Kerala High CourtChinnappa Kadeejabi vs Mariyambi D/O. Tharammal Abdullakutty on 11 February, 2011Author:N.K.BalakrishnanBench:Pius C.Kuriakose,N.K.BalakrishnanIN THE HIGH COURT OF KERALA AT ERNAKULAM

RCRev..No. 392 of 2004()


1. CHINNAPPA KADEEJABI,
                      ...  Petitioner

                        Vs



1. MARIYAMBI D/O. THARAMMAL ABDULLAKUTTY,
                       ...       Respondent

2. JAMEELA D/O. THARAMMAL ABDULLAKUTTY,

3. HAJJIBI D/O. THARAMMAL ABDULLAKUTTY,

4. AMINABI D/O. THARAMMAL ABDULLAKUTTY,

5. MOIDEEN KOYA S/O. THARAMMAL ABDULLAKUTTY

6. ABDU S/O. THARAMMAL ABDULLAKUTTY,

7. BAVA, AGED 58 YEARS, 7/412,

8. RASIYABI, AGED 33 YEARS,

9. LAILA, AGED 31 YEARS, D/O.BAVA,

10. BEERAN KOYA, AGED 29 YEARS,

11. SHEREENA MOIDU, AGED 27 YEARS

                For Petitioner  :SRI.AVM.SALAHUDIN

                For Respondent  :SRI.S.V.BALAKRISHNA IYER (SR.)

The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice N.K.BALAKRISHNAN

 Dated :11/02/2011

 O R D E RPIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ.----------------------------------------------------R.C.R. No. 392 of 2004----------------------------------------------------
         Dated this the 11th day of February, 2011

                              Order

N.K.Balakrishnan, J.The short point that arises for consideration in this revision

filed by the landlady is whether the construction or doing of any

act in the land adjacent to the "building" but which does not

form part of the "building" let out to the tenant would entitle the

landlady to get an order of eviction under Section 11(4)(ii) of Act

2 of 1965. Brief facts necessary for the case can be stated thus:The petition was filed under theKerala Buildings (Lease

and Rent Control) Act, 1965(for short 'the Act') for eviction on

the ground of arrears of rent and also on the ground of user of

the building in such a way as to destroy or reduce its value and

utility materially and permanently. It was contended by the

landlady that the rent was kept in arrears and that in spite of

notice, it was not paid. With regard to the claim underSection

11(4)(ii)of the Act, it was contended that the tenants have cut

open the northern wall of the petition schedule building and a

door was fixed. Besides in the land appurtenant to the building,RCR 392/04                     2a well was constructed without the consent of the landlady. By

doing so, it was contended that the tenants used the building in

such a manner as to reduce its value and utility materially and

permanently.2. The tenants resisted the petition stating that no rent was

kept in arrears. It was contended that the allegations regarding

the user of the building in such a manner as to reduce its value

and utility materially and permanently is not true. By

constructing bathroom the value and utility of the building was

not diminished but has only enhanced its value. It was further

contended that the allegation that a new well was constructed is

not true. The well and bathroom were in existence even when the

lease was granted.3. Before the Rent Control Court P.Ws.1 and 2 were

examined and Exhibits A1 to A7 were marked on the side of the

landlady. On the side of the respondents/tenants, one of the

tenants was examined as R.W.1. The learned Rent Controller

found that a sum of Rs.7000/- was paid by the tenants during the

pendency of the R.C.P. and hence, no rent was in arrears. But at

the same time, it was found that they are       liable to pay 6%

interest on arrears of rent and thus order of eviction was passedRCR 392/04                        3underSection 11(2)(b)also. It was further found that the tenants

have dug a well in the land appurtenant to the building and a

bath room was also constructed and thus the value and utility of

the building was materially and permanently diminished and thus

the order of eviction was passed underSection 11(4)(ii)also.The tenants filed appeal challenging the findings of the court

below. The Rent Control Appellate Authority found that the plea

raised by the tenants that the well and bathroom were in

existence even at the time of agreement, is fallacious. Relying

on the    evidence of P.W.2, the Advocate Commissioner and

Exts.A5 and A6 reports filed in the suit filed by the landlady

against the tenants, it was found that the well was constructed

shortly before the litigation. It was also found that the bathroom

was constructed using hollow bricks and it was constructed

recently, i.e., just prior to the inspection of the Advocate

Commissioner. But the learned Appellate Authority found that the

well was dug not within the land leased out to the tenants but

outside. The Appellate Authority further found that the well which

was dug will not affect the structural stability of the building.

Similarly, it was also found that the bath room constructed by the

tenants did not affect the value and utility of the building since itRCR 392/04                       4was not constructed in the land forming part of the lease. Though

it was alleged that a door was provided from the house to the

northern side so as to facilitate entry to the bathroom, the

learned Appellate Authority found that neither P.W.2 (Advocate

Commissioner) nor P.W.1 did state that the door so fixed

would cause diminution in the value and utility of the building

materially or permanently. Thus the appeal was allowed and the

order of eviction passed underSection 11(4)(ii)was set aside.4. Mr.A.V.M.Salahuddeen, learned counsel appearing for the

revision petitioner would refer to the decisions of the Supreme

Court inVipin Kumar v. Roshan Lal Anand & Ors.(JT1993(3)

S.C. 171) and Gurbachan Singh v. Shivalak Rubber

Industries(AIR 1996 S.C. 3057).Mr.Salahuddeen would also

refer to the decisions of this court in Mohanan v. Muhiyudheen

(2010(1) KLT 512), Francis v. Davis (2005(3) KLT 815) and

Seethalakshmi Ammal v. Nabeesath Beevi (2003(1) KLT391). According to the revision petitioner, the value of the

tenanted building has been impaired and the utility of the

building was diminished or reduced considerably. The impairment

of the value or utility of the building is to be looked at from the

perspective of the landlady. The construction or alteration,RCR 392/04                       5according to the tenants, may increase the value of the building,

but in the point of view of the landlady, it will reduce or decrease

the value of the building. The reduction or impairment in the

value or utility of the building has to be adjudged from the point

of view of the landlady. Thus, the learned counsel for the revision

petitioner would submit that by looking at the perspective of the

landlady, it can be very well found that she dug the well and

constructed latrine/bathroom in flagrant violation of the lease

agreement.     Though the argument advanced by the learned

counsel is attractive, it is pointed out by Sri.Jayakumar, the

learned Senior Counsel appearing for the respondents/tenants

that the well even according to the landlady was not dug in the

land appurtenant to the building which forms part of the lease. In

other words, even according to the landlady, the well was dug by

the tenant trespassing into the property which is outside the

tenanted premises and that was the reason why the landlady filed

a suit for injunction against the tenants restraining them from

digging the well. Similar is the position with regard to the

construction of the latrine/bathroom as well.5. Referring to Ext.A7 notice sent on 11.7.1977, it was held

that the lease does not take in the bathroom nor does it showRCR 392/04                       6that there was a well in existence which was covered by the

lease. Therefore, the contention advanced by the tenants that

there was well and bathroom in existence even at the inception of

the lease and that the well and bathroom form part of the lease

was rightly found against the tenants by the learned Appellate

Authority. If the land where the well was dug does not form part

of the tenanted premises, it cannot be construed that it is an

appurtenant land coming within the definition of building underSection 2(1)of the Act. If only the appurtenant land was let to

the tenants, it would include the term 'building' occurring inSection 2(1)of the Act. Since the well and the bathroom put up

by the tenants do not from part of the land let out by the

landlady along with the main structure, it cannot be said that the

digging of the well or the construction of the bathroom outside

the building let out would attract the objectionable user of the

building as mentioned inSection 11(4)(ii)of the Act. In other

words, if only the tenant 'uses' the 'building' let out by the

landlady in such a manner as to reduce its value and utility, it

would attractSection 11(4)(ii). Since the construction of

bathroom/latrine and digging of well was done outside the

'building' and as a suit for injunction was filed by the landlady inRCR 392/04                        7respect of the same, she cannot now turn round and contend that

it amounts to 'use' of the 'building' so as to attract the mischief ofSection 11(4)(ii). Had the constructions been done in the

appurtenant land let out to the tenants, coming within the

definition of "building", then the landlady could have certainly

sustained a claim for eviction underSection 11(4)(ii)of the Act.6. The only other complaint that can be addressed by the

landlady is with regard to the cutting of the northern wall to

provide a door to the northern side. But there is no acceptable

evidence to show that the door fixed on the northern wall has

caused diminution in the value and utility of the building. There is

no legal evidence to show that the value and utility of the

building was reduced materially or permanently. Since there is no

legal evidence to hold that the tenants have 'used' the 'building'

in such a manner as to reduce its value and utility materially

and permanently, we find that the learned Appellate Authority

was perfectly justified in disallowing the claim underSection 11

(4)(ii). So much so, this revision petition must fail.7. We notice that the rent which is presently paid by the

tenants is only Rs.50/-. It is stated that the building is situated

within 3.5 K.M. away from the Kozhikode Court Complex.RCR 392/04                      8Considering the location of the building, we find that if let out,

now the petition schedule building would fetch more than

Rs.1000/- per month. Therefore, we refix the monthly rent at

Rs.1000/- payable with effect from 1.3.2011. It is open to the

parties, if aggrieved, to move the Rent Control Court for regular

fixation of the fair rent. It was also submitted by the learned

counsel for the landlady that the subsequent rent was kept in

arrears.   There is already an order of eviction   passed underSection 11(2)(b). The said order of eviction can be got vacated

underSection 11(2)(c)of the Act. Subject to what is stated

above, this revision is dismissed.PIUS C.KURIAKOSE, JUDGE.N.K.BALAKRISHNAN, JUDGE.srd

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