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2000 DIGILAW 346 (KER)

Jess Raphel v. Regina Joseph

2000-07-06

D.SREEDEVI, P.K.IYER BALASUBRAMANYAN

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ORDER 1. This revision arises out of the common judgment in R. C. a. Nos. 118/95 and 1/96 of Rent Control Appellate Authority and III Addl. District Court, Ernakulam. The tenant is the petitioner. 2. Smt. K. L. Regina Joseph, landlady of the petition schedule building, filed R. C. P. No. 37/94 before the Addl. Munsiff and Rent Control Court, Ernakulam under S.11(2), 11(3) and 11(4) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as the Act) against Dr. Jess Raphel. It is alleged in the petition that the building was let out to the respondent for his residential purpose on a monthly rent of Rs. 800/- as per agreement dated 20-4-1971. It is also alleged that the respondent had defaulted payment of rent from May, 1977 and that the petitioner needs the building bona fide for her own occupation and for the occupation of her married sons and their families. It is also alleged that the respondent has another building in his possession in the Cochin city, reasonably sufficient for his requirements. Yet another allegation is that contrary to the terms of the lease deed the respondent has made additional construction and effected structural alterations, which materially reduced the value and utility of the building. 3. The respondent resisted the petition for eviction on the ground that the petitioner has not given the material particulars as required under S.27 and R.12 of the Act. He has also contended that he has taken the building not for residential purpose but for running a nursing home. Fair rent of the building has been fixed at Rs. 400/- per month in R.C.P. No. 41/77 and the said order has become final. He denies all the grounds mentioned in the petition for eviction. 4. The learned Rent Controller, after taking evidence, allowed the application holding that the respondent is in arrears of rent and that he is in possession of a building reasonably sufficient for his requirement in the same city, in which the petition schedule building is situated. The court also held that there was no unauthorised alteration of the building by the tenant. The claim for bona fide own use was also found against the petitioner. Aggrieved by the said finding of the Rent Controller the landlady filed R. C. A. No. 1/96 and the tenant filed R. C. A. No. 118/95. 5. The court also held that there was no unauthorised alteration of the building by the tenant. The claim for bona fide own use was also found against the petitioner. Aggrieved by the said finding of the Rent Controller the landlady filed R. C. A. No. 1/96 and the tenant filed R. C. A. No. 118/95. 5. Both the above cases were heard together and a common judgment was passed by the Appellate Authority on 22-6-1999. The appellate authority dismissed the appeal filed by the landlady as the same was not pressed. The order granting eviction under S.11(4)(iii) of the Act was confirmed. The tenant was ordered to put the landlady in vacant possession of the petition schedule building within six months from the date of the judgment. Aggrieved by the said judgment of the appellate authority this revision petition has been filed by the tenant. 6. Heard both sides. 7. Mr. John K. George, learned counsel for the petitioner, submitted that there is no legal evidence on record to order eviction under S.11(4)(iii) of the Act. The main argument advanced by the learned counsel for the petitioner is that the finding that the tenant is in possession of another building in the city, where the petition schedule building is situated, and is reasonably sufficient for his requirement is not correct. The case of the landlady is that the tenant is in possession and enjoyment of another building in the same city, where the petition schedule building is situated, that he has acquired the said building as per the will executed by his mother and that the said will has come into force as the mother is now no more. The tenant denied the said statement. To prove that the tenant is in possession of the said building the learned counsel invited our attention to the cross examination of the tenant. He has admitted that he has came into possession of the building before the death of his mother. 8. But, it is contended that his sisters questioned the will and filed a suit and hence he entered into an agreement with his sisters and agreed to pay Rs. 50,000/- each to them. The sisters agreed to sell the building and accordingly he entered into an agreement with one N. D. Joy for sale of the building for Rs. 11,00,000/- and that is proved by Ext. B6. 50,000/- each to them. The sisters agreed to sell the building and accordingly he entered into an agreement with one N. D. Joy for sale of the building for Rs. 11,00,000/- and that is proved by Ext. B6. But the sale did not take place. Therefore, he sold the building to one Viswanathan Nair as per Ext. B7 agreement dated 24-1-1995. It is submitted that he gave Rs. 50,000/- each to his sisters and as per the agreement he purchased their right and the key of the building was surrendered. But, the sale deed could not be executed because of the order of injunction issued against him by the court in the suit filed by his sisters. A suit was also filed against him for specific performance by N. D. Joy. At present there is nothing to show that he has transferred the building bearing Door No. 45/ 618 to Viswanathan Nair. 9. Learned appellate authority has stated that when the commissioner visited the building, the keys were produced before the commissioner by the respondent tenant. The court below on a close scrutiny of the oral and documentary evidence, came to the conclusion that the tenant is in possession of another building. We carefully went through the records. We do not find any reason to upset the said finding. 10. The next question to be looked into is whether the scheduled building was let out for running a nursing home or for residential purpose. The rent deed does not make mention of any purpose. Ext. B1 is the judgment in O. S. 45/77 and R. C. P. 115/77. There the tenant contended that the building was let out for running a nursing home. This was upheld by the learned Munsiff which was confirmed by the Supreme Court. Therefore, the landlady is estopped from contending that the building was let out for residential purpose. So our conclusion is that the building was let out for running a nursing home. 11. As the tenant was found to be in possession of another building of his own, the next question that arises for consideration is whether that building is reasonably sufficient for running a nursing home. The appellate court issued a commission, who filed Exts. C1 and C2 reports. From Ext. C2, it is seen that the petition schedule building was used by the tenant for residence. The appellate court issued a commission, who filed Exts. C1 and C2 reports. From Ext. C2, it is seen that the petition schedule building was used by the tenant for residence. At the time when the commissioner visited the petition schedule building, there was no patient. She has seen in the building eight cots made of steel and some tables and chairs. The commissioner could see one room being used for consultation. The learned counsel for the tenant submitted that as he was hospitalised in pursuance of a motor accident, he could not conduct the nursing home for sometime. From the report it can be seen that he was conducting a nursing home in the said building. Now there arises another question whether the building in the possession of the tenant is reasonably sufficient to do his business, ie. running a nursing home. 12. The building bearing Door No. 45/618 is situated 2.5 km. away from the petition schedule building and behind the Lourd's Hospital which is situated near Pachalam Junction. That building has road frontage on the eastern and southern sides. The building has a plinth area of 1983.31 ft. There are five bed rooms measuring 12ft. x 12ft. and 13.9'x 12', three bath rooms, one hall measuring 25 ft x 17 ft., one sitting room measuring 28.8 ft. x 18 ft and one kitchen measuring 24 ft. x 8.7 ft. The Commissioner has reported that the alternate building has been lying unoccupied without any maintenance. It is submitted that the building in his possession is not suitable for running a nursing home as it is on the back of the Lourd's Hospital, where he will not get patients. If he is an expert in the field, there may not be any difficulty for getting patients. He can effect repairs and if necessary he can construct temporary sheds as done in the petition schedule building for the purpose of his practice. Whether the building is reasonably sufficient or not is a matter to be proved by the tenant for which he has not adduced any evidence. 13. It is submitted for the landlady that the burden to prove that the alternate building is not reasonably sufficient for his requirement is on the tenant. Whether the building is reasonably sufficient or not is a matter to be proved by the tenant for which he has not adduced any evidence. 13. It is submitted for the landlady that the burden to prove that the alternate building is not reasonably sufficient for his requirement is on the tenant. In support of his argument the learned counsel relied on the decisions reported in Chacko v. Koothattukulam K. S. Sangham (1986 KLT SN 51) and K.C.M.S. Society Ltd. v. Ganapathy Kamath ( 1995 (1) KLT 681 ). When it is established by evidence that the tenant is in possession of another building, the burden is on the tenant to establish that it is not reasonably sufficient for his requirement. To discharge the said burden, the tenant has not adduced any evidence. Therefore, the finding of the learned Judge that the alternate building in the possession of the tenant is sufficient for his requirement is legal and proper. 14. We carefully went through the evidence and also the judgment of the appellate authority. We do not find any reason to disturb the finding that the landlady failed to establish that the building is required for her own occupation. In the result, this revision petition is dismissed. The tenant is directed to put the landlady in vacant possession of the petition schedule building within six months from today.