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2004 DIGILAW 408 (KER)

A. K. Muhammed v. Aravindakshan Nair

2004-08-23

J.M.JAMES, K.S.RADHAKRISHNAN

body2004
Judgment :- Radhakrishnan, J. The question of maintainability of the suit, O.S.No.470 of 1993 as well as R.C.P. No.33 of 1993 was simultaneously urged by the defendants-tenants before the civil Court as well as before the Rent Control Court. The landlord placed reliance on the decision of a Division Bench of this court in Kalpakam Amma v. Muthurama Iyer(1994 (2) KLT 424) and contended that lease of the building would take in the site also. The Division Bench in the above decision held that site continues as part of the building and unless and until the site is also destroyed, there cannot be any termination of lease. The court held the principle regarding the automatic termination of tenancy cannot be applied if the site where the structure stood is in existence. The above decision of the Division Bench was subsequently overruled by the apex court in Vannattakandy Ibravi v. Kunhabdulla Hajee (AIR 2003 S.C.4453), wherein the court held as follows: “We are, therefore, of the view that the interpretation put by the Kerala High Court of Sec. 2(1) for holding that the words “part of a building” means the land on which the building has been constructed is not correct. The provisions of the State Rent Act clearly show that the State Rent Act is self contained Act and the rights and liabilities of the landlord and tenant are determined by the provisions contained therein and not by the provisions of the Transfer of Property Act or any other law. The rights of a landlord under the general law are substantially curtailed by the provisions of the State Rent Act as the Act is designed to confer benefit to tenants by providing accommodation and to protect them from unreasonable eviction. In the present case what we find is that the subject matter of tenancy was the shop room which was completely destroyed on account of accidental fire and it was not possible for the tenant to use the shop for which he took the shop on rent. After the shop was destroyed the tenant, without consent or permission of the landlord, cannot put up a new construction on the site where the old structure stood. After the shop was destroyed the tenant, without consent or permission of the landlord, cannot put up a new construction on the site where the old structure stood. If it is held that despite the destruction of the shop tenancy over the vacant land continued unless the tenant exercises his opinion under Sec. 108(B) (e) of the Act the situation that emerges is that the tenant would continue as a tenant of a non existing building and liable to pay rent to the landlord when he is unable to use the shop. The tenancy of the shop, which was let out, was a super structure and what is protected by the State Rent Act is the occupation of the tenant in the super structure. If the argument of appellant’s counsel is accepted then it would mean that although the tenant on the destruction of the shop cannot put up a new structure on the old site still he would continue to squat on the vacant land. Under such situation it is difficult to hold that the tenancy is not extinguished on the total destruction of the premises governed by the State Rent Act.” The principle laid down by the apex court in the above decision would apply to the facts of this case, since it has been established on evidence that smoke house has been constructed with the permission of the landlord, and that the same is still existing and the tenants are using the smoke house for conducting the saw mill. Once it is shown on evidence that the superstructure exists in the leasehold premises the tenancy subsists and a petition for eviction of the building would be maintainable. Only if the superstructure is completely lost, petition for eviction would not be maintainable and the remedy open to the landlord is not under the Rent Control Act but through the civil suit. So far as this case is concerned, lease still subsists and rent control petition is perfectly maintainable. 2. Landlords to be on the safer side invoked the jurisdiction of the civil court as well as the Rent Control Court. Landlords preferred O.S.No.470 of 1993 for mandatory injunction for recovery of possession of the plaint schedule property, and for prohibitory injunction and claiming damages. O.S.No.166 of 1994 was also filed by the landlord for permanent injunction and mandatory injunction. Landlords to be on the safer side invoked the jurisdiction of the civil court as well as the Rent Control Court. Landlords preferred O.S.No.470 of 1993 for mandatory injunction for recovery of possession of the plaint schedule property, and for prohibitory injunction and claiming damages. O.S.No.166 of 1994 was also filed by the landlord for permanent injunction and mandatory injunction. Considering the oral and documentary evidence, the civil court came to the conclusion that since there is no termination of lease the proper remedy for recovery of plaint schedule property is by invoking the jurisdiction of the Rent Control Court. Consequently it was held that plaintiffs are not entitled to recovery of possession of plaint schedule property by filing O.S. No.470 of 1993. Aggrieved by the said judgment, landlords preferred A.S.No. 268 of 1995. Landlords have also filed R.C.P. No.33 of 1993 for eviction of the premises under Sec.11 (3) of Act 2 of 1965. Though the rent control petition was filed by five persons the need urged is only for three of the petitioners. All the petitioners to the rent control petition are co-owners and are entitled to get the benefit of the order of eviction in respect of the entire building. It is stated in the rent control petition that the first petitioner required the building for the purpose of conducting an automobile workshop since he has no other source of income. He has also no other building of his own for his residence. Fourth petitioner has a son and daughter and they are depending upon him. They have to be provided with residential accommodation and for that purpose also the building is required. Tenant resisted the petition contending that there is no bonafides in the plea and the attempt of the landlords is only a ruse to evict him. He also claimed the benefit of the second proviso to Sec. 11(3). On the side of the landlord Exts. A1 to A41 documents were produced. First petitioner was examined as P.W.1. Fourth petitioner was examined as P.W.2. Third petitioner was examined as P.W.3 P.W.6 was also examined. First respondent before the Rent Control Court was examined as R.W.1. R.W.2 was also examined on the side of the tenant. Documents marked as Exts. B1 to B4 were produced. Ext.C1 is the commission report and C1(a) is the plan. 3. Fourth petitioner was examined as P.W.2. Third petitioner was examined as P.W.3 P.W.6 was also examined. First respondent before the Rent Control Court was examined as R.W.1. R.W.2 was also examined on the side of the tenant. Documents marked as Exts. B1 to B4 were produced. Ext.C1 is the commission report and C1(a) is the plan. 3. On going through the oral and documentary evidence both the Rent Control Court and the Appellate Court concurrently found that the need urged by the petitioners-landlords is genuine and bonafide. We are of the view, no evidence was adduced by the tenant to dispute the bonafide need urged by the landlords. Landlords have asserted that they have no other source of income and no other occupation. In the absence of any independent evidence, we are of the view that the landlords have established their bonafide need. Tenant could defeat the rights of the landlords only under the first proviso to Sec. 11(3) for which no evidence was adduced. With regard to the second proviso to Sec. 11(3) no independent evidence was adduced. A Full Bench of this court in Francis v. Sreedevi Varassiyar (2003 (2) KLT 230) has held that burden is entirely on the tenant to establish both the limbs of the second proviso to Sec. 11(3). Rent Control Court as well as the Appellate Authority have concurrently found that the tenant has not discharged the burden. No independent evidence has been adduced by the tenant to hold that the tenant is entitled to get the benefit of both the limbs of the second proviso to Sec. 11(3). We are therefore in agreement with the Rent Control Court and the Appellate Authority that the tenant is not entitled to the benefit of the second proviso to Sec. 11(3) of the Act. 4. In such circumstances, the revision petition lacks merits and it is dismissed. Since we are dismissing the revision petition no orders are necessary in A.S.No. 268 of 1995. 4. In such circumstances, the revision petition lacks merits and it is dismissed. Since we are dismissing the revision petition no orders are necessary in A.S.No. 268 of 1995. The same is also disposed of accordingly considering the facts and circumstances of the case we are inclined to give time to the tenant upto 31.01.2005 for vacating the premises on condition that the tenant should file an undertaking in the form of an affidavit before the Rent Control Court within one month from today that he would vacate the premises within the aforesaid time and would pay arrears of rent, if any, and future rent. In the facts and circumstances of the case, parties shall bear their respective costs in this proceeding.