Kerala High Court
Jayaprakash vs Jayasree Unnikrishnan on 20 October, 2010
Bench: Pius C.Kuriakose, P.S.Gopinathan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 317 of 2010()
1. JAYAPRAKASH, AGED 52,
... Petitioner
Vs
1. JAYASREE UNNIKRISHNAN, AGED 34,
... Respondent
For Petitioner :SRI.V.VENUGOPALAN NAIR
For Respondent : No Appearance
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :20/10/2010
O R D E R
PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ.
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R.C.R.Nos. 317 & 318 OF 2010
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Dated this the 20th day of October, 2010
COMMON ORDER
Gopinathan, J.
These revision petitions are filed by the respondents/tenants in RC(OP) Nos.1/2007 & 2/2007 on the file of the Rent Controller/Munsiff Magistrate, Paravur assailing the common judgment whereby the eviction granted in favour of the landlord under Section 11 (3) of the Kerala (Buildings Lease & Rent Control) Act 1965 was confirmed by the Appellate Authority. The respondent/landlord instituted the Rent Control Petitions before the Rent Controller seeking order of eviction under Section 11 (3) of the Act stating that the petition schedule buildings along with four other rooms in the possession of the respondent are bonafide required for starting a super market. The respondent asserted her right over the petition schedule building on the strength of Ext.A2 Will executed by her late father from whom the revision petitioners obtained RCR.Nos.317, 318/2010 2 lease on the strength of ExtS.A3 and A13. The eviction was also sought under Section 11 (2)(b). Subsequently, arrears of rent has been deposited and that ground is no more available.
2. The revision petitioners denied the title of the respondent as well as the bona fide need urged and contended that the eviction was sought only as a pretext for eviction and there is lack of bona fides. The petitioners also claimed benefit under the second proviso to section 11 (3) of the Act and also contended that the building was let out to them by late Janardan Pilla who expired on 13/2/2004. Thereafter, they attorned with Meenakishiamma, the widow and that Meenakshiamma executed Ext.B5 and B11 lease deeds whereby the revision petitioners have lease hold right till 3/1/2011 and the eviction sought is hit by section 11(9).
3. Before the Tribunal, the respondent and another were examined as PWs 1 and 2 . Exts.A1 to A7 were also marked on their side. Exts.B1 to B11 were marked on the side of the revision petitioners who adduced no oral evidence.
4. The Rent Controller on appraisal of the evidence arrived at a finding in favour of the respondent. Consequently RCR.Nos.317, 318/2010 3 overruling all objections, the revision petitioners were directed to give vacant possession of the petition schedule buildings under Section 11(3) of the Act.
5. Assailing the said orders, RCA Nos. 41/2008 and 42/2008 were filed before the Appellate Authority, Kollam. The Appellate Authority by the impugned common judgment dated 21/6/2010 concurred with the Rent Controller and dismissed the appeals. Assailing the legality, correctness and propriety of the above common judgment, these revision petitions were filed.
6. We heard Sri.V.Venugopalan Nair, learned counsel appearing for the revision petitioners and perused the judgment impugned. One of the contentions that was advanced is that by virtue of Ext.B6 and 11 documents executed by the mother of the respondent the tenants would get a right to continue up to 3/1/2011 and that the eviction sought is hit by section 11 (9) of the Act. It is admitted by the learned counsel that Exts.B6 and 11, the execution of which is denied, were not registered. In the event the lease deeds were executed for a period exceeding one year, necessarily the documents had to be registered. Since the claim of the revision petitioners is that the lease deeds RCR.Nos.317, 318/2010 4 were executed for a period of five years and since the documents were not registered and since the revision petitioners failed to adduce any evidence in proof of the execution of the same, we reject those documents as hit by Sections 17(1)(d) and 49 of the Registration Act. We find that the authorities below were perfectly justified in rejecting those documents and overruling the claim of protection under section 11(9) of the Act.
7. The respondent claimed her title on the strength of Ext.A2 will executed by her late father from whom revision petitioners obtained lease by virtue of Ext.A3 and A13. Though the respondent did not adduce evidence regarding execution of Ext.A2 will, the authorities below found that the respondent is one of the legal heirs and in the absence of other heirs not raising any claim, she would come within the definition of landlord to sustain a petition for eviction. It is a just and legal finding. We find no reason to interfere.
8. The first respondent had given evidence in support of her claim that the petition schedule buildings were bona fide required to start a super market along with other four rooms in RCR.Nos.317, 318/2010 5 her possession. There is no material brought on record to show that the respondent was employed otherwise or that the bona fide need urged is not genuine. It is pertinent to note that the revision petitioners even did not care to enter the witness box and to deny the bona fide need deposed by PW1. The result is that the evidence of PW1 which withstood cross examination remains uncontroverted. The Rent Controller as well as the Appellate Authority had gone through the evidence of PW1 meticulously and on failure to find out any material to doubt about the bona fides, the evidence was accepted and the eviction was granted.
9. Sitting in revisional jurisdiction under Section 20, we find no error, illegality, irregularity or impropriety in the judgment impugned. As regards the benefit of the second proviso, the revision petitioners had not at all adduced any evidence either regarding their income or non availability of suitable building in the locality. Therefore, the revision petitioners are not entitled to the benefit of the 2nd proviso to section 11(3). In the above circumstances, we find no reason to entertain these revision petitions.
RCR.Nos.317, 318/2010 6
10. The learned counsel for the revision petitioners having failed to impress us to admit the revisions sought for one year's time to vacate the premises. We find that the time sought for by the learned counsel is too long and no way can be entertained and that time of six months is just and proper.
11. In the result, both the revision petitions are dismissed. The revision petitioners are granted six months time from today to vacate the premises on the following conditions;
i). The revision petitioners shall file affidavits within three weeks from today before the Rent Controller undertaking to vacate the premises on or before 20/4/2011 without any objection.
ii). The revision petitioners shall discharge all the arrears of rent and shall continue to pay damages for use and occupation at the contract rate of rent without any fail.
In the event of the revision petitioners fail to comply with either of the conditions, the respondent is at liberty to get the order of eviction executed. In the event of compliance of the above conditions, the Rent Controller/Execution Court shall keep RCR.Nos.317, 318/2010 7 the order of eviction in abeyance till 20/4/2011.
PIUS C.KURIAKOSE,JUDGE P.S.GOPINATHAN, JUDGE dpk