IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 250 of 2010()
1. ALLIPARA SAINABA
... Petitioner
Vs
1. N.T.SAFIDABI ALIAS SAFIYA
... Respondent
For Petitioner :SRI.R.RAJESH KORMATH
For Respondent : No Appearance
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :17/08/2010
O R D E R
PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ.
```````````````````````````````````````````````````````
R.C.R. No. 250 of 2010
```````````````````````````````````````````````````````
Dated this the 17th day of August, 2010
O R D E R
Pius C.Kuriakose, J.
Under challenge in this revision petition under Section
20 of Act 2 of 1965 is the judgment of the rent control appellate
authority confirming the order of eviction passed against the
revision petitioners on the ground of subletting. In fact, the
respondents had invoked the ground of arrears of rent also. But
eviction on the ground of arrears of rent was declined and it is
understood that the order of declining eviction has become final.
Hence, we need be concerned only with the ground for eviction on
the ground of subletting.
2. The tenant of the building was one Kasim. Kasim is no
more. Upon demise of Kasim, his tenancy rights devolved upon
Kasim’s legal heirs, namely, revision petitioners 1 and 3 to 9 and
respondents 4 and 5. The allegation of the landlord under Section
11(4)(i) was that after the demise of Kasim, his legal heirs, who
alone are the tenants, did not carry on any business in the
RCR.250/2010
: 2 :
building. They have either sublet or transferred possession of the
building unauthorisedly to one Aboobacker, who is the second
petitioner herein. The allegation of sublease or transfer was
denied by the revision petitioners. It was contended that after the
demise of Kasim, as the other revision petitioners were not well
versed in conducting business, Sri.Aboobacker, who is a nephew
of Kasim, used to assist the other revision petitioners occasionally
in the matter of conducting business. The Rent Control Court
enquired into the matter and at trial, the evidence consisted of the
oral evidence of PW1, brother of the first respondent and that of
RW1, the tenant, and RW2, the alleged sub lessee. The
documentary evidence consisted of Exts.A1 to A6 and Ext.B1
series and B2. Ext.C1 was the Commissioner’s report and the
Commissioner was examined as CW1. Exts.A4 and A5 were
property tax assessment registers maintained by the Manjeri
Municipality in respect of the building in question during the period
from 1985-86 to 1989-90 and 1991-92 to 1995-96. In these
documents, it is shown that Aboobacker or one Kesavan(another
alleged sub lessee) is in possession. Ext.A6 is a similar document
RCR.250/2010
: 3 :
in which the person in possession is named as Aboobacker.
Exts.B1 series and B2 are mainly receipts against the issuance of
profession tax and licence fee or certified extracts of the licence
issue register. All these documents will go to show that the trade
licence in respect of the business continues to be in the name of
Kasim. The Rent Control Court, on appreciating the evidence,
came to the conclusion that the landlord was successful in proving
the existence of the eviction ground under Section 11(4)(i). The
appellate authority made a reappraisal of evidence and concurred
with all the conclusions of the Rent Control Court and confirmed
the order of eviction. Accordingly, the RCA filed by the revision
petitioners was dismissed.
3. In this revision under Section 20, various grounds have
been raised assailing the judgment of the appellate authority
confirming the order of eviction passed on the ground of subletting.
Sri.Rajesh R.Kormath, learned counsel for the revision petitioners,
addressed very persuasive submissions before us on the basis of
all those grounds. Placing strong reliance on the judgments of the
Supreme Court in Smt.Krishnawati Vs. Shri.Hans Raj [(1974) 1
RCR.250/2010
: 4 :
SCC 289] and Associated Hotels of India Ltd. Vs. S.B.Sardar
Ranjit Singh [AIR 1968 SC 933] and the judgment of a learned
Single Judge of this Court in Abdul Rahiman Kunju Vs. Rent
Control Revisional Authority [1992 (2) KLT 600], Sri.Rajesh
R.Kormath argued that in order that an eviction ground under
Section 11(4)(i) is made out, it is absolutely necessary that
exclusive possession of the building in question is transferred
unauthorisedly by the tenant . In the instant case, the best that will
emerge from the document is that along with the tenants, the
alleged sub lessee is also in possession. Such possession,
according to the learned counsel, will not amount to exclusive
possession by the alleged sub lessee. According to the learned
counsel, eventhough in terms of Section 26 of Act 2 of 1965,
documents like Exts.A4, A5 and A6 are eligible for probative value,
in this particular case, apparent errors have crept into those
documents and, hence, much credence should not be given to
those documents. Counsel highlighted that even the landlord’s
name is wrongly mentioned in the documents. Counsel pointed
out that the name of Kesavan was shown in the RCP as the
RCR.250/2010
: 5 :
second respondent. The revision petitioners are not aware of
Sri.Kesavan. Kesavan was not served with notice, submitted by
the learned counsel. According to the learned counsel, the
appreciation of evidence by the statutory authorities was
erroneous and this was resulted in miscarriage of justice.
4. We have very anxiously considered the submissions of
Sri.Rajesh R.Kormath. We have gone through the judgment of the
appellate authority as well as the order of the Rent Control Court.
We are unable to accept the arguments of Sri.Rajesh R.Kormath
that it is necessary that the possession over the petition schedule
premises should be exclusively transferred or that the petition
schedule premises should be sublet unauthorisedly by the tenant
for establishing ground under Section 11(4)(i). According to us,
unauthorised subletting or unauthorised transfer of possession of
the premises in the entirety or of a part of the premises will be
sufficient for constituting eviction ground under Section 11(4)(i). In
the present case, we notice that on the basis of evidence,
particularly Exts.A4, A5 and A6, it has been found by the statutory
authorities that Sri.Kesavan and Aboobacker were in possession.
RCR.250/2010
: 6 :
The specific explanation of the tenants regarding the presence of
Aboobacker, which is practically conceded, is that Aboobacker is a
nephew of late Kasim and is only assisting the other petitioners
occasionally in the matter of conducting business. But, Exts.A4,
A5 and A6 are documents envisaged by Section 26 of Act 2 of
1965 and when such documents are placed on record, the entries
therein are to be accepted as proof of what is stated therein. It is a
very strong presumption that is raised by documents like Exts.A4,
A5 and A6. The question is whether the revision petitioners have
been able to dislodge that presumption by adducing evidence.
The evidence adduced on the side of the revision petitioners was
mainly licence fee receipts and professional tax receipts. All these
documents show the name of Kasim. Kasim, admittedly, is no
more. Only somebody other than Kasim can conduct business
even if the licence stand in the name of Kasim. The question is as
to who is conducting the business. It is noticed by the statutory
authorities that the respondents in the RCP were not able to show
that the tenants were conducting any business. Mr.Rajesh
R.Kormath’s argument was that when licence stands in the name
RCR.250/2010
: 7 :
of Kasim, it has to be presumed that Kasim’s legal heirs are
conducting the business. We cannot assume as to who is actually
conducting the business in the absence of cogent evidence
pertaining to actual conduct of business. In the absence of such
evidence, the statutory authorities were justified in concluding that
eviction ground under Section 11(4)(i) is made out. In the present
jurisdiction under Section 20, this Court is not expected to enter
sufficient findings on facts and substitute such findings entered by
the statutory authorities, especially when it is relying on evidence
that the statutory authorities have entered findings on the fact.
According to us, it is reasonable findings which have been entered
by the statutory authority, particularly by the appellate authority,
which under the statutory scheme on the final court on facts.
These findings are findings founded on evidence documentary,
oral and circumstantial. Within the contours of our jurisdiction
under Section 20, we do not find any warrant for interfering with
those findings. The RCR will stand dismissed. Mr.Rajesh
R.Kormath would, at this juncture, submit that if notice is issued,
there is likelihood of the respondents receiving much higher rent
RCR.250/2010
: 8 :
from the revision petitioners and allowing the revision petitioners to
continue in possession. He also submitted that if the respondents
are unwilling to allow the revision petitioners to continue in
possession, the revision petitioners should be granted at least one
year’s time to surrender the premises. Hence, even as we dismiss
the RCR, we are inclined to issue notice to the respondents in view
of the submissions of Mr.Rajesh R.Kormath. The result is that the
RCR is dismissed in limine.
(PIUS C.KURIAKOSE, JUDGE)
(C.K.ABDUL REHIM, JUDGE)
aks