SAR UMMA Vs. MOIDEEN

JUDGEMENT

(1.) BOTH these Civil Revision Petitions are filed against the judgment in R.C.A. No. 15 of 1996. While C.R.P. No. 597 of 1997 is filed by the appellants in the R.C. Appeal, the other Civil Revision petition is filed by respondents 1 and 2 in the appeal. The original proceeding is R.C.P. No. 51 of 1990. The Rent Control Petition was filed by the landlord for eviction of respondents 1 to 3 in the Rent Control Petition, under Sections 11(2), 11(3), 11(4)(i) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as 'the Act'). The facts stated in the Rent Control Petition are as follows :

(2.) THE petition schedule property was leased out to Chemmanath Poker from Nilamboor Kovilakam in 1920. Poker had constructed a house in the property and entrusted the same for a rental of Rs. 10/- per month in favour of one Cheriya Moideen Bava alias Chellamna Rauther on 5.6.1960. After the death of Chellaman Rauther, his legal heirs who are R1 to R3 were in occupation of the petition schedule property. The first petitioner had taken assignment of the petition schedule property inclusive of the building as per registered document dated 20.4.1961 from Chemmanath Poker. Subsequently, R1 to R3 had failed to attorn to the petitioner or to pay any rent. Due to lack of proper maintenance the house in the property was completely demolished and a registered lawyer's notice was issued by the first petitioner for surrender of possession of the petition schedule property. In the reply notice, R1 to R3 had contended that Poker had executed an agreement to assign the petition schedule property for a consideration of Rs. 500/- and a sum of Rs. 400/- was paid by them as advance consideration. The first petitioner had filed O.S. No. 669 of 1968 for a decree for recovery of possession of the property. R4 to R6 were also impleaded in the suit. The suit was initially dismissed by the Munsiff's Court, Manjeri. But in appeal, the first appellate Court had set aside the dismissal and decreed the suit as per judgment dated 13.8.1982. R5 to R6 had challenged the decree before this Court in S.A. No. 929 of 1982. In the second Appeal, R5 and R6 contended that since the building is in their occupation by virtue of an entrustment of rent by the predecessor-in-interest of the petitioner, the proper remedy available to the petitioner is to file an application as per the provisions of the Act. The above contention was accepted by this Court and S.A. No. 929 of 1982 was disposed of. On 16.8.1990, a registered lawyer's notice was issued by the first petitioner to the respondents for eviction on the grounds mentioned in the petition.

(3.) THE Rent Control Court raised five issues. The first point was whether the petition was maintainable. The tenants wanted the first point to be decided preliminary and hence, that was decided preliminary. The Rent Control Court found that the petition was maintainable. Against that, an appeal was filed, which was dismissed and a revision was filed before this Court as C.R.P. No. 1761 of 1995. A Division Bench of this Court dismissed the Civil Revision Petition holding that the petition was maintainable. Before the Rent Control Court the petitioners were examined as PWs 1 and 2 and the first respondent was examined as RW1. Exts.A1 to A27 and Exts.B1 to B9 were marked on the side of the parties. The Rent Control Court, on an appreciation of the evidence, found that the building was required for bonafide use of the petitioners. It found that respondents 5 to 7 were only the assignee by the sub-lessee. Hence, they are liable to eviction under Section 11(4)(i) of the Act. It also found that respondents 5 and 6 had another building in their possession. Hence, eviction was ordered under Sections 11(3), 11(4)(i) and 11(4)(iii) of the Act. An appeal was filed against the above order. The Appellate Court upheld the findings under Section 11(3) of the Act. Regarding subletting, it was found that notice under Section 11(4)(i) of the Act was not sent to the tenants. It also set aside the findings under Section 11(4)(iii). The tenants filed a revision against the order under Section 11(3) of the Act, while the landlords filed a revision against the rejection on the ground under Sections 11(4)(i) and 11(4)(iii) of the Act. During the pendency of the revision, the first petitioner in the Rent Control Petition died and his legal representatives have been impleaded.