SARADA OTHERS Vs. M K KUMARAN
LAWS(KER)-1968-8-9
HIGH COURT OF KERALA
Decided on August 23,1968

SARADA OTHERS Appellant
VERSUS
M. K. KUMARAN Respondents

JUDGEMENT

- (1.) THE revision petitions are directed against the decision of the District Judge of Kozhikode passed in revision under S. 20 of the Kerala Buildings (Lease and Rent Control) Act (2 of 1965.) M. K. Kumaran, who is the common respondent in both the revision petitions, filed separate petitions for evicting the revision petitioners under S. 11, sub-sections (2) and (3) of the Kerala Buildings (Lease and Rent Control) Act, 1959. THE proceedings were continued under the Kerala buildings (Lease and Rent Control) Act, 1965 (2 of 1965) in view of S. 34 thereof. S. 11, sub-sections (2) and (3) of Act, 1959 correspond to S. 11, sub-sections (2) and (3) of Act 2 of 1965 and the provisions are identical. THE arguments of the counsel were therefore based on the provisions of Act 2 of 1965 hereinafter referred to as the Act. ' '
(2.) THE respondent is the owner of the building in T. S, no. 14 in Ward No. 18 in Calicut City. THE revision petitioner in CRP. 524 of 1968 is the tenant in occupation of the ground floor of the building while the revision petitioner in CRP. 526 of 1968 is the tenant occupying the first floor of the building. THE grounds on which the respondent sought to evict the revision petitioners are that they committed default in the payment of rent and that he 'bona fide' needs the building for his own occupation. Ex. A-4 is the sketch produced by the respondent along with the petitions. Ex. A-17 is the survey plan showing the lie of T. S. No. 14 and the adjacent survey numbers. Ex. C-1 is the plan and Ex. C-2 is the report filed by the commissioner appointed in the proceedings. Common evidence was adduced in the petitions and they were disposed of by a common judgment. The Rent Control Court ordered eviction of the revision petitioners only on the ground that they have not paid the arrears of rent in respect of the building in pursuance to the demand made by the respondent Though the Rent Control Court found that the need mentioned by the respondent for eviction is bona fide it took the view that such a need is not a ground for eviction under S. 11 (3) of the Act. The appellate authority who is the Subordinate Judge of Kozhikode also held that the need stated by the respondent in the petitions is bona fide but differing from the Rent Control Court took the view that the particular need is covered by S. 11 (3) of the Act. The appellate authority remanded the petitions to the Rent Control Court to decide whether the revision petitioners are entitled to the protection granted by the second proviso to S. 11 (3) of the Act. The order of the appellate authority was confirmed in revision by the District Judge of Kozhikode under S. 20 of the Act. The civil revision petitions have been preferred under S. 115, CPC. challenging the correctness of the decision of the District Judge. Before considering the grounds raised on behalf of the revision petitioners it is necessary to state the need mentioned by the respondent in the petitions for eviction. The respondent is conducting the komalavilas Restaurant in this building in "t. S. No. 18. It is admitted that the respondent is not the owner of the said building but only a tenant in occupation. The case of the respondent is that he proposes to construct a lodging house in the property in T. S. Nos. 15 and 16 which lie to the north of t. S No. 18 and north-east of T. S. No. 14. The Madras-Calicut Trunk Road lies to the west of T. S. No. 14. Since there is no approach road to T. S. Nos. 15 and 16 from the Madras Calicut Trunk Road the respondent prays for the recovery of the building leased to the revision petitioners to provide a direct approach from the Trunk Road to T. S. Nos. 15 and 16 and to the backyard of the komalavilas Restaurant for the convenience of the respondent and his customers. In Ex. C2 the commissioner stated thus: "the Municipal lane T. S. No. 20 on the south of the premises marked in the plan (Ex. Cl) which is leading to a private lane behind the Komalavilas building is too narrow to admit of any passage even for a rickshaw. The width of it at the mouth is about 7 feet, but it is blocked by the Municipal Water tap marked in the plan Also two drains one on either side of it further reduce its space. Further on from the mouth the lane has only a width of about 4 feet. Access by the land is impossible. Therefore the petitioner claims surrender of his building in T. S. No. 14 in which case he can demolish building No. 18/45 and make a passage through it to enter into his other premises, in T. S. 15 which is owned and used by him as a store room and also into T. S. 16 where he has planned to build a lodging house. There is a well in it and also a latrine intended for the use of the inmates. " There is therefore satisfactory evidence to prove the necessity for an approach road to T. S. Nos. 15, 16 and 18 and that it can be provided only through T. S. No. 14 where the building in the possession of the revision petitioners is situate.
(3.) THREE grounds were raised by the learned counsel for the petitioners. (1) The need of the respondent found by the courts below is different from that pleaded by him in the petitions and the finding of the courts below is therefore vitiated. (2) The bona fide need of the respondent found is not a sufficient ground under S. 11 (3) of the Act. (3) The petitions for eviction should have been dismissed as there is no termination of the tenancy under S. 106 of the Transfer of Property Act. Ground 1. It has been found by all the authorities under the Rent Control Act that the need mentioned by the respondent is true and also bona fide. The submission of the learned counsel for the petitioners was that in the petitions for eviction the respondent stated that he is proposing to construct a lodging house on the backyard of the Komalavilas restaurant in T. S. No. 18 and the approach road through T. S. No. 14 is intended as an access to that building but the courts below without entering any finding on the case pleaded have found on a case not in the pleadings but developed only in the course of the trial even without amending the petitions and the revision petitioners have been prejudiced thereby. In Para. 8 of the petition the respondent stated that if the premises in the possession of the petitioners are made available he intends to demolish the structure which will give sufficient open space through which there will be access to the backyard of the Komalavilas Restaurant. The averment in Para. 9 of the petition is that the respondent is planning to extend the business by making provisions for boarding and lodging for which purpose buildings are to be constructed in the backyard where there is sufficient space. In- x. A4 sketch filed by the respondent along with the petitions it is shown that T. S. No. 16 is the site for the lodging house. This shows that the reference in Para. 8 and 9 of the petition to the backyard is not to the backyard of the Komalavilas Restaurant but to the property in T. S. No. 16. Counsel for the revision petitioners pointed out that the respondent acquired the rights over the grounds comprised in T. S. No. 15 and 16 only 4 months before the disposal of the petitions by the Rent Control Court and therefore the respondent could not have pleaded his need about the construction of buildings in T. S. Nos. 15 and 16 in the petitions. This statement also is not correct. There are two buildings in T. S. Nos. 15 and 16 and the occupants thereof obtained the building sites alone on karaima rights. The properties in T. S. Nos. 15 and 16 were purchased by the respondent long prior to the filing of the petitions subject to the karaima right in favour of the occupants of the buildings. P. W. 1 who is the respondent has deposed that he purchased the properties comprised in T. S. Nos. 15 and 16 long before the filing of the petitions and that he purchased the karaima right in respect of the houses in T. S. Nos. 15 and 16 after the filing of the petitions. There is no counter evidence. The evidence of PW. I was accepted by all the courts. I do not therefore find any substance in the plea that the revision petitioners are prejudiced because of want of pleadings. then it was submitted on behalf of the revision petitioners that the extent of T. S. No. 15 and 16 given by the respondent is wrong and the area is not sufficient for constructing a lodging house. The side measurements of both the survey numbers are given in Ex. A 17, and it is seen that there is a mistake in the evidence of PW. 1 regarding the extent of the items. But that alone is not sufficient to discard the respondent's case. It is not possible to hold that a lodging house cannot be constructed in the area available in F. S. Nos. 15 and 16 as disclosed by Ex. A 17. There was no attempt made by the revision petitioners before the Rent Control Court to show that the construction of a lodging house in the site is impossible. All the three courts have found that the need mentioned by the respondent is true and bona fide and for that purpose it is necessary for him to get back the building in T. S. No. 14. I do not find any ground under S. 115, CPC. to hold that the said finding is vitiated. The first ground raised is therefore overruled.;


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