Puthanpurayil Hajira v. Kunnumbrath Beevi and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** ## **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 7[TH] DAY OF NOVEMBER 2023 / 16TH KARTHIKA, 1945** **R.C.REV. NO. 103 OF 2022** **AGAINST THE JUDGMENT DATED 11.03.2022 IN RCA 60/2020 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT COURT-IV), THALASSERY AND THE ORDER DATED 22.02.2020 IN RCP 122/2014 OF RENT CONTROL COURT (MUNSIFF), THALASSERY** ## **REVISION PETITIONER/APPELLANT/RESPONDENT/TENANT:** ## **PUTHANPURAYIL HAJIRA,** **AGED 55 YEARS, D/O.HAMZA, RESIDING AT HAJIRAS, KODIYERI AMSOM, MOOZHIKKARA DESOM, THALASSERY, KANNUR DISTRICT-670103.** **BY ADV R.SURENDRAN** ## **RESPONDENTS/RESPONDENTS/PETITIONERS/LANDLORDS:** - **1 KUNNUMBRATH BEEVI, W/O.MOIDEEN, AGED 69 YEARS, BUSHRA MANZIL, NARANGAPURAM, THALASSERY, KANNUR DISTRICT670101.** - **2 MAJEED, S/O.BEEVI, AGED 58 YEARS, BUSHRA MANZIL, NARANGAPURAM, THALASSERY, KANNUR DISTRICT670101.** - **3 BUSHARA, D/O.BEEVI, AGED 56 YEARS, BUSHRA MANZIL, NARANGAPURAM, THALASSERY, KANNUR DISTRICT670101.** - **4 SABAIRA, D/O.BEEVI, AGED 53 YEARS, BUSHRA MANZIL, NARANGAPURAM, THALASSERY, KANNUR DISTRICT670101.** **2** R.C.Rev.No.103 of 2022 - **5 SAMEERA, D/O.BEEVI, AGED 52 YEARS, BUSHRA MANZIL, NARANGAPURAM, THALASSERY, KANNUR DISTRICT670101.** - **6 SAHIRA, D/O.BEEVI, AGED 50 YEARS, BUSHRA MANZIL, NARANGAPURAM, THALASSERY, KANNUR DISTRICT670101.** - **7 MUHAMMAD SAFAR, S/O.BEEVI, AGED 48 YEARS, BUSHRA MANZIL, NARANGAPURAM, THALASSERY, KANNUR DISTRICT670101.** - **8 RIYAS, S/O. BEEVI, AGED 46 YEARS, SAHAH, P.O.THIRUVANGAD, THALASSERY, KANNUR DISTRICT670101.** - **9 BERSANA, D/O. BEEVI, AGED 44 YEARS, BUSHRA MANZIL, NARANGAPURAM, THALASSERY, KANNUR DISTRICT670101.** - **10 MUHAMMAD NAVAS,** - **S/O.BEEVI, AGED 42 YEARS, RESIDING AT BUSHRA MANZIL, NARANGAPURAM, THALASSERY, KANNUR DISTRICT670101.** **BY ADVS. RAJESH V.NAIR R.PARTHASARATHY** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 20.10.2023, THE COURT ON 07.11.2023 DELIVERED THE FOLLOWING:** **3** R.C.Rev.No.103 of 2022 ## P.B. SURESH KUMAR & P.G. AJITHKUMAR, JJ. ----------------------------------------------------------------R.C.Rev.No.103 of 2022 ----------------------------------------------------------------Dated this the 7[th] day of November, 2023 ## O R D E R ## P.G.Ajithkumar, J. The tenant is the revision petitioner. The petition for eviction on the ground of bona fide need filed by the respondents was allowed by the Rent Control Court and that order was confirmed in appeal. Aggrieved by the concurrent orders of eviction, this Revision Petition under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short “the Act”) is filed by the petitioner. 2. The respondents are the wife and children of the original owner of the petition schedule premises. The 1st respondent-wife filed R.C.P.No.122 of 2014 seeking eviction on the ground that her son Muhammed Navas, who is the 10th respondent, needs the said building for him to start a business in crockery items in large scale. Subsequently, respondent Nos.2 to 10 were impleaded as additional petitioners in the R.C.P. The petitioner resisted the R.C.P. contending that the **4** R.C.Rev.No.103 of 2022 need urged was not bona fide inasmuch as the respondents have several other buildings in their possession and that the petitioner has been depending for his livelihood on the income derived from her business in the petition schedule building and that no other suitable building to shift her business is available in the locality. 3. The 10th respondent tendered evidence as PW1. Two witnesses were examined on the side of the petitioner. Among whom, RW2 is the son of the tenant. Exts.B1 to B3 were produced by the petitioner. The Rent Control Court after considering the said evidence concluded that the need urged by the respondent was bona fide and the petitioner was not entitled to get the benefit of the provisos to Section 11(3) of the Act. The order of eviction accordingly granted by the Rent Control Court was assailed before the Appellate Authority. Besides assailing the findings of the Rent Control Court on the question of bona fides of the need urged by the respondents, the petitioner seriously attacked the finding of the Rent Control Court concerning the first proviso to Section 11(3) of the Act. The oral testimony of RW2 and Ext.B3, the copy of the **5** R.C.Rev.No.103 of 2022 building tax assessment register of Ward Nos.43 and 46 of Thalassery Municipality were placed reliance on to contend that a few rooms belonging to the respondents were available vacant in their possession. The Appellate Authority repelled both the said contentions. The finding of the Appellate Authority in regard to the contentions based on the first proviso is that the petitioner failed to prove that the respondents are in possession of any vacant building or room. The petitioner would contend that the said finding of the appellate authority is incorrect and not the correct reflection of the evidence available on record. 4. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 5. The respondents are the co-owners of the petition schedule building. In the Rent Control Petition, as originally filed, the case set forth was that the 10th respondent being a dependent of the 1st respondent needs the building for his own occupation to start a crockery business in a large scale. Since the 10th respondent is a co-owner, the need urged is one of **6** R.C.Rev.No.103 of 2022 the landlord himself and the question regarding dependency fades away. The Rent Control Court as well as the Appellate Authority found that the need urged was bona fide. The said concurrent finding is based on sufficient evidence and no contention persuading us to take a different view is advanced by the petitioner. 6. The contention strenuously asserted by the learned counsel for the petitioner is that the evidence on record established that atleast seven rooms located in the same town are in possession of the respondent and when the respondents failed to substantiate special reasons for non-occupation of the said rooms, the petitioner is entitled to get the benefit of the first proviso to Section 11(3) of the Act. The learned counsel for the petitioner would point out that version of RW2 that the respondents are in possession of a few vacant rooms that belong to them has not been challenged in the crossexamination and PW1 during cross-examination feigned ignorance of even such buildings belonging to the respondents at all. In that context, the entries in Ext.B3 would probabilise the fact that the buildings pointed out by the petitioners **7** R.C.Rev.No.103 of 2022 actually belong to the landlords and they are in possession of the same. 7. Ext.B3 is the building tax assessment register maintained by the Thalassery Municipality. Going by the provisions of Section 26 of the Act, such a certified copy can be received as evidence as regards the facts stated therein in a proceedings under the Act. Harping upon those aspects, the learned counsel appearing for the petitioner would submit that ignorance as to the ownership of such rooms by PW1 is enough to substantiate the case of the petitioner regarding availability of vacant buildings with the respondents. 8. What could be inferred from Ext.B3, the maximum is that such rooms belonged to the predecessor of the respondents. Whether those rooms were still available with the respondents and they were available vacant in their possession are yet facts required to be proved independently. To that, the only evidence is an oral assertion of RW2, without specifying the details of each room. 9. When a pointed question was put to PW1, whether building Nos.44/2626, 44/2627 and 44/1048 belonged to his **8** R.C.Rev.No.103 of 2022 father, he showed ignorance. That can never be an admission. Therefore, the burden to prove that the respondents owned and they are in vacant possession of such rooms remained on the petitioner. ## 10. In **Kunhamina K v. V.K.T.Aboobacker Haji** **[2016 (3) KLJ 247],** this court held that the primary burden is on the tenant to prove that the landlord is in possession of another building and if it is proved, the burden shifts to the landlord to give special reasons as to why he has not chosen to occupy that building to the satisfaction of the court. In **Kunju T.P v. Fathima and others [2014 (3) KLT 563]** this court took the view that the landlord need not give the particulars of all the premises under his possession to claim an order of eviction under Section 11(3) of the Act. 11. In **Dineshan Pillai P.B v. Joseph @ Jose [2019** **(3) KLT 104]** the view taken is that it is obligatory on the part of the tenant to plead and prove the identity of the vacant building in the possession of the landlord. In the absence of specific pleadings, disclosing the identity of the vacant building in the possession of the landlord, it can be **9** ## R.C.Rev.No.103 of 2022 said that the tenant has not discharged the initial burden of proof under the first proviso to Section 11(3) of the Act. In ## **Lainakalillath Kooliyangal Kamarunnisa and others v. A.** **Shabeer [2019 (4) KLJ 508]** , this Court endorsed the said view. However, it was explained that it may be fair and reasonable, though not imperative, for a landlord to disclose in his pleadings specific details of any vacant building in his possession and explain the special reason, as to what prevented him from occupying the building for the purpose of satisfying his alleged _bona fide_ need. ## 12. In **Chethil Tharemmal Rasheeda v. Peedikayilakath** **Muhammad [2021 (6) KLT 751]** , the view that taken is that it is the burden of the tenant to prove the availability of vacant rooms with the landlord, and only on such proof, the landlord has the liability to show special reasons if to get an order of eviction. While considering a similar question, this Court in **Kakkottakath Puthiyapurayil Muhammad Ali and** ## **others v. Kakkottakath Puthiyarambath Mahamood and** **others [2022(4) KLT 221]** held that the tenant is bound to disclose the identity of vacant building in the possession of the **10** R.C.Rev.No.103 of 2022 landlord in order for him to pursue his claim for the benefit of the first proviso to Section 11(3) of the Act. 13. What the petitioner pleaded in her objection regarding the availability of other vacant buildings in the possession of the respondents is the following: “Actually the petitioner is big landlord at Thalassery having several building at Thalassery. Further vacant building is also in her possession hence if the petitioner wants her son to start a crockery business she was very start that business in that shop building. The averment in para 2 of the possession that her son is depending for the building the petitioner etc are incorrect hence denied the same.” 14. Only during cross-examination of PW1, the petitioner put forward a case that three rooms seen in Ext.B3 as belonging to the respondents are remaining vacant. He did not admit that assertion. RW2 deposed that the respondents had such rooms, but the said version is insufficient to substantiate that those rooms were remaining vacant and the respondents are in a position to occupy the same. As held in the aforesaid decisions, only when the tenant pleaded and proved that the landlord is in possession of a vacant building, he is cast with the onus of **11** R.C.Rev.No.103 of 2022 establishing special reasons for not occupying that premises. (See also Kunju v. Fathima [2014 (3) KLT 563] and Dineshan Pillai v. Joseph [2019 (3) KLT 104] ) 15. The evidence adverted to above is insufficient to prove that the respondents are in vacant possession of any building, although an inference is possible that they owned a few other shop rooms. In such circumstances the petitioner is not entitled to get the benefit of the first proviso to Section 11(3) of the Act. We therefore hold that the findings of the authorities below in that respect is not liable to be interfered on the ground of illegality, irregularity or perversity. 16. The revision petition therefore fails and it is accordingly dismissed. However, the tenant is granted six months' time from today to surrender vacant possession of the premises on condition that she shall file an unconditional undertaking before the Rent Control Court within two weeks from the date of receipt of a copy this order to vacate the tenanted premises within six months and also that she shall pay the arrears of rent, if any, within the aforesaid time limit and continue to pay the monthly **12** R.C.Rev.No.103 of 2022 rent on or before the tenth day of every succeeding month till he vacates the premises. Sd/P.B. SURESH KUMAR, JUDGE Sd/- P.G. AJITHKUMAR, JUDGE dkr