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2002 DIGILAW 714 (KER)

Mrs. Fathima Muhammed v. V. M. Salim

2002-11-05

J.M.JAMES, K.S.RADHAKRISHNAN

body2002
Judgment :- Radhakrishnan,J. Tenant is the revision petitioner. Eviction was sought for under section 11(3) of the Kerala Buildings (Lease & Rent Control) Act 2 of 1965 (hereinafter called the Rent Control Act). Plea under section 11(3) was upheld by both the Rent Control Court as well as the Appellate Authority. Tenant is challenging those orders under section 20 of the Rent Control Act. We may examine the legality, regularity and propriety of the orders passed by the courts below. The jurisdiction of the revision Authority to interfere with finding of fact is limited to cases where the impugned order is perverse or arbitrary in the sense that, on the basis of the evidence on record, no reasonable tribunal would have come to such a decision; or the decision was rendered on the basis of irrelevant consideration; or that it was unsupported by any evidence whatever. Reference may be made to the recent decision of the Apex Court in N.Prabhakar Rao v. J.R.Ramesh Kumar, 2002(1) SCC 176. The circumstances under which the landlord has purchased the tenanted premises by Ext.A1 sale deed dated 30.9.1995 from the prior owner is of considerable importance in this case. The tenant maintained the stand that it is a sham transaction and the original landlord shall continue to be the landlord. It was contended Ext.A1 was created with the sole purpose of evicting the tenant. 2. Petitioner before the Rent Control Court purchased the schedule premises under sale deed No.4756/95 dated 30.9.95 of the Ernakulam Sub Registry. The same was communicated to the respondents by letter dated 23-11-1995. The shop room in question was rented out by the prior owner to the predecessor of the respondent, viz. one Muhammed on 1-8-1958. He passed away on 15-8-1994 and the respondents are his legal heirs. Respondents 1 and 2 are the widows of late Muhammed and respondents 3 to 13 are his children. Petitioner purchased the building as per sale deed No.4756/95 and issued lawyer notice to the tenant to vacate the premises on the plea that he wanted to conduct a fast food and cool bar business in the tenanted premises. Tenant replied challenging the bonafides of the plea. Petitioner purchased the building as per sale deed No.4756/95 and issued lawyer notice to the tenant to vacate the premises on the plea that he wanted to conduct a fast food and cool bar business in the tenanted premises. Tenant replied challenging the bonafides of the plea. In the rent control petition landlord stated as follows: “Petitioner is the absolute owner of the building scheduled hereunder having purchased the same as per sale deed No.4756/1995 of S.R.O. Ernakulam dated 30/9/1995 from the previous owner Sri.Ranjit S/0 John, Cherady House, Convent Road, Ernakulam. The said fact has been communicated to the respondents by registered letter dated 23-11-1995. The said shop room building was rented out to Sri. B.K. Muhammed, Bavarparambil on 1-8-1958. He died on 15-8-1994. The respondents are his legal heirs. The respondents 1 and 2 are his widows and 3 to 13 are his children. After the sale of the building to the petitioner the rent is paid to him. The petitioner has no business of his own. The petitioner has purchased the petition schedule building for the purpose of doing Fast Food and Cool Bar business. The petitioner has told the respondents about this. But the building is not vacated so far. Petitioner has no other building of his own in possession in Ernakulam for doing the business. The respondents have other rooms in their possession and other rooms are also available in the locality. They have other sources of income.” Written statement was filed by R1,R5 and R6 stating as follows: “The predecessor of these respondents was conducting a tailoring shop in the said building since 1954. After his demise, respondents 5 and 6 are conducting the tailoring business in the said shop room and the income derived from the business is the only source of livelihood of these respondents and their family members, including other respondents in the above case. …… The petitioner has many business in Ernakulam as well as in Aluva. It is utter false to state that the petitioner has purchased the petition schedule building for the purpose of doing fast food and cool drinks business. The alleged need made out in the petition has no iota of bonafides. Moreover, there is no scope for the fast food business in the locality in which the petition schedule building situates and also the said room having nearly 300 sq. ft. The alleged need made out in the petition has no iota of bonafides. Moreover, there is no scope for the fast food business in the locality in which the petition schedule building situates and also the said room having nearly 300 sq. ft. area is not at all sufficient and suitable to conduct the alleged business. The need alleged is only a ruse to evict these respondents by one way or the other. The very purchase of the petition schedule building by the petitioner is with an intention to help the prior owner Sri.Ranjith to get the building evicted as the prior owner of the main building in which the petition schedule is only a small portion failed in his attempt to evict the respondents from the said building. So the transfer of the shop room to the petitioner is as a result of collusion between the petitioner and the prior owner and which itself is a ruse to evict these respondents and other legal heirs of late Mohammed ... This petition is a continuation of harassment tactics played by the prior owner Mr.Ranjith, who is bend upon to get the building evicted by any hook and crook. The respondents submit that the petitioner is only a proxie of the prior owner who miserably failed in his attempt to evict these respondents as aforesaid …. The main building is still in the ownership of Sri.Ranjith and as already submitted, only the petition schedule building having less than 300 sq. ft. is sold to the petitioner by the prior landlord for a meagre price which itself clearly shows that the intention of the prior owner in selling the property to the petitioner is obvious and in collusion with the petitioner. Therefore, the need put forward by the petitioner is malafide and is a continuation of harassment scheme introduced by the prior owner to get the building evicted by one pretext or another.” (emphasis added) A specific plea was raised by the tenant before the courts below that Ext.A1 is a sham document, a paper transaction with an attempt to evict the tenant. Facts would reveal that Sri.Ranjith on the basis of A1 document sold the tenanted premises alone to the petitioner herein by name V.M.Saleem for a sale consideration of Rs.11,000/-. The petition schedule building is having 300 sq. ft. situated in the heart of Cochin City. Facts would reveal that Sri.Ranjith on the basis of A1 document sold the tenanted premises alone to the petitioner herein by name V.M.Saleem for a sale consideration of Rs.11,000/-. The petition schedule building is having 300 sq. ft. situated in the heart of Cochin City. Appellate Authority has also specifically noted that the petition schedule building is situated in the heart of city of Ernakulam. Facts would reveal that Ranjit, the original landlord is still having ownership and possession of the entire building. There was prior litigation between the predecessor in interest of the tenants and Ranjith. He has now sold away the tenanted premises alone by Ext.A1 dated 13-9-1995. The sale was effected for Rs.11,000/-. Considering the commercial importance of the locality where the petition schedule property is situated and that the sale consideration is surprisingly low we feel that the circumstances under which A1 was executed require further probe. Petitioner is not a relative of Ranjith, so as to sell away the tenanted premises out of love and affection. Tenant’s specific case was that the petitioner is a friend of Ranjith and the attempt is to evict the tenant. 3. In this connection we may refer to the decision of the Apex Court in Devidas V. Mohan Lal, AIR 1982 SC 1213 wherein a contention was raised by the tenant that the proceedings for ejectment was initiated after purchasing the tenanted premises through a paper transaction. Not much importance was given by the courts below to the contention raised by the tenant and a concurrent finding was rendered upholding the plea of the landlord. Apex Court interfered with the concurrent findings and remitted the matter back to the trial court stating as follows: “An allegation had been made that in reality there was no sale and the sale deed was a paper transaction. The court had to record a finding on this point. The appellate authority however, did not permit counsel for the tenant to refer to evidence adduced on this aspect of the matter. The High Court also did not advert to it. The court had to record a finding on this point. The appellate authority however, did not permit counsel for the tenant to refer to evidence adduced on this aspect of the matter. The High Court also did not advert to it. We therefore, allow this appeal, set aside the decree for eviction and remit the case to the trial court to record a finding on the question whether the sale of the building to respondent Mohan Lal was a bona fide transaction upon the evidence on record.” Landlord has no explanation as to how he has purchased the building at a price which cannot be thought of in that commercial area of Cochin City. Both the Rent Control Court and Appellate Authority have failed to consider this important aspect which is a sine qua non to determine the bonafides under section 11(3). 4. We therefore set aside the findings of both the courts and remit the matter back to the Rent Control Court to examine whether Ext.A1 is a sham transaction or not. We do not find any reason to upset the other findings rendered by the courts below. Needless to say, the eviction of the tenant would depend upon the finding of the Rent Control Court on the above question. If the authorities below find that A1 is a sham document needless to say, the other findings made by the courts below will have no legal effect or else, the orders of courts below would stand. CRP is allowed as above. We permit the parties to adduce further evidence on the question remanded. Rent Control Court will finally dispose of the matter within a period of four months from the date of receipt of a copy of this order.