KODIYIL ABDU Vs. KODIYIL PATHUMMA

JUDGEMENT

(1.) THE first respondent in R.C.P. No. 62/93 on the file of the Rent Controller (Munsiff), Taliparamba, who was the first respondent before the Rent Control Appellate Authority (District Judge), Thalassery (hereinafter referred to as the tenant) is the revision petitioner. Deceased first respondent (hereinafter referred to as the landlady) filed R.C.P. No. 62/93 against the revision petitioner and his brother, the second respondent in all these proceedings, claiming eviction of the tenants from the shop building with Old Door No. TP VI/440 of the Taliparamba Panchayat and New No. XII/783 of the Taliparamba Municipality for the purpose of own occupation under S.11(3) of the Kerala Buildings (Lease and Rent Control) Act and also on the ground that the tenant had other buildings in his possession in the same Municipality under S.11(4)(iii) of the Act. In the rent control petition she alleged that the building had been taken on lease by the two respondents as per Ext. A1 rent chit dated 29/11/1977 on a monthly rent of Rs. 75/-. The lease was for a period of six months, but was continued even after the expiry of the term. She further stated that the second respondent was not in possession or enjoyment of the building and the first respondent (revision petitioner) alone was in possession and he was paying the rent also. She alleged that he had other buildings in the municipality sufficient for his requirements. She also stated that one of her sons, khalid was unemployed and was dependent on her and the building was required for him for conducting a business. The revision petitioner resisted the petition. In his counter statement he contended that the two respondents were the brothers of the landlady. The building originally belonged to their Tharavad Mammed, the father of the petitioner as also the respondents had taken the building on rent from his wife's family in 1930 for conducting a business in groceries and handloom textiles. He contended that he was originally helping his father in the business, but, later took over the entire business when the father fell sick. As per the partition in the family, the building was set apart to the share of the petitioner landlady and possession was continued under her. Thus he claimed possession prior to 1/4/1940 and protection from eviction under S.11(17) of the Act. He denied the landlady's claim that her son, Khalid was unemployed and was depending on her. All the sons of the landlady were engaged in one kind of business or other. They had business establishments in Taliparamba, Payyannur and Kannur and a shopping complex was also coming up in Kannur. There was no necessity for Khalid to conduct a business of his own. They had also other landed property in different places. He further contended that his brother, second respondent had joined the rent deed only as insisted upon by the landlady's husband, but, at the same time, disputed the statement that he had no interest in the business. He also denied the averments that he had other buildings in his possession, sufficient for his requirements. He stated that the shop building possessed by him was very old and was not sufficient for business conducted by him.

(2.) AT the trial, the landlady's son, Khalid, whose need was projected in the petition, was examined as PW 1. The revision petitioner, tenant was examined as RW 1 and two other witnesses as RWs 2 and 3. Exts. A1 to A5 series documents were marked on the side of the landlady and Exts. B1 to B11 series documents on the side of the revision petitioner tenant. On a consideration of the evidence, the Rent Control Court by its order dated 24/6/1994 found that the landlady had failed to establish the claim for eviction on both grounds and dismissed the petition. However, in R.C.A. No. 110/94, the appeal filed by the landlady, the appellate authority has reversed the findings and found that she was entitled to eviction under S.11(3) as also S.11(4)(iii) of the Act. The correctness of the order is challenged in this revision.

(3.) THE claim under S.11(17) of the Act can he considered first. The revision petitioner has put forward a case that he is in possession in continuation of his father, who had taken the building on lease in 1930 or there - about from his wife's family. It is an admitted case that the building belonged to a Muslim Marumakkathayam Family taking in the landlady and her two brothers, who were the respondents before the Rent Control Court. In a partition the building is set apart to the share of the landlady. It is admitted that the two brothers have executed Ext. A1 rent deed in her favour in 1977. Ext. A1 shows that the property was set apart to the share of the Thavazhi consisting of the landlady and her children as per Ext. B3 partition deed of the year 1963 and the building had been reconstructed by her husband. The document also shows that there were some disputes regarding the building. All such disputes were settled and it was taken on rent by the two brothers from the landlady on a monthly rent of Rs. 75/-. Any previous possession had been put an end to by the terms of Ext. A1. Even if the revision petitioner's father was in possession as a tenant earlier, it must be noted that the landlady is also one of his children. The revision petitioner stated that his father was the tenant and when he fell sick the revision petitioner took over the business sometime in 1955 and continued the trade. In his evidence as RW 1, he has stilted that his father was running a business in groceries and handloom textiles. At present, he is conducting a business in mats, coir products, beddings etc.. in the petition schedule premises. None of the records produced by him help to trace possession with him or his father to a date prior to 1-4-1940. Whatever was the position prior to 29-11-1977, any previous tenancy must be deemed to have been put an end to with the execution of Ext. A1 rent deed in 1977. So the revision petitioner cannot claim protection under S.11(17) of the Act. It has been correctly so found by the authorities below.