Decided on August 23,1993



K. J. Joseph, J. - (1.)THIS revision is against the judgment of the Rent Control appellate Authority, Thiruvanathapuram in R. C. A. No. 4 of 1990 filed against the order of eviction passed by the Rent Control Court, Thiruvananthapuram in r. C. P. No. 58 of 1981 under S. 11 (2) (b) and 11 (4) (iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965.
(2.)BEFORE the Rent Controller. P. W. 1 claims to be the owner of the (enanted premises under Ex (. A2 family partition deed dated 19-6-1975 executed between himself and his brother. PW2. Originally. the tenanted premises belonged to PW2 and others. The revision petitioner executed ext. B9 patta kachit dated 7-12-1957 in favour ofpw2 wherein 5 cents of land specifically slated therein with the fencing and the gate were leased out to the revision petitioner on a monthly rent of Rs. 12/- for conducting a timber business. Permission also was given to the revision petitioner to construct temporary sheds for the purpose of his timber business with an undertaking to remove the same at the time of surrender of the property on demand. Thereafter. it is a case of PWs. 1 and 2 that the above lease agreement had been terminated on 16-9-1961 as is seen in the endorsement on Ext. B9 itself and Ext. A1 rent deed was executed by the revision petitioner in favour of PW2 on that date itself vi/. 16-9-1961. wherein the building and the land were given on lease to the revision petitioner for a monthly rent of Rs. 25/ -. But the revision petitioner has defaulted the rent from January. 1974 onwards. It is also the case of PW1 that the building is very old and in a dilapidated condition and he bona fide requires reconstruction of the said building and according to him. he has the ability to reconstruct the building in accordance with Ext. A5 plan and Ext. A7 building permit. As staled earlier. PW1 claims to be the owner of the tenanted premises on the strength of Exl. A2 partition deed and hence he filed a petition for eviction of the revision petitioner on the ground of arrears of rent under s. 11 (2) (b) of the Kerala Buildings (Lease & Rent Control) Act. 1965 and on the ground of reconstruction of the building under S. 11 (4) (iv) of the Act.
But. according to the revision petitioner. he is not a building tenant and there is no landlord-tenant relationship between himself and PW1. The lease arrangement under Ext. B9 dated 7-12-1957 is still continuing and only land alone was leased out to him by PW2, the brother of the present landlord for commercial purpose and hence he is entitled to gel the benefit of s. 106 of the Kerala Land Reforms Act. He also stated that there is no arrears of rent and the building did not bona fide require any reconstruction and the petition is filed only as a ruse to evict the revision petitioner from the tenanted premises.

Evidence was let in before the Rent Control Court wherein both oral and documentary evidence were adduced. Since the title of the landlord is disputed. the matter was referred to the Land Tribunal. Thiruvananthapuram to decide the claim of tenancy raised by the tenant and the claim of the tenant under S. 106 of the Kerala Land Reforms Act. Before the Land tribunal. Thiruvananthapuram, the case was numbered as O. A. No. 51 of 1982 and the tenant was examined as PW1 who gave the evidence regarding the nature of the lease as well as the construction of the two sheds by him on the land. On the basis of the evidence adduced before the Land Tribunal. the Tribunal found that the tenant is not entitled to claim the benefit under S. 106 of the Kerala land Reforms Act.

(3.)THEREAFTER. evidence was adduced before the Rent control Court. PW2, the former land owner also gave evidence corroborating the evidence of PW1, the present landlord. The tenant was examined as DW1 and both sides relied on a commission report obtained in O. S. No. 1352 of 1978 between parties. After considering the entire evidence. Rent Controller ordered eviction under S. 11 (2) and 11 (4) (iv) of the Act finding that the rent is in arrears and the building is very old and is in a dilapidated condition. The rent Controller also found that the building situates in a commercial area of considerable importance and if the building is re-constructed ,landlord can use it very profitably. On the above evidence. the Rent Controller found that the landlord is entitled for eviction on the ground of construction also.
The tenant had filed an appeal before the Appellate authority as R. C. A. No. 4/ 90. The appellate authority also found that the revision petitioner is a building tenant and the denial of the title of the landlord is without any bona fides. The claim of the tenant for protection under S. 106 of the Kerala Land Reforms Act also was elaborately considered by the Appellate Authority and accepted the findings of the Rent Controller that tenant is not entitled to get protection under S. 106 of the Kerala Land Reforms act. The Appellate Authority also found that there is arrears of rent and the building requires reconstruction and hence confirmed the order of eviction passed by the Rent Controller. This revision is filed against the order passed by the Rent Control Appellate Authority.


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