SALEEM Vs. RAJESWARY

JUDGEMENT

(1.) PETITIONER (a tenant of building) claimed among other things, that he has protection against eviction, since he continues in occupation under a lease arrangement Which was created before 1-4-1940. After shuttling up and down between Rent Control Court , Appellate Authority and Revisional Court for a period, which stretched well over twelve years, parties have reached the high Court in this Original Petition filed by the tenant under Art. 227 of the constitution. The point which was urged in this Original Petition centers round the decision of the lower authority regarding tenant's claim of protection based so. ll (17) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short' the Act' ).

(2.) THE respondent-landlord filed a petition before Rent control Court for eviction on the ground that he bona fide needs the building for his own occupation. THE tenant resisted it on many grounds including a claim of kudikidappu right for which the dispute remained in the Land Tribunal for A while on reference made by the Rent Control Court under S. 125 (3) of the kerala Land Reforms Act. All the remaining questions have been resolved and one that survives now is the claimer of protection under S. 11 (17) of the Act. THE case, at one stage, reached the District Court in revision from where it was pushed back to the Rent Control Court. THE proceedings again mounted up to higher forums and reached the District Court. On a second time the District court remanded it but not down to Rent Control Court. THE Appellate Authority then found that the tenant's father had taken the building on lease prior to 1-4-1940. THE said finding was enough to non-suit the landlord in this case. However, the finding did not last long as the District Court, in revision, set it aside. THE said order of the District Court is in challenge in this Original petition.

(3.) S. 11 (17) though framed in the form of a non-obstinate provision, is in practical sense a proviso to S. 11 (3) of the Act. The first limb of sub-section (17) confers a special right on the tenant whose occupation in the building could be traced to a date antecedent to 2-4-1940 and who continues in occupation when eviction is demanded. Whoever claims such a right has to plead necessary facts and prove the same to the satisfaction of the Rent control Court. There must be satisfaction that the tenancy originated either on the crucial date or on any previous date. Hardship of the tenant to prove the said fact is not a substitute for proof, nor does it relieve him of his burden. The protection envisaged in the sub-section being special and exceptional to such a tenant, with its consequence of foreclosing the landlord's right to avail himself of a ground which even a restricting legislation like the Rent control Act has granted, the tenant's burden to prove that the tenancy originated on or before the crucial date cannot be lightly discharged. Perhaps the instrument of lease itself is good evidence to prove this fact. In the absence of such instrument, receipt acknowledging payment of rent on a prior date or entry in the local body's record may help the tenant to satisfy the court on this score. If this point is sought to be established through oral evidence alone, the testimony of witnesses must be such as to install confidence in the court's mind about its truth. But tenant cannot simply say, as he tried to say in this case, that since the landlord did not prove the date of commencement of the lease, the date suggested by the tenant must be treated as established. No such rule can be laid down or recognised regarding proof of facts to be established. Mere assertion of a fact in the written objections filed by the tenant is no substitute for proof, even if the landlord has not specifically pleaded any date or month or even year of commencement of lease. It is well neigh settled that the law of pleadings cannot be enforced with all its rigour in proceedings under the Act.