High Court of KeralaDivision Bench2012-01-06Remanded to Rent Control Court for fresh determ...

T.A. Ayob v. Muhammed and others

Case / Petition Number:RCR.No. 297 of 2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Pius C. KuriaKose
C.K. Abdul Rehim
Judgment Date: 2012-01-06
Court Decision / Holding: Remand the Rent Control Petition to the Rent Control Court for fresh findings on the exact date of possession and the liability under Section 11(4)(i). Fix rent at Rs. 1000 per month with effect from 01-02-2012, pending final determination. Set aside the appellate court and trial court decisions insofar as they relate to eviction under Section 11(4)(i) and direct expedited proceedings, with appearance by the parties on 01-02-2012 and a maximum four-month window to pass a revised order.
Final Disposition: Remanded to Rent Control Court for fresh determination on possession timing and liability under Section 11(4)(i); rent fixed at Rs. 1000 per month from 01-02-2012; expedite proceedings; appearance fixed on 01-02-2012.

Parties to the Case

Appellants / Petitioners

T.A. Ayob

Respondents

Muhammed
Sharban
Shamsu

Legal Representation & Advocates

Counsels for Petitioners

• Sri G. Sreekumar (Chelur)
• Sri K. Ravi (Pariyarath)

Counsels for Respondents

• Sri R. Sreehari
• Sri P.B. Krishnan
• Sri R. Sreehari

Case Synopsis & Summary

The petition concerns a revision of eviction orders against the alleged sub-tenant in a rent-control matter. The revision petitioner, T.A. Ayob, was found by the Rent Control Court and the Rent Control Appellate Authority to be an unauthorised sub-lessee or transferee of the property, under Section 11(4)(i) of the Kerala Rent Control Act. The petitioner contends that he entered the building in 1999 as a direct tenant under the landlords, or, alternatively, that he is a lawful heir of the deceased Moideenkutty, and thus a tenant in his own right under personal law (Hanafi school). The lower authorities, however, rejected his direct-tenancy claim, and the case focused on whether the eviction ground under Section 11(4)(i) was established. The High Court examined the evidentiary burden and noted that a precise point in time of possession is essential for a correct decision. It observed that the rent payable for the schedule building was presently low (Rs. 206) but could be fixed as fair rent under Section 5, and recommended a revised rent of Rs. 1000 per month (with effect from 01.02.2012) while the juristic status is resolved. The court set aside the lower orders to the extent they dealt with Section 11(4)(i) eviction, remanding for fresh determination on possession timing, with opportunity for further evidence, and directed appearance on 01.02.2012 and a four-month deadline for final orders.

Provisions of Law Cited

Section 11(4)(i) of the Kerala Rent Control Act (Act 2 of 1965)Section 21 of the Kerala Rent Control ActSection 2(6) of Act 2 of 1965Section 5 of the Kerala Rent Control Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner argued that he could either be protected as a direct tenant under the landlords since his possession began in 1999, or as a legal heir acting in his own right under personal (Hanafi) law, given that the original tenant Moideenkutty had no surviving sons. He asserted that Ext. A1 did not properly disclose a sub-lease in his favour and that the eviction petition under Section 11(4)(i) was not maintainable absent evidence of a sub-lease or transfer in his name. He urged that the statutory authorities erred in treating him as a mere sub-lessee without conclusively establishing his tenancy status and sought remand for correct factual determination of possession and status, along with appropriate rental adjustments.

Contentions of Respondents

Respondents argued that the revision petitioner could not establish direct tenancy in 1999 and that, even if the possession originated from the time of Moideenkutty’s life, it was unauthorised. They relied on the authorities to say that the mere notice of sub-lease concerning Shamsu and the absence of a timely termination by Sharban did not cancel the eviction grounds. They asserted that the fundamental issue is the existence of a sub-lease or unauthorized transfer, not the identity of the lease holder. Ext.A1 showing objectionable sub-lease was sufficient to justify eviction, and the court should proceed on that basis, while allowing the revision petition to be heard again in the Rent Control Court with further evidence. They stressed that the rent could be revised and maintained independently of the tenant’s status until a final determination is made.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Vipinachandran v. Xavier	2005 (4) KLT 850	Mentioned Only	Cited by counsel to support a proposition regarding Section 11(4)(i) but not followed or elaborated as a binding principle in the final disposition.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM FRIDAY, THE 6TH DAY OF JANUARY 2012/16TH POUSHA 1933 RCR.No. 297 of 2011 ( ) ======================= RCA.1/2010 of RENT CONTROL APPELLATE AUTHORITY PALAKKAD RCP.22/2006 of RENT CONTROL COURT, OTTAPPALAM ## REVISION PETITIONER(S)/REVN.PETITIONER/APPELLANT/COMPLAINANT/SU =============================================================== 1 T.A.AYOOB, AGED 42, S/O. THERUVATHAKATH T.B.ABDURAHIMAN OTTAPALAM AMSOM ARIYOOR THEKUMURI DESOM OTTAPALAM TALUK. BY ADV.SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) ## RESPONDENT(S)/RESPONDENTS/PETITIONER AND RES.1 AND 2 ==================================================== 1 MUHAMMED, S/O. MULAKIL LATE ABDUL KHADER OTTAPALAM AMSOM ARIYOOR THEKUMURI DESOM OTTAPALAM TALUK PIN-679 101. 2 SHARBAN, D/O. THERUVATHAKATH T.B.MOIDEEN OTTAPALAM AMSOM ARIYOOR THEKUMURI DESOM OTTAPALAM TALUK PIN-679 101. 3 SHAMSU, S/O. MELETHIL BAPPU, MAYILAMPURAM KANNIYAMPURAM AMSOM THOTTAKARA DESOM OTTAPALAM TALUK PIN-679 101. ADV. SRI.R.SREEHARI SRI.P.B.KRISHNAN SRI.R.SREEHARI THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 06-01-2012 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. -----------------------R.C.R. NO. 297 OF 2011 ------------------------** Dated this the 6th day of January, 2012 ## **O R D E R** Pius C.Kuriakose, J. The alleged sub tenant, who has been ordered to be evicted by the Rent Control Court and the Appellate Authority on the ground of sub letting/unauthorised transfer (the ground under Section 11 (4)(i)), is the revision petitioner. In defence to the ground of sub letting the revision petitioner contended that he came into possession of the building in question in 1999 (even during the life time of Mr.Moideenkutty the original tenant) as a direct tenant under the respondents/landlords. He had an alternative contention that his status, at any rate, at the time of institution of the rent control petition is that of a tenant in his own right being one of the legal heirs of deceased Moideenkutty, who was governed by Hanafi school of Muhammadan Law -who had left surviving him no sons. It appears that at trial and also during hearing before the Rent Control Court as well as the Appellate Authority, thrust was given by the revision petitioner on RCR No. 297 /2011 2 his plea that he was a tenant under the respondents during the life time of Mr.Moideenkutty with effect from 1999 itself. His alternative case that he is a tenant being one among the legal heirs of deceased Moideenkutty, was not seriously pursued before the statutory authorities who apparently did not become concerned with that case. The statutory authorities have concurrently repelled the revision petitioner's case of direct tenancy under the landlords and concluded that the status of the revision petitioner can only be that of an unauthorised sub lessee or transferee. On that basis eviction order has been concurrently passed against the revision petitioner. 2. The above eviction order is challenged in this revision on various grounds. Sri.G.Sreekumar Chelur learned counsel for the revision petitioner in his submissions would stress the following points; i). Under the personal law, by which late Moideenkutty the original tenant was governed, the revision petitioner was the legal heir of Mr. Moideenkutty, and in terms of Section 2 (6) of Act 2 of 1965 the revision petitioner is a tenant in his own right. RCR No. 297 /2011 3 ii). Ext.A1 notice issued to Smt.Sharban, the 2nd respondent-the only daughter of deceased Moideenkutty, gives intimation of alleged sub lease or transfer in favour of Shamsu, the 3rd respondent only. iii). It is the alleged sub lease in favour of Mr.Shamsu that Smt.Sharban the admitted tenant was called upon to terminate. iv). In the absence of any intimation regarding the sub lease/transfer in favour of the revision petitioner, the rent control petition to the extent the same seeks eviction of the revision petitioner under Section 11 (4)(i) is not maintainable. 3. Sri.P.B.Krishnan learned counsel for the respondents/landlords would try to meet the arguments of Mr.Sreekumar with the following replies; i). The prominent and definite case of the revision petitioner is that he came into possession of the petition schedule building as a direct tenant under the landlords in 1999, a time when the original tenant Sri.Moideenkutty was alive. Having miserably failed in establishing the case of direct tenancy pleaded by him, the situation which emerges inevitably is that the revision petitioner came into possession of the building in RCR No. 297 /2011 4 1999 unauthorisedly. Finding to this effect is inevitable in the absence of any evidence adduced by the revision petitioner regarding the authorised nature of his possession though the burden was heavy on the revision petitioner to adduce evidence. The estate of sub tenancy, which is created in favour of the revision petitioner, will not vanish away by the demise of Mr.Moideenkutty even if it is conceded that upon Moideenkutty's demise the revision petitioner has acquired fractional interest in the tenancy right over the building along with the other legal heirs of the deceased Moideenkutty including Smt.Sharban. ii). Referring to Section 21 of the statute and relying on the judgment of another Division Bench of this court in Vipinachandran v. Xavier (2005 (4) KLT 850) to which one among us (PCK(J)) is a party, it was submitted that a registered notice sent to the tenant be returned to the sender on the reason that the tenant is out of India is sufficient for the purpose of Section 11 (4)(i). iii). Identity of the alleged sub tenant is insignificant. What is significant is a factum of sub lease or unauthorised transfer. RCR No. 297 /2011 5 In Ext.A1 there is intimation regarding the objectionable sub lease or transfer which the tenant could have terminated. As that has not been done, eviction order should follow. 4. We have given our anxious consideration to the submissions addressed before us by Sri. Sreekumar G. and Sri.P.B.Krishnan. We have reminded ourselves of law-statutory as well as settled by judicial precedents. We have made a quick survey of the evidence adduced by the parties. We feel that the rent control petition should go back to the Rent Control Court as it is necessary to enter a correct finding as to when exactly the revision petitioner came into possession. For taking correct decision on the legal and factual arguments addressed before us by both sides, a finding as to the exact point of time when the revision petitioner came into possession will be necessary. 5. We notice another aspect of the matter. The petition schedule building, which is situated in a prominent area of the ancient town of Ottapalam, is fetching to the landlords a paltry rent of Rs.206/- per month only. We have no doubt in our mind that the said rent is far below the fair rent which the rent control court may fix in respect of the building in proceedings RCR No. 297 /2011 6 under Section 5. We refix the rent payable in respect of the building (without prejudice to the rival contentions regarding the juristic status of the revision petitioner in the building) at Rs.1000/- per month with effect from 1/2/2012 . Till fair rent of the building is regularly fixed under Section 5, the rent fixed by us as above will prevail. 6. The result of the above discussion is as follows; i). The judgment of the Rent Control Appellate Authority and the order of the Rent Control Court to the extent the same pertains to the ground under section 11 (4)(i) are set aside. ii). The rent control petition is remanded to the Rent Control Court for taking a fresh decision as to the liability for passage of eviction order under Section 11 (4)(i). The rent Control Court shall hold further enquiry giving opportunity to both sides to adduce whatever further evidence they want to. All requisite findings will be entered and revised order shall be passed by the Rent Control Court on the basis of the evidence already on record and the further evidence which the party may adduce. iii). The parties shall enter appearance before the Rent RCR No. 297 /2011 7 Control Court, Ottappalam on 1/2/2012. The Rent Control Court will expedite matters and will make all endeavour to pass revised order within a maximum period of four months thereafter. **PIUS C.KURIAKOSE,JUDGE** **C.K.ABDUL REHIM, JUDGE.** dpk RCR No. 297 /2011 8