Akhila Bharatha Ayyappa Seva Sangam, Pandalam Branch No.344 v. K.G. Retna Bai

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **WEDNESDAY, THE 7TH DAY OF AUGUST 2013/16TH SRAVANA, 1935** ## **RCRev..No. 145 of 2013 ()** **------------------------RCA. NO.8/2012 OF RENT CONTROL APPELLATE AUTHORITY, PATHANAMTHITTA. RCP. NO. 5/2009 OF RENT CONTROL COURT, ADOOR.** **...........** ## **REVISION PETITIONERS/APPELLANTS/RESPONDENTS:** **----------------------------------------------------------------------------------** **1. THE AKHILA BHARATHA AYYAPPA SEVA SANGAM, BRANCH NO.344, PANDALAM, REPRESENTED BY THE PRESIDENT K.NARAYANA KURUP, REMA NIVAS, THONALLOOR MURI, PANDALAM VILLAGE.** **2. THE SECRETARY,** - **P. NARENDRAN NAIR, SHANTHI NILAYAM, THONALLOOR MURI, PANDALAM VILLAGE.** **BY SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE. ADVS. SRI.K.S.SIVA KUMAR, SRI.C.B.SREEKUMAR.** ## **RESPONDENT/RESPONDENT/PETITIONER:** **----------------------------------------------------------------** **K.G. RETNA BAI, W/O.RAMACHANDRAN NAIR, LEKSHMI NIVAS, KURAMPALA MURI, KURUMPALA VILLAGE, ADOOR TALUK, PIN- 689 101.** **BY SRI.P.B.SURESH KUMAR, SENIOR ADVOCATE. ADVS. SRI.JACOB P.ALEX, SRI.JOSEPH P.ALEX.** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 24-07-2013, THE COURT ON 07-08-2013 PASSED THE FOLLOWING:** **rs.** ## **T.R.RAMACHANDRAN NAIR & A.V.RAMAKRISHNA PILLAI, JJ.** --------------------------------------------- RCR No.145 of 2013 ----------------------------------------- Dated this the 7[th] day of August, 2013 ## **ORDER** ## Ramakrishna Pillai, J. Under challenge in this revision is the judgment of the Rent Control Appellate Authority, Pathanamthitta in RCA No.8 of 2012. The respondent herein moved the Rent Control Court for evicting the revision petitioner from the tenanted premises under Sections 11(2), 11(3) and 11(4) (iii) of the Kerala Buildings (Lease and Rent Control) Act, hereinafter referred to as the Act. 2. The petition schedule building situated in 64 cents of land in Resy.No.8/5 of Pandalam Village belongs to the respondent. The building was let out to the revision petitioner viz. Akhila Bharatha Ayyappa Seva Sangam, Pandalam Branch on a monthly rent of Rs.300/- for housing their office. Rent is in arrears from 1.11.2006. The RCR No.145 of 2013 2 respondent bona fide requires the building for starting a business of parking facilities and other amenities to interested travelers in the aforesaid 64 cents of land and the business is to be run and managed from the petition schedule building. The building and the land is very close to the Pandalam Palace, the birth place of Lord Ayyappa. The land is best suited for providing vehicle parking facilities and other amenities to the Sabarimala Pilgrims. The revision petitioner is in possession of other buildings in the locality sufficient for its purpose. The revision petitioner has used the building in such a manner so as to destroy and reduce its value and utility materially and permanently. The revision petitioner who is a common association is not depending on any income from the business being carried out in the tenanted premises. The revision petitioner has instituted a suit against O.S.No.144 of 2009 before the Munsiff's Court, Adoor for a decree of injunction against forcible eviction. Notice was issued intimating the default in payment of rent. By the said notice, the respondent had demanded vacant RCR No.145 of 2013 3 possession of the premises also. The notice could not evoke any positive response. Thus, the respondent prayed for eviction of the revision petitioner. 3. The revision petitioner resisted the petition contending that the petition is not maintainable. The devotees of Lord Ayyappa proceeding to the Sabarimala Temple consider the petition schedule building and the premises better known as “Manikandan Althara” as a temporary halting centre to Sabarimala. It is because of the proximity of the said place to the birth place of Lord Ayyappa at Pandalam. From 1964 onwards, the revision petitioner has been in absolute possession of the tenanted premises and the property attached to the same. A permanent tenancy was created between the owner and Ayyappa Seva Sangam regarding the building and 64 cents. In the petition schedule building, the office of the revision petitioner has been functioning wherein lamps, utensils and other equipments used for conducting worship at Manikandan Althara Temple have been kept in. The revision petitioner has been in possession of the RCR No.145 of 2013 4 scheduled building even prior to the alienation of the property and building in favour of the respondent. In the original suit filed before the Munsiff's Court, Adoor, an order of temporary injunction was granted in favour of the revision petitioner from the forcible eviction. In the said suit the present respondent had made it clear that she did not let out the petition schedule building to the revision petitioner. 4. The Rent Control Court considering the evidence consisting of the oral testimonies of PW1, RW1 and RW2, Exts.A1 to A21, B1 to B11 and C1 to C3 ordered eviction under Section 11(3) and 11(4)(iii) of the Act. Instead of ordering eviction under Section 11(2)(b), it was found that there was arrears of rent and the same was directed to be paid with interest @ 6%. 5. The matter was carried in appeal before the Appellate Authority by the revision petitioner. 6. The respondent filed cross objection challenging the finding of the lower court under Section 11(2)(b). The Rent Control Appellate Authority, after re- RCR No.145 of 2013 5 appreciating the evidence confirmed the order of eviction under Sections 11(3) and 11(4)(iii). The cross objection was allowed and eviction was ordered under Section 11 (2)(b) of the Act subject to Section 11(2)(c) of the Act. Thus, the revision petitioner has come in revision. 7. We have heard Mr.T.Krishnanunny, the learned Senior Counsel appearing for the revision petitioner and Mr.P.B.Suresh Kumar, the learned Senior counsel for the respondent. We have also perused the impugned judgment and other connected records. 8. Though various grounds have been raised in the memorandum of revision, the learned Senior Counsel for the revision petitioner mainly gave thrust to the argument that there is no landlord-tenant relationship between the respondent and the revision petitioner and therefore, the courts below ought to have found that the petition itself is not maintainable. It was further submitted by the learned Senior Counsel that the tenancy was not only with respect to the petition schedule building but was also with respect to 64 cents of land, RCR No.145 of 2013 6 over a portion of which the petition schedule building is situated. 9. The learned Senior Counsel appearing for the respondent per contra would submit that in view of the mutually destructive pleas taken by the revision petitioner before the trial court, the impugned judgment is legally sustainable. The learned Senior Counsel inviting our attention to the 5[th] paragraph of the rent control petition would submit that the respondent has pleaded a specific case for getting an order of eviction. The said paragraph reads as follows: _“The petitioner bonafide requires the scheduled building for her own occupation. The petitioner intents to commence a business of providing parking facilities and other amenities to interested travelers in the aforesaid 64 cents of land. The business is to be run and managed from the petition schedule building. As a matter of fact several hundred pilgrims park their vehicles in the aforesaid 64 cents of land enroute Sabarimala Temple. The said 64 cents of land is situate in close proximity to the Pandalam Palace, the birth place of Lord Ayyappa. The Sabarimala Pilgrims routinely visit the Pandalam Palace enroute Sabarimala Temple. The said 64 cents of land is best suited for providing vehicle parking facilities and other amenities to the Sabarimala Pilgrims.”_ RCR No.145 of 2013 7 10. The learned Senior counsel for the revision petitioner inviting our attention to Ext.A3 would contend that the respondent in a previous suit had taken a contention that there did not exist any landlord-tenant relationship between the parties. Ext.A2 is the written statement filed by the respondent herein in O.S.No.144/2009 filed by the revision petitioner against forcible eviction from the petition schedule building. The same document was marked from the side of the revision petitioner also and it was marked as Ext.B1. It is true that the respondent had taken a plea denying the landlord-tenant relationship between the parties in Ext.A2 (B1). However, the said contention was withdrawn by the respondent at a later stage of the same proceeding. 11. The learned Senior Counsel for the revision petitioner would submit that in spite of the withdrawal of the said contention, the same is relevant as a previous statement made by the respondent for non-suiting the respondent. We are of the definite view that so long as Ext.B1 was withdrawn before it was being accepted and acted upon by the court RCR No.145 of 2013 8 concerned, the contents of the same has no relevance in the present case. 12. The aforesaid view is fortified by the decision of the Apex Court in **Groupe Chimique Tunisien Sa** v **Southern Petrochemicals Industries Corpn.Ltd.** [(2006) 5 SCC 275)]. In that case, the Apex Court referring to **U.P.Rajkiya Nirman Nigam Ltd.** v **Indure** **(P) Ltd.** [(1996) 2 SCC 667] observed that if on account of mistake or wrong understanding of law, the party takes a particular stand, he is not barred from changing his stand subsequently. The stand taken by the respondent through out the present litigation was that the plea taken by her in O.S.No.144 of 2009 was on account of a wrong legal advice given by her counsel. 13. It is an admitted fact that the revision petitioner has been in possession of the petition schedule building. But, as rightly pointed out by the courts below, it can be seen from the pleading as well as the evidence tendered, the revision petitioner did not have a consistent case. At one point of time, the revision petitioner has stated that RCR No.145 of 2013 9 the revision petitioner is entitled to permanent tenancy. At another point, it was contended that the revision petitioner has perfected title to the petition schedule building by adverse possession. Ext.A7 is the plaint in O.S.No.144/2009 wherein the respondent had admitted the landlord-tenant relationship between the parties. Ext.A17 is the copy of the memorandum of Writ Petition (c) No.19478 of 2009 filed by the revision petitioner before this Court. The said writ petition was filed for assistance and protection of the petitioner for a peaceful possession and enjoyment of 24 Ares in Re-Sy.No.614/9A & 614/9B of Pandalam Village without any obstruction from the present respondent and others. 14. In the first paragraph of the writ petition, it is averred as under: “The petitioner is the President of Akhila Bharatha Ayyappa Seva Sangham, Pandalam, Branch No.344. 24 Ares in R.S.No.614/9A and 614/9B of Pandalam Village belongs to the 5[th] respondent. Akhila Bharath Ayyappa Seva Sangham (hereinafter referred to as 'Sangham') has taken the above property on the ground rent from the 5[th] respondent in 1964 and thereafter Sangham is in possession of the above property. During Sabarimala season a lot of devotees used to assemble there during their way to RCR No.145 of 2013 10 Sabarimala. The plot is being used as a spot for taking rest by the devotees. The petitioner is the President of Sangham at present. There is an office building belongs to the Sangham in the above plot. The Sangham is paying Rs.300/- p.m. as rent for the above office building and Rs.50,000/- annually as ground rent for the property to the 5[th] respondent. 6[th] respondent is a person who collects those amounts on behalf of the 5[th] respondent. Thus, from 1964 onwards the Sangham is in peaceful occupation of the above plot. 15. Also it can be seen from Ext.A8 that the revision petitioner had received a sum of Rs.600/- towards rent of office room for the month of December 2000 and January 2001. The combined effect of the aforesaid admission in Ext.A17 as well as the payment of rent as evidenced by Ext.A8 is that the revision petitioner is the tenant of the petition schedule building. 16. Both the courts below have appreciated the evidence on record in the correct perspective. As rightly submitted by the learned Senior counsel for the respondent, the revision petitioner had no consistent case. 17. The respondent needs the tenanted premises and the land attached thereto for the purpose of conducting a business of providing shelter to the interested pilgrims to Sabarimala to augment his income. It cannot be branded as a ruse for eviction. It has come RCR No.145 of 2013 11 out in evidence that the revision petitioner is having yet another buildings nearby. Though it was argued that the building and the attached land were the subject matter of a composite lease, the respondent had instituted a separate suit for eviction of the revision petitioner from the land as O.S.No.302 of 2009 before the Sub Court, Pathanamthitta. Admittedly, the said suit has been decreed. The contention that the land and the building were the subject matter of the same lease arrangement will not stand also in the light of Ext.A8 voucher made mention of in the precedent paragraph. 18. On a totality of the facts and circumstances of the case, we have no hesitation to hold that the court below was perfectly justified in ordering eviction under Section 11(3) as prayed for. We are of the view that the orders of eviction under Sec.11(2)(b) and 11(4)(iii) are also legally sustainable. In fact, the same was not put to serious challenge. 19. In the result, the revision petition fails and accordingly it is dismissed. RCR No.145 of 2013 12 20. However, considering the facts and circumstances of the case, we are of the view that the revision petitioner be given time to surrender the tenanted premises to shift it's activities to some other place. Taking into account the relevant circumstances of the case, we grant time to the revision petitioner up to 30.11.2013 to give vacant possession of the tenanted premises subject to following conditions: 1) The revision petitioner shall file an affidavit within one month from today before the Execution Court or the Rent Control Court, as the case may be, undertaking to surrender vacant possession of the tenanted premises peacefully to the respondent/landlord on or before 30/11/2013. 2) The revision petitioner shall remit the entire arrears as on today before the execution court or the Rent Control Court as the case may be within three months from today with notice to the respondent. RCR No.145 of 2013 13 3) The revision petitioner shall continue to pay charges for the use and occupation of the building at the current rate from today till they give vacant possession of the tenanted premises to the respondent. 4) The execution proceedings, if any, pending before the Execution Court shall be kept in abeyance till 30/11/2013. We make it clear that the revision petitioner will get the benefit of time as above, only if it files the affidavit in time, honour the undertakings contained therein and discharge the entire arrears of rent as on date. **sd/- T.R.RAMACHANDRAN NAIR JUDGE** **sd/- A.V.RAMAKRISHNA PILLAI JUDGE** css/ true copy P.S.TO JUDGE