that those buildings are owned by the respondents. 5. Rent Control Court and the Appellate Authority properly considered the applicability of first proviso to Section 11 (3). In order to attract the first proviso to Section 11(3), it is to be established by the tenant that landlord is possessing a building of his own. Only then the land lord has the duty to establish special reasons. The burden of the landlord under the first proviso arises when he admits or it is proved that the RCR 357/12 7 landlord is in possession of another building owned by him. A fractional right in a building will not disentitle him to seek an order of eviction under Section 11(3). It is for the tenant to prove that the landlord is in possession of another building, which exclusively belongs to him. 6. Finding of the Rent Control Court and the Appellate Authority that the down stair portion of the building is not in the possession of respondents is not disputed. Therefore, the existence of the down stair portion of the petition schedule building, does not compel the respondents to prove special reasons, as the down stair portion is not in their possession. The other building admittedly originally belonged to the father of respondents 1 and 2. It is admitted that apart RCR 357/12 8 from the respondents, there are other legal heirs to the deceased father, who are jointly entitled to fractional share in the said building. The question is whether the availability of a fractional share in the building is sufficient to attract first proviso to Section 11(3). 7. A Division Bench of this Court in ## **Asher v. Hassankutty Hajee (2004 (2) KLT 446** ) considered this question and held that the expression “his own” and “in his possession” used in the first proviso to Section 11(3) would show one's exclusive ownership and possession. Words “his own” “in his possession” excludes all others from the ownership and possession of the property. In other words, the test is whether a landlord has a building of “his own” “in his possession” and has the RCR 357/12 9 right to be in exclusive possession, right to enjoy and right to dispossess. If he is only a co-owner along with others he may have only restricted power of dispossession. Since each co-owner is interested in every infinitesimal portion of the subject matter and each has the right, irrespective of the quantity of his interest to be in possession of every part and parcel of the property jointly with the others, such joint right will not disentitle a landlord to claim an order of eviction under Section 11 (3) and in such a case, landlord has no duty to establish special reasons. This dictum was followed by a later Division Bench of this Court in **Abdul Nazar v. Mammad Koya (2011** **(2) KLT 914)** . In view of the settled position, the claim of the petitioner that in view of the building belonging to father, which is now in RCR 357/12 10 the possession of all the legal heirs, respondents are not entitled to an order of eviction, without establishing special reasons can only be rejected. The finding on the first proviso to Section 11(3) is perfectly legal and correct. 8. Rent Control Court and the Appellate Authority on the evidence found that petitioner did not establish that no other suitable building is available in the locality. The burden is on the petitioner, in spite of the non-obstinate clause in the second proviso to Section 11(3). When petitioner did not establish that no other suitable building is available in the locality, he cannot claim benefit of the second proviso to Section 11(3) also. That finding is also perfectly legal and correct. RCR 357/12 11 9. We find no illegality or irregularity in the order of eviction granted under Section 11(3) of Kerala Act 2 of 1965. The revision petition can only be dismissed. 10. Learned counsel then submitted that petitioner may be granted one year's time to surrender possession of the building. Rent Control Petition was filed in 2009. The petitioner could successfully protract the proceedings till this day. In such circumstances, we do not find that the time sought for by the petitioner could be granted. Still, taking into consideration the fact that petitioner has been doing business in the petition schedule building and is mainly depending on the income being derived therein, petitioner is granted two months' time to surrender vacant possession of the building RCR 357/12 12 provided, he files an affidavit before Rent Control Court unconditionally undertaking to surrender vacant possession of the building on the expiry of two months from this day and shall also pay or deposit the entire arrears of rent till that day. It is made clear that if no such affidavit is filed and rent is paid or deposited the Rent Control Court is to execute the order of eviction. The Revision Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. C.T.RAVIKUMAR, JUDGE. uj.