ASHER Vs. HASSANKUTTY HAJEE
LAWS(KER)-2003-12-17
HIGH COURT OF KERALA
Decided on December 19,2003

ASHER Appellant
VERSUS
HASSANKUTTY HAJEE Respondents

JUDGEMENT

- (1.) The question that is posed for consideration in this case inter alia is whether the right of coownership over a building would disentitle a landlord under the first proviso to S.11(3) for claiming eviction under S.11(3) of the Act.
(2.) Eviction from a residential building was sought for under S.11(3) of the Act by the father for the dependent son to be used as son's residence cum office. Rent Control Court and Appellate Authority have concurrently found that the need is bona fide and ordered eviction. Tenant before the Rent Control Court however, claimed benefit of the first proviso to S.11(3) contending that while the rent control proceeding was pending the landlord has acquired another building in the same locality called Beach Hotel at Kozhikode, therefore disentitled from claiming eviction. Reference was made to Exts.B2 and B3 documents. B2 is the certified copy of the petition in RCP. 14/93 filed by the landlord and 10 others for eviction of Beach Hotel premises. B3 is the certified copy of the statement with EA. 167/98 in RCP. 14/93. Placing reliance on those documents tenant contended that landlord could occupy that premises for office - cum - residence. Contention was rejected by the Rent Control Court accepting the contention of the landlord that he has only a fractional share in Beach Hotel building. Further it is also noticed that Beach Hotel building is used for conducting a commercial Hotel and the same is in a highly dilapidated condition. Rent Control Court held subsequent acquisition of possession of the Beach Hotel premises by the landlord and 10 others would not disqualify the landlord from claiming vacant possession of the petition schedule building. Claim for protection of the first proviso to S.11(3) by the tenant was therefore rejected by the Rent Control Court.
(3.) Tenant filed appeal before the Appellate Authority. IA.2102/99 and IA.2892/2000 were filed for reception of documents as additional evidence. He also filed IA. 1998/99 for issue of a commission which was dismissed. Appellate Authority allowed IA.2102/99 and IA.2892/2000 and Exts.B74 series, B75 series, B76 and B77 documents were marked. Appellate Authority after perusing the documents produced by the tenant as well as examining the contentions raised noticed that the landlord has only a fractional right in Beach Hotel building and he is not in exclusive possession of the same. Appellate Authority placed reliance on the Division Bench decision of this Court in Gupta v. Mohammed, 1995(1) KLT 701, which held that exclusive ownership of the landlord over the other building is not a sine qua non for invoking the first proviso to S.11(3) of the Act. In order to attract bar under first proviso S.11(3) of the Act the Bench held he must be in exclusive possession of that building. Appellate Authority therefore held there is no evidence to show that landlord is in exclusive possession of Beach Hotel premises so as to attract the bar under first proviso to S.11(3). Further it was also noticed that other coowners had sold a portion of the property which would indicate that they have no intention to give any portion of the property to the petitioner exclusively for his dependent son. Before this court tenant filed CMP.3893 of 2001 for receiving B78 to B80 documents. In the affidavit filed in support of the petition it is stated as follows: "On the basis of allegations made in the counter affidavit in LA. No.2802/2000,1 made investigation to find out as to what was the share which the first respondent had in the extent of 58.6 cents admittedly sold to Beach Heritage Inn (P) Ltd. It may be stated that on a reading of Ext.B1 partition deed of 1976, it can be found that the Beach Hotel premises had been kept in common by the legal heirs of Avarankutty Haji, the father of the first respondent herein. The 1976 partition deed has been executed after the death of Avarankutty Haji, and his legal heirs as on the date of partition were the first respondent, his brother Kunhalavi, and four sisters. On scrutiny of title deeds in relation to the property sold to Beach Heritage Inn Pvt. Ltd., I could lay my hands on to only three documents, namely, document No.581/2000, 582/2000 and 583/2000 of the District Registrar's Office, Calicut. 581/2000 and 583/2000 are executed by 2 of the sisters of the first respondent and document No.582/2000 is executed by the first respondent. The first respondent in the said document 582/2000 recites that he has 100/400 share. In the document executed by the sisters, each of the sisters state that they have 90/400 shares each. Documents in relation to the remaining 120/400 shares is yet to be searched out. A perusal of the document No.582/2000 executed by the first respondent clearly indicate that he owns 1/4 share in the property assigned to Beach Heritage Inn Pvt. Ltd. The aforesaid document would show that the coowners have come together, and they have by separate documents assigned a distinct item of property reciting in each of the documents that they have a specified share. A reading of the documents also leads to the inference that neither the assigned property nor the remaining extent (71.4 cents) had been divided among the coowners by metes and bounds." Senior Counsel appearing for the tenant Sri. V.R. Venkata Krishnan placing reliance on the above mentioned documents and the affidavit submitted that even as a coowner it is well within his rights to use any of the buildings in the Beach Hotel premises, particularly building No. 1 referred to in the commission report in RCP. 14/93 or to allow his son to use as an office - cum - residence. Senior counsel appearing for the landlord Sri. S. Venkita Subramania Iyer contended that documents produced as well as the affidavit filed ia support of the various petitions would positively show that the landlord is only a coowner in respect of that property, a portion of which has already been sold.;


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