Pius C. Kuriakose, J.:— 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)(i) 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 gold smithy 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 sub-lessee; 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 bonafides 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 die 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 sublessee 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 he second proviso to Section 11(3).
4. The sub-lessee, the revision petitioner alone appealed to the Rent Control Appellate Authority. That Authority concurred with the conclusions of the Rent Control Court in the context of the ground under Section 11(4)(i). As regards the ground under Section 11(3), the Appellate Authority took the view that the revision petitioner was only a sub-lessee and therefore is not entitled to challenge the correctness of the eviction order passed under Section 11(3) and accordingly refused to interfere with the order of eviction passed under that ground also.
5. Heard Sri. G. Unnikrishnan, learned counsel for the revision petitioner and Sri. K. Jayesh Mohankumar, learned counsel for the 1st respondent-landlord. We were supplied with copies of the relevant papers by the learned counsel for perusal.
6. Sri. G. Unnikrishnan invited our attention to Ext. B1 registration certificate dated 04.02.1981 issued by the Labour Department to Sankaran. Ext. B2 series licence fee and profession tax receipts issued by the Panchayat to the revision petitioner regarding the business carried on in the premises, and Ext. B3 series certified copies of the property tax assessment registers pertaining to the building covering the period from 1980 to 1996 and also from 1997 to 2002. The learned counsel also invited our attention to the admission of PW. 1 to the effect that Sankaran was the original tenant who continued as such till he died. The learned counsel also pointed out that PW. 1 had conceded that he was the author of Ext. A1 and that the same was got executed as requested by him and agreed to by the two brothers. The learned counsel submitted on the authority of the decision of this Court in Abdul Khader v. Ali (2003 (1) KLT 546) that in order to establish the eviction ground of sub-letting contemplated under Section 11(4)(i), it is necessary that the landlord should establish that there is landlord-tenant relationship between the lessee and the alleged sub-lessee and also that exclusive possession of the premises is handed over by the lessee to the sub-lessee. The learned counsel relied on another decision of this Court in Karshaka Union v. Bahulevan (1996 (2) KLT 747) to submit that mere transfer of physical possession is not what is contemplated under Section 11(4)(i), but it is transfer of legal possession which presupposes the right to include and exclude others. Referring to yet another Division Bench decision of this Court in Javakrishnan v. Vrindha (1997 (2) KLT 943) the learned counsel requested us to consider the highly probable case of the tenant securing employment abroad and entrusting the building as well as the business therein to his own brother for management during his absence. The learned counsel would severely criticise the authorities below for having placed undue reliance on the apparent admission made by RW. 1 during cross-examination that the tenant had entrusted the room to him on higher rent and submitted that the approach ran contrary to the pronouncement of the Supreme Court in P. John Chandy & Co. (P) Ltd. v. John P. Thomas, (2002) 5 SCC 90. In the context of the ground under Section 11(3), the learned counsel pointed out that neither in Ext. A2 lawyer notice nor in the Rent Control Petition or even in the chief-examination of PW. 1, the landlord had a case that the stationery business is the proposed business. This situation, according to the learned counsel, caused serious prejudice to the revision petitioner who was unable to meet the landlord's case under Section 11(3) effectively.
7. Meeting these arguments, Sri. K. Jayesh Mohankumar would invite our attention to the decision of this Court in Damodara Pai v. Challamma (2003 (1) KLT 487) and submit that merely because there was a close relationship between the tenant and the alleged sub-lessee, sub-lease cannot be ruled out. According to the learned counsel, the defence in this case was not that the tenant had entrusted his brother with the building and management of business conducted therein during his absence. But instead, the defence was that the alleged sub-lessee himself is the tenant, a case which has not been substantiated. Coming to the ground under Section 11(3), the learned counsel would submit on the authority of N.P Surendran v. P.K Safiya Beedi Umma (2003 (1) KLT 451) that a sub-lessee was not entitled to resist any claims under the Rent Control Act except perhaps one under Section 11(4)(i) since he is not a tenant coming within the definition of that expression. The learned counsel also pointed out that sitting in revisional jurisdiction it is not proper for us to make a de novo re-appraisal of the evidence since under the scheme of the statute the Rent Control Appellate Authority is the final court of facts.
8. We shall first deal with Mr. Unnikrishnan's submission that for the grant of eviction order under Section 11(4)(i) of the Kerala Statute, it is obligatory that the landlord should establish that there is lessor-lessee relationship between the tenant and the sublessee and that possession of the premises was, parted with by the tenant exclusively in favour of the sub-lessee for consideration. The submission is made on the authority of the decision of this Court in Abdul Khader v. Ali (supra), which was actually authored for the Division Bench by one of us (K.S Radhakrishnan, J.). In Abdul Khader's case the allegation in the context of the ground under Section 11(4)(i) was specifically one of sublease. The statement of law made in para 8 of the judgment in Abdul Khader's case was on the basis of the pronouncement of the Supreme Court in Shama Prashant Raje v. Ganpatrao, (2000) 7 SCC 522. Shama Prashant Raje again was a case which came under the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949 (“CPBR Order” for short). Section 13(3) of the CPBR Order provides for various eviction grounds. Section 13(3)(iii) deals with the ground of subletting and the same is extracted as under:—
“(iii) that the tenant has without the written permission of the landlord sub-let the entire house or any portion thereof;”
9. The Kerala Statute provides ground for eviction in the context of subletting in a different manner. Section 11(4)(i) reads as follows:—
“(4) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the buildings,
(i) If the tenant after the commencement of this Act, without the consent of the landlord, transfers his right under the lease or sub-lets the entire building or any portion thereof if the lease does not confer on him any right to do so:
Provided that an application under this clause shall not be made for the first time in respect of one and the same tenancy unless the landlord has sent a registered notice to the tenant intimating the contravention of the said condition of the lease and the tenant has failed to terminate the transfer or the sub-lease, as the case may be within thirty days of the receipt of the notice or the refusal thereof.”
10. It can be seen that while under the CPBR Order subletting alone is made a ground for eviction, under the Kerala Statute unauthorised transfer of the lessee's right under the lease as well as subletting of the building or a portion thereof are both made grounds for eviction. Both clause (i) of sub-section (4) of Section 11 as well as the proviso thereto will clearly indicate that the Kerala Statute contemplates eviction in situations where the tenant unauthorisedly transfers his right under the lease without the landlord's consent even when the transfer does not amount to subletting. The expression “right under the lease” appearing in Section 11(4)(i) obviously refers to the right to posses and enjoy the leasehold premises. Thus, transfer of the right to posses and enjoy the building by itself will constitute an eviction ground under Section 11(4)(i) All cases of subletting should necessarily involve transfer of right under the lease and in such cases there should also be lessor-lessee relationship between the tenant and the sub-lessee as the Kerala Statute itself indicates under the Explanation to sub-section (3) of Section 2, the interpretation clause. But unauthorised transfer of the right under the lease need not always amount to subletting. The various decisions surveyed by the Supreme Court in Shama Prashant Raje (supra) such as Jagan Nath v. Chander Bhan, (1988) 3 SCC 57, Dipak Banerjee v. Lilabati Chakraborty., (1987) 4 SCC 161; Gopal Saran v. Satyanaravana, (1989) 3 SCC 56 and Delhi Stationers and Printers v. Rajendra Kumar, (1990) 2 SCC 331 were all rendered in the context of the ground of sub-letting proper under various regional rent control legislations and not in the context of a ground of transfer of the right under the lease.
11. Now coming to the facts of the present case, we notice from the Rent Control Petition that the allegation raised in para 2 is both of sublease as well of transfer. Though the allegation raised prominently is one of sublease, an allegation of illegal transfer is also raised in the same paragraph with equal prominence and on going through the statement of objections filed by the revision petitioner, we find that he has understood the allegations against him as one of sublease as well as of unauthorised transfer and has chosen to deny both of them. Mr. Unnikrishnan's submission that the finding concurrently entered by the authorities below is one of sublease proper and that the evidence on record will not suffice to support the said finding cannot be said to be without any force. Obviously, the authorities below did not hesitate to enter such a finding regarding sublease on the basis of a fatal admission made by RW. 1 during cross-examination. The admission is to the effect that the suggestion that the tenant had put him in possession as a sub-lessee on higher rent is correct. It is certainly settled by many decisions including P. John Chandy & Co. (P) Ltd. (2002) 5 SCC 90 that evidence will have to be appreciated as a whole and not as stray passages read in isolation. Even then, in the instant case where the principal one of contention was the sub-lease and RW. 1 makes an admission as fatal as the above one which is highlighted by the authorities below, the said admission should have been explained by RW. 1 through his re-examination. We notice that there was re-examination on several other aspects. It is not correct to say that it is solely on the basis of the above admission of RW. 1 that the authorities below have entered findings regarding the ground alleged under Sec. 11(4)(i). It became evident that Ext. A1 is the document which currently governs the tenancy in question. Going by Ext. A1, the 2nd respondent herein alone is the tenant. That the tenant was abroad and it is the revision petitioner who is in actual physical control of the premises was practically admitted and at any rate has become evident. In such a situation it was for the revision petitioner, the person in physical possession to plead and establish as to what is the jural relationship with the tenant and the building. The statement of objections contain elaborate pleadings regarding the original letting of this building in favour of Sankaran. But it is not contended that as legal heir of the deceased tenant (who is also a tenant going by the statutory definition) the sub-lessee is in possession. On the contrary, the contention is that both the tenant and the sub-lessee are tenants and Ext. A1 was executed only to oblige the landlord. The evidence will show that after the demise of Sankaran, the landlord insisted that he will recognise only one of the legal heirs as the tenant and that Ext. At was got executed; The intention of the parties to Ext. A1 dose not admit of any doubt that the parties wanted to have a tenancy in favour of the tenant alone. Exts. B3(b) and B3(c) certified copies of property tax assessment registers certainly have considerable relevancy by virtue of Section 26 of the Kerala Statute. But it is common ground that till the tenant went abroad he used to conduct goldsmithy from the petition schedule building. The close relationship between the tenant and the sub-lessee is sufficient on the facts of this case to take away the probative value of Ext. B3 series. The position certainly would have been different had it been the contention of the sub-lessee that he is doing business on behalf of his brother the tenant. But we do not find any such contention raised in the statement of objections. But what we notice in the last sentence of para 3 of the statement of objections is the following:
(Even if it is found that the entrustment is exclusively in favour of the 1st respondent, then also there is no bar in law for this respondent a brother of the 1st respondent in keeping the building in possession). (Translation ours)
12. Applying even the liberal standards given to pleadings in rent control proceedings, we are unable to construe the above as a plea from the 2nd respondent that he is in possession on behalf of his brother. At any rate, even construing the above as a plea, it has to be said that it remains a plea not substantiated by any evidence whatsoever. In fact, during the course of evidence the endeavor was to pursue the prominent contention that he in his own capacity is the tenant. The evidence - oral, documentary and circumstantial - relied on by the authorities below to conclude that the revision petitioner is a sublessee will certainly lead to the irresistible conclusion that his status is at least that of an unauthorised transferee, a situation which will certainly ential him to an order of eviction under Section 11(4)(i) of the Kerala Statute. The order of eviction under Section 11(4)(i) does not merit any interference.
13. Coming to the ground under Section 11(3), the Rent Control Court found on an evaluation of the evidence of PW. 1 the landlord that he genuinely needs the building in question for the conduct of business in stationery. That court also found that the tenant who is well placed in a Gulf country has not adduced any cogent evidence to substantiate his case that he is depending for his livelihood mainly on the income which is derived from the business conducted in the petition schedule building. In fact, the Rent Control Court found that the tenant who is in Gulf can under no circumstances be depending on the income derived from the business conducted in the petition scheduled building which is already transferred by him to his brother. As regards the second limb of the second proviso also the Rent Control Court found that RW. 1 has not made any serious enquiries regarding the availability of vacant shop rooms in the locality. Accordingly the Rent Control Court ordered eviction, under Section 11(3). The Rent Control Appellate Authority did not enter its own finding regarding the landlord's bonafide need under Sec. 11(3). The Appellate Authority followed the decisions of this Court in A.V Kammath v. Chandran (1989 (1) KLT 473) and Tellicherry Weavers v. Puthiya Kottal Safiya Beebi Umma (2002 (3) KLT 863) and found that the revision petitioner who alone was the appellant before that authority being a sub-lessee is not entitled to resist any claim for eviction other than perhaps under Section 11(4)(i). We do not find any infirmity in the factual findings entered by the Rent Control Court or in the approach of the appellate authority to the case under Section 11(3). The result is that the revision fails and the same is dismissed. In the circumstances, the parties will suffer their respective costs.
14. After we pronounced the order, Sri. G. Unnikrishnan, learned counsel for the revision petitioner sought time to Vacate the premises. Left to ourselves, we would not have granted time since we have found that the revision petitioner is only an unauthorised transferee in possession. However, Sri. K. Jayesh Mohankumar, learned counsel for the 1st respondent agrees that a short time can be granted. Accordingly, we direct the executing court not to evict the revision petitioner from the building in question till 31-12-2003 on condition that the revision petitioner will file an undertaking before the executing court unconditionally undertaking to vacate the building before 31-12-2003.