Judgment:
ORDER
Pius C. Kuriakose, J.
1. The landlord is the petitioner is this revision petition under Section 20 of Act 2 of 1965. He applied for eviction on the ground under Sub-section (3) of Section 11 read with Clause (IV) of Sub-section (4) of Section 11 own occupation after reconstruction. The Rent Control Court allowed the application and ordered eviction. The Appellate authority reversed the decision of the Rent Control Court, allowed the appeal preferred by the tenant and dismissed the RCP.
2. In this revision under Section 20 the landlord impugns the judgment of the Appellate Authority to the extent the same is against him. We have heard the submissions of Sri. T. Krishnan Unni, senior counsel and Sri. Jacob P. Alex, counsel appearing along with him on behalf of the revision petitioner landlord and also those of Sri. M. Narendrakumar, counsel for the contesting respondents, viz., respondents, 1,3,4 and 6 to 8 in the rent control petition. The facts as pleaded by the parties before the Rent Control Court have been narrated correctly both by the Rent Control Court and the Appellate Authority and hence we propose advert to the facts only briefly.
3. The building which is subject matter of the rent control proceedings was put up by Sri. Mathai George, father of the landlord more than 50 years ago and the landlord has come to have absolute ownership over the building by virtue of partition deed No. 978/89 of the Sub Registry, Pathanamthitta. The petition schedule building which is portion of a larger building was leased out to one P.C. Varghese, the husband of the first respondent in the RCP and father of the other contesting respondents in the RCP in the year 1952. Sri. P.C. Varghese was conducting a bakery under the name and style 'kurian's Bakery' in the building. Upon demise of Sri. P.C. Varghese in the year 1978 the tenancy rights developed upon his wife and children and on their behalf Sri. P.V. Jacob, the third respondent in the RCP and son of late PC. Varghese continued to conduct bakery business. The building, due to old age and poor quality of materials used has become dilapidated to such an extent as to warrant reconstruction. The building is situated in the fast developing town of Pathanamthitta which is the headquarters of the District The building is situated in the very heart of the town by the side of the main road. By reconstructing the building the same can be put to more profitable use. The landlord has the wherewithal to carry out reconstruction and has made all arrangements for reconstruction. The landlord was working as Mining Engineer in CEM India Co. Ltd., Rajasthan. He resigned the job in 1987 and intends to start business in coir products in the reconstructed building. The need of the landlord is bonafide, since the landlord has to find out his own means for eking out a living. The landlord pleaded that the tenants will not be entitled for the protection of the second proviso to Sub-section (3) since they are having other buildings in Pathanamthitta Town, to which their business can be shifted.
4. Respondents 1 and 7 in the RCP alone resisted the RCP by filing objection. It was contended by them that upon demise of the original tenant, respondents 1 to 7 in the RCP continued bakery business in the building and the said business is their only means of income. They contended that the building is satisfactorily fit and durable and does require reconstruction. It was alleged that the plea of reconstruction is only a ploy to evict the tenants. It is specifically contended that the proposed reconstruction is not possible on complying the relevant provisions of the rules within the space available. It was contended that a portion of the petition schedule building and the appurtenant ground belongs to the 8th counter petitioner in the RCP, viz., Sri. George Varghese, brother of the landlord and hence the landlord has no right or authority to demolish the entire existing building or to make any reconstruction without the permission of the 8th counter petitioner. Through the objections the bonafides of the need of the landlord for starting coir business was disputed. It was pointed out that the landlord was drawing a pretty salary and resigned the job to lead a peaceful life. It was also pointed out that the landlord has no children or dependents.
5. The evidence during enquiry by the Rent Control Court consists of Exts.A1 to A13 (c) and witnesses PWs. 1 to 3 and RW-1. The Rent Control Court considered the case under the following points.
1. Whether the petition schedule building is in a dilapidated condition?
2. Whether the petitioner has locus standi to file the present petition?
3. Whether the petitioner needs the petition schedule building bonafidely for own occupation after reconstruction?
4. Whether the respondents are entitled to get the protection under the second proviso to Section 11(3) of the Act?
5. Whether the petitioner is entitled to get the vacant possession of the petition schedule building from the respondent under Section 11(13) and Clause (iv) of Sub-section (4) of Section 11?
6. Reliefs and costs?
The Rent Control Court on an evaluation of the evidence which came on record answered all the points in favour of the landlord and accordingly ordered eviction granting the tenants a period of two months to vacate. The Appellate Authority however, would take the view that the only point which arises for determination is whether the landlord petitioner in the RCP who admittedly does not own the entirety of the petition schedule building, is entitled to maintain an action for eviction under Act 2 of 1965. Answering that point the learned Appellate Authority relying on Ext. A15 series commission report, mahazar and sketch obtained in O.S. 23/96 proved by PW3 Commissioner held that the portion on the west and north of RHI line belongs to 8th counter petitioner in the RCP, the brother of the petitioner in the RCP. The learned Appellate Authority referred to the definition of the term 'building' as given in Sub-section (1) of Section 2 of act 2 of 1965 and held that neither the deed of partition nor the rent control petition describes the portions falling within the share of the petitioner and his brother separately. Referring to the inclusive definition given to the term 'landlord' in Sub-section (3) of Section 2 and also second proviso to Sub-section (1) of Section 11 the learned Appellate Authority concluded that it is only the landlord who has title to the building who can maintain an action for eviction of a tenant under Section 11. On the basis of that conclusion the learned Appellate Authority took the view that the petitioner in the RCP and his brother, the 8th counter petitioner being owners of defined and separate portions of the same building though not separated on land and not being co-owners they both being landlords ' 'must together claim eviction or one of them must on sufficient authority from the other also on his behalf, claim eviction.' According to the Appellate Authority the impleadment of the 8th counter petitioner and his statement as PW-2 that he has no objection in his brother demolishing the petition schedule building and in reconstructing the same will not be of any avail since the 8th counter petitioner has not submitted any plan to the Municipality nor made any arrangement for reconstruction and has not even perused the plan which was got approved by the petitioner. The learned Appellate Authority finds that just because the rent for the entire building was being received by the petitioner in the RCP from the tenant it cannot be stated that the tenants have attorned to the petitioner alone as their landlord, since there was no evidence to find that the tenants were informed about the deed of partition which was executed between the petitioner and his brother. The learned Appellate Authority refers to concept of splitting up of tenancy in consequence to partition of separate defined portions of one building originally covered by a single tenancy into definite portions owned by more than one person and holds that in a situation where even after the partition the entire building remains as a compact and integral structure not separately divided on land and hence incapable of being separately possessed, enjoyed or let out, partial eviction from any particular portion of the building cannot be allowed. According to the learned Appellate Authority, under such a fact situation all the divided owners owning separate portions of the larger building which continues to be one physically, will have to seek eviction together. The learned Appellate Authority was not prepared to follow the judgment of the Supreme Court in S.K. Sattar S.K. Mohd Choudhari v. Gundappa Amabadas Bukate : AIR1997SC998 where the Supreme Court approved the order of eviction granted in favour of the landlord who at the relevant time was having ownership over only a portion of a larger building noticing that the landlord's brother had conveyed the remainder portion to the landlord during the pendency of the proceeding. According to the learned Appellate Authority the above judgment of Supreme Court is not authority for the proposition that 'one of the joint owners can separately maintain an action for eviction of the tenant in possession of an entire building'. The learned Appellate Authority would conclude that the order of eviction passed by the Rent Control Court is only as order of partial eviction passed in respect of that portion of the building belonging to the petitioner and that such an order of eviction was set aside and the appeal was allowed.
6. Sri. T. Krishnan Unni, learned Senior Counsel for the revision petitioner would submit that the Appellate Authority having not chosen to interfere with the findings entered by the Rent Control Court regarding the bonafides of the landlord's need for own occupation and the requirement to reconstruct the building was not at all justified in interfering with the order of eviction. Mr. Krishnan Unni submitted that the Appellate Authority erred in taking the view that the petitioner despite satisfying the statutory definition of the term 'landlord' is not entitled to maintain the petition for eviction. The learned senior counsel submitted that it is unfortunate that the learned Appellate Authority ignored the very consequential circumstance that the 8th counter petitioner in the RCP to whom a small portion of the building belonged as per the document of partition not only did not raise any objection to the RCP being allowed but even gave evidence as PW-2 on the side of the revision petitioner that he also wants the RCP to be allowed, so that his brother PW-1 can put up a new building after demolishing the existing building which partly belongs to him, for PW-1's own occupation for the purpose of conducting business in coir. Counsel submitted that this was not a case where there was any dispute regarding title over the building which was subject matter of the RCP. As for the document of partition, substantial portion of the building belonged to the revision petitioner, and only a small portion belonged to his brother PW-2. The entire building was covered but one tenancy which was originally in favour of the father of PW-1 and PW-2. Despite the partition under which proprietary title over the building came to be vested in favour of PW-1 and PW-2 in respect of portions of the building, the tenancy-the rental arrangement continued to be between the contesting tenants in the RCP and the petitioner in the RCP. They were willingly paying the entire rent to the petitioner in the RCP to the knowledge of PW-2 and the arrangement was quite acceptable to PW-2 as spoken to by himself before the Rent Control Court. That being the situation, the maintainability of the RCP which was conceded by PW-2, the only person who could have disputed the same never arose as an issue. Learned senior counsel submitted that abstract legal principles which were inapposite and unacceptable were unnecessarily called in aid by the Appellate Authority resulting in prejudice to the petitioner in RCP. The authorities under the Rent Control Act are bound to decide cause in accordance with principles of equity, justice and good conscience. According to the learned senior counsel those principles have been ignored by the learned Appellate Authority while interfering with the order of eviction. Sri. Krishnan Unni would support his submissions on the authority of the judgment of a Division Bench of this Court in Mar Appraem Kuri Co. Ltd. v. Dix. : 2004(1)KLT678 . Learned senior counsel submitted relying on the said decision that questions whether the tenant has consented to the partition or whether because of the partition the unity and integrity of the tenancy will be disrupted are not at all relevant.
7. Mr. M. Narendrakumar, learned Counsel for the respondent would oppose all the submissions of Mr. Krishnan Unni forcefully. Learned Counsel submitted that excellent reasons have been stated by the Rent Control Appellate Authority in support of its decision and we in this jurisdiction under Section 20 which is revisional in nature are not expected to interfere with the judgment of the Appellate Authority which under the statutory scheme is the final court on facts. Noticing the judgment of the Supreme Court in SK. Sattar SK. Mohd. Choudhari v. Gundappa Ambads : AIR1997SC998 , we enquired of Mr. Krishnan Unni and Mr. Jacob Alex as to whether PW-2 who seems to be on very good terms with his brother, will be prepared to convey his proprietory title over the portion of the petition schedule building which belongs to him under the partition deed to his brother, so that the very basis of the contention that the rent control proceedings are not maintainable could be effaced. After taking instructions from the revision petitioner, we were informed that PW-2 is all willingness to execute such a deed of conveyance or release. But the party was advised in view of the third proviso to Sub-section (3) of Section 11 not to go in for such a course since it is then likely to be argued with some force that the RCP to the extent it pertains to the portion covered by the release deed will be maintainable only after a period of one year from the date of the release deed in view of the 3rd proviso to Section 11(3). Counsel would at this juncture submit that the revision petitioner will be satisfied with an order of eviction in respect of that portion of the building to which he is already having title by virtue of the partition deed. That portion can be safely separated from the remainder portion to which the proprietory title vests with PW-2 without endagering the remainder portion in any manner, according to counsel. The revision petitioner filed I.A. 530/09, an application for issuance of commission for ascertaining with the help of a competent Engineer as to whether the portio of the building belonging to the revision petitioner/landlord can be severed and demolished without causing any damage to the structural instability to the remaining part of the building belonging to PW-2. On noticing the prayer in the petition we directed the petitioner to submit a panel containing the names of three Engineers who retired from the government service, belonging to Pathanamthitta for assisting the Commissioner in his work giving option to the respondents to select one among the three. Accordingly the petitioner submitted a panel containing the names and details of three Engineers who retired respectively from the Central Public Works Department, the Public Works Department and the Irrigation Department, all belonging to Pathanamthitta. In exercise of the option to the respondents they selected Sri. M.J. George retiree from the Irrigation Department as the expert Engineer to assist the Commissioner. Serious objections were taken by the respondents to the application for issuance of commission. We allowed the application by our order dated 5-3-2009 and appointed Sri. K.T. Paulose, Advocate of this Court as Commissioner and Sri. M.J. George, Engineer to assist Mr. Paulose in his work. The inspection was accordingly conducted by Mr. Paulose and Sri. M.J. George and the report of the Commissioner dated 19-3-2009 was filed before this Court. As annexure to the Report, report of Engineer Sri. M.J. George was also produced. Answering the question whether the portion of the building belonging to the revision petitioner can be severed and demolished without causing any damage and structural instability to the remaining portion of the building it is reported that since the entire building is made up of wooden roofing it is possible to demolish the portion of the building coming under the ownership of the petitioner without demolishing the remaining portion which does not come under the ownership of the petitioner. This answer is given by the Advocate Commissioner on the basis of the report of the retired Engineer who assisted the Advocate Commissioner and that report in full is produced as Annexure-II along with the commission report. We are extracting the essential portions of Annexure-II as follows:
I have inspected the structure of the building and it is possible to demolish the portion of building (22 feet) without demolishing the remaining part. The building is constructed approximately about 75 years back. It is made up of laterite stone and having wall plates, rafters and reapers. Demolition of the portion of the building is possible after giving three wooden supports to the roof) 10 feet in both sides and 15 feet in middle) at the place from where it is to be demolished. Since it is a tiled roof with wall plates, rafters and reapers, the wooden support is sufficient to support the remaining roof as it is only 5 feet span.
Contesting respondents have filed I.A. 886/09 seeking to set aside the Commissioner's report mainly on the reason that the building in question has not been properly identified. We are not at all impressed by the reasons stated in the I.A. for setting aside the report. The inspection took place in the presence of contesting respondents 2,5 and 6 viz., Varghese Jacob, Joshy Varghese and Shaji Varghese. We are convinced that it was the petition schedule building itself which was inspected by the Advocate Commissioner and the Engineer. We accept the reports of the Commissioner and the Engineer who assisted him and find that it will be possible to separate the portion of the petition schedule building over which the petitioner in the RCP is having proprietary title from that portion over which his brother, the 8th counter petitioner in RCP is having title.
8. The view of the learned Appellate Authority that for maintaining a petition for eviction under Section 11 it is not sufficient that the petitioner qualifies as a landlord in terms of the statutory definition of that term but it is also necessary that the petitioner has proprietory title to the building is too broad to receive acceptance. We do notice that there is judicial authority for the proposition that to maintain applications under Sub-section (3) of Section 11 where the Rent Control becomes concerned with the genuineness of the need of the landlord or his dependent family member and to maintain applications under Clause (iv) of Sub-section (4) of Section 11 which will involve demolition of the existing building and reconstruction of a new one in its place, proprietory title over the building is also necessary for the landlord or at least the written consent under Sub-section (16) of Section 11 from the title holder is necessary. As for the present case it cannot be in doubt that the petitioner in the RCP qualifies as the landlord of the building under the statutory definition of that term. The rent for the entire building is being received by the petitioner in the RCP under an arrangement which is acceptable to his brother, the 8th counter petitioner in the RCP. The 8th counter petitioner who has proprietory title over a small portion of the building is on the array of parties in the RCP though not as a petitioner. We would have been inclined to hold that the rent control petition is maintainable, but since it is submitted before us that the petitioner need be granted order of eviction only in respect of that portion of the building over which he is having title we are not deciding that issue finally. We are considering only whether partial eviction which was granted by the Rent Control Court can be approved. In Mar Appraem Kuri Co. Ltd. v. Dix : 2004(1)KLT678 a Division Bench of this Court to which one of us (Pius C. Kuriakose, J) was also party considered the inter relationship between Section 109 of the Transfer of Property Act and Section 11 of the Rent Control Act. The Bench held that though the normal law is that where there is a single indivisible contract of tenancy it cannot be split up by a court unless there is a statutory provision to that effect or by a contract between the parties, Section 109 of the T.P Act provides an exception to that rule and enables an assignee of a part of the reversion to exercise all the rights of the landlord in respect of the portion respecting which the reversion is so assigned subject to the other covenants running with the land. Making an almost exhaustive survey of the case law relating to the subject the Bench held that on purchasing the tenanted premises the unity and integrity of the estate could be split up and the assignee landlord could seek eviction on the available grounds under Section 11, the only rider being that the assignee will have to show that the assigned portion is in a state of being identified and partial eviction is possible on facts. The Bench clearly held that there is no need for the consent of the tenant for severance of the reversion and the assignment of the part so severed. It was also held that there is no need for a consensual attornment since the attornment is brought about by operation of law. The principle laid down by the Divisional Bench in Mar Appraem Kuri Co, Ltd.'s case according to us, is applicable in the present case where the petitioner and his brother the 8th counter petitioner in the RCP came to have absolute ownership over definite portions of the building which was covered by a single tenancy. We therefore hold that if the conditions stated in the judgment of the Division Bench are satisfied the petitioner will be entitled for order of eviction as found by the Rent Control Court.
9. We have already accepted the report submitted by the Advocate Commissioner and found that the portion over which the revision petitioner is having title is easily identifiable from the portion over which his brother is having title. Accepting the report of the Commissioner we find that the portion over which the petitioner's brother is haying title can be separated in the manner suggested by the Commissioner and the Engineer who assisted him.
10. We have made a survey of the evidence adduced in this case and we notice that as regards the condition of the building as warranting reconstruction and also as regards the bonafides of the need projected by the petitioner under Sub-section (3), the findings do not warrant any interference within the contours of this Courts of this Court's jurisdiction under Section 20. Same is the position regarding the findings on the tenant's eligibility for protection to second proviso to Section 11(3). In fact on these factual aspects the findings are concurrently entered by the Rent Control Court and the Appellate Authority. The Rent Control Court however, seems to have granted order of eviction under Section 11(3) as well as 11(4)(iv). According to us, since the need which is projected under Sub-section (3) of Section 11 is need for own occupation after reconstruction, it is sufficient that eviction order is passed under Sub-section (3) of Section 11 only.
11. The result of the above discussion is that the RCR will stand allowed. The judgment of the Rent Control Appellate Authority is set aside and the order of eviction passed by the Rent Control Court under Section 11(3) is restored. Mr. Narendrakumar as his last submission would request for grant of a reasonably long period, so that the tenant can vacate. This request is opposed by Sri. T. Krishnan Unni and also by Sri. Jacob. P. Alex. We feel there is justification for granting four months time from today by way of indulgence. Accordingly, even though we allow the RCR and pass order of eviction against the respondent/tenant under Sub-section (3) of Section 11 there will be a direction to the execution court to defer delivery of the petition schedule building in favour of the petitioner/landlord till 14-08-2009 provided the following conditions are satisfied by the respondent:
The third respondent will file an affidavit before the execution court stating that he will unconditionally and peacefully surrender possession of the petition schedule building to the respondent/landlord on or before 14-08-2009 and further that he will discharge arrears of rent if any, and will continue to pay the rent which falls due till he actually surrenders the building, promptly and regularly. Once such an affidavit is noticed by the execution Court, that court will adjourn the execution petition to 16-08-2009.