Meeramytheen & Ors. Vs. K. Parameswaran Pillai & Ors.  INSC 1598
(17 September 2009)
APPELLATE JURISDICTION CIVIL APPEAL NO.6391 OF 2002 M. Meeramytheen and Ors.
...Appellant(s) Versus K. Parameswaran Pillai and Ors. ...Respondent(s) With
Civil Appeal No.7749 of 2002
O R D E R
learned counsel for the parties.
petition was filed before the learned Munsif, Quilon, who was exercising powers
of the Rent Controller under the provisions of the Kerala Buildings (Lease and
Rent Control) Act, 1965, by K. Parameswaran Pillai and B. Geethadevi for
eviction of the two tenants and one sub- tenant from two shop rooms which were
let out in the year 1967 on a monthly rental of Rs.250/-. In 1971, the tenants
undeniably created a sub-tenancy in relation to one of the two rooms in favour
of S. Abdul Jabbar. Later on, a partition was effected on 12th October, 1981,
in which one of the two rooms in question was allotted in the share of
Premachandran and the other in favour of his sister, B. Geethadevi, Plaintiff
No.2. Premachandran transferred the room, allotted in his share, under a
registered sale deed executed in favour of Plaintiff No.1, ...2/- - 2 - who is
nobody else than his own brother. The present suit has been filed by the
transferee from Premachandran, who acquired right, title and interest in one of
the rooms, which was allotted in favour of Premachandran and Plaintiff No.2,
who is the sister of Premachandran, Plaintiff No.1, and in whose share the
other room was allotted. As the cause of action for filing the eviction
petition had arisen in 1971 prior to the partition, which was effected in 1981,
the suit for eviction was filed by the transferee from Premachandran in whose
favour one room was allotted and Plaintiff No.2, who owned another room by
virtue of the partition.
defendants filed written statement contesting the suit for eviction. They
neither denied title of the plaintiffs nor relationship of landlord and tenant.
They, however, denied that they had created any sub-tenancy as alleged by the
the Rent Controller, after framing of issues, parties adduced evidence in
support of their respective cases. The Trial Court, on a consideration of
evidence brought on record, dismissed the suit recording a finding that the
plaintiffs failed to prove the case of sub-tenancy.
the judgement of the Rent Controller, an appeal was preferred. The appellate
court took the view that though initially there was a single tenancy in respect
of both the rooms, as a result of the partition one each of the two shop rooms
were allotted in the shares of two different co-sharers. Hence, the plaintiffs
were not entitled to seek eviction in relation to both the shop rooms and they
could seek eviction only in relation to ...3/- - 3 - that shop room in respect
of which sub-tenancy was actually created. On the basis of that finding, the
appellate court allowed the appeal in-part and granted decree for eviction in
relation to the room which was the subject-matter of sub-tenancy.
the said judgement of the appellate court, separate revision applications were
filed both by the landlords and the tenants. The High Court concurred with the
reasoning of the appellate court for granting a decree for eviction only in
relation to the room in respect of which sub-tenancy was created. It, however,
confirmed the finding recorded by the appellate court that the plaintiffs had
succeeded in proving the case of sub- tenancy. Against the said judgement,
Civil Appeal No.6391 of 2002 and Civil Appeal No.7749 of 2002 have been filed
by the tenants and the landlords respectively by way of special leave.
heard learned counsel appearing on behalf of the parties in these appeals.
So far as
the finding in relation to creation of sub-tenancy is concerned, learned
counsel appearing on behalf of the tenants could not point out any infirmity
therein. He could not show that the finding of fact recorded by the appellate
court on the question of creation of sub-tenancy was perverse and, therefore,
liable to be interfered with by the High Court in revision. We are, therefore,
of the view that no ground is made out for any interference with the finding on
the question of creation of sub-tenancy.
question arises as to whether the appellate court and the High Court were
justified in granting decree for eviction only in relation to one of ...4/- - 4
- the two rooms, which was actually sub-let. Undisputedly, at the time of
letting of in the year 1967, one single tenancy was created in relation to both
the shop rooms and the sub-tenancy was created in respect of one of the two
rooms in the year 1971. Thus, the cause of action to file suit for eviction
accrued in the year 1971. Ten years later, partition was effected by virtue of
which these two shop rooms were allotted in the shares of two different
co-sharers, who joined together in the present suit seeking eviction of the
tenants and the sub-lessee. Thus, it cannot be said that on account of
partition, the original tenancy was divided and, therefore, eviction could be
ordered only in respect of one of the rooms that was actually sub-let, more so,
when the cause of action had accrued prior to the partition. This being the
position, we are of the view that the appellate court as well as the High Court
were not justified in granting decree for eviction in relation to only one of
the shop rooms in respect of which sub-tenancy was created.
Civil Appeal No.7749 of 2002 is allowed, judgement and decree passed by the
appellate court as well as the High Court are modified and suit for eviction is
decreed in its entirety. The tenants are, however, granted time till 30th June,
2010, to vacate the premises in question upon filing the usual undertaking in
this Court within four weeks from today.
directed that in case the tenants fail to vacate the premises in question
within the aforesaid time, it would be open to the decree holder to file an
execution petition for delivery of possession and in case such a petition has
been already filed, an application shall be ...5/- - 5 - filed therein to the
effect that the tenants have not vacated the premises in question within the
time granted by this Court. In either eventuality, the Executing Court is not
required to issue any notice to the tenants. The Executing Court will see that
delivery of possession is effected within a period of fifteen days from the
date of filing of the execution petition or the application aforementioned. In
case for delivery of possession any armed force is necessary, the same shall be
deputed by the Superintendent of Police within forty eight hours from the date
requisition is received therefor. It is also directed that in case anybody
else, other than the tenants, is found in possession, he shall also be
dispossessed from the premises in question.
Appeal No.6391 of 2002 is dismissed as being devoid of any substance.
......................J. [B.N. AGRAWAL]
......................J. [AFTAB ALAM]
September 17, 2009.