RadhaKrishnan v. Paingorattari Meethal Abdul Azeez

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA THURSDAY, THE 13[TH] DAY OF OCTOBER 2022 / 21ST ASWINA, 1944 RCREV. NO. 76 OF 2015** **AGAINST THE ORDER/JUDGMENT DATED 31.07.2012 IN RCP NO.17 OF 2011 OF MUNCIFF MAGISTRATE COURT, MANANTHAVADY CONCURRING WITH THE COMMON ORDER IN RCA NO.21 OF 2012 DATED 19.12.2014 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - I, KALPETTA** ## **REVISION PETITIONER/APPELLANT/PETITIONER:** **RADHAKRISHNAN, AGED 58 YEARS, S/O.PERUMAL, POOTHIKKAL VEEDU, MANANTHAVADY AMSOM, ARATTUTHARA DESOM, MANANTHAWADY POST, MANANTHAWADY TALUK. BY ADVS. SRI.T.KRISHNAN UNNI (SR.) SRI.M.DEVESH SRI.K.C.KIRAN SMT.MEENA.A. SRI.SAJU.S.A SRI.VINOD RAVINDRANATH** ## **RESPONDENT/RESPONDENT/RESPONDENT:** **PAINGORATTARI MEETHAL ABDUL AZEEZ, AGED 45 YEARS, S/O.P.M.MUHAMMED, PAINGORATTARI MEETHAL VEEDU, PERINGATHOOR AMSOM, PULIYANAMBRAM DESOM, THALASSERY TALUK, KANNUR DISTRICT, PIN-670 675.** **ADV SRI.SRINATH GIRISH** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 13.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 R.C.R. No.76 of 2015 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **----------------------------------------------Rent Control Revision No.76 of 2015 ----------------------------------------------Dated this the 13[th] day of October, 2022** ## **O R D E R** ## **P.B.Suresh Kumar, J.** The petitioner in a proceedings for eviction under Sections 11(2)(b) and 11(3) of the Kerala (Lease and Rent Control) Act (the Act) is the petitioner in this revision petition. The respondent was the respondent in the said proceedings. 2. The subject matter of the proceedings is a shop room. It was stated by the petitioner in the petition for eviction that the shop room belonged to one Perumal; that the father of the respondent was occupying the shop room as a tenant; that on the death of Perumal, the respondent entered into a fresh lease arrangement on 05.03.1996 with the wife of Perumal, Kichi Madhurakka, and was occupying the shop room thereafter 3 R.C.R. No.76 of 2015 on that basis; that while so, the petitioner along with three others namely, M.P. Premalatha, C.R. Rajesh and Mangali Bindu purchased the shop room from Kichi Madhurakka as per Ext.A1 assignment deed; that Mangali Bindu later sold her rights over the shop room to one M.Renjith Kumar; that M.P. Premalatha, C.R. Rajesh and M.Renjith Kumar thereafter released their rights over the shop room in favour of the petitioner and thus the petitioner became the absolute owner of the shop room. It was alleged by the petitioner that the respondent has paid rent in terms of the lease deed dated 05.03.1996 only till 01.03.2011. It was alleged by the petitioner that he is presently unemployed and that he intends to run a cool bar in the shop room for his livelihood. It was also alleged by the petitioner that even though he called upon the respondent to surrender vacant possession of the shop room for the said purpose, the respondent refused to do so. It is on the aforesaid basis that the petitioner sought eviction of the respondent from the shop room under Sections 11(2)(b) and 11(3) of the Act. 3. The respondent contested the petition for 4 R.C.R. No.76 of 2015 eviction by filing a counter affidavit. In the counter affidavit, the respondent has admitted that on the death of Perumal, he attorned under the wife of Perumal, Kichi Madhurakka. Similarly, in the counter affidavit, the respondent has not denied the case set out by the petitioner that the petitioner purchased the shop room from Kichi Madhurakka along with three others and later got release of the rights of the remaining co-owners in his favour. Instead, what is stated by the respondent in the counter affidavit is that the petitioner has to prove the case set out by him in this regard. It was however contended by the respondent in the counter affidavit that he later came to know that the shop room belonged to Perumal and his brothers and that Perumal and his wife Kichi Madhurakka were falsely holding out to be the owners of the shop room. It was also contended by the respondent that the petitioner has other premises in his possession, if at all he intends to start the cool bar business; that he has other means of livelihood and that the need put forth for eviction is therefore not _bona fide_ . It was also contended by the respondent that he R.C.R. No.76 of 2015 5 is doing business in the premises in partnership with one M.Sindhu; that the said fact is known to the petitioner, and M.Sindhu should have therefore been arrayed as a party to the proceedings. It was also contended by the respondent that the income from the business carried on by him in the shop room is the sole means of his livelihood and there are no other suitable rooms in the locality for carrying out the business in the tenanted premises and that he is, therefore, entitled to the benefit of the second proviso to Section 11(3) of the Act. 4. The petitioner gave evidence as PW1. In addition, the Secretary of the local Grama Panchayat was examined on his side as PW2. Exts.A1 to A8 were the documents proved on the side of the petitioner. The respondent gave evidence as RW1. Exts.B1 to B3 were the documents proved on the side of the respondent. 5. Though the petition for eviction was filed under Sections 11(2)(b) and 11(3) of the Act, it is seen that at the time of trial, the petitioner gave up the claim under Section 11(2)(b) and pursued only the claim under Section 11(3). 6 R.C.R. No.76 of 2015 6. On an appraisal of the materials on record, the Rent Control Court dismissed the petition for eviction, holding that the claim for eviction is not _bona fide_ as the petitioner has not pleaded in the petition for eviction the particulars of the earlier petition for eviction filed by the petitioner along with others; that M.Sindhu with whom the respondent is doing business in the premises should have been arrayed as a party to the proceedings; that the ground floor of his residential premises is vacant; that he has not put forward any reason for not occupying the same for the purpose intended and that the respondent is entitled to the benefit of the second proviso to Section 11(3) of the Act. 7. In appeal, the Appellate Authority reversed the finding rendered by the Rent Control Court that M.Sindhu was a necessary party to the proceedings. Similarly, it was found by the Appellate Authority that the respondent has not established that the petitioner has another building in the locality to do the business proposed by him. The Appellate Authority also found that the respondent is not entitled to the benefit of the second R.C.R. No.76 of 2015 7 proviso to Section 11(3) of the Act. The Appellate Authority further found that the view taken by the Rent Control Court that the petitioner should have pleaded the particulars of the earlier petition for eviction, is unsustainable. Nevertheless, the Appellate Authority found that the claim put forward by the petitioner is not _bona fide_ and that insofar as it is not established by the petitioner by producing necessary documents that he is the absolute owner of the shop room, the petition for eviction is not maintainable. In the light of the said findings, the appeal was dismissed. The petitioner is aggrieved by the decisions of the Rent Control Court and the Appellate Authority and hence this revision. 8. Heard the learned counsel for the petitioner as also the learned counsel for the respondent. 9. The learned counsel for the petitioner pointed out that the petitioner has become the absolute owner of the premises on the strength of Ext.A1 assignment deed executed by Kichi Madhurakka, and the release deeds executed by M.P. Premalatha, C.R Rajesh and M.Renjith Kumar and it was since 8 R.C.R. No.76 of 2015 the execution of the release deeds as pleaded by the petitioner in the petition for eviction has not been denied by the respondent in the counter affidavit filed by him, that the petitioner has not produced all the release deeds. It was stated by the learned counsel that nevertheless, the petitioner has produced one among the release deeds executed by M.P.Premalatha as Ext.A2. It was also pointed out by the learned counsel that insofar as it was found by the Appellate Authority that non-production of all the release deeds was fatal to the proceedings, by way of abundant caution, the remaining release deeds have been produced by him in this revision petition. According to the learned counsel, in the light of the said development, the controversy concerning non-production of all the release deeds ought to end. As regards the finding rendered by the Appellate Authority that the claim put forward by the petitioner is not a _bona fide_ one, the submission made by the learned counsel was that it is based on a stray statement made by the petitioner while giving evidence as PW1 that the Appellate Authority has come to the said finding and if the 9 R.C.R. No.76 of 2015 evidence tendered by the petitioner as a whole is examined in the background of the pleadings of the parties, it could be seen that the claim put forward is a _bona fide_ one. It was also argued by the learned counsel that insofar as the remaining adverse findings rendered by the Rent Control Court were reversed by the Appellate Authority, the petition for eviction is only to be allowed. 10. Per contra, the learned counsel for the respondent submitted that the decree and judgment in O.S.No.21 of 1985 of Sub court, Sulthanbathery which are part of the records as Exts.B1 and B2 would show that Perumal was not the absolute owner of the shop room and that the petitioner who is claiming title to the shop room under Kichi Madhurakka, the wife of Perumal, cannot claim to be the landlord of the building for the purpose of seeking eviction of the tenant. According to the learned counsel, the petition for eviction should have been dismissed on that sole ground. Placing reliance on the decision of this Court in **Ibrahim v. Zeena Robert,** 2021 (5) KHC 759, it was also argued by the learned 10 R.C.R. No.76 of 2015 counsel for the respondent that in the absence of any evidence to show that the petitioner has become the absolute owner of the property, the eviction petition cannot be said to be maintainable. It was also argued by the learned counsel based on the decision of this court in **Narayanan K.N. v. Khadeeja and Another,** 2017 (3) KHC 798 that non-production of the title deed which stands in the name of a person other than the person from whom the tenant has taken the lease, has a bearing on the question of bona fides, indicating that in order to bring home the bona fides for claiming eviction under Section 11(3) of the Act, the nature of the transaction inter vivos is material. The essence of the submissions made by the learned counsel therefore was that there is no illegality in the decision of the Appellate Authority. 11. We have examined the arguments advanced by the learned counsel for the parties on either side. We have also perused the materials on record. 12. In the light of the findings rendered by the Appellate Authority, the correctness of which were not assailed 11 R.C.R. No.76 of 2015 in this proceedings by the respondent, the questions that arise for consideration are (i) whether the Appellate Authority was justified in holding that the non-production of the release deeds stated to have been executed by C.R. Rajesh and M. Renjith Kumar in favour of the petitioner is fatal to the proceedings, is sustainable in law and (ii) whether the Appellate Authority was justified in holding that the petitioner has not established that the need put forward by him for eviction is _bona fide_ . 13. Before dealing with the questions aforesaid, it is necessary to deal with the argument raised by the learned counsel for the respondent that in the light of the judgment and decree in O.S.No.21 of 1985, the petitioner cannot be said to be the owner of the shop building, even if the case of the petitioner that he has acquired the rights, if any, of Kichi Madhurakka in respect of the shop building is accepted as correct. As noted, the specific case pleaded by the petitioner in the petition for eviction is that the shop building belonged to one Perumal; that on the death of Perumal, the respondent entered into a fresh lease arrangement on 05.03.1996 with Kichi Madhurakka, the 12 R.C.R. No.76 of 2015 wife of Perumal, and while so, the petitioner along with three others namely, M.P. Premalatha, C.R. Rajesh and Mangali Bindu purchased the premises from Kichi Madhurakka in terms of Ext.A1 assignment deed. The said case pleaded by the petitioner in the petition for eviction has not been disputed or denied by the respondent. On the other hand, he has categorically admitted in the counter affidavit filed in the proceedings that on the death of Perumal, he had attorned under his wife Kichi Madhurakka who was holding out as the owner of the building. The relevant averment in the counter affidavit reads thus: “It is also admitted that subsequent to the death of Perumal this respondent had attorned under his wife Smt.Kichi Madhurakka who was holding out as the owner of the building.” Even though it was stated by the respondent in the counter affidavit that the petitioner has to prove the case put forward by him in the petition for eviction that he along with three others have acquired the rights, if any, of Kichi Madhurakka over the shop room, the respondent has not raised any 13 R.C.R. No.76 of 2015 contention in the proceedings after the production of Ext.A1 assignment deed that the petitioner and others have not acquired the rights, if any, over the shop room. Instead, the contention raised by the respondent was that the petitioner has only proved that he has acquired rights, if any, of Kichi Madhurakka along with three others and he has not proved that he has become the absolute owner of the rights, if any, of Kichi Madhurakka over the shop room. In other words, the respondent admits that the petitioner is one among the successors of Kichi Madhurakka. The question is whether in a proceedings instituted by the petitioner, the respondent is entitled to deny the title of Kichi Madhurakka who has put him in possession of the shop room. According to us, the provision contained in 116 of the Evidence Act precludes the respondent from denying the title of the petitioner. [See **Bilas Kunwar** v. **Desraj Ranjit Singh,** AIR 1915 PC 96, **Jaspal Kaur Cheema v. Industrial Trade Links,** (2017) 8 SCC 592 and **S.Thangappan v. P. Padmavathy,** (1999)7 SCC 474]. The argument advanced by the learned counsel for the respondent 14 R.C.R. No.76 of 2015 is therefore without any substance. 14. As noted, even though the petitioner has produced the assignment deed in respect of the shop building executed by Kichi Madhurakka in his favour and also in favour of M.P. Premalatha, C.R.Rajesh and Mangali Bindu, he has produced only one among the release deeds executed by the co-owners of the building, namely the release deed executed by M.P. Premalatha as Ext.P2. It is on account of the said reason that the Appellate Authority took the view that the petitioner has not established that he is the absolute owner of the shop room, despite production of Ext.A3 ownership certificate issued by the local authority. As noted, it is categorically pleaded by the petitioner in the petition for eviction that Mangali Bindu along with the petitioner obtained rights over the shop room and later sold her rights under Ext.A1 assignment deed to one M.Renjith Kumar and that M.P.Premalatha, C.R Rajesh and M.Renjith Kumar thereafter released their rights over the shop building in favour of the petitioner. This averment in the petition for eviction is not seen denied or disputed by the respondent in 15 R.C.R. No.76 of 2015 the counter affidavit filed in the petition for eviction. In the circumstances, according to us, the Appellate Authority ought to have taken that the respondent admits the said case pleaded by the petitioner and ought not have held that it was necessary for the petitioner to produce the release deed executed by the remaining co-owners in Ext.A1 assignment deed. Be that as it may, it is seen that in light of the finding rendered by the Appellate Authority that the non-production of the release deed of the remaining co-owners is fatal to the proceedings, the petitioner has produced in this proceedings the remaining release deeds along with an application under Order XLI Rule 27 of the Code of Civil Procedure. I.A.No.1 of 2021 is the application preferred by the petitioner in this regard and we have admitted the release deeds of the remaining co-owners and marked the same in the proceedings as Exts.A12 and 13 on the side of the petitioner by a separate order passed on the said interlocutory application. In the light of the finding aforesaid and Exts.A12 and 13, the finding rendered by the Appellate Authority that the petitioner has not established that 16 R.C.R. No.76 of 2015 he is the absolute owner of the shop room is unsustainable in law. 15. What remains to be considered is the question whether the petitioner has made out the case of _bona fide_ need pleaded in the petition for eviction. It is seen that even the Rent Control Court has found that the petitioner has not made out the case of _bona fide_ need to occupy the shop room as pleaded in the petition for eviction. The said finding was solely on the basis that the petitioner has not divulged in the petition for eviction the particulars of the earlier petition preferred for evicting the respondent for the need of one among the then coowners of the shop room. The Appellate Authority has in fact reversed the said finding holding that it was not obligatory for the petitioner to plead the particulars of the earlier proceedings. But, nevertheless, the Appellate Authority affirmed the conclusion of the Rent Control Court on the sole ground that it is stated by him during cross-examination that he had no need to conduct business in the premises before sending notice in this case. The relevant portion of the 17 R.C.R. No.76 of 2015 deposition of the petitioner in his cross examination reads thus: " ഈ ക�സ�ക�ക�ള ക��ട�സ� അയക�നത��� മ�ൻപ� എ��ക� സ�ന� ആവശ�� ഉണ�യ�ര�ന�ല എന� പറഞ�ൽ ശര�യ�ണ�.” The case of the petitioner in the petition for eviction is that he is unemployed, and he intends to run a cool bar in the premises for his livelihood. Of course, it was contended by the respondent in the counter affidavit that the claim is not _bona fide_ since the petitioner does not have the financial capacity or expertise to start such a business; that the petitioner has in his possession other rooms for starting the business, if at all he intends to start such a business, and also that he has other means for his livelihood. In the proof affidavit filed by the petitioner in lieu of chief examination, the petitioner has explained the said case thus: " ഞ�ൻ ഗൾഫ�ൽ ക+��� �ഷപ.ട� ത�ര�ച� വന�ട�ളത�ണ�. എ��ക� ഇക.�ൾ യ�പത�ര� . ക+���യ�മ�ല �1ട�പത എ��ക� ആകര�ഗ�പരമ�യ പപശ5ങള�മ�ണ�. അത�പ��ണ� ഞ�ൻ ഹര�+�പട�� എട�.�ൽ �1ൾ ബ�ർ ബ�സ��സ� ത�ടങ�വ�ൻ 18 R.C.R. No.76 of 2015 ആപഗഹ�ക�ന�. ആയത���ള സ�മത��കശഷ� എ��ക�ണ�. മ�പതമല, വളപരയധ��� �ട�ള��, ത�.�ഴ ബസ� ക@�.�� +�.� @�ൻഡ��, വവദ�ശ���ള��, ബ�ങ��, മറ�തര സ�പ�ങള�� പപവർത�ക�ന സ�ത�ണ� . ഹര�+�പട�� എട�.� സ�ത�പGയ�നത� അത���ൽ �1ൾ ബ�ർ ത�ടങ�നത��� അ��കയ�+�മ�യ സ�മ�ണ� ട� . എട�.� അപപ��ര� ട� എട�.�മ�റ� സ�നമ�യ� �1ൾ ബ�ർ ബ�സ��സ� �ടത�നത���യ� എ��ക� ആവ�ശ�മ�യ� . വന�ര�ക�ന� അപപ��ര� �1ൾ ബ�ർ ബ�സ��സ� കവപറ �ടത�വ�ൻ പര��പJമ�യ മ�റ��ൾ ഒന�� .” എ��ക�ല�തത�ണ� There was no cross-examination on the plea aforesaid made by the petitioner in the proof affidavit. On the other hand, the cross-examination was on the availability of other rooms which could be utilised for running the proposed business, which was negatived by the Appellate Authority. In the absence of any challenge in the cross-examination of the petitioner on the aspects mentioned in paragraph 3 of the proof affidavit extracted above, according to us, the finding rendered by the Appellate Authority solely based on the stray statement in the deposition of the petitioner, is erroneous. It is all the more so 19 R.C.R. No.76 of 2015 since there are no materials on record to indicate that the petitioner has any avocation or means of livelihood. As observed by the Appellate Authority that any need, which is rational and reasonable can be set up under Section 11(3) of the Act and if the Court is satisfied that the need projected is not a mere or fancy wish or an irrational desire, the need has to be accepted by the Court. Having regard to the facts and circumstances of the case, there is no material to infer that the need projected by the petitioner is a mere pretext for evicting the tenant. The statement aforesaid in the deposition is seen to have been given by the petitioner in answer to a complex question put to him during cross-examination. The said statement cannot be read and understood in isolation and the same has to be understood having regard to the facts and circumstances of the case, especially from the averments in the proof affidavit filed by the petitioner and the evidence tendered by him during cross-examination. If the said statement is understood in the light of the materials on record, it is not possible at all to make an inference that the claim put forward 20 R.C.R. No.76 of 2015 by the petitioner is not a _bona fide_ one _._ Having regard to the totality of the facts and circumstances of the case, we are of the opinion that the petitioner has made out a case of _bona fide_ need for eviction of the respondent from the shop room and he is entitled to an order of eviction under Section 11(3) of the Act. In the result, the revision petition is allowed, the impugned decisions of the authorities below are set aside and R.C.P. No.17 of 2011 on the files of the Rent Control Court, Mananthavady is allowed directing the respondent to surrender vacant possession of the shop room which is the subject matter of the proceedings to the petitioner, within one month. Sd/- ## **P.B.SURESH KUMAR, JUDGE.** Sd/- ## **C.S.SUDHA, JUDGE.** YKB 21 R.C.R. No.76 of 2015 ## **APPENDIX** |**PETITIONER**|**ANNEXURE**| |---|---| |**Annexure 1**|**ORIGINAL COPY OF THE RELINQUISHMENT**| ||**DEED BEARING NO.4996/2010 EXECUTED BY**| ||**RAJESH C.R. IN FAVOUR OF THE PETITIONER**| ||**DATED 06.09.2010**| |**Annexure 2**|**ORIGINAL COPY OF THE RELINQUISHMENT**| ||**DEED EXECUTED BY RAJESH BEARING**| ||**NO.5465/2010 DATED 06.10.2010**|