P. N. Parameswaran Nair v. Pala Brahmana Samooham Trust and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU** **THURSDAY, THE 24TH DAY OF AUGUST 2017/2ND BHADRA, 1939** **RCRev..No. 265 of 2017 () --------------------------** **AGAINST THE ORDER/JUDGMENT IN RCA 42/2014 OF THE ADDITIONAL RENT CONTROL APPELLATE AUTHORITY-II (SPL. COURT), KOTTAYAM DATED 31-03-2017** **AGAINST THE ORDER/JUDGMENT IN RCP 7/2006 of MUNSIFF COURT (RENT CONTROL COURT), PALA DATED 26-09-2014** **REVISION PETITIONER(S)/APPELLANT/RESPONDENT: -------------------------------------------** **P.N.PARAMESWARAN NAIR, S/O.NARAYANAN NAIR, PUTHOOR HOUSE, PULIYANNOOR KARA AND VILLAGE.** **BY ADV. SRI.P.C.HARIDAS** **RESPONDENT(S)/RESPONDENTS/PETITIONERS:** **--------------------------------------** **1. FOR PALA BRAHMANA SAMOOHAM TRUST, SAMOOHAMADOM BUILDINGS, T.B.ROAD, PALA P.O.,LALAM KARA, LALAM VILLAGE, REPRESENTED BY R.VENKITACHALAM IYER, S/O.V.RAMAKRISHNA IYER, AGED 62 YEARS, RESIDING AT MANALOOR MADOM, PULIYANOOR P.O., DO KARA AND VILLAGE,686573.** **2. S.VENKITACHALM IYER, S/O.V.SUBRAMANIA IYER,** **AGED 66 YEARS, RESIDING AT NALLOOR NADUVILE MADOM, PULIYANNOOR P.O., DO KARA AND VILLAGE-686573.** **3. N.RAMAKRISHNA IYER,** **S/O.NARAYANA IYER, AGED 75 YEARS, RESIDING AT ARACKAL HOUSE, PALA P.O., VELLAPPADU KARA, LALAM VILLAGE-686575.** **R. BY ADV. SRI.P.C.CHACKO(PARATHANAM) (CAVEATOR) R1 BY ADV. SRI.P.C.CHACKO(PARATHANAM)** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 24-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **“CR”** **K.HARILAL & A.M.BABU, JJ. .......................................... RCR No.265 of 2017 ........................................... Dated 24[th] August, 2017** ## **ORDER** ## **K.HARILAL, J.** The revision petitioner is the tenant against whom an order of eviction has been passed concurrently by the courts below under Sec.11 (7) and 11 (4) (iii) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter the Act in short). The landlord is a public religious Trust by name Pala Brahmana Samooham Trust. The parties are referred to as in the Rent Control Petition. 2. According to the first petitioner/landlord, the petition schedule building is required for starting a food processing unit and supermarket. The Trust requires an area of 2200 sq ft for the aforesaid purpose and the building in which the petition schedule shop room situates, has an area of 2200 sq ft. Some other tenants have already surrendered vacant possession of the rooms occupied by them. Thus, the first petitioner bona fide requires the petition schedule shop room for its own occupation. Further it was averred that the respondent/tenant acquired another building in the same locality in the year 2004 2 RCR No.265 of 2017 and that building is convenient and suitable for conducting his business. The respondent resisted the said claim contending that the respondent is conducting a driving school cum auto consultancy by name SB Driving School in the petition schedule shop room. According to the respondent, the need projected in the rent control petition is not a bona fide need and it is a pretence for eviction only. Further, it is contended that the Trust has no title to the petition schedule building, there is no landlord-tenant relationship between the petitioner and the respondent and he had never acknowledged the petitioner, as the landlord of the building. The Trust deed, under which the landlord claims title and possession over the petition schedule building, is a sham document only. According to the respondent, the petition schedule building belongs to Ambalappurathu Brahmana Samooham. As regards the claim under Sec.11 (4) (iii), the respondent contended that even though he has acquired another building, the said building is in the possession of a tenant, to whom the same was let out. 3. On the aforesaid pleadings both parties adduced evidence and after considering the evidence on record the Rent Control Court passed order of eviction under Sec.11 (7) and 11 (4) (iii) of the Act. In appeal the appellate authority also 3 RCR No.265 of 2017 confirmed the findings of the Rent Control Court and dismissed the appeal. Thus the legality and propriety of the concurrent findings under Sec.11 (7) and 11 (4) (iii) are challenged in this revision petition. 4. Heard the learned counsel for the petitioner and the learned counsel for the respondents. 5. Though this revision petition has been filed on various grounds, the learned counsel for the petitioner advanced arguments mainly challenging the findings of the courts below that the first petitioner Trust is a 'public Trust' contemplated under Sec.11(7) of the Act. Secondly it is contended that the courts below went wrong by finding that even though, the Rent Control Petition has been filed claiming bona fide need under Sec.11 (3) of the Act, an order of eviction could be granted under Sec.11 (7) of the Act, if the Rent Control Court is satisfied that the landlord is a public Trust contemplated under Sec.11 (7) of the Act. Thirdly, it is contended that the findings under Sec.11 (4) (iii) are legally unsustainable, so long as the building which has been subsequently acquired by the respondent, during the period of his tenancy, is found in the possession of another tenant, to whom the same was let out by him. 4 RCR No.265 of 2017 6. Therefore the first point to be considered is whether there is any illegality or impropriety in the concurrent findings of the courts below that the landlord is a public Trust as contemplated under Sec.11 (7) of the Act. Put it differently, what is the test to be applied for determining the nature of a Trust? The learned counsel for the petitioner contended that as per Ext A1 Trust deed, the nomenclature of the deed itself obviously shows that it is a private Trust. So there is no scope for any further interpretation to determine the nature of the Trust. _Per contra_ the learned counsel for the landlord contended that the nature of Trust, as a public Trust, is discernible from the object of the Trust specifically stated in Ext A1. The object of the Trust is more decisive and determinant than nomenclature, for determining the nature of Trust. It is a public Trust envisaged for the welfare and benefit of the persons belonging to Brahmin community and residing within the area of Pala Municipality. The beneficiaries under the Trust are a section of general public and if the beneficiaries are a section of the general public, not specific individuals, such Trust also would come under the purview of public Trust. In order to fortify the said argument the learned counsel for the landlord cited **AIR 1957 SC 133 (Deoki Nandan vs.** 5 RCR No.265 of 2017 ## **Murlidhar & Ors).** 7. We have meticulously gone through the aforesaid decision and we find that in the above decision, the test to be applied for the determination of the question, whether an endowment is public or private, is specifically stated as follows: (5) It will be convenient first to consider the principles of law applicable to a determination of the question whether an endowment is public or private, and then to examine, in the light of those principles, the facts found or established. The distinction between a private, and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the later they constitute a body which is incapable of ascertainment. The position is thus stated in Lewin on Trusts, fifteenth edition, pp. 15-16: _“By public must be understood such as are constituted for the benefit either of the public at large or of some considerable portion of it answering a particular description. To this class belong all trusts for charitable purposes, and indeed public trusts and charitable trusts may be considered in general as synonymous expressions. In private trusts the beneficial interest is vested absolutely in one or more individuals who are, or within a certain time may be, definitely ascertained....”_ 6 RCR No.265 of 2017 Vide also the observations of Mitter J. in Haji Mahammad Nabi Shirazi v. Province of Bengal, I.L.R (1942) 1 Cal. 211 at pp.227.228: (AIR 1942 Cal. 343 at p.349)(B). Applying this principle, a religious endowment must be held to be private or public, according as the beneficiaries there under are specific persons or the general public or sections thereof. 8. The construction of a Trust deed is a mixed question of law and fact and the legal concept which distinguish public Trust and private Trust would be applied to the facts found in the disputed deed. The legal preposition that can be articulated from the above decision is that merely for the reason that the term 'private Trust' or 'public Trust' is employed in the nomenclature of a Trust deed, it cannot be safely concluded that the Trust is a private Trust or a public Trust, as the case may be. It depends upon the characteristics of the beneficiaries to whom the endowment is dedicated under the deed. Where the beneficiaries of the endowment are general public or a class or section thereof who are innumerable or incapable of ascertainment, it would constitute a public Trust. Whereas in the case of private Trust, the beneficiaries are specific individuals, who are numerable and capable of ascertainment. It follows that where an endowment is made generally for the welfare or benefit of the members of 7 RCR No.265 of 2017 a particular religion or community, which forms a class of public, it would constitute a public Trust, notwithstanding the nomenclature of the deed. In short, the characteristics of the beneficiaries, to whom the endowment is dedicated, is decisive and determinant and it determines the nature and status of the Trust and it must be tested objectively. 9. That apart, in **1964 KLT 1092 (Rev. Mother General vs. Philip)** the Division Bench of this Court interpreted the scope of 'public institution' contemplated under Sec.11(7) of the Act in this way. “We think that an institution must be a public institution to get the benefit of the sub-section and in our view the words, “religious”, “charitable” and “educational” are used in the sub-section only illustratively in order to show what public institutions the Legislature had in mind in enacting the sub-section. The use of those words might be some indication that such institutions are generally speaking public institutions, but we do not think that it is conclusive of the matter”. 10. We also agree with the aforesaid interpretation given to Sec.11 (7) of the Act and we further find that in the said provision itself, religious, charitable and educational institutions are classified as public institutions, in view of the rule of 'ejusdem generis' i.e. “words of a 8 RCR No.265 of 2017 general nature following specific and particular words should be construed as limited to things which are of the same nature as those specified”. 11. When applying the above test in the instant case, in Ext A1 Trust deed, it is specifically stated that the Trust is created for the welfare of the persons belonging to Brahmin community, residing and working in and around Pala Municipality. The said recital shows that the beneficiaries are not specific individuals and they are a section of general public, within the limits of Pala Municipality. If that be so, in view of the preposition articulated above, it can be safely concluded that the landlord is a public Trust, who is entitled to get privilege under Sec.11 (7) of the Act, notwithstanding the nomenclature of the deed. 12. The next question to be considered is whether the court below is justified in granting an order of eviction under Sec.11 (7) of the Act, when the order of eviction was sought for under Sec.11 (3) of the Act. This court finds that the aforesaid question was considered by this court in **2017 (2)** **KLT 1133 (Muhammed Jerees vs. Darunnajath Arabic College)** and found that there is no illegality in granting an order of eviction under Sec.11 (7) of the Act where the parties 9 RCR No.265 of 2017 have rightly understood the need put forward by the landlord and the landlord is found to be a public Trust entitled to get the privilege under Sec.11 (7) of the Act. This Court held as follows: It is not disputed that the petitioner/respondent herein is a charitable society registered under the Societies Registration Act and the society is conducting other educational institutions. Thus the status of the petitioner/respondent herein is not disputed by the respondents/revision petitioners herein also. Going by S.11 (7) of the Act, the petitioner/respondent herein is required to prove the need only and the need must be for the purpose of institution. In the instant case, the eviction of the respondents/revision petitioners herein are sought for from the petition schedule building is for starting a teachers training institute. The statutory requirement under S.11 (7) of the Act are not rigorous as that of the bona fide need under S.11 (3) of the Act. Thus, the pleadings in the counter statement itself would disclose that the respondents/revision petitioners have rightly understood the need put forward by the petitioner/respondent herein in its correct perspective and contested the petitions. We find that no prejudice was caused to the respondents/revision petitioners herein by considering the Rent Control Petition, as the petitions were filed under S.11 (7) of the Act. 13. Coming to the last point, the case of the respondent is that even though he had acquired a building, the said 10 RCR No.265 of 2017 building is in the possession of his tenant and unless he gets vacant possession of the acquired building, an order of eviction cannot be granted under Sec.11 (4) (iii) of the Act to the petitioners. Thus, subsequent acquisition of the building is not disputed; but, the said building is in the possession of a tenant, according to the respondent. This Court is of the view that the question whether the landlord has successfully discharged the initial burden does not arise when the tenant himself admitted acquisition of another building. But according to him, it is in the possession of a tenant and he continues in occupation of the said building. But, going by the findings of the courts below it could be seen that no evidence has been adduced to prove that the subsequently acquired building was rented out to a tenant and that tenant is in possession of the said building. We find that the respondent has failed to discharge the onus of proof under Sec.11 (4) (iii) of the Act. Hence, we reject the third point also. 14. In this revision petition, the respondent has produced a licence issued by the Municipality in favour of the tenant who occupies the building owned by the respondent, with a petition to accept the same in evidence. In support of the said petition the respondent has cited **1992 (1) KLT 32** 11 RCR No.265 of 2017 **(Gouthaman v. Lohithakshan)** and contended that revisional court has power to admit additional evidence in the revisional stage also. Going by the aforesaid decision it could be seen that this Court opined that if the evidence sought to be admitted is necessary to ascertain, whether the impugned order is vitiated by illegality, impropriety or irregularity, such document can be received in evidence by revisional court also, being an established Court, under Code of Civil Procedure and Sec.23 of the Act is not made applicable to the Revisional Authority. 15. But, we find that, even if the document can be admitted in evidence by the Revisional Authority also, the party shall not be allowed to produce document in evidence, before the Revisional Authority, as of right and the test to be applied under Order 41 Rule 27 of the CPC shall be applied to such circumstances also, in order to prevent prejudice that may be caused to the other party, by the reception of documents in revisional stage. Therefore, in a revision petition, the party cannot be permitted to produce document, as additional evidence, unless he establishes that notwithstanding the exercise of due diligence, such document was not within his knowledge or could not, after the exercise of due diligence, be 12 RCR No.265 of 2017 produced by him, at the time when the order was passed against him. 16. In the instant case, the document produced is a licence issued to the tenant who occupies the building which was subsequently acquired by the respondent. Since the document was issued in the year 2004 and occupation of the tenant in his building was a fact within the knowledge of the respondent, he could have produced that document before the trial court, during the course of trial. That apart, we find that the particulars of the said tenancy in his building was not disclosed during the course of trial and no evidence had been adduced to prove that the building was rented out to the tenant, after the acquisition of the building or the tenant was in possession of the building at the time of acquisition. 17. We do not find any kind of illegality or impropriety in any of the findings whereby the courts below granted an order of eviction under Sec.11 (7) and 11 (4) (iii) of the Act. Consequently, we dismiss the revision petition. We direct the parties to bear their respective costs. The respondent/tenant is granted time till 30.04.2018 to vacate the premises subject to the following conditions. He shall file an affidavit expressing an undertaking to vacate the premises on or before 30.4.2018. It 13 RCR No.265 of 2017 shall also be undertaken in the same affidavit that no further time will be sought under any circumstance for vacating the tenanted premises. The affidavit shall be filed before the executing court, within a period of three weeks from the date of receipt of the copy of this order. The entire arrears of rent, if any, shall be paid within a period of one month from the date of receipt of the copy of this order. Rent shall be paid on or before the due date, till vacation of the tenanted premises. **K.HARILAL Judge** **A.M.BABU Judge** _sks/29.8.2017_ 14 RCR No.265 of 2017