M.P.KADEEJA D/O MOOSA HAJI v. DR.P.ABDURAHIMAN HAJEE

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA MONDAY, THE 21[ST] DAY OF NOVEMBER 2022 / 30TH KARTHIKA, 1944 RCREV. NO. 110 OF 2019** **AGAINST THE COMMON JUDGMENT DATED 02.11.2018 IN RCA NO.148 OF 2015 ON THE FILE OF THE RENT CONTROL APPELLATE AUTHORITY ,THALASSERY CONCURRING WITH THE COMMON ORDER IN RCP NO.84 OF 2013 DATED 22.08.2015 OF THE RENT CONTROLLER (MUNSIFF), KUTHUPARMBA.** ## **REVISION PETITIONERS/RESPONDENTS/RESPONDENTS:** 1 DR.P.ABDURAHIMAN HAJEE S/O.HAMEED, AGED 63, RESIDING AT POYILA HOUSE, (PO) IRITTY. 2 POLIYAN ALEEMA, AGED 78 YEARS W/O.HAMEED HAJEE, BUSINESS, RESIDING AT POYILAN HOUSE, PO.IRITTY. 3 POYILAN MUHAMMED, AGED 55 YEARS S/O.HAMEED HAJEE, BUSINESS, RESIDING AT POYILAN HOUSE, PO.IRITTY. 4 POYILAN AZEEZ AGED 53 YEARS S/O.HAMEED HAJEE, BUSINESS, RESIDING AT POYILAN HOUSE, PO IRITTY. 5 POYILAN LATHEEF, AGED 51 YEARS S/O.HAMEED HAJEE, BUSINESS, RESIDING AT POYILAN HOUSE, PO IRITTY. 6 POYILAN AYOOB AGED 49 YEARS S/O.HAMEED HAJEE, BUSINESS, RESIDING AT POYILAN HOUSE, PO. IRITTY. 7 POYILAN AYISHABI, AGED 46 YEARS D/O.HAMED HAJEE, BUSINESS, RESIDING AT POYILAN HOUSE, PO.IRITTY. 8 POYILAN RUKHIYA, R.C.R.Nos.110 and 112 of 2019 2 AGED 43 YEARS D/O.HAMEED HAJEE, BUSINESS, RESIDING AT POYILAN HOUSE, PO.IRITTY 9 PYILAN MISRIYA AGED 41 YEARS D/O.HAMEED HAJEE, BUSINESS, RESIDING AT POYILAN HOUSE, PO.IRITTY BY ADV ASHWIN SATHYANATH ## **RESPONDENT/APPELLANT/PETITIONER:** M.P.KADEEJA AGED 60 YEARS D/O.MOOSA HAJI, NO OCCUPATION, RESIDING AT K.C.HOUSE, CHELERI AMSOM, NUNHERI DESOM, TALIPARAMBA TALUK, PIN-670644. BY ADVS. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 21.11.2022, ALONG WITH RCRev..112/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.C.R.Nos.110 and 112 of 2019 3 **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA MONDAY, THE 21[ST] DAY OF NOVEMBER 2022 / 30TH KARTHIKA, 1944** **RCREV. NO. 112 OF 2019** **AGAINST THE JUDGMENT DATED 02.11.2018 IN RCA NO.146 OF 2015 ON THE FILES OF THE RENT CONTROL APPELLATE AUTHORITY,THALASSERY CONCURRING WITH THE COMMON ORDER IN RCP NO.84 OF 2013 DATED 22.08.2015 OF THE RENT CONTROLLER (MUNSIFF), KUTHUPARAMBA** ## **REVISION PETITIONERS/APPELLATE/RESPONDENTS:** 1 DR.P.ABDURAHIMAN HAJEE AGED 63 YEARS S/O. HAMEED, RESIDING AT POYILAN HOUSE, P.O IRITTY. 2 POYILAN ALEEMA, AGED 78 YEARS W/O. HAMEED HAJEE, BUSINESS, RESIDING AT POYILAN HOUSE, P.O IRITTY. 3 POYILAN MUHAMMED, AGED 55 YEARS S/O. HAMEED HAJEE, BUSINESS, RESIDING AT POYILAN HOUSE, P.O IRITTY. 4 POYILAN AZEEZ, AGED 53 YEARS S/O. HAMEED HAJEE, BUSINESS, RESIDING AT POYILAN HOUSE, P.O IRITTY. 5 POYILAN LATHEEF, AGED 51 YEARS S/O. HAMEED HAJEE, BUSINESS, RESIDING AT POYILAN HOUSE, P.O IRITTY. 6 POYILAN AYOOB, AGED 49 YEARS S/O. HAMEED HAJEE, BUSINESS, RESIDING AT POYILAN HOUSE, P.O IRITTY. 7 POYILAN AYISHABI, AGED 46 YEARS D/O. HAMEED HAJEE, R.C.R.Nos.110 and 112 of 2019 4 BUSINESS, RESIDING AT POYILAN HOUSE, P.O IRITTY. 8 POYILAN RUKHIYA AGED 43 YEARS D/O. HAMEED HAJEE, BUSINESS, RESIDING AT POYILAN HOUSE, P.O IRITTY. 9 POYILAN MISRIYA, AGED 41 YEARS D/O. HAMEED HAJEE, BUSINESS, RESIDING AT POYILAN HOUSE, P.O IRITTY. BY ADV ASHWIN SATHYANATH ## **RESPONDENT/RESPONDENT/PETITIONER:** M.P.KADEEJA D/O. MOOSA HAJI, AGED 63, RESIDING AT K.C HOUSE, CHELERI AMSOM, NUHERI DESOM, TALIPARAMBA TALUK, PIN-670644. BY ADVS. SRI.K.V.PAVITHRAN SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 21.11.2022, ALONG WITH RCRev..110/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.C.R.Nos.110 and 112 of 2019 5 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **--------------------------------------------------** ## **R.C.R.Nos.110 and 112 of 2019** **------------------------------------------Dated this the 21[st] day of November, 2022** ## **O R D E R** ## **C.S.Sudha, J.** These R.C.Rs under Section 20 of the Kerala Building (Lease and Rent Control) Act, 1965(the Act) have been filed by the appellants in R.C.A.No.146/2015 and the respondents in R.C.A.No.148/2015, which appeals were filed against the order dated 22/08/2015 in R.C.P.No.84/2013 on the file of the Rent Control Court (RCC), Kuthuparamba. The revision petitioners are the respondents-tenants in the R.C.P. The respondent herein, the petitioner-landlord in the R.C.P. The parties and the document will be referred to as described in the R.C.P. 2. R.C.P. No.84/2013 was filed seeking fixation of fair rent under Section 5 of the Act as well as seeking eviction under Section 11(2)(b), 11(3) and 11(4)(iii) of the Act. The petitioners in the R.C.P alleged that the petition schedule building originally belonged to Moossa Haji. On his death, his right over the entire building consisting of five rooms including the petition schedule room devolved on his legal heirs including the petitioner. While the legal heirs of the Moossa Haji were enjoying the property as co-owners, the petitioner purchased the undivided right of her brothers as per assignment deed on 09/04/1974. The petitioner is managing the R.C.R.Nos.110 and 112 of 2019 6 building as per a family settlement and she has been receiving rent from the tenant. The possession of the petitioner is on the basis of a family settlement. After the death of Moossa Haji, the petitioner’s mother Kunhamina Hajumma was managing the properties. About 43 years back she let out the schedule premises on rent to Hameed Haji. After the death of Hameed Haji, the 1[st] respondent has been in possession and occupation of the building as a tenant and paying the rent. As such the 1[st] respondent alone is the tenant of the petition schedule building. The 1[st] respondent has paid rent up to 30/11/2000. In order to avoid unnecessary complications, the other legal heirs of the Hameed Haji, have also been impleaded as respondents 2 to 9. 2.1. The rent of the building was paid up to 30/11/2000 at the rate of ₹500/per month. There was an oral agreement between the parties for revision of the rent at the rate of ₹600/- from 01/01/2001 on wards and thereafter a hike of ₹50 every year. Contrary to the agreement regarding the rent revision, 1[st] respondent-tenant has paid the rent at the rate of ₹500/- only. Thus there is arrears of rent for the period from 01/01/2000. Initially, the petitioner had filed R.C.P.No.18/2005 seeking eviction of the respondents under Section 11(2)(b), 11(3) and 11(4)(iii) of the Act. The respondents had denied the need alleged in the R.C.P. During the pendency of the R.C.P., the 1[st] respondent had agreed to purchase the building for a total consideration of ₹20 lakhs. Pursuant to the agreement, a sum of ₹1,50,000/- was paid and a sale agreement dated 16/10/2000 was also executed. The petitioner believing that she would be able to use the sale consideration for the purchase of the another building R.C.R.Nos.110 and 112 of 2019 7 for the purpose of his son, whose need had been pleaded in the petition, did not further prosecute the R.C.P. After the dismissal of the R.C.P., the respondents therein refused to perform their part of obligation. The sale agreement had been executed between the petitioner and the 3[rd] respondent therein. Realizing that the respondents were cheating the petitioner, she made an attempt to get the R.C.P restored. However, the application was dismissed. Against the dismissal of the restoration application, R.C.A.No.133/2009 filed before the RCAA, Thalassery, was also dismissed. During the pendency of the said R.C.A, that is, about two years back the petitioner’s son Muhammedali, realizing that there was no possibility of getting vacant possession of the petition schedule building for his need, left India and now he is working in Abu Dhabi. Thus, the need of Muhammedali, pleaded in R.C.P.No.18/2005 ceased to exist. 2.2. The petitioner’s son-in-law Noushad, who was working abroad, returned to India during the first half of the year 2013. He intends to start a grocery business in Iritty . Petitioner’s husband Hamza is also interested in helping Noushad in the running of the business. Neither Noushad nor his wife are in possession of any building suitable for their need. Noushad as well as the petitioner's husband are depending on the petitioner for the building for the purpose of starting the business. In the said circumstance, the petitioner withdrew R.C.A.No.133/2009 and has filed the present R.C. P. R.C.R.Nos.110 and 112 of 2019 8 2.3. A lawyer notice was issued to the respondents demanding arrears of rent at the rate of ₹500/- per month. The petitioner also claims fixation of fair rent of the building at the rate of ₹ 15,000/- per month. According to her, taking into consideration the locality and the importance of the building as well as the rate of rent prevailing in the locality, the petition schedule building would fetch at least ₹15,000/- per month. The respondents are not entitled to the benefit of the second proviso to Section 11(3). Hence eviction was sought on the aforesaid grounds. 3. The respondents filed a joint counter denying the allegations in the R.C.P. According to them the petitioner has no title to the petition schedule room. At best she she can only claim to be a co-owner of the property. It is understood that the other co-owners are not supporting the need alleged by the petitioner. The petition schedule room along with certain other rooms belonged to the petitioner’s father Moossa Haji. On his death, the property devolved upon his legal heirs including the petitioner. Moossa Haji is survived by his two wives and children through them. Though the petitioner has pleaded that she is in possession of the property on the basis of a family settlement, no deed evidencing the family settlement has been produced. It is further understood that though proceedings for partition of the property had been initiated, the same has not reached finality. Moossa Haji’s wife Kunhamina Hajumma, the mother of the petitioner had let out the petition schedule room to Hameed Haji who is no more. The respondents are his wife and children. Hameed Haji was conducting a business in Ayurvedic products, which business is R.C.R.Nos.110 and 112 of 2019 9 being continued in the petition schedule room. The respondents were paying rent to Kunhamina Hajumma who passed away in 09/01/2004. Rent till December 2013 had been paid. However, no rent receipt was issued till date as it was not insisted upon by the respondents. The allegation that rent has been paid only up to 30/11/2000 is incorrect and wrong. The respondents had paid rent up to and inclusive of December, 2013 and only rent from January 2014 is in arrears. The subsequent rent could not be given as the respondents were not sure as to the person to whom the rent had to be paid. The allegation that there was an oral agreement for revision of rent is false and baseless. The rent being paid by the respondents is only ₹250/- per month. The respondents are only liable to pay arrears of rent from January 2014 at the rate of ₹250/- per month. The need alleged is not _bona fide_ and it is a mere ruse for eviction. The fact that the need is not _bona fide_ is clear from the fact that the petitioner had earlier filed R.C.P.No.18/2005, alleging a different need. The petitioner had agreed to sell the schedule room to the 3[rd] respondent and an agreement had been executed for sale, while R.C.P.No.18/2005 was pending. A sum of ₹1,50,000/- was also paid by the 3[rd] respondent as advance sale consideration to the petitioner. The total sale consideration fixed for the property was ₹20 lakhs. It is thereafter, the 3[rd] respondent came to know that the petitioner does not have clear title over the property. As the petitioner was unable to satisfactorily explain her title over the property, the transaction failed to materialize. The very fact that the petitioner agreed to sell the tenanted premises while the R.C.P was pending, would show that the claim made R.C.R.Nos.110 and 112 of 2019 10 therein was baseless and false. Now, she has come up with a new case, which is also without any _bona fides_ . The respondents also contended that they are entitled to the benefit of the second proviso to Section 11(3). 4. PW1 and 2 were examined and Exts.A1 to A12 were marked on the side of the petitioner. RW1 was examined and Exts.B1 to B18 were marked on the side of the respondents. The report of the Advocate Commissioner has been marked as Ext.C1. The RCC after considering the oral and documentary evidence, rejected the plea for eviction under Section 11(3) and 11(4)(3) on the ground that a co-owner with out the junction of the other co-owners, cannot find a petition for eviction. This finding was arrived at based on Ext.B6, the R.C.P. filed by another legal heir of Kunhamina Hajumma, claiming co-ownership right of the tenanted premises. However, the ground under section 11(2)(b) was allowed. Fair rent was also fixed at the rate of ₹9,000/- per month. Both the petitioner as well as the respondents aggrieved by the aforesaid order, took up the matter in appeal. R.C.A.No.146/2015 was filed by the respondents-tenants and R.C.A.No.148/2015 was filed by the petitioner-landlord. The RCAA, by the impugned judgment, allowed R.C.A.No.146/2015 in part, by confirming the order of eviction passed under section 11(2)(b) and also the fixation of fair rent. However, the periodical increase of 10 % per annum granted by the RCC was set aside. R.C.A.No.145/2015 was also allowed in part and the order of the RCC rejecting the claim for eviction under Section 11(3) was set aside. The prayer for eviction under Section 11(3) has been allowed and the R.C.R.Nos.110 and 112 of 2019 11 tenants have been directed to surrender vacant possession of the premises within two months from the date of the impugned judgment. The order of the RCC rejecting the ground for eviction under Section 11(4)(iii) has been confirmed. Aggrieved by the impugned judgment, the respondents -tenants have come up in revision. 5. The only point that arises for consideration in this appeal is whether there is any illegality, irregularity or impropriety in the findings of the courts below. 6. Heard Sri.Aswin Sathyanath, the learned counsel for the petitioners and Sri. K.V.Pavithran, the learned Counsel for the respondent. 7. Section 20 of the Act allows the aggrieved party to challenge the legality regularity or propriety of the order or proceeding of an Appellate Authority. The scope of interference by the revisional court is restricted to cases whether the RCC or the RCAA have relied on irrelavant consideration, ignored valuable items of evidence or applied wrong principles of law. The revisional authority has to satisfy itself of the legality, regularity or propriety of the order or proceedings of the appellate courts. It can only interfere where the impugned order is illegal, irregular or improper. Therefore, we will consider whether there is any illegality, irregularity or impropriety in the findings of the RCAA. 8. The main challenge of the respondents to the impugned judgment is relating to the finding of the RCAA that the R.C.P is maintainable even without the junction of the other co-owners. We have already referred to the allegations contained in the petition and the reply given by the respondents to the same in their counter. R.C.R.Nos.110 and 112 of 2019 12 The fact that the petitioner is only a co-owner of the property is admitted by her in the reply to the interrogatories submitted by the respondents by way of I.A.No.2239/2014. The respondents do not have a case that, the petitioner has no title or ownership over the petition schedule building. Their contention is only that she is only a co-owner of the tenanted premises. In **Kumaran.A v. Madambillath Subaida, 2019 (3) KLJ 866,** it has been held that every co-owner is an owner of each and every parcel of co-ownership property, in so far as a third party is concerned. There is a catena of decisions available for the proposition that one co-owner can file a petition for eviction of a tenant, without the junction of the other co-owners as long as the other co-owners have no objection regarding the rights of the suing co-owner. The law on the point is thus settled. Even if eviction is sought for own occupation of the suing co-owner, and the petition is filed by him without the junction of the other co-owners, it is maintainable, as long as it is not objected by the non-suing coowners. (See also **The Manager, Sai Service Station Ltd. v. Dileep Ganesh, ILR 2022 (1) Kerala 850** ) 9. Here as noticed earlier, the respondents also admit the fact that the petitioner is a co-owner of the tenanted premises. There is no denial of title of the petitioner by the respondents as observed by the RCAA. According to the respondents, one of the legal heirs of Smt.Kunhamina Hajumma, had filed Ext.B6 R.C.P. for eviction of the respondents in the tenanted premises on the ground of his personal need. Therefore, according to the respondents, this itself would show that all R.C.R.Nos.110 and 112 of 2019 13 the co-owners have not consented to the petitioner herein, claiming eviction of the tenanted premises. In the light of Ext.B6, the argument advanced is that the present R.C.P. is not maintainable. This argument of the respondents was accepted by the RCC in denying the ground for eviction under Section 11(3). It is true that Ext.B6 R.C.P. was filed by one of the legal heirs of Smt.Kunhamina Hajumma. It has come out in evidence that Ext.B6 R.C.P. has been dismissed as not pressed. Annexures A15 and A16 orders, dated 13/11/2015 and 16/01/2016 produced by the petitioners before the RCAA, show that the said R.C.P. is no longer pending. It is admitted by the respondents that till date no steps to restore the same has been taken by the petitioner in the said R.C.P. or by his legal representatives. Therefore, it is clear that none of the legal representatives of the petitioner in the Ext.B6 R.C.P. has opted to continue or pursue Ext.B6 proceedings, which makes it clear that presently there are no other co-owner(s) objecting to the petitioner's claim in the present R.C.P. That being the position, the RCAA was right in holding that the R.C.P is maintainable. 10. As far as the ground for eviction under Section 11(2)(b) is concerned, the respondents are only aggrieved by the finding of the RCAA that the rent is in arrears from the 2000 onwards. The RCC on the basis of the materials on record found that rent is in arrears from 2005 onwards. This is not disputed by either side. Hence, the impugned judgment needs to be modified to the said extent. 11. As far as fixation of fair rent is concerned, the petitioner had claimed rent to be fixed at the rate ₹12,000/- per month. The RCC fixed the fair rent at ₹9,000/-per R.C.R.Nos.110 and 112 of 2019 14 month. This according to the respondents is quite exorbitant, as the building is old and dilapidated and hence would not fetch that much of rent. However, the 3[rd] respondent when examined as RW1, admitted in his cross examination that the rent prevailing in the locality for a similar building is ₹200 to ₹300 per day. If that be so, the fair rent of ₹9000 fixed by the RCC and affirmed by the RCAA is quite reasonable. Hence, no interference into the said finding is also called for. In the result, the R.C.Rs are dismissed. Eviction granted under Section 11(2)(b) and 11(3) is confirmed with a modification in the impugned judgment in R.C.A.No.146/2015 that the respondents would be liable to pay rent arrears from 2005 onwards. The respondents shall vacate the tenanted premises within a period of one month from the date of this order. Interlocutory applications, if any pending, shall stand closed. **Sd/P.B.SURESH KUMAR JUDGE** **Sd/-** **C.S.SUDHA JUDGE** Jms/22.11