ORDER
P.K. Balasubramanian, J.
1. Both these revisions fifed under S. 20 of the Kerala Buildings (Lease and Rent Control) Act are by the respondent in R.C.P. No. 31 of 1990 on the file of the Rent Control Court, Kozhikode-II. R.C.P. No. 31 of 1990 was an application filed by the respondent herein under sub-ss. (2), (3) and (8) of S. 11 of the Act for eviction of the revision petitioner. The Rent Control Court allowed the eviction under S. 11 (2) of the Act and disallowed the claim for eviction under sub-ss. (3) and (8) of S. 11 of the Act. Challenging the order for eviction under S. 11(2) of the Act, the revision petitioner herein filed R.C.A.No. 65 of 1994. The respondent herein filed R.C.A. No. 72 of 1994 challenging the rejection of his claim for eviction under sub-ss. (3) and (8) of S. 11 of the Act. The two appeals were heard together. By a common judgment, the Appellate Authority dismissed the appeal filed by the revision petitioner and confirmed the order for eviction under S. 11(2) of the Act. The Appellate Authority allowed R.C.A. No. 72 of 1994, the appeal filed by the respondent herein party and reversing the finding of the Rent Control Court, passed an order for eviction in favour of the respondent herein under S. 11(8) of the Act. The finding on S. 11(3) of the Act regarded against the respondent herein by the Rent Control Court was not interfered with. Being aggrieved by the dismissal of the R.C.A. No. 65 of 1994 and allowing in part of R.C.A. No. 72 of 1994 by the Appellate Authority, the revision petitioner has filed these revisions before this Court. Since there was only one petition for eviction in the Rent Control Court, strictly speaking, it might have been sufficient if the revision petitioner had filed only one revision before this Court challenging the entire order of the Appellate Authority.
2. The building consisting of two rooms belonged to one Kunhilakshmi Amma, Kunhilakshmi Amma leased the building consisting of both the rooms to the revision petitioner herein who is hereafter referred to as ‘the tenant’. That was under Ext. A1 rent deed dated 3.6.1969. The tenant sublet one of the rooms bearing No. 6/482 to the
respondent herein and continued in occupation of room No. 6/483, the larger of the two rooms. Thus, the respondent herein was the sub-tenant of a part of the building. There was a partition in the family of Kunhilakshmi Amma, the ultimate landlord and the building in question was allotted to the share of one Santhakumari Amma. The sub-tenant of room No. 6/482, the respondent, purchased the reversion over the entire building from Santhakumari Amma. That was on 12.9.1988 under Ext. A2. On the strength of the assignment taken from Santhakumari Amma, the sub-tenant of room No. 6/482 issued Ext. A3 notice to the tenant, demanding surrender of room No. 6/483 on the ground of arrears of rent and on the ground that the sub-tenant needed the room in the possession of the tenant bonafide for his own occupation. The tenant sent a reply repudiating the claim that the rent was in arrears and also contending that the assignee from the original landlord had no bonafide need as alleged. After exchange of notices, the assignee landlord, the sub-tenant of room No. 6.482, filed the application R.C.P. No. 31 of 1990 for eviction on the ground of arrears of rent, on the ground of bonafide need for own occupation and on the ground that the landlord, who was in possession of a portion of the building, requires additional accommodation for personal use. The application was resisted by the tenant who pleaded that rent was not in arrears and that the bonafide need put forward was not genuine and was a mere pretext for eviction and that the assignee landlord was not entitled to an order for eviction either under S. 11(8) or under S. 11(3) of the Act. It may be noted that no specific issue was joined on the question whether the application for eviction at the instance of the assignee landlord under S. 11(8) of the Act was maintainable.
3. Regarding the claim for eviction under S. 11(2) of the Act, the case of the tenant was that as sub-tenant, the assignee landlord was bound to pay rent at the rate of Rs. 100/- per month, that the rent payable by the tenant to the landlord was only Rs. 90 per month as per Ext. A1 rent deed and that if the rent due to the tenant from the sub-tenant is set off towards the rent due from the tenant to the ultimate landlord, there will be an obligation on the assignee landlord, the sub-tenant of room No. 6/482, to pay amounts to the tenant by way of arrears of rent and that no order for eviction under S. 11(2) of the Act could be passed in this case. The sub-tenant, the assignee landlord, contended that the rent payable by him as a sub-tenant was only Rs. 10/- per month. On the materials, the Rent Control Court upheld the plea of the assignee landlord and found that rent payable by the tenant to the ultimate landlord was in arrears. This finding by the Rent Control Court was confirmed in appeal on a reappreciation of the relevant evidence and circumstances obtaining in the case. It is on this basis that the order for eviction under S. 11(2) of the Act was passed. Though counsel for the tenant attempted to challenge the finding of the Rent Control Court and the Appellate Authority that the rent payable by the sub-tenant to the tenant was not Rs. 100/- per month but Rs. 10/- per month, we find that there is no clear material on the basis of which we could uphold such a challenge especially in the context of the finding rendered in that behalf by the Rent Control Court and the Appellate Authority.
4. The Rent Control Court held that the assignee landlord has not established that he bonafide needed the room in the occupation of the tenant so as to entitle him to an order for eviction under S. 11(3) of the Act. The Rent Control Court relying on the earlier notices exchanged between the parties and the evidence of the assignee-landlord and the tenant, came to the conclusion that the need alleged was not bonafide and since the element of bonafides was lacking, no order for eviction either under S. 11(3) or under S. 11(8) of the Act could be passed in favour of the assignee landlord. The Appellate Authority held in reversal of the finding of the Rent Control Court, that the assignee landlord was in possession only of a small portion of the entire building and his case was that he needed additional accommodation for personal use, and since he has established that claim on the evidence, he was entitled to an order of eviction under S. 11(8) of the Act. The Appellate Authority thought that the order for eviction under S. 11(3) of the Act Court not be granted in the circumstances of the case, though as pointed out by counsel for the assignee-landlord, the reasoning in the judgment of the Appellate Authority to some extent can also sustain an order under S. 11(3) of the Act. Whatever that be, what the Appellate Authority ultimately did was to refuse the claim for eviction under S. 11(3) of the Act and grant an order for eviction under S. 11(8) of the Act. The question is whether the order for eviction under S. 11(8) of the Act is sustainable or whether it suffers from any illegality or impropriety warranting interference by this Court and whether on the reasoning of the Appellate Authority and on the materials the assignee-landlord is not entitled to an order for eviction under S. 11(3) of the Act.
5. S. 11 (8) of the Act enables a landlord who is in occupation of a part of the building, to apply for eviction of the remaining pan of the building or any portion thereof, if he requires additional accommodation for his personal use. In this case, the landlord, Kunhilakshmi Amma and her successor-in-interest, Santhakumari Amma, were not in possession of any portion of the building. The entire building had been let out to the tenant, the revision petitioner. The assignee-landlord went into possession of a portion of the building under the tenant, as a sub-tenant. In other words, the possession or occupation of room No. 67482 by the assignee-landlord was in his capacity as a sub-tenant under the tenant and not in his capacity as the landlord of the building. While he was in occupation of a portion of the building as a sub-tenant, the sub-tenant took an assignment of the rights of the ultimate landlord leaving intact the intermediate estate with the tenant created under the lease Ext. A1. Factually, the sub-tenant has become the ultimate landlord of the building and he is in possession of apart of the building. But the possession or the part of the building is not possession qua landlord but is only possession in his capacity as a sub-tenant under the tenant. When a subtenant takes an assignment of the ultimate reversion from the owner or lessor, that does not bring about an extinguishment the intermediate estate created by the landlord in favour of the original tenant. The sub-tenancy created by the original tenant would
survive, until determined in accordance with the Transfer of Property Act or put an end to by recourse to any of the provisions of the Rent Control Act in cases where that Act has application. Here, the position therefore is that the assignee-landlord has stepped into the shoes of the landlord and he is also in possession of a portion of the building, not in his capacity as the ultimate landlord, but only in his capacity as a subtenant or a tenant under the tenant. The question is whether, such possession of a portion as a sub-tenant, would entitle the assignee landlord to seek an order for eviction under S. 11(8) of the Act.
6. All that S. 11(8) of the Act says is that a landlord who is occupying only a part of the building, may apply to the Rent Control Court for an order directing the tenant occupying the whole or any portion of the remaining part of the building, to put the landlord in possession thereof, if the landlord requires additional accommodation for his personal use. On a liberal reading of the provision, it may be possible to say that all that is needed, is that the person must be a landlord and he must be in possession of a portion of the building, whatever be the character in which he holds that possession. But, going by the principles of law governing the question, it is clear that, the taking of an assignment of the ultimate reversion by the sub-tenant, does not extinguish the tenancy created by the landlord or extinguish the rights of the tenant originally let in by the landlord. In terms of the Act and in terms of the Transfer of Property Act, even now, it is open to the tenant, to terminate the tenancy of the sub-tenant in regard to the room in his possession, or to seek eviction under any of the relevant provisions of the Rent Control Act. It will not be open to the sub-tenant to say that he has subsequently taken an assignment of the rights of the ultimate landlord and therefore he cannot be evicted, since he continues to be a tenant under the tenant on the basis of the transaction entered into by him with the tenant. But, in his capacity as assignee landlord, he can put an end to the relationship between the ultimate landlord and the tenant and seek relief on that basis either through the civil court or through the Rent Control Court, depending on whether the Act applies or not. Therefore, so long as there is no extinguishment of the interest of the tenant, the possession of the sub-tenant of a portion of the building, even if he had acquired the rights of the ultimate landlord, is subject to the right of the tenant to evict him in accordance with law. In such a situation, it will be more appropriate to understand the expression, ‘occupation of a part’ referred to in S. 11(8) of the Act, as occupation qua landlord and not occupation in any other capacity. The Rent Control legislation is a legislation enacted for the protection of the tenants, but at the same time, conferring certain rights on the landlords as well. In that circumstance, the provision calls for an interpretation consistent with the general principles of law, if such a construction is not totally negatived by the wording of the provision itself. It appears to be clear on the scheme of S. 11 of the Act and in the background of the existence of sub-s. (3) of S. 11 of the Act, that S. 11(8) of the Act is intended only to apply in cases where the landlord is in occupation
of apart of the building in his capacity as the landlord. It is interesting to note that in the present case, the assignee landlord has not only sought actual possession of the portion in the possession of the tenant, namely, room No. 6/483 but also sought for an extinguishment of the tenancy of the tenant over the portion 6/482 occupied by the assignee landlord in his capacity as a sub-tenant under the tenani. According to us, the assignee landlord has claimed the proper relief in the petition for eviction since it is necessary for the assignee landlord to extinguish the tenancy in favour of the tenant in respect of the entire building including the portion in the occupation of the assignee landlord as a sub-tenant. Thus understood, we think that the claim for eviction under S. 11(8) of the Act in this case, is not sustainable. The decision of the Supreme Court in Sant Lal Jain v. Avtar Singh (1985) 2 SCC 332) also indicates that even if a licensee obtains title to the property from a person other than the licensor, he still had the obligation to vacate the licensed premises at the instance of his licensor and that it would be necessary for him to seek his remedies on the basis of his acquisition of the title, after he had performed his duty as a licensee to his licensor. This ratio, in our view, supports the approach adopted by us and our view that the tenancy in favour of the tenant does not get extinguished or the right he gets on the basis of the letting by him to the sub-tenant, the assignee-landlord, does not get extinguished merely because the sub-tenant has taken an assignment of the rights of the ultimate landlord. We may also notice that there is no argument before us that merely because the sub-tenant of a portion of the building takes an assignment of the reversion, it brings about a merger or an extinguishment of the tenancy originally created.
7. In the light of this position, it is clear that the Appellate Authority was error in granting an order for eviction under S. 11(8) of the Act. But, learned counsel for the assignee-landlord submitted that on the finding rendered by the Appellate Authority on the need set up by the assignee-landlord, the order for eviction can be sustained under S. 11(3) of the Act. The assignee-landlord has pleaded that he bonafide needs the room in the possession of the tenant for his own occupation as he wants to expand his existing business or to start a larger business in a larger premises. He has pleaded and established that he was in possession of only a very small room and that was why he wanted possession of the room in the possession of the tenant. The Appellate Authority, in our view, has rightly approached the claim of the assignee-landlord and on a proper appreciation of the pleadings and the evidence in the case, has upheld the need set up. The Appellate Authority has also given proper reasons for differing from the conclusion of the Rent Control Court, on this question. On going through the pleadings and the evidence in the case, we are inclined to agree with the Appellate Authority that the assignee-landlord has established the need set up by him and the bonafides of his claim for eviction. Hence, we find that the assignee-landlord is entitled to an order under S. 11(3) of the Act subject to the provisos to S. 11(3) of the Act.
8. As regards the first proviso to S. 11(3) of the Act, it is clear that even though
the assignee-landlord is in possession of a small room in the same structure, he has established that, that room is too small for his requirement and his expansion of business is not possible in that room. This, according to us constitutes a special reason within the meaning of the first proviso to S. 11 (3) of the Act. We may notice that this aspect was not pursued by the tenant also before the Rent Control Court or the Appellate Authority.
9. The tenant claimed the protection of the second proviso to S. 11(3) of the Act. The Rent Control Court did not consider that claim. But the Appellate Authority has adverted to and has discussed that claim. On the evidence, the Appellate Authority has held that the tenant has not proved that he is mainly depending on the income from the business carried on in the petition schedule building. It is found on the admission of the tenant himself that he has other businesses in partnership with his brothers. No evidence is adduced regarding the income or share of income of the tenant from those businesses or from the business carried on in the petition schedule building so as to find out whether the income from the business in the petition schedule building is the main source of livelihood of the tenant. On the basis of the report of the Commissioner, Ext. All and the evidence of the parties, the Appellate Authority has also found that other rooms are available in the locality for the tenant to shift. In this situation, the Appellate Authority is fully justified in finding that the tenant is not entitled to the protection of the second proviso to S. 11(3) of the Act.
10. While therefore, we hold that the Appellate Authority was in error in granting an order for eviction under S. 11(8) of the Act, we sustain the order for eviction passed by the Appellate Authority on the basis that the assignee-landlord is entitled to the order under S. 11 (3) of the Act. The result is that, the order for eviction passed by the Appellate Authority will stand confirmed and this Revision will stand dismissed.
The tenant is granted a period of six months from this date to vacate the petition schedule building on condition that the tenant deposits the entire appears of rent due to the landlord including the rent for the month of December 2000 in the Rent Control Court within six weeks from today and also files an undertaking in that court within that time, undertaking to vacate the building unconditionally on the expiry of six months from today.