Shamsudeen vs Raziya and Others

K. Ramakrishnan, J.—1. The tenant/respondent No. 1 in R.C.P. No. 148 of 2006 on the file of the Rent Control Court, Ernakulam is the revision petitioner in R.C.R. No. 106 of 2012 while the landlords/petitioners in the same case is the revision petitioner in R.C.R. No. 137 of 2012. The tenant/respondent No. 1 in R.C.P. No. 147 of 2006 is the revision petitioner in R.C.R. No. 130 of 2006. R.C.P. No. 147 of 2006 was filed by the landlords/petitioners for eviction of the petition schedule building on the ground of reconstruction under section 11(4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as ''the Act'' for short. It is alleged in the petition that building No. 40/9581 which is the petition schedule building belonged to Iqbal and after his death, his right in the the said building devolved on his mother Fathima and the petitioners. Fathima executed settlement deed No. 1849/2006 of S.R.O., Ernakulam by which she transferred her undivided share in respect of the petition schedule building in favour of the petitioners in the rent control court. They are the absolute owners of the petition schedule building. The father of the respondent/tenant, late Devassy, took the petition schedule building on rent from the predecessor of the petitioners and was conducting a tailoring shop therein in the name and style "Style Raj Tailors". After the death of Devassy, the tenancy right in the petition schedule building devolved on the respondents who are his wife and children. The rent of the petition schedule building was Rs. 60/- per month. It is in arrears from September 1996 to April 2006. It is part of a line building and the entire building is more than hundred years old and that it is in a dilapidated condition which requires immediate reconstruction. Apart from this, the petition schedule building is situated in the heart of Kochi city at Pulleppady junction, in the most important commercial area. New constructions are coming up in that area and if the building is reconstructed, it can be put to more profitable use for the petitioners. So, they bonafide want to demolish the entire building including the petition schedule building and construct a new shopping complex. They have got approved plan and permit with MOP No. 1/118/2002 dated 26.7.2006 from the Corporation of Kochi for reconstruction of the petition schedule building along with other buildings owned by them. They have got the financial capacity to reconstruct the building. The entire building will have to be demolished for the purpose of reconstruction. So, they bonafide require the petition schedule building for reconstruction. They sent a notice to the first respondent calling upon them to pay the arrears of rent with interest and surrender the building for the purpose of reconstruction and also to intimate the details of other legal heirs, if any, of late Devassy. Though the notice was received, they did not send any reply. So, the petitioners had no other option except to approach the court praying for an order of eviction under sections 11(2)(b), 11(4)(iii) and 11(4)(iv) of the Act.

Respondents 2 to 6 remained ex-parte.

The first respondent filed objection contending as follows: On the death of Devassy, the first respondent alone was in possession of the premises as the tenant and thereafter he attorned to the landlords and they accepted the first respondent as the sole tenant. The first respondent was paying rent regularly till October, 2005. Thereafter, the landlords were not prepared to receive the rent. The first respondent was always ready and willing to pay the arrears of rent from October, 2005. He is liable to pay arrears only from October, 2005. It is not correct to say that the entire building including the petition schedule building is more than hundred years old and it is in a dilapidated condition. No part of the building is so weak so as to require reconstruction. The idea is to demolish the petition schedule building and other buildings in the compound and thereafter construct a new building and to sell the same to others. It is not in such a condition which requires reconstruction. The other allegation that they have got the financial capacity and obtained a plan, etc. are not correct. The plan was obtained in violation of the Building Rules. There is a proposed approach road to the Pulleppady Railway Overbridge and the alleged plan does not contain any room having area and location similar to the petition schedule building. They cannot construct the building without leaving open space from the main road. So, construction is not possible. So, they prayed for dismissal of the petition.

In R.C.P. No. 148 of 2006 it is alleged that room No. 40/9579 is the petition schedule building which is also part of the line building where the petition schedule building in R.C.O.P. No. 147 of 2006 is situated. The father of the respondents one Khalid took the petition schedule building on rent from A.B. Syed Mohammed who is the father of late Iqbal and was conducting business in hiring light and sound. After the death of Khalid the tenancy right devolved upon the respondents. The rent at the rate of Rs. 100/- per month is in arrears from September, 1998 to April, 2006. Subsequent to the taking of the petition schedule building on rent, the respondents have acquired possession and ownership of other buildings in the same city with door Nos. 40/9560, 40/9561, 40/9562, 40/9563, 40/9564, 40/9567 and 40/9585 and they are in possession of the said buildings. They are more spacious than the petition schedule building and reasonably sufficient for their requirement. They have also alleged that the petition schedule building is also more than hundred years old as stated in R.C.P. No. 147 of 2006 and stated that it requires reconstruction. They sent a notice on 22.4.2006 asking the respondents to pay the arrears of rent with interest and surrender vacant possession of the petition schedule building. But the respondents sent a reply with false allegations. Since they have not vacated the premises, the petitioners had no other option except to file an application for eviction under sections 11(2)(b), 11(4)(iii) and 11(4) (iv) of the Act.

Respondents 3 and 6 remained ex-parte.

Respondents 1, 2, 4, 5 and 7 filed a counter statement contending as follows: The petition is a prematured one, as one year is not over from the date of deed of release by Fathima to the petitioners. The building originally belonged to late Mrs. A.S. Bava and Khalid took the premises on rent from her prior to 1940 for running a cycle shop. When A.B. Syed Mohammed took over the petition schedule premises on partition, Khalid attorned to him. After the death of Syed Mohammed, his successors renamed his holding as "A.B. Syed Mohammed Estate" in 1974 and Iqbal was receiving rent from Khalid on behalf of the said Estate. When Khalid expired on 17.12.1980, since the 7th respondent was unable to run the business, the first respondent became the proprietor of "Udaya Sounds" and took over the leasehold. Late Iqbal accepted him as the sole tenant of the premises and had been paying rent to Iqbal. After the death of Iqbal, the second petitioner continued to receive rent for the premises from the first respondent as the proprietor of Udaya Sounds. The petitioners and the predecessor had accepted the first respondent as the sole tenant of the premises in his individual name and the other respondents are not the tenants of the petition schedule building. Respondents 2 to 7 never enjoyed the leasehold as legal heirs of deceased Khalid. Respondents 2 to 7 were not involved in the business carried on by the first respondent a the premises and are not in occupation of the premises. The second petitioner was receiving rent from the first respondent for a long time and later as he declined to accept rent for sometime, rent was sent by money order. The second petitioner refused the money orders also after some time. The first respondent has not acquired possession or ownership of any other buildings. It is not true that the respondents have acquired possession and ownership of the building mentioned in the petition. The buildings allegedly occupied by the respondents are not reasonably suitable, spacious, convenient or sufficient to carry on the business in the petition schedule building by the first respondent. He had been paying rent till March 2003. Thereafter the second petitioner informed the first respondent that the petitioners were planning to partition the properties, pending which he will receive the rent and obtain receipts from the allottee. Though he received the rent thereafter, he did not issue receipts. The allegation that the building is more old and require reconstruction, etc., are not correct. It is not situated in a commercially important area. Further the construction is not possible on account of the proposal to have a service road from M.G. Road to the railway over bridge at Pulleppady. The plan if any obtained is not proper. So the attempt is only to evict the tenants from the premises. They have no capacity to construct the building and there is an open space about 22 1/2 cents which is lying vacant for so many years. So they are not entitled to get eviction on any of the grounds mentioned above. They prayed for dismissal of the application.

Both these cases were tried jointly and evidence was recorded in R.C.P. No. 147 of 2006. The second petitioner in both these cases were examined as PW1 and the Secretary of the Corporation of Kochi was examined as PW2. Exts.A1 to A7 series, A8 series and A9 were marked on the side of the petitioners/landlords. RWs.1 to 3 were examined and Exts.B1 to B9, B10 series, B11 series and B12 and B13 series were marked on the side of the respondents. Ext. X1 was also marked.

After considering the evidence on record, the rent control court found that both the tenants have kept the rent in arrears and the petitioners bonafide require the petition schedule building for reconstruction. In R.C.P. No. 147 of 2006 eviction was ordered under sections 11(2)(b) and 11(4)(iv) of the Act and in R.C.P. No. 148 of 2006 the rent control court found that the tenants are in occupation of other buildings and eviction was ordered under sections 11(2)(b), 11(4)(iii) and 11(4)(iv) of the Act.

Dissatisfied with the order of eviction passed, the first respondent/tenant in R.C.P. No. 148 of 2006 filed R.C.A. No. 64 of 2008 and the first respondent/tenant in R.C.P. No. 147 of 2006 filed R.C.A. No. 77 of 2008 and both the appeals were jointly heard and disposed of by a common judgment. The rent control appellate authority dismissed R.C.A. No. 77 of 2008 confirming the order of eviction passed in R.C.P. No. 147 of 2006 and allowed R.C.A. No. 64 of 2008 in part, dismissing the application under section 11(4)(iii) of the Act but dismissed the appeal confirming the order of eviction passed under sections 11(2)(b) and 11(4)(iv) of the Act.

Dissatisfied with the order of dismissal of R.C.A. No. 77 of 2008, the tenant in R.C.P. No. 147 of 2006 filed R.C.R. No. 130 of 2012 and dissatisfied with the order of dismissal of the application under section 11(4)(iii) of the Act, the landlords filed R.C.R. No. 137 of 2012, while declining to interfere with the order of eviction passed under sections 11(2)(b) and 11(4)(iv) of the Act, the first respondent in R.C.P. No. 148 of 2006 filed R.C.R. No. 106 of 2012. Since all these revisions arise out of a common judgment based on common evidence, we are also disposing of these revision petitions by a common judgment.

Heard Sri. K.G. Balasubramanian, learned counsel appearing for the revision petitioner in R.C.R. No. 106 of 2012, Sri. Joby Jacob Pulickekudy, learned counsel appearing for the revision petitioner in R.C.R. No. 130 of 2012 and Sri. S. Sreekumar, learned Senior Advocate appearing for the revision petitioners in R.C.R. No. 137 of 2012 and the respondents in R.C.R. No. 106 of 2012 and R.C.R. No. 130 of 2012. For the purpose of convenient sake, we are referring the status of the parties as landlords and tenants in these revision petitions.

The learned counsel appearing for the tenants in R.C.P. No. 147 of 2006 has submitted that though the rent control court found that the tenants are entitled to get a reasonable accommodation after reconstruction and observed that it is not necessary that it must be given in the same condition or same position, it is for the landlords to decide whether the allotment will have to be given on fair rent. He has also contended that on account of the change of circumstances, the construction of the building is not possible in that area and the present permit has expired and there is no possibility of reconstruction.

The learned counsel appearing for the revision petitioner in R.C.R. No. 106 of 2012 submitted that when an application is filed for building permit, it cannot be extended for more than nine years in view of rule 15A of the Kerala Municipality Building Rules, 1999. He had also submitted that the rent control appellate authority rightly found that the revision petitioner in R.C.R. No. 106 of 2012 is the person in occupation of the building and he is conducting the business in his own name and he has not acquired any building in his name and he has no interest in other buildings and as such, it cannot be said that he had come into possession of any building so as to order eviction under section 11(4)(iii) of the Act and the finding by the appellate authority does not require any reconsideration as there is no impropriety or illegality committed by the appellate authority in appreciating the evidence invoking section 20 of the Act.

On the other hand, learned counsel appearing for the landlords in all these cases submitted that though the permit has expired, they have already filed an application for renewal as provided under the proviso to rule 15A of the Kerala Municipality Building Rules, 1999 and that is pending with the committee. Further, the evidence will go to show that the building is in a dilapidated condition and the courts below were perfectly justified in ordering eviction under section 11(4)(iv) of the Act. He had also submitted that as regards the tenant in R.C.P. No. 147 of 2006 is concerned, they are prepared to give a place in the reconstructed building as far as possible to his convenience. He had further submitted that as far as the tenants in R.C.P. No. 148 of 2006 are concerned, they have come into possession of other buildings and there is no document produced on the side of the tenants to prove that after the death of Khalid, the tenancy has been partitioned among the joint tenants and he was given the building and he is conducting the business in his individual capacity not as the legal heir of the deceased Khalid. In the absence of any evidence, the dictum laid down in Parvathy Krishnan v. Joseph Alias Jose (, 2007 (4) KLT 1062) will squarely apply and the appellate authority had wrongly understood the dictum laid down in the decision and the appellate authority should not have deviated from the finding arrived at by the rent control court on the basis of evidence. So according to him, even if eviction is ordered under section 11(4)(iv) of the Act in this case, in view of the fact that they have come into possession of other buildings they are not entitled to the benefit of section 11(4)(iv) of the Act.

He had also submitted that he had filed I.A. No. 2481 of 2012, I.A. No. 2616 of 2012 and I.A. No. 35 of 2014 to receive additional documents in this revision and that was opposed by the respondents in that case. It will be seen from the documents produced that in I.A. No. 2481 of 2012, the documents produced were certain photographs and also images taken from the website and in I.A. No. 2616 of 2012, the documents produced were the information received under the Right to Information Act and the order of the Income Tax Appellate Tribunal and the Commissioner of Income Tax and in I.A. No. 35 of 2014, the documents produced were the plaint and written statement in O.S. No. 645 of 1996 to show that after the death of Khalid, his legal representatives were jointly conducting the business in the petition schedule building in R.C.P. No. 148 of 2006. Except the documents produced along with I.A. No. 35 of 2014, other documents are not authenticated copies obtained from any tribunal. So they cannot be admitted in evidence. But the documents produced along with I.A. No. 35 of 2014 is the certified copy of the plaint and written statement in O.S. No. 645 of 1996 on the file of the Munsiff Court, Ernakulam which is between the same parties namely the present landlords and some of the tenants, one of whom is claiming independent right in the petition schedule building in that case. So the other documents produced along with I.A. Nos. 2481 and 2616 of 2012 cannot be accepted in evidence where as the documents produced in I.A. No. 35 of 2014 can be accepted in evidence and they can be marked as Exts.A10 and A11 in this revision and the reliability and accessibility of those can be considered in the revision.

It is a common case of the landlords in both these cases that the petition schedule building in both these cases were respectively given to the predecessor-in-interest of the present tenants and after the death of the original tenant, their legal representatives were in possession. As far as R.C.P. No. 147 of 2006 is concerned it was given to one Devassy and after the death of Devassy, his legal representatives were in possession. Thereafter though notice was issued to intimate the request for surrendering possession, no reply was sent by them and except the first respondent, others did not contest the case as well. The case of the first respondent was that after the death of their father, he was conducting the business in his individual capacity and other legal heirs have no interest in the building and that was accepted by Iqbal as well. The fact that other legal heirs did not contest the case and the first respondent alone contest the case in that case will go to show that he is in occupation in his individual capacity. The common case of the landlords in both these cases was that both the buildings which is part of the bigger building requires reconstruction as it is aged more than 100 years and a new building complex are coming in the locality and it is a commercially important place and if the building is demolished, they can put it for a better use and in a profitable manner. They had obtained necessary plan and licence for that purpose. The tenants have a case that the building cannot be constructed there on account of the fact that it is abutting a railway over bridge and there is a possibility of acquisition for widening the road and as per the town planning scheme, no new construction can be possible there.

PW2 was examined on the side of the petitioners and PW2 deposed that there is no proposal for widening and this place is not included in the land acquisition process and Ext. A8 series plan was approved by the authorities and he was granted exemption and it is on that basis that the building plan was given. RW3 was examined on the side of the respondents to prove that there is a proposal for widening the road. But she had categorically stated that this survey number was not included in the acquisition proposal. So under the circumstances, the submission made by the counsel for the tenants that there is no possibility of reconstruction of the building in the place cannot be accepted and the courts below have rightly come to the conclusion that such a contention is not sustainable.

As regards the contention raised by Sri. K.G. Balasubramanian, learned counsel appearing for the revision petitioner in R.C.R. No. 106 of 2012, that after nine years, no renewal could be possible and they will have to apply for fresh building permit and such an attempt has not been made. These aspects were not considered by the court below. It may be mentioned here that rule 15A of the Kerala Municipality Building Rules, 1999 was amended later and a proviso has been added, which reads as follows:

"15A. Extension and renewal of periods of permits.--(1) A development permit or a building permit issued under these rules shall be valid for three years from the date of issue.

(2) The Secretary shall, on application submitted within the valid period of the permit, grant extension twice, for further periods of three years each.

(3) The fee for extension of period of permits shall be ten per cent of the development permit fee or building permit fee, excluding the fee for additional Floor Area Ratio as the case may be, in force at the time of granting extension.

(4) The Secretary may, if he deems fit, grant renewal for a period of three years on application submitted after the expiry of the permit, subject to the condition that the total period of validity of permit from the date of issue of original permit shall not exceed 9 years:

Provided that in case the permits need to be extended/renewed beyond the period of nine years, the applicant shall submit an application in writing to the Committee constituted under Chapter X-A of these Rules and the committee may, after having satisfied with the genuineness of the application, recommend for extension or renewal of the permit, as the case may be, with or without condition(s) as it deems fit.

(5) The fee for renewal of permits shall be fifty per cent of the development permit fee or building permit fee, as the case may be, in force at the time of renewal.

(6) The application for extension or renewal of a development permit or a building permit shall be submitted in white paper either typed or written in ink specifying the name and address of the applicant, the number and date of issue of the permit, the stage of development or construction, if already commenced.

(7) The application shall be affixed with necessary court fee stamp and shall contain the original of the permit and approved plan sought to be extended or renewed.

(8) The development work or construction work shall be commenced and completed within the valid period of the permit.

Note.--Non commencement of any work within the period specified, if any, in a permit issued before the commencement of these rules shall not be considered as a ban for extension or renewal of permit.

(9) A development permit or a building permit issued before or after the commencement of the Kerala Municipality Building Rules, 1999 or these rules or under the Kerala Building Rules, 1984 including that under the orders of Government or District Collector granting exemption from rule provisions, shall be extended or renewed, on proper application, on like terms and for like periods as a permit issued under these rules.

(10) In case the period of validity stipulated in a permit issued before the commencement of the Kerala Municipality Building Rules, 1999 is different from that stipulated in sub rule (1), then the extension or renewal of the permit shall be granted in such a way that the total valid period of the permit shall not exceed nine years.

(11) The application for extension or renewal of a development permit or a building permit shall be signed and submitted by the original owner of the permit or his legal heir to whom the site devolves or legally authorised representative and in case the plot concerned has been transferred by the original owner, the transferee or his legally authorised representative:

Provided that if the plot or a part of the plot concerned has been transferred, the application for extension or renewal of permit shall not be accepted and acted upon until provisions of rule 21 has been fully complied with."

The proviso to rule 15A(4) shows that even after the expiry of the period of nine years, the person can apply for renewal and the committee will have to consider the delay mentioned in the application, recommend for extension or renewal of the permit as the case may be without the condition as it deems fit.

The learned counsel for the landlords submitted that such an application has been filed and it is pending consideration with the committee. It may be mentioned here that the law only says that at the time when the rent control petition was filed, the landlords must have a permit, that too for the purpose of proving the bonafides of their intention to reconstruct and nothing more and one cannot expect that as time passes, there may be changes in the law and they may have even to apply for fresh application for that purpose. That cannot be a ground for rejecting the application for eviction on the ground of reconstruction if the court is satisfied about the genuineness of the claim made by the landlords.

It is in a way admitted by the respondents when they were examined as RWs.1 and 2 that the building is an old one and new constructions are coming near the area. It is also in a way brought out in evidence that it is a commercially developing area as well. So, merely because the building does not require immediate reconstruction, in such circumstances, is not a ground to deny eviction under section 11(4)(iv) of the Act. If the old building in a developing area is an eyesore, the landlords can pull down the same, reconstruct it and put it for profitable use. The court need only consider the question as to whether the need is only to evict the tenants and not to put them back after reconstruction. If the court below is satisfied that the need of the landlords is bonafide and after reconstruction, the landlords can put the building in a profitable manner and they had no intention to avoid the tenants, then the court can order eviction under section 11(4)(iv) of the Act. So under the circumstances, considering the nature of evidence adduced in this case, the courts below were perfectly justified in coming to the conclusion that the landlords bonafide require the petition schedule building for reconstruction. The concurrent findings of the court below on these aspects do not call for any interference.

As regards the tenant in R.C.P. No. 147 of 2006 is concerned, his only grievance was that the rent control court has observed that the tenant cannot insist for a room of his choice in the reconstructed building which according to him is unsustainable in law. But it may be mentioned here that the law does not say that he must get an equal area in the reconstructed building but, as far as possible a convenient and suitable room will have to be provided to him to suit his convenience.

Learned Senior Counsel for the landlords in this case submitted before this court that they are prepared to give a reasonable and as far as possible a convenient room for the tenant for his occupation to conduct his business. So under the circumstances, the apprehension of the tenant in this case that he will not be getting a reasonable and suitable room in the reconstructed building is without any basis and we record the submissions made by the learned Senior Counsel on behalf of the landlords in this regard and the revision can be disposed of confirming the order of eviction passed by the rent control court under sections 11(2)(b) and 11(4)(iv) of the Act and eviction under section 11(2)(b) of the Act and if he is not evicted under section 11(2)(b) of the Act, the tenant is at liberty to move the court appraising that court about the discharge of rent as required under section 11(2)(c) of the Act and he will be entitled to get as far as possible a convenient room in the reconstructed building as undertaken by the learned Senior Counsel appearing for the respondents in this case.

As regards the tenants in R.C.P. No. 148 of 2006 is concerned, their case was that after the death of Khalid, the first respondent in the rent control court was conducting the business as his individual business and no other building was acquired by him. As regards the reconstruction is concerned, this court has already found while disposing of R.C.R. No. 130 of 2012 considering the contentions including the contention raised by the learned counsel for the tenant in this case that the need alleged by the landlords for reconstruction is bonafide and the order of eviction passed under section 11(4)(iv) of the Act by the rent control court and confirmed by the rent control appellate authority does not require any interference as there is no impropriety or perversity committed by the courts below in arriving at such a conclusion in ordering eviction under that ground.

The question whether he will be entitled to get a priority in the reconstructed building will depend upon answering the question of order of eviction under section 11(4)(iii) of the Act.

The case of the landlords in this application was that after the death of Khalid, the original tenant, his legal heirs were in occupation of the building as tenants and they are conducting the business. They also acquired number of buildings of their own which is reasonably sufficient for shifting the business that is being conducted in the petition schedule building as well. But according to the tenants their case was that after the death of Khalid, the first respondent alone is conducting the business and he is the sole proprietor of the business and he has not acquired any building and he has no interest in the building that is alleged to have been acquired by other legal heirs of the deceased Khalid. The fact that the other legal heirs of late Khalid had obtained buildings is proved through Ext. A7(a) series and also by production of Ext. B13 series, certified copy of the document of title in respect of those buildings. It is true that those documents will go to show that documents were purchased in the name of individuals shown in the documents and that will not include the first respondent in this case. But in the counter statement filed by them in this case, they have categorically stated that after the death of Khalid, the tenancy right devolved on all his legal heirs including the first respondent and it was mentioned in the counter statement that since the seventh respondent did not conduct the business, the first respondent is conducting the business and that is being accepted by the landlords as he is the sole proprietor of the business. It may be mentioned here that they have not produced any document to show that other legal heirs have released their tenancy right in respect of the petition schedule building in favour of the first respondent. They have also not produced any document to show that they have relinquished their right in the business started by their predecessor in the petition schedule building in favour of the first respondent alone and they are not claiming any interest in the business. Additional documents have been produced before this court and received by this court as per order in I.A. No. 35 of 2014 which are copies of plaint and written statement in O.S. No. 645 of 1996. In paragraph 3 of the plaint, which is marked as Ext. A10, it has been averred that after the death of Khalid, the father of the defendants who includes the first respondent herein, they are conducting the business jointly and they are in joint possession of the petition schedule building. Further in the written statement filed in that suit, which is marked as Ext. A11 before this court, they have admitted that the petition schedule building was obtained by their predecessor-in-interest namely T.K. Khalid and after the death of Khalid, his legal representatives including the defendants are in joint possession of the building and they are conducting the business of light and sound contractors and generator repairs in it. Further in paragraph 7 of the written statement it has been specifically mentioned that the defendants'' father and later his legal heirs were maintaining the building by doing painting, the ceiling and white washing the wall in every two years as permitted by the landlords. This is being done to augment their trade in the building. So it is clear from the averments in the written statement and the plaint allegations that after the death of Khalid, the legal representatives were in joint possession of the building and they were jointly conducting the business. Once it is proved by the landlords that after the death of the original tenant, his legal representatives were in joint possession of the building and they were jointly conducting the business, it is for the tenant to prove that after the death of the original tenant, there was relinquishment of right of other legal heirs in respect of one of the legal heirs alone and on that basis he is in possession of the building as the sole tenant and conducting the business in his own individual name.

The counsel for the tenant submitted that in view of the fact that additional evidence has been received in this revision, it should not be relied on by this court without affording an opportunity to the tenant to meet the same. But it may be mentioned here that it is a pleading in a litigation between the same parties, in respect of the same subject matter and within his knowledge and it cannot be said that he had taken the contention in that case without knowing its implication. Further even assuming that it is a subsequent event, we have considered those aspects and came to the conclusion that in the absence of any evidence adduced by the tenant to prove that after the death of the original tenant, there was any arrangement made between the legal heirs relinquishing their right in favour of the particular person who is in possession of the building and conducting the business as his individual business, there is no necessity for remand the case for giving an opportunity to the tenant to meet the circumstances under which he had made such observations in the written statement.

In the decision reported in Parvathy Krishnan v. Joseph Alias Jose (supra) the question as to whether some of the legal heirs of the original tenant on his death acquired some property will be a ground for eviction of the legal heirs from the tenanted premises invoking section 11(4)(iii) of the Act has been considered and it has been observed as follows:

"S.11(4)(iii) does not make any fetter on the right of the landlord to get an order of eviction if the tenant acquires possession of another building, no matter whether such acquisition is made by all the legal representatives of the deceased tenant or whether it is by one among them. At the same time, court should not be forgetful to the fact that one or some of the legal representatives of the tenant could legally acquire and possess properties of his own or their own unconnected with and unrelated to the occupation of the tenanted building by some other legal representatives of their predecessor. The various eventualities on the death of a tenant, as to how the legal representatives of the tenant would continue to run the business, whether some of the legal representatives would prefer to dissociate themselves with the business conducted therein or whether some of them would stand apart from the affairs of the family and acquire properties in their own name or for their own benefit, are all matters peculiar to the fact situation in each case and would depend on the arrangement entered into among the legal representatives of the tenant. A principle of universal application cannot be evolved to meet all such contingencies at all points of time. Facts and circumstances of each case have to be taken into account and analysed to come to a conclusion whether the legal representatives of the tenant have acquired possession of another building within the meaning of S.11(4)(iii) and whether the landlord is entitled to an order of eviction on that ground. If the Court comes to the conclusion that the other building is acquired by one or some of the legal representatives for their own benefit with their own funds and that such person or persons are unconnected with or unrelated to the occupation of the tenanted premises, the Court could rightly deny relief to the landlord under S.11(4)(iii). On the other hand, if the court comes to the conclusion that acquisition of possession of another building in the name of one or some of the legal representatives of the tenant was made deliberately to defeat the rights of the landlord to claim eviction under S.11(4)(iii), and that the tenanted building and the other building are really occupied by the legal representatives including the person or persons in whose name possession or title of the other building is acquired, the Court would be justified in passing an order of eviction under S.11(4)(iii). In cases where this question arise, the burden of proof would be on the tenants resisting the Rent Control Petition to establish that the other building was acquired or possession of the same was acquired by one or some of the legal representatives alone and that they have no connection or no right in the business being conducted in the tenanted premises or that they do not occupy the tenanted premises. The landlord cannot be expected to establish the arrangement among the legal representatives of the tenant in the matter of occupation of the tenanted building and in the matter of acquisition of possession of other buildings. Such matters are exclusively within the knowledge of the tenants and naturally, the burden of proof should be on them. (paras. 20 & 21)"

So it is clear from the above dictum that the tenant in possession has to prove that he alone is conducting the business in the petition schedule building and other legal heirs have no interest in the business conducted in the petition schedule building and he has no interest in the building acquired by other legal heirs and if these two things are established by that person, then alone it can be said that he has not acquired any building subsequent to the letting out or he has not come into possession of any other building so as to avoid eviction under section 11(4)(iii) of the Act.

It is true that in this case the tenant was relying on Ext. B2 to show that he was a proprietor and the rent was received by the landlords. It may be mentioned here that merely because he was shown as proprietor alone is not sufficient, unless it is accepted by the landlords that he is the sole person entitled to occupy the building as tenant and others have no interest in the building. This fact was denied by PW1, when he was examined in court. Further the property tax documents produced, namely Ext. B10 series shows that Udaya Sounds, K.K. Shamsudheen whether it is proprietary concern or a partnership concern, whether K.K. Shamsudheen is paying the rent in his individual capacity etc., are not clear from this document. As already observed by this court, once it is proved by the landlords that after the death of the original tenant, the legal representatives are in possession of the building jointly and they are jointly conducting the business and if there an admission of those facts in the pleading in the earlier proceedings between the same parties as evident from Exts.A9 and A10, then the burden is heavy on the tenant to prove that after the death of the original tenant, there was some arrangement between the legal heirs whereby one of the legal heir alone has been allotted with the business and the tenancy right in the petition schedule building and he is in possession of the same in that capacity and if it is not proved by the tenant, then it can only be presumed that he is also in possession of the building for and on behalf of other legal heirs and he cannot claim any exclusive right over the business or in the tenancy right in the petition schedule building. So the rent control court relying on the principle laid down in the decision reported in Parvathy Krishnan v. Joseph Alias Jose (supra), rightly came to the conclusion that the tenants are not establish the requirements to get the protection as mentioned in that decision and rightly ordered eviction under section 11(4)(iii) of the Act. The rent control appellate authority only relying on Ext. B2 came to the conclusion that in all this probabilise the case of the tenant that he is the sole person who is conducting the business and he has no interest in the other buildings which were acquired by the other legal heirs of the original tenant and interfered with the findings of the rent control court and dismissed the application under section 11(4)(iii) of the Act, which according to us is unsustainable in law in view of the discussions made above. The appellate authority had not properly understood the dictum laid down in Parvathy Krishnan''s case cited (supra) and the principles have been wrongly applied and the evidence has not been properly appreciated by the appellate court. It is settled law that if the courts below have not properly appreciated the evidence and no such finding could be possible on the basis of such evidence and the finding is perverse, then revision court under section 20 of the Act can re-appreciate the evidence and even if there is concurrent finding, it can upset that finding and came to a different conclusion. In this case, it cannot be said to be a case of concurrent finding. The rent control court found that the tenant is liable to evicted under section 11(4)(iii) of the Act, but it was reversed by the appellate authority on mis-appreciation of evidence and wrong application of the principles laid down by the precedent on this aspect. So under the circumstances, we are of the opinion that the finding of the appellate court that the landlords are not entitled to get eviction under section 11(4)(iii) of the Act is unsustainable in law and the same is liable to be set aside and we do so and confirming the order of eviction passed by the rent control court on this aspect, restoring the order of eviction passed under that section. Since this court has found that the tenant in R.C.P. No. 148 of 2006 is liable to be evicted under section 11(4)(iii) of the Act as well, he is not entitled to get the protection under section 11(4)(iv) of the Act for getting re-induction of any of the rooms reconstructed in the building. So he is not entitled to get that benefit, though the order of eviction passed under section 11(4)(iv) of the Act. R.C.R. No. 137 of 2012 is allowed and the order of the rent control appellate authority in R.C.A. No. 64 of 2008 rejecting the order under section 11(4)(iii) of the Act is set aside and the order of eviction passed under section 11(4)(iii) by the rent control court is restored. The R.C.R. No. 106 of 2012 filed by the tenant in R.C.(O.P.) No. 148 of 2006 is hereby dismissed. R.C.R. No. 130 of 2012 is also dismissed subject to the observation made by us while disposing of the revision as stated above.

The landlords are directed to obtain necessary plan and permit and complete the reconstruction within two years from the date of getting possession of the building and after completion, he is directed to provide a reasonably, as far as possible, convenient place to the tenant in R.C.P. No. 147 of 2006 in the reconstructed building on a reasonable rent to be arrived at between the parties. The tenant in R.C.P. No. 147 of 2006 is granted three months time to vacate the premises. On getting vacant possession, the landlords are directed to start construction and complete construction within two years and preinduct the tenant in that case as mentioned above. Three months time is granted to the tenant in R.C.P. No. 148 of 2006 to surrender vacant possession of the building, on filing an undertaking in the form of an affidavit in the rent control court, undertaking to surrender vacant possession of the petition schedule building to the respondents/landlords on the expiry of the said period of three months. The tenants shall deposit or pay to the landlords, the arrears of rent if any and undertake in the affidavit to be filed as directed that they will continue to pay the rent at the rate fixed till the date of surrender. The tenants shall also undertake that they will not induct third parties into possession of the petition schedule building or sublet the building or commit acts of waste therein. The undertaking as stated above has to be filed before the rent control court or before the execution court where execution petition if any is pending within three weeks from today. In the event of failure on the part of the petitioners/tenants to file an affidavit within the time limit stipulated above, it will be open to the landlords to forthwith execute the order of eviction. If the undertaking is filed as directed, then the execution court is directed to keep the execution in abeyance till the expiry of the time granted by this court.