VINOD Vs. MUJEEB

JUDGEMENT

(1.) The Revision Petitioner is the first respondent in RCP No.232/2004 on the files of the Rent Control (Additional Munsiff) Court, Kannur and the appellant in RCA No.119/2012 on the files of the Rent Control Appellate Authority (Additional District Judge-II), Thalassery. He has approached this Court in this revision against the concurrent findings of the said Courts on the bona fide need and order of eviction passed on its basis under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'). Before entering into a consideration of the contentions, it is apposite to have an understanding of the factual matrix of the case. The parties to this Revision Petition shall, for the purpose of the case will be referred to hereinafter as 'the landlord' and 'the tenants'.

(2.) The landlords are co-owners of the tenanted premises, more particularly described in the schedule to R.C.P. No.232/2004 as the petition schedule building and one Mukundan was holding the property in tenancy on a monthly rent of Rs. 200/-. He was a bachelor and he died. Thereafter, one Vinod, his nephew continued possession of the petition schedule building, but failed to pay the monthly rent. On account of the default in payment of rent by the tenant and unemployment of one Mr.Niyad, the son of one among the landlords, they thought it fit to get the tenant evicted from the tenanted premises for enabling Mr.Niyad to start a whole sale business in clothes on obtaining those rooms in vacant surrender. The landlord though has sufficient financial sources was not in possession of any other vacant building to part with his son for the business to be commenced. The petition schedule building incorporates in it three rooms and all those were in the occupation of the tenants, unauthorisedly. The business run by the tenant therein being grocery business, absolutely no requirement is there for him to occupy all those three rooms, two of which are situated in the ground floor and one in the first floor. Rooms to suit the need of the tenant are available in the locality for him to shift his business. The tenant has other source of income and the grocery business carried on by him in the petition schedule building was not his main source of income. The landlord demanded the tenant to surrender the vacant possession of the petition schedule building which was not acceded to by the tenant and thereupon a notice was caused to be served upon the former through a lawyer projecting the requirement. The tenant sent a reply and approached the landlord proposing to surrender one room in the ground floor and the one on the up-stair. But, the rooms were not surrendered as proposed and in view of the necessity of the landlords to provide Mr.Niyad with a vacant room, he was constrained to prefer the application as RCP No.232/2004 seeking eviction of the tenant from the premises leased out to him under Section 11(3) and 11(2)(b) of the Act.

(3.) The tenant resisted the RCP by filing counter statement. The claim of the landlord was denied. Specific contentions have also been raised that he is the nephew of late Mukundan, the original tenant and the second and third respondents in the RCP are the sisters and nieces of late Mukundan. According to him, Mukundan died in the year 1989 after executing a registered will and as per the will he bequeathed his right of tenancy over the building to four legal heirs, including himself. A settlement followed that and thereby he became the sole occupant of the petition schedule building. Rent was paid through court and no rent was due in arrears. He also claimed the benefit of the second proviso to Section 11(3) of the Act by contending categorically that the income derived from the grocery business run in the tenanted premises is his sole source of income and that other suitable buildings are not available in the locality to accommodate his business. According to him though, in occupation of three rooms and in view of its lesser area, all those are required for him to run his business suitably. Raising contentions as above, he pleaded for a dismissal of the RCP.