Balakrishnan v. Gouri, Shaju, Beena Hari, Bindu Manojkumar, and others (R.C.Revision No. 220 of 2017)

# **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 21[ST] DAY OF NOVEMBER 2022 / 30TH KARTHIKA, 1944** **RCREV. NO. 220 OF 2017** **AGAINST THE JUDGMENT DATED 31.01.2017 IN RCA NO.35 OF 2013 ON THE FILE OF THE THIRD RENT CONTROL APPELLATE AUTHORITY, THRISSUR REVERSING THE FINDING UNDER SECTION 11(2)(b) MADE BY THE RENT CONTROL COURT, CHALAKUDY IN R.C.P.11/2011.** ## **REVISION PETITIONER/1ST RESPONDENT/PETITIONER:** BALAKRISHNAN S/O. THAYI, AGED 66 YEARS, MATTAPPILLY HOUSE, IRINJALAKUDA, IRINJALAKUDA VILLAGE, MUKUNDAPURAM TALUK, PIN - 680 121. BY ADVS. SRI.T.B.THANKAPPAN SRI.ASHISH VIDYADHARAN SRI.T.T.HARIKUMAR SMT.K.S.SREEJA ## **RESPONDENTS/APPELLANTS 2 & 3, RESPONDENTS 2 & 3/RESPONDENT:** 1 GOURI AGED 68 YEARS W/O. LATE MADHAVAN, VATTAPARAMBIL HOUSE, MOOLAMKUDAM DESOM, MATTATHUR VILLAGE,MUKUNDAPURAM TALUK, THRISSUR, PIN - 680 692. 2 SHAJU AGED 46 YEARS S/O. LATE MADHAVAN, AGED 46,VATTAPARAMBIL HOUSE, MOOLAMKUDAM DESOM, MATTATHUR VILLAGE,MUKUNDAPURAM TALUK, THRISSUR, PIN - 680 692. 3 BEENA HARI AGED 44 YEARS D/O. LATE MADHAVAN, AGED 44 YEARS, VATTAPARAMBIL HOUSE, MOOLAMKUDAM DESOM, MATTATHUR VILLAGE,MUKUNDAPURAM TALUK, THRISSUR, PIN - 680 692. 4 BINDU MANOJKUMAR R.C.R.No.220 of 2017 2 AGED 40 YEARS D/O. VATTAPARAMBIL MADHAVAN, W/O. MANOJKUMAR, AGED 40 YEARS,VADASSERRY HOUSE, PULLUTT VILLAGE, NARAYANA MANGALAM DESOM, KODUNGALLUR, PIN - 680 664. BY ADVS. SRI.DENNY DEVASSY SRI.K.NARAYANAN PARUR **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 21.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.R.No.220 of 2017 3 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **-------------------------------------------------R.C.R.No.220 of 2017** **------------------------------------------Dated this the 21[st] day of November, 2022** ## **O R D E R** ## **C.S.Sudha, J.** This Rent Control Revision under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act), has been filed against the judgment dated 31/01/2017 in R.C.A.No.35/2013 on the file of the Rent Control Appellate Authority (RCAA), Thrissur against the order dated 30/08/2012 in R.C.P.No.11/2011 on the file of the Rent Control Court (RCC), Chalakkudy. The revision petitioner herein is the first respondent in the appeal and the petitioner-landlord in the R.C.P. The respondents herein are the legal representatives of the sole respondent-tenant in R.C.P.No.11/2011. 2. R.C.P.No.11/2011 was filed by the petitioner, namely, Balakrishnan, seeking eviction under Section 11(2) (b) and 11(3) of the Act. According to the petitioner, the petition schedule building having an area of 1500 sq ft. was purchased by him as per Ext.A4 sale deed dated 24/09/2010. Madhavan, the respondent, is the tenant of the premises on a monthly rent of ₹2000/- as per Ext.A1 rental agreement dated 08/10/2010. The period of tenancy was 11 months, which has expired on R.C.R.No.220 of 2017 4 08/19/2011. The respondent has defaulted the payment of rent. Therefore, the petitioner issued a notice to the respondent on 27/06/2011 demanding the arrears of rent of ₹60,000/- with interest. Even after the receipt of the notice, the respondent has not cleared the arrears of rent. The petitioner _bona fide_ requires the petition schedule building for the residence of his son Bijith. The petitioner has no other residential building of his own. Hence the R.C.P. 3. The respondent filed objection denying the title of the petitioner and also the existence of any landlord-tenant relationship between the parties. According to the respondent, the petition schedule building and the property in which it is situated belongs to him and that he had never assigned the property to anyone. Therefore he continues to be the owner in possession and occupation of the premises. The respondent's son Shaju had suffered huge loss in his business and for settling his debts, about ₹10,00,000/-, was required. As the respondent and his son have no job or source of income there was no possibility of availing a loan in their name. However, as the respondent's son-in-law Manoj Kumar was working abroad, the bank informed that they were ready to disburse the loan in the name of the said Manoj Kumar. During July 2005, Manoj Kumar and his wife, namely, the respondent's daughter had come on leave. His daughter approached the bank and submitted all documents necessary for availing the loan. This was submitted on the basis of a power of attorney executed by Manoj Kumar in her favour. The respondent's daughter informed him that the loan could be availed only if the property in which the R.C.R.No.220 of 2017 5 schedule premises is situated is transferred in the name of Manoj Kumar. Therefore, for the purpose of availing the loan, the property without any consideration was transferred in the name of Manoj Kumar. Thereafter, a loan of ₹10,30,000/- was obtained from the bank. It was mutually agreed by the respondent and the said Manoj Kumar that on repayment of the said loan by the respondent, the property would be re-conveyed to him. On the basis of such an assurance, the respondent executed a sale deed in favour of Manoj Kumar. The sale consideration of ₹13,00,000/- shown in the said document was never paid to the respondent. The respondent has only received a demand draft for a sum of ₹10,30,000/- which was obtained as loan from the bank. Document no.2503/2005 was executed only for the purpose of availing the loan in the name of Manoj Kumar. The respondent had signed the document without being aware of its contents. He has never transferred possession of the property to Manoj Kumar. Document no.2503/2005 is a sham document which has not been acted upon by the parties. Pursuant to the loan being availed, the respondent's son had repaid an amount of ₹5,70,600/-. However, Shaju defaulted payment of the loan due to which there was difference of opinion between his son, daughter and Manoj Kumar. Thereafter, they threatened the respondent and managed to obtain signed stamp papers and printed papers from him. The respondent has now come to know that his daughter and Manoj Kumar have created Ext.A4 sale deed in favour of the petitioner. The respondent is still prepared to repay the entire loan amount. Manoj Kumar is bound to execute a re-conveyance deed in favour of the respondent after R.C.R.No.220 of 2017 6 receiving the entire amount due in the loan transaction. The property referred to in Ext.A4 sale deed is still in the possession and enjoyment of the respondent in his capacity as owner and not as a tenant. Though the respondent had requested Manoj Kumar several times to execute the re-conveyance deed, the latter is not amenable for the same. The respondent has never executed Ext.A1 rent deed as alleged by the petitioner. He is not a tenant of the petition schedule building. Hence his contention is that the Rent Control Petition is not maintainable and hence is liable to be dismissed. 4. PW1 and PW2 were examined and Exts. A1 to A6 were marked on the side of the petitioner. RW1 and RW2 were examined and Exts.B1 to B3 were marked on the side of the respondents. Exts.X1 and X2 were also marked. The RCC, after appreciating the oral and the documentary evidence found the denial of title to be not _bona fide_ and allowed the R.C.P. partly by granting eviction under Section 11(2) (b). Eviction under Section 11(3) was disallowed in the light of the bar contained under the 3[rd] proviso to Section 11(3). Against the said order of the RCC, R.C.A.No.62/2012 was filed by the petitioner-landlord and R.C.A.No.35/2013 was filed by the respondent-tenant. R.C.A.No.35/2013 filed by the respondent-tenant has been allowed and R.C.A.No.62/2012 filed by the landlord, dismissed. Aggrieved, the petitioner-landlord has come up in revision. 5. From the impugned judgment it is seen that the respondent-tenant passed away during the course of the proceedings and hence his legal representatives R.C.R.No.220 of 2017 7 have been impleaded as appellants 2 and 3. They are the respondents in the present revision. 6. The only point that arises for consideration in this revison is whether there is any illegality, irregularity or impropriety in the findings of the RCAA. 7. Heard Sri.Thankappan, the learned counsel for the petitioner and Sr.K.Narayanan, the learned counsel for the respondents. 8. Section 20 of the Act says that, the High Court may, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under the Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and it may pass such order in reference thereto as it thinks fit. It is true that this Court under Section 20 is not expected to reappraise the evidence produced by the parties in exercise of its revisional jurisdiction and the limited question that falls for its consideration is whether the procedure followed by the RCC and the Appellate Authority is illegal, irregular or improper. However, it is well settled that the powers of S.20 are wider than that is conferred under S.115 CPC. 8.1. This Court under Section 20 is duty bound to test the order of the RCC and the RCAA on the touchstone of "whether it is according to law” and for that limited purpose it may re-appraise the evidence and ascertain whether the conclusion arrived at is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached on the material available. Ignoring the weight of R.C.R.No.220 of 2017 8 evidence, proceeding on a wrong premise of law or deriving such conclusion from the established facts as to betray a lack of reason and/or objectivity would render the findings of the authorities not according to law calling for an interference under Section 20 of the Act. A judgment leading to miscarriage of justice cannot be said to be a judgment according to law [ **Shiv Sarup Gupta v. Dr.Mahesh Chand Gupta, (1999) 6 SCC 222** ]. 9. It was submitted by the learned counsel for the respondent-tenant relying on the decision of a Full Bench of this Court in **P.M.Parthakumar v. Ajith Viswanathan, 2006 KHC 520** that the RCAA was justified in interfering with the finding of the RCC regarding the denial of title as the RCC cannot adjudicate complicated disputes relating to title of the landlord, which disputes have been taken outside the sweep of the powers of the Special Tribunals as per the second proviso to Section 11(1). According to the learned counsel, the legislature wanted such disputes regarding title/claim of permanent tenancy to be considered only by the regular civil courts which follow a exhaustive procedure and not by statutory tribunals invested with limited jurisdiction to decide the dispute between the landlords and tenants relating to eviction on specific grounds. If the dispute does not fall within the circumscribed zone, such dispute must be decided by the regular civil courts following exhaustive procedure and the Special Tribunals, that is, the RCC/ RCAA cannot be expected to decide such disputes. In the case on hand, the respondent has specifically denied the title of the petitioner over the tenanted premises and also R.C.R.No.220 of 2017 9 denied the existence of any landlord-tenant relationship between the parties. It has also been brought on record that the respondent had filed a suit for setting aside the sale deed relied on by the petitioner. In such circumstances there was a clear denial of title by the respondent and therefore, the RCC ought to have found the denial to be _bona fide_ and relegated the parties to the civil court. Instead the RCC assumed jurisdiction and decided on the question of title of the petitioner, thereby committed a grave error/mistake, which has been rightly corrected by the RCAA. This according to the learned counsel calls for no interference. 10. Second proviso to Section 11(1) of the Act says that when the tenant denies the title of the landlord or claims right of permanent tenancy, the RCC shall decide whether the denial or claim is _bona fide_ and if it records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and such Court may pass a decree for eviction on any of the grounds mentioned in this section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded. When title is denied or permanent tenancy is claimed, the RCC has to conduct an enquiry and record a finding whether the denial or claim is _bona fide_ . If the finding is in the negative, the proceedings can continue. On the other hand, if the finding is in the affirmative involving _bona fide_ dispute on the question of title, it cannot be decided by the RCC. The petitioner will have to sue for eviction in a civil court competent to try the suit. ( **Ponny v. Anthony, 1989 KHC 472** ). R.C.R.No.220 of 2017 10 10.1. As held in **Joseph v. Thomas, 1987 KHC 646** , the proviso is meant for a jurisdictional purpose. As per the said proviso, power is given to the RCC to decide about its own jurisdiction when a tenant denies the landlord's title. Such power can be discerned from the words “Rent Control Court can decide whether the denial of claim is _bona fide_ ”. It has been further held that, one of the legislative ideas in creating authorities like RCC and Accommodation Controller is to afford expedient remedies or reliefs to the tenants or landlords in relation to the buildings concerned. The said idea is adumbrated in S.24 of the Act which prescribes a time limit to pass final orders, subject to practical problems. R.11(8) of the Kerala Buildings (Lease and Rent Control) Rules, 1979 says that the Rent Control Court need make only a brief note of the evidence adduced by parties and witnesses. So, the enquiry conducted by the Rent Control Court is expected to be only in a summary manner. It is for the said reason that the legislature wanted such vexed and intricate questions of title to be determined by the Civil Court in the regular manner. 10.2. It is true that the denial of title of the landlord or claim of permanent tenancy by the tenant does not _ipso facto_ efface the jurisdiction of the RCC to decide the petition for eviction under sub-section (1) of S.11. The essential requisite to attract the said proviso is that such benefit or claim by the tenant shall be _bona fide_ . When such a question is raised by the tenant, the RCC shall decide whether the said denial or claim is _bona fide_ and record a finding thereon. It is only thereafter that the landlord shall be entitled to sue for eviction of the tenant in a civil court ( **Gouthami** R.C.R.No.220 of 2017 11 ## **v. Indira Kunjamma, 1994 KHC 246** ). 10.3. Further, as far as the scope of enquiry is concerned, the RCC is expected to do that only in a summary manner. The court must be in a position to say that the chances of the plea being upheld by the civil court is fairly on the higher side. Then alone, the RCC is justified in holding that the denial is _bona fide_ . The court whose jurisdiction stands ousted must have the satisfaction that there are strong or at least substantial grounds or sufficient materials in support of the plea **(Aboobacker v. Girija, 1995 KHC 100)** . 11. On going through the counter filed by the respondent to the R.C.P., it appears that he does not have a consistent case. On one hand he says that he executed sale deed No.2503/2005, the prior deed of Ext.A4 sale deed, in favour of his son-in-law, Manoj Kumar for the purpose of availing a loan. The property in which the petition schedule building is situated was conveyed by the respondent to Manoj Kumar on the specific understanding/agreement that when the loan is repaid, Manoj Kumar would re-convey the property to the respondent. Therefore, if that case is true, the respondent had consciously and knowingly executed the deed of 2005 in favour of Manoj Kumar. However, he thereafter contends that he was quite unaware of the nature of recitals in the said document and that the said document was got executed under vitiating circumstances, that is, by playing fraud, under undue influence and due to misrepresentation. It is further contended that the respondent intends to take steps for setting aside the sale deed of the year 2005 as well as Ext.A4 R.C.R.No.220 of 2017 12 sale deed relied on by the petitioner herein, as the same have created a cloud on his title. As far as Ext.A1 rent deed is concerned, he admits his signature in the same. It is true that mere admission of signature is not an admission of execution of the document. The case further pleaded in the objection is that, in September 2010, Manoj Kumar had threatened him and succeeded in getting his signature in some blank stamp papers. However, Ext.A1 rent deed is seen executed in a stamp paper purchased in October 2010. Therefore, the RCC rightly rejected the case put forward by the respondent regarding Ext.A1 rent deed. 12. As held in **Gouthami** _(Supra)_ , the denial of title of the landlord by the tenant does not _ipso facto_ efface the jurisdiction of the RCC to decide the petition for eviction under sub-section (1) of Section 11. The essential requisite to attract the said proviso is that such denial or claim by the tenant should be _bona fide._ It is only when the court is in a position to say that the chances of the plea being upheld by the civil court is fairly on the higher side, then alone the RCC is justified in holding that the denial is _bona fide_ . The Court whose jurisdiction stands ousted must have the satisfaction that there are strong or at least substantial grounds or sufficient materials in support of the plea. This test does not appear to have been satisfied in the case on hand. The RCAA substantially erred in interfering with the finding of the RCC because going by the impugned judgment, a mere plea of denial of title by the tenant is sufficient to attract the second proviso to Section 11(1). We are unable to agree with this finding of the RCAA in the light of the precedents referred to herein above. R.C.R.No.220 of 2017 13 As the findings of the RCAA is incorrect and wrong, an interference into the same is necessitated. In the result, the rent control revision is allowed. The impugned judgment is set aside. The order of the RCC in R.C.P.No.11/ 2011 dated 13/08/2012 shall stand restored. Interlocutory applications, if any pending, shall stand closed. **Sd/-** **P.B.SURESH KUMAR JUDGE** **Sd/-** **C.S.SUDHA JUDGE** Jms/22.11