Maravantavida Vadakkayil Yousuf v. Ulliveetil Eachal Nalakath Hashim

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU FRIDAY, THE 25TH DAY OF AUGUST 2017/3RD BHADRA, 1939 RCRev..No. 278 of 2017 -------------------------RCA 26/2013 of THE RENT CONTROL APPELLATE AUTHORITY, (ADDL.DISTRICT JUDGE-I),THALASSERY RCP 12/2011 of THE RENT CONTROLLER (MUNSIF), KUTHUPARAMBA DATED REVISION PETITIONER/RESPONDENT/RESPONDENT: -------------------------------------------- MARAVANTAVIDA VADAKKAYIL YOUSUF, S/O.KUNHI POKKER, KOOTHUPARAMBA L.P.SCHOOL ROAD, KOOTHUPARAMBA, KANNUR DISTRICT. BY ADV. SRI.SUNIL V.MOHAMMED RESPONDENT(S)/APPELLANT/PETITIONER: ----------------------------------- ULLIVEETIL EACHAL NALAKATH HASHIM, S/O.MOOSA, SUBLIME, KOOTHUPARAMBA AMSOM, NARAVOOR DESOM, THALASSERY TALUK, KANNUR DISTRICT.-670643 BY SRI.C.KHALID ,CAVEATOR THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 2508-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.HARILAL & A.M.BABU, JJ** - - - - - - - - - - - - - - - - - - - - R.C.R.278 of 2017 - - - - - - - - - - - - - - - - Dated : 25[th] August, 2017 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** ## Harilal, J. 1.The revision petitioner is the tenant against whom an order of eviction has been passed diversely under Sec.11(3) of the Kerala Buildings (Lease and Rent Control) Act (for short 'the Act') by the Court below. According to the landlord, the petition schedule building is required to provide an independent residence for his eldest daughter Bushara as her eldest daughter is nearing marriageable age and she wants to settle in the native place. There are no other vacant premises available with the petitioner for the said purpose and the landlord's daughter Bushara and her daughter are depending on him, for the Petition Schedule building. The tenant is residing in the petition schedule building and other vacant residential buildings are available in the locality for his **RCR.278/2017** 2 residential purpose. The tenant resisted the claim for eviction contending that the eldest daughter of the landlord Bushara is permanently settled abroad and her husband is having his own residence at Kuthuparamba. So also the landlord is also having other premises in his own ownership and those buildings are lying vacant. He is running a business of gunny bags also in the premises and there are five employees working under him. He is depending upon the income from the business also. Though he is having a house to reside, the same is owned by his wife and he has a fractional right only in the said house. - 2.On the aforesaid rival pleadings both parties went on trial and after examining the evidence on record, the Rent Control Court found that the need projected is not a bona fide one and on that finding the Rent Control Petition was dismissed. In appeal the Appellate Authority reversed the findings of the Rent Control Court ## **RCR.278/2017** **==> picture [7 x 9] intentionally omitted <==** and allowed the appeal. Thus the divergent findings of the courts below have come up in revision for considering the legality and propriety of the same. - 3.Heard the learned counsel for the petitioner and the learned counsel for the respondent. 4.Going by the impugned order passed by the Rent Control Court, it is seen that the Rent Control Court rejected the petition mainly on the ground that the landlord is an affluent man having several other buildings and he failed to prove the bona fides of the need. It was also found that husband of the petitioner's eldest daughter Bushara, for whom the building was required, has another residential building and the petitioner failed to prove that, that building does not absolutely belongs to him. So also it was found that the tenant is entitled to get protection under the 2[nd] proviso as no evidence was produced by the landlord to show that the rooms are **RCR.278/2017** 4 available in the locality for the tenant to shift his business. In appeal, the Appellate Authority has reversed all the aforesaid findings and found that the need projected in the petition is a bona fide one and the tenant is not entitled to get protection under 2[nd] proviso to Sec.11(3) of the Act. Therefore the question to be considered is whether there is any illegality or impropriety in the findings whereby the Appellate Authority reversed the findings of the Rent Control Court. - 5.As rightly held by the Appellate Authority merely on the reason that the landlord's eldest daughter Bushara is now living abroad with his children and her children are studying there, it cannot be held that she is permanently settled abroad and it does not mean that neither the said Bushara or her daughter, who is nearing the marriageable age, will not settle down in their native place in India. Thus the Appellate Authority is justified in reversing the findings **RCR.278/2017** 5 of the Rent Control Court in this respect. 6.Similarly it is seen that the Rent Control Court has found that the landlord has failed to prove that the building owned by Mohammadali, the sonin-law of the landlord, does not absolutely belongs to him. As rightly observed by the Appellate Authority, the burden is on the tenant to prove that alternative buildings allegedly available in the hands of landlord absolutely belong to him and the burden of proof in this respect is not on the landlord but is on the tenant himself. If the tenant succeeds in proving that the landlord has another building in his possession, it is for the landlord to prove that the building is not vacant or suitable for the purpose for which the petition schedule building is required. In the instant case, the tenant miserably failed to discharge initial burden. Therefore the Appellate Authority can be justified in reversing the findings of the Rent Control Court in this **RCR.278/2017** 6 respect also. 7.Coming to the protection under the 2[nd] proviso to Sec.11(3) of the Act, the Rent Control Court found that the landlord failed to prove that other alternative vacant buildings are available in the locality. Therefore the tenant is entitled to get protection under the 2[nd] proviso and the Appellate Authority reversed the findings of the Rent Control Court on a finding that the burden of proof in this respect is on the tenant. It is well settled by the decision of this Court in Lucy Varghese v. Karunakaran Achary (2010 (2) KHC 643) that the burden of proof under the 2[nd] proviso is on the tenant and not on the landlord. Thus, the Appellate Authority is justified in reversing the findings of the Rent Control Court in this respect in view of the aforesaid decision. - 8.Further, it is a case of the tenant that he is conducting a business in the petition schedule **RCR.278/2017** 7 shop room though the building was let out to him for residential purposes. But going by the rent deed it is specifically stated therein that the building was let out for residential purpose only. In the above context, the definition of “building” contemplated under 2(1) of the Act assumes relevancy and significance. As per Sec.2 (1) of the Act, “building” means any building or hut or part of a building or hut, let or to be let separately for residential or nonresidential purpose. It means the purpose for which building was let out is significant and relevant and in the cases where the building was let out for residential purpose, the tenant cannot alter the purpose of tenancy and use the building for non-residential purpose and claim protection under the 2[nd] proviso to Sec.11(3) of the Act. - 9.The above view is supported by the decision of this Court in Vijayakumar v. Safiya (2008 (3) KLT 595). In the above decision, this Court held **RCR.278/2017** 8 that whether the building was let out for residential purpose and subsequently a tenant altered the purpose of tenancy and used for nonresidential purpose, the tenant is not entitled to get the benefit of the 2[nd] proviso to Sec.11 (3), where the tenant has not sought permission of the landlord or filed an application under Sec.17 before the accommodation controller for converting the portion of the building for nonresidential purpose and the burden of proof is on the tenant to prove that permission was obtained from the landlord for conversion. In the instant case, absolutely no evidence has been adduced to prove that the tenant has obtained consent of the landlord for conversion and sanction was obtained from the accommodation controller for converting a portion of the building for non-residential purposes as contemplated in the above decision. Therefore in view of the above decision, the Appellate Authority is justified in reversing the findings of the Rent Control Court in this respect also. **RCR.278/2017** **==> picture [7 x 9] intentionally omitted <==** Thus we find that there is no illegality or impropriety in any of the findings whereby the Appellate Authority reversed the findings of the Rent Control Court. Hence, this Revision Petition stands dismissed. 10.Having regard to the entire facts and circumstances of the case, the revision petitioner/tenant is given six months' time from today to vacate the petition schedule building, on the following conditions. (1). The revision petitioner/tenant shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that he will vacate the petition schedule building within six months from today. (2).The revision petitioner/tenant shall deposit the entire arrears, if any, within one month, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay the rent without default. **RCR.278/2017** 10 (3). In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the landlord will be at liberty to proceed with the execution of the eviction order. **Sd/K.HARILAL Judge** **Sd/A.M.BABU Judge** Mrcs/25.8 //True Copy// P.S.To Judge