N.V. Kousalya and others v. Sulekha and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU** **TUESDAY, THE 24TH DAY OF OCTOBER 2017/2ND KARTHIKA, 1939** ## **RCRev..No. 310 of 2016 (D)** ## **--------------------------** **RCA 1/2012 of RENT CONTROL APPELLATE AUTHORITY/- II ADDL.DISTRICT COURT, KALPETTA** **RCP 7/2008 of THE RENT CONTROL COURT/MUNSIFF-MAGISTRATE COURT, MANANTHAVADY** ## **REVISION PETITIONER(S)/APPELLANTS/RESPONDENTS:** **--------------------------------------------** **1. N.V.KOUSALYA AGED 63 YEARS, W/O.BALAKRISHNAN, KOTTOOR HOUSE, PANAMARAM POST, MANANTHAVADY TALUK, WAYNAD DISTRICT.** **2. P.SUJITH** - **AGED 37 YEARS, D/O.BALAKRISHNAN, KOTTOOR HOUSE, PANAMARAM POST, MANANTHAVADY TALUK, WAYNAD DISTRICT.** **3. P.AJITH PRASAD AGED 35 YEARS, S/O.BALAKRISHNAN, KOTTOOR HOUSE, PANAMARAM POST, MANANTHAVADY TALUK, WAYNAD DISTRICT.** **4. P.PRAJITHA AGED 33 YEARS, D/O.BALAKRISHNAN, KOTTOOR HOUSE, PANAMARAM POST, MANANTHAVADY TALUK,WAYNAD DISTRICT.** **5. P.LEKHA AGED 31 YEARS, D/O.BALAKRISHNAN, KOTTOOR HOUSE, PANAMARAM POST, MANANTHAVADY TALUK,WAYNAD DISTRICT.** **6. P.SEENA AGED 28 YEARS, D/O.BALAKRISHNAN, KOTTOOR HOUSE, PANAMARAM POST, MANANTHAVADY TALUK,WAYNAD DISTRICT.** - **BY ADVS.SRI.M.SASINDRAN SRI.SATHEESHAN ALAKKADAN** **....2** **RCRev..No. 310 of 2016 (D)** **2** ## **RESPONDENT(S)/RESPONDENTS/PETITIONERS:** **--------------------------------------** ## **1. SULEKHA** **AGED 63 YEARS, W/O.KHADER, KUNIYIL CHOMBALAN HOUSE, PANAMARAM, KUPPATHODE, PANAMARAM POST -670 721, MANANTHAVADY TALUK, WAYNAD DISTRICT.** ## **2. K.C.SADEENA** **AGED 41 YEARS, D/O.KHADER, PERINGALAM POST** **- 670 354, THALASSERY, KANNUR DISTRICT.** ## **3. K.C.NISSAR** **AGED 39 YEARS, S/O.KHADER, KUNIYIL CHOMBALAN HOUSE, PANAMARAM, KUPPATHODE, PANAMARAM POST - 670 721, MANANTHAVADY TALUK, WAYNAD DISTRICT.** **4. K.C.AFSATH** **AGED 33 YEARS, D/O.KHADER, PERINGALAM POST - 670 354, THALASSERY TALUK, KANNUR DISTRICT.** ## **5. K.C.SHAMSEENA** **AGED 33 YEARS, D/O.KHADER, PERINGALAM POST -670 354, THALASSERY TALUK, KANNUR DISTRICT.** ## **6. T.K.YOUNUS** **AGED 36 YEARS, S/O.POCKER HAJI, THAIKKANDY HOUSE, PANAMARAM POST - 670 721, MANANTHAVADY TALUK, WAYNAD DISTRICT.** **R1-R5 BY ADVS. SRI.P.B.KRISHNAN** **SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.S.NITHIN** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 24-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OKB** **==> picture [203 x 12] intentionally omitted <==** --------------------------R.C.R. No.310 of 2016 --------------------------Dated this the 24[th] day of October, 2017 ## O R D E R ## **Harilal, J.** The legality and propriety of the concurrent findings under Section 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short “the Act”) have come up in this revision filed by the tenants. The parties are referred to as in the Rent Control Petition. 2. According to the petitioners, the 3[rd] petitioner was working as a salesman for a meagre remuneration in a shop and his salary alone is not sufficient to maintain his family. So he bona fide needs the tenanted premises to start a stationery shop to eke out livelihood for his family. The respondents had sublet the petition schedule shop room to the 7[th] respondent, without consent or knowledge of the petitioners, for a rent of Rs.2,400/- per month. The petitioners have no other buildings of their own in their RCR.310/16 **:2:** possession for starting the said business. Thus, the petitioners bona fide need the petition schedule shop room for the occupation of the 3[rd] petitioner, who requires the building for conducting a stationery shop. 3. The respondents, who are the legal heirs of the original landlord, admitted that after the death of the original landlord the respondents 1, 3, 5 and 6 are conducting business in the petition schedule shop room. They opposed the need projected in their petition contending that there is no bona fides in the need and it is a ruse for eviction only. Further they denied the allegation that they have sublet the petition schedule shop room to the 7[th] respondent. According to them, they are entitled to get protection under the second proviso to Section 11(3) of the Act as the respondents 1, 3, 5 and 6 are depending on the income from the tenanted premises and no other alternative buildings are available in the locality to shift the business from the tenanted premises. 4. Both parties adduced evidence which consists of the oral testimony of PW1 to PW6 and RW1, the RCR.310/16 **:3:** documentary evidence Exts.A1 to A7, B1 to B4 and C1 to C3. After considering the aforesaid evidence on record the Rent Control Court passed an order of eviction under Section 11(3) and 11(4)(i) of the Act. In the appeal preferred by the respondents the Appellate Authority also confirmed the order of eviction granted by the Rent Control Court as such without any interference and dismissed the appeal. 5. In order to prove the bona fides of the need the 3[rd] petitioner, who requires the petition schedule shop room for starting a stationery business, was examined as PW3. He has testified as to bona fides of his need. According to him, he is aged 39 years old and he has no sufficient income to maintain his family consists of wife and two children. Now he is working as a helper in his sister's shop and he wants to start an independent business of his own for the livelihood of his family. After examining the oral testimony of PW1 the courts below concurrently found that the respondents failed to bring out any material to discredit the need spoken to by PW3 in his chief RCR.310/16 **:4:** examination. The courts below placed reliance on his evidence and found that the need projected in the petition is a bona fide one and we do not find any reason to interfere with the concurrent findings of the courts below in this respect. 6. Coming to the first proviso, the respondents contended that the petitioners have the first floor of the building in their possession and the 3[rd] petitioner could have started the business in the first floor of the petition schedule building. But, there is no evidence to prove that the first floor of the petition schedule building is in exclusive possession of the petitioners. According to the petitioners, they are co-owners of the first floor. It is needless to say, the burden is on the tenant to prove that the landlord has another building of his own in his possession, under the first proviso to section 11(3) of the Act. In the absence of positive evidence to prove the ownership and vacant possession of the first floor of the building by the petitioners the courts below are justified in finding that the claim under section 11(3) is not hit by the RCR.310/16 **:5:** first proviso to section 11(3). That apart, it has come out in evidence in Ext.C2 report and the evidence of PW1 that the first floor of the petition schedule shop room is not fit for conducting a stationery shop. Thus, even otherwise the petitioners have given special reasons for not occupying the first floor of the petition schedule building. 7. Coming to the second proviso to Section 11(3) of the Act, admittedly, the respondents 2 and 4 are working as teachers and they are not depending upon the income from the tenanted premises. During the cross-examination, RW1 has deposed that he had been maintaining bill books for his business. It was not produced before the court. According to him, there was no sales tax registration for his business as he has no sufficient income to pay tax. From the said admission it could be presumed that the business is not running profitably. So it cannot be said that the respondents are depending on the income from the tenanted premises. 8. So also it is submitted that no declaration was submitted before the sales tax officer stating that they have RCR.310/16 **:6:** no sufficient income from the said business. In short, no document has been produced to prove that the respondents are conducting business in the petition schedule shop room and non-production of the documentary evidence to substantiate the conduct of the business in the petition schedule building is significant in view of the specific contention of the petitioners that the respondents have already sublet the petition schedule building to the 7[th] respondent. 9. As regards the availability of other alternative buildings in the locality, the burden is on the respondents and they have not adduced any evidence to show that no other alternative vacant buildings are available in the locality. On the other hand, during cross-examination RW1 himself admitted that the construction of a new building was in progress near the petition schedule shop room and that building consists of more than six rooms. In the absence of evidence to prove the non-availability of vacant buildings in the locality the courts below are justified in finding that the respondents are not entitled to get RCR.310/16 **:7:** protection under the second proviso. 10. Coming to the order of eviction under section 11 (4)(i) of the Act, it is the specific case of the petitioners that the respondents, after the death of original tenant, who are the legal heirs of the original tenant, have subleased the petition schedule shop room to the 7[th] respondent and now he is conducting business in the petition schedule shop room and paying Rs.2,400/- per month to the respondents. The petitioners have taken out a commission to ascertain the occupancy status of the petition schedule shop room at the time of filing the Rent Control Petition. The Commissioner has filed Ext.C1 report wherein he had reported that at the time of her visit the 3[rd] respondent was not present in the shop room and one Shinoj was conducting the business and he told her that he is employed by the 7[th] respondent. In **Unni Vacco v. Thankamma Gregory** [2003 (2) KLT 459] this Court held that the sublease is a clandestine transaction and it is very difficult to get direct evidence. Therefore, if a person other than the tenant is found to be in the building, the burden is RCR.310/16 **:8:** on the tenant to show that there is no sublease or transfer of possession. Thus, the burden was heavy on the respondents to prove that they have been conducting the business in the petition schedule shop room and they have not subleased the petition schedule shop room to the 7[th] respondent. 11. The respondents have produced Exts.B1 and B2 documents to prove the conduct of the business in the petition schedule shop room by them. Ext.B1 is a certified copy of the licence issued by the Secretary dated 1/4/2011 and Ext.B2 is the registration certificate obtained from the Assistant Labour Officer, Mananthavadi dated 19/4/2011. It is needless to say, they have obtained those documents during the pendency of the Rent Control Petition; that too three years after the filing of the Rent Control Petition. So also it does not relate to the relevant period, ie the date of filing the Rent Control Petition. Had they been in occupation of the petition schedule shop room, certainly they could have produced the licence and registration certificate from the Labour Officer during the period RCR.310/16 **:9:** 2008-2009 or 2007-2008. In the absence of such evidence it could be reasonably presumed that the respondents were not conducting business in the petition schedule shop room during the relevant period. 12. In the above view, the courts below are justified in finding that the respondents have failed to discharge the burden of proof cast on them in view of the commission report. In the above analysis, we find that there is no illegality or impropriety in the concurrent findings of the courts below that the respondents have sublet the petition schedule shop room to the 7[th] respondent and thereby the petitioners are entitled to get an order of eviction under section 11(4)(i) of the Act. Thus, there is no illegality or impropriety in any of the findings of the courts below. Consequently, this Rent Control Revision stands dismissed. All pending interlocutory applications will stand closed. (K.HARILAL, JUDGE) ## (A.M.BABU, JUDGE) okb. //True copy// P.A. to Judge