KURIAN PHILIP v. MRS MARY THOMAS and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU** **WEDNESDAY, THE 13TH DAY OF SEPTEMBER 2017/22ND BHADRA, 1939** **RCRev..No. 199 of 2015 () --------------------------** ## **AGAINST THE JUDGMENT IN RCA 12/2012 OF THE ADDITIONAL RENT CONTROL APPELLATE AUTHORITY, KOTTAYAM** **AGAINST THE ORDER IN RCOP 44/2009 OF THE ADDITIONAL MUNSIFF, KOTTAYAM** **REVISION PETITIONER(S)/APPELLANT/COUNTER PETITIONER: ---------------------------------------------------** **KURIAN PHILIP** **BEAUTY FOOT WEAR, BUILDING NO.1502, OPPOSITE SEEMATTI, K.K.ROAD, KOTTAYAM.** **BY ADVS.SRI.P.K.MURALEEDHARAN SRI.SUNU P.JOHN** **RESPONDENT(S)/RESPONDENTS, PETITIONERS 1 TO 4 IN R.C.O.P.:** **----------------------------------------------------------** **1. MRS. MARY THOMAS** - **RESIDING AT THADATHIL HOUSE, KOTTAYAM, PIN 686001 (DIED).** **2. DR.JOSEPH THOMAS** - **RESIDING AT THADATHIL HOUSE, KOTTAYAM, PIN 686001.** **3. MRS ELIZEBETH CHOWFIN** - **RESIDING AT THADATHIL HOUSE, KOTTAYAM, PIN 686001.** **4. DR.JACOB THOMAS RESIDING AT THADATHIL HOUSE, KOTTAYAM, PIN 686001. R2 TO R4 ARE LEGAL HEIRS OF R1.** **R2,R3,R4 BY ADV. SRI.RAJEEV V.KURUP** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 1309-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** K.HARILAL & A.M.BABU, JJ. --------------------------R.C.R. No.199 of 2015 --------------------------Dated this the 13[th] day of September, 2017 ## O R D E R ## **Harilal, J.** The revision petitioner is the tenant against whom an order of eviction has been passed concurrently by the courts below under section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short “the Act”). The parties are referred to as in the Rent Control Petition. According to the petitioners in the Rent Control Petition, they are the joint owners of 3.07 Ares of land in resurvey Nos.11/2, 11/6, 86/1 and 146/2 in Block No.69 of Kottayam Municipality and the petition schedule building is situated in the said land. The respondent has taken the petition schedule building on a monthly rent from 1977 onwards and the rent of the building is in arrears from and inclusive of the month of May 2006 onwards at the rate of Rs.700/- per month. He has sublet and transferred the possession of the schedule building to a RCR.199/15-B **:2:** stranger contrary to the agreement without the consent and knowledge of the petitioners and the sub tenant is in exclusive possession of the building for valuable consideration. The petition schedule building is for more than 100 years old and it is in a dilapidated condition. However, it requires reconstruction and the petitioners are in need of the building to start an Academy of Fashion Technology, after demolition and reconstruction of the same. The petitioners and their cousins, who are adjoining land owners, have bona fide intention to construct a multistoried building in the entire plots owned by them. So the petitioners along with the aforesaid cousins entered into an agreement to construct a multi-storied commercial building as a joint venture, after demolishing the building including the petition schedule building, in the entire plots owned by them. The petitioners are intending to start an Academy of Fashion Technology in the entire area allotted to them in the multi-storied building constructed as a joint venture. As per the agreement 32% of the built up area would be RCR.199/15-B **:3:** given to the petitioners. The petitioners have sufficient financial ability and means to start the said Academy. The 3[rd] petitioner is competent and efficient to manage the said Academy. Her daughter is studying for Fashion Technology. After the completion of her course, she will also join with the petitioners to conduct the Academy. They have no other building in Kottayam town to conduct the aforesaid academy. So also, it was averred that the respondent is not entitled to get protection under the proviso to section 11(3) of the Act. With the aforesaid pleadings they prayed for an order of eviction under section 11(2)(b), 11(3) and 11(4)(i) of the Act. 2. The respondent resisted the claim for eviction contending that there was no landlord-tenant relationship between the petitioners and the respondent and the need projected in the petition is a pretense for eviction only. More clearly, it was stated that he had no lease arrangement with any of the petitioners and there was no arrears of rent. He denied the allegation that he had sublet RCR.199/15-B **:4:** the building to a stranger for valuable consideration. According to him, the petition schedule building is stable, strong and well maintained by the respondent. Petitioners 2 and 4 are Doctors by profession and they have no bona fide intention to start the proposed Academy. The 3[rd] petitioner is neither competent nor educated to manage the affairs of the Academy as claimed by the petitioners. No multi-storied commercial building can be constructed in the petition scheduled premises. It is not a fit place to start an academic institution like Academy of Fashion Technology and there is little scope for such an Academy in Kottayam. The petitioners have many other buildings in the town, which could be used for starting such an academy, if they are really intending to start one. The petitioners have not obtained any sanction from the Municipality to construct a multi-storied building and not made any agreement to raise sufficient funds. Even if the petitioners intend to construct such a building, it is not necessary to demolish the existing building. Thus, he RCR.199/15-B **:5:** prayed for dismissal of the petition. 3. The evidence consists of the oral testimony of PW1 to PW5, RW1 and RW2 and documentary evidence of Exts.A1 to A14, B1 to B14, C1 and C2. After considering the aforesaid evidence the Rent Control Court passed an order of eviction under section 11(2)(b) and 11(3) of the Act. In appeal, the Appellate Authority also affirmed the findings of the Rent Control Court as such without any interference. Thus, the legality and propriety of the concurrent findings under section 11(2)(b) and 11(3) of the Act are challenged in this revision. 4. Heard the learned counsel for the revision petitioner/respondent and the learned counsel appearing for the respondents/petitioners. 5. Though this revision has been filed on various grounds challenging the concurrent findings of the courts below, the learned counsel for the revision petitioner/respondent mainly contended that the court below went wrong in appreciating the landlord-tenant RCR.199/15-B **:6:** relationship and also the bona fides of the need projected in the petition. According to the learned counsel, no rental agreement was produced in evidence to prove the landlordtenant relationship. So also it is contended that the 3[rd] petitioner is not the owner of the property as per Ext.B6 preliminary decree or A1 partition deed. Therefore, misjoinder of the 3[rd] petitioner is fatal to the bona fides of the need. Further, it is contended that the need projected in the petition is for the requirement of the 3[rd] petitioner who is not a co-owner of the property, wherein the petition schedule building is situated and no rent was in arrear as claimed by the petitioners. The courts below went wrong by granting the order of eviction under section 11(2)(b) of the Act where there was no evidence to prove the actual rate of rent per month. 6. Per contra, the learned counsel for the petitioners advanced arguments to justify the concurrent findings of the courts below under section 11(2)(b) and 11 (3) of the Act. According to him, the need projected in the RCR.199/15-B **:7:** petition was for all the landlords and the evidence on record are sufficient to arrive at a finding that the need projected is a bona fide one. It is also contended that Ext.A1 partition deed coupled with Exts.A2 and A3 tax receipts would prove that the petitioners in the Rent Control Petition are the landlords of the petition schedule building. The bona fides of the need for reconstruction of the building would stand proved by Ext.A6 joint venture agreement entered into between the petitioners and their cousins who are the owners of the adjacent land. Further the requirement of reconstruction is supported by Exts.A7 and A8 permit and plan approved by the Municipality and old age and dilapidated condition of the building stands proved by the commission reports. 7. In view of the arguments at the Bar, the first point to be considered is whether there is any illegality or impropriety in the finding that the petitioners have succeeded to prove the landlord-tenant relationship RCR.199/15-B **:8:** between the petitioners and the respondent. It is the case of the respondents that one Joseph Punnoose was the landlord of the petition schedule building and the rent was paid to him. Ext.B1 declaration submitted by the said Joseph Punnoose before the Indian Overseas Bank was pressed into service to substantiate the said contention. It is further contended that Ext.B6 preliminary decree would prove that the title claimed by the petitioners to the petition schedule property and the petition schedule building is not correct. According to them, the ownership of the property as well as the building thereon stands vested with the sharers as per Ext.B6 preliminary decree. Therefore the petitioners cannot be said to be the landlords as contemplated under section 2(3) of the Act. 8. But, going by the impugned judgment, it could be seen that the aforesaid Joseph Punnoose was examined as P.W.4, and he deposed that he was receiving rent of the petition schedule building as a co-owner, after his father's RCR.199/15-B **:9:** death and thereafter, the petitioners have become the owners of the property, under Ext.A1 partition deed. But, the respondent has not executed the rent deed, though he was required to do so. Thus, he maintained the stand that the petitioners are the present landlords of the respondent. Further, Ext,B1 declaration given by the said Joseph Punnoose to the Manager, Indian Overseas Bank, Kottayam shows that the said declaration was made on 16.3.1988, much earlier, before the execution of Ext.A1. Ext.B6 preliminary decree was passed in the year 1991, but, after discarding the same, the petitioners, Joseph Punnoose and other co-owners had executed Ext.A1 partition deed, wherein E & F schedules have been set apart to the petitioners herein and the petition schedule building is situated in 'E' schedule. Further, Ext.A2 series of basic tax receipts show the payment of land tax and Ext.A3 series of building tax receipts show the payment of property tax, for the petition schedule building by the petitioners. In the above analysis, we hold that the petitioners have RCR.199/15-B **:10:** succeeded in proving that they are the landlords of the respondent, at the time of filing of the rent control petition. It follows that there is no bona fides in the denial of landlord-tenant relationship and the courts below are justified in finding that the petitioners are the landlords of the respondent. 9. Next, the respondent contended that bona fide need is projected for the third petitioner, who is not a coowner of the property and the courts below wrongly rejected the said contention. On a reading of the first paragraph of the rent control petition, as rightly observed by the courts below, it could be seen that the specific case of the petitioners is that the petitioners are in need of the petition schedule building, to start the academy of fashion technology, after demolition and reconstruction of the same, under a joint venture with the owners of the adjacent property, who are also the sharers, under Ext.A1 partition deed. Further, they averred that the third petitioner is RCR.199/15-B **:11:** competent and efficient, to manage the academy of fashion technology and her daughter, who is studying for Fashion Technology, would also join with the venture. Obviously, it does not show that the need is not that of the third petitioner alone; but all the petitioners are in need of the petition schedule building. 10. Coming to the ownership of the third petitioner over the petition schedule building, it is seen that in the counter statement, the respondent has not raised a contention, denying the ownership of the third petitioner. So also, such a contention was not raised either before the Rent Control Court or the Appellate Authority. A contention, pertaining to the fact in dispute, which was not raised, either in the pleadings or before the rent control court or the appellate authority, can never be considered afresh in revision. 11. Next, it is contended that the order of eviction, under Section 11(2)(b), is legally unsustainable. We had already held that the landlord-tenant relationship had been RCR.199/15-B **:12:** successfully proved by the petitioners. So, it follows that the respondent was liable to pay the rent without fail. It is not disputed that the landlords had sent Ext.A4 lawyer notice to the respondent, wherein the rent was claimed at the rate of Rs.700/- per month. Ext.A5 shows the receipt of Ext.A4 lawyer notice. But, significantly, the respondent has not disputed the rate of rent or the period for which the arrears of rent claimed. No evidence had been adduced, to prove that the respondent had paid rent after May, 2006. In the proof affidavit, the respondent has stated that the rate of rent was Rs.300 /- only, on the basis of Ext.B1, which was filed in the year 1988. But, P.W.4, who made Ext.B1, had stated in his proof affidavit itself that the rent had been increased from Rs.300/- to Rs.700/-, though it was stated as Rs.300/- in Ext.B1. It is pertinent to note that twenty three years had been elapsed after Ext.B1 and indisputably, the petition schedule building is situated in the heart of Kottayam town. Therefore, no reliance can be placed on Ext.B1, to prove the rate of rent RCR.199/15-B **:13:** and the courts below are justified in finding that the rent was due from May, 2006, at the rate of Rs.700/- and the respondent is liable to pay the same. 12. Coming to the challenge against the bona fides of the need, it is contended that-- (1) The existing building is not dilapidated and the joint venture is not workable or profitable; (2) the petitioners have no previous experience in conducting Fashion Technology Institute and the same will not be profitable, as so many Fashion Technology Institutes are functioning in Kottayam town; (3) there is a proposal for widening of K.K.Road, lying adjacent to the petition schedule property and there is no scope for construction of a multi-storied building, as pleaded by the petitioners. 13. It is not disputed that the petition schedule building is situated in the heart of Kottayam town and the extent of property is only 3.07 Ares. A multi-storied building cannot be conveniently constructed, for the purpose of a Fashion Technology Institute in 3.07 Ares of RCR.199/15-B **:14:** property. Hence, they decided to construct a multi-storied building, under a joint venture with the owners of adjacent property, under Ext.A6 agreement. As per Ext.A6, 32% of the reconstructed area would be allotted to the petitioners. The Kottayam Muncipality has granted sanction, to construct such a building by issuing Ext.P7 permit and Ext.P8 plan. In order to prove the bona fides of the need, petitioners 2 to 4 were examined as P.Ws. 1 to 3 and the courts below concurrently found that nothing had been brought out, to discredit their evidence. The courts below concurrently found that though PW1 to PW3 were crossexamined at length, nothing has been brought out to discredit or disbelieve these evidence. The respondents have no case that the courts below have omitted to consider any valuation evidence or placed reliance on any irrelevant evidence or wrong proposition of law. Therefore this Court is not inclined to reappreciate their evidence in revisional jurisdiction, which is confined to legality and propriety of the findings only. Similarly the old age and RCR.199/15-B **:15:** dilapidated condition of the petition schedule building stand proved by Exts.C1 and C2 commission reports. Thus, the petitioners have succeeded in proving the bona fides of the need and the respondents miserably failed to bring up any material, to doubt the bona fides of the need. So, the courts below are justified in finding that the need is a bona fide one. 14. As regards the lack of previous experience, the courts below are justified in rejecting the said contention, in view of the decision of this Court in **Kurian K. Kuriakose v. Usha Cherian** [2008 (1) KLT 739]. Similarly, the courts below are justified in rejecting the contention that several other Fashion Technology Institutes are functioning at Kottayam and the said Institute cannot be run profitably, in view of the decision in **Sait Nagee Purushotham & Co. Ltd. v. Vimalabai Prabhulal** [2005 (4) KLT 452 SC], wherein the Supreme Court held that it is not for the tenant, who can dictate the terms of the RCR.199/15-B **:16:** landlord and advise him what he should do and what he should not do. 15. Coming to the provisos under Section 11(3), the courts below concurrently found that the respondent has failed, to discharge the burden of proof. No argument under the provisos to section 11(3) of the Act has been raised in this revision, challenging any of the findings under the said provisos. Hence, we are not inclined to reappreciate the evidence available under the proviso to section 11(3) of the Act in exercise of revisional jurisdiction. 16. In the above analysis, we find that there is no illegality or impropriety in any of the findings whereby the courts below concurrently passed the order of eviction, under Sections 11(2)(b) and 11(3). Hence, the revision fails. 17. The learned counsel for the revision petitioner/respondent prayed for six months' time, to surrender the vacant possession of the petition schedule RCR.199/15-B **:17:** building. Having regard to the aforesaid submission the revision petitioner/respondent is given one month time to surrender the vacant possession of the petition schedule shop room. This revision is dismissed. All pending Interlocutory Applications will stand closed. K.HARILAL, Judge. A.M.BABU, Judge. okb.