LELA v. ALI — 1982 DIGILAW 128 (KER)

Judgment :- 1. More than a quarter of a century ago, B.M. Lela became a tenant under Puthiya Kottal Ali under a rent deed executed on 16-4-1956, Ext. Al, stipulating a monthly rent of Rs, 85 for the building. Later, he took on rent the car shed of the landlord on a monthly rent of Rs. 10, B.M. Lela died in 1965 leaving behind him his widow and six children, of whom Balakrishna B. Lela appears to be the eldest. The legal representatives of the deceased tenant continued occupation of the building. The landlord initiated eviction proceedings on ground of sub-lease and the authorities below granted eviction. These orders are challenged in revision petition wherein the landlord is the 1st respondent. 2. According to the landlord, one Rama Rao was inducted into a portion of the leased building and a sub-lease in his favour was so created This creation of the sub-tenancy without his consent and in the absence of an enabling provision in the rent deed afforded a ground for eviction of the tenants under S.11 (4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as the Act). A lawyer's notice was caused to be issued on 14-10-1977, Ext. A2, purporting to intimate all the legal representatives of the deceased tenant but actually issued in an envelope containing only the address of the first named therein with the direction that the notice should be shown to the other legal representatives also. The request not having been responded to, the petition for eviction (O.P.R.C. 7 of 1978) was filed by the landlord. Respondents Nos.1 to 3 and 5 to 7 as figuring therein are the children of deceased B. M. Lela and the 4th respondent is his widow. Out of these respondents, counter was filed on be half, of respondents Nos.1 and 4 to 7. 3. The tenants raised various contentions. According to them, there were two entrustment and consequently two causes of action; there was no proper notice, the notice having been issued only to one among the several legal representatives; there was no sub-lease as understood in law. Rama Rao, the 8th respondent, was a close relative of the wife of respondent No.1 and an intimate friend of the 1st respondent. Rama Rao, the 8th respondent, was a close relative of the wife of respondent No.1 and an intimate friend of the 1st respondent. On his transfer to Calicut, the 8th respondent could not pitch upon an accommodation immediately, A temporary accommodation was given to Rama Rao at a time he and his family were stranded in the City without accommodation. The 8th respondent had no possession of the building; he had only the rights of a licensee as one permitted to have the use of the building. The 8th respondent, after a short stay, vacated the building in November, 1977 within one month of the receipt of Ext. A2 notice and long before the filing of the Rent Control Petition. The 8th respondent later shifted his residence to Tirurangadi, to which place he was transferred later. Respondents Nos.1 to 7 have, therefore, not violated S.11(4)(i) of the Act and consequently an eviction under that Section was without jurisdiction. 4. The authorities under the Act appear to have oversimplified the issue, by their brief orders. Perhaps, they have been oppressed by the understanding of the law as laid down by this court in the decision reported in Sreepathi Poti v. Venkitasubramania Iyer, 1976 KLT. 256. After hearing elaborate arguments in the case I am satisfied that there has not been a proper appreciation of the correct legal principles and a correct application of such principles to the facts in the case. Such erroneous decision on jurisdictional issues have led to manifest injustice in as much as a family, which had set up their residence in the building in question for over a quarter of a century and against which no other complaint has been levelled by the landlord (such as non-payment of the rent, impairing the utility of the building, denying the title of the landlord, omission on the part of the tenant to occupy the building continuously for six months or the like) is uprooted on the only ground that they bad permitted another person to have a temporary stay in their house. 5. The landlord did not care to enter the witness box even to formally swear to his case. That duty was entrusted with a clerk in the office of the landlord. Examined as pw. 5. The landlord did not care to enter the witness box even to formally swear to his case. That duty was entrusted with a clerk in the office of the landlord. Examined as pw. I he admitted that he was not concerned with the management of the buildings, that he had no direct knowledge of the original entrustment of the building, that he had not witnessed Rama Rao being entrusted with the building or bis paying rent in respect thereof, and that he had no direct information as to the capacity in which Rama Rao had occupied the building. He asserted in chief-examination that respondents Nos.1 to 7 were Gujarthis and Rama Rao was Konkini. In cross-examination, be admitted that he could not be sure whether respondents No.1 to 7 were Marattis. His source of information was Rama Rao and that information was obtained after the petition. As there were two families, he inferred that there was a sub-tenancy. He admitted that Rama Rao was not seen in the place for some time before his examination. To the specific question put to him about the transfer of Rama Rao to Tirurangadi, he pleaded ignorance. He did not know where the wife and children of Rama Rao were residing at that time. pw. 2 was examined to prove that Rama Rao bad applied for and obtained ration card with the petition schedule building as residential address. (The declaration produced is undated and there is not even formal proof of the. signature of Rama Rao. However, they are not matters of much consequence, as the stay of Rama Rap in the building fora short period till November, 1977 is admitted.) The 1st respondent gave evidence, asserting that his family belonged to Maharashtra. He denied the sub-lease; no rent had been received from Rama Rao; Rao's family was there only as licensee and without any exclusive occupation of any portion of the building. To a suggestion in cross-examination he denied that Rama Rao belonged to Kanhangad, but said he belonged to Kerala. He could not say the whereabouts of Rama Rao's forefathers. 6. All the authorities under the Act have concurred in holding that the respondents-tenants are liable to be evicted for violation of S.11(4)(i) of the Act. The contesting respondents have, therefore, moved this court by way of revision under S.115 of the Code of Civil Procedure. 7. He could not say the whereabouts of Rama Rao's forefathers. 6. All the authorities under the Act have concurred in holding that the respondents-tenants are liable to be evicted for violation of S.11(4)(i) of the Act. The contesting respondents have, therefore, moved this court by way of revision under S.115 of the Code of Civil Procedure. 7. As stated earlier, the fact that the 8th respondent with his family stayed in the petition schedule building is not disputed. The nature of such stay whether it is one which answers the description of a sub-lease as alleged by the landlord or a mere licence for a shortwhile to enable a distant relative to find out and fix up a congenial accommodation is the main question. 8. After referring to the pleadings, the Rent Controller disposed of the question whether there was a sub tenancy virtually in three sentences reading: "Rw.1 deposes that respondents 1 to 7, and bis wife belong to the State of Maharashtra while 8th respondent belongs to the State of Kerala. rw.1 has no case that his wife has got relation in the State of Kerala. Therefore the case of respondents 1 to 7, that 8th respondent is the relation of respondent cannot stand for a moment." 9. I must hasten to point out that the above is a wrong summary of the pleadings and a wrong understanding of the evidence in the case. The definite case of respondents Nos. I and 4 to 7 was that the 8th respondent was related to them. The fact that originally the forefathers of respondents Nos.1 to 7 hailed from the State of Maharashtra and that a relative of the wife of R.w.1 belongs to the State of Kerala will not in any way demolish the case of rw.1. It is well-known that commercial centres like Alleppey, Cochin and Calicut in the present State of Kerala have attracted trading communities from other parts of India and even from outside. Particularly, in commodities like spices, traders from Maharashtra, Gujarat, Goa and other States are seen aplenty in places like Alleppey, Cochin and Calicut. It is well-known that commercial centres like Alleppey, Cochin and Calicut in the present State of Kerala have attracted trading communities from other parts of India and even from outside. Particularly, in commodities like spices, traders from Maharashtra, Gujarat, Goa and other States are seen aplenty in places like Alleppey, Cochin and Calicut. If only the historical perspective with its realism and impact on the conditions in the State of Kerala, particularly in a City like Calicut had been borne in mind, the Rent Controller would not have rushed to a conclusion to disbelieve the case of respondent No.1 solely on the ground that the forefathers of respondents Nos.1 to 7 hailed from Maharashtra in some distant past and the 8th respondent and his family had belonged to the State of Kerala. It may be noted that Rw.l and his family had been continuously in Kerala for not less than 25 years (even by reckoning the period from Ext. Al rent deed) and in a sense it can be said that they too 'belong to the State of Kerala'. 10. The Rent Controller's further discussion on this crucial aspect is confined to the application for and obtaining of a ration card with the present building as the residential address of the 8th respondent and his family, Ext. XI being the declaration for the ration card and Ext. X2 being the ration card itself. These documents have no particular significance when it is admitted that the 8th respondent and his family had a temporary stay with respondents Nos.l to 7. Merely because there was such a temporary stay and during such stay a ration card had been obtained for the family of the 8th res-dondent (it is very difficult to live without a ration card in times when acute scarcity in essential food articles is felt by a family), does not justify a conclusion that for that reason alone there is a sub-letting. And yet precisely such has been the approach and such the conclusion of the Rent Controller. The Rent Controller did not consider the question whether there is any evidence worth the name on behalf of the landlord on the question of sub-lease. The finding is one without any due advertence to the principles of law, as would be discussed later in this order. 11. The Rent Controller did not consider the question whether there is any evidence worth the name on behalf of the landlord on the question of sub-lease. The finding is one without any due advertence to the principles of law, as would be discussed later in this order. 11. It is the complaint of the tenants that the Rent Controller did not even consider the specific plea that the 8th respondent and his family vacated the building in November, 1977 itself. Such a plea is of crucial consequence as will be evident from the discussion on the requirements of the section, made later in this order. 12. The question of sub-lease was discussed by the Appellate Authority in Para.9. In an equally short paragraph and in an equally summary fashion, though for different reasons, the Appellate Authority concurred with the finding of the Rent Controller. After adverting to the respective pleas of the parties, the only tangible reason for the Appellate Authority to discard the plea of the tenants appears to be the inability of rw.1 to give the name of the 8th respondent's father. This is what it has said: "But in cross-examination rw.1 could not say even the name of the 8th respondent's father. If the parties were so closely related as stated by rw.1, definitely be would be in a position to say the name of the 8th respondent's father." 13. It does emerge that a finding of sub-lease is essentially rested on the inability of rw.1 in remembering the name of the father of a relative of his wife, in the course of a cross-examination to which he was subjected to. To found a case of objectionable sub-lease on such a tenuous ground, according to me, is a perverse understanding of the situation. A sub-lease with its various legal facets and legal ingredients, is certainly not to be inferred, merely from not so fecund a memory of a party or witness. The only other discussion in the appellate order centres round the issue of ration card. As stated earlier, giving undue emphasis on the ration card, (and at a time the temporary stay of the 8th respondent's family is admitted by the tenants) in entering a finding on the question of sub-lease renders the finding a perverse one. The only other discussion in the appellate order centres round the issue of ration card. As stated earlier, giving undue emphasis on the ration card, (and at a time the temporary stay of the 8th respondent's family is admitted by the tenants) in entering a finding on the question of sub-lease renders the finding a perverse one. Even when a temporary stay is arranged, the 8th respondent's family has necessarily to depend upon the public distribution system for scarce essential commodities. That the 8th respondent took steps for obtaining a ration card so as to obtain the rationed commodities cannot be put forward as a serious or clinching circumstance for a finding of sub-lease. The Appellate Authority too, appears to have missed the wood for the trees, when it failed to bear in mind the clear legal principles relating to the establishment of a plea of a sublease as understood in law. 14. As stated earlier, the Appellate Authority for the first time considered the question, regarding the plea of the contesting respondents about the vacating of the 8th respondent from the building in question. RwA the 1st respondent gave positive evidence about such vacating of the building by the 8th respondent and his family in November, 1977, and the shifting of residence to Tirurangadi. This evidence is brushed aside only for the reason that pw.1 (the clerk in the office of the landlord) had asserted that the 8th respondent continued to reside in the building even at a time of presenting the petition and during its pendency. Here again, for reasons discussed in greater detail later, the Appellate Authority did not adopt the correct approach in considering the plea of the tenants. 15. The revisional authority felt that in view of the seemingly concurrent findings, which it viewed as mere findings of fact, its limited jurisdiction under S.20 of the Act, was not attracted. There appears to have been an unfortunate omission on the part of the revisional authority in making a close examination of the legal principles as laid down by the Supreme Court and other decisions and their applicability to the facts admitted and proved in the case. 16. The clause in S.11 of the Act enabling a landlord to have eviction on the ground of sub-lease, is of an extremely restricted nature and is hedged in by various conditions, unlike other provisions furnishing grounds of eviction. 16. The clause in S.11 of the Act enabling a landlord to have eviction on the ground of sub-lease, is of an extremely restricted nature and is hedged in by various conditions, unlike other provisions furnishing grounds of eviction. The proviso to that section, which is of significance in this connection reads: "Provided that an application under this clause shall not be made for the first time in respect of one and the same tenancy unless the landlord has sent a registered notice to the tenant intimating the contravention of the said condition of the lease and the tenant has failed to terminate the transfer or the sub-lease, as the case may be, within thirty days of the receipt of the notice or the refusal thereof." (emphasis supplied) The proviso, by positive provisions, thus confers on the tenant a very valuable opportunity to retrace his steps even when he had sub-let the building without obtaining consent. A period of 30 days is given for that purpose. If the sub-tenancy has thus been terminated within the 30 days' period after the receipt of the registered notice from the landlord intimating about the objectionable sub-lease, the landlord cannot, under the Act, initiate any proceedings for the eviction of the tenant. The setting of the statutory provision thus clearly indicates that it is for the landlord to establish not only that there was an objectionable sub-lease but also that despite a demand in that behalf the tenant has been contumacious in his conduct in not reversing, within the requisite time, his erroneous step in effecting a sub-lease. S.11(4) has now received authoritative interpretation by the Supreme Court of India. Though it was contended that in the absence of an express prohibition in the lease arrangement, a sub-lease or assignment thereof by the lessee may not incur the violation of S.11 (4) (i) that contention did not find favour with the Supreme Court. In Krishnan v. Vijaya Raghavan,1980 KLT. 709, it has been held: "Read plainly and without gloss, S,11 (4) (i), simply and clearly, means that a tenant may be evicted on the ground of sub-letting unless such sub-letting is permitted by a term of the lease itself or by subsequent consent of the landlord". 17. A sub-lease, however, is not something which could be easily inferred or found, the moment some other person is found in a premises which had been leased. 17. A sub-lease, however, is not something which could be easily inferred or found, the moment some other person is found in a premises which had been leased. Whether the presence of another person, by itself amounts to possession in the eye of law or a mere licence is a matter for deep scrutiny. As observed by Somervell, L. J. in Cobb V. Lane, (1952) 1 All E. R.1199: "if all one finds is that somebody has been in occupation for an indefinite period with no special evidence of how he got there or of any arrangement being made when he went into occupation, it may be that the court will find a tenancy at will." (emphasis supplied) Later in the same judgment the learned judge observed, that the decisions in Errington v. Errington, (1952) 1 All E. R.149, and Foster v. Robinson, (1950)2 All E. R.342, and Macroft Wagons Ltd. v. Smith, (1951) 2 All E. R.271, show that "exclusive possession is not a test negativing the possibility of the occupier's being a licensee". The test of intention of the parties was held to be the decisive criterion and the weighty observation of Lord Greene in Booker v Palmer, (1942) 2 All E R.674, was quoted with approval. In the very same decision Dinning, L. J. himself posed the correct question in the following words: "The question in all these cases is one of intention: Did the circumstances and the conduct of the parties show that all that was intended was that the occupier should have a personal privilege with no interest in the land?" The same learned judge, after an exhaustive survey of the case-law on this aspect, in Errington v. Errington, referred to supra, summed up the position in the following words: "The result of all these cases is that, although a person who is let into exclusive possession is, prima facie, to be considered to be a tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy. Words alone may not suffice. Parties cannot turn a tenancy into a licence merely by calling it one. Words alone may not suffice. Parties cannot turn a tenancy into a licence merely by calling it one. But if the circumstances and the conduct of the parties show that all that was intended was that the occupier should be granted a personal privilege with no interest in the land, he will be held only to be a licensee." These principles have been succinctly summarised in the decision of the Supreme Court in Krishnavati v. Hans Raj, AIR. 1974 SC. 280: "Sub-letting like letting, is a particular type of demise of immovable property and is distinct from permissive user like that of a licensee. Sub-letting was, therefore, the principal ground on which eviction was sought. When eviction is sought on that ground it is now settled law that the onus to prove sub-letting is on the landlord. If the landlord prima facie shows that the occupant who was in exclusive possession of the premises let out for valuable consideration, it would then be for the tenant to rebut the evidence." 18. Unfortunately, the principles discussed above and the law as laid down by the Supreme Court in Krishnavati's case supra had not been in the fore of the mind of the authorities below when they decided the case.1 say this not merely for the reason that the decision of the Supreme Court had not been specifically referred to in the orders of those authorities. This court, as stated earlier, discussed a similar question and made, if I may say so with respect, observations of a very wide character, and without specifically referring to the decision of the Supreme Court referred to above, in Sreepathi Poti v. Venkitasubramania Iyer,1976 KLT. 256. The observation is to the following effect: "There has undoubtedly been a transfer of possession of a portion of the premises by the tenant, and the terms and conditions under which such a transfer was made will be known only to the transferor and the transferee and not to the landlord. It is for the tenant in such cases to establish the jural relationship as obtained between him and his transferee." 19. Perhaps, the approach of the authorities had been influenced by the wide observations in the above decision, without giving proper attention to the principles of law, particularly those which are authoritative and binding on all courts including this court as laid down in AIR. 1974 SC. 280 supra. Perhaps, the approach of the authorities had been influenced by the wide observations in the above decision, without giving proper attention to the principles of law, particularly those which are authoritative and binding on all courts including this court as laid down in AIR. 1974 SC. 280 supra. 20. It must, however, be noticed that in the case before the learned judge, the alleged sub-lessee was found to be in exclusive occupation. This is evident from the sentence occurring in Para.3 of the judgment of this court in the above case reading: "That Krishnan Nair is in exclusive occupation of the ground floor of the building in question is not disputed before me." 21. This court further found that the tenant had put forward a definite case regarding the occupation of premises by Krishnan Nair but that case has not been proved by acceptable evidence. The finding of fact in those circumstances, was not interfered with in the revision petition. In Para.4 this court observed that there was no acceptable material in that case to bold that the tenant had established facts for negativing the intention to create a lease in favour of Krishnan Nair. These observations, however, had been made in the background and setting of the fact that Krishnan Nair was found to be in exclusive occupation of the portion of the building. If exclusive occupation is not established and if the letting out is not established as one for valuable consideration, it cannot be said that there is an objectionable sub-letting as contemplated under the Act and as explained by the decision of the Supreme Court in Krishnavati v. Han's Raj, AIR. 1974 SC. 280. 22. On the basis of the principles discussed above, it appears necessary to consider the following questions: (a) Can the occupation of the 8th respondent be held to be an exclusive occupation? (b) Even if it is found to be an exclusive occupation, has it been for such an indefinite period and without any explanation of its origin and continuance? In other words, did the occupation of the 8th respondent amount to a tenancy and not a mere licence? (c) Even assuming that there was a tenancy in favour of the 8th respondent, did be not vacate the building within thirty days of the service of the registered notice demanding the termination of the sub-tenancy by the landlord? 23. In other words, did the occupation of the 8th respondent amount to a tenancy and not a mere licence? (c) Even assuming that there was a tenancy in favour of the 8th respondent, did be not vacate the building within thirty days of the service of the registered notice demanding the termination of the sub-tenancy by the landlord? 23. In as much as those salient and fundamental jurisdictional questions have not been approached or discussed in a manner enjoined by law, I am of the view that the orders of the authorities below, though seemingly and superficially concurrent, are liable to be set aside. I do so.1 direct that the matter be remitted to the Rent Controller for fresh consideration in the light of the discussions contained herein. Probably adducing of fresh evidence would be necessary, in the light of the legal principles applicable to the eviction proceedings initiated by the landlord. It is only fair that adequate opportunity for adducing such further evidence, as may be deemed necessary by the parties, is afforded to them once the case goes back to the Rent Controller for de novo consideration. The parties shall have such a further opportunity for adducing additional evidence, if any, they desire to have in substantiation of their respective cases. 24. In the light of the conclusion I have arrived at hereinbefore, I do not think it necessary to consider the other submissions relating to the dichotomy in the entrustment of the building and alleged fatality to the eviction proceedings arising out of the omission to heed to the alleged duality of the causes of action. Nor have I considered the contention about the adequacy and sufficiency of service of notice calling upon the tenants to determine the sub-tenancy in fulfilment of a statutory obligation under S.11(4). These questions are left open. The latter question particularly is one which may require very serious consideration by this court and an authoritative pronouncement. I have my reservations about the correctness of the view expressed on this question in the unreported decisions of this court referred to in the order of the revisional authority. These questions are left open. The latter question particularly is one which may require very serious consideration by this court and an authoritative pronouncement. I have my reservations about the correctness of the view expressed on this question in the unreported decisions of this court referred to in the order of the revisional authority. I have declined to consider that matter in this revision in the light of the view taken by me that the case merits a fresh consideration on the question of the satisfaction of the jurisdictional condition contained in S.11(4) (i) of the Act, on a proper application of the correct legal principles referred to earlier. 25. The revision petition is disposed of as above. There will be no order as to costs.