Muhammed Kunju v. Hussain and Ashik

RCR 78 of 2025 1 2025:KER:27766 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **==> picture [58 x 57] intentionally omitted <==** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR** **FRIDAY, THE 28[TH] DAY OF MARCH 2025 / 7TH CHAITHRA, 1947** **RCREV. NO. 78 OF 2025** **AGAINST THE JUDGMENT DATED 31.01.2025 IN RCA NO.8 OF 2024 OF ADDITIONAL SESSIONS COURT (ADHOC) III, KOLLAM ARISING OUT OF THE ORDER DATED 16.02.2024 IN RCOP NO.11 OF 2015 OF MUNSIFF COURT, KARUNAGAPPALLY** ## **REVISION PETITIONER/APPELLANT/COUNTER PETITIONER:** **MUHAMMED KUNJU AGED 60 YEARS S/O HAJI EBRAHIMKUTTY, KUTTIKIZHAKKATHIL VEEDU, KRISHNAPURAM MURI, KRISHNAPURAM VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT, PIN - 690516** **BY ADVS. GEORGE VARGHESE(PERUMPALLIKUTTIYIL) MANU SRINATH LIJO JOHN THAMPY NIVEDITA MUCHILOTE RIYAS M.B.** ## **RESPONDENTS/RESPONDENTS/PETITIONERS:** **1 HUSSAIN AGED 60 YEARS** **S/O MYTHEEN KUNJU, K.P.HOUSE, WARD NO. XIV, HOUSE NO. 468, SASTHAMCOTTA GRAMA PANCHAYATH, PALLISSERIKKAL MURI, PALLISSERIKKAL P.O., SASTHAMCOTTA VILLAGE, KOLLAM, PIN - 690521** **==> picture [58 x 57] intentionally omitted <==** RCR 78 of 2025 2 2025:KER:27766 **2 ASHIK AGED 34 YEARS S/O ABDUL SALAM, AISHA BUNGLOW, KRISHNAPURAM MURI, KRISHNAPURAM P.O., KRISHNAPURAM VILLAGE, HOUSE NO. XI-4, KRISHNAPURAM GRAMA PANCHAYATH, KARTHIKAPPALLY ALAPPUZHA DISTRICT, PIN - 690516** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 28.03.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** RCR 78 of 2025 3 2025:KER:27766 **==> picture [58 x 57] intentionally omitted <==** ## **ORDER** ## **P.Krishna Kumar, J.** The tenant who suffered an order of eviction under Section 11 (3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (‘the Act’, for short) challenges the concurrent findings of the Rent Control Court and the Rent Control Appellate Authority, by invoking the revisional jurisdiction of this court. 2. The respondents contended that the petitioner herein was given the petition-scheduled shop room on rent by the predecessors-in-interest of the respondents. The respondents purchased the property from the predecessors with the intent to construct a multi-storied building in the plot in which the petition-scheduled building is situated. The need projected by the respondents is that they _bona fide_ require the vacant possession of the scheduled shop room for the construction of such a multistoried building for starting a gold and textile business. **==> picture [58 x 57] intentionally omitted <==** RCR 78 of 2025 4 2025:KER:27766 3. The petitioner herein resisted the eviction petition by contending that the alleged transfer of the scheduled property is a bogus and sham transaction aiming to evict the petitioner from the said building and thus there is no landlord-tenant relationship between them. According to him, he has been occupying the scheduled shop room and running a bronze metal business in continuation of the occupation of his father and grandfather since 1938 and thus he is entitled to get permanent tenancy. It is further contended that the petitioner herein had executed a rent deed on 10.09.2012 with the predecessor-in-interest of the respondents and has been paying rent regularly. 4. During the trial, the respondents examined PW1 to PW4 and proved Exts.A1 to A8, in their evidence. The petitioner examined DW1 and DW2. Exts.X1 to X10 and Exts.C1 and C1(a) Commission report and Mahazer were also marked in evidence. 5. The Rent Control Court disposed of the matter by answering the following issues in favour of the respondents herein: **==> picture [58 x 57] intentionally omitted <==** RCR 78 of 2025 5 2025:KER:27766 - 1.Whether there is landlord-tenant relationship between the parties ? - 2.Whether the petitioners derived title over the petition property ? 3.Whether the counter petitioner/tenant has permanent tenancy right over the petition schedule shop room? - 4.Whether the petitioner succeeded in proving their bonafide need u/s 11(3) of the Act? If so, can the respondent be directed to vacate the disputed shop room? - 5.Whether the petitioners are entitled to evict the counter-petitioner from the petition schedule shop room as prayed for? 6. It was found that the denial of title of the landlord was not _bona fide_ and that the petitioner herein failed to establish that he is entitled to claim permanent tenancy. The court further found that the respondents require the vacant possession of the tenanted building for their own _bona fide_ occupation. The Rent Control Appellate Authority also elaborately considered the contentions of the petitioner herein. The Appellate Authority observed that the question relating to the denial of title and the claim of permanent tenancy was **==> picture [58 x 57] intentionally omitted <==** RCR 78 of 2025 6 2025:KER:27766 not raised before the Appellate Authority by the petitioner herein. After evaluating the evidence on record, the Appellate Authority concurred with the findings of the Rent Control Court. 7. Though the petitioner herein has raised several contentions before the Rent Control Court including the question of denial of title and permanent tenancy, all those questions were found in favour of the respondents herein. It is well-settled law that the protection under Section 11(17) of the Act, based on a tenancy which dates back to a period before 1940, is a personal right and it cannot be claimed by the legal heirs of the original tenant. 8. Even when we heard the learned counsel appearing for the petitioner extensively, no material which is sufficient to interfere with the concurrent finding of fact by both the authorities, has been placed before us. We also note that the petitioner did not produce any reliable material to substantiate his claim that the transfer of the land was only bogus. Thus, as regards the question of denial of title, both the Authorities **==> picture [58 x 57] intentionally omitted <==** RCR 78 of 2025 7 2025:KER:27766 rightly found that the petitioner has no _bona fides_ in raising that contention. 9. There are sufficient materials to hold that the respondents are entitled to get vacant possession of the scheduled building for their own _bona fide_ need. The tenant has not proved the twin conditions for availing the benefit of the 2nd proviso to Section 11(3) of the Act. In **Ubaiba v. Damodaran [(1999) 5 SCC 645]** the Honourable Apex Court held that the power of revision under Section 20 of the Act should not be exercised to reappreciate the evidence and to substitute an independent conclusion in place of the findings arrived at by the Rent Control Court/Appellate Authority. In the absence of any material to show that there is perversity or gross irregularity in the findings of the Courts of the first and second instances, this court is not expected to reconsider the correctness of the concurrent factual findings as to the _bona fide_ need projected by the landlord **.** The petitioner herein failed to point out any such exceptional circumstances. 10. Therefore, this Rent Control Revision Petition **==> picture [58 x 57] intentionally omitted <==** RCR 78 of 2025 8 2025:KER:27766 is dismissed. However, considering the fervent plea made by the learned counsel for the petitioner, six months' time is granted to the petitioner to surrender vacant possession of the petition-scheduled shop room to the respondents, subject to the following conditions: (i) The petitioner shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that he will surrender vacant possession of the petitionscheduled shop room to the respondents- landlords within six months from the date of this order and that, he shall not induct third parties into possession of the petition-scheduled shop room. (ii) The petitioner shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within one month **==> picture [58 x 57] intentionally omitted <==** RCR 78 of 2025 9 2025:KER:27766 from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding month, without any default; (iii) Needless to say, failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition-scheduled shop room will stand cancelled automatically, and the landlords will be at liberty to proceed with the execution of the order of eviction. Sd/- ## **A.MUHAMED MUSTAQUE** **JUDGE** Sd/- ## **P. KRISHNA KUMAR** **JUDGE** sv