Siva Subrammaniyam & Kannan v. Rani

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **THURSDAY ,THE 31ST DAY OF JANUARY 2019 / 11TH MAGHA, 1940** **RCRev..No. 39 of 2019** **AGAINST THE ORDER IN RCA 12/2014 of RENT CONTROL APPELLATE AUTHORITY (III ADDITIONAL DISTRICT COURT), KOLLAM DATED 30-11-2018** **AGAINST THE ORDER/JUDGMENT IN RC(OP) NO.17/2012 of PRINCIPAL RENT CONTROL COURT/PRINCIPAL MUNSIFF COURT, KOLLAM DATED 19-12-2013** ## **REVISION PETITIONERS/APPELLANTS/COUNTER PETITIONER :** **1 SIVA SUBRAMMANIYAM, AGED 62 YEARS, S/O. VELAPPAN PILLAI, RESIDING AT KOCHAPPALLY LINE, M.C 42/3654 (OLD M C 18/680), THAMARAKULAM WARD, KOLLAM EAST VILLAGE, KOLLAM DISTRICT, NOW RESIDING AT SIVAPRIYA-14/217A, M.S GATE BEHIND VARMA CLINIC, THRIPUNITHURA, ERNAKULAM DISTRICT.** - **2 MR. KANNAN, AGED 47 YEARS** **S/O. THIRUNAVUKARASH, RESIDING AT KOCHAPALLY LINE, M.C 42/3654(OLD M.C 18/680), THAMARAKULAM WARD, KOLLAM EAST VILLAGE, KOLLAM DISTRICT.** ## **BY ADV. SRI.S.SREEKUMAR (KOLLAM)** ## **RESPONDENT/S:** **RANI, AGED 58 YEARS** **D/O. BHADRAVANIYAMMA, RESIDING AT KOPPARA VEEDU, M.C 15/409, KANNIMEL CHERRY, KILIKOLLOOR VILLAGE, KOLLAM DISTRICT 691 004** ## **BY ADV. SRI.S.SANTHOSH KUMAR** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 31.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** RCRev..No. 39 of 2019 2 ## **ORDER** ## **Harilal, J** This revision petition has been filed against the judgment passed in R.C.A.No.12/2014 of the Rent Control Appellate Authority, (III[rd] Additional District Court), Kollam, whereby an order of eviction passed by the Rent Control Court, Kollam in R.C.(OP) No.17/2012 passed against the revision petitioners, stands affirmed. (Parties are referred to as in the rent control petition). 2. The petitioner/ landlord filed the aforesaid rent control petition under Section 11(2)(b), 11(3) and 11(4)(i) of the Kerala Building (Lease and Rent Control) Act, 1965 [for short, 'the Act'], against the respondents/tenants. According to the RCRev..No. 39 of 2019 3 petitioner/landlord, the tenanted premises originally belonged to her grandfather Velu and he leased out the tenanted premises to one G.Velappan Pillai in the year 1955. Subsequently, the petitioner/landlord's mother Bhadravaniyamma got title and possession of the tenanted premises by virtue of the partition deed executed in the year 1963. Thereafter, the said Bhadravaniyamma executed settlement deed allotting the tenanted building in favour of the petitioner/landlord herein. Since she has been residing in Canada along with her family, the rent was being collected by her mother Bhadravaniyamma for and on behalf of the petitioner/landlord. After the execution of settlement deed No.3428/2001 in favour of the petitioner/landlord, the same was informed to the RCRev..No. 39 of 2019 4 respondent/tenant. Pursuant to the execution of settlement deed No.5/1963 in favour of Bhadravaniyamma, G.Velappan Pillai was attorned to her as his landlord. G.Velappan Pillai died in the year 1993 and after his death, his son, the first respondent/tenant herein inherited the tenancy right of Velappan Pillai and continued to occupy the building as a tenant of Bhadravaniyamma in the tenanted building. The monthly rent was being periodically enhanced and present rent of the building is Rs.300/- per month. After the death of the Velappan Pillai, his son the first respondent - Siva Subramaniyam paid rent of the building to Bhadravaniyamma and obtained receipt from her. The partition deed No.3428/2001 in favour of the petitioner/landlord was executed while the first RCRev..No. 39 of 2019 5 respondent - Siva Subramaniyam was in occupation of the tenanted premises and he continued to pay rent @ Rs.300/- till 30.04.2002. Thereafter, he failed to pay rent from 01.05.2002 and rent of the building from 01.05.2002 is cumulatively in arrear and thereby he is entitled to get an order of eviction under Section 11(2)(b) of the Act. Now the petitioner/landlord wants to settle at her native place after returning from Canada and she decided to reside in the petition schedule building, in connection with her daughter's eduction. Neither the petitioner/landlord, nor her daughter has any other buildings of their own in their possession for their residence in India. Hence the petitioner/landlord demanded the first respondent/tenant to vacate the building and to RCRev..No. 39 of 2019 6 surrender the vacant possession of the building to her. But the first respondent/tenant was not amenable to the said demand. On further enquiry, the petitioner/landlord understood that the first respondent/tenant is permanently residing with his family at Thripunithara, Ernakulam, after subletting the building to the second respondent and now the second respondent and his family is residing in the building as subtenant of the first respondent, Siva The first has no Subramaniyam. respondent authority to sublet the building without the consent of the petitioner/landlord. Hence the petitioner/landlord is entitled to get an order of eviction under section 11(4)(i) of the Act also. 3. The respondents filed a joint written statement admitting the title and possession of the RCRev..No. 39 of 2019 7 petitioner in the tenanted premises. But, they denied the landlord-tenant relationship between the predecessors and at present between the petitioner and the 1[st] respondent herein. The first respondent further admitted that the tenanted premises was in occupation of the second respondent. According to them, the second respondent was in occupation of the tenanted premises as successor-in-interest of his father Sundaram. Sundaram was in occupation of the said tenanted premises as successor-in-interest of the original tenant, Velappan Pillai. Velappan Pillai had two children, the first respondent and Sundaram and both were in occupation of the tenanted premises after the death of Velappan Pillai. They denied the allegation that the first respondent has sublet the tenanted premises to the second RCRev..No. 39 of 2019 8 respondent. According to them, there is no occasion to sublet the tenanted premises to the second respondent as he was in occupation of the building as successor-in-interest of Velappan Pillai, the original tenant. Further, they contended that the need alleged in the petition is not _bona fide_ and it is a pretext for eviction only. They denied the allegation that they have paid rent to Bhadravaniamma as landlord of the tenanted premises. According to them, they never paid rent to the petitioner or her predecessor-in-interest, Bhadravaniamma. On enquiry, the respondents understood that the petitioner was permanently residing with her family at Canada and they have no intention to return to India. The petitioner has another building in her name and she filed a petition RCRev..No. 39 of 2019 9 before the Rent Control Court as RC(OP)37/2011 for evicting the tenant by name Jaya Kannan from that building and that petition was dismissed by the Rent Control Court, on a finding that the petitioner has no cause of action against the tenant. The petitioner has earlier filed RC(OP)31/2011 before the Rent Control Court for evicting the respondents. But, later, the petitioner had withdrawn that petition and the said fact was suppressed in the present rent control petition. 4. The first respondent's father Velappan Pillai did not execute any rent deed in favour of the petitioner's mother Bhadravaniamma. Actually, the petitioner has no plan to shift her daughter's education to Kollam. Further, she denied the RCRev..No. 39 of 2019 10 allegation that the first respondent has sublet the tenanted premises to the second respondent. According to the petitioner, one Chellamma and her two children started residence in the scheduled building from the year 1939. Chellamma had two children Velappan Pillai and Sundaram Pillai. Velappan Pillai has six children and Sundaram Pillai has three children. The second respondent Kannan is the son of Parijatham. The second respondent and his mother Parijatham have right of adverse possession over the scheduled building. From 1939 onwards the respondents' predecessors-in-interest had absolute possession and they were in continuous occupation of the petition schedule building without any disturbance. Thus, they prayed for dismissal of the rent control petition. RCRev..No. 39 of 2019 11 5. On the aforesaid rival pleadings, both parties adduced evidence and after considering the evidence on record, the court below concurrently found that the need projected in the petition is bonafide and the respondents are not entitled to get protection under the 2[nd] proviso to section 11(3) of the Act. The first respondent sublet the tenanted premises to the second respondent without the consent of the petitioner. 6. The learned counsel for the respondents/tenants advanced arguments, mainly contending that the courts below went wrong by holding that there is landlord-tenant relationship between the petitioner and the respondents. Secondly, it is contended that the findings of the RCRev..No. 39 of 2019 12 courts below that the need projected in the petition is _bona fide_ is perverse, warranting interference of this court in revisional jurisdiction. Thirdly, the order of eviction passed under section 11(2)(b) against the tenant in the appeal is illegal and unsustainable, warranting interference of this court in exercise of revisional jurisdiction. 7. Per contra, the learned counsel for the petitioner advanced arguments to justify the concurrent findings of the courts below granting an order of eviction under sections 11(3) and 11(4)(i) of the Act. According to the learned counsel for the petitioner, the courts below have rightly appreciated the evidence on record, which would prove the landlord-tenant relationship and rejected the denial RCRev..No. 39 of 2019 13 of landlord-tenant relationship. Similarly, the evidence on record would prove that the need projected in the petition is honest and sincere. Therefore, there is no scope for intereference with the order of eviction passed under sections 11(3) and 11(4)(ii) of the Act. 8. In view of the arguments, the first question to be considered is, whether there is any illegality or impropriety in the findings that there is landlordtenant relationship between the petitioner and the respondents. 9. In paragraph 1 of the counter statement, the respondents specifically stated that the ownership, title etc., of the petitioner in the petition schedule property is not disputed. It is the specific RCRev..No. 39 of 2019 14 case of the petitioner that the tenanted premises originally belonged to her grandfather Velu and the same was leased out to Velappan Pillai, the grandfather of the respondents in the year 1955 by virtue of a rent deed executed in January, 1955 and thereafter the tenanted premises devolved upon the petitioner's mother Bhadravaniamma by virtue of a settlement deed executed in the year 1963 and thereafter the petitioner got title and possession by virtue of settlement deed No.3428/2001 executed by Bhadravaniamma in the year 2000. It was also specifically contended that after the death of Velu, the original landlord, the tenancy of Velappan Pillai was attorned to Bhadravaniamma and thereafter by the execution of settlement deed 3428/2001, the tenancy was attorned to the petitioner and the rent RCRev..No. 39 of 2019 15 was being paid to Bhadravaniamma, for and on behalf of the petitioner, as she was residing in Canada with her family. 10. In the counter statement filed by the respondents, it is pertinent to note that the landlord-tenant relationship between Velappan Pillai, the predecessor-in-interest of the respondents with Velu, the predecessor-in-interest of the petitioner was not denied. They have denied the landlord-tenant relationship between the respondents, Bhadravaniamma and the petitioner alone. The respondents have no case that the tenanted premises has not devolved upon Bhadravaniamma by virtue of settlement deed executed in the year 1963 or the tenanted premises RCRev..No. 39 of 2019 16 has not subsequently devolved upon the petitioner by virtue of settlement deed No.3428/2001. Thus, the transfer of title and possession from Velu to Bhadravaniamma or from Bhadravaniamma to the petitioner is not challenged in the counter statement filed by the respondents. Therefore, if the landlord-tenant relationship between Velu and Velappan Pillai, the original landlord and the original tenant are not denied and the subsequent settlement deeds are also not denied, the denial of landlord-tenant relationship between the respondents and Bhadravaniamma, and the petitioner lack _bona fides and_ the original tenancy would automatically devolve upon the subsequent assignees and there cannot be a denial, unless the title deeds in favour of subsequent assignees are RCRev..No. 39 of 2019 17 denied or challenged. So long as the landlord-tenant relationship between Velu and Velappan Pillai are not denied, the respondents cannot be heard to say that there is no landlord-tenant relationship between the respondents and Bhadravaniamma or the petitioner. Besides, going by Exts.A8 to A13 documents, it could be seen that in the written statement filed in OS 891/2006 filed by the second respondent, he admitted that the respondents are tenants of the tenanted premises under the petitioner. That apart, the respondents admitted in Ext.A9 that the owner of the tenanted premises is the petitioner and she got title over the tenanted premises from her mother Bhadravaniamma and years ago Bhadravaniamma had given her house to the first respondent and the second respondent is RCRev..No. 39 of 2019 18 also staying along with the first respondent as he is his uncle. When the second respondent was examined as RW1, he was confronted with Ext.P9 written statement filed by him in OS 891/2006 and he admitted the aforesaid averments in the written statement as such. 11. We are of the opinion that the aforesaid admission in Ext.A9 can be taken as conclusive evidence, to prove the existence of landlord-tenant relationship between the petitioner and the respondents. 12. In the above view, we find that there is no illegality or impropriety in the finding that there exists landlord-tenant relationship between the petitioner and the respondents. RCRev..No. 39 of 2019 19 _bona_ 13. Coming to the challenge against the _fides_ of the need, we must remind ourselves the limited scope and extent of revisional jurisdiction under section 20 of the Act, which is confined to the legality, propriety and regularity of the findings of the courts below only. This court is not inclined to re-appreciate the entire evidence on record on the _bona fides_ of the need in exercise of revisional jurisdiction, unless the findings of the courts below are The learned counsel for the perverse. respondents submits that the pleadings are not sufficient to establish an urgent or _bona fide_ need and even now the petitioner is residing in Canada and no document has been produced to prove the need based on the education of her daughter. RCRev..No. 39 of 2019 20 14. It is well settled by this Court in **1972 (ILR) KER 101** that the need need not be a current one always and it can be prospective also. It is not necessary that there should be a current urgent need. It is enough if it is reasonable and likely to arise in near future. This decision is further followed by the division Bench of this Court in _**Raveendran v. Sivaprasad 2008 (1) KLT SN 33**_ . Therefore, we are of the opinion that there is no reason to doubt the desire of an NRI, who is residing in Canada, to return to her native land for the education of her daughter and she wants the tenanted premises for her residence. There is no evidence to prove that the petitioner has any other building of her own in Kerala suitable for her residence with her family. Therefore, there is no perversity in the finding that the need projected is RCRev..No. 39 of 2019 21 _bona fide_ and genuine. We do not find any reason to interfere with the order of eviction passed concurrently by the courts below under section 11(3) of the Act. 15. Coming to the order of eviction passed under Section 11(2)(b), _prima facie_ we find force in the arguments advanced by the learned counsel for the respondents/tenants challenging the legality of the said order. Going by the order passed by the rent control court, it could be seen that the rent control court rejected the prayer for an order of eviction under Section 11(2)(b) of the Act, on a finding that the petitioner/landlord failed to establish arrears of rent allegedly due from the respondents/tenants to the petitioner/landlord. But the petitioner has not challenged the said order RCRev..No. 39 of 2019 **==> picture [11 x 6] intentionally omitted <==** rejecting the claim for eviction under Section 11(2)(b) of the Act and the respondents alone filed R.C.A.No.12/2014 against the order of eviction passed against them under Section 11(3) and 11(4)(i) of the Act. We are afraid that in the appeal preferred by the respondents/tenants, the appellate authority passed an order of eviction against the tenants under one more ground, wherein no appeal was filed by the petitioner/landlord challenging the rejection of the claim for eviction under that ground. In an appeal filed by the tenant against an order of eviction passed against him, the appellate authority should not have passed an order of eviction under another ground also, which stands rejected by the rent control court. In the above view, we find that the order of eviction passed under Section 11(2) RCRev..No. 39 of 2019 23 (b) of the Act, against the respondents/tenants, is illegal and unsustainable, warranting interference of this Court in revisional jurisdiction. Therefore, that part of the impugned order, whereby an order of eviction passed under Section 11(2)(b) of the Act, would stand set aside. In the result, this revision petition fails and it is dismissed accordingly. 16. At this juncture, the learned counsel appearing for the revision petitioners seek one year time to vacate the tenanted premises. Having regard to the nature of use, the revision petitioners are hereby granted six months' time to vacate the petition schedule building, on the following conditions: ## _(1) The revision petitioners/tenants shall file an_ _affidavit, within two weeks from the date of_ RCRev..No. 39 of 2019 24 _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 he 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 respondent/landlord will be at liberty to proceed with the execution of the eviction_ RCRev..No. 39 of 2019 25 ## _order._ All pending Interlocutory Applications will stand closed. sd/- **K.HARILAL, JUDGE** sd/- **ANNIE JOHN, JUDGE** AMV/31/01/2019