Radhakrishnan, J.

The object and purpose of the Kerala Buildings (Lease and Rent Control) Act, 1965 is to regulate the leasing of the buildings, prevention of unreasonable eviction of tenants and for the control of rents. The provisions of the Rent Control Act has given an overriding effect by employing the non obstante clause in section 11 of the. Section 11 (4) (iii) has been enacted so as to enable a landlord to seek eviction. Rent Control Court and Appellate Authority in the instant case ordered eviction on the ground that the tenant is already having in his possession a building reasonably sufficient for his requirement.

2. Counsel appearing for the tenant Sri. P. V. Mohanan submitted that the courts below have misunderstood the scope and ambit of Section 11(4) (iii) and consequently reached an erroneous conclusion and therefore liable to be interfered with under Section 20 of the. This Bench in Pakran v. Kunhiraman Nambiar, 2004(1) KLT 824 held that the revisional jurisdiction under Section 20 is wider than the revisional jurisdiction of this court under Section 115 CPC. We may therefore examine whether the courts below have correctly applied Section 11(4) (iii) in the facts of this case. Section 11(4) (iii) contemplates three situations where the landlord could successfully maintain a petition for eviction. If the tenant has come into possession of a building before or after commencement of the tenancy which is reasonably sufficient for his requirement in the same city, town or village and continued to be in his possession on the date of filing of the petition the landlord could seek an order for eviction section 11(4) (iii). So also if the tenant after the commencement of the tenancy acquires possession of or puts up a building, reasonably sufficient for his requirements in the same city, town or village and continues to be in possession on the date of filing of the application that is also a ground available for eviction to the landlord. Landlord could seek eviction under Section 11(4)(iii) even if the tenanted building is not bona fide required for his own occupation or for additional accommodation. The underlying object of the provision is that tenant shall not keep unto himself so many tenanted premises lest there will be scarcity of accommodation for the needy tenants. Burden of proving that the tenant has in his possession of a building and continues to be in possession of that building or has put up a building is on the landlord. Landlord has also to establish prima facie that the building which is in the possession of the tenant is reasonably sufficient for the tenants requirement. The tenant can disprove the same by establishing that he is not in possession of the building on the date of the application and if at all he is in possession that is not reasonably sufficient for his requirement. The court has to weigh the evidence adduced by the landlord and tenant and render a finding as to whether the tenant is in possession of a building which is reasonably sufficient for the requirement on the date of filing of the petition. However, in a given case the tenant can even explain that though he has put up a building the circumstances are such that he cannot occupy the same. Construction of building availing of loan from financial institution is quite common and unless tenant gets a reasonable return it will not be possible to repay the loan amount. In such circumstances the tenant may rent out the building, so that he can repay the loan. Tenant may in a given case put up building after availing loan from prospective buyers or even from prospective tenants, so that the mere fact that tenant has put up a building is not sufficient to show that he can repay the loan. Tenant may in a given case put up building after availing loan from prospective tenants, so that he is in possession so as to occupy the same without any hindrance. However, the onus is on the tenant to show the circumstances which stands in his way of not occupying the premises. The burden is on the landlord to Prima facie show that the building acquired by the tenant and building subsequently put up by the tenant is also reasonably sufficient for his requirement.

3. It is well settled canon of evidence that the point in issue is to be proved by the party who asserts the affirmative. It is settled law that in a suit for ejectment or a petition for eviction the burden of proof lies on the party who seeks eviction before the onus is shifted to the defendant or tenant to prove that he has a right to be continue in possession. In our view the landlord, the person who seeks an order of eviction has to show that the tenant has in his possession on the date of the filing of the petition a building reasonably sufficient for his requirement in the same city, town or village. The question to be considered in this case is whether the landlord could succeed in showing that the tenant has already in his possession a building on the date of filing the application for eviction is reasonably sufficient for his requirement in the same city, town or village. In order to determine the said question we have to examine the area in the occupation of the tenant and the area which is available with the tenant for occupation. The only independent evidence available to determine the said question in this case is the commission report C1 dated 7-4-1993. Ext.A1 lease deed also would give the nature of the tenanted premises. Commission report has described the tenanted premises as follows:

The petition scheduled shop is situated east of Peruvattumthazha Road, facing west in ward No.31 and the building is numbered as 307 by the Badagara Municipality.

At the time of my visit in the petition scheduled shop, I saw a name board on the wall of the building written. The particular room was kept open. At the western side of the shop, there is a small verandah and no furniture were seen there. 3 bags of copra were seen in the room bearing door No. 31/307. A table and 3 chairs were also seen there. The room is electrified. On the western side of the room there is a door which was opened. At the southern side also there is another door to enter into the copra yard, which was very spacious one, situated at the south of the petition scheduled shop.

At the western side of the copra yard, a thatched shed is in existence. At the southern side of the above shed, a smoke-house also is noticed.

It is tiled but on the western side, tiles were seen removed and the reapers were seen either eaten away by white ants or damaged. In the smoke-house, arrangements to dry the copra were seen but it was not in an usable condition. On the reaper like arrangement to dry the copra, about 30 tiles were seen placed. At the northern side and eastern side of the smoke-house, wooden frames for passages were seen. These passages were completely covered by cobweb. It reveals that no one use to enter in the smoke-house for drying copra.

In the shed attached to the smoke-house, situated at the north and south to the petition scheduled shop, 100 bags of licko coal are seen. In another corner of the shed, 5 bags of cement (loose) also were seen.

The said copra yard was also not in an usable condition. The floor of the copra yard is full of growing grass and dry shrubs. The waste part of licko coal also were noticed on the ground of the yard. The copra yard is surrounded by a wall, about 7 feet height, but no net was seen covering the yard.

From the verandah of the shop, one cannot enter into the shed, as the opening into the shed from the verandah was seen closed by using wooden planks (nirappalakas) from inside of the shed. The wooden planks and the iron rod, which connected the wooden planks, were seen full of cobweb and accumulated dust.

The above mentioned details given by the commissioner would give an idea of the tenanted premises. The landlord stated that the tenant is in possession of another building just opposite to the schedule building which was also examined by the commissioner. With regard to that building commissioner has stated as follows:

Just opposite to the petition schedule shop, about 20 meters south from the shop and on the western side of the Peruvattumthazha road, a shop owned by Sri. Kunhiraman, the first respondent is noticed; as told by one Mr. Monojan, son of the owner of the Manohar Restarant situated at the northern side of the shop and another Pavithran, a shop keeper of an Ayurvedic shop situated eastern side of the above shop. According to them, the particular shop is owned by Kunhiraman, the first respondent, and that is being used as godown for storing cement and licko coal for sale. They further told me that after issuing bills from the shop, numbered as 31/307, the customers used to get their cement and licko coal from this particular shop. This shop was seen kept closed at the time of my inspection. No daily business is carried out there, as the surroundings of the shop seems to be a squalid one.

We have gone through Ext.A1 kychit as well as the oral and documentary evidence adduced in this case. When we compare the tenanted premises with the premises stated to be in the possession of the tenant on the basis of the commission report we can safely come to the conclusion that the premises which in the possession of the tenant is not reasonably sufficient for his requirement in the matter of extent as well as convenience. We are therefore of the view courts below have committed a grave error in passing an order of eviction. In our view there is a complete misreading of evidence by the authorities below. Counsel appearing for the landlord submitted that the rent of the building is also considerably low. Counsel appearing for the tenant submitted that he is willing to pay Rs.750/- per month with effect from 1-3-2004. We record the said submission. Since we have found that the landlord is not entitled to get order of eviction under Section 11(4) (iii) we are inclined to set aside the orders of the Rent Control Court and Appellate Authority and allow the revision. We may indicate that the grounds urged under Section 11(2) (b), 11(4)(ii) and 11(4) (v) were already rejected by the Rent Control Court and Appellate Authority.

4. Under such circumstance this revision is allowed and the order or eviction passed under Section 11(4) (iii) would stand set aside. However, the landlord is entitled to get rent at the rate of Rs.750/- per month from 1-3-2004 onwards. We make it clear that if the landlord has got a case that he is entitled to get more rent than Rs.750/- it is for him to approach the Rent Control Court for fixation or fair rent.