Y K GUPTA Vs. S K MOHAMMED RAQUEEB

JUDGEMENT

(1.) Both parties won as well as lost in Rent Control Court and Appellate Authority. When the landlord won the case in regard to the ground under S.11(4)(v) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'), he lost to the tenant in regard to the ground under S.11(3). Both sides went in appeal and the Appellate Authority dismissed both appeals. Hence both parties have filed these separate revisions.

(2.) Regarding the ground under S.11(3) of the Act, the factual position as found by the two lower authorities is this: This building belonged to the lather of the present landlord. He died in 1982. Another building which belonged to him was in the possession of some other person and that became vacant. The present landlord, who is one of the coowners of that building, did not occupy it for any business use even though it became vacant in 1982 itself. In 1985 he and the other coowners executed a partition deed as per which the petition schedule building was allotted to the share of the landlord. Rent Control Court and the Appellate Authority found concurrently that the claim of the landlord was not bona fide mainly due to the fact that he did not choose to occupy the other vacant building for starting the business which he proposes to do in the petition . schedule building.

(3.) After admitting the fact that till the partition of 1985 the other building (which fell vacant) was not used by the landlord, his learned counsel contended that ownership of a fractional right in another building is not enough to use the ban contained in the first proviso to S.11(3) of the Act to resist the claim of the landlord. In other words, according to the learned counsel, unless the landlord is the full and absolute owner of the other building, he is not liable to be deprived of the benefit of eviction order on the ground under S.11(3), if he is otherwise entitled to it. In support of the above contention, learned counsel invited our attention to two decisions of this court (vide Ramakrishnan v. Gopalan Moothan, 1971 KLT 427 and Thomas Baby v. Cherian Thressiamma, 1973 KLT 1043 ). In the former, a learned single Judge (Sadasivan, J.) has held that for the operation of the bar contained in the proviso, petitioner / landlord should have owned and possessed another building exclusively for himself. Learned Judge observed further that "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". In the latter decision, Bhaskaran, J. (as His Lordship then was) was considering the claim of a widow who in her seventies expressed a desire to live separate from her children with whom she was residing in a house which jointly belonged to them all. Learned Judge held that Rent Controller was wrong in using the ban contained in the first proviso to deny her of the right to evict the tenant by observing that "the ownership contemplated in the first proviso to sub-section (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.