Kerala High Court
Asokan vs Hussain on 27 May, 2024
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
MONDAY, THE 27TH DAY OF MAY 2024 / 6TH JYAISHTA, 1946
RCREV. NO. 156 OF 2019
AGAINST THE JUDGMENT DATED 09.11.2018 IN RCA NO.64 OF 2010 OF
ADDITIONAL DISTRICT COURT, IRINJALAKUDA ARISING OUT OF THE
JUDGMENT DATED 31.07.2010 IN RCP NO.15 OF 2001 OF MUNSIFF COURT,
KODUNGALLUR
REVISION PETITIONER/APPELLANT/PETITIONER:
ASOKAN
AGED 64 YEARS
S/O.THARAYAPURATH VELAYUDHAN, PERNJANAM VILLAGE DESOM,
PERINJANAM P.O, THRISSUR DISTRICT-680691
BY ADV G.SREEKUMAR (CHELUR)
RESPONDENT/RESPONDENT/RESPONDENT:
HUSSAIN
AGED 67 YEARS
S/O.MATHILAKATHU VEETIL KHADER, PERINJANAM, THRISSUR
DISTRICT-680691
THIS RENT CONTROL REVISION HAVING COME UP FOR HEARING ON
27.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RCREV. NO. 156 OF 2019
2
ORDER
Amit Rawal, J.
Petitioner-landlord has come up in this RCR against findings of
fact and law rendered by the Rent Controller and the Appellate
Authority. The case has a little checkered history, enumerated
herein below.
2. Petitioner-landlord sought eviction of respondent-tenant on
the ground of personal necessity provided under Section 11(2)(b),
11(3) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control)
Act. Respondent-tenant contested aforementioned petition on the
ground that landlord was not only the owner of petition scheduled
building but is in possession of the building adjacent to as provided
under sub Section 3 of Section 11 of the Act. Since the parties were
at variance, the following issues were framed.
1. Whether the counter- petitioner used the petition schedule shop
room such a manner as to destroy or reduce its value or utility,
materially and permanently?
2. Whether the prayer for eviction on the ground of bonafide use of
the petitioner is allowable?
3. Whether the Ist proviso to Section 11(3) is applicable in this case?
4. Whether the counter- petitioner is entitled to the benefits under
the 2nd proviso to Section 11(3)?
RCREV. NO. 156 OF 2019
3. In support of the respective stand and pleadings, following
witnesses and documents were brought on record.
Petitioner's Exhibits:
A1: 31.12.99 Rent karar executed between Asokan andHussain
A2: 10.11.09 Copy of Lawyer notice
A3: Postal Receipt
A4: Postal Acknowledgment card
A5: 25.11.00 Reply Notice
Respondent's Exhibits:
B1: 10.11.00 Lawyer Notice
B2: 25.11.00 Copy of Reply Notice
Court Exhibits:
C1: 10.06.02 Commission Report submitted by Adv. Commissioner
P.M.Haris
C1(a): 10.06.03 Plan submitted by Adv. Commissioner P.M.Haris
Petitioner's witness:
PW1: 06.06.03 Asokan
PW2: 06.06.03 Rajan
PW3: 10.06.03 Adv. P.M.Haris
PW4: 10.06.03 Syamlal
Respondent's witness:
RW1 10.06.03 Hussain
RW2: 10.06.03 Babu
RW3: 10.06.03 Hamsa
4. Learned Rent Controller vide judgment dated 30.6.2003
ordered the eviction of the respondent-tenant under Section 11(3) of
the Act and eviction on the ground of 11(4)(ii) was rejected. Tenant
was given three months time to handover the vacant possession of
scheduled shop. Aggrieved of the same, respondent-tenant preferred
a RCA No.82 of 2003. Learned appellate authority vide judgment
RCREV. NO. 156 OF 2019
dated 19.9.2006 allowed the appeal on the premise that petitioner-
landlord had not specifically pleaded the ingredients to meet out the
objection as provided under the proviso to sub Section 3 of Section
11 of the Act and the cross appeal preferred against the order
rendered, declining the eviction on the ground of 11(4)(ii), was
dismissed. It is pertinent to mention that, during pendency of the
appeal, petitioner-landlord had placed on record three (3)
documents in addition and marked as A6 to A8 by the appellate
court. The details of which are given hereunder:
1. A6: licence issued in the name of one Salini who is the wife of the
brother of the petitioner for the period 1.4.2004 to 31.3.2005.
2. A7: licence in the name of the Salini for the period of 2005-2006
3. A8: receipt evidencing the payment of licence fee for the period of
2004-05
5. The matter reached this Court in RCRev. No.171 of 2007.
The High Court in RCR remanded the matter vide judgment dated
16.12.2009. Documents which were tendered by the petitioner-
landlord as A6 to A8 were again exhibited as A6(a), A7(a) and A8(a)
respectively by the Rent Controller. After remand, landlord had
also placed on record A9 to A16. The same is extracted hereunder:
A9 22.02.2007 Licence No. 146/2006-07 do--do--,-do-
A10 15.02.2010 Licence No. C2/288/09-10 of -do-,-do-
A11. 16.02.2010 Receipt of B.S.N.L for Rs. 80/- in the name
RCREV. NO. 156 OF 2019
of Anusree Asokan
A11(a). 11.01.2010 ...do- for Rs.142/-
A11(b). 05.1.2010 P.C.O. Bill of B.SN.L in the name of
Anusree for Rs. 142/-
A11(c). 10.10.2007 Receipt of -do- for Rs. 185/- in the ameof
Anusree Asokan
A11(d). 05.10.2007 P.C.O. Bill of B.SN.L in the name of
Anusree for Rs. 185/-
A11(e). 05.09.2008 P.C.O. Bill of B.SN.L for Rs. 136/- of Anusree
A11(f) 05.08.2009 Postal Receipts
A11(g) 05.08.2009 P.C.O. Bill of B.SN.L for Rs. 3/- in the name
of Anusree Asokan
A12. - Colour photo of shop rooms
A12(a). - --do---
A13. 12.03.2010 Receipt of -do- for Rs.80/-
A13(a). 05.03.2010 P.C.O. Bill of B.SN.L in the name of
Anusree Asokan for Rs. 80/-
A13(b). 05.01.2009 P.C.O. Bill of B.SN.L in the name of
Anusree Asokan for Rs. 185/-
A13(c). 10.12.2007 Receipt of -do- in the name of -do- for
Rs.193/-
A13(d). 05.12.2007 P.C.O. Bill of B.SN.L in the name of
Anusree Asokan for Rs. 193/-
A13(e). 22.09.2007 Receipt of -do- for Rs.849/-
A13(f). 17.09.2007 P.C.O. Bill of B.SN.L in the name of
Anusree Asokan for Rs. 849/-
A14. 18.10.2007 Karar executed between Asokan, Gouri,
Chandran and Salini Jayachandran
A15. 22.07.2005 Receipt No. 21 for Rs. 126/- in the name
of Salini
RCREV. NO. 156 OF 2019
A16. 12.08.2005 Receipt No. 18 for Rs. 240/- in the name
of Salini
6. Respondent-tenant on remand examined one witness, RW4,
Abdul Rub, who brought on record, the assessment register. The
said witness was examined on 21.7.2010.
7. The learned Rent Controller on analysis of the Commission
report Ext.C2 by examining RW4 at the appellate stage at the
instance of the tenant, dismissed the petition. Appeal bearing No.64
of 2010 was also dismissed. In this background, landlord has
preferred RCR No.156 of 2019 in second round of litigation.
8. Learned counsel appearing on behalf of the petitioner-
landlord has raised the following submissions:
Both the courts below have been remiss in not noticing the
averments in the rent petition filed in vernacular before the Rent
controller wherein it has been categorically stated that alternative
rooms in the adjacent buildings are not in his possession. The
aforementioned assertion is also proved from the testimony and the
cross examination. Tenant in order to belie the stand of petitioner-
landlord attempted to ascertain the truth in the cross examination
but was not successful and rather the statement/averments in the
rent petition were found to be reiterated. It was categorically stated
that the adjacent building is in the ownership of his brother, for,
there was an oral partition long time back on account of the demise
RCREV. NO. 156 OF 2019
of their father and the Commissioner appointed at the instance of
the petitioner-landlord, when inspected the premises found that the
other rooms in the other building, a business of oil was being run
and that fact has been proved by placing on record additional
documents before the appellate authority and the same were re-
exhibited before the Rent Controller on remand as Exts. A6(a), A7(a)
and A8(a); copy of licences issued in the name of the wife of the
brother to run the business of oil. These documents read with the
report of the Commissioner, Ext.C1 was the clincher to render an
order of eviction against the tenant, thus there is an abdication and
perversity.
9. No doubt, the court below has rejected the report of the
Commissioner appointed at the instance of the tenant, C2 that the
date of inspection would be relevant, for, on that date the shop was
lying closed on account of a condolence ceremony owing to demise
of the mother of petitioner and his brothers. Appellate authority
after having dealt with the report of the Commissioner in initial
findings, did not refer to the same at the final stage as the premises
which were/are in occupation of the brothers having rooms bearing
No.151/v, 152/v of Perinjanam Panchayat as no change had been
affected in the revenue records but was in conscious possession of
the brothers. The requirement of law as provided in the proviso to
RCREV. NO. 156 OF 2019
sub Section 3 is, another building of his own in his possession.
Commissioner report and other document would show that the
possession was not his, much less the ownership. Even the tenant
had also miserably failed to counter the documents Exts.A6(a) to
A8(a) licences issued of period 2004-05, post eviction petition, but
would reveal that there was no change in the circumstances at the
properties, in oral partition had fallen to the possession of siblings.
10. This petition stood admitted in 2019. Notice was sent.
Service as per the office report dated 22.5.2019 has been effected.
There is no appearance. Record has also been received.
Accordingly, we proceed to decide the matter on merits.
11. We have heard the learned counsel for appeallant- landlord
and appraised judgments of the courts below as well as the records
and is of opinion that the finding of the court below, prima facie is
not sustainable in the eyes of law; the reason is not one, but many.
a. Commission report Ext.C1 reveals that the other two rooms
were laying vacant but Commissioner did not examine the
ownership record. In fact, it was noticed that in the two rooms,
some oil cans and lubricants were kept. This fact is reiterated on
analysis of Ext.A6 to A8, the licences for the period April 2004 to
March 2005, 2005-2006 and receipt of licence fee for the period of
2004-05 in the name of Salini, the wife of brother of the petitioner.
RCREV. NO. 156 OF 2019
It is not a document which has been created after awards because
they were brought on record when the first appeal before the
appellate authority against the order of dismissal of the rent
petition was preferred. Salini was proprietor of a 'New Yamuna
Medicals' and Ext.A9 is a licence issued by the Assistant Drug
Officer. All these documents would ex facie reveals that petitioner-
landlord had not been in possession of another building of his own
in the same city, town or village except to fall in the proviso to sub
Section 3 of Section 11.
b. An exception has been carved out in the aforementioned
proviso, envisaging that where the Rent Controller is satisfied for
special reasons, it can order the eviction as it will be just and proper
to do so. The special reasons herein are required to be pressed into
service but are conspicuously wanting. Both the courts below have
abdicated in not reading the pleadings which categorically stated
that the landlord had not been in possession. The tenant has failed
to bring on record any witness except on remand, RW4, who did not
testify regarding the ownership of the landlord for the reason that
the partition of the building of a common ancestor was oral without
causing any change in the revenue records. It would not mean that
the other siblings would be a co-owner in stricto senso because long
continuous and settled possession is one of the relevant factor for
RCREV. NO. 156 OF 2019
conferring a title upon one of the co-owner subject to the actual
partition proceedings in a competent court of law.
For the reason aforementioned, the judgment and decree of
both the courts below are set aside. The Rent control revision
petition stands allowed. Respondent-tenant is directed to vacate the
premises within a period of one month from the date of receipt of
the certified copy of this order, failing which the petitioner-landlord
shall be entitled to seek eviction in accordance with law.
SD/-
AMIT RAWAL
JUDGE
SD/-
sab EASWARAN S.
JUDGE
