RCRev. No. 339 of 2016 (Against the order in RCA 2/2013 of Rent Control Appellate Authority, Thodupuzha)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY ,THE 21ST DAY OF JANUARY 2019 / 1ST MAGHA, 1940** **RCRev..No. 339 of 2016** **AGAINST THE ORDER IN RCA 2/2013 OF RENT CONTROL APPELLATE AUTHORITY,THODUPUZHA DATED 12-07-2016** **AGAINST THE ORDER IN RCP 1/2011 of RENT CONTROLLER, THODUPUZHA DATED 12-04-2013** ## **REVISION PETITIONER/APPELLANT IN R.C.A./RESPONDENT NO.2 IN R.C.P.:** **1 C.T.THOMAS @ APPACHAN S/O.THOMAS, AGED 70,RESIDING AT CHANDRANKUNNEL HOUSE,NADUKANDAM, OLAMATTAM KARA, KOLANI PO,THODUPUZHA, IDUKKI, PIN-685 608. [DIED. ADDL. P2 TO P5 IMPLEADED) 2 ADDITIONAL PETITIONERS THERAS THOMAS W/O C.T.THOMAS, AGED 61, CHANDRANKUNNEL HOUSE, NADUKANDAM, OLAMATTAM KARA, KOLANI P.O., THODUPUZHA, IDUKKI, PIN-685608.** - **3 TONEY THOMAS S/O C.T.THOMAS, AGED 36, CHANDRANKUNNEL HOUSE, NADUKANDAM, OLAMATTAM KARA, KOLANI P.O., THODUPUZHA, IDUKKI, PIN-685608.** **4 TEDDY THOMAS S/O C.T.THOMAS, AGED 34, CHANDRANKUNNEL HOUSE, NADUKANDAM, OLAMATTAM KARA, KOLANI P.O., THODUPUZHA, IDUKKI, PIN-685608, REPRESENTED BY HIS BROTHER AND POWER-OF-ATTORNEY, TONEY THOMAS, S/O C.T.THOMAS, AGED 36, CHANDRANKUNNEL HOUSE, NADUKANDAM, OLAMATTAM KARA, KOLANI P.O., THODUPUZHA, IDUKKI, PIN-685608.** - **5 JAISE THOMAS S/O C.T.THOMAS, AGED 26, CHANDRANKUNNEL HOUSE, NADUKANDAM, OLAMATTAM KARA, KOLANI P.O., THODUPUZHA, IDUKKI, PIN-685608. * ADDL. PETITIONERS 2 TO 5 IMPLEADED AS LRs OF THE DECEASED PETITIONER AS PER ORDER DATED 31.5.2018 IN I.A.NO.978/2018.** R.C.R.No.339/2016 2 **BY ADVS. SRI.S.V.BALAKRISHNA IYER (SR.) SRI.P.B.KRISHNAN SRI.P.B.SUBRAMANYAN SRI.P.M.NEELAKANDAN SRI.SABU GEORGE** **RESPONDENTS 1 & 3 & ADDL.RESPONDENTS 4 TO 7 IN R.C.A. & PETITIONER NO.1 & RESPONDENT NO.1 IN R.C.P. & NOT PARTIES IN R.C.P.:** - **1 K.V.AUGUSTINE S/O.VARGHESE, AGED 80, RESIDING AT KOMBANAL HOUSE, THODUPUZHA PO, THODUPUZHA VILLAGE, IDUKI DISTRICT, PIN-685 584.** |**2**|**SELVER**| |---|---| ||**S/O.THOMAS, AGED 73, RESIDING AT CHANDRANKUNNEL**| ||**HOUSE, MATHEW & CO., MUNDAKKAYAM PO, KOTTAYAM**| ||**DISTRICT, PIN-686 513.**| |**3**|**MAGGIE DEVASSY**| ||**W/O.LATE K.V.DEVASSY, AGED 70, RESIDING AT NO.31,**| ||**ROSE GARDENS, BHARATHI ROAD PERAMBUR, CHENNAI,**| ||**PIN-600 011.**| |**4**|**ASHA DEVASSY**| ||**D/O.LATE K.V.DEVASSY, AGED 44 RESIDING AT NO.31,**| ||**ROSE GARDENS, BHARATHI ROAD PERAMBUR, CHENNAI, PIN-**| ||**600 011.**| |**5**|**PRIYA SEBASTIAN**| ||**D/O.LATE K.V.DEVASSY, AGED 34, RESIDING AT NO.31,**| ||**ROSE GARDENS, BHARATHI ROAD PERAMBUR, CHENNAI, PIN-**| ||**600 011.**| |**6**|**JOSE SEBASTIAN**| ||**S/O.LATE K.V.DEVASSY, AGED 36, RESIDING AT NO.31,**| ||**ROSE GARDENS, BHARATHI ROAD PERAMBUR, CHENNAI,**| ||**PIN-600 011.**| **BY ADVS. ADV.S.AMBILY FOR R1, R3 TO R6 (B/O)(NO MEMO)** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 21.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** R.C.R.No.339/2016 3 ## **ORDER** ## Harilal, J. The legality and propriety of the concurrent findings of the court below granting an order of eviction under Section 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act are assailed in this revision petition. The parties are referred to as in the rent control petition. The petitioners filed R.C.P.No.1/2011 before the Rent Control Court, Thodupuzha seeking an order of eviction under Section 11(3) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act ( the Act). They are brothers and they got the petition schedule building by virtue of Will deed No.78/1996 dated 30.08.1996 executed by Father Mathew Kombanal, the brother of the father of the petitioners. According to them, the petition schedule building was leased out to the first respondent by the aforesaid Father Mathew Kombanal, the brother of the father of the petitioners. The petition schedule building was leased out to the first respondent by the aforesaid Fr.Mathew Kombanal, as per lease deed dated 16.10.1974 and he was conducting business in the room with the second respondent, who is his brother. The original monthly rent was Rs.70/-, but the same was enhanced periodically. From 1.11.2002, the monthly rent was Rs.750/- and the rent was being received by the R.C.R.No.339/2016 4 petitioners from the second respondent and receipts were issued for the same to the second respondent as directed by the first respondent, after the death of Father Mathew Kombanal. Now the petitioners are in need of the petition schedule shop room for conducting the business of plumbing materials for the son of the first petitioner by name Georly Augustine. They have no other buildings of their own in their possession to start the proposed business, but several other vacant buildings are available in the locality to shift the business of the respondent from the tenanted premises . So they are entitled to get an order of eviction under Section 11(3) of the Kerala Buildings ( Lease and Rent Control) Act. Further they contended that the respondents were in possession of two other buildings and thereby they are entitled to get an order of eviction under Section 11(4) (iii) also. 2. The respondents resisted the claim for eviction, under both grounds and mainly contended that the petitioners have no title over the petition schedule building and there is no landlord-tenant relationship between the petitioners and the respondents. According to them, the petitioners are strangers to them in relation to tenanted premises. Further they contended that the need projected in the petition is not bonafide and they are entitled to get protection under the second proviso to Section 11(3) of the Act and so also they denied the allegation that they have been in possession R.C.R.No.339/2016 5 and enjoyment of two other buildings. 3. On the rival pleadings, both parties adduced evidence and after considering the evidence on record, the courts below concurrently found that the denial of title of the petitioners and the landlord-tenant relationship of the petitioners and the respondents are not bonafide and the need projected in the petition is bonafide and the respondents are not entitled to get protection under the second proviso to Section 11(3) of the Act. On the above premises, the courts below granted an order of eviction under Section 11(3) and 11(4) (iii) of the Act. 4. Heard the learned counsel for the revision petitioners. 5. The learned counsel for the revision petitioners mainly focused his arguments canvassing the point that the courts below went wrong by finding that there exists a landlord-tenant relationship between the petitioners and the respondents. According to the learned counsel for the revision petitioners, the rent control court have no jurisdiction or power to examine the evidence adduced by the petitioners to substantiate the legal validity of the will allegedly executed by Father Mathew Kombanal in favour of the petitioners. In other words, according to the learned counsel for the revision petitioners, the courts below ought to have dismissed the rent control petition, for enabling examination of the genuineness and validity of the will R.C.R.No.339/2016 6 by the Civil Court. No other point has been raised before us in this revision petition. 6. Therefore, the scope and extent of consideration in this revision petition is confined to the question whether there is any illegality or impropriety in the concurrent findings of the courts below that there exist a landlord-tenant relationship between the petitioners and the respondents. According to the petitioners, they got a title and possession over the petition schedule building by virtue of Ext.P1 will executed by Father Mathew Kombanal, the brother of their father. Admittedly, the tenanted premises was taken on rent from Father Mathew Kombanal and the landlord-tenant relationship between Father Mathew Kombanal and the respondents was not disputed. The specific case of the petitioners is that after the death of Fr.Mathew Kombanal on 5.3.2002, the respondents have been attorned to them and they have been paying rent to them. The petition schedule shop room was mutated in their name under the will. The respondents have been paying rent @ Rs.750/- per month from 2002 onwards to them till 30.09.2010. On the other hand, the respondents also admitted that they have been paying rent to PW5 and there is no default in payment of rent after the death of Father Mathew Kombanal and paid rent till 30.9.2010 to PW5 and obtained the receipts for the same. R.C.R.No.339/2016 7 7. Going by the impugned judgment, it is seen that the court below has considered the question whether the denial of title of petitioner is bonafide or not and the court below, after considering the payment of rent to PW5 after the death of Father Mathew Kombanal on 5.3.2000 till 30.9.2010, by the respondent, held that the second respondent had paid the rent to the petitioners, for a long period of eight years, subsequent to the death of Fr.Mathew Komhanal treating them as landlord. So there is no bonafides in the denial of title of the petitioners and landlord-tenant relationship set up thereunder. 8. The second respondent admitted that he had paid rent to PW5, after the death of Father Mathew Kombanal till 30.09.2010. PW5 was the Manager of Father Mathew Kombanal and the rent was being collected by him, for Father Mathew Kombanal. According to the petitioners after the death of Father Mathew Kombanal, they became the title holder in possession of the petition schedule building by the operation of the Will and they continued to collect rent from the respondents through PW5. PW5 also has given evidence that after the death of Father Mathew Kombanal, he collected rent from the respondents, for and on behalf of the petitioners, as their agent, till 30.09.2010. The respondents have no case that they were unaware of the death of Father Mathew Kombanal, and they continued to pay R.C.R.No.339/2016 8 rent to PW5, as Father Mathew Kombanal was alive. The respondents closed their eyes towards the above said admitted facts, and simply denied the title of the petitioners and landlord-tenant relationship thereunder. Did the 2[nd] respondent pay rent to PW5, for eight years after the death of Father Mathew Kombanal, without making any enquiry as to who is his landlord, after the death of Father Mathew Kombanal. There is no explanation from the 2[nd] respondent, in this respect. The said payment of rent to PW5, after the death of Father Mathew Kombanal, to PW5 till 30.9.2010, would give rise to the irresistable inference that the 2[nd] respondent was paying rent to the petitioners, after the death of Father Mathew Kombanal through PW5. It follows that the said conduct of the respondent would place the petitioners and the 2[nd] respondent within the definitions of 'Landlord' under Section 2(3) of the Act and 'tenant' under Section 2(6) of the Act, respectively. It is to be borne in mind that the Full Bench of this Court in **Parthakumar v. Ajith Viswanathan ( 2006 (2)KLT 250)** held that permanent title of landlord does not require consideration, in a rent control petition and the landlord-tenant relationship alone requires consideration in a rent control petition. In the above analysis, we also find that there is no bonafides in the denial of title of the petitioners and the denial of landlord-tenant relationship set up thereunder. Hence this Revision fails and is dismissed accordingly. R.C.R.No.339/2016 9 9. The learned counsel for the revision petitioners prayed for some time to vacate the tenanted premises. Having regard to the facts and circumstances of the case, the respondents/tenants are given six months' time to vacate the tenanted premises on the following conditions : (1) The revision petitioners/tenants shall file an affidavit, within two weeks from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, expressing an undertaking that they will vacate the petition schedule shop room within six months from today. (2) The revision petitioners/tenants shall deposit the entire arrears, if any, within one month from the date of receipt of a copy of this order, before the Execution Court or the Rent Control Court, as the case may be, and shall continue to pay the rent without default. (3) In the event of failure to comply with any of the conditions stated above, the time granted to vacate the premises will stand automatically vacated and the respondents/landlord will be at liberty to proceed with the execution of the eviction order. **Sd/-** ## **K.HARILAL, JUDGE** ## **Sd/-** ## **P. SOMARAJAN , JUDGE** sv