{"id":246713,"date":"2009-11-26T00:00:00","date_gmt":"2009-11-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kunhami-vs-markoth-nafeesa-on-26-november-2009"},"modified":"2018-08-24T14:18:10","modified_gmt":"2018-08-24T08:48:10","slug":"kunhami-vs-markoth-nafeesa-on-26-november-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kunhami-vs-markoth-nafeesa-on-26-november-2009","title":{"rendered":"Kunhami vs Markoth Nafeesa on 26 November, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Kunhami vs Markoth Nafeesa on 26 November, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nRCRev..No. 339 of 2006()\n\n\n1. KUNHAMI, W\/O.LATE ABDULLA KOROTH,\n                      ...  Petitioner\n2. BIYYATHU, AGED 50 YEARS,\n3. HAMEED, AGED 46 YEARS, S\/O.ABDULLA,\n4. LATHEEF, AGED 43 YEARS, S\/O.ABDULLA\n5. AYISHU, AGED 49, W\/O.AMMED,\n6. ASHRAF, S\/O.ABDULLA KOROTHM AGED 40 YRS,\n\n                        Vs\n\n\n\n1. MARKOTH NAFEESA, D\/O.ABDULLA, AGED 70,\n                       ...       Respondent\n\n2. MARKOTH RAMLA, D\/O.MAMMED, AGED 40 YEARS\n\n3. MARKOTH NISSAR, S\/O.MANNED, AGED 26 YRS,\n\n4. VARAPRATH PARKUM ELAVATHKANDIYIL BAVU\n\n5. MOILOTH KANDIYIL MAMOO, S\/O.MOIDU,\n\n6. MOILOTH KANDIYIL KHADERKUTTY MASTER,\n\n7. MOILOTH KANDIYIL ABOOBACKER,\n\n8. KARAYATH MAMI, D\/O.MOIDU, AGED 48 YEARS,\n\n9. RAMLA, W\/O.MOIDU, AGED 40 YEARS,\n\n                For Petitioner  :SRI.T.H.ABDUL AZEEZ\n\n                For Respondent  :SRI.BASANT BALAJI\n\nThe Hon'ble MR. Justice PIUS C.KURIAKOSE\nThe Hon'ble MR. Justice K.SURENDRA MOHAN\n\n Dated :26\/11\/2009\n\n O R D E R\n        PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ.\n\n              ```````````````````````````````````````````````````````\n                    R.C.Rev. No. 339 of 2006 E\n              ```````````````````````````````````````````````````````\n             Dated this the 30th day of November, 2009\n\n                                  O R D E R\n<\/pre>\n
Pius C. Kuriakose, J.\n<\/p>\n<\/p>\n
             The     supplemental          respondents         8     to 13 in<\/p>\n
R.C.A.No.61\/2004, who are the legal heirs of the deceased 7th<\/p>\n
respondent in the Rent Control Petition, being aggrieved by the<\/p>\n
order of eviction passed on the ground of arrears of rent (Section<\/p>\n
11(2)(b)) and bonafide need for own occupation(Section 11(3)),<\/p>\n
are the revision petitioners.\n<\/p>\n
       2.    R.C.P. No.50\/2001 was filed by respondents 1 to 3 in<\/p>\n
the R.C.R., namely Nafeesa, Ramla and Nissar, seeking eviction<\/p>\n
on the ground of arrears of rent(Section 11(2)(b)), bonafide need<\/p>\n
for own occupation(Section 11(3)), subletting(Section 11(4)(i)) and<\/p>\n
user of the building in such a manner as to reduce the value and<\/p>\n
utility of the building(Section 11(4)(ii)). Those three respondents<\/p>\n
are hereinafter referred to as the landlords.                 The case of the<\/p>\n
landlords was that the petition schedule building was let out by<\/p>\n
their predecessor to three persons, namely Moidu, Kunhisooppy<\/p>\n
RCR.339\/06
\n                                 : 2 :<\/span><\/p>\n
and Moosa Haji, for the conduct of a flour mill on a monthly rent of<\/p>\n
Rs.45\/-. Kunhisooppy surrendered his leasehold right to Moosa<\/p>\n
Haji, who is the 4th respondent. Moidu passed away and he is<\/p>\n
survived by respondents 5 to 9. After the death of the original<\/p>\n
tenant in January 1996, the payment of rent was defaulted.<\/p>\n
Respondents 4 to 9 sublet the building to the 7th respondent in the<\/p>\n
RCP, namely Koroth Abdulla(predecessor in interest of the<\/p>\n
revision petitioners). Subletting was not terminated despite notice.<\/p>\n
Arrears of rent was also not paid. Hence, the respondents are<\/p>\n
liable to be evicted on the ground of subletting and arrears of rent.<\/p>\n
The averment in the context of the ground of bonafide need for<\/p>\n
own occupation was that the 3rd respondent(the 3rd petitioner in the<\/p>\n
RCP Sri.Nissar), who was previously employed in a shop in<\/p>\n
Madras, quit his job for the purpose of looking after his aged and<\/p>\n
sick mother. He is presently unemployed. He intends to start a<\/p>\n
stationary business or a flour mill.\n<\/p>\n
      3.    The 7th respondent, predecessor in interest of the<\/p>\n
revision   petitioners,  alone   contested    the  RCP    seriously.<\/p>\n
Respondents 5 to 9 herein, who were respondents 2 to 6 in the<\/p>\n
RCR.339\/06
\n                                : 3 :<\/span><\/p>\n
RCP, contended that they are no longer tenants. According to<\/p>\n
them, they have surrendered vacant possession of the building in<\/p>\n
1980 to the landlord. They denied the sublease also. The 7th<\/p>\n
respondent in the RCP contended that he had taken the building<\/p>\n
on rent directly from the original landlord Sri.Mammed on 11-04-<\/p>\n
1980. It was an oral entrustment. Since then, it was he who was<\/p>\n
conducting the flour mill. The rent was enhanced to Rs.120\/- in<\/p>\n
the year 1993. The 3rd petitioner in the RCP received rent from<\/p>\n
him till January 1999. Though rent for the subsequent period was<\/p>\n
tendered, the same was refused. The claim regarding bonafide<\/p>\n
need for own occupation was stoutly denied. It was contended by<\/p>\n
the 7th respondent that he was entitled to the protection of the<\/p>\n
second proviso to sub-section (3) of Section 11. He also disputed<\/p>\n
the allegation that on account of the user of the building, the value<\/p>\n
and utility of the building has been materially and permanently<\/p>\n
reduced.\n<\/p>\n
      4.    The rent control court enquired into the matter. The<\/p>\n
evidence consisted of the oral testimonies of PWs 1 and 2, RWs 1<\/p>\n
and 2 and CWs 1 and 2. Documentary evidence consisted of<\/p>\n
RCR.339\/06
\n                                  : 4 :<\/span><\/p>\n
Exts.A1 to A8, Exts.B1 to B8, C1, X1 and X2. The rent control<\/p>\n
court, on a consideration of the evidence, would decline eviction<\/p>\n
on all the grounds, except the ground under Clause (b) of sub-<\/p>\n
section (2) of Section 11. Respondents 1 to 3, the landlords,<\/p>\n
preferred appeal to the rent control appellate authority.        The<\/p>\n
appellate authority found that the 7th respondent, the predecessor<\/p>\n
in interest of the revision petitioners, is a sub-tenant. It was also<\/p>\n
found that neither the 7th respondent nor his legal heirs will be<\/p>\n
entitled to get the order of eviction passed under Section 11(2)(b)<\/p>\n
vacated under Section 11(2)(c). It was also held that the revision<\/p>\n
petitioners are not entitled to the protection of the second proviso<\/p>\n
since they are only legal heirs of a sub-tenant. That authority,<\/p>\n
however, did not pass order of eviction on the ground of subletting<\/p>\n
since the statutory notice under the proviso to Clause (i) of sub-<\/p>\n
section (4) of Section 11 has not been sent. Thus, the appeal was<\/p>\n
allowed and order of eviction was passed on the ground of arrears<\/p>\n
of rent and bonafide need for own occupation. It is challenging the<\/p>\n
judgment of the appellate authority that the revision petitioners,<\/p>\n
who are legal heirs of deceased 7th respondent, the alleged sub-<\/p>\n
RCR.339\/06
\n                                 : 5 :<\/span><\/p>\n
tenant, have preferred this revision.\n<\/p>\n
      5.    We heard the submissions of Mr.T.H.Abdul Azeez,<\/p>\n
learned counsel for the revision petitioners and those of<\/p>\n
Sri.G.S.Reghunath, learned counsel for the landlords.          Very<\/p>\n
extensive submissions were addressed before us by Sri.Abdul<\/p>\n
Azeez.    He submitted that the 7th respondent was the direct<\/p>\n
brother-in-law of the deceased original landlord. The residential<\/p>\n
building of the deceased original landlord was situated very near<\/p>\n
to the petition schedule building. For a very long period of 20<\/p>\n
years since 1980 it was the deceased 7th respondent and after him<\/p>\n
the present revision petitioners, who have been carrying on flour<\/p>\n
mill business in the petition schedule building. Ext.B7 rent receipt<\/p>\n
book will show that rent was paid by the revision petitioners to the<\/p>\n
landlords and the landlords received the same from them. Even if<\/p>\n
the oral lease set up by the deceased 7th respondent was not<\/p>\n
established, the long delay caused by the landlords in seeking<\/p>\n
eviction on the ground of subletting will show that the landlords<\/p>\n
have recognised the 7th respondent as their own tenant.         The<\/p>\n
finding that the 7th respondent was a sub-tenant, therefore, is<\/p>\n
RCR.339\/06
\n                                 : 6 :<\/span><\/p>\n
contrary to evidence and probabilities. Sri.Azeez submitted that<\/p>\n
the court has to draw a distinction between sublease which has<\/p>\n
been acquiesced at by the landlord and the sublease which is not<\/p>\n
acquiesced by the landlord. Here is a case where sublease has<\/p>\n
been acquiesced by the landlords.           When the sublease is<\/p>\n
acquiesced at by the landlords, the alleged sublessee will acquire<\/p>\n
the status of regular tenants, who are entitled to all the protections<\/p>\n
under the Rent Control Act. On reading over to us the full text of<\/p>\n
the judgment of the appellate authority, Sri.Azeez argued that the<\/p>\n
observations made by the learned appellate authority as regards<\/p>\n
the findings stated to have been made by the rent control court will<\/p>\n
reveal that the appellate authority has misread the order of the<\/p>\n
rent control court. The rent control court did not find the status of<\/p>\n
the 7th respondent to be a sub-tenant. Sri.Azeez would submit<\/p>\n
that the case of the 3rd petitioner in the RCP(the 3rd respondent)<\/p>\n
was that he came back from Madras only because his mother fell<\/p>\n
seriously ill. There is no evidence at all to prove that his mother is<\/p>\n
having any ailment. The 3rd respondent did not have a consistent<\/p>\n
case as to what is the business that he is proposing to do in the<\/p>\n
RCR.339\/06
\n                                  : 7 :<\/span><\/p>\n
building, whether it is flour mill business or stationery business.<\/p>\n
This itself is indicative of absence of bonafides. Our attention was<\/p>\n
drawn by Mr.Azeez to Ext.B8 property tax assessment register.<\/p>\n
Sri.Azeez submitted that, as rightly found by the rent control court,<\/p>\n
Ext.B8 is a document, which enjoys presumptions under Section<\/p>\n
26 of the Act. In the teeth of Ext.B8, it was the duty of the landlord<\/p>\n
to show that the building shown in Ext.B8 is not vacant.<\/p>\n
      6.     All the submissions of Sri.Azeez were stiffly resisted by<\/p>\n
Sri.Reghunath.       He drew our attention to the judgment in<\/p>\n
Varghese Ittoop Vs. District Judge [1991 (2) KLT 394]. The<\/p>\n
learned counsel argued that the 7th respondent and the present<\/p>\n
revision petitioners, who are only his legal heirs are sub tenants,<\/p>\n
who are not entitled to challenge the order of eviction. Strong<\/p>\n
reliance was placed by the learned counsel on the judgment of the<\/p>\n
Supreme Court in John Chandy & Co. (P) Ltd. Vs. John P.<\/p>\n
Thomas [2002 (2) KLT 220]. According to the learned counsel,<\/p>\n
mere inaction by the landlord over a long period of even 30 years<\/p>\n
will not lead to any inference of consent on the part of the landlord<\/p>\n
in the matter of sublease. The word used in the statute is consent<\/p>\n
RCR.339\/06
\n                                   : 8 :<\/span><\/p>\n
and if consent is to be found, it will have to be found on the basis<\/p>\n
of some overt or explicit act on the part of the landlord rather than<\/p>\n
mere inaction or inertia.\n<\/p>\n
       7.    We have considered the rival submissions addressed<\/p>\n
at the bar. It is true that the 7th respondent is the direct brother-in-<\/p>\n
law of the original landlord. It is also true that there are indications<\/p>\n
in the evidence that it is the 7th respondent, who has been actually<\/p>\n
carrying on business in the petition schedule building to the<\/p>\n
knowledge of the original landlord over a long period of 20 years<\/p>\n
till the date of filing of the RCP. But, the question to be asked is<\/p>\n
as to what is the status of the 7th respondent and the revision<\/p>\n
petitioners, his legal heirs. The specific contention raised was that<\/p>\n
after Ext.A6 registered document was executed by the original<\/p>\n
tenant in favour of the 7th respondent, the original landlord let out<\/p>\n
the building to the 7th respondent, the alleged sublessee. The<\/p>\n
defence was that landlord tenant relationship based on the above<\/p>\n
oral entrustment was created between the original landlord and<\/p>\n
the 7th respondent. As noticed by the rent control court and the<\/p>\n
appellate authority concurrently, in the teeth of Ext.A6 registered<\/p>\n
RCR.339\/06
\n                                 : 9 :<\/span><\/p>\n
document of assignment executed by the original tenant in favour<\/p>\n
of the 7th respondent, the status of the 7th respondent as recorded<\/p>\n
in that document can only be that of an assignee from the lessee<\/p>\n
or a sub-tenant. Therefore, unless there is a clinching evidence to<\/p>\n
accept the case of the 7th respondent that subsequent to Ext.A6,<\/p>\n
there is oral entrustment by the original landlord under which a<\/p>\n
fresh landlord tenant relationship was created between the original<\/p>\n
landlord and the 7th respondent, the status of the 7th respondent<\/p>\n
will continue to be that of an assignee from the lessee.          The<\/p>\n
finding of the appellate authority is that the oral lease set up by the<\/p>\n
7th respondent has not been established. We also find extremely<\/p>\n
difficult to accept the case of an oral lease in the teeth of Ext.A1<\/p>\n
rent kychit. Of course Ext.B7 would show that on a few occasions<\/p>\n
rent was received from the 7th respondent by the original landlord.<\/p>\n
But, the same will not amount to proving the oral lease set up by<\/p>\n
the 7th respondent.      The position perhaps would have been<\/p>\n
different, if the defence of the 7th respondent was that the original<\/p>\n
landlord acquiesced at the sublease.         But acquiescence is a<\/p>\n
matter to be specifically pleaded and proved. We do not find any<\/p>\n
RCR.339\/06
\n                                  : 10 :<\/span><\/p>\n
plea from the 7th respondent regarding acquiescence by the<\/p>\n
landlord at the sublease and on the contrary, the plea is one of<\/p>\n
denial of the sublease and setting up of a direct lease. Thus, the<\/p>\n
status of the 7th respondent has been rightly found by the appellate<\/p>\n
authority to be that of a sub-tenant only. If that be so, it has to be<\/p>\n
found that the revision petitioners who are only legal heirs of the<\/p>\n
sub-tenant are not entitled to challenge the order of eviction which<\/p>\n
is not challenged by the original tenant or his legal heirs.<\/p>\n
      8.    We are of the view that the order of eviction passed by<\/p>\n
the rent control appellate authority on the ground of bonafide own<\/p>\n
occupation is perfectly justified. Admittedly, the 3rd petitioner in the<\/p>\n
RCP does not presently have any job or avocation for life. He is<\/p>\n
the only son of his mother. The rent control court declined the<\/p>\n
order of eviction on the ground of bonafide own occupation on<\/p>\n
three reasons. The first reason was that he has not produced any<\/p>\n
document to prove that he has resigned his job in Madras. The<\/p>\n
second reason was that as regards the business proposed to be<\/p>\n
carried on by him his case was in the alternative. The third reason<\/p>\n
was that he did not produce any evidence regarding his mother’s<\/p>\n
RCR.339\/06
\n                                    : 11 :<\/span><\/p>\n
ailment. All these reasons were rightly found to be not sound.<\/p>\n
The appellate authority found that the rent control court was not<\/p>\n
justified in insisting that the 3rd petitioner in the RCP who was only<\/p>\n
assisting his cousin in a small time pant shop in Madras should<\/p>\n
produce a resignation letter. The appellate authority also found<\/p>\n
that the evidence of PW2 regarding the proposed business was<\/p>\n
very clear. His first desire was to carry on flour mill business and if<\/p>\n
for any reason he does not get licence to conduct flour mill<\/p>\n
business, he will carry on stationary shop. The third reason stated<\/p>\n
by the appellate authority was that if the need of PW2 is bonafide,<\/p>\n
allowing eviction would not depend on his mother’s ailment. In our<\/p>\n
view, he being the only son of his aged mother, itself can be a<\/p>\n
justification for his preferring to come back to his home town.<\/p>\n
Thus, the finding of the appellate authority that the need is<\/p>\n
bonafide is well founded on evidence. The appellate authority<\/p>\n
found that the sub-tenant is not entitled to claim the protection of<\/p>\n
the second proviso to sub-section (3) of Section 11. The above<\/p>\n
finding is based on statutory provisions, including the judgment of<\/p>\n
the Supreme Court cited at the Bar.\n<\/p>\n
RCR.339\/06
\n                                 : 12 :<\/span><\/p>\n
      9.    Sri.Azeez highlighted Ext.B8 and argued that an order<\/p>\n
of eviction under Section 11(3) cannot be passed when the<\/p>\n
landlord is in possession of another building of his own in the<\/p>\n
absence of special reasons. The argument is per se attractive but<\/p>\n
cannot be accepted for two reasons.             Firstly the revision<\/p>\n
petitioners who are only sub-tenants are not entitled to challenge<\/p>\n
the order of eviction passed on the ground of bonafide need for<\/p>\n
own occupation. Secondly, Ext.B8 will not be of much assistance<\/p>\n
in the present case since the period to which it pertains to is not<\/p>\n
disclosed and does not disclose the name of the occupant of the<\/p>\n
building mentioned therein.\n<\/p>\n
      10.   In short, our conclusion is that the finding of the<\/p>\n
appellate authority that the revision petitioners are only legal heirs<\/p>\n
of the sub-tenants is liable to be approved. This means that the<\/p>\n
order of eviction passed by the appellate authority on the ground<\/p>\n
of arrears of rent and bonafide own occupation is not liable to be<\/p>\n
challenged by the revision petitioners. The result of the above<\/p>\n
discussions is that the revision is liable to fail and the same will<\/p>\n
stand dismissed.\n<\/p>\n
RCR.339\/06
\n                                : 13 :<\/span><\/p>\n
      11.   Finding that the revision petitioners are sub tenants<\/p>\n
notwithstanding we feel that, on the facts and circumstances<\/p>\n
which attend on this case, there is justification for granting<\/p>\n
reasonably long period       to    them to vacate the premises.<\/p>\n
Accordingly, we direct the Execution Court not to order and effect<\/p>\n
delivery of the petition schedule building till 30\/4\/2010 subject to<\/p>\n
the following conditions;\n<\/p>\n
                  i) The Revision Petitioners shall file an<\/p>\n
            affidavit before the Execution Court or the<\/p>\n
            Rent Control Court as the case may be,<\/p>\n
            within one month from today undertaking to<\/p>\n
            give peaceful surrender of the petition<\/p>\n
            schedule         building         to        the<\/p>\n
            landlords\/respondents      on     or     before<\/p>\n
            30\/4\/2010.\n<\/p><\/blockquote>\n
                  ii) The Revision Petitioners shall pay or<\/p>\n
            deposit consolidated amount of Rs.5,000\/-<\/p>\n<\/blockquote>\n
            towards    occupational    charges     to   the<\/p>\n
            landlords\/respondents within one month from<\/p>\n
RCR.339\/06
\n                                : 14 :<\/span><\/p>\n
            today and shall continue to pay every month<\/p>\n
            at the rate of Rs.120\/- per month till such<\/p>\n
            time as surrender of the premises is made.<\/p>\n
            Undertaking to that effect will also be<\/p>\n
            incorporated in the affidavit to be filed as<\/p>\n
            directed above.<\/p><\/blockquote>\n
     The Revision Petitioners will get the benefit of time granted<\/p>\n
under this judgment only if the above conditions are complied with.<\/p>\n
                                   (PIUS C. KURIAKOSE, JUDGE)<\/p>\n
                                 (K.SURENDRA MOHAN, JUDGE)<\/p>\n
aks\/dpk<\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-246713","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nKunhami vs Markoth Nafeesa on 26 November, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kunhami-vs-markoth-nafeesa-on-26-november-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kunhami vs Markoth Nafeesa on 26 November, 2009 - 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