A K MUHAMMED Vs. ARAVINDAKSHAN NAIR

JUDGEMENT

(1.) The question of maintainability of the suit, O.S.No.470 of 1993 as well as R.C.P.No.33 of 1993 was simultaneously urged by the defendants tenants before the Civil Court as well as before the Rent Control Court. The landlord placed reliance on the decision of a Division Bench of this Court in Kalpakam Amma v. Muthurama Iyer, 1994 (2) KLT 424 , and contended that lease of the building would take in the site also. The Division Bench in the above decision held that site continues as part of the building and unless and until the site is also destroyed, there cannot be any termination of lease. The Court held the principle regarding the automatic termination of tenancy cannot be applied if the site where the structure stood is in existence. The above decision of the Division Bench was subsequently overruled by the Apex Court in Vannattankandy Ibrayi v. Kunhabdulla Hajee, AIR 2003 S.C. 4453, wherein the Court held as follows:

(2.) Landlords to be on the safer side invoked the jurisdiction of the Civil Court as well as the Rent Control Court. Landlords preferred O.S.No.470 of 1993 for mandatory injunction for recovery of possession of the plaint schedule property, and for prohibitory injunction and claiming damages. O.S. No. 166 of 1994 was also filed by the landlord for permanent injunction and mandatory injunction. Considering the oral and documentary evidence, the Civil Court came to the conclusion that since there is no termination of lease the proper remedy for recovery of plaint schedule property is by invoking the jurisdiction of the Rent Control Court. Consequently it was held that plaintiffs are not entitled to recovery of possession of plaint schedule property by filing O.S.No.470 of 1993. Aggrieved by the said judgment, landlords preferred A.S.No.268 of 1995. Landlords have also filed R.C.P. No.33 of 1993 for eviction of the premises under S.11(3) of Act 2 of 1965. Though the Rent Control Petition was filed by five persons the need urged is only for three of the petitioners. All the petitioners to the Rent Control Petition are coowners and are entitled to get the benefit of the order of eviction in respect of the entire building. It is stated in the Rent Control Petition that the first petitioner required the building for the purpose of conducting an automobile workshop since he has no other source of income. He has also no other building of his own for his residence. Fourth petitioner has a son and daughter and they are depending upon him. They have to be provided with residential accommodation and for that purpose also the building is required. Tenant resisted the petition contending that there is no bona fides in the plea and the attempt of the landlords is only a ruse to evict him. He also claimed the benefit of the second proviso to S.11(3). On the side of the landlord Exts.A1 to A41 documents were produced. First petitioner was examined as PW. 1. Fourth petitioner was examined as PW.2. Third petitioner was examined as PW.3, PW.6 was also examined. First respondent before the Rent Control Court was examined as RW. 1. RW.2 was also examined on the side of the tenant. Documents marked as Exts.B1 to B4 were produced. Ext.C1 is the Commission Report and C1(a) is the plan.

(3.) On going through the oral and documentary evidence both the Rent Control Court and the Appellate Court concurrently found that the need urged by the petitioners landlords is genuine and bona fide. We are of the view, no evidence was adduced by the tenant to dispute the bona fide need urged by the landlords. Landlords have asserted that they have no other source of income and no other occupation. In the absence of any independent evidence, we are of the view that the landlords have established their bona fide need. Tenant could defeat the rights of the landlords only under the first proviso to S.11(3) for which no evidence was adduced. With regard to the second proviso to S.11(3) no independent evidence was adduced. A Full Bench of this Court in Francis v. Sreedevi Varassiar, 2003 (2) KLT 230 , has held that burden is entirely on the tenant to establish both the limbs of the second proviso to S.11(3). Rent Control Court as well as the Appellate Authority have concurrently found that the tenant has not discharged the burden. No independent evidence has been adduced by the tenant to hold that the tenant is entitled to get the benefit of both the limbs of the second proviso to S.11(3). We are therefore in agreement with the Rent Control Court and the Appellate Authority that the tenant is not entitled to the benefit of the second proviso to S.11(3) of the Act.