IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 339 of 2006()
1. KUNHAMI, W/O.LATE ABDULLA KOROTH,
... Petitioner
2. BIYYATHU, AGED 50 YEARS,
3. HAMEED, AGED 46 YEARS, S/O.ABDULLA,
4. LATHEEF, AGED 43 YEARS, S/O.ABDULLA
5. AYISHU, AGED 49, W/O.AMMED,
6. ASHRAF, S/O.ABDULLA KOROTHM AGED 40 YRS,
Vs
1. MARKOTH NAFEESA, D/O.ABDULLA, AGED 70,
... Respondent
2. MARKOTH RAMLA, D/O.MAMMED, AGED 40 YEARS
3. MARKOTH NISSAR, S/O.MANNED, AGED 26 YRS,
4. VARAPRATH PARKUM ELAVATHKANDIYIL BAVU
5. MOILOTH KANDIYIL MAMOO, S/O.MOIDU,
6. MOILOTH KANDIYIL KHADERKUTTY MASTER,
7. MOILOTH KANDIYIL ABOOBACKER,
8. KARAYATH MAMI, D/O.MOIDU, AGED 48 YEARS,
9. RAMLA, W/O.MOIDU, AGED 40 YEARS,
For Petitioner :SRI.T.H.ABDUL AZEEZ
For Respondent :SRI.BASANT BALAJI
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :26/11/2009
O R D E R
PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ.
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R.C.Rev. No. 339 of 2006 E
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Dated this the 30th day of November, 2009
O R D E R
Pius C. Kuriakose, J.
The supplemental respondents 8 to 13 in
R.C.A.No.61/2004, who are the legal heirs of the deceased 7th
respondent in the Rent Control Petition, being aggrieved by the
order of eviction passed on the ground of arrears of rent (Section
11(2)(b)) and bonafide need for own occupation(Section 11(3)),
are the revision petitioners.
2. R.C.P. No.50/2001 was filed by respondents 1 to 3 in
the R.C.R., namely Nafeesa, Ramla and Nissar, seeking eviction
on the ground of arrears of rent(Section 11(2)(b)), bonafide need
for own occupation(Section 11(3)), subletting(Section 11(4)(i)) and
user of the building in such a manner as to reduce the value and
utility of the building(Section 11(4)(ii)). Those three respondents
are hereinafter referred to as the landlords. The case of the
landlords was that the petition schedule building was let out by
their predecessor to three persons, namely Moidu, Kunhisooppy
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and Moosa Haji, for the conduct of a flour mill on a monthly rent of
Rs.45/-. Kunhisooppy surrendered his leasehold right to Moosa
Haji, who is the 4th respondent. Moidu passed away and he is
survived by respondents 5 to 9. After the death of the original
tenant in January 1996, the payment of rent was defaulted.
Respondents 4 to 9 sublet the building to the 7th respondent in the
RCP, namely Koroth Abdulla(predecessor in interest of the
revision petitioners). Subletting was not terminated despite notice.
Arrears of rent was also not paid. Hence, the respondents are
liable to be evicted on the ground of subletting and arrears of rent.
The averment in the context of the ground of bonafide need for
own occupation was that the 3rd respondent(the 3rd petitioner in the
RCP Sri.Nissar), who was previously employed in a shop in
Madras, quit his job for the purpose of looking after his aged and
sick mother. He is presently unemployed. He intends to start a
stationary business or a flour mill.
3. The 7th respondent, predecessor in interest of the
revision petitioners, alone contested the RCP seriously.
Respondents 5 to 9 herein, who were respondents 2 to 6 in the
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RCP, contended that they are no longer tenants. According to
them, they have surrendered vacant possession of the building in
1980 to the landlord. They denied the sublease also. The 7th
respondent in the RCP contended that he had taken the building
on rent directly from the original landlord Sri.Mammed on 11-04-
1980. It was an oral entrustment. Since then, it was he who was
conducting the flour mill. The rent was enhanced to Rs.120/- in
the year 1993. The 3rd petitioner in the RCP received rent from
him till January 1999. Though rent for the subsequent period was
tendered, the same was refused. The claim regarding bonafide
need for own occupation was stoutly denied. It was contended by
the 7th respondent that he was entitled to the protection of the
second proviso to sub-section (3) of Section 11. He also disputed
the allegation that on account of the user of the building, the value
and utility of the building has been materially and permanently
reduced.
4. The rent control court enquired into the matter. The
evidence consisted of the oral testimonies of PWs 1 and 2, RWs 1
and 2 and CWs 1 and 2. Documentary evidence consisted of
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Exts.A1 to A8, Exts.B1 to B8, C1, X1 and X2. The rent control
court, on a consideration of the evidence, would decline eviction
on all the grounds, except the ground under Clause (b) of sub-
section (2) of Section 11. Respondents 1 to 3, the landlords,
preferred appeal to the rent control appellate authority. The
appellate authority found that the 7th respondent, the predecessor
in interest of the revision petitioners, is a sub-tenant. It was also
found that neither the 7th respondent nor his legal heirs will be
entitled to get the order of eviction passed under Section 11(2)(b)
vacated under Section 11(2)(c). It was also held that the revision
petitioners are not entitled to the protection of the second proviso
since they are only legal heirs of a sub-tenant. That authority,
however, did not pass order of eviction on the ground of subletting
since the statutory notice under the proviso to Clause (i) of sub-
section (4) of Section 11 has not been sent. Thus, the appeal was
allowed and order of eviction was passed on the ground of arrears
of rent and bonafide need for own occupation. It is challenging the
judgment of the appellate authority that the revision petitioners,
who are legal heirs of deceased 7th respondent, the alleged sub-
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tenant, have preferred this revision.
5. We heard the submissions of Mr.T.H.Abdul Azeez,
learned counsel for the revision petitioners and those of
Sri.G.S.Reghunath, learned counsel for the landlords. Very
extensive submissions were addressed before us by Sri.Abdul
Azeez. He submitted that the 7th respondent was the direct
brother-in-law of the deceased original landlord. The residential
building of the deceased original landlord was situated very near
to the petition schedule building. For a very long period of 20
years since 1980 it was the deceased 7th respondent and after him
the present revision petitioners, who have been carrying on flour
mill business in the petition schedule building. Ext.B7 rent receipt
book will show that rent was paid by the revision petitioners to the
landlords and the landlords received the same from them. Even if
the oral lease set up by the deceased 7th respondent was not
established, the long delay caused by the landlords in seeking
eviction on the ground of subletting will show that the landlords
have recognised the 7th respondent as their own tenant. The
finding that the 7th respondent was a sub-tenant, therefore, is
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contrary to evidence and probabilities. Sri.Azeez submitted that
the court has to draw a distinction between sublease which has
been acquiesced at by the landlord and the sublease which is not
acquiesced by the landlord. Here is a case where sublease has
been acquiesced by the landlords. When the sublease is
acquiesced at by the landlords, the alleged sublessee will acquire
the status of regular tenants, who are entitled to all the protections
under the Rent Control Act. On reading over to us the full text of
the judgment of the appellate authority, Sri.Azeez argued that the
observations made by the learned appellate authority as regards
the findings stated to have been made by the rent control court will
reveal that the appellate authority has misread the order of the
rent control court. The rent control court did not find the status of
the 7th respondent to be a sub-tenant. Sri.Azeez would submit
that the case of the 3rd petitioner in the RCP(the 3rd respondent)
was that he came back from Madras only because his mother fell
seriously ill. There is no evidence at all to prove that his mother is
having any ailment. The 3rd respondent did not have a consistent
case as to what is the business that he is proposing to do in the
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building, whether it is flour mill business or stationery business.
This itself is indicative of absence of bonafides. Our attention was
drawn by Mr.Azeez to Ext.B8 property tax assessment register.
Sri.Azeez submitted that, as rightly found by the rent control court,
Ext.B8 is a document, which enjoys presumptions under Section
26 of the Act. In the teeth of Ext.B8, it was the duty of the landlord
to show that the building shown in Ext.B8 is not vacant.
6. All the submissions of Sri.Azeez were stiffly resisted by
Sri.Reghunath. He drew our attention to the judgment in
Varghese Ittoop Vs. District Judge [1991 (2) KLT 394]. The
learned counsel argued that the 7th respondent and the present
revision petitioners, who are only his legal heirs are sub tenants,
who are not entitled to challenge the order of eviction. Strong
reliance was placed by the learned counsel on the judgment of the
Supreme Court in John Chandy & Co. (P) Ltd. Vs. John P.
Thomas [2002 (2) KLT 220]. According to the learned counsel,
mere inaction by the landlord over a long period of even 30 years
will not lead to any inference of consent on the part of the landlord
in the matter of sublease. The word used in the statute is consent
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and if consent is to be found, it will have to be found on the basis
of some overt or explicit act on the part of the landlord rather than
mere inaction or inertia.
7. We have considered the rival submissions addressed
at the bar. It is true that the 7th respondent is the direct brother-in-
law of the original landlord. It is also true that there are indications
in the evidence that it is the 7th respondent, who has been actually
carrying on business in the petition schedule building to the
knowledge of the original landlord over a long period of 20 years
till the date of filing of the RCP. But, the question to be asked is
as to what is the status of the 7th respondent and the revision
petitioners, his legal heirs. The specific contention raised was that
after Ext.A6 registered document was executed by the original
tenant in favour of the 7th respondent, the original landlord let out
the building to the 7th respondent, the alleged sublessee. The
defence was that landlord tenant relationship based on the above
oral entrustment was created between the original landlord and
the 7th respondent. As noticed by the rent control court and the
appellate authority concurrently, in the teeth of Ext.A6 registered
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document of assignment executed by the original tenant in favour
of the 7th respondent, the status of the 7th respondent as recorded
in that document can only be that of an assignee from the lessee
or a sub-tenant. Therefore, unless there is a clinching evidence to
accept the case of the 7th respondent that subsequent to Ext.A6,
there is oral entrustment by the original landlord under which a
fresh landlord tenant relationship was created between the original
landlord and the 7th respondent, the status of the 7th respondent
will continue to be that of an assignee from the lessee. The
finding of the appellate authority is that the oral lease set up by the
7th respondent has not been established. We also find extremely
difficult to accept the case of an oral lease in the teeth of Ext.A1
rent kychit. Of course Ext.B7 would show that on a few occasions
rent was received from the 7th respondent by the original landlord.
But, the same will not amount to proving the oral lease set up by
the 7th respondent. The position perhaps would have been
different, if the defence of the 7th respondent was that the original
landlord acquiesced at the sublease. But acquiescence is a
matter to be specifically pleaded and proved. We do not find any
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plea from the 7th respondent regarding acquiescence by the
landlord at the sublease and on the contrary, the plea is one of
denial of the sublease and setting up of a direct lease. Thus, the
status of the 7th respondent has been rightly found by the appellate
authority to be that of a sub-tenant only. If that be so, it has to be
found that the revision petitioners who are only legal heirs of the
sub-tenant are not entitled to challenge the order of eviction which
is not challenged by the original tenant or his legal heirs.
8. We are of the view that the order of eviction passed by
the rent control appellate authority on the ground of bonafide own
occupation is perfectly justified. Admittedly, the 3rd petitioner in the
RCP does not presently have any job or avocation for life. He is
the only son of his mother. The rent control court declined the
order of eviction on the ground of bonafide own occupation on
three reasons. The first reason was that he has not produced any
document to prove that he has resigned his job in Madras. The
second reason was that as regards the business proposed to be
carried on by him his case was in the alternative. The third reason
was that he did not produce any evidence regarding his mother’s
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ailment. All these reasons were rightly found to be not sound.
The appellate authority found that the rent control court was not
justified in insisting that the 3rd petitioner in the RCP who was only
assisting his cousin in a small time pant shop in Madras should
produce a resignation letter. The appellate authority also found
that the evidence of PW2 regarding the proposed business was
very clear. His first desire was to carry on flour mill business and if
for any reason he does not get licence to conduct flour mill
business, he will carry on stationary shop. The third reason stated
by the appellate authority was that if the need of PW2 is bonafide,
allowing eviction would not depend on his mother’s ailment. In our
view, he being the only son of his aged mother, itself can be a
justification for his preferring to come back to his home town.
Thus, the finding of the appellate authority that the need is
bonafide is well founded on evidence. The appellate authority
found that the sub-tenant is not entitled to claim the protection of
the second proviso to sub-section (3) of Section 11. The above
finding is based on statutory provisions, including the judgment of
the Supreme Court cited at the Bar.
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9. Sri.Azeez highlighted Ext.B8 and argued that an order
of eviction under Section 11(3) cannot be passed when the
landlord is in possession of another building of his own in the
absence of special reasons. The argument is per se attractive but
cannot be accepted for two reasons. Firstly the revision
petitioners who are only sub-tenants are not entitled to challenge
the order of eviction passed on the ground of bonafide need for
own occupation. Secondly, Ext.B8 will not be of much assistance
in the present case since the period to which it pertains to is not
disclosed and does not disclose the name of the occupant of the
building mentioned therein.
10. In short, our conclusion is that the finding of the
appellate authority that the revision petitioners are only legal heirs
of the sub-tenants is liable to be approved. This means that the
order of eviction passed by the appellate authority on the ground
of arrears of rent and bonafide own occupation is not liable to be
challenged by the revision petitioners. The result of the above
discussions is that the revision is liable to fail and the same will
stand dismissed.
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11. Finding that the revision petitioners are sub tenants
notwithstanding we feel that, on the facts and circumstances
which attend on this case, there is justification for granting
reasonably long period to them to vacate the premises.
Accordingly, we direct the Execution Court not to order and effect
delivery of the petition schedule building till 30/4/2010 subject to
the following conditions;
i) The Revision Petitioners shall file an
affidavit before the Execution Court or the
Rent Control Court as the case may be,
within one month from today undertaking to
give peaceful surrender of the petition
schedule building to the
landlords/respondents on or before
30/4/2010.
ii) The Revision Petitioners shall pay or
deposit consolidated amount of Rs.5,000/-
towards occupational charges to the
landlords/respondents within one month from
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at the rate of Rs.120/- per month till such
time as surrender of the premises is made.
Undertaking to that effect will also be
incorporated in the affidavit to be filed as
directed above.
The Revision Petitioners will get the benefit of time granted
under this judgment only if the above conditions are complied with.
(PIUS C. KURIAKOSE, JUDGE)
(K.SURENDRA MOHAN, JUDGE)
aks/dpk