High Court of KeralaDivision Bench2020-02-03Dismissed

Chandramathy v. Ayyappan (RCRev. No. 330 of 2018)

Case / Petition Number:RCRev..No.330 OF 2018

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
C. S. Dias
Judgment Date: 2020-02-03
Court Decision / Holding: Revision petition dismissed; Rent Control Court directed to dispose of the pending Rent Control Petition within six months from the date of receipt of a copy of the judgment.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Chandramathy

Respondents

Ayyappan

Legal Representation & Advocates

Counsels for Petitioners

• R. Anilkumar
• G. Radhakrishnan

Counsels for Respondents

• M. Sreekumar

Case Synopsis & Summary

This is a Kerala High Court revision petition filed by Chandramathy, a tenant, challenging an eviction petition under the Kerala Building (Lease and Rent Control) Act, 1965. The Rent Control Court had held that the tenant’s claim to permanent tenancy was bona fide, allowing the eviction petition to proceed. The Appellate Authority reversed, holding the claim not bona fide and directing that no reference to civil court be made under Section 11(1) of the Act. The High Court analyzed whether the tenant could acquire permanent tenancy, given that the original tenancy (Ext. A2) was for 11 months and the tenant continued in possession after expiry (holding over), with the landlord subsequently purchasing the property (Ext. A1). It noted that permanent tenancy is a creature of statutory rights and requires a valid basis under the relevant statutes; unauthorised constructions and other conduct do not by themselves confer such tenancy. While authorities like Hamidullah (dead) v. Abdullah and Others (AIR 1972 SC 410) are invoked to emphasize that possession, rent, or improvements are not conclusive proof of permanent tenancy, the court found no illegality in the Appellate Authority’s conclusions. Consequently, the revision petition was dismissed, with a direction to dispose of the pending Rent Control Petition within six months. The bench consisted of a Division Bench (K. Harilal and C.S. Dias).

Provisions of Law Cited

Section 11(2)(b) of the Kerala Building (Lease and Rent Control) Act, 1965Section 11(3) of the Kerala Building (Lease and Rent Control) Act, 1965Section 11(1) of the Kerala Building (Lease and Rent Control) Act, 1965Section 11(11) of the Kerala Building (Lease and Rent Control) Act, 1965Kerala Land Reforms Act (referenced for permanent tenancy)

Legal Doctrines & Maxims

Neither possession for generation at uniform rent nor constructions of permanent structures by itself is conclusive proof of permanent tenancy (Hamidullah (dead) by his legal representatives and others v. Abdullah and others, AIR 1972 SC 410).
Permanent tenancy rights accrue under statutory provisions; mere long possession/alterations do not create permanent tenancy under the Act.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the eviction petition should be referred to civil court for determination of permanent tenancy, asserting a statutory right under the Kerala Land Reforms Act. The tenancy originated under Ext. A2 for 11 months, after which the tenant continued in possession (holding over) and the landlord (Ext. A1) purchased the property, with attornment to the new owner. The petitioner argues that permanent tenancy can be claimed under statutory provisions and that she deposited money and made improvements as part of a bona fide claim, which warrants reference to civil court under Section 11(1). She asserts the Rent Control Court had jurisdiction to decide the issue and challenges the Appellate Authority’s reversal of the bona fide finding. She maintains that long possession and improvements do not automatically negate a bona fide claim for permanence and that the matter requires proper adjudication under the appropriate statutes.

Contentions of Respondents

The landlord contends the tenancy was created for 11 months, with the tenant holding over after expiry and subsequently being attorned to the purchaser (Ext. A1). He argues that permanent tenancy is not available under the Act except as provided by statute, and the evidence of unauthorised construction does not establish permanence. Deposits and improvements do not create a right to permanent tenancy. The Appellate Authority’s finding of not bona fide is supported by the evidence (e.g., unauthorised construction) and the lack of statutory entitlement under the Act. The Respondent urges dismissal of the revision petition and upholding the Appellate Authority’s decision.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Hamidullah (dead) by his legal representatives and others v. Abdullah and others	AIR 1972 SC 410	Positive	The judgment cites this Supreme Court principle to support that possession or unauthorised constructions do not by themselves establish permanent tenancy.

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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 K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 03RD DAY OF FEBRUARY 2020 / 14TH MAGHA, 1941** **RCRev..No.330 OF 2018** **AGAINST THE JUDGMENT IN RCA 33/2017 DATED 11-07-2018 OF THE RENT CONTROL APPELLATE AUTHORITY,TRIVANDRUM ARISING FROM THE ORDER IN RCP 4/2016 DATED 17-11-2017 OF MUNSIFF COURT,VARKALA, DATED 17.11.2017.** ## **REVISION PETITIONER/RESPONDENT/RESPONDENT:** **CHANDRAMATHY, AGED 57 YEARS W/O. SHAJAHAN, CHARUVILA VEEDU, NEAR GOVT. HOSPITAL VARKALA (PO), VARKALA VILLAGE, VARKALA TALUK, THIRUVANANTHAPURAM, VARKALA (PO)** **BY ADVS. R. ANILKUMAR SRI.G.RADHAKRISHNAN** ## **RESPONDENTS/APPELLANTS/PETITIONER:** **AYYAPPAN, AGED 45 YEARS, S/O. MARIAPPAN ACHARI, REVATHY NIVAS VARKALA VILLAGE, VARKALA TALUK, THIRUVANANTHAPURAM. PIN.** **R1 BY ADV. SRI.M.SREEKUMAR** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03-022020, THE COURT ON 03-02-2020 PASSED THE FOLLOWING:** **RCRev..No.330 OF 2018** ..2.. ## **ORDER** Dated this the 3rd day of February 2020 ## K.HARILAL,J. The petitioner is the tenant, against whom, a rent control petition was filed by the respondent/landlord as R.C.P.No.4/2016, before the Rent Control Court, Varkala, seeking an order of eviction under Sections 11(2)(b) and 11(3) of the Kerala Building (Lease and Rent Control) Act, 1965 (herein after referred to as 'the Act'). According to the respondent/landlord, the petitioner/ tenant is a lessee under the lease deed, executed by the petitioner/tenant in favour of the former landlord on a monthly basis. The petitioner/tenant raised a preliminary issue, contending that he is entitled to get right of permanent tenancy and thereby the **RCRev..No.330 OF 2018** ..3.. rent control petition is liable to be referred to civil court for determining his right of permanent tenancy. Thus, the petitioner/tenant has challenged the jurisdiction of the rent control court in determining the respondent/landlord's right to get an order of eviction under the Act. 2. The respondent/landlord opposed the said application denying the right of permanent tenancy. According to him, the petitioner/tenant is a lessee under Ext.A2 lease deed, executed for a period of 11 months only and after the expiry of the lease deed, he is holding over the tenanted premises. 3. After considering the rival pleas, the Rent Control Court accepted the contention raised by the petitioner/tenant **RCRev..No.330 OF 2018** ..4.. on a finding that the claim for right of permanent tenancy is _bona fide_ . 4. The respondent/landlord preferred an appeal before the Appellate Authority as RCA No.33 of 2017 and after re-appreciating the findings of the Rent Control Court, the Appellate Authority allowed the appeal and set aside the order passed by the Rent Control Court on a finding that the claim for permanent tenancy is not _bona fide_ . Thus, the legality and correctness of the divergent findings, on the right of permanent tenancy, under Section 11 of the Act, have come up in revision before this Court. 5. Heard the learned counsel for the petitioner/tenant and the learned counsel for the respondent/landlord. **RCRev..No.330 OF 2018** ..5.. 6. The learned counsel for the petitioner/tenant advanced arguments to challenging the findings of the Appellate Authority and justifying the finding of the Rent Control Court. 7. In view of the rival submissions at the bar, the question to be considered is whether there is any illegality or impropriety in the findings of the Appellate Authority that the claim for permanent tenancy is not _bona fide,_ warranting no reference to civil court under Section 11(1) of the Act. Going by the order passed by the Rent Control Court, we find that the Rent Control Court has arrived at a finding that the claim for permanent tenancy is _bona fide_ on a finding that the petitioner has made some constructions in front of the shop room **RCRev..No.330 OF 2018** ..6.. for her business and she has also raised claim of permanent tenancy by issuing two reply notices to the respondent/landlord in the year 2014. 8. On the other hand, going by the impugned judgment passed by the Appellate Authority, we find that the Appellate Authority has arrived at a finding that the claim for permanent tenancy is not _bona fide_ on a finding that it has come out in evidence from Exts.A4, A7 and A8 that the petitioner/tenant made an unauthorised construction in front of the petition schedule building and such an unauthorised construction, after the commencement of tenancy, even if true, does not confer right of permanent tenancy. **RCRev..No.330 OF 2018** ..7.. 9. It is not disputed that the tenancy has commenced under Ext.A2 with the former landlord and the tenancy was created for 11 months only. Even after the expiry of the lease period, the petitioner/tenant is holding over the tenanted premises and while so, the respondent/landlord has purchased the said property under Ext.A1 sale deed in the year 2013. The petitioner/tenant has no case that after the purchasing of the tenanted premises by Ext.A1 sale deed, he was not attorned to the respondent/landlord as tenant. It follows that the respondent/ landlord has stepped in to the shoes of the former landlord and there is a landlordtenant relationship between the petitioner and the respondent. **RCRev..No.330 OF 2018** ..8.. 10. In order to substantiate his contention that he has got a right of permanent tenancy, it is contended that the petition schedule building was let out for running a ration shop and he has deposited a sum of Rs.2,00,000/- with the landlord, taking into account the permanent nature of tenancy and that he has made certain constructions in front of the tenanted premises. It is well discernible from Ext.A2 that the tenancy was created with the former landlord for 11 months only and the petitioner is a tenant in holding over only. The right of permanent tenancy is a right, which accrues only under statutory provisions as contemplated under the provisions of the Kerala Land Reforms Act. The petitioner/tenant has no case that he is **RCRev..No.330 OF 2018** ..9.. entitled to get any kind of right under the Kerala Land Reforms Act. According to the petitioner/tenant, he is running a ration shop in the petition schedule shop room. Merely on the reason that the petitioner/ tenant is running a ration shop, the nature of occupancy will not confer a right of permanent tenancy, as contemplated under Section 11(1) of the Act. 11. Further it is contended that he has made certain constructions in front of the tenanted premises. But, it has come out in evidence from Exts.A4, A7 and A8 that the petitioner has made an unauthorised construction in front of the petition schedule building and the Municipality and the PWD (Road) section have initiated proceedings against him for removing the **RCRev..No.330 OF 2018** ..10.. unauthorised constructions. As rightly observed by the Appellate Authority in _**Hamidullah (dead) by his legal representatives and others**_ v. _**Abdullah and others [AIR 1972 SC 410]**_ , the Hon'ble Supreme Court held that “neither possession for generation at uniform rent nor constructions of permanent structures by itself is conclusive proof of permanent tenancy”. According to him, he has been in possession and enjoyment of the tenanted premises for 19 years. However long the period of tenancy, that will not confer a right of permanent tenancy, if the tenancy has commenced under a written lease deed and the tenant is holding over the property under the lease deed, even after the expiry of lease period. **RCRev..No.330 OF 2018** ..11.. 12. We are of the view that even if the contentions claiming right of permanent tenancy raised by the petitioner/tenant are admitted at its face value and its entirety, that do not confer right of permanent tenancy to him, in the absence of any claim under any law for the time being in force. We do not find any kind of illegality or impropriety in the findings, whereby the Appellate Authority rejected the claim for permanent tenancy on a finding that there is no _bona fides_ . This revision petition is meritless. 13. It is needless to say that if the petitioner/tenant is entitled to get any kind of immunity under Section 11(11) of the Act, he is at liberty to raise those contentions in the rent control petition, **RCRev..No.330 OF 2018** ..12.. untrammeled by the observations made above. Having regard to the long pendency of this rent control petition, the Rent Control Court is directed to dispose the aforesaid rent control petition, within a period of six months from the date of receipt of a copy of this judgment. Hence this revision petition fails and is dismissed accordingly. **Sd/K.HARILAL JUDGE** SB/04/02/2020 **Sd/C.S.DIAS JUDGE** //true copy // P.A to Judge