ORDER
K.S. Radhakrishnan, J.
1. The question that is posed for consideration in this case inter alia is whether the right of co-ownership over a building would disentitle a landlord under the first proviso to Section 11(3) for claiming eviction under Section 11(3) of the Act.
2. Eviction from a residential building was sought for under Section 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 Section 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 js 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 Section 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 Section 11(3) of the Act. In order to attract bar under first proviso Section 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 Section 11(3). Further it was also noticed that other co-owners 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 I.A. No. 2802/2000, I 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 co-owners 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 co-owners by metes and bounds.'
Senior Counsel appearing for the tenant Sri. V.R. Venkata Krishnan placing reliance oh the above mentioned documents and the affidavit submitted that even as a co-owner 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 s the affidavit filed in support of the various petitions would positively show that the landlord is only a co-owner in respect of that property, a portion of which has already been sold.
4. Documents produced in this case as well as evidence adduced would positively show that the landlord is only a co-owner in respect of the Beach Hotel premises along with others. The question that is to be considered is whether the right of co-ownership of the landlord in respect of Beach Hotel premises would disentitle him in claiming eviction of his building to be used as office-cum-residence for his son. Examination of the above question would depend upon the interpretation of proviso to Section 11(3). We may extract the main provision as well as the proviso for easy reference.
11(3). A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him:
Provided that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so:
Scope of first proviso to Section 11(3) came up for consideration before a learned Judge of this Court, Sadasivan, J. in Ramakrishnan v. Gopala Moothan, 1971 KLT 427. Question arose as to whether right of residence of landlord as a junior member of a joint family in the family house would be a bar to his claim for possession on the ground of bona fide need. The court held:
'Under the Hindu Law which governs the parties he has a right of residence in the family house. He has, no doubt, inalienable interest in the joint family or ancestral property; but from that circumstance could it be said that he owns the family house, in the sense in which the expression is used in the proviso. For the bar to operate the petitioner-landlord should own and possess a building exclusively for himself.
Learned Judge took the view, a mere right of residence or some interest in the family house will not, by itself, debar him from claiming possession of the rented building. Another learned Judge, Bhaskaran, J. in Thomas Baby v. Cherian Tnresiamma, 1973 KLT 1043, held that ownership contemplated under Section 11(3) is not a fractional ownership but an absolute right. A Division Bench of this Court in Gupta's case (supra) examined the question whether it is necessary for the application of first proviso, that the other building should belong to the landlord exclusively. The court posed the question, would it matter so much if his ownership is as that of a co-owner? and held as follows:
'When we understood the scope of the first proviso in the mariner indicated in our judgment in Kariyath Raghavan's case, we are of the further opinion that even if the landlord is only a co-owner in respect of the other building in his possession, the burden is on such landlord to satisfy the Rent Control Court that inspite of his having possession of another building there are special reasons by which the order of eviction can still be granted under Section 11(3). This means the mere fact that ownership of the landlord over the other building is that of a co-owner is no reason to keep the first proviso at bay when the landlord seeks for eviction under Section 11(3). The words 'has another building of his own in his possession' in the first proviso can be understood to mean that the landlord has another building over which he has ownership and possession. The mere fact that such ownership is only a part ownership does not matter much if he has possession of that building. We therefore agree with the contentions of Sri. M.R. Parameswaran, learned counsel for the tenant that exclusive ownership of the landlord over the other building is not sine qua non for invoking the first proviso to Section 11(3) of the Act.'
Editorial note in 1995 (1) KLT 701 would show that the Division Bench has held that the dictum laid down in 1971 KLT 427 and 1973 KLT 1043 is not good law, which is not fully correct.
5. The Division Bench in Gupta's case held that exclusive ownership is not sine qua non for invoking the first proviso to Section 11(3) of the Act but the landlord should have possession over the building. The Bench also held that even if the landlord is only a co-owner in respect of the other building in his possession, the burden is on such landlord to satisfy the Rent Control Court that inspite of his having possession of another building there are special reasons by which the order of eviction can still be granted under Section 11(3). We find ourselves unable to accept the reasoning of the Division Bench that the exclusive ownership of landlord over the other building is not sine qua non for invoking the first proviso to Section 11(3) of the Act. The reasoning of the Bench that even if the landlord is only a co-owner in respect of the other building in his possession, the burden is on such landlord to satisfy the Rent Control Court that inspite of his having possession of another building there are special reasons by which the order of eviction can still be granted under Section 11(3) with due respect is not a correct view.
6. The expression in the first proviso to Section 11(3) 'landlord has another building of 'his own' 'in his possession' requires emphasis. 'His own' means belonging to oneself, often used with reflective force such as my own, his own etc. The ownership consists of a bundle of rights over some property. It also gives to the owner some claims, privileges, powers and immunities. Ownership imports three fundamental rights, namely, right to possession, right to enjoy and right to dispose. The owner of a property is not only entitled to possess it but also has the right to exclude all others from the possession or enjoyment of it. The rights normally exercisable by an owner are jus utendi (the right to use of the thing), jus possidendi (the right to possess a thing), jus abuntendi (the right to consume or destroy a thing), jus desponendi vel transferendi (the right to dispose of a thing or transfer by sale, gift, exchange, etc., jus sibi habendi (the right to hold a thing for oneself), jus alteri non habendi or jus prohibendi (the right to exclude others from its use). Ownership has also been described as a right over a determinate thing, indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration. But if there is more than one owner all co-owners have equal rights and co-ordinate interest in the property. Each co-owner is in theory interested in every infinitesimal portion of the subject-matter and each has the right, irrespective of the quantity of his interest, to be in possession of every part and parcel of the property, jointly with the others. Each joint owner has the right to the possession of all the property held in common equal to the right of each of his companions in interest and superior to that of all other persons. Each co-owner has the same right to the use and enjoyment of the common property that he has to his sole property, except in so far as it is limited by the equal rights of his cosharers. The test of co-ownership is co-ordinate interest. If the interest of one is subordinate or higher in degree to the other, there is no co-ownership between the co-ordinate interest. If there is no joint possession of the parties in respect of the entire property there is no co-ownership. Joint property is the generic name given to any property held by co-owners. Every co-owner has equal right to the possession of every bit of the joint property and none of them can exclude the others from the enjoyment thereof. Joint possession at times may be inconvenient and it is sometimes found that co-owners arrive at an amicable arrangement among themselves, whereby each of them possesses and enjoys exclusively different portions of the common property. Consent of parties renders such arrangement valid and binding between them. If a co-owner takes exclusive possession of a portion of the joint property without the consent of the others, it is open to them to take immediate steps for assertion of their rights. Exclusive possession by a co-owner also does not put an end to the rights of the other co-owners, which may finally be adjusted at the time of partition.
7. The above legal proposition would show that the expressions 'his own' 'in his possession' used in the first proviso to Section 11(3) would show one's exclusive ownership and possession. Words 'his own' 'in his possession' excludes all others from the ownership or possession of the property. In other words, the test is that a landlord who has building of 'his own' 'in his possession' has the right of possession, right to enjoy and right to dispossess, i.e., jus sibi habendi and jus alteri non habendi pr jus prohibendi. If he is a co-owner along with others he may have only restricted power of dispossession. Since each co-owner is interested in every infinitesimal portion of the subject matter and each has the right, irrespective of the quantity of his interest to be in possession of every part and parcel of the property jointly with the others.
8. In view of the above mentioned legal position we are unable to accept the reasoning of the Division Bench in Gupta's case that the exclusive ownership of the landlord over the other building is not sine qua non for invoking the first proviso to Section I 1(3) of the Act. We hold exclusive ownership and possession are sine qua non for invoking the first proviso to Section 11(3). We cannot also further agree with the reasoning of the Division Bench in Gupta's case that even if the landlord is only a co-owner in respect of the other building in his possession, the burden is on such landlord to satisfy the Rent Control Court that inspite of his having possession of another building there are special reasons by which the order of eviction can still be granted under Section 11(3). The burden to establish that the landlord is the owner and in exclusive possession of another building is on the tenant. Once both the ingredients are proved the onus shifts to the landlord and he has to satisfy the court that for special reason, even if he is owner in possession of another building it will be just and proper for the Rent Control Court to issue a direction to the tenant to put the landlord in possession of the tenanted premises once the bona fide need is established by the landlord. Tenant has not in this case discharged the first limb of first proviso to Section 11(3) showing that the Beach Hotel building is owned and possessed by the landlord exclusively, therefore the question of showing special reasons does not arise.
9. We may also in this connection to refer to the decision of the Apex Court in Lingala Kondala Rao v. Vootukuri Narayana Rao, JT 2002 (10) SC 117 wherein the Apex Court considered the scope of Section 10(3)(a)(iii) of the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 and held as follows:
'To disentitle the landlord from claiming eviction under Section 10(3)(a)(iii) of the Act it must be shown that the landlord is in occupation of a nonresidential building in the city, town Or village concerned and that such building is his own or to the possession of which he is entitled under the Act or otherwise. In case of occupation of property by members of Joint Hindu family wherein the interest of a member remains fluctuating depending on the increase or decrease in number of members of the family it cannot be said that the landlord is in occupation of a nonresidential building which expression, in the setting in which it has been used would mean his own occupation in his own right. On the same reasoning, the nonresidential building owned by Joint Hindu family cannot be called a nonresidential building 'which is his own'. The expression 'to the possession of which he is entitled has to be construed as an immediate entitlement to possession so as to satisfy his requirement as stated in (a) and (b) part of Sub-clause (iii). A landlord cannot be expected to dislodge the members of the joint family from their possession over the joint family premises simply because the landlord requires the premises for his own exclusive use. He is not 'entitled' to possession over joint family premises unless he claims partition whereat the suit premises are also allotted to him. In a partition he may or may not be held entitled to possession over the nonresidential building pointed out by the tenant as an alternate accommodation and relied on by him for defeating the claim of the landlord. Therefore, a nonresidential building owned by Joint Hindu family and in its occupation would not be included within the meaning of the expression 'which is. his own or to the possession of which he is entitled'. A nonresidential building said to be owned or being under entitlement to possession by the landlord under Section 10(3)(a)(iii) of the Act cannot be just any nonresidential building without regard to other relevant factors including the extent of the ownership of the landlord and the remoteness between his entitlement and the occurrence of even when he would actually get possession. In taking this view, we find support from a few decisions of this court.'
The finding of the Apex Court in Lingala Kondala Rao's case also would show that the reasoning in Gupta 's case that exclusive ownership of the landlord over the building is not sine qua non for invoking the first proviso to Section 11(3) of the Rent Control Act cannot be sustained. Reference to a Larger Bench is therefore unnecessary in view of the reasoning of the Apex Court in Lingala Kondala Rao's case. Expression 'his own' gives the owner some claims, privileges, powers and amenities. He should have right to possession, right to enjoy and right to dispose. If the landlord is a co-owner along with others and he is not in exclusive ownership of a property and we cannot expect him to dislodge the other co-owners from their possession and ownership. Such an ownership is not titled to possession of the co-owner unless co-owner claims partition whereby the premises are allotted to him. Resultantly a building owned by co-owner would not be included within the expression 'his own'. We therefore hold that the tenant is not entitled to get the benefit of first proviso to Section 11(3) since the landlord is only a co-owner in respect of Beach Hotel building.
10. Counsel on either side placed before us several decisions of the Apex Court and this court to explain the meaning of bonafide need under Section 11(3) of the Act. It is unnecessary to refer to all those decisions cited at the bar except to refer to a recent decision of the Apex Court in Atma S. Berar v. Mukhtiar Singh, (2003) 2 SCC 3,wherein the Apex Court has held that the bona fide requirement of a landlord must be genuine, real, honest and sincere. In other words, the need of the landlord is to be bona fide and not whimsical. In the instant case landlord was examined as PW1 and son was examined as PW2. Tenant was examined as RW-1. The need urged is for office cum residence of landlord's son. No materials have been produced by the tenant to show that the landlord or his son has got any other building of his own at Calicut except the Beach Hotel building which we have already found not exclusively owned or possessed by the landlord.
11. The landlord is residing at Feroke, according to the counsel for the tenant, in a palatial building. Counsel submitted since landlord is old and having Parkinson disease and a dutiful and reverential son would always stay with him and look after him rather than staying at the scheduled building owned by his father. Further he has also stated that the petitioner's son's refrigerator manufacturing factory is at Kakkancherry near Feroke, therefore it would be more convenient for the landlord to stay and set up his office at Feroke which is nearer to Kakkancherry rather than Calicut. We are of the view how the son and father have to adjust themselves and where they should set up their office-cum-residence, are all matters of their concern. Neither the court nor the tenant would attempt to substitute their ideas for the landlord and the son to follow and adjust their future course of action. The court would only examine whether the need urged by the landlord is genuine and bona fide. Once the court is satisfied that the need urged by the landlord is real, genuine, honest and bona fide it is not possible for the court for that matter the tenant to suggest other ways and means to suit the convenience of the landlord and his dependent son. Landlord has mounted the box and gave oral evidence. The trial court has found him quite healthy and the alleged Parkinson dise'ase is not bothering him. Further, P.W.2 son has deposed that he is having his wife and two children and is in need of a separate house of his own for his residence and office for which he depends upon his father. The tenant has also admitted that P.W.2 is having various other business interest at Salem, Kalli and Trichur apart from running of the refrigerator manufacturing unit at Kakkancherry. We are therefore in agreement with the Rent Control Court and the Appellate Authority that the need urged by the landlord is genuine and bona fide. Being a residential house the question of application of the second proviso to Sub-section (3) of Section 11 does not arise. We therefore find no illegality, irregularity or impropriety in the orders passed by the authorities belong to be interfered with in our revisional jurisdiction.
12. Counsel appearing for the tenant submitted that the tenant had earlier surrendered a portion of the tenanted premises on the understanding that the tenant would be permitted to continue in the tenanted premises till his life time. But the landlord does not reciprocate to this benevolent gesture shown by the tenant. Landlord has subsequently constructed a commercial building in the area already surrendered by the tenant and the attempt of the landlord is nothing but to construct a commercial building in this area too or to sell away the property after evicting the tenant. Therefore, even if the premises is surrendered the same would not be used by the landlord's son for the purpose for which surrender was sought for. We have already found the need urged by the landlord is genuine and bona fide and the claim has to be allowed. We cannot speculate as to what the landlord would do in future. Rent Control Court can adjudicate the rights of the parties on the basis of the materials placed before it. Rent Control Act is a self-contained statute. Rights and liabilities of the parties are governed by various provisions contained therein. There is no provision for conducting a postmortem of the orders passed by the authorities below or yet an action taken report so as to ascertain whether the landlord had satisfied the need projected based on which eviction was ordered. Section 11(12) of the Act says that if the landlord does not occupy the tenanted premises after obtaining possession under Section 11(3) without reasonable cause within one month of date of obtaining possession, after getting it evicted or having so occupied it vacates it without reasonable cause within six months of such date the tenant who is evicted may apply to the Rent Control Court for an order directing that he shall be restored to possession of the building and the court shall make an order accordingly. Legislature in its wisdom has laid down certain remedial measures in such contingencies, beyond that the court cannot act. Therefore if the landlord is not using the building for the purpose for which eviction was sought for the remedy open to the tenant is under Section 11(12) of the Act only. Therefore apprehension voiced by the counsel is unfounded. We therefore find no illegality, irregularity or impropriety in the orders passed by the authorities below.
13. The revision petition is dismissed. However, considering the facts and circumstances of the case we are inclined to grant time to the tenant for vacating the premises upto 31.10.2004 on condition that the tenant should file an undertaking before the Rent Control Court within one month from today that he would vacate the premises within the aforesaid period and would pay arrears of rent, if any and future rent.