A. Majeed vs S. Radhakrishnan Nair and Others

A.V. Ramakrishna Pillai, J.—The tenant has come up in revision.

Respondents sought eviction of the revision petitioner u/s 11(2) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, claiming title under one deceased Devaki Amma. It was alleged that the petition schedule premises was leased out to the petitioner in the year 1987 on a monthly rent of Rs. 250/- for running a studio and subsequently, the rent has enhanced to Rs. 400/-. It was further alleged that the revision petitioner defaulted in paying rent since 1999 and the 10th respondent required the petition schedule premises to conduct a fancy store as he is not having any source of livelihood. A lawyer''s notice was served on the revision petitioner and it was replied against expressing the unwillingness to surrender vacant possession. Thus the matter was taken before the Rent Control Court.

Before the Rent Control Court the revision petitioner took a contention that he took the petition schedule premises from Devaki Amma under whom the respondents are claiming title and he was paying rent to Devaki Amma without default. It was further contended that the need alleged is a mere ruse for eviction and the revision petitioner was mainly depending on the income derived from the business set up in the petition schedule rooms.

The learned Rent Controller after raising proper points for trial permitted both sides to adduce their evidence. After an elaborate consideration of the evidence the Rent Controller disallowed the appeal u/s 11(2)(b) and allowed eviction u/s 11(3).

Aggrieved by the order of eviction the revision petitioner took the matter before the Rent Control Appellate Authority. The learned Rent Control Appellate Authority after a re-appraisal of the entire evidence confirmed the order of eviction u/s 11(3). This order is under challenge in this revision.

We have heard the learned counsel appearing for the revision petitioner. We have also gone through the impugned order of the Rent Control Appellate Authority as well as the order of eviction passed by the learned Rent Controller.

The main argument advanced by the learned counsel for the revision petitioner is that the revision petitioner has taken a definite contention that he who was continuing as a tenant under the deceased Devaki Amma who is the predecessor in interest of the respondents had obtained an agreement for conveyance of the petition schedule premises from Devaki Amma and he is continuing in possession of the petition schedule premises on the basis of the said agreement. The agreement so executed was produced before the Trial Court and was marked as Ext. B1. According to the learned counsel for the revision petitioner the lower court failed to make an enquiry as to whether the denial of title set up by the revision petitioner was bona fide or not. According to the learned counsel for the revision petitioner the lower court ought to have found that the revision petitioner is entitled to get the benefit of Section 53A of the Transfer of Properties Act. However, in paragraph 9 of the impugned order the learned Rent Control Appellate Authority has considered the relevance of Ext. B1 in the context of the submission made by the learned counsel for the petitioner. Ext. B1 is an agreement of the year 1993 and the appellant did not choose to get Ext. B1 agreement executed. The Rent Control Petition was filed by the respondents who are the legal heirs of the deceased Devaki Amma in the year 2006. Evidently the revision petitioner was occupying the petition schedule premises in the capacity of a Rent Deed during the interval of 13 years i.e. during the period between the date of the execution of Ext. B1 agreement and the date of filing of the Rent Control Petition. It is also relevant to note that in order to attract Section 53A (part performance of the contract) the transferee who is claiming benefit of the provisions of Section 53A should be able to prove that in part performance of the contract he has taken possession of the property or any part thereof or if he being already in possession should continue to be in possession as part performance of the contract and has done some Act in furtherance of the contract. No evidence is forthcoming in this case to show that the revision petitioner is occupying the petition schedule premises in furtherance of the terms of Ext. B1 after 30/05/93. As there was only a blunt denial of title of the respondents/landlords the courts below were perfectly justified in holding that there was absolutely no bona fides in the denial of title set up by the revision petitioner.

The 10th respondent for whose benefit eviction was sought for gave evidence as PW1 before the trial court. He deposed in eloquent terms that he bona fide needs the petition schedule premises to start a fancy store and it was also proved that no other room was available with him to start the said business. Though the revision petitioner has taken a contention that the 2nd respondent is not having any previous experience in starting the business etc., such contentions were repelled by the courts below for justifiable reasons. There is also evidence to show that the 10th respondent is having the capacity to start the business. So on re-appraisal of the entire evidence on record the learned Appellate Authority has found that the need alleged is bona fide.

Though the burden was on the revision petitioner/ tenant to prove both the limbs of the second proviso the revision petitioner could not substantiate his contention.

On a consideration of the entire materials placed on record, we have no hesitation to hold that the impugned order was passed by the learned Rent Control Appellate Authority in the correct perspective and there is absolutely no irregularity, illegality or impropriety in the impugned order calling further interference by this Court. The revision fails and it is dismissed.

When our decision was made known to the learned counsel appearing for the revision petitioner, he requested one year''s time to give vacant possession of the petition schedule premises. We will not be justified in granting so much time to the revision petitioner without notice to the respondents, landlords. Hence, issue urgent notice by speed post to the respondents, landlords.

The execution proceedings shall be kept in abeyance for a period of two months from today.