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2010 DIGILAW 662 (KER)

ABOOBACKER A. K. v. PUTHIYAVEETTILL NARAYANAN

2010-08-31

P.S.GOPINATHAN, PIUS C.KURIAKOSE

body2010
JUDGMENT : P.S. Gopinathan, J. 1. The building scheduled in RCP 123/97 on the file of the Rent Controller (Munsif), Thalassery is belonging to the revision Petitioner. By Ext. Al kychit dated 07/02/1984, the building was let out to the Respondent for a monthly rent of Rs. 40. It was subsequently enhanced to Rs. 70. While so, the revision Petitioner filed the petition before the Rent Controller seeking an order of eviction u/s 11(4)(ii) and Section 11(4)(v) of the Kerala Building (Lease and Rent Control) Act, 1965, hereinafter referred to as the "Act". It was alleged that the Respondent ceased to occupy the petition schedule building and it was kept closed for about two years and that since it was kept closed, there is every chance of attack by white ants thereby damaging the building. So, according to the revision Petitioner, the Respondent was using the building in such a manner so as to reduce its value and utility materially and permanently. 2. Petition was objected by the Respondent. Both count of allegation were denied by the Respondent and contended that the building was used for storing the spare parts of the bus and no damage was caused at all. Neither is there any cessation to occupy. Enquiry was conducted. During the course of enquiry, the revision Petitioner and an advocate commissioner, who inspected the building, were examined as P Ws 1 and 2. On his side, Ext. A1 kychit and Ext. C1 report were marked. The Respondent was examined as RW 1. On his side Exts. B1 and B2, photo copies of two registration certificates in respect of two stage carriage vehicles were marked. On appraisal of the materials disclosed during the enquiry, the learned Rent Controller arrived at a conclusion that the Respondent ceased to occupy the building for more than six months. Instead his son had been keeping some spare parts of the bus in the petition schedule building. Consequently, the Kent Controller declined eviction sought u/s 11(4)(ii) of the Act and ordered the Respondent to surrender the possession of the petition schedule building u/s 11(4)(v). 3. Being aggrieved, the Respondent tenant took up the matter before the Appellate Authority. The Appellate Authority arrived at a conclusion that keeping of certain articles belonging to the son of the Respondent and payment of rent regularly would amount to occupation by the tenant. 3. Being aggrieved, the Respondent tenant took up the matter before the Appellate Authority. The Appellate Authority arrived at a conclusion that keeping of certain articles belonging to the son of the Respondent and payment of rent regularly would amount to occupation by the tenant. Consequently, the appeal was allowed and the order of eviction u/s 11(4)(v) was vacated and RCP was dismissed. Assailing the legality, correctness and propriety of the above judgment, this revision petition was preferred by the landlord Petitioner. 4. We heard the learned Counsel for the revision Petitioner as well as the Respondent. From the evidence of RW 1 it is disclosed that the Respondent was doing business in coconuts and building was taken on rent by the Respondent for storing coconuts. At that time there was no road access to his house and so the Respondent could not take the coconuts to his house for storing. It is in that circumstance the building was taken on lease, Subsequently he had got road access to his house and had been storing the coconut and doing business at his residence itself and the building is not required by the Respondent. But the son of the Respondent, as evidenced by Exts. B1 and B2, had purchased two 'buses and certain spare parts of the buses were alleged to have been stored in the petition schedule building. 5. On application by the revision Petitioner, PW 2 was appointed as the Commissioner. PW 2 inspected the premises on 26/08/1997, 08/09/1997 and 24/09/1997. On earlier two occasions, the building was kept closed even without a lock. However, the room was not opened and it is not known as to whether any material belonging to the Respondent was kept inside. From the fact that the room was not locked, it is inferable that no valuables were kept or stored inside the room at that time. On the third occasion, when the notice of inspection was given, the son of the Respondent opened the petition schedule building and certain spare parts, tyre etc. were seen kept stored there. Though the Respondent has a case that he had financially assisted his son to purchase Exts. On the third occasion, when the notice of inspection was given, the son of the Respondent opened the petition schedule building and certain spare parts, tyre etc. were seen kept stored there. Though the Respondent has a case that he had financially assisted his son to purchase Exts. B1 and B2 buses, there is no case that the Respondent has any share in the fleet service or that the storing of spare parts in the lease hold is the requirement of the Respondent or that the son of the Respondent has no other place to store the spare parts. There is also no case that the son is dependent on him or that the son is his agent or even that fleet operation is a family business or that the Respondent would get any share of profit out of the fleet service. In this set of facts, the ground reality is that the building is not required for the Respondent, but his son is storing certain spare parts of the buses belonging to the son. It can be safely concluded that the Respondent is not using the building for his need. This being the evidence on record, the question that arises for consideration is whether the presence of certain belongings of the son of the Respondent in the petition schedule building would disentitle the revision Petitioner to get an order of eviction u/s 11(4)(v). For correct appraisal, a reading of Section 11(4)(v) would be relevant. Section 11(4) - A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building. Section 11(4)(i), (ii), (iii) and (iv) - (omitted as not relevant). (v) - If the tenant ceases to occupy the building continuously for six months without reasonable cause. 6. Going by the above provision, it can be seen that the occupation in the very words of the Legislature is the occupation by the tenant and not by anyone else. Therefore, on a plain reading of Section 11(4)(v), we have to answer the issue in favour of the revision Petitioner. In the given set of facts stated above, we are unable to have a different interpretation. Therefore, on a plain reading of Section 11(4)(v), we have to answer the issue in favour of the revision Petitioner. In the given set of facts stated above, we are unable to have a different interpretation. The occupation of the leasehold by the son of the lessee who is financially and otherwise independent cannot be held as occupation of the leasehold by the lessee or even on behalf of the lessee. The learned Counsel for the Respondent advanced a contention that the occupation of the son with his belongings also would tantamount to occupation of the petition schedule building and so the revision Petitioner is not entitled to an order of eviction u/s 11(4)(v). In support of the argument, the learned Counsel relied up on a decision in Sreekumar Vs. Parameswaran, wherein at paragraph 8 it is held as follows: In all cases where a person other than a tenant is in possession of the building, it can be contended that the tenant has ceased to occupy the building continuously for six months. But we are of opinion that the intention of the Legislature in providing Section 11(4)(v) in the Statute was not to take care of such contingencies. For satisfying Section 11(4)(v), there must be cessation of the occupation of the building for six months without reasonable cause. If the building is occupied by a sub-tenant, it cannot be said that there is cessation of occupation of the building. 7. Referring to the above ruling, the learned Counsel for Respondent argued that, here in this case, the revision Petitioner has no case that there is sub-lease. According to the learned Counsel, so long as there is no case of sub-lease, the possession of the son of the Respondent is to be treated as possession by the Respondent and in that circumstance, it could not be said that there is cessation of occupation. We are unable to accept the proposition that when a person other than a tenant is in possession of the leasehold and where there is no case of sub-lease, the possession of that third person is to be treated as possession by the tenant. 8. On the other hand, learned Counsel for the revision Petitioner canvassed our attention to the decisions reported in Rajagopalan v. Gopalan 2004 (1) KLT 70, Simon v. Rappai 2008 (3) KLT 121 and Bhargavi Amma v. Stephen 1979 KLT 2. 8. On the other hand, learned Counsel for the revision Petitioner canvassed our attention to the decisions reported in Rajagopalan v. Gopalan 2004 (1) KLT 70, Simon v. Rappai 2008 (3) KLT 121 and Bhargavi Amma v. Stephen 1979 KLT 2. In Rajagopalan's case it is held by one of us (P.C.K. (J)) as follows: But in cases pertaining to commercial building like the present one let out for business purpose, if it is seen that no business is being carried on in the premises and that the premises are remaining closed, there will be justification to presume that there has been cessation of occupation. 9. In Simon's case (supra), at page 127 it is held as follows: The word "possession" means holding of such possession, animus possidendi, means, the intention to exclude other persons. The word "occupy" has to be given a meaning so as to hold that the tenant is actually using the premises and not mere physical presence or possession. 10. In Bhargavi Amma's case (supra), it is held as follows: The fact that some of the belongings of the tenant are kept in the building by itself is not sufficient to show that the building is being used. If the building has been let out only to store or keep certain things the fact that the building remains closed may not be of any relevance to see whether the tenant has ceased to occupy or not. 11. The above ruling also fortify our conclusion that me occupation of the tenant means physical possession by the tenant and that mere presence of certain belongings of the tenant or that of the son of the tenant would not tantamount to occupation as contemplated by Section 11(4)(v). Learned Counsel for the Respondent also argued that at the most it could be said that the Respondent had sublet the petition schedule building to his son and me revision Petitioner ought to have filed the petition u/s 11(4)(i). We are unable to accept that argument also because, the alleged transaction is in between the son and the father and absolutely there is nothing to show that there was any sub-lease. 12. It appears that the rent paid by the Respondent being a small amount, the son of the Respondent had been enjoying the luxury of the petition schedule room. For a fleet operator, Rs. 12. It appears that the rent paid by the Respondent being a small amount, the son of the Respondent had been enjoying the luxury of the petition schedule room. For a fleet operator, Rs. 70 paid as rent is a pittance and not concerned though the building is big for the landlord. In a State where there is acute shortage of accommodation, we find that the intention of the Legislature is not to protect a tenant to have such luxury causing worry to the landlord. 13. Taking into account all these circumstances, we conclude that the occupation contemplated u/s 11(4)(v) by the tenant is the occupation by the tenant himself and not by anyone else and leaving some belongings of the son of the tenant in the leasehold premises would not amount to occupation to defeat the eviction sought for u/s 11(4)(v). The Rent Control Appellate Authority went wrong in arriving at a finding that mere keeping of certain articles belonging to the son of the Respondent and regularly paying rent would amount to occupation. That finding is contrary to the ground reality revealed out in this case. The finding of the Appellate Authority is not sustainable legally and factually. Therefore it is liable to be set aside in revision and the order of the Rent Controller is to be restored. 14. In the result, the revision petition is allowed. While setting aside the judgment impugned, the order of the Rent Controller is restored and there would be an order of eviction u/s (11)(4)(v). The Respondent shall surrender the petition schedule building within one month.