THOMAS BABY Vs. CHERIAN THRESSIAMMA

JUDGEMENT

(1.) In this revision under S.115 CPC, the tenant of a non residential building challenges the validity of the order of eviction passed under S.11(3) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act (Act 2 of 1965). The Rent Controller bad found both the grounds against the landlord, but in appeal the findings of the Rent Controller were reversed on both the grounds and an order of eviction was granted. The judgment of the Appellate Authority was confirmed by the District Court in revision.

(2.) Various grounds have been taken in the memorandum of this revision petition. The main points on which arguments were advanced by Sri. C. K. Sivasankara Panicker, the learned counsel for the revision petitioner, are the following:

(3.) It is in evidence that the landlord respondent is a widow now in her seventies. She has expressed the desire to live separate from her children with whom she was residing at the time of the filing of the petition in a house belonging jointly to them all, her interest in the house being one out of six equal shares. I have no hesitation in holding that the Rent Controller was wrong in taking the view that though she was only having a fractional interest in the property, and a preliminary decree for partition had already been passed, she had the right to continue to stay in the house. The ownership contemplated in the first proviso to sub-s.(3) of S.11, in my opinion, is to the absolute ownership, not to a fractional interest which does not entitle such person to have exclusive occupation of the building or any particular portion thereof which could be conveniently used as a separate place of residence. If, in the final decree, the house was allotted to the respondent before the proceedings are over, different consideration may arise. However, I find no evidence on record as to whether the final decree has been passed, and, if so, to whom the house has been allotted. I, therefore, reject the contention of the revision petitioner that the respondent has no bona fide need to have a separate house for her own occupation, and hold that the fact that she has a fractional right in the house, which originally belonged to her husband, is not a bar for seeking eviction of the petition schedule building (with rooms attached thereto) which alone belongs to her in absolute right.