K BALAKRISHNA MENON Vs. DISTRICT JUDGE KOZHIKODE

JUDGEMENT

(1.) Petitioner is the respondent in R.C.P. No. 43/1981 on the file of the Rent Control Court, Kozhikode. He was the tenant of a building belonging to the 4th respondent. The 4th respondent/landlady filed an application for eviction of the petitioner/ tenant on the ground of bona fide need for the occupation of her husband's sister and her children under S. 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. According to the landlady, the husband of the sister-in-law died on 15-8-1979 and the sister-in-law and her children are thereafter depending on the husband of the landlady. The landlady also alleged that there is no other building in her possession for the use and occupation of her sister-in-law and her children. The claim for bona fide occupation of the landlady was disputed by the petitioner/tenant. According to him, the sister-in-law of the landlady and her children are residing at her husband's house at Koothupramba and she is not a member of the family of the landlady. He has also disputed the statement that the sister-in-law is depending on the landlady and therefore, according to the tenant, the application under S. 11(3) of the Act is not maintainable. He has further stated that till the date of death of the husband of the sister-in-law, she was staying in the husband's house without any difficulties and therefore, the petition filed by the landlady for eviction is a ruse to evict him from the tenanted premises. The tenant also claimed kudikidappu right in respect of the tenanted premises. He also alleged that he is conducting a job typing in the petition schedule house and himself and his family are depending on the income from the job typing work which is being conducted in the petition schedule building and there is no other building available in the locality for conducting the typewriting job.

(2.) The question of kudikidappu right was referred to the Land Tribunal by the Rent Control Court under S. 125(3) of the Kerala Land Reforms Act. The Land Tribunal after an enquiry, passed an order holding that the tenant is not entitled to get the kudikidappu right over the petition schedule building. This finding was accepted by the Rent Control Court. The landlady's sister-in-law was examined in the case as PW2 and the landlady was examined as PW 1. The tenant was examined as RW 1 and on his behalf, 2 other witnesses were also examined as RWs 2 and 3. After trial, the Rent Control Court found that the need expressed by the landlady is bona fide and hence ordered eviction of the tenant on the ground under S. 11(3) of the Act.

(3.) The tenant filed an appeal before the Rent Control Appellate Authority, the 2nd respondent. The 2nd respondent considered the matter in detail. On an appreciation of the evidence adduced before the Rent Control Court, the Appellate Authority found that the sister-in-law of the 4th respondent, landlady for whose occupation the building is sought to be evicted cannot be treated as a member of the family of the landlady. The Appellate Authority also found that it was only a desire of PW 2, the sister-in-law to shift her residence from Koothuparamba to Kozhikode and the same cannot be considered as bona fide requirement of the landlady. The Appellate Authority further found that there is another house at Puthiyara belonging to the unmarried sister of PW 2, the sister-in-law of the landlady and there is no reason why she could not shift her residence from Koothuparamba to her own sister's house at Puthiyara. The Appellate Authority further found that the documents produced by the landlady to prove that her sister-in-law is depending on her husband had been created for the purpose of creating evidence for filing the eviction petition. The Appellate Authority, therefore, found that the sister-in-law was not a dependant on the landlady and by no stretch of imagination, she could be said to be a member of the landlady's family. Therefore, the Appellate Authority set aside the order of eviction passed by the Rent Control Court as per Ext. P 2 order dated 17-7-1986. In Ext. P2 order, the Appellate Authority also found that the tenant is not entitled to get the right of kudikidappukaran under the Kerala Land Reforms Act and therefore, confirmed the finding of the Rent Control Court in that regard.