Kerala High Court

K.K.Sheeba vs K.K.Sheeba on 2 February, 2021

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

             THE HONOURABLE MR. JUSTICE A.HARIPRASAD

                                &

             THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

     TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942

                      RCRev..No.297 OF 2016

  AGAINST THE JUDGMENT IN RCA 105/2009 DATED 15-07-2015 OF RENT
  CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT COURT - II),
                           THALASSERY

  AGAINST THE ORDER/JUDGMENT IN RCP 14/2007 DATED 21-08-2009 OF
                   MUNSIFF COURT, KUTHUPARAMBA


REVISION PETITIONERS/APPELLANTS/RESPONDENTS:

      1      K.K.SHEEBA,
             D/O. KARUNAKARAN,CHIRAG FOOT WEAR AND STATIONARY,PO.
             IRITTY, KANNUR, DT.

      2      MEETHALE VEETTIL KALLIYANI,
             MEETHALE HOUSE, KALLUMUTTY, PAYAM AMSOM DESOM
             P.O.IRITTY, KANNUR DT.

      3      K.SONITHA,
             D/O. SASIDHARANKYPRATH VALAPPIL HOUSE,NEAR
             MUZHAPPILANGAD HIGH SCHOOL, MUZHAPPILANGAD PO.,KANNUR
             DT.

      4      SHARON KUMAR,
             S/O. SASIDHARAN, S/O. K.K.SHEEBA,CHIRAG FOOT WEAR AND
             STATIONARY,IRITTY, KANNUR DT.

             BY ADVS.
             SRI.K.R.AVINASH (KUNNATH)
             SRI.ABDUL RAOOF PALLIPATH
             SRI.E.MOHAMMED SHAFI

RESPONDENT/RESPONDENT/1ST PETITIONER:

             KOLYANKANDY THODUVAYAL FATHIMABI,
             D/O. MAZMMOOTTY HAJI, AGED 40 YEARS,KEEZHUR AMSOM
             DESOM, THALASSERY TALUK,REP. BY HER POWER OF ATTORNEY
             HOLDER,TALIPARAMBAN ESSA, S/O. MOIDEEN, AGED 73
             YEARS, KEEZHUR AMSOM DESOM,IRITTY, KANNUR DT.
 RCRev..No.297 OF 2016           2

              R1 BY ADV. SRI.V.BINOY RAM

     THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
02.02.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 RCRev..No.297 OF 2016                 3




          Dated this the 2nd day of February, 2021

                                      ORDER

A.Hariprasad,J.

We dictated the order in the case in open

court on 01.02.2021. Thereafter, learned counsel

for the respondents brought to our notice that

he has omitted to make a submission regarding a

vital aspect. Therefore, we heard both sides

again on 02.02.2021.

2. Tenants, who have been unsuccessful

before the Rent Control court and the Appellate

Authority are before us in revision. They are

aggrieved by an order of eviction passed by the

Rent Control Court under Section 11(2)(b) and

11(3) of the Kerala Building (Lease and Rent

Control) Act 1965 (in short 'the Act'), which

was affirmed in appeal by the Appellate

Authority. The parties are hereinafter referred

to in the rank as shown in the eviction

petition.

3. Short facts relevant for disposal of the

case is as follows: The petition schedule room

originally belonged to the second petitioner.

On 5.8.1993, he executed a gift deed (Ext.A1) in

respect of the petition schedule building in

favour of the first petitioner. While so, as per

Ext.A2 kachit the building was entrusted by the

second petitioner to the respondents/tenants

fixing a monthly rent. In the eviction petition,

second petitioner is made an eo-nominee party.

It is averred in the petition that the first

petitioner needs the building for own occupation

to eke out a livelihood. According to the

averments, her husband at the material time was

working abroad as a driver and his income was

insufficient to maintain first petitioner's

family. It is also pointed out that the tenants

have kept the rent in arrears.

4. The respondents filed a counter

statement disputing the claim for arrears of

rent. Moreover, they contended that the need

set up on behalf of the first petitioner is a

ruse to evict the tenants from the building.

According to them, the first petitioner has no

necessity to get the building vacated as she

has no intention to start any business. It is

also pointed out that the second petitioner had

dealt with the tenants and therefore, they would

claim that the second petitioner is the owner of

the building. Respondents have no case that they

had at any point of time attorned to the first

petitioner. The gift deed relied on by the

first petitioner is also disputed.

5. After considering the oral and

documentary evidence produced before the court,

the Rent Control Court allowed eviction on both

counts. It was affirmed by the Appellate Court

in its impugned judgment.

6. Heard the learned counsel for the

revision petitioners and the respondent.

7. Learned counsel submitted that the first

petitioner has not derived any right, title or

interest over the petition schedule property by

virtue of Ext.A1 gift deed. Admitted facts are

as follows: Second petitioner filed RCP No.29

of 1992 to evict the respondents from the

premises urging a ground u/S.11(3) of the Act.

In that case, the second petitioner claimed that

he bonafide needed the building for one of his

sons to start a business. Since he lost in the

two courts below, he approached this Court with

CRP No.2149 of 1996. While so, second petitioner

(Mammootty) executed Ext.A2 kachit in favour of

the tenants re-entrusting the property for a

higher rent. Recording the factum of execution

of Ext.A2, this Court disposed of the CRP on

15.2.1999. It is also pointed out that Ext.B14

receipt was given by second petitioner Mammootty

to the tenants asserting his ownership over the

petition schedule building and admitting that a

total sum of Rs.55,000/- was received from the

tenants as deposit bearing no interest. As

pointed out by the learned counsel for the

revision petitioners, we notice that in Ext.A2

executed on 17.11.1998 second petitioner

Mammootty as claimed ownership over the petition

schedule building. In this context, it is

relevant to note that the gift deed, Ext.A1

executed on 5.8.1993 by Mammootty to his

daughter (1st petitioner) was not brought to the

notice of the courts below or this Court.

Without disclosing Ext.A1, the matter was

settled between Mammootty and the tenants, as

if he was the owner of the building as on

15.2.1999, the date of disposal of the CRP.

8. In this background, it is contended by

the learned counsel for the revision

petitioners/tenants that Ext.A1 gift deed was

not acted upon. We have reservations about the

sustainability of such a plea in a proceeding

for eviction under the Act. In our view, it is

in the realm of a Civil Court to pronounce on

the genuineness and legality of Ext.A1 gift

deed. It is trite, in order to complete a gift

under the Muhammadian Law, three things are

essential; (i) there should be a declaration of

gift (ii) there should be an acceptance of gift

and (iii) there should be delivery of possession

to complete the gift. Learned counsel for the

revision petitioners pointed out a statement

made by the first petitioner as PW1 on oath that

she did not get possession of the building

pursuant to Ext.A1. Even if we give a margin to

this version of PW1 that the building was

outstanding in the possession of the tenants at

the time of Ext.A1, the contention raised by the

tenants has some force in the factual background

established by documentary evidence in this

case. Without expressing any opinion on the

genuineness of Ext.A1, we find that totality of

the facts now put forward before this Court in

this revision were not considered by the

authorities below.

9. We are aware that the jurisdiction of a

revisional court is limited to decide whether

the impugned order suffers from any illegality,

impropriety or irregularity. Vexed questions of

fact cannot be re-agitated in a revision. At the

same time, Rent Control Court and Appellate

Authority did not bestow any attention to the

factual questions now raised before this Court

with reference to various dates born out from

the records to test the bonafides of the claim

for eviction. When we feel doubt regarding the

bonafides of the claim, we need not dwell on

other aspects covered by the provisos to Section

11(3) of the Act.

10. Therefore, we are constrained to remand

the case to the Rent Control Court to afford the

parties an opportunity to amend the pleadings,

or to adduce fresh evidence if parties so

choose.

11. It is brought to our notice that this

Court by an order on I.A.No.2193 of 2016 dated

25.05.2017 directed thus:

                 "The    interim          order    earlier
           passed       by         this      court        on
           20.09.2016        shall        stand    revived

and extended until further orders subject to the condition that petitioner continues to deposit or pay occupation charges at the rate of Rs.5000/- per mensem. In the event of default, it will be open to the respondent to move this court for having the interim order vacated."

12. It is pointed out that the tenants are

not depositing any amount due thereafter. We

make it clear that the tenants shall clear the

entire arrears in one month and continue to

deposit Rs.5000/- (Rupees five thousand only)

specified in the order dated 25.05.2017 till the

disposal of the matter.

In the result, this revision petition is

allowed. The parties shall appear before the

Rent Control Court on 26.2.2021. The court below

shall dispose of the matter on or before 30th

June, 2021.