Kerala High Court
Thottungal Velayudhan, S/O. ... vs Secretary, Youth Congress Office And ... on 28 February, 2003
Equivalent citations: 2003 A I H C 3360, (2003) 2 KER LJ 81, (2003) 2 KER LT 408, (2003) 2 RENCJ 144, (2003) 2 RENCR 115, (2003) 2 RENTLR 501, (2003) 2 KHCACJ 410 (KER)
Author: K.K. Denesan
Bench: K.K. Denesan
JUDGMENT Sankarasubban, J.
1. This Civil Revision Petition is filed against the judgment in R.C.A.No. 82 of 1989 of the District Court, Kozhikode. Landlord is the revision petitioner. Petition for eviction was filed under Sections 11(2)(b), 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control Act) (hereinafter referred to as 'the Act'). The Section which survives for consideration is Section 11(4)(i) of the Act.
2. According to the landlord-petitioner, he purchased the petition schedule building as per Ext.A1. The first respondent in the Rent Control Petition Andikutty was the tenant of the building, who got tenancy from the previous landlord. After the petitioner purchased the building, the petitioner became the landlord. The case regarding sublease is as follows:
3. According to the petitioner, the second respondent is in occupation of the room. The first respondent subleased the building without any authorisation or consent. Hence, the ground Section 11(4)(i) of the Act was made. The first respondent filed objection. In the objection, it is stated that he is the tenant of the building. So far as the second respondent is concerned, he submitted that he is in possession of the building even before the purchases of the property by the petitioner, he continued to be in possession. According to the second respondent, it is the tenant of the building. Even if it is not accepted, according to the second respondent, the long possession of the second respondent shows that it has been recognised by the landlord as tenant. It is with these pleadings that the matter went to trial. In the trial stage, witnesses were examined on behalf of the petitioner and documents were also marked.
4. The Rent Control Court on analysing the evidence gave importance to the recitals in Exts.A1 and A8, which are previous sale deeds, which show that Andikutty is the tenant. The Rent Control Court was justified in saying this because at the time of execution of Exts.A1 and A8, there was no eviction petition in contemplation. From the evidence it also found that the second respondent was in possession of the building at the time when it was purchased by the landlord. The second respondent even though put forward a plea of direct tenancy from the petitioner, it could not produce any evidence to show that the landlord leased the building to the second respondent. It was also not able to prove that consent of the landlord has been obtained. Further in the Municipal Register the occupant's name is shown as Andikutty. Andikutty also paid rent to the petitioner. The second respondent failed miserably to show that it was the direct tenant. So far as the subtenancy is concerned, argument was that since the second respondent was in possession of a long time, it should be deemed that the it was in occupation. But this was not accepted by the Rent Control Court. The court below found that there was no direct tenancy between the landlord and the second respondent, there was no consent for the sublease and also that mere long possession cannot lead to a possession that the landlord has acquiesced in.
5. The matter was taken in appeal by the second respondent. The Appellate Authority also agreed that Andikutty is shown as lessee. But it took the view that even at that time, the second respondent was in possession and came to the conclusion that because of long possession of the building by the sublessee, the landlord is deemed to be acquiesced in. On that basis, the findings of the trial court were negatived. It is against that the present Civil Revision Petition was filed.
6. We heard senior counsel Sri. P.N. Krishnankutty Achan for the petitioner and Sri. Alex for the second respondent.
7. Sri. Krishnankutty Achan brought to our notice a decision of the Supreme Court reported in John Chandy & Co. (P) Ltd. v. John P. Thomas - 2002 (2) K.L.T. 220, while Sri Alex brought to our notice the decision reported in A.S. Sulochana v. C. Dharmalingam A.I.R. 1987 Supreme Court 242. Sri. Alex contended that there was only an oral lease in favour of Andikutty. There was no inhibition in subletting. Hence, according to him, sublease is held to be with consent. We are not impressed with this argument. The Section clearly shows that it should confer a right on the sublessee. In A.S. Sulochana v. C. Dharmalingam - A.I.R. 1987 Supreme Court 242, the Supreme Court held thus "The mere fact that for as many as 18 years no objection was raised and no action for possession was instituted against the father of the appellant in his lifetime notwithstanding the fact that a sub-tenant was openly in occupation of a part of the rented premises, would give rise to an inference that it was never treated as unlawful subletting by the appellant or her father. There is nothing on record to show that the subletting in question, which was made in 1952, 18 years before the institution of the suit in 1970, was in violation of the relevant provisions of law. The appellant cannot succeed unless the appellant establishes that Section 10(2)(ii)(i) has been violated and the tenant has incurred the liability to be evicted on the ground of unlawful subletting notwithstanding the fact that the lease did not confer on him any such right and that such unlawful subtenancy was created without the written consent of the then landlord". In the other case, viz., John Chandy & Co. (P) Ltd. v. John P. Thomas - 2002 (2) K.L.T. 220, the Supreme Court held as follows: "Section 11(4) clearly indicates that the landlord can claim possession of the building from the tenant in case of sub-letting by the tenant without the consent of the landlord, in case the lease does not confer on the tenant a right to sub-let. The provision provides for "conferment" of right on the tenant to sublet the accommodation. That is to say, so as to be entitled to sublet, the tenant must be granted that right to do so, by the landlord. The expression 'confer' is pointer to something done overtly and explicitly". The court then dealt with acquiescence and consent and held as follows: "A distinction has also been drawn between 'acquiescence' and 'consent'. It is in relation to a dispute between a landlord and a tenant. There has to be something more than mere inaction or lack of initiative on the part of the landlord. In context with the above, we find our view reinforced on the meaning and import of the word 'consent' as used in Clause (i), Sub-section (4) of Section 11 of the Act wen read in the background of the word 'confer' in the latter part it will only mean that consent has to be with some positive action on the part of the landlord so that the tenant can be said to have had the authority to sub-lease his lease rights". According to us, the decision reported in 2000(2) K.L.T. 220 is apt on the facts of this case.
8. Here, we find that the petitioner purchased a property in 1983 and the petition for eviction was filed in 1986. The second respondent has not adduced any evidence to show how long it was in possession. Further, as per the terms of the Act, there should be positive clause enabling the lessee to sub-lease. There is no proof that such a condition exists. The Appellate Authority only on the basis of acquiescence held that there is no sublease. That is directly against the decision of the Supreme Court stated supra.
9. In the above view of the matter, we set aside the judgment of the Appellate Authority and restore the order of the Rent Control Court. The respondents are given four months time to vacate building on condition that they file an undertaking before the trial court that they will vacate the building on the expiry of the fourth month and also that they will pay rent uptodate. The undertaking shall be filed within four weeks from today. if such an undertaking is not filed as stipulated above, then the landlord can take steps to evict the tenants through court.
Civil Revision Petition is disposed of as above.