ORDER : [Shoba Annamma Eapen. J.] 1. The main issue that arises for consideration in this Rent Control Revision is as to whether protection under Section 11(17) of the Kerala Buildings (Lease and Rent Control) Act,1965 (hereinafter referred to for short as 'the Act') is available to the legal heirs of a tenant, who was in continuous occupation of the building prior to 1-4-1940 or not. 2. This Rent Control Revision is filed by the revision petitioner/tenant challenging the concurrent finding of order of eviction under Section 11(3) of the Act on the bona fide need of the son of the landlady. The respondent/landlady is the owner of a building consisting of a room on the ground floor and a room on the upstairs. The tenant is in occupation of the petition schedule premises under a registered kychit No. 229/1981 of SRO, Vatakara executed by him in favour of the erstwhile owner viz., Narayani, who is the mother of the landlady. The tenant paid the rent up to December 2015 to Narayani and on her death, the petition schedule premises devolved upon the respondent here-in-landlady as per the terms of the registered Will executed by Narayani. Though notice was issued by the landlady, the rent was kept in arrears from January 2016. On the death of the husband of the landlady, the landlady wanted her son Rimeesh Rajan, who holds Masters Degree in Engineering in Computer Sciences, working in UAE for nine years to come and stay with the landlady. 3. The landlady and her children have inherited a building consisting of seven rooms from her husband. Six among those rooms are occupied by tenants and one room bearing door No.30/382 in the said building was left unoccupied due to the dilapidated condition of the room. Room No.30/382, lying vacant is a small room and was not suitable for starting sales of the computer peripherals and computer service centre. The total rent income of the landlady and her children from the said building is Rs.5,200/- per month. In order to raise her income, the petitioner's son Sri.Rimeesh Rajan decided to come back and settle in his home town and the petitioner and her son had a bona fide need to start business dealing in Computer systems, computer hardware, peripherals and accessories and a computer service centre in the petition schedule premises. In order to raise her income, the petitioner's son Sri.Rimeesh Rajan decided to come back and settle in his home town and the petitioner and her son had a bona fide need to start business dealing in Computer systems, computer hardware, peripherals and accessories and a computer service centre in the petition schedule premises. According to the landlady, the room on the ground floor is required for sales and the room on the upstairs is required for the service centre. It is also submitted that several shop rooms are available in the locality for the tenant to relocate his business and the tenant is not depending on the income from the petition schedule premises for his livelihood. 4. Per contra, the revision petitioner-tenant contended that the rent paid by the tenant was not accepted by the landlady and hence the amount was sent through money order, which was also not accepted. It is also contended by the revision petitioner that the landlady has many landed properties and cash deposits and there is no necessity for the landlady to start business to supplement her income and shop room No.30/382 is in the ownership of Rimeesh Rajan and is lying vacant and fit for his proposed business. It was further contended that the tenant's father started his tenancy in the year 1938 onwards and the tenant has permanent tenancy over the petition schedule building. The shop room was destructed by fire in the year 1992 and the tenant repaired the shop room by spending Rs.6 lakh. It was further contended that there was no suitable room in the locality for him to shift his business and that he is depending on the petition schedule building for his livelihood. 5. Heard the learned counsel for the revision petitioner/tenant and the learned counsel for the respondent/landlady. 6. The learned counsel for the revision petitioner mainly submitted that the bona fide need put forth by the landlady is a ruse to evict him from the petition schedule building. It is also submitted that she is immensely rich and has sufficient income to support her family and there is no genuine bona fide need for the petition schedule building. The learned counsel for the revision petitioner mainly submitted that the bona fide need put forth by the landlady is a ruse to evict him from the petition schedule building. It is also submitted that she is immensely rich and has sufficient income to support her family and there is no genuine bona fide need for the petition schedule building. It was further contended that the respondent's father started his tenancy in the year 1938 onwards and on the death of his father, the tenant herein being the legatee/legal heir occupied the building in the year 1981 and started his tenancy from 24.01.1981 and he has been continuing his business as an original tenant. Hence he is entitled to the permanent tenancy in respect of the petition schedule building. PW1-son of the landlady was examined and the tenant was examined as RW1. Exts.B1 to B3 and C1 were marked before the Rent Control Court. 7. The first contention regarding the bona fide need of the landlady is strongly objected by the tenant stating that the landlady is having many landed properties and cash deposits and the income tax returns of Dr.Rajan would reflect the income of the family and the intention of the landlady is to let out the shop room to other tenants for higher rent after evicting the respondents. In order to rebut the contention of the tenant, the landlady's son PW1 was examined. During the cross-examination, Rimeesh Rajan, son of the landlady contended that he has been working in UAE for nine years and he is Master of Engineering in Computer Sciences and in order to support his mother, he wished to start his business, along with his mother, dealing in computer systems, computer hardware, peripherals and accessories and a computer service centre in the petition schedule premises. It was also admitted that the landlady has co-ownership in the other rooms mentioned out of which only one room was lying vacant, which was in a very dilapidated condition and not fit to start a business. Further, it was contended that the room was very small for the son of the landlady to start computer peripheral business. It was also admitted that the landlady has co-ownership in the other rooms mentioned out of which only one room was lying vacant, which was in a very dilapidated condition and not fit to start a business. Further, it was contended that the room was very small for the son of the landlady to start computer peripheral business. The landlady has disclosed in the petition that they have another building having seven rooms out of which six rooms were let out to the tenants and only one room is left which is not fit for using as a room for starting computer peripherals. The tenant, other than his contention, could not bring out anything in evidence to prove that the need of the landlady was not genuine and it was only a ruse to evict the tenant. In Ext.C1 commission report, it was stated that room No.30/382 was in a dilapidated condition. There was no reason to doubt the need put forth by the landlady and we do not find any reason to interfere with the finding of the court below on the requirement of the bona fide need. 8. The second issue of the permanent tenancy raised by the tenant is that the revision petitioner's father started his tenancy in the year 1938 onwards and after his death, the revision petitioner has been continuing the business in the tenanted premises. Hence, he is entitled to a permanent tenancy in respect of the petition schedule building. 9. Section 11 deals with the eviction of the tenant and Section 11(17) is the provision which deals with the permanent tenancy in the petition schedule building. Section 11(17) of the Act reads as follows:- “11. Eviction of tenants:-- …............….................. Hence, he is entitled to a permanent tenancy in respect of the petition schedule building. 9. Section 11 deals with the eviction of the tenant and Section 11(17) is the provision which deals with the permanent tenancy in the petition schedule building. Section 11(17) of the Act reads as follows:- “11. Eviction of tenants:-- …............….................. x x x x x x x x x x x x ….......(17) Notwithstanding anything contained in this section a tenant who has been in continuous occupation of a building from 1st April 1940 as a tenant, shall not be liable to be evicted for bona fide occupation of the landlord or of the occupation by any member of his family dependent on him, provided that a landlord of a residential building shall be entitled to evict such a tenant of that building if the landlord has been living in a place outside the city, town or village in which the building is situated for a period of not less than five years before he makes an application to the Rent Control Court for being put in possession of the building, and requires the building bona fide for his own permanent residence or for the permanent residence of any member of his family or the landlord is in dire need of a place for residence and has none of his own. Explanation. - In computing the period of continuous occupation from 1st April 1940, the period, if any, during which the landlord was residing outside the city, town or village in which the building is situated shall be excluded.” 10. In order to avail the benefit under sub-section(17) of section 11 of the Act, the tenant has to prove that he has been in continuous occupation of the building from 1.4.1940. It is the admitted case of the petitioner that his father was in occupation of the tenanted premises from 1938 onwards though not admitted by the landlady. On the death of the father, the son, tenant occupied the premises and continued his business in the tenanted premises from 24.01.1981 on the basis of the tenancy kychit. 11. It is the admitted case of the petitioner that his father was in occupation of the tenanted premises from 1938 onwards though not admitted by the landlady. On the death of the father, the son, tenant occupied the premises and continued his business in the tenanted premises from 24.01.1981 on the basis of the tenancy kychit. 11. In the decision reported in Prabhakaran v. Sulaikabi [ 2007(2) KLT 103 (FB)], it was held that in order to claim protection in Section 11(17) of the Act, it must be shown that the tenant came into occupation of the building as from 01.04.1940 onwards and he has been in continuous occupation since then. If the tenant, who is in continuous occupation on or before 01.04.1940, dies during the tenancy, his heirs will not inherit the benefits conferred on the deceased- tenant under Section 11(17) of the Act. For the purpose of S.11(17) of the Act, the tenancy created with a person shall be on or before 01.04.1940 and he shall continue to occupy the demised premises as a tenant. It is the case of the tenant that his father occupied the building from 1938 onwards and on his death, his son-the tenant continued the business in the petition schedule building from 24.01.1981. As held in Prabhakaran (supra), the legal heirs of the original tenant are not entitled to claim protection under Section 11(17) of the Act. It was further held that tenancy may be heritable but a special privilege by a tenant for his non-eviction is personal and such a personal privilege is not and cannot be heritable. 12. Section 2(6) of the Act reads as follows : 2. It was further held that tenancy may be heritable but a special privilege by a tenant for his non-eviction is personal and such a personal privilege is not and cannot be heritable. 12. Section 2(6) of the Act reads as follows : 2. Definitions:--In this Act, unless the context otherwise requires,-- x x x x x x x x x x x x x x x x “(6) "Tenant" means any person by whom or on whose account rent is payable for a buildings and includes:- (i) the heir or heirs of a deceased tenant, and (ii) a person continuing in possession after the termination of the tenancy in his favour, but does not include a Kudikidappukaran as defined in the Kerala Land Reforms Act, 1963 (Kerala Act I of 1964), or a person placed in occupation of a building by its tenant, or a person to whom the collection of rents or fees in a public market, cart stand or slaughter house or of rents for shops has been farmed out or leased by a Municipal Council, Municipal Corporation, Township committee or Panchayath;” The tenant herein comes under the definition of the tenant in Section 2(6) of the Act, but in order to claim permanent tenancy under Section 11(17), the occupation of the original tenant should be continuous and on the death of the original tenant after 01.04.1940, the legal heir of the tenant, cannot claim protection under Section 11(17) of the Act. Hence, the claim of permanent tenancy envisaged under Section 11(17) of the Act is decided against the revision petitioner. 13. It was also contended by the revision petitioner that the landlady did not mount the box to give evidence regarding the bona fide need of her son. It is settled position that in order to prove the bona fide need of the landlady or her son, the person claiming the bona fide need has to be examined. In the present case, the son of the landlady, who is depending on the landlady, was examined and he has deposed before the court below about the bona fide need of the petition schedule building. The revision petitioner further failed to prove the proviso to Section 11(3) of the Act. In the present case, the son of the landlady, who is depending on the landlady, was examined and he has deposed before the court below about the bona fide need of the petition schedule building. The revision petitioner further failed to prove the proviso to Section 11(3) of the Act. RW1, during cross-examination, admitted that he has possessed Room Nos.245/A and 245/B and he is also possessing Room Nos.247, 248 and 249 and those buildings can be used for commercial purpose as per the Panchayath records. It is further submitted by RW1 that he had not mentioned about the vacant shop room in his possession, in the counter affidavit filed by the tenant. 14. From this, it is clear that the tenant is in possession of other building, which can be used for his business and he also failed to prove that he is depending on the petition schedule building for his livelihood. 15. In the absence of any material before the authorities below to prove that the income derived from the tenanted premises is the main source of income, the tenant is not entitled to any protection under second proviso to Section 11(3) of the Act. In the decision of this Court in Shahul Hameed.A. v. P.E.Abdu Razak ( 2016 (5)KHC 820 ), it was held that the burden to prove both the ingredients of the second proviso to S.11(3) of the Act is on the tenant. The tenant failed to adduce evidence to prove that he is mainly depending for his livelihood on the income derived from the business carried on in the petition schedule shop rooms and also failed to prove that no other building or shop room is available in the locality for him to carry on the business. Therefore, we hold that the findings rendered by the Rent Control Court and the Rent Control Appellate Authority ordering eviction under Section 11(3) of the Act are sustainable in law and we do not find any reason to interfere with that finding. Further, we hold that the need put forth by the landlady is genuine, real and honest. It is out of an honest and genuine desire, the landlady has approached the court below with a prayer for eviction and that cannot be interfered with by this Court in exercise of its revisional jurisdiction under Section 20 of the Act. 16. Further, we hold that the need put forth by the landlady is genuine, real and honest. It is out of an honest and genuine desire, the landlady has approached the court below with a prayer for eviction and that cannot be interfered with by this Court in exercise of its revisional jurisdiction under Section 20 of the Act. 16. In the said circumstances, the findings of the courts below cannot be found fault with. We do not find any reason to interfere with that finding. 17. Having considered the entire matter in detail, we hold that this revision fails and hence, we dismiss it. 18. Taking note of the request made by the learned counsel for the revision petitioner-tenant to grant sufficient time for vacating the premises, we grant time up to 30.06.2023 to surrender vacant possession of the petition schedule shop room, subject to the following conditions: (i) The respondent-tenant in the Rent Control Petition (revision petitioner herein) shall file an undertaking before the Rent Control Court or the Execution Court, as the case may be, within three weeks from the date of receipt of a copy of this order, that he will vacate the shop rooms, on or before 30.06.2023. ii) The respondent-tenant in the Rent Control Petition shall continue to pay the rent till 30.06.2023, without any default. (iii) Needless to say, in the event of the respondent-tenant in the Rent Control Petition (the revision petitioner herein) failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition schedule shop room will stand cancelled automatically and the respondent herein will be at liberty to proceed with the execution of the order of eviction.