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2003 DIGILAW 261 (KER)

Sasi v. Pyapsy Victor

2003-03-31

K.K.DENESAN, S.SANKARASUBBAN

body2003
Judgment :- 1. This Civil Revision Petition has been filed against the judgment in R.C.A. No.37 of 1999 of the Rent Control Appellate Authority, Kollam, which in turn arose from the order of the Rent Control Court, Kollam in R.C. (OP) No. 76 of 1997. The Rent Control Petition was filed by the landlady for the eviction of the tenant on the ground of arrears of rent and for bona fide need for own occupation. The ground under S.11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as "the Act") has been confirmed by the Appellate Court. Even though in this revision, the attack is made against the order under S.11(2)(b) of the Act, we don't find anything to interfere in the order of the court below. 2. The main argument made is against the order of eviction under S.11(3) of the Act. The case of the landlady is that she and her family are residing in brother's house "Roopakala" and there is no sufficient space there. The petition schedule building is a building belonging to the landlady. It has become old and dilapidated. She wants to demolish the building and put up a new building for her residential purpose and business. This was denied by the tenant. The tenant contended that as a matter of fact, the landlady was residing at Roopakala. The need urged is not bona fide. Further, it is stated that she is employed in Trivandrum along with her husband, who is also employed in Trivandrum. Their children are also studying at Trivandrum. 3. On behalf of the landlady, Exts. Al to A7 were marked. Exts. B1 to B3 were filed on behalf of the tenant. PWs.1 and 2 were examined on the side of the landlady, while CPWs 1 and 2 were examined on the side of the tenant. 4. The main thrust of the argument is that since the landlady is in Trivandrum, there is no likelihood of her coming and residing in Kollam. We don't think, that argument can be accepted. It is true that for employment sake, the landlady is now at Trivandrum. But that does not mean that she cannot construct a house for her own bona fide purpose. After all, a person has got affinity towards the place where he/she is born. Family house is something which is treasured. We don't think, that argument can be accepted. It is true that for employment sake, the landlady is now at Trivandrum. But that does not mean that she cannot construct a house for her own bona fide purpose. After all, a person has got affinity towards the place where he/she is born. Family house is something which is treasured. A house other than family house is not permanent one. But that does not mean that a person cannot construct a building at a place away from the family house. Hence, we don't approve the argument. Another argument taken by the tenant is that what the landlady wants is to demolish the building and in that place another building is to be constructed. Learned counsel for the tenant cited before us a decision of this Court reported in Ikkokakutty v. Hariharan,1973 KLT 986, wherein it was held thus: "Where virtually the petition amounts to one for recovery of the site on which the building is situated, inasmuch as the landlord's case is that he wants to demolish the existing building and put up a new building for a specific use, the bona fide need of the landlord has to be tested from an angle different from that of the case in which recovery of possession sought for is that of the building itself. The section in terms contemplates only recovery of the building for his own occupation. The effect of the first proviso to sub-s. (3) of S.11 has also to be construed when the petition in essence amounts to one for recovery of the site alone. Here when the prayer is virtually for recovery of the site, by the analogy of the provisions contained in the first proviso to sub-s. (3) of S.11 the Court should necessarily go into the question whether the landlord is possessed of other site where he could construct the building. If he is possessed of another site, he cannot claim recovery of the building in order to secure the site thereof for the purpose of erecting another building. The assumption that the landlord has any such unfettered choice in the matter will defeat the very object of the protective measure". The argument is that the tenant is in occupation of a small portion of the site and hence without even evicting the tenant, in the rest of the site, a building can be constructed. The assumption that the landlord has any such unfettered choice in the matter will defeat the very object of the protective measure". The argument is that the tenant is in occupation of a small portion of the site and hence without even evicting the tenant, in the rest of the site, a building can be constructed. In the decision reported in Sarada & Ors. v. M.K. Kumaran,1969 KLT 133, a learned Single Judge of this Court held as follows: "Under S.11(3) a bona fide need of the landlord need not be of the identical building as the purpose of the occupation is immaterial. If occupation by the landlord in the re-constructed building after demolishing the existing building is sufficient ground within the meaning of S.11(3) the question would arise whether the need to provide a passage through the site on which the original structure stood after its demolition will attract S.11(3). The word 'occupation' does not necessarily refer to occupation as residence. An answer can occupy a place by making use of it in any manner. The fact that the pathway is intended for the customers of the landlord to go to the lodging house and a restaurant belonging to him does not mean that the landlord will not be in occupation of the same. The term 'building' generally, though not always, implies the idea of a habitation for the permanent use of man, or an erection connected with his permanent use. It imports tangibility, and may include the land on which it stands, as well as adjacent land. The definition of the term building under the Act is not precise and an exhaustive definition of the term is also not possible. The meaning of the word "building" in ordinary language, comprises not only the fabric of the building, but the land upon which it stands". Learned Judge relied on the decisions reported in P.A. Mohammed Kannu v. H.A. Asanar Kunju,1965 (1) KLR 323, R.P. Mehta v. I.A. Sheth, AIR 1964 SC 1676, etc. The decision reported in Ikkokakutty v. Hariharan,1973 KLT 986 does not refer to those decisions. We are also of the view that the building includes the land on which the building stands and hence, the recovery of the site of the building for the purpose of new construction cannot be said to be not coming within the meaning of S.11(3) of the Act. We are also of the view that the building includes the land on which the building stands and hence, the recovery of the site of the building for the purpose of new construction cannot be said to be not coming within the meaning of S.11(3) of the Act. Further, in this case, the argument made is that the petitioner occupies only a portion of the site. In the above view of the matter, we find that the orders passed by the courts below are correct. Civil Revision Petition is dismissed. We grant four months' time to the tenant to vacate the premises on the condition that the tenant files an undertaking before the trial court within three weeks from today that he will vacate the building on the expiry of the fourth month and that he will also pay the rent uptodate. If such an undertaking is not filed as stipulated above, then the landlady will be entitled to recover possession of the building through court.