SALIM Vs. FATHIMA MUHAMMED
LAWS(SC)-2006-2-72
SUPREME COURT OF INDIA
Decided on February 24,2006

SALIM Appellant
VERSUS
FATHIMA MUHAMMED Respondents


Referred Judgements :-

DEVI DASS VS. MOHAN LAL [DISTINGUISHED]
TEJ BHAN MADAN VS. ADDITIONAL DISTRICT JUDGE [REFERRED TO]



Cited Judgements :-

KRISHNAMURTHY VS. VIMALA [LAWS(KAR)-2015-8-242] [REFERRED TO]
SEBASTIAN THOMAS VS. THOMAS [LAWS(KER)-2015-2-15] [REFERRED TO]
THAZHEPADIKKAL VASANTHA VS. GIRIJA SUNDARAN [LAWS(KER)-2007-3-78] [REFERRED TO]
SADHNA DEVI VS. UNITED BANK OF INDIA & ORS [LAWS(DLH)-2018-5-411] [REFERRED TO]
NANI VS. SURENDRAN [LAWS(KER)-2018-4-117] [REFERRED TO]
DHIRUBHAI LAXMANBHAI DOBARIYA VS. ASHWIN JAYANTILAL DOSHI [LAWS(GJH)-2022-4-1170] [REFERRED TO]


JUDGEMENT

- (1.)LEAVE granted.
(2.)IN this appeal, the landlord has challenged the order of the High Court whereby, setting aside the order of eviction passed by the Rent Control Court upheld in the appeal by the District Judge, the eviction petition has been remitted to the Rent Control Court to examine whether the sale deed in favour of the appellant is a sham transaction.
The appellant sought eviction of the respondents/tenants under S.11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, "the Act") on the ground of his bona fide need for own occupation. The premises in question were purchased by the appellant from its erstwhile owner Ranjith under a registered sale deed dated 30-9-1995. The premises, a shop, was let out to one B.K.Muhammed in the year 1958 on a monthly rent of Rs. 25, which was increased to Rs.45 from 1985. The said tenant (B.K.Muhammed) expired in 1994 and the eviction petition was filed against his legal representatives, (that is Respondents herein and ten others). Only the Respondents herein (one of the two widows and two of the eleven children) contested the eviction petition. The others remained ex parte. It is not in dispute that the respondents attorned in favour of the appellant and paid rents to him.

The eviction was sought on the ground that the appellant has no business of his own and had purchased the premises for the purpose of conducting his own business of Fast Food and cool drinks. The Respondents resisted the eviction petition, by denying the need put forth by the Appellant. They also contended that the sale deed dated 30-9-1995 (Ext. A-1), was a sham document, created with the intention of evicting them. The Rent Control Court allowed the eviction petition by order dated 18-11 -2000. It recorded a finding of fact negating the plea of the sale deed being a sham document executed for the purpose of evicting the respondents. The need of the landlord was held to be bona fide and, accordingly, an order of eviction was made. The respondents challenged the order of eviction, in an appeal filed under S.18 of the Act. The Appellate Court, by Judgment dated 4-7-2001, affirmed the order of the Rent Control Court. It held that no tangible evidence was placed by the tenants to show that the appellant was a friend of the former owner or that there was any collusion between them in an attempt to evict them. The plea of transaction being sham, was rejected by the appellate court as well.

(3.)THE tenants filed a revision petition filed in the High Court under S.20 of the Act. THE High Court, by the impugned order dated 5-11-2002 set aside the orders of the courts below on two grounds: (i) the courts below failed to attach sufficient importance to the contention of the Respondents that the sale in favour of the appellant was a sham transaction: and (ii) the landlord had failed to explain how he could purchase a shop measuring about 300 sq. ft. situated in a commercial area in Cochin City at a low price of Rs.11,000 and therefore, the matter required a further probe. Consequently, it remitted the matter to the Rent Control Court to examine whether the sale in favour of the Appellant was a sham transaction. THE High Court placed considerable reliance on the decision of this Court in Devi Dass v. Mohanlal ((1982) 1 SCC 495). In that case the tenant contended that the sale by the original owner in favour of the landlord was sham and had been made with the ulterior motive of evicting the tenant. THE appellate authority rejected the tenant's case on the ground that he could not challenge the validity of the sale deed executed in favour of the landlord, not being a party to the deed. THE High Court did not advert to the contention at all. In the circumstances, this Court observed :
"An allegation had been made that in reality there was no sale and the sale deed was a paper transaction. THE court had to record a finding on this point. THE appellate authority however did not permit counsel for the tenant to refer to the evidence adduced on this aspect of the matter. THE High Court also did not advert to it. We, therefore, allow this appeal, set aside the decree for eviction and remit the case to the trial court to record a finding on the question whether the sale of the building to respondent Mohan Lal was a bona fide transaction upon the evidence on record."

Having heard the learned counsel for the parties and on perusal of the record we are unable to sustain the impugned order of the High Court. We find that on appreciation of evidence and consideration of all relevant facts, the Rent Control Court as also the appellate court have recorded a finding of fact rejecting the plea of sale transaction being a sham one. There was no material to demonstrate any link, connection, relationship or friendship between the erstwhile owner and the appellant. The area of the shop, the rent for the shop, the locality in which it was situated and the sale consideration which were put forth by the tenants as the relevant factors, were taken into consideration for recording a finding, that the transaction was not sham.



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