AYSHA K E Vs. KUNHIPURAYIL SHAIK MOIDEEN

JUDGEMENT

(1.) The tenants are the revision petitioners in this revision under Section 20 of Kerala Buildings (Lease & Rent Control) Act 2 of 1965. They challenge the judgment of the Rent Control Appellate Authority reversing the finding of the Rent Control Court that the Rent Control petition is not maintainable for the reason that the original tenancy has been split up and the petitioner is seeking only partial eviction in respect of the premises which had been originally let out. The respondent is the landlord and the revision petitioners are tenants being the successors in interest of the original tenant one Mammu. The original tenant was the husband of the first revision petitioner and the father of the other revision petitioners. According to the revision petitioners, the original landlady leased out the petition schedule building along with the adjacent building, to late Mammu as per a cooli chit dated 23/1/1970, on a monthly rent of Rs. 145/-, which was later enhanced to Rs. 170/-. The respondent-landlord filed Rent Control Petition alleging that the petition schedule building was gifted to him by Smt. Shereefa Beevi while the adjacent building covered by the cooli chit was gifted to his brother. Eviction was sought for by the respondent on various grounds such as Section 11(2) (b), 11(3), 11(4)(ii) and 11(4)(iii) of the Act. The Rent Control Court came to the conclusion that as the original lease was in respect of not only the petition schedule room but also the adjacent room, a splitting up of the tenancy by Shereefa Beevi through the gift deed, is not permissible in law and hence the very Rent Control Petition is not maintainable. On that reason, the Rent Control Petition was dismissed by the Rent Control Court without adverting to the merits of the eviction grounds.

(2.) Respondent preferred R.C.A.No. 109/2001 before the Rent Control Appellate Authority, Thalassery. The learned appellate Authority relied on the judgment of a Division Bench of this court in Mar Appraem Kuri Company v. Dix, 2004 1 KerLT 678 and took the view that Section 109 of the Transfer of Property Act provides a statutory exception to the Rule that a landlord cannot split up the unity and integrity of the tenanancy and recover possession of a part of the demised premises from the tenant. Following the above judgment to which one among us (Pius C.Kuriakose,J.) is party, it was held that as there is no dispute regarding the identity of the portion assigned to the respondent(landlord) and as eviction ground is established under Section 11, the splitting up made by the original landlord can be approved even without the consent of the tenant. Accordingly, the Rent Control Appellate Authority held that the Rent Control Petition is maintainable and allowed the Rent Control Appeal by passing an order of remand and the R.C.P.was remitted back to the Rent Control Court directing the Rent Control Court to take a decision on the merits of the eviction grounds.

(3.) In this revision under Section 20, various grounds have been raised challenging the judgment of the Rent Control Appellate Authority. It is urged in the memorandum of revision that the facts of Mar Appraem Kuri Co.'s case and the facts which obtained in the present case are different. In Mar Appraem Kuri Co.'s case, the tenancy was split up as ground floor and up stair portion. But in the present case, the entire building is in the ground floor itself. It is urged that the integrity of the tenancy has been split up in a manner detrimental to the interest of the tenant. It is also urged that the validity of the gift deed should have been gone into by the appellate authority.