The burden of proving continuous occupation from before 1st April 1940 rested on the tenant, and mere assertion or hardship was not a substitute for proof.

Petitioner (a tenant of building) claimed among other things, that he has protection against eviction, since he continues in occupation under a lease arrangement Which was created before 1-4-1940. After shuttling up and down between Rent Control Court, Appellate Authority and Revisional Court for a period, which stretched well over twelve years, parties have reached the High Court in this Original Petition filed by the tenant under Art.227 of the Constitution. The point which was urged in this Original Petition centers round the decision of the lower authority regarding tenant's claim of protection based so.ll (17) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short' the Act').

2. The respondent-landlord filed a petition before Rent Control Court for eviction on the ground that he bona fide needs the building for his own occupation. The tenant resisted it on many grounds including a claim of kudikidappu right for which the dispute remained in the Land Tribunal for A while on reference made by the Rent Control Court under S.125(3) of the Kerala Land Reforms Act. All the remaining questions have been resolved and one that survives now is the claimer of protection under S.11(17) of the Act. The case, at one stage, reached the District Court in revision from where it was pushed back to the Rent Control Court. The proceedings again mounted up to higher forums and reached the District Court. On a second time the District Court remanded it but not down to Rent Control Court. The Appellate Authority then found that the tenant's father had taken the building on lease prior to 1-4-1940. The said finding was enough to non-suit the landlord in this case. However, the finding did not last long as the District Court, in revision, set it aside. The said order of the District Court is in challenge in this Original Petition.

3. 8.11(17) of the Act reads as follows:

"Notwithstanding anything contained in this section a tenant who has been in continuous occupation of a building from 1st April 1940 as a tenant, shall not be liable to be evicted for bona fide occupation of the landlord or of the occupation by any member of his family dependent on him, provided that a landlord of a residential building shall be entitled to evict such a tenant of that building if the landlord has been living in a place outside the city, town or village in which the building is situated for a period of not less than five years before he makes an application to the Rent Control Court for being put in possession of the building, and requires the building bona fide for his own permanent residence or for the permanent residence of any member of his family or the landlord is in dire need of a place for residence and has none of his own."

4. Though the building in this case is a residential one, the landlord did not claim relief on any of the premises envisaged in the second limb of the sub-section, namely, its proviso.. He disputes the tenant's contention that the building was let out before the crucial date i.e., 1-4-1940 though he did not say as to when the lease commenced. He acquired the ownership of the building only in 1976 and even at that time the building was outstanding on lease with the tenant. However, he disputed the tenant's claim that the lease originated prior to the crucial date. The tenant claimed in his objections that the lease commenced in January 1940. Ext.B1 is a receipt dated 1-10-1961 and Exts.B2 to B8 are extracts of property tax assessment register of Cochin Corporation, none of which helps the court to decide the crucial question. Ext.B9 is a certificate issued by the Commissioner of Cochin Corporation to the effect that records relating to the period prior to Ext.B2 are not available in the office of the Corporation. The documents produced by the tenant help him, if at all they can be acted on, to trace tenancy as far back as 1946. Ext.A5 is a receipt, the genuineness of which was seriously disputed by the tenant and