Badarunnisa, Rahumathunnisa and Jabir v. Rafeeqa, Latheefa Beevi and Subair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE S.V.BHATTI** **&** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 11TH DAY OF NOVEMBER 2020 / 20TH KARTHIKA, 1942** ## **RCRev..No.105 OF 2020** **AGAINST THE JUDGMENT IN RCA 32/2017 OF RENT CONTROL APPELLATE AUTHORITY,THIRUVANANTHAPURAM AGAINST THE ORDER IN RCOP 4/2013 OF MUNSIFF COURT,VARKALA** **REVISION PETITIONERS/APPELLANTS 1, 2 & 5/RESPONDENTS 1, 2 & 8:** |**1**|**BADARUNNISA**| |---|---| ||**AGED 61 YEARS, D/O. HABUSA BEEVI,**| ||**THUNDUVILA VEEDU,**| ||**NADAYARA, KANNAMBA DESOM,**| ||**VARKALA VILLAGE,**| ||**THIRUVANANTHAPURAM DISTRICT-695 141.**| |**2**|**RAHUMATHUNNISA**| ||**D/O. HABUSA BEEVI,**| ||**THUNDUVILA VEEDU,**| ||**NADAYARA, KANNAMBA DESOM,**| ||**VARKALA VILLAGE,**| ||**THIRUVANANTHAPURAM DISTRICT-695 141.**| |**3**|**JABIR**| ||**S/O. AYOOB,**| ||**THUNDUVILA VEEDU,**| ||**NADAYARA, KANNAMBA DESOM,**| ||**VARKALA VILLAGE,**| ||**THIRUVANANTHAPURAM DISTRICT-695 141.**| ||**BY ADV. SRI.G.S.REGHUNATH**| **-:2:-** R.C.R. No.105/20 ## **RESPONDENTS/RESPONDENTS & APPELLANTS 3 & 5/PETITIONER & RESPONDENTS 3 & 5:** |**1**|**RAFEEKA**| |---|---| ||**D/O. MOHAMMED KOYA,**| ||**M.K. VILLA (VMC-10/252),**| ||**NADAYARA, KANNAMBA DESOM,**| ||**VARKALA VILLAGE,**| ||**THIRUVANANTHAPURAM DISTRICT-695 141.**| |**2**|**LATHEEFA BEEVI**| ||**D/O. HABUSA BEEVI,**| ||**THUNDUVILA VEEDU,**| ||**NADAYARA, KANNAMBA DESOM,**| ||**VARKALA VILLAGE,**| ||**THIRUVANANTHAPURAM DISTRICT-695 141.**| |**3**|**SUBAIR**| ||**S/O. AYOOB,**| ||**THUNDUVILA VEEDU,**| ||**NADAYARA, KANNAMBA DESOM,**| ||**VARKALA VILLAGE,**| ||**THIRUVANANTHAPURAM DISTRICT-695 141.**| **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 15-10-2020, THE COURT ON 11-11-2020 PASSED THE FOLLOWING:** R.C.R. No.105/20 ## **-:3:-** ## **ORDER** Dated this the 11[th] day of November, 2020 ## _Bechu Kurian Thomas, J._ The question of denial of title under Section 11(1) of the Kerala Building (Lease and Rent Control) Act, 1965 (for short 'the Act') arises for consideration in this revision petition preferred by the alleged tenant of a building. Rent Control Court as well as the Appellate Authority found that the denial of title by the tenant was not bona fide. Thus, this revision by the tenant. 2. 1[st] respondent is the landlord while revision petitioners and respondents 2 and 3 are the alleged tenants. (For the sake of brevity, the parties are hereinafter referred to as landlord and tenant). R.C.(O.P.) No.4 of 2013 before the Rent Control Court, Varkala, was preferred by the landlord seeking eviction on the ground of bona fide need. The tenants questioned the title of the landlord stating that they are not accepting the title deed of the landlord registered as Deed No.1649/2011. The Rent Control Court considered the said issue as a preliminary one and by order in I.A. No.1241 of 2015 negatived the denial of title after holding that the denial is not bona fide. Appeal preferred by some of the tenants was also found against them after a detailed R.C.R. No.105/20 ## **-:4:-** consideration. 3. We have heard the learned counsel Adv.G.S.Reghunath, who canvassed for the proposition that both the authorities erred in appreciating the nature of denial of title for reasons that are alien to the provisions of Section 11(1) of the Act. He further submitted that the denial of title under the Act is not the denial of paramount title, but, it is the denial of the relationship as landlord-tenant that has to be considered. According to him, in the absence of any document to prove the landlord-tenant relationship as well as the payment of rent, the question of denial of title raised by the tenant could have only been found to be bona fide. It was also argued that the reference to the orders of the civil court in O.S. No.66 of 1981 was misplaced, since the civil court could not have declared that jurisdiction is before the Rent Control Court in the said judgment. The learned counsel urged that, no reliance ought to have been placed on the findings in the aforesaid judgment, especially since, there was no document available, to prove the rental arrangement between the parties. 4. For the purpose of ascertaining the findings rendered in O.S. No.66 of 1981, which was confirmed by this Court in S.A. No.557 of 2000, we called for files of the said appeal and perused the same including the judgment therein. R.C.R. No.105/20 ## **-:5:-** 5. It is seen from the judgment in S.A. No.557 of 2000 that O.S. No.66 of 1981 was a suit for redemption. Plaintiff was the father of the 1[st] respondent in this revision petition. Revision petitioners along with their mother were the defendants and appellants in Second Appeal. It was held in the said suit that the plaintiff had title over the plaint schedule property and is entitled to redeem the mortgage and recover possession. However, as far as the building in the said property, which is the subject matter of the present Rent Control Petition was concerned, the court held that it is covered by a lease arrangement and was not the subject matter of the mortgage. It was further found that, since during the pendency of the suit proceedings the Act was made applicable to the area where the building was situated, remedy of the plaintiff as relating to the building, was before the Rent Control Court. The aforesaid concurrent findings of the trial court as well as the appellate court was affirmed by this Court in second appeal. For the purpose of reference, paragraph 12 of the judgment in S.A. No.557 of 2000 is extracted below: _“12. The case of the defendants was that they were put in possession of the building as per the mortgage was also found against. On evidence, the courts below found that the defendants came into possession of the building only after Ext.A2 deed. The evidence is to the effect that at the time of_ R.C.R. No.105/20 ## **-:6:-** _Ext.A2 mortgage the building was outstanding on lease, as could be seen from Ext.A6. It has come out in evidence that the building was outstanding on lease at least till 31.1.1981 thereby making it obvious that at the time of execution of mortgage, building could not have come into the possession of the defendants. Thus it was found that the building is not included in the mortgage. “_ 6. It is clear from a reading of the aforesaid extract from the judgment in S.A. No.557 of 2000 that there is a finding that the building was outstanding on lease from 31.1.1981. This finding is binding upon the revision petitioners, as they were parties to the said appeal and also claims right as legal representatives of the original mortgagor cum tenant. 7. The contention of the learned counsel for the revision petitioners that the civil court could not have conferred jurisdiction upon the Rent Control Court by its judgment in a civil case may at first blush sound impressive. On a deeper consideration, it is evident that the said contention has no basis in the facts of the present case. The finding of the civil court that the building is covered by a lease is not a conferment of jurisdiction upon the Rent Control Court but a finding upon a question of fact that the building is not covered by the mortgage but is covered by a lease. Once it is held to be a lease, the normal rights of a lessee and that of a lessor will get attracted. R.C.R. No.105/20 ## **-:7:-** The rights of a landlord and tenant arising out of a lease in an area notified will be governed by the Act. Thus, we have no hesitation to hold that the contention of the revision petitioners that civil court could not have conferred jurisdiction is incorrect. 8. Once the civil court had entered into a finding that ownership of the property vested with the 1[st] respondent's father and that the revision petitioners or their predecessor-in-title were only lessees, the concomitant result is that the paramount title is found in favour of the predecessor of the landlord and the landlord-tenant relationship between the predecessor of the revision petitioners and the 1[st] respondent is also found. So much so, there cannot be any bona fide denial of title under any circumstances whatsoever, in view of the binding declaration in S.A. No.557 of 2000, by persons who are bound by the said judgment. 9. The decisions in **Parthakumar v. Ajith Viswanathan** [2006 (2) KLT 250 (F.B.)] and **Joseph v. Thomas** (1987 (2) KLT 1029) do not advance the case of the revision petitioners. On the other hand, the said decisions clearly lay down the proposition that the jurisdiction of the Rent Control Court under Section 11(1) of the Act is only to decide whether the denial of title is bona fide or not and whether the denial of title is valid or R.C.R. No.105/20 ## **-:8:-** not. In the instant case, a civil court has already found title in favour of the predecessor-in-interest of the landlord. By a sale deed of 2011, the present landlord had purchased the title of the building from her father. A tenant of a building cannot question the transfer of property by the landlord to any person. The law does not confer any right upon the tenant to object to a transfer by any means whatsoever of the rights of the landlord to any person. Thus, the landlord having come into ownership of the schedule building by a valid registered sale deed, the tenant cannot be assumed to have raised the question of title, bona fide. 10. On a consideration of the aforesaid aspects, we find that the judgments of the courts below are proper and legal and the impugned judgment does not warrant any interference in exercise of the revisional jurisdiction of this Court. Hence, this revision petition is dismissed. ## **Sd/-** ## **S.V.BHATTI JUDGE** ## **Sd/-** ## **BECHU KURIAN THOMAS JUDGE** vps **/True Copy/ PS to Judge**