A.C. Muhammed v SulaiKha; Parameswaran V. v SulaiKha; V.P. Khader v SulaiKha; Gafoor v SulaiKha

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **MONDAY, THE 25[TH] DAY OF OCTOBER 2021 / 3RD KARTHIKA, 1943 RSA NO.634 OF 2021** **AGAINST THE JUDGMENT AND DECREE DTD.30.7.2021 IN AS 8/2020 OF SUB COURT, SULTHANBATHERY ARISING FROM THE JUDGMENT AND DECREE DTD.21.12.2019 IN OS 241/2017 OF MUNSIFF MAGISTRATE COURT, KALPETTA** ## **APPELLANT/APPELLANT/DEFENDANT:** A.C.MUHAMMED, AGED 44 YEARS, SON OF ABOOBACKER, AC STORES, VADAVANCHAL.P.O., VYTHIRI TALUK, WAYANAD DISTRICT, PIN-673 571. BY ADVS. SRI.K.K.CHANDRAN PILLAI (SR.) SRI.M.A.AUGUSTINE SMT.S.AMBILY MICKY THOMAS ## **RESPONDENT/RESPONDENT/PLAINTIFF:** SULAIKHA, AGED 64 YEARS, W/O. LATE KUNHABDULLA, SAMEERA MANZIL, KADAVATHOOR P.O, THRIPPENKOTTOOR VILLAGE, THALASSERY TALUK, KANNUR DISTRICT, PIN-670 676. BY ADV SRI.ALEX.M.SCARIA THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13.10.2021, ALONG WITH RSA.660/2021, 661/2021 AND 667/2021, THE COURT ON 25.10.2021 DELIVERED THE FOLLOWING: R.S.A.Nos.634/2021, 660/2021, 661/2021 & 667/2021 ..2.. ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR MONDAY, THE 25[TH] DAY OF OCTOBER 2021 / 3RD KARTHIKA, 1943 RSA NO.660 OF 2021** **AGAINST THE JUDGMENT AND DECREE DTD.30.7.2021 IN AS 6/2020 OF SUB COURT, SULTHANBATHERY ARISING FROM THE JUDGMENT AND DECREE DTD.21.12.2019 IN OS 239/2017 OF** **MUNSIFF MAGISTRATE COURT, KALPETTA** ## **APPELLANT/APPELLANT/DEFENDANT:** PARAMESWARAN.V., AGED 58 YEARS, S/O.VELU, K.P.S.VYDIYASALA, MP VI/513, VADUVANCHAL POST, MUPPAINADU VILLAGE AND PANCHAYATH, VYTHIRI TALUK, WAYANAD DISTRICT, PIN-673581. BY ADVS. SRI.M.A.AUGUSTINE SRI.A.R.NIMOD ## **RESPONDENT/RESPONDENT/PLAINTIFF:** SULAIKHA, AGED 64 YEARS, W/O.LATE KUNHABDULLA, SAMEERA MANZIL, KADAVATHOOR P.O., THRIPPENKOTTOOR, THALASSERY TALUK, KANNUR DISTRICT, PIN-670676. BY ADV SRI.ALEX.M.SCARIA THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13.10.2021, ALONG WITH RSA.634/2021, 661/2021 AND 667/2021, THE COURT ON 25.10.2021 DELIVERED THE FOLLOWING: R.S.A.Nos.634/2021, 660/2021, 661/2021 & 667/2021 ..3.. ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR MONDAY, THE 25[TH] DAY OF OCTOBER 2021 / 3RD KARTHIKA, 1943 RSA NO.661 OF 2021** **AGAINST THE JUDGMENT AND DECREE DTD.30.7.2021 IN AS 7/2020 OF SUB COURT, SULTHANBATHERY ARISING FROM THE JUDGMENT AND DECREE DTD.21.12.2019 IN OS 240/2017 OF** **MUNSIFF MAGISTRATE COURT, KALPETTA** ## **APPELLANT/APPELLANT/DEFENDANT:** V.P.KHADER, AGED 57 YEARS, S/O.MUHAMMED, SANA FANCY CENTRE, MP VI/508, VADUVANCHAL POST, MUPPAINAD VILLAGE AND PANCHAYTH, VYTHIRI TALUK, WAYANAD DISTRICT, PIN-673 581. BY ADVS. SRI.M.A.AUGUSTINE SRI.A.R.NIMOD ## **RESPONDENT/RESPONDENT/PLAINTIFF:** SULAIKHA, AGED 64 YEARS, W/O.LATE KUNHABDULLA, SAMEERA MANZIL, KADAVATHOOR P.O., THRIPPENKOTTOOR, THALASSERY TALUK, KANNUR DISTRICT, PIN-670 676. BY ADV SRI.ALEX.M.SCARIA THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13.10.2021, ALONG WITH RSA.634/2021 660/2021 AND 667/2021, THE COURT ON 25.10.2021 DELIVERED THE FOLLOWING: R.S.A.Nos.634/2021, 660/2021, 661/2021 & 667/2021 ..4.. ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **MONDAY, THE 25[TH] DAY OF OCTOBER 2021 / 3RD KARTHIKA, 1943 RSA NO. 667 OF 2021** **AGAINST THE JUDGMENT AND DECREE DTD.30.7.2021 IN AS 9/2020 OF SUB COURT, SULTHANBATHERY ARISING FROM THE JUDGMENT AND DECREE DTD.21.12.2019 IN OS 236/2017 OF** **MUNSIFF MAGISTRATE COURT, KALPETTA** ## **APPELLANT/APPELLANT/DEFENDANT:** GAFOOR, AGED 48 YEARS, S/O.ABDURAHIMAN, "SHALIMAR" TEXTILES,MP. VI/509, VADUVANCHAL TOWN, VADUVANCHAL POST, MUPPAINAD VILLAGE AND PANCHAYATH, VYTHIRI TALUK, WAYANAD DISTRICT, PIN - 673 581. BY ADVS. SRI.M.A.AUGUSTINE SRI.A.R.NIMOD ## **RESPONDENT/RESPONDENT/PLAINTIFF:** SULAIKHA, AGED 64 YEARS, W/O.LATE KUNHABDULLA, SAMEERA MANZIL, KADAVATHOOR.P.O., THRIPPENKOTTOOR, THALASSERY TALUK, KANNUR DISTRICT, PIN - 670 676. BY ADV SRI.ALEX.M.SCARIA THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13.10.2021, ALONG WITH RSA.634/2021 660/2021 AND 661/2021, THE COURT ON 25.10.2021 DELIVERED THE FOLLOWING: R.S.A.Nos.634/2021, 660/2021, 661/2021 & 667/2021 ..5.. ## **JUDGMENT** Common questions of law and facts arise in these appeals and, therefore, I think, it is just and proper to dispose of all these appeals jointly. 2. Suits were filed for recovery of possession from the defendants in O.S.Nos.241/2017, 239/2017, 240/2017 and 236/2017 of the Munsiff's Court, Kalpetta (hereinafter referred to as 'the trial court') respectively. The learned Munsiff conducted separate trial and decreed the suits granting recovery of possession. Challenging the judgments and decrees, the defendant in O.S.No.241/2017 filed A.S.No.8/2020, the defendant in O.S.No.239/2017 filed A.S.No.6/2020, the defendant in O.S.No.240/2017 filed A.S.No.7/2020 and the defendant in O.S.No.236/2017 filed A.S.No.9/2020 before the Sub Court, Sulthanbathery (hereinafter referred to as 'the first R.S.A.Nos.634/2021, 660/2021, 661/2021 & 667/2021 **==> picture [23 x 9] intentionally omitted <==** appellate court'). All the appeals were dismissed by way of separate judgments and decrees. Hence the defendants in all the above cases filed separate appeals before this Court as R.S.A.Nos.634/2021, 660/2021, 661/2021 and 667/2021 respectively. 3. The subject matter of the suits is situated within the jurisdiction of Muppainad Village, Vythiri Taluk which is coming under the Muppainad Panchayat area. The Muppainad Village was earlier included within the area of Meppadi Panchayat. The provisions of the Rent Control Act was made applicable to the Meppadi Grama Panchayat area. Later, the area, where the plaint schedule property is situate, is transferred to the Muppainad Panchayat, whereby the said area included within the area of Muppainad Panchayat. It is a fact that, even after transfer of the above area to the Muppainad Panchayat, the R.S.A.Nos.634/2021, 660/2021, 661/2021 & 667/2021 **==> picture [23 x 9] intentionally omitted <==** property continued to be in the same Village where the provisions of the Rent Control Act are made applicable. 4. Heard the learned counsel for the appellants Sri.K.K.Chandran Pillai in R.S.A.No.634/2021, Sri.M.A.Augustine in R.S.A.Nos.660/2021, 661/2021 & 667/2021 and Sri.Alex M.Scaria, the learned counsel for the respondents (Caveator). 5. The learned counsel for the appellants submit that once provisions of the Rent Control Act is extended to an area, it operates applying to that geographical limit. It is further submitted that the application of the law so extended to a particular geographical limit does not loose its efficacy, co-terminus with any modification of the notification regarding that particular territory under the Panchayats Act or any other Municipal law which may provide for a delimitation exercise for the purpose of that R.S.A.Nos.634/2021, 660/2021, 661/2021 & 667/2021 **==> picture [23 x 9] intentionally omitted <==** Act. Elaborating on the submission, it is argued that the Act 2 of 1965 having been applied to earlier Meppadi Panchayat including Muppainad Village, any further delimitation exercise does not modify the effect of the application of the Rent Control Act to the said area. Thus, it is argued that a civil suit for eviction of the defendants is unsustainable and the plaintiff ought to have filed petitions for eviction under the Act 2 of 1965. 6. The learned Senior Counsel for the appellant Sri.K.K.Chandran Pillai in R.S.A.No.634/2021 placed strong reliance on **Meenakshy v. Ananthambal** [2015 (1) KLT 384] and contended that what are the boundaries and limits of a particular geographical territory as per the scheme of the Act 2 of 1965 is essentially a question of fact. The learned Senior Counsel placed reliance on paragraph 6 of the case (supra). It reads as follows:- R.S.A.Nos.634/2021, 660/2021, 661/2021 & 667/2021 **==> picture [23 x 9] intentionally omitted <==** _“6. When the 1965 Rent Act was brought into force, the Kerala Panchayats Act, 1960, hereinafter referred to as the “1960 Panchayats Act”, was in force. Nenmara Panchayat had Nenmara, Ayiloor and Nelliyampathy Villages. Going by its definition in Section 2(21) of the 1960 Panchayats Act, 'Panchayat area' means any local area declared as such by the Government or such other authority as may be authorised by the Government for the purposes of that Act. The provision in the 1960 Panchayats Act relating to repeal shows that the fact situation available as on the date of that Act would be modified only if there is any subsequent action by the Government in that regard. Therefore, Nenmara, Ayiloor and Nelliyampathy Villages stood in Nenmara Panchayat under the 1960 Panchayats Act and there is no material to show that the said fact situation has thereafter been varied. Nenmara Panchayat is included in the Schedule of the 1965 Rent Act. Therefore, the provisions of the 1965 Rent Act were applicable to Nenmara Panchayat meaning thereby that area_ R.S.A.Nos.634/2021, 660/2021, 661/2021 & 667/2021 **==> picture [30 x 9] intentionally omitted <==** _identified as Nenmara Panchayat, including Nenmara, Ayiloor and Nelliyampathy Villages. Once the provisions of the 1965 Rent Act thus applied to that geographical limit which takes in Nenmara, Ayiloor and Nelliyampathy Villages, such application of the 1965 Rent Act does not get watered down even if there is any delimitation exercise carried out by the competent statutory authority in terms of the Kerala Panchayat Raj Act, 1994 which came into force as a consequence of the Seventy-third Constitutional Amendment bringing in the three-tier panchayat raj system. Once an Act is extended to an area, it operates applying to that geographical limit. The application of the law so extended to a particular geographical limit does not loose its efficacy, coterminus with any modification of the notification regarding that particular territory under the Panchayats Act, Panchayat Raj Act or any other municipal law which may provide for a delimitation exercise for the purposes of that Act. Therefore, 1965 Rent Act having been applied to Nenmara_ R.S.A.Nos.634/2021, 660/2021, 661/2021 & 667/2021 **==> picture [30 x 9] intentionally omitted <==** _Panchayat, including Nenmara, Ayiloor and Nelliyampathy Villages, any further delimitation exercise under the Panchayat laws does not modify the effect of the application of the 1965 Rent Act to that area unless such modification is carried out under the provisions of the 1965 Rent Act as well.”_ 7. In the light of the above legal principles, the learned Senior Counsel submitted that both the trial court and the first appellate court concurrently committed illegality in holding that by the inclusion of the area in the Muppainad Panchayat, the applications of the provisions of the Rent Control Act will not apply to the new area annexed to the said Panchayat since notification is not there as regards the Muppainad Grama Panchayat. In other words, both the courts below went wrong in holding that since Muppainad Panchayat is not notified under the Act, filing of rent control petition is not the remedy for the R.S.A.Nos.634/2021, 660/2021, 661/2021 & 667/2021 **==> picture [30 x 9] intentionally omitted <==** plaintiff. Thus, the substantial question of law canvassed before this Court is as to whether the findings made by the trial court and the first appellate court are sustainable in the view of **Meenakshy's** case (supra). 8. The learned counsel for the respondent submitted that the suits for recovery of possession were filed as early as in the year 2017. For the last four years, the defendants have been in possession of the suit property. It was further submitted that the intention of the defendants is to drag on the proceedings and also to defeat and delay the right of the plaintiff in the suits. 9. Going by **Meenakshy's** case (supra) it is very clear that the application of the Rent Control Act extended to a particular geographical limit does not loose its efficacy, co-terminus with any modification of the R.S.A.Nos.634/2021, 660/2021, 661/2021 & 667/2021 **==> picture [30 x 9] intentionally omitted <==** notification regarding that particular territory under the Panchayats Act, Panchayat Raj Act or any other Municipal law which may provide for a delimitation exercise for the purposes of that Act. The contention of the defendants is that the plaint schedule property is situated in the Muppainad Grama Panchayat in Muppainad Village of Vythiri Taluk. Therefore, the suits for eviction as provided under Section 106 of the Transfer of Property Act is clearly unsustainable. The plaint schedule properties in these cases are situated within the jurisdiction under the Act 2 of 1965. Thus, the defendants are entitled to succeed in these appeals. All the appeals are liable to be allowed. For the above reasons, the judgments and decrees of the first appellate court confirming the judgments and decrees of the trial court are set aside. The Regular Second Appeals are allowed without prejudice to the R.S.A.Nos.634/2021, 660/2021, 661/2021 & 667/2021 **==> picture [30 x 9] intentionally omitted <==** rights and liberties of the respondent in the above cases to evict the appellants in accordance with Act 2 of 1965. The Rent Control Court is directed to dispose of the petitions for eviction, if any, filed by the respondent, on out of turn priority within a period of six months. There will be no order as to costs. Pending applications, if any, stand closed. Sd/- **N.ANIL KUMAR, JUDGE** skj