VIALAPARAMBIL GOPI Vs. CHUNDAMVEETTIL PAZHAYA OTTAYIL MOHD. BASHEER
HIGH COURT OF KERALA
Chundamveettil Pazhaya Ottayil Mohd. Basheer
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PIUS C.KURIAKOSE, J. -
(1.) THE 2nd respondent, the alleged sub-lessee is the revision petitioner. The Rent Control Petition was filed by the landlord, the 1st respondent herein, arraying the revision petitioner and the 2nd respondent herein as respondents. The parties will be referred to hereinafter as sub- lessee, landlord and tenant respectively.
(2.) THE Rent Control Petition was filed invoking Sections 11(2)(b), 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Kerala Statute'). The ground under Section 11(2)(b) no longer survives. The allegations in the context of the ground under Section 11(4)(l) were that 2nd respondent herein is the tenant on the basis of a rent deed (Ext.A1); that the premises were sub-let and transferred by the tenant to the sub-lessee unauthorisedly and that the sub-lessee is presently in possession and conducting goldsmithy works. The averments in the context of the ground under Section 11(3) were that the premises were required by the landlord bona fide for conduct of business, he having no other building in his possession for the said purpose.
The tenant did not contest. The alleged sub-lessee contended that one Sankaran, father of himself and the tenant had taken the building on lease 50 years back for the conduct of goldsmithy works; that being sons both the tenant and the sub-lessee used to assist Sankaran in his work; that Sankaran died in the year 1992; that in the family partition which took place thereafter, the schedule premises were kept apart for the share of the sublessee; that the sub-lessee used to pay rent to the landlord after the demise of Sankaran; that Ext. A1 rent deed was executed at the instance of the landlord who insisted that a rent deed should be executed in favour of one person only; and that notwithstanding the execution of Ext.A1 both the brothers were working together in the building and paying rent jointly till 1999 when the tenant went abroad on a working visa. It was further contended that the claim for own occupation was bereft of any bona fides and that at any rate he is entitled to the protection of the Second proviso to Section 11(3).
(3.) THE Rent Control Court on an evaluation of the evidence which included the rival testimonies of the landlord and the sub-lessee as well as Exts. C1 and C2 commission report and plan found that there was no landlord-tenant relationship between the sub-lessee and the landlord and that the 2nd respondent is in possession of the premises as a sub-lessee under his brother, the tenant. That Court also found that the claim for bona fide own occupation was genuine and further found that there was no evidence to hold that the tenant was entitled to protection of the second proviso to Section 11(3).;
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