High Court Kerala High Court

Kunhami vs Markoth Nafeesa on 26 November, 2009

Kerala High Court
Kunhami vs Markoth Nafeesa on 26 November, 2009
       

  

  

 
 
  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.

              ```````````````````````````````````````````````````````
                    R.C.Rev. No. 339 of 2006 E
              ```````````````````````````````````````````````````````
             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

RCR.339/06
: 2 :

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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: 3 :

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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today and shall continue to pay every month

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