ABOOBACKER Vs. MOIDEENKUTTY

JUDGEMENT

(1.) The petitioners are the legal representatives of the first respondent in R.C.O.P. No. 238 of 1972 on the file of the Munsiff, Kozhikode-I. The property involved in the case is a building which was taken on rent by the first respondent and one C. K. Aboobacker Haji on 20-6-1953 from the then owner of the property. The rights of Aboobacker Haji devolved on the first respondent. The original lessors transferred their rights to the petitioners in RCOP. 238/72. The rent which was originally fixed at Rs. 300/- was subsequently raised to Rs. 450/-. The first respondent attorned to the petitioners. The petition was filed under S.11 (2)(a) and 4 (1) of the Kerala Buildings (Lease and Rent Control) Act. The case of the petitioners was that rent was kept in arrears after March 1972 and that the first respondent sublet portions of the building at a higher rent to respondents 2 to 4. A notice was issued terminating the tenancy and in due course, the petition for eviction was filed. The first respondent admitted the lease. According to him, even before the lease in his favour, the building was being used as a lodge and ' specific permission had been given by the then lessors to the first respondent for entrusting portions of the building to third parties. The existence of arrears of rent is disputed. The 2nd respondent to whom one of the rooms is alleged to have been sublet is a travel agent engaged in booking tickets by rail and ship. He has been occupying one of the rooms from 1955, in connection with his job. He is only a lodger and not a sublessee. Though a board and a phone are provided in the room, the understanding is that they would be removed as and when required by the first respondent. The third respondent has been in possession of a room in the building since 1957. He also is a lodger, and not a lessee. The 4th respondent constructed a shed outside the building and has been carrying on a trade for the last 15 years. The shed was constructed with the consent of the predecessor in interest of the petitioners. The first respondent has nothing to do with the occupation of the shed by the 4th respondent except that he permitted an electric connection to betaken from a room in the building and was receiving one rupee per month from the 4th respondent as electric charges. According to the first respondent, the petitioners were aware of the occupation of respondents 2 to4 and it was understood that himself and his predecessor had waived the conditions if any attached to the lease. Respondents 2 to 4 put forward similar contentions. The Rent Control Court held that the petitioner did not establish that there was a condition against sublease. The circumstances proved in the case would indicate that the first respondent was authorised to conduct a lodge in the petition schedule building. The court also held that respondents 2 and 3 were in occupation of portions of the building at least from 1960 and 1961 respectively. The Rent Control Court further held that the occupation by respondents 2 to 4 was not as sublessees and, therefore, the petitioners were not entitled to get delivery of possession of the building under S.11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act. The Rent Control Court, however, found that the first respondent had kept arrears of rent and, therefore, eviction under S.11(2) (b) of the Act was allowed. Against the above order, the petitioners filed appeal before the Appellate authority. By that time, the first respondent died and his legal representatives were impleaded as respondents. Respondents 14 to 16 in appeal were respondents 2 to 4 before the Rent Control Court. The appellate authority reversed the findings of the Rent Control Court and held that respondents 2 to 4 before the Rent Control Court were sublessees and the subleases were without the consent of the original lessor. Eviction was ordered on the ground of subleases also. The above finding was confirmed in revision by the Additional District Judge, Kozhikode, in CRP. 84 of 1976. It is this order that is being challenged by the legal representatives of the original first respondent in the present revision petition.

(2.) The questions envolved are whether respondents 2 to 4 are sublessees and whether the subleases were without the concurrence of the original lessor. The first respondent took the stand that since the building was even prior to the lease in his favour being used as a lodging house, a permission to let to stranger can be presumed. He also put forward a case that the original lessor had agreed to the granting of the subleases which are now challenged.

(3.) The evidence available in the case does not show that the original lessor had agreed to the granting of the sublease. A permission to grant subleases cannot be presumed from the mere fact that the building is used as a lodge. In the instant case, it is established by evidence that both respondents 2 and 3 have their own telephones installed in their respective rooms and their boards are put up at the entrance of these rooms. The evidence is that rent was being collected on a daily basis. The first respondent would however contend that respondents 2 and 3 are only lodgers and they have no exclusive possession of the rooms. A belated attempt was made to show that there are two keys for each of the rooms, one key of each of the rooms is kept by the first respondent. The Rent Control Court and the Appellate authority did not accept this plea. Absence of any sublease is also sought to be made out by showing that sweeping of the rooms is done by the same sweeper who does work in the remaining portion of the building. But this is not a conclusive circumstance. It could as well be that there are independent engagements of the same sweeper by the first respondent and respondents 2 and 3. The evidence available is sufficient for holding that respondents 2 and 3 are in exclusive possession of the room.