RAMAKRISHNAN Vs. GOPALA MOOIHAN

JUDGEMENT

(1.) THE tenant is the revision petitioner. THE landlord applied for eviction under S. 11 (3) of the Kerala Buildings (Lease and Rent control) Act (shortly stated the Act) saying that the building is required for the landlord's own occupation. Arrears of rent was also put forward as a ground; but as the arrears were subsequently deposited, that ground was not pressed. On the question of requirement of the building for own occupation, the rent Controller held that the claim is not bonafide and the petition was-accordingly dismissed. But in appeal, the learned appellate authority held otherwise and allowed the petition which has been confirmed in revision by the learned District Judge.

(2.) THE claim of bonafide requirement for own occupation is challenged on the ground that the petitioner is residing in his family house which is owned by him though along with other members of the joint family; but the case of the petitioner (respondent herein) is that the joint family house is not convenient enough to accommodate all the members and that out of the 5 brothers who constitute the joint family, 3 are married. One of them is residing outside for the obvious reason that the family house is too" congested to provide accommodation to him. All the married brothers are getting children and the family is growing in size. It was in these circumstances that the present building happened to be purchased by the petitioner. Proviso (1) to s. 11 (3) says that: "the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Controller is satisfied that for special reasons, in any particular case it will be just and proper to do so. " So if the petitioner-landlord has another building of his own in his possession, his prayer for eviction will not ordinarily be entertained. Even in such cases if special reasons are made out to the satisfaction of the Rent Control -court, there will be no objection in granting the landlord's prayer. THE question, therefore, is whether in the present case the landlord has been proved to own and possess another building in the city, town or village. It is true that the landlord is a member of the joint family, which owns a bouse. He is a junior member. Under the Hindu Law which governs the parties he has a right of residence in the family house. He has, no doubt, inalienable interest in the joint family or ancestral property; but from that circumstance could it be said that he owns the family bouse, in the sense in which the expression is used in the proviso. For the bar to operate the petitioner-landlord should own and possess a building exclusively for himself. In my view, a mere right of residence or some interest in the family house will not, by itself, debar him from claiming possession of the rented building, "own", according to the Law Lexicon, means, "to hold as property, to possess; often used as synonymous with possess". "owner" is "one who has dominion of a thing, real or personal, corporeal or incorporeal, which he has the right to enjoy and to do with it as he pleases either to spoil or destroy it as far as the law permits". "ower" includes " (a) every person who is entitled for the time being to receive any rent in respect of the land with regard to which the word is used, whether from the occupier or otherwise. " (THE Law Lexicon by ramanatha Iyer, p. 930-931 ). "landlord" under the Act includes: the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another " Under the law of coparcenary, the father or head or manager of the family alone is legally entitled to receive the rent and to be in possession of the joint family property. Prem's Judicial Dictionary defines "owner" as a person "who has an absolute dominion over it and in regard to which he has a right to do as he pleases. " In the case of a joint family a junior member does not possess any such right. In this view, therefore, it is difficult to apply the proviso against granting evitcion. THE fact that the petitioner's family is growing in size was not disputed by the counter-petitioner either in his counter or in his deposition before court. On the other hand, he admitted before court that the family consists of 5 brothers and that three of them are married and have children. He was not in a position to dispute the averments in the petition that the family house is wanting in accommodation. About the size or nature of the family house the counter-petitioner has no idea and he confessed that he has never gone to the petitioner's family house,

(3.) LEARNED counsel for the respondent-landlord raised also the question of maintainability of the revision under S. 115 of the CPC. The contention was that this court has no jurisdiction to entertain the petition as the finding of the trial court did not involve any question of jurisdiction. But I do not see any force in the contention. The Supreme Court observed in prem Raj v. Housing Construction Ltd. , (1968-2 S. C. W. R. 482) that: "it is manifest that in holding that the appellant was entitled in the alternative to ask for the relief of specific performance the trial court bad committed an error of law and so had acted with material irregularity or illegality in the exercise of its jurisdiction within the meaning of S. 115 (c) of the C. P. C. It was therefore competent to the High court to interfere in revision with the order of the trial court on this point. To put it differently the decision of the trial court on this question was not a decision on a mere question of law but it was a decision on a question of law upon which the jurisdiction of the trial court to grant the particular relief depended. The question was therefore one which involved the jurisdiction of the trial court. The trial court could not by an erroneous finding upon that question confer upon itself a jurisdiction which it did not possess and its order was therefore liable to be set aside by the high court in revision. On the same analogy the decision of the court below in the present case is one on a question of law upon which the jurisdiction of the trial court to grant particular relief is dependent. There is, therefore, no point in the contention that the petition is not maintainable. 6. The result is that the revision petition is dismissed. Dismissed.