Ajith Nath v. Anil Kumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 16[TH] DAY OF JANUARY 2023 / 26TH POUSHA, 1944** **RCREV. NO. 197 OF 2018** **AGAINST THE ORDER DATED 18.03.2017 IN RCP NO.1 OF 2016 OF RENT CONTROL COURT, THIRUVANANTHAPURAM CONCURRING WITH THE COMMON JUDGMENT IN RCA NO.17 OF 2017 DATED 16.01.2018 OF THE RENT CONTROL APPELLATE AUTHORITY-III,** ## **THIRUVANANTHAPURAM** ## **REVISION PETITIONER/APPELLANT/PETITIONER:** **AJITH NATH AGED 45 YEARS, S/O. VISWANATHAN, VISHWA BHAVAN (A), K.P.II/893, KAZHAKOOTTAM P.O., THIRUVANANTHAPURAM.** **BY ADVS. SRI.D.SAJEEV SMT.LIGEY ANTONY** ## **RESPONDENT/RESPONDENT/COUNTER PETITIONER:** **ANIL KUMAR AGED 50 YEARS, S/O. VISWANATHAN, VISHWA BHAVAN (B), KAZHAKOOTTAM P.O., THIRUVANANTHAPURAM 695582.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 16.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.Rev. No.197 of 2018 -: 2 :- ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** ## **-----------------------------------------------** ## **R.C.Rev. No.197 of 2018** ## **-----------------------------------------------** ## **Dated this the 16[th] day of January, 2023** ## **O R D E R** ## **P.B.Suresh Kumar, J.** The landlord in an eviction petition instituted under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act) is the petitioner in this revision petition preferred under Section 20 of the Act. The eviction petition was dismissed by the Rent Control Court holding that denial of the title of the petitioner by the respondent is _bona fide_ and the said decision was affirmed in appeal by the Appellate Authority. The petitioner is aggrieved by the concurrent decisions of the authorities below. 2. The subject matter of the eviction petition is five rooms in a two storeyed commercial building. The respondent is none other than the elder brother of the petitioner. It is alleged by the petitioner in the eviction petition that the building was obtained by the petitioner by virtue of Will No.III/167/2012 executed by his father and that the five rooms referred to in the building were let out orally to the respondent for a period of three years from 01.01.2013 R.C.Rev. No.197 of 2018 -: 3 :- to enable him to continue the already established business which was being conducted in the said premises by their late father. It was also alleged by the petitioner in the eviction petition that the rent agreed to be paid by the respondent to the petitioner for all the five rooms collectively comes to Rs.45,000/- per month and instead of paying rent at the rate of Rs.45,000/- per month, the respondent had paid rent only at the rate of Rs.16,000/- from January, 2013 to September, 2014 and at the rate of Rs.20,000/- per month from October, 2014 to November, 2015. It is on the aforesaid premise that the petitioner sought an order of eviction of the respondent from the premises under Section 11(2)(b) of the Act. The eviction petition was resisted by the respondent contending that the subject rooms do not belong to the petitioner and that there is no landlordtenant relationship between the parties. It was stated by the respondent in the objection filed to the eviction petition that the Will referred to by the petitioner in the eviction petition is not a genuine document; that the father of the parties who was the owner of the subject rooms died intestate; that on the death of the father, there was an oral partition in the family, in terms of which the subject rooms were allotted to the share of the respondent and it is on that basis that he is occupying the rooms. 3. The petitioner gave evidence in the proceedings as PW1. Exts.A1 to A19 are the documentary evidence on the side of R.C.Rev. No.197 of 2018 ## -: 4 :- the petitioner. The respondent did not give any evidence. As noted, the Rent Control Court dismissed the eviction petition holding that denial of the title of the petitioner by the respondent is _bona fide_ and the said decision was affirmed in appeal by the Appellate Authority. 4. The learned counsel for the petitioner submitted that the finding rendered by the authorities below that the denial of title of the petitioner by the respondent is _bona fide_ , is erroneous and perverse. In order to drive home the said point, the learned counsel relied on Ext.A5 lease agreement entered into between the parties in respect of the subject rooms and Ext.A15 series rent deeds executed by the petitioner in respect of the remaining rooms in the very same building. In addition, the learned counsel has also argued that immediately after the institution of the eviction petition, the respondent preferred R.C.P. No.18 of 2016 before the very same Rent Control Court in his capacity as the tenant of the premises for determination of the fair rent of the subject rooms. According to the learned counsel, the said fact alone is sufficient for the Rent Control Court to hold that the denial of title of the petitioner by the respondent is not _bona fide_ . According to the learned counsel, in the circumstances, the authorities below ought not have held that such denial by the respondent is _bona fide_ . 5. Even though notice was issued and served on the R.C.Rev. No.197 of 2018 -: 5 :- respondent, he chose not to appear in the proceedings. 6. We have examined the arguments advanced by the learned counsel for the petitioner. We have also perused the records. Although it was argued by the learned counsel for the petitioner that the respondent has filed R.C.P. No.18 of 2016 in his capacity as the tenant of the subject rooms for determination of fair rent, the said fact has not been established in the proceedings by producing the records in R.C.P. No.18 of 2016. We have, in the absence of any appearance for the respondent, in terms of the interim order passed in the matter on 05.01.2023, called for the records in the said case, with a view to ascertain the correctness of the submission aforesaid made by the learned counsel for the petitioner. 7. The short question that falls for consideration is as to whether the concurrent findings rendered by the authorities below that denial of title of the petitioner by the respondent is _bona fide_ , suffer from any illegality, irregularity or impropriety warranting interference of this Court under Section 20 of the Act. 8. Before proceeding to deal with the argument advanced by the learned counsel for the petitioner, it is necessary to remind ourselves as to the scope of the jurisdiction of this Court under Section 20 of the Act. It is well settled that the jurisdiction of this Court under Section 20 of the Act is only to ensure that the R.C.Rev. No.197 of 2018 -: 6 :- decisions of the authorities below do not suffer from any illegality, irregularity or impropriety. This Court cannot, therefore, reappreciate the evidence on record in order to come to a different conclusion on any factual issues, unless the findings are either erroneous or perverse. It has been held by the Apex Court in **Hindustan Petroleum Corpn. Ltd. v. Dilbahar Singh** , (2014) 9 SCC 78 that only findings of facts which have been arrived at without consideration of the material evidence, or findings which are based on no evidence or misreading of the evidence, or findings which, if allowed to stand, would result in gross miscarriage of justice, alone could be said to be erroneous or perverse, warranting correction under Section 20 of the Act. 9. No doubt, if the title claimed by the petitioner in an eviction petition over the subject matter is denied by the person who is arrayed as tenant in the petition, the Rent Control Court is not expected to adjudicate the said dispute, for it has no jurisdiction to do so. At the same time, as referred to by the authorities below in the impugned decisions, the authorities under the Act are certainly empowered to adjudicate the question as to whether denial of title of the landlord by the tenant is _bona fide,_ as otherwise, it would be easy for the tenants in every proceedings under the Act to defeat eviction petitions by merely denying the title of the landlords. It is trite that in the matter of adjudicating the question as to whether R.C.Rev. No.197 of 2018 ## -: 7 :- denial of title of the landlord by the tenant is _bona fide,_ what is to be considered by the authorities under the Act is whether the plea of the tenant is likely to be upheld by a civil court. In other words, if the materials on record in the case reveal that the plea of the tenant is not likely to be upheld in a dispute by a competent civil court, the authorities under the Act would certainly be justified in rejecting the plea of denial of title as not _bona fide_ and adjudicate the claim for eviction on merit. 10. In the proof affidavit filed by the petitioner, it is stated that the business that is being run by the respondent in the subject rooms is one that was being carried on by their deceased father and since the said business was one to be carried on after the death of the father by the respondent, the tenancy arrangement commenced on the basis of the request made orally by the respondent. A photocopy of the draft of the lease agreement alleged to have been prepared by the parties in this regard has been produced by the petitioner as Ext.A4. Similarly, it was stated by the petitioner in the proof affidavit that since the rent payable in respect of the subject premises fell in arrears in course of time, there was an agreement between the parties to clear the arrears within 11 months and to renew the lease arrangement for a further period of three years. A photocopy of the lease agreement alleged to have been executed by the parties in this regard was also produced by R.C.Rev. No.197 of 2018 ## -: 8 :- the petitioner as Ext.A5. The authorities below did not act upon Exts.A4 and A5, as the same were photocopies. Since the documents aforesaid were only photocopies and since the genuineness of those documents was challenged by the respondent while cross-examining the petitioner, the authorities below cannot be found fault with for not having relied on the said two documents. 11. Be that as it may, Ext.A1 is the Will, on the basis of which the petitioner claims title to the building of which the subject rooms are part. Ext.A1 is a registered Will executed by the father of the parties in respect of some of the properties held by him. The respondent admits that the building of which the subject rooms are part, is one that is included in Ext.A1 Will. A similar Will bearing No.III/104/2012 was executed by the father of the parties in favour of the respondent also in respect of some other properties held by the father. Although the respondent admits the execution of Will No.III/104/2012, he denied the execution of Will No.III/167/2012. Along with the revision petition, the petitioner produced three additional documents as Annexures A1 to A3, of which Annexure A1 is the possession certificate issued by the competent authority to the petitioner in respect of the properties covered by Ext.A1 Will, Annexure A2 is the communication received by the petitioner from the local authority changing the ownership of the subject rooms in favour of the petitioner and Annexure A3 is the land tax receipt R.C.Rev. No.197 of 2018 -: 9 :- issued by the competent authority in respect of the properties covered by Ext.A1 Will showing the petitioner as its title holder. Even though the genuineness of Ext.A1 Will has been disputed by the respondent and it has not been proved in accordance with law, the aforesaid three documents would _prima facie_ show that Ext.A1 is a genuine document. That apart, the case set out by the respondent is that the building, of which the subject rooms are part, devolved on the parties on the death of their father and there was an oral partition between them in respect of the properties held by their father and the subject rooms were allotted to his share in the oral partition. Apart from taking up such a contention, the respondent has not adduced any evidence to prove his case of oral partition. He has not even given a formal evidence in this regard nor has he offered himself for cross-examination on the said plea set out by him in the objection to the eviction petition. 12. Ext.A6 is the bank account statement of the petitioner. Ext.A6 evidences transfer of amounts from the account of the respondent to the account of the petitioner. Ext.A6 has been produced by the petitioner to prove that the respondent has paid rent in respect of the subject rooms directly to the bank account of the petitioner. Of course, as observed by the Appellate Authority, a landlord-tenant relationship cannot be inferred from such payments alone. But, as far as the present case is concerned, it was open to R.C.Rev. No.197 of 2018 ## -: 10 :- the respondent to give evidence at least orally as to the purpose for which amounts have been transferred to the account of the petitioner, and in the absence of any evidence in this regard, Ext.A6, according to us, would reinforce the case set out by the petitioner that payments have been effected by the respondent to the petitioner towards the rent payable to the petitioner. That apart, it is seen that the petitioner has produced the rent deeds in respect of six of the remaining shop rooms in the building of which the subject rooms are part, entered into by him with third parties. Ext.A15 series are the rent deeds. The veracity of the said six rent deeds have not been questioned by the respondent. From Ext.A15 series, it can be inferred that the remaining shop rooms in the very same building of which the subject rooms are part, are being owned and possessed by the petitioner himself. 13. Again, the records of R.C.P. No.18 of 2016 which have been called for by us indicate that immediately after the institution of the eviction petition, even though the respondent contended in the eviction petition that there is no landlord-tenant relationship between the parties in respect of the subject rooms, the respondent preferred an application for fixation of fair rent in respect of the subject rooms based on its annual rental value upon which property tax has been assessed in respect of the same by the local authority. It is stated by the respondent in the said application R.C.Rev. No.197 of 2018 ## -: 11 :- that fair rent of the subject rooms would come only to Rs.5,400/-, Rs.2,538/- Rs.1,242/-, Rs.3,240/- and Rs.3,240/- respectively, if the same is worked out in that manner. Even though it is asserted by the respondent in the application in R.C.P. No.18 of 2016 that there is no landlord-tenant relationship between the parties in respect of the said rooms, the averments in the said application would indicate that the same has been instituted by the respondent as a tenant of the premises, for if he is the owner of the said premises, there is no need for him to approach the rent control control court for fixation of fair rent in respect of the subject rooms. In other words, even though it is not stated by the respondent in the said application that he is the tenant of the premises, he impliedly admits in the said proceedings that he is the tenant of the premises. 14. No doubt, in exercise of the power under Section 20 of the Act, this Court is not justified in re-appreciating the evidence on record to arrive at a different conclusion on any factual issue, as clarified by the Apex Court in **Hindustan Petroleum Corpn. Ltd.** _(supra)_ and if a finding is rendered on a misreading of the evidence, or findings which, if allowed to stand, would result in gross miscarriage of justice, this Court would be certainly justified in treating the same as erroneous and perverse and interfering with the same in exercise of the power under Section 20 of the Act. On the facts of the present case, we have no doubt that the factual R.C.Rev. No.197 of 2018 ## -: 12 :- conclusion arrived at by the authorities below on the question as to whether denial of title of the petitioner by the tenant is _bona fide_ , is on a misreading of the evidence on record and if the same is allowed to stand, it would result in gross miscarriage of justice. Needless to say, the said finding is liable to the interfered with. In light of the discussion aforesaid, the impugned decisions are set aside. Insofar as there is no adjudication on the claim of the petitioner for eviction under Section 11(2)(b) of the Act by the authorities below, the eviction petition is remitted to the Rent Control Court for adjudication on the said claim. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **C.S.SUDHA, JUDGE.** ds 11.01.2023 R.C.Rev. No.197 of 2018 -: 13 :- ## APPENDIX ## PETITIONERS ANNEXURES: ANNEUXRE A1: TRUE COPY OF THE POSSESSION CERTIFICATE DATED 12.02.2018 ISSUED BY THE VILLAGE OFFICER KAZHAKOOTTAM IN THE NAME OF THE PETITIONER. ANNEXURE A2: TRUE COPY OF THE RECEIPT DATED 07.03.2013 ISSUED BY THE REVENUE DEPARTMENT OF CORPORATION OF THIRUVANANTHAPURAM IN FAVOUR OF THE PETITIONER. ANNEXURE A3: TRUE COPY OF THE RECEIPT DATED 03.02.2018 EVIDENCING THE PAYMENT OF TAX FOR THE PROPERTIES COVERED BY EXT.A1 WILL DEED.