Mohammed Arshid v. P.P.SHAMEEM

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 30[TH] DAY OF MARCH 2022 / 9TH CHAITHRA, 1944 R.C.REV.NO. 13 OF 2020** **AGAINST THE JUDGMENT DATED 15.10.2019 IN R.C.A.NO.50 OF** **2014 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-II), THALASSERY AND THE ORDER DATED** **19.12.2013 IN R.C.P.NO.129 OF 2013 OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF), KANNUR** ## **REVISION PETITIONER:** ## **MOHAMMED ARSHID,** **AGED 36 YEARS, S/O.MOIDEENKUNHI, RAZIYAS, P.O.CHALAD, KANNUR, THROUGH HIS P.A.HOLDER, T.M.MUHAMMED ALI, S/O.HASSANKUNHI, AGED 65 YEARS, JASEERA, THALIKAVU, KANNUR - 670 001.** **BY ADV K.RAJESH SUKUMARAN** ## **RESPONDENT:** **P.P.SHAMEEM,** **S/O.MAHAMOOD, AGED 39 YEARS, TASTY CORPORATION, ALADIN COMPLEX, KAKKAD ROAD, KANNUR - 670002.** **BY ADV SRI.T.V.JAYAKUMAR NAMBOODIRI** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 21.03.2022, THE COURT ON 30.03.2022 DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.13 of 2020 ## **O R D E R** ## Ajithkumar, J. The revision petitioner-landlord filed R.C.P.No.129 of 2013 before the Rent Control Court (Principal Munsiff), Kannur, seeking eviction of the respondent-tenant under Section 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The Rent Control Court as per order dated 19.12.2013 allowed the rent control petition and directed the respondent to surrender vacant possession of the petition schedule shop room within four months from the date of that order. He preferred an appeal under Section 18(1)(b) of the Act. The Rent Control Appellate Authority (Additional District Judge-II), Thalassery, as per judgment dated 15.10.2019 allowed the appeal. Feeling aggrieved thereof, the petitioner has filed this revision petition under Section 20 of the Act. 2. On 23.01.2020, this Court admitted the revision to file and directed notice to be sent to the respondent by speed post. 3 R.C.Rev.No.13 of 2020 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. The petition schedule shop room is the eastern room in the ground floor of a three-storied building owned by the petitioner. It was let out to the respondent as per a lease deed dated 18.09.2010. The petitioner alleges that the respondent had demolished eastern wall of the petition schedule shop room, thereby the shed belonging to another person was annexed with the petition schedule shop room. That resulted in diminishing the value and utility of the petition schedule shop room materially and permanently. On that ground the petitioner sought to order eviction of the respondent. 5. The respondent resisted the petition for eviction by filing a counter statement in which he contended that the wall was removed by the previous owner before it was let out to the petitioner. Shed on the eastern side belongs to the mother-in-law of the petitioner. Father-in-law of the 4 R.C.Rev.No.13 of 2020 petitioner was earlier conducting a hotel in the petition schedule shop room together with the eastern shed. The respondent carried out a few modifications to the petition schedule shop room and the eastern shed by paving tiles and providing a false ceiling with the permission of the landlord and the owner of the eastern shed. Therefore, the allegations that the respondent by removing the eastern wall and thereby reduced the value and utility of the petition schedule shop room materially and permanently, is baseless. 6. The Rent Control Court during trial recorded the oral evidence of PW1 and RW1 and marked Exts.A1 to A3 and C1. After hearing both sides, the Rent Control Court found that the eastern wall of the petition schedule shop room was removed by the respondent, whereby the value and utility of the building was materially affected and accordingly eviction was ordered. 7. The Appellate Authority, however, after reappreciating the evidence held that there was a purposeful attempt on the part of the petitioner to suppress material 5 R.C.Rev.No.13 of 2020 facts and there was no evidence to prove that the wall was removed by the respondent, and resultantly reversed the findings of the Rent Control Court. 8. The learned Counsel appearing for the petitioner would contend that description of the petition schedule shop room in Ext.A1, rent deed itself is enough to show that the room was taken on rent by the respondent under an independent tenancy. In the absence of any recital in Ext.A1 and as it is illogical to say that a permanent side wall of a multi-storied building would be removed by its owner, it can be concluded that the wall was removed by the respondent. The learned counsel would point out that the evidence let in by PW1 together with the report of the Commissioner as per Ext.C1 has convincingly proved that the wall was removed by the respondent. RW1, the respondent, admitted that he has carried out certain changes to the petition schedule shop room, which also, in his view, infers that the respondent has removed the wall. 9. The learned Counsel for the respondent, on the 6 R.C.Rev.No.13 of 2020 other hand, would contend that the petition schedule shop room as well as the shed on the eastern side were availed on rent by the respondent from the respective owners on the same day. That along with the admission of PW1, who is the power of attorney holder of the petitioner, that he was earlier conducting a hotel, in the petition schedule shop room and the eastern shed would improbabilize the plea of the petitioner. The petition schedule shop room originally belonged to one Majeed, who is a co-brother of PW1. Shed on the eastern side is owned by the mother-in-law of the petitioner, who is the wife of PW1. Pointing out those facts, the learned Counsel for the respondent would contend that the respondent's case is more probable. 10. In **Mohammed Hajee P.V. v. Mundoli Muhammed Hajee [2011 (1) KHC 562]** this Court held that “the demolition of the wall separating the two rooms would reduce the value and utility of the petition schedule building. Probably, making two rooms into one may increase the utility of the tenant. But the utility of the landlord cannot 7 R.C.Rev.No.13 of 2020 be ignored. Landlord had designed and built the rooms by spending money and materials to suit his needs and utility. Tenant has no right to demolish the wall in between the rooms and to say that thereby the value and utility are increased.” hence, once it is proved that the wall was removed, the inevitable consequence, ordinarily, is an order of eviction. 11. Reluctant initially, but PW1 admitted during crossexamination that he earlier had conducted a hotel in the petition schedule shop room. The shed on the eastern side belonging to his wife was also utilised for the conduct of the hotel. The petition schedule shop room at that time belonged to Sri.Majeed, from whom it was subsequently purchased by the petitioner. Ext.A1 is the lease deed executed by the respondent in favour of the petitioner. PW1, however, admitted that earlier to Ext.A1 also the respondent was the tenant therein. By execution of Ext.A1 the tenancy newly created thereby eclipsing the previous tenancy. Nonetheless, it is a fact that the same premises had been in the 8 R.C.Rev.No.13 of 2020 possession and occupation of the respondent even prior to execution of Ext.A1. 12. As against the version of PW1 that the eastern wall was removed by the respondent, after execution of Ext.A1, he as RW1 deposed denying that allegation. It is his version that the eastern wall was not there even at the time of his availing the petition schedule shop room on rent. 13. The Rent Control Court pointing out that RW1 admitted during cross-examination that he carried out changes with the permission of the previous owner, concluded that the demolition of the wall was done by the respondent. On a reading of the deposition of RW1 in whole, it is not able to find any such admission. He only stated that he had carried out some changes in the room. That has to be understood in the light of his specific pleading that he modified the shop room and the shed with the consent of the landlords by paving tiles and providing a false ceiling. As rightly contended by the learned Counsel for the respondent, it is inappropriate to cull out a stray sentence from the 9 R.C.Rev.No.13 of 2020 evidence of a witness to reach the conclusion. In **Boramma v. Krishna Gowda and others [(2000) 9 SCC 214]** , the Apex Court dilated the the rule that it is not a sound mode of appreciation of evidence by picking up stray sentences in the oral testimony in isolation to draw inferences. The Apex Court held, '10. xx xx In our view it will not be a sound rule of appreciation of evidence to pick up an answer from the cross-examination of a witness and draw inference taking it in isolation. The Court must see as to how consistent the testimony of the witness is and as to how that answer fits in with the rest of the evidence and probabilities of the case. From the sentence stated in the cross-examination where the question is also not recorded, we are unable to infer inability of the Respondents in performing their part of the contract after filing of the suit nor can we say that the findings recorded by the trial court, first appellate court and the High Court that the Plaintiffs have been ready and willing to perform their part of the contract have been erroneously arrived at.' 10 R.C.Rev.No.13 of 2020 Therefore, we are of the view that the Rent Control Court should not have placed reliance on such a statement to hold that the wall was removed by the respondent. 14. The Advocate Commissioner was asked to ascertain as to whether the eastern wall was removed. Ext.C1 is the report. It has been reported that there is no wall on the eastern side of the petition schedule shop room and the same has been joined with the shed on the eastern side, and being used as a single unit. It was reported in Ext.C1 as stated by PW1, who was present at the time of inspection, that on the eastern side of the petition schedule shop room it was a shutter and the respondent agreed to replace that shutter with a brick wall, but he did not honour his promise. It was further alleged that the shutter on the eastern side was removed and it was placed on the southern side of the shed. Of course, when the Commissioner reported such a fact based on the information gathered from PW1, it only amounts to hearsay information and inadmissible in evidence. 11 R.C.Rev.No.13 of 2020 15. In the absence of any evidence to prove, at what point of time the wall was removed, what is possible is to draw inference from the proved circumstances. It has not been stated in the petition or even the chief-examination of PW1 that the eastern shed belongs to the wife of PW1, who is the mother-in-law of the petitioner. It has not been stated that PW1 was earlier conducting a hotel in the petition schedule shop room as well as its eastern shed. That being the nature of oral testimony of PW1, and as it is unsupported by any other evidence, we are unable to rely on it to enter into a positive finding that the wall was removed by the respondent after his getting possession of the premises as per Ext.P1. The petition schedule shop room as well as the eastern shed were modified by the respondent by paving tiles and providing false ceiling. That has not been objected to. At the time of carrying out such modifications, the wall should not have been there as could be inferred from Ext.C1. Taking into account all such aspects, we are of the view that the Appellate Authority is right in holding that evidence is 12 R.C.Rev.No.13 of 2020 insufficient to prove that the wall was removed by the respondent after his getting possession of the room on rent as per Ext.P1. We hold that the decision of the Appellate Authority to allow the appeal and consequently to dismiss the rent control petition is not liable to be interfered with on the ground of illegality, irregularity or impropriety. Hence, we hold that this revision fails, hence we dismiss it. Sd/- ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr