KADAPPAMANNIL RATHNAPRABHA Vs. M. KUTTYALI HAJI AND ORS.

JUDGEMENT

(1.) This Revision Petition instituted by the landlady under Sec. 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, is directed against the order dated 10.8.2009 passed by the Rent Control Appellate Authority, Kozhikode, in Rent Control Appeal (R.C.A.)No. 57/2007 arising out of the order dated 26.3.2007 in Rent Control Petition (R.C.P). No. 80/2006 on the file of the Rent Control Court, Kozhikode. The Revision Petitioner herein claimed that she and other co-owners were given rights over the petition scheduled tenanted premises and other properties, on the basis of the settlement deed executed by their mother in the year 2000. That respondents 1 and 2 in the R.C.P. were the tenants under her predecessor in interest as per kychit dated 1.4.1983 for a monthly rent of Rs. 1,000/- and that the tenants did not have any right to do any repair or create any sub lease as per the terms of the kycit and that after execution of the settlement deed, the tenants attorned to the petitioner and other landlords and that respondents 1 and 2 in the R.C.P. (who are respondents 1 and 2 in this Revision Petition as well as in the RCP). That respondents 1 and 2, who were earlier conducting a hotel under the name and style, "Hotel Shalimar" in those premises had sublet the building to the 3rd respondent, who is now in the exclusive possession of the tenanted premises and is now conducting the business of the hotel in that building, etc. The Rent Control Petition was instituted for eviction of the respondents under Sec. 11(4)(i) of the Act for subletting the tenanted premises. Though the respondents had challenged the title, the Rent Control Court as per the order dated 26.3.2007 found that there was no challenge against the settlement deed by the respondents and that in view of the execution of the settlement deed, attornment is effected automatically by the operation of law and that mere reservation in the settlement deed enabling the mother of the petitioners to collect rent during her life time, will not affect the title of the petitioner or other co-owners in respect of the petitioner and thus the said issue regarding title was found in favour of the petitioner.

(2.) As regards the main issue of subletting, the Rent Control Court found that the presence of the 3rd respondent in the tenanted premises was found during the inspection by the Advocate Commissioner appointed in an earlier suit and that court was of the considered opinion that the presence of the 3rd respondent in the cash counter of the hotel was clearly indicative of the fact that respondents 1 and 2 had given him exclusive possession of the building to run the hotel and that such presence of the 3rd respondent, who is stated to be a cook of respondents 1 and 2, has not been otherwise explained properly by the respondents and that respondents 1 and 2 were also found absent on the day on which the Commissioner had inspected the hotel premises and that there was no satisfactory explanation from respondents 1 and 2 to justify their absence by adducing convincing evidence in that behalf. Respondents 1 and 2 had taken up a case that they were not present on that day due to illness and that RW-1 had gone to Coimbatore for consulting an ophthalmologist (eye hospital) and that no documentary evidence was adduced to convincingly establish these aspects, except the oral testimony and that without any corroborating evidence based on documents, it is unbelievable that both respondents 1 and RW-1 were found absent on that day, whereas 3rd respondent, who was stated to be the only cook in the hotel, was found in the cash counter of the said hotel along with his son, etc. On this basis, the Rent Control Court held that the petitioner/landlady has proved the case of subletting against the respondents and thus allowed the plea for eviction under Sec. 11(4)(i) of the Act.

(3.) In the Rent Control Appeal preferred by R1 & R2 in RCP, the appellate court also found the issue of title in favour of the landlord. However, on a detailed and meticulous appreciation of all the aspects of the evidence, the appellate authority came to the considered conclusion that the landlady could not discharge her burden of proof in establishing that the tenants/respondents 1 and 2 had sublet the hotel premises to the 3rd respondent. On this basis, the appellate authority as per the impugned order rendered on 10.8.2009, reversed the finding of the Rent Control Court regarding subletting and had thus set aside the order of the Rent Control Court and ordered that the RCA is allowed.