High Court of KeralaSingle Judge2019-08-27Second appeal allowed; eviction upheld under KB...

Bhaktavalsalan v. Saifuneesa and others (RSA 175/2019)

Case / Petition Number:RSA 175/2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. M. Babu
Judgment Date: 2019-08-27
Court Decision / Holding: The second appeal is allowed. The decree and judgment under appeal are set aside. The suit of the respondents stands dismissed. Costs borne by the parties in all courts.
Final Disposition: Second appeal allowed; eviction upheld under KBLR; suit dismissed; decrees set aside; costs determined in all courts.

Parties to the Case

Appellants / Petitioners

Bhakthavalsalan

Respondents

V.K. Saifuneesa
Hameed
Noushad

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Jamsheed Hafiz
• SMT. T.S. Sreekutty

Counsels for Respondents

• Sri P. Martin Jose
• Sri P.T. Sheejish

Case Synopsis & Summary

Bhaktavalsalan, the tenant, challenged eviction orders in a Regular Second Appeal under the Kerala Buildings (Lease and Rent Control) Act before the Kerala High Court. The underlying tenancy involved a building at Naripparambu, originally within Thavanur panchayat where the KBLR Act applied from 1978. Subsequently, Naripparambu was included in Kalady panchayat, where KBLR did not apply. The substantial question was whether delimitation to a different panchayat would nullify the existing KBLR notification for the area. The appellant argued that once KBLR coverage attaches to an area, it persists notwithstanding boundary changes; he relied on a division bench decision, Meenakshy v. Ananthambal R. The respondents contended that delimitation could withdraw the notification and relied on earlier single-judge rulings (Biyyathu v. Abdurahimankutty; Karam Veettil Parukutty Amma v. Muhammedkutty) and the Supreme Court principle that rights crystallize on the date of institution of the suit (Rajender Bansal v. Bhuru). The High Court ultimately held that, as on the filing date (20-08-2014), the KBLR Act remained applicable to Naripparambu and eviction had to proceed under KBLR, not by civil suit. The court rejected the single-judge approach in favor of the division bench/SC guidance, allowed the second appeal, set aside the decrees, and dismissed the respondents’ suit, with costs allocated between the parties.

Provisions of Law Cited

Kerala Buildings (Lease and Rent Control) Act (KBLR Act)

Legal Doctrines & Maxims

Rights of the parties crystallise on the date of the institution of the suit (Rajender Bansal v. Bhuru, AIR 2016 SC 4919)
Once KBLR Act is applicable to an area, the area continues to be an area notified under the KBLR Act despite delimitation (Meenakshy v. Ananthambal R., ILR 2015 (2) Kerala 66)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the KBLR Act, having once been made applicable to Naripparambu, continues to govern the area despite delimitation to Kalady panchayat, where KBLR is not applicable. He argues eviction must be under KBLR and cannot be pursued by ordinary civil suit; reliance is placed on established case law suggesting area-wise notifications persist despite boundary changes.

Contentions of Respondents

The respondents submit that delimitation can withdraw the KBLR notification when an area is moved to a panchayat where KBLR does not apply; they urge reliance on earlier single-judge rulings that fresh notification is required upon delimitation and cite Rajender Bansal to suggest crystallization of rights along with suit filing.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Meenakshy v. Ananthambal R.	ILR 2015 (2) Kerala 66	Overruled	The present judgment expressly rejects the division bench view in Meenakshy and relies on single-judge rulings, with later Supreme Court guidance limiting that line of authority.
Biyyathu v. Abdurahimankutty	1995 (1) KLT 529	Overruled	The court indicates that the earlier single-judge view requiring fresh notification upon delimitation cannot be followed in light of a division bench view.
Karam Veettil Parukutty Amma v. Muhammedkutty	2013 (1) KHC 56	Overruled	Similar to Biyyathu, the single-judge position is rejected in favor of the division bench approach.
Rajender Bansal v. Bhuru	AIR 2016 SC 4919	Partly Overruled / Limited	The court cites the principle that rights crystallize on suit filing, but restricts its broad applicability to circumstances where law changes pending the suit, not merely when law is interpreted pending the suit.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.M.BABU** **TUESDAY, THE 27TH DAY OF AUGUST 2019 / 5TH BHADRA, 1941** **RSA.No.175 OF 2019** **AS 90/2016 DATED 31-07-2018 OF SUB COURT, TIRUR** **OS 215/2014 DATED 08-11-2016 OF MUNCIFF MAGISTRATE COURT, PONNANI** ## **APPELLANT/APPELLANT/DEFENDANT :** **BHAKTHAVALSALAN AGED 48 YEARS S/O KUNHUKUTTAN,KORATTIYIL HOUSE, ESWARAMANGALAM AMSOM DESOM, PONNANI TALUK,MALAPPURAM DISTRICT.** **BY ADVS. SRI.JAMSHEED HAFIZ SMT.T.S.SREEKUTTY** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS :** **1 V.K.SAIFUNEESA AGED 68 YEARS W/O SAITHALI HAJI,POTHANNUR AMSOM,NARIPPARAMBU DESOM,PONNANI TALUK,NARIPPARAMBU.P.O,PIN- 679573 MALAPPURAM DISTRICT. 2 HAMEED, AGED 52 YEARS S/O SAITHALI HAJI,POTHANNUR AMSOM,NARIPPARAMBU DESOM, PONNANI TALUK, NARIPPARAMBU .P.O,PIN679573 MALAPPURAM DISTRICT. 3 NOUSHAD, AGED 49 YEARS, S/O SAITHALI HAJI,POTHANNUR AMSOM, NARIPPARAMBU DESOM,PONNANI TALUK, NARIPPARAMBU P.O,PIN- 679 573 MALAPPURAM DISTRICT. [RESPONDENTS 2 AND 3 REPRESENTED BY POWER OF** **RSA 175/2019** 2 **ATTORNEY HOLDER,KUNHIMOHAMED,AGED 57 YEARS,S/O AHAMMED KUTTY,KOOLATH HOUSE, NARIPPARAMBU.P.O,VIA THAVANUR,PONNANI TALUK,MALAPPURAM DISTRICT.** **R2 BY ADV. SRI.P.MARTIN JOSE R2 BY ADV. SRI.P.T.SHEEJISH** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27-08-2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA 175/2019** 3 ## JUDGMENT 1. Appellant is the tenant of the respondents. The appellant is under an order of eviction passed against him by the trial court and as such confirmed by the first appellate court. He has therefore come in second appeal. 2. Heard Sri.Jamsheed Hafiz, the learned counsel for the appellant and Sri.P.T.Sheejish, the learned counsel for the respondents. 3. Facts are simple and go as under : The appellant is the tenant of a building owned by the respondents. The tenanted building is situated at a place called Naripparambu which was in Thavanur panchayat. The Kerala Buildings (Lease and Rent Control) Act (for short the KBLR Act) was made applicable to Thavanur panchayat as early as in 1978. Naripparambu was within Thavanur panchayat at that point of time. Long thereafter in 2005 **RSA 175/2019** 4 came into existence a new panchayat called Kalady panchayat. Naripparambu was taken off from Thavanur panchayat and was included in Kalady panchayat. The KBLR Act was not applicable to Kalady panchayat. 4. The substantial question of law formulated at the time of admission of the appeal reads as under : Whether the subsequent delimitation of the area notified under the Kerala Buildings (Lease and Rent Control) Act would take away the benefit obtained as per the notification to the particular area ? 5. My mind is close to the proposition that when the KBLR Act is made applicable to an area, the said Act continues to have application to that area despite any delimitation. I take support for this view from a decision of a division bench of this court. The citation is Meenakshy v. Ananthambal R. (ILR 2015 (2) Kerala 66) . The crux of the decision is that when once the KBLR Act is made **RSA 175/2019** 5 applicable to an area, the area continues to be an area notified under the KBLR Act despite the delimitation of the area. 6. The learned counsel for the respondents submits that when the suit was filed on 20.8.2014, the position of law was that the delimitation of the area would affect the notification issued under the KBLR Act. Therefore, according to the learned counsel, when an area where the KBLR Act is applicable is taken off from a panchayat and added to another panchayat to which the said Act is not made applicable, the notification goes. In support of this submission, the learned counsel has relied on a few judicial pronouncements. I shall consider those decisions. 7. A learned single judge of this court has held in Biyyathu v. Abdurahimankutty (1995 (1) KLT 529) that in the event of delimitation of an area, the KBLR Act is applicable to that area only on the issuance of a fresh notification. The said **RSA 175/2019** 6 dictum has been repeated by another learned single judge in Karam Veettil Parukutty Amma v. Muhammedkutty (2013 (1) KHC 56) . The view taken by the learned single judges cannot be followed since the division bench has taken a different view which has already been referred to. 8. But, the point of the learned counsel for the respondents is different. The learned counsel submits that the view taken by the two learned single judges was the position of law on the date of filing of the suit on 20.8.2014. Therefore, according to the learned counsel, the said position of law should continue till the termination of the suit whatever be the interpretation of law by a larger bench on the same point. In support of the said submission, the learned counsel has relied on the apex court in Rajender Bansal v. Bhuru (AIR 2016 SC 4919) . The supreme court has said as under : Rights of the parties stand crystallised on the date of the institution of the suit and, **RSA 175/2019** 7 therefore, the law applicable on the date of filing of the suit will continue to apply until suit is disposed of or adjudicated. That was a case where there was no notification under the rent control legislation on the date of suit and a notification was issued pending the suit. In such fact situation only the supreme court stated the portion extracted above. The said dictum laid down by the apex court can have application only in a case where the law is changed pending the suit and not in a case where the law is interpreted pending the suit. Therefore I am not in agreement with the learned counsel for the respondents that the view taken by the learned single judges should be considered as the law till the termination of the suit. 9. The courts below referred to the decision of the division bench of this court in Meenakshy (supra). But the view taken by the learned single judges was preferred to the view taken by the division bench in view of the decision of **RSA 175/2019** 8 the supreme court referred to above. The approach of the courts below was wrong. I have stated the reasons in the immediately preceding paragraph. 10. When the suit was filed, and even now, the KBLR Act was applicable to Naripparambu. Therefore the tenant was liable to be evicted only under the provisions of the KBLR Act. The tenant was not liable to be evicted by a civil suit. Therefore the concurrent findings of the courts below are liable to be interfered with. 11. The second appeal is allowed. The decree and judgment under appeal are set aside. The suit of the respondents stands dismissed. In the circumstance of the case, I leave the parties to bear their respective costs in all courts. Sd/- A.M.BABU Judge Mrcs/27.8.