**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN**
**&**
**THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI**
**MONDAY, THE 19TH DAY OF MARCH 2018 / 28TH PHALGUNA, 1939**
**RCRev..No. 45 of 2018**
**AGAINST THE ORDER/JUDGMENT IN RCA 1/2015 of RENT CONTROL APPELLATE AUTHORITY,PALAKKAD DATED 31-03-2017 AGAINST THE ORDER/JUDGMENT IN RCP 62/2010 of RENT CONTROL COURT, PALAKKAD DATED 31-10-2014**
## **REVISION PETITIONER(S)//RESPONDENT**
**A.RAJAN AGED 38 YEARS, S/O ANNAMALA MOOTHAN, DOOR NO.29/244 LINE BUILDING, TEMPLE STREET, MOOTHANTHARA, VADAKKAMNTHARA AMSOM, PALAKKAD DISTRICT**
**BY ADV.SRI.P.M.HABEEB**
## **RESPONDENT(S):**
**R.C.MURUKESAN S/O RAMASWAMY CHETTIAR, AGED 73, 10/12 NEW SCHEME COLONY, KOUNDANPALAYAM, COIMBATORE DISTRICT,TAMILNADU**
**R1 BY ADV. SRI.T.C.SURESH MENON**
**THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 19-03-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
## **P.N. Ravindran & R.Narayana Pisharadi, JJ.**
**- - - - - - - - - - - - - - - - - - - - - -- - -**
**R.C.R.No.45 of 2018 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 19[th] March, 2018**
## **O R D E R**
## **P.N.Ravindran, J.**
The petitioner is the tenant in R.C.P.No.62 of 2010 on the file of the Rent Control Court, Palakkad, a petition for eviction filed by the respondent under section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as “the Act” for short). The landlord contended that the tenant has kept the rent at the rate of Rs.30/- in arrears ever since May, 1990, that when he demanded rent for the period from May, 1989 to May, 1990 the tenant sent a reply notice raising an untenable contention that he has perfected title to the petition schedule property by adverse possession and limitation.
2. The tenant opposed the petition for eviction. He contended that there is no landlord tenant relationship between the parties. He also contended that ever since Kaliyammal vacated the property, he is in possession and enjoyment of the property. He further contended that he has perfected title to the property by adverse possession and limitation.
3. Before the rent control court the landlord examined himself
as PW1 and produced and marked Exts.A1 and A2. The tenant
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examined himself as RW1 and another witness as RW2. He also produced and marked Exts.B1 to B3.
4. After considering the rival contentions, relying on the order passed by the Rent Control Court, Palakkad on 31.10.2011 whereby the rent for the petition schedule building was fixed at Rs.900/- per mensem, the rent control court held that the tenant cannot, in view of the said order contend for the position that there is no landlord tenant relationship between the parties or that he has perfected title by adverse possession and limitation. The rent control court accordingly passed an order of eviction. The tenant carried the matter in appeal by filing R.C.A.No.1 of 2015. By judgment delivered on 31.3.2017, the appellate authority concurred with the rent control court and dismissed the appeal. The tenant has, aggrieved thereby, filed this revision petition.
5. We heard Sri P.M.Habeeb, learned counsel for the petitioner and Sri T.C.Suresh Menon, learned counsel for the respondent. We have also gone through the pleadings and the materials on record as also a copy of the order passed by the Rent Control Court, Palakkad in R.C.P.No.61 of 2010. Shorn of details, the main contention raised by the petitioner's counsel is that there is no landlord tenant relationship between the parties. Learned counsel contended that in such circumstances an order of eviction could not have been passed. We are afraid, in the light of the order passed by the Rent Control Court,
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Palakkad in R.C.P.No.61 of 2010, the petitioner cannot once again raise that issue. He had contested R.C.P.No.61 of 2010, a petition filed by the landlord under section 5 of the Act to have the fair rent for the same premises fixed. He contended therein that there is no landlord tenant relationship and therefore no question of fixing the fair rent arises. In that case he had also contended that he had perfected title by adverse possession and limitation. Dealing with that aspect of the matter, the Rent Control Court, Palakkad held in R.C.P.No.61 of 2010 as follows:
“6 **. Point No.1** :- The petition schedule building forms part of a line building. The petitioner would contend that the rate of the rent of the building is Rs.30/- per month. The building was leased out to the respondent long back for the same rent and considering the hike in the costs of living, importance of the locality and reduction of money value, the said rent is very meager and hence he is entitled to get fair rent at the rate of Rs.3,000/- p.m. On the other hand the respondent would contend that he is in possession of the building as absolute owner and there is no landlord-tenant relationship. According to him he is in possession of the property from 1990 onwards and thereby he has perfected title over the property by adverse possession and limitation. Our Hon'ble High Court has held in the decision reported in 1995(1) KLT 553 _(Aboobacker v. Girija)_ that:
“Just because the respondent in the rent control petition denies the title deed in a serious and specific manner, the jurisdiction of the rent control court will not stand ousted.
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There the lordships have held that the Court whose jurisdiction stands ousted must have the satisfaction that there are strong or at least substantial ground or sufficient materials in support of the plea of the petitioner and the chances of the plea being taken up held by the Civil Court must be fairly on the higher side. What is required in this case at the relevant stage is to satisfy the rent control court that denial of the landlord's title is bonafide. This has to be done by the tenant who makes the denial either by producing materials or by focusing on admitted or reliable circumstances.”
The case of the petitioner is that the occupation of the respondent in the building is as the status of tenant. Admittedly, the petition schedule building is a portion of the line building owned by the landlord. The remaining rooms of the line building are also outstanding in the possession of the tenants. According to PW1, the petitioner, the petition schedule property was in the possession of one Kaliyammal and after she surrendered the possession the petition schedule property was taken on lease by the respondent from him on 16/05/1990 for the same rent. According to him the respondent took the property on lease on the basis of an oral agreement and therefore he defaulted the rent and in spite of repeated demands he did not care to pay the rent. There is no dispute to the fact that the petition schedule building belongs to the petitioner. The contention of the respondent is that he is in possession of the property and he has perfected his title by adverse possession. Necessary pleadings to constitute a plea of acquisition of title by adverse possession and limitation have not been incorporated in the
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counter. No evidence was adduced by the respondent to prove the adverse possession. The interested testimony of RW1 is not at all sufficient to prove that his possession in the property was hostile to the petitioner or as a true owner. Hence I hold that the denial of the title made by the respondent is not a bonafide one.”
6. The said finding has attained finality. The petitioner cannot in view of the finding entered by the Rent Control Court, Palakkad in R.C.P.No.61 of 2010, contend for the position that he is not a tenant of the premises or that he has perfected title by adverse possession and limitation. Learned counsel appearing for the petitioner however submits that the petitioner intends to file an appeal challenging the order passed by the Rent Control Court, Palakkad on 31.10.2011 in R.C.P.No.61 of 2010. We are afraid, the tenant cannot, at this distance of time, put forward a contention that as he intends to file an appeal against the order in R.C.P.No.61 of 2010 fixing the fair rent for the petition schedule building, this revision petition arising from an order passed by the rent control court under section 11(2)(b) of the Act should be entertained. If such a plea is put forward, every litigant against whom a plea of res judicata is raised, can get over that plea by saying that he intends to challenge the order which is pressed into service, in support of the plea that the suit or the proceeding is barred by res judicata. The statement made at the Bar that the tenant intends to file an appeal challenging the order passed by the rent
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control court fixing the fair rent is in our opinion not liable to be taken into account for the purpose of considering whether the impugned order merits interference.
7. As stated earlier, apart from the ipse dixit of the petitioner, there is nothing on record to show that he has perfected title by adverse possession and limitation. Going by the age as disclosed in the affidavit, the petitioner would have attained the age of 18 years only in the year 1998. His case in the objections is that he took possession of the premises vacated by Kaliyammal in May 1990. At that point of time he would have been, going by his age as disclosed in the affidavit, aged only 11 years. It is also not in dispute that the petitioner and his family members were residing in the adjacent building bearing door No.29/248. In respect of that building and the adjacent rooms the landlord had filed separate petitions for eviction under section 11(3) of the Act. Though this court had in R.C.R.No.189 of 2017 interfered with the order of eviction passed under section 11(3) of the Act on the ground that the application should have been one under section 11(4)(iv) of the Act, we are told at the Bar that review petitions filed by the landlord are pending. The need put forward by the landlord is that they need the petition schedule shop room and the adjacent shop rooms for the purpose of constructing a three storied building for starting a branch of their business which is presently being conducted at Coimbatore. It was their case that they
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intend to demolish the existing shop rooms and construct a new three storied building for the purpose of locating their business as well as for residential accommodation. The petition schedule shop room in the instant case is a portion of the building which is a subject matter of the petition for eviction filed under section 11(3) of the Act. It is evident from the description of the petition schedule room that on all four sides buildings/rooms owned by the landlord are situate. That is also in our opinion a strong circumstance which would justify the plea of the landlord that the petitioner is a tenant of the disputed shop room.
Having regard to the pleadings and the evidence on record as also the findings entered by the Rent Control Court itself, the petitioner cannot in our opinion successfully contend that he is not a tenant of the petition schedule building or that he has perfected title by adverse possession and limitation. The revision petition is in our opinion without any merit. It fails and is accordingly dismissed.
## **(P.N. Ravindran, Judge)**
## **(R.Narayana Pisharadi, Judge)**
## **kav/**
