R.C.R. No. 2 of 2017 (Revision Petitions)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN THURSDAY, THE 13[TH] DAY OF OCTOBER 2022 / 21ST ASWINA, 1944** **RCREV. NO. 2 OF 2017** **AGAINST THE ORDER/JUDGMENT IN R.C.P.NO.28/2002 OF RENT CONTROL** **COURT (MUNSIFF), PAYYANNUR** **R.C.A.NO.97/2008 OF RENT CONTROL APPELLATE AUTHORITY (DISTRICT** **JUDGE) THALASSERY** ## **REVISION PETITIONER/S:** 1 **THALICHALATH MUNDAKUNDIL AMEER HAJI, AGED 52 YEARS, S/O.HAJARA UMMA, THALICHALATH P.O., ELAMBACHI, SOUTH TRIKARIPUR, KASARAGOD DISTRICT.** - 2 **T.M.JAMAL, AGED 48 YEARS, XXII/639, K M K COMPLEX, NEAR BUS STAND, PAYYANNUR P O, PAYYANNUR, KANNUR DISTRICT.** **BY ADV M.V.AMARESAN** ## **RESPONDENT/S:** - 1 **KRISHNA JANAKI (DIED), AGED 82 YEARS, RESIDING AT BLOCK 7, S1, CHINTHAVALAPPU FLATS, RAM MOHAN ROAD, CALICUT-673004.** - 2 **JAMUNA SATYAPRADEEP, AGED 42 YEARS, -DO-** - 3 **JAGADA RAJENDRAN, AGED 40 YEARS, -DO-** - 4 **JALAJA M, AGED 36 YEARS, -DO-** **(NO-2 TO 4 REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER NO.1, ALL RESIDING AT BLOCK 7, S1. CHINTHAVALAPPU FLATS, RAM MOHAN ROAD, CALICUT-673004.** **(R2 TO R4, WHO ARE ALREADY IN THE PARTY ARRAY AS RESPONDENTS R2 TO R4 ARE RECORDED AS THE LEGAL HEIRS OF DECEASED R1 VIDE ORDER DATED 24/03/2022 IN MEMO DATED 14/03/2022 IN RCR.2/2017).** **BY ADVS. T.K.VIPINDAS(CAVEATOR) T.K.VIPINDAS** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 12.10.2022, THE COURT ON 13.10.2022 DELIVERED THE FOLLOWING:** R.C.R.No.2/2017 2 A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ. -----------------------------------------------R.C.R. No.2 of 2017 -----------------------------------------------Dated this the 13[th] day of October, 2022 ## **JUDGMENT** ## A.Muhamed Mustaque, J. The tenant along with the alleged sub tenant assails the order of eviction on the ground of sub lease. 2. The Rent Controller dismissed the petition for eviction on the ground of sub lease. The Appellate Authority allowed the appeal. 3. The tenanted premises originally belonged to one Muraleedharan. The tenant took the premises on 01.02.1995 from the aforesaid Muraleedharan. Muraleedharan is no more. His widow and four female children are the present landladies. They filed a petition for eviction on the aforesaid ground. 4. The husband of the fourth respondent herein who is also the power of attorney holder of the R.C.R.No.2/2017 3 first respondent herein, was examined as PW1. An Advocate Commissioner deputed by the Rent Controller to inspect the tenanted premises was examined as PW2. The tenant was examined as RW1. 5. The Rent Controller noted that the landladies failed to prove parting of exclusive possession of the tenanted premises by the tenant to the alleged sub tenant. On the other hand, the Appellate Authority noted that the tenanted premises was being used to stock bakery items and the sub-tenant is having a bakery business in the adjacent building. It was also noted that at the time of inspection by the Advocate Commissioner who inspected the tenanted premises _ex parte_ , the tenanted premises was partly opened and being used as a godown. The Appellate Authority also noted that the tenant took the building for running a fruit stall and cool drink business and he had no case that he was doing bakery business in the building. It was also noted that the tenant in the R.C.R.No.2/2017 4 cross-examination admitted he was absent in the tenanted premises for a considerable period of time due to illness and the business in the tenanted premises was run by his brother Majeed. The Appellate Authority noted that the tenant never had such a case in the counter filed before the Rent Controller. 6. The learned counsel appearing for the revision petitioners Sri. M.V.Amaresan argued in extenso. According to learned counsel, when the landladies who have direct knowledge of subletting as pleaded by them in the petition, failed to mount the box, it is fatal to other petitioners. It is further submitted that the evidence of the power of attorney holder who has no direct knowledge cannot be relied upon. It is further argued that the burden is exclusively on the landladies to prove parting of exclusive possession of the tenanted premises by the tenant to the sub-tenant. The learned counsel placed R.C.R.No.2/2017 5 reliance on the following precedents: **Abdurehim Sait v. Sahul Hameed [1981 KLT 289]** , **Lela v. Ali and Others [1982 KLT 685]** , **Karshaka Union v. Bahuleyan [1996 (2) KLT 747]** , **Ram Murti Devi v. Pushpa Devi and Others [2017 (15) SCC 230]** , **Mahalakshmi A. v. Bala Venkatram(D) through LR and Another [2020 KHC 6011] a** nd **Man Kaur v. Hartar Singh Sangha [2010 (4) KLT SN 33].** 7. The learned counsel for the respondents/landladies, Sri.T.K.Vipindas defending the appellate judgment, submitted that PW1 is none other than the husband of one of the landladies and therefore, he is a competent witness. Further, he had direct knowledge on subletting. It is further submitted that the sub- tenant was also a sub tenant in respect of the adjacent building belonging to the landladies and an order of eviction was obtained by the landladies in respect of the adjacent building as well. R.C.R.No.2/2017 6 8. The objection raised by the learned counsel for the revision petitioners that the evidence of PW1 cannot be relied, according to us, is untenable. What is required to be proved by the landlord under Section 11 (4) (i) of the Kerala Buildings (Lease and Rent Control) Act is a factum of parting of possession by the tenant to third party. No one has a case that it was a lawful subtenancy. Perhaps if the tenant had such a case, the landlord might be required to mount the box to give evidence. In the absence of such a case, what is required to be proved by the landlord for the claim on the ground of sub-lease is exclusive possession of the alleged sub-tenant. The mode of proof can be in any manner acceptable under the law. The court needs to weigh the evidence let in, to find out whether the third party is in exclusive possession or not. It is the proof and not the person who spoke about the proof that is decisive in such cases. If the person who gave R.C.R.No.2/2017 7 testimony has direct knowledge, nothing prevents the court from accepting the same. Further, PW1 is the husband of one of the landladies. If the oral evidence of PW1 can be given any credence, nothing precludes the court from relying upon such evidence. 9. We note this revision was preferred along with the alleged sub-tenant. They are admittedly cousin brothers. We at the outset, look at the incongruous stand of the revision petitioners herein. If the second revision petitioner the alleged sub-tenant has no relation with the first revision petitioner tenant, why has he joined along with the revision petition in the revision? It has come out in the evidence that the alleged sub-tenant is having bakery business adjacent to the tenanted premises. The tenant has no case that he was running bakery business in the tenanted premises. The tenant admitted that he was absent in the tenanted premises due to his illness. His R.C.R.No.2/2017 8 case was that his brother Majeed was looking after the business. Majeed was not examined before the court. The Commission report indicates that the tenanted premises is being used as godown to store bakery items. That means, no regular business was carried in the tenanted premises. There are sufficient materials on record to infer the business in the tenanted premises belonged to the third party. The tenant's case was that he was running fruits and cool drinks business. He also deposed that from the year 2000 onwards, he was unable to run the business due to illness. 10. The parting of exclusive possession cannot be easily proved. However, if there are sufficient materials on record to infer parting of possession, that would _prima facie_ establish the case of the sub tenancy. Then burden shifts to the tenant to prove the relationship with the third party who is found in the tenanted premises. The tenant has no case in this that he was having a R.C.R.No.2/2017 9 bakery business. Admittedly, the second revision petitioner is having a bakery business in the adjacent room. The commission report indicates that this is being used as godown. There is no proof that the tenant was running any business. He himself admitted that he was absent due to illness and the business is being run by his brother Majeed who was not examined. The initial burden of parting of possession by the tenant has been established. In the absence of any explanation as to the presence of the business of third person, it has to be assumed that the tenanted premises has been transferred without the consent of the landlord. 11. We find no error in the order of eviction passed by the Rent Control Appellate Authority warranting invocation of revisional power under Section 20 of the Kerala Buildings (Lease and Rent Control) Act. The Rent Control Revision fails and is dismissed. No costs. R.C.R.No.2/2017 10 However, we grant three months time to the revision petitioners to vacate the building on the following terms and conditions: i. The revision petitioners shall file an undertaking to vacate the building within three months from today. ii. They shall clear entire arrears of rent within one month from today and continue to pay the rent till vacating the building to the respondents. Sd/A.MUHAMED MUSTAQUE, JUDGE Sd/SHOBA ANNAMMA EAPEN, JUDGE ln