Eravimangalam Devaswom v. Muraleedhara Pisharady

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 21[ST] DAY OF FEBRUARY 2022 / 2ND PHALGUNA, 1943** **R.C.REV. NO. 83 OF 2018** **AGAINST THE JUDGMENT DATED 29.11.2017 IN R.C.A.NO.2 OF 2012 OF THE RENT CONTROL APPELLATE AUTHORITY (ADDITIONAL DISTRICT JUDGE-I), KOTTAYAM AND THE ORDER DATED 29.09.2011 IN R.C.P.NO.7 OF 2009 OF THE RENT CONTROL COURT (MUNSIFF), VAIKOM** ## **REVISION PETITIONER:** **ERAVIMANGALAM DEVASWAM,** **REPRESENTED BY SUBRAHMANIAM NAMBOOTHIRI, S/O. NEELAKANDAN NAMBOOTHIRI,AGED 70 YEARS, RESIDING AT MATTAPPALLY MANAYIL, ERAVIMANGALAM KARA, MANJOOR VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT- 686 603.** **BY ADVS. SRI.K.P.RAJEEVAN SRI.P.V.KURIACHAN** ## **RESPONDENT:** ## **MURALEEDHARA PISHARADY** **S/O. GOVINDA PISHARADY, AGED 67 YEARS, RESIDING AT THEKKEPISHARATHU HOUSE, ERAVIMANGALAM KARA, VAIKOM TALUK, KOTTAYAM DISTRICT, PIN- 686 603.** **BY ADVS. SUDHIR GOPI P.BALAN (VYTTILA) JAMES ABRAHAM (VILAYAKATTU) P.B.KRISHNAN** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 28.01.2022, THE COURT ON ON 21.02.2022 DELIVERED THE FOLLOWING:** 2 R.C.Rev.No.83 of 2018 ## **O R D E R** ## Ajithkumar, J The landlord is the revision petitioner. The Rent Control Petition No.7 of 2009 was filed by the petitioner seeking eviction under Sections 11(2)(b), 11(3) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 before the Rent Control Court (Munsiff), Vaikom. It was allowed in part. Eviction was ordered under Section 11(2)(b) of the Act. Claim for eviction on the other grounds was disallowed. The respondent-tenant carried the matter in appeal by filing R.C.A.No.2 of 2012. The Rent Control Appellate Authority (Additional District Judge-I), Kottayam allowed the appeal. Feeling aggrieved thereof, the petitioner has filed this revision under Section 20 of the Act. 2. The rent control petition was filed by Sri. Subramanniyam Namboothiri for and on behalf of Eravimangalam Devaswom. It was contended that the petition schedule building belonged to Eravimangalam Devaswom, which is a family temple of the petitioner. It was let out to the 3 R.C.Rev.No.83 of 2018 father of the respondent as early as on 15.10.1955 by the predecessor-in-interest of the petitioner. Rate of rent was eventually enhanced to Rs.750/- per month. Rent since January, 1994 has been in arrears. The building is required for the residential purpose of the employees in the temple. The building was used by the respondent in such a way as to cause damages to it. On such grounds, eviction was sought for. 3. The respondent filed a counter statement refuting all the contentions in the petition for eviction. The landlordtenant relationship is denied. The petitioner's claim that he is the owner of the petition schedule building, is denied. The building does not belong to Eravimangalam Devaswom. A two-roomed building along with the land appurtenant thereto was handed over to the father of the respondent, as per the document executed on 15.10.1955. But the said building is not in existence. It got destroyed due to old age. The father of the respondent constructed a new building having six rooms and a lean to by spending Rs.40,000/- in 1970. The building 4 R.C.Rev.No.83 of 2018 has been assessed in the name of the father of the respondent. The respondent is in possession and enjoyment of the said building as its owner. The petitioner has no right to claim eviction of the respondent. He has no obligation to pay any rent. The petitioner is not entitled to claim eviction on the ground of bonafide need or on any other ground. Accordingly, the respondent sought to dismiss the petition. 4. The Rent Control Court recorded oral evidence of PW1 and RW1. Exts.A1 to A8 and B1 to B5 series were received in evidence. Denial of petitioner’s title by the respondent and also the denial of landlord-tenant relationship were negatived by the Rent Control Court in the light of the oral evidence and also relying on Exts.A4 and A5. Necessarily, an eviction on the ground of arrears of rent followed. 5. The Appellate Authority, however, on re-appreciation of the evidence, held that there was no landlord-tenant relationship with respect to the petition schedule building between the parties and accordingly the petition for eviction was dismissed on reversing the order of the Rent Control Court. 5 R.C.Rev.No.83 of 2018 6. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 7. The learned counsel appearing for the petitioner would contend that the recitals in Ext.A1, which is an undisputed document, are enough to find that the respondent is the tenant in the petition schedule building. He explained that Eravimangalam Devaswom is a private temple of Mattathu Mana of which the petitioner, Subramanniyam Namboothiri, is the custodian. He has filed the rent control petition for and on behalf of Eravimangalam Devaswom and there is no impropriety in filing such a petition. The learned counsel would further contend that the claim raised by the respondent in O.S.No.66 of 1994, a suit filed by the petitioner and others before the Munsiff's Court, Vaikom, that he acquired title to the building in question and one Acre of land, where the building is situated, was declined. In Exts.P4 and P5, it was further held that he was a tenant in the building. The said finding binds the respondent and therefore he is not 6 ## R.C.Rev.No.83 of 2018 entitled to set up a different plea so as to deny the petitioner's status as the landlord. Accordingly, the learned counsel maintains that the finding of the Appellate Authority is wrong and liable to be reversed. 8. The learned counsel appearing for the respondent, on the other hand, relying on the Full Bench decision of this Court in **Parthakumar v. Ajith Viswanathan [2006 (2) KLT 250]** contended that in a rent control proceedings, title as the landlord alone is in question and that the findings in Exts.A4 and A5 judgments do not stand in the way of respondent's contending or proving that he is not a tenant liable for eviction under Section 11 of the Act. It is further contended that principles of res judicata as contained in Section 11 of the Code of Civil procedure, 1908 are not applicable to rent control proceedings. Res judicata as modified by Section 15 of the Act alone applies to rent control proceedings. In order to buttress this submission, he placed reliance on **Govindan v. Subaida Beevi [1997(1) KLT 910]** . The learned counsel further would contend that the 7 ## R.C.Rev.No.83 of 2018 essential requirements to prove res judicata are not substantiated by the petitioner and in that regard he cited the ## decision in **Syed Mohd. Salie Labbai v. Mohd. Hanifa [(1976) 4 SCC 780].** 9. Section 11 of the Act deals with eviction of tenants. As per Section 11(1), notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act. As per the first proviso to Section 11(1), nothing contained in this Section shall apply to a tenant whose landlord is the State Government or the Central Government or other public authority notified under this Act. As per the second proviso to Section 11(1), where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court 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 8 R.C.Rev.No.83 of 2018 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. Therefore, whenever there is denial of title of the landlord, the Rent Control Court is obliged to decide that question and depending upon the finding thereon, the court has to proceed further either directing the petitioner to approach the civil court or proceed to consider the grounds for eviction on merits. There can be various circumstances in which the tenant may deny the landlord-tenant relationship. He may be a licensee or a mortgagee or a trespasser or a partner and in such circumstances he may deny the landlord-tenant relationship. 10. This Court in **Khadeeja and others v. Haris Haji V. [2019 (3) KLT 693]** held that mere denial of landlordtenant relationship in all circumstances would not oust jurisdiction of Rent Control Court. There are various circumstances in which the tenant may deny the landlordtenant relationship. He may be a licensee or a mortgagee or a trespasser or a partner and in such circumstances he may 9 R.C.Rev.No.83 of 2018 deny the landlord tenant relationship. The court held that the denial of landlord-tenant relationship would oust the rent control petition from the jurisdiction of the Rent Control Court, if only the denial of the landlord-tenant relationship arises out of denial of title or claim of permanent tenancy. In the absence of denial of title or claim of permanent tenancy, the mere denial of landlord-tenant relationship only would not, under any other circumstance, oust the rent control petition from the jurisdiction of the Rent Control Court and such rent control petition shall not be considered under the second proviso to Section 11(1) of the Act. In short, denial of landlord-tenant relationship that arises out of denial of title of the landlord or claim of permanent tenancy alone would fall under Section 11(1) of the Act. 11. The question was elaborately considered by a Full Bench of this Court in **P.M. Parthakumar v. Ajith Viswanathan and others [2006 (2) KLT 250].** The Full Bench dilated the question and laid down the principle in the following words: 10 R.C.Rev.No.83 of 2018 '18. The Legislature was conscious of the fact that there could be disputes as to whether there exists landlordtenant relationship. A person who is proceeded against as a tenant may have to raise a contention that there is no landlord-tenant relationship and that he is not a tenant. The landlord claiming eviction must have title to evict. If he has no title to evict and such a contention is raised, the jurisdiction to decide that dispute rightly vests in civil courts following exhaustive procedure and not in the Special Tribunals constituted to decide a limited category of disputes following summary procedure. Therefore where existence of landlord-tenant relationship, i.e. title of the landlord to claim eviction against the person proceeded against, is itself seriously disputed, certainly the Special Tribunals must take their hands off the dispute and leave the parties to resolve their disputes before the regular civil courts constituted. The Tribunals following summary procedures cannot usurp the powers and jurisdiction of the civil courts to decide such disputes regarding title. Such substantial disputes regarding title are uplands and out of bounds for the statutory special tribunals. That is the zone or area where the civil court must entertain jurisdiction. Therefore when certain 11 R.C.Rev.No.83 of 2018 categories of disputes arise between the contestants about the very title of the landlord to claim eviction against the persons proceeded against under Section 11, such disputes must certainly be decided by the regular civil courts. xx xx xx 22. What then is the title of the landlord contemplated under the second proviso to Section 11 (1) of the Act. Title, it is trite, is the sum total or the bundle of rights in respect of property. The paramount title of the landlord is absolutely irrelevant for the purpose of a claim under Section 11. His title as the landlord alone is relevant in a dispute under Section 11 of the Act. Is he the landlord of the person proceeded against? If he is, he has the requisite title to sustain the claim for eviction under Section 11. He may be only a mortgagee or a lessee who had leased/sub leased the building. A denial of paramount title is, in these circumstances, irrelevant if the person proceeded against is the tenant and the person making the claim is the landlord. Proprietary title of the person claiming eviction is thus irrelevant and the denial contemplated under Section 11(1) of the Act could never have been the denial of paramount or proprietary title. 12 R.C.Rev.No.83 of 2018 The denial of paramount title may in a given case include the denial of title as landlord also. Such title as landlord alone is essential to sustain a claim for eviction under Section 11(1) of the Act. All that we intend to take note is that the denial of paramount or proprietary title is irrelevant and that is not the precise denial of title contemplated under the second proviso to Section 11(1) of the Act. The denial of title as landlord alone is relevant. So wherever there is a denial of the right of the landlord to claim eviction on the ground that he is not the landlord of the person proceeded against, such denial must certainly be reckoned as denial of title of the landlord as contemplated under Section 11(1) of the Act. In short, we are of opinion that denial of landlord-tenant relationship between the claimant/landlord so called and the respondent/tenant so called is the denial of title which alone is contemplated under the second proviso to Section 11(1). If there is admission of such title, the Rent Control Court certainly has jurisdiction to proceed. If that is in dispute, second proviso to Section 11(1) comes into play. The Supreme Court referred to the distinction in the concept of ownership in a claim for eviction under the Rent Control legislation in contradistinction to the same in 13 R.C.Rev.No.83 of 2018 ## a title suit in the following words in para 10 in **Sheela and others v. Firm Prahlad Rai Prem Prakash [(2002) 3 SCC 375]** are refer to: '10. ......... the concept of ownership in a landlord-tenant litigation governed by rent control law has to be distinguished from the one in a title suit. Ownership is a relative term, the import whereof depends on the context in which it is used. In rent control legislation, the landlord can be said to be the owner if he is entitled in his own legal right, as distinguished from for and on behalf of someone else, to evict the tenant and then to retain, control, hold and use the premises for himself. What may suffice and hold good as proof of ownership in a landlordtenant litigation probably may or may not be enough to successfully sustain a claim for ownership in a title suit'.' 12. Therefore, the principle flows from the second proviso to Section 11(1) of the Act is clear. That a denial of landlord-tenant relationship may not oust the jurisdiction of the Rent Control Court from considering a rent control petition. But when the plea of denial of the landlord-tenant relationship arises out of denial of title or claim of permanent tenancy, the position is different. If the two contentions are so 14 R.C.Rev.No.83 of 2018 interwoven that a decision on the title of the landlord is mandatory to answer the question whether there exists a landlord-tenant relationship, the bar under the second proviso to Section 11(1) of the Act gets attracted. In the absence of denial of title or claim of permanent tenancy, the mere denial of landlord-tenant relationship would not oust the jurisdiction of the Rent Control Court from entertaining the rent control petition. In other words, denial of landlord-tenant relationship that arises out of denial of title of the landlord or claim of permanent tenancy alone would fall under Section 11(1) of the Act. It follows that except where there is real or constructive denial of title or claim of permanent tenancy resulting in cessation of jurisdiction, the Rent Control Court necessarily has to consider on merits the question, whether there is any landlord-tenant relationship. 13. In **Govindan v. Subaida Beevi (supra),** this Court held that the Legislature has incorporated Section 15 in the Act, more or less, akin to Section 11 of the Code. However, the Act, being a self-contained statute, it is only 15 R.C.Rev.No.83 of 2018 reasonable to hold that the general principles of res judicata will apply to the proceedings under the Act only to the extent and subject to the parameters incorporated in Section 15 of the Act and not in toto. Thus, the bar created under Section 15 of the Act is in a modified form, and strictly not as contained in Section 11 of the Code. If a finding was finally entered into with respect to a question relating to any of the provisions made mention of in Section 15 in a former proceedings under the Act alone, a subsequent proceedings is barred under Section 15 of the Act. In that view of the matter, the finding in Ext.A5 that the respondent is a tenant as per Ext.A1 rent deed may not altogether bar the contention of the respondent denying the landlord-tenant relationship so as to attract the mischief under the second proviso to Section 11 of the Act. 14. In **Syed Mohd. Salie Labbai v. Mohd. Hanifa (supra)** , the Apex Court held that before a plea of res judicata can be said to be given effect, the following conditions must be proved; (i) that the litigating parties must be the same; (ii) that the subject matter of the suit also must 16 R.C.Rev.No.83 of 2018 be identical; (iii) that the matter must be finally decided between the parties; and, (iv) that the suit must be decided by a court of competent jurisdiction. It was further held that the best method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suits, and then to find out as to what had been decided by the judgment, which operates as res judicata. 15. In O.S.No.66 of 1994, the question was whether the respondent herein had any right to possess the landed property, where the petition schedule building is situated. The question of title to or nature of occupation of the petition schedule building was not a question in that case. The plaintiff therein on stating that the respondent was a tenant in occupation of the house sought for a decree of injunction restraining him from interfering with the possession and enjoyment of the plaintiffs over the landed property. From the reading of Exts.A4 and A5 it is seen that, in what capacity the respondent has been in possession of the building was not 17 ## R.C.Rev.No.83 of 2018 a fact in issue in that case. Also, no issue with respect to the title to or nature of possession of the petition schedule building was raised. The petitioner did not produce the pleadings in that suit. Therefore, it is not possible to go further to consider as to what exactly were the rival contentions set forth by the parties. From the available evidence, it is clear that there was no necessity for deciding such an issue in O.S.No.66 of 1994. In that view of the matter, principle in **Syed Mohd. Salie Labbai v. Mohd. Hanifa (supra)** is very much applicable in this case. The findings in Ext.A4, the judgment in O.S.No.66 of 1994 or Ext.A5, the judgment in A.S.No.148 of 2007, would not amount to res judicata to this the plea of the respondent that there is no landlord-tenant relationship between himself and the petitioner. That question therefore has to be decided independently. 16. What is required to be established by the landlord in order to get an order of eviction under the provisions of Section 11 of the Act is his title to the building as the 18 R.C.Rev.No.83 of 2018 landlord. Depending upon the contentions of the parties, proof regarding title to the land where the building is situated may not alone be sufficient in a given case. Section 2(1) of the Act defines the 'building' as 'any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purpose'. It implies that the building from which eviction is sought should be the building let out to the tenant. Therefore, in a petition for eviction, if the identity of, or title to the building in respect of which eviction is sought is disputed, that question has to be decided. It is so especially in view of the law that one can own a building, which is situated in the land belonging to another. In **CCE v. Solid & Correct** **Engg. Works [(2010) 5 SCC 122]** , it was held that the general rule in English law that what is annexed to the freehold becomes part of the realty under the maxim ‘quicquid plantatur solo, solo cedit’, has no application in India. 17. The specific case of the petitioner is that the respondent was in occupation of the petition schedule 19 R.C.Rev.No.83 of 2018 building, following his predecessor-in-interest, on the basis of the tenancy arrangement created by Ext.A1. But, the respondent denied the said contention. His defense is that the building referred to in Ext.A1 was replaced by a new building, which was constructed by his father. He further contended that the tenancy arrangement as per Ext.A1 ceased to exist and there has not been any tenancy arrangement in regard to the building presently in existence. RW1, the respondent, deposed in court that the petition schedule building was constructed by his father and it has been assessed from the local authority in his father’s name. He produced Ext.B1 series receipts for payment of tax for the petition schedule building starting from the year 1975. As against the said evidence, PW1, the petitioner deposed that after 1973, he did not go to the said building and he does not know the nature of the building. Thus, he was not in a position to state whether the building referred to Ext.A1 is the one now in existence. 18. The evidence referred to above prima facie substantiated that the petition schedule building is not the 20 R.C.Rev.No.83 of 2018 one referred to in Ext.A1. The probability is more in favour of the view that the building was subsequently constructed, especially as the building was assessed in the name of the respondents' predecessors-in-interest and building tax for it is being paid in his name. In the light of the said evidence, the question whether the petitioner has title to the petition schedule building entailing to evict the respondent from the same under the provisions of Section 11 of the Act certainly germane for consideration. The said question certainly amounts to a denial of title coming under the second proviso to Section 11(1) of the Act. This can be decided only by a civil court. Therefore, we hold that the finding of the Appellate Authority does not suffer from any illegality, irregularity or impropriety requiring interference by this Court to under the provisions of Section 20 of the Act. 19. Section 20 of the Kerala Buildings (Lease and Rent Control) Act deals with revision. As per sub-section (1) of Section 20, in cases, where the appellate authority empowered under Section 18 is a Subordinate Judge, the 21 R.C.Rev.No.83 of 2018 District Court, and in other cases 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 this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. As per sub-section (2) of Section 20 of the Act, the costs of and incident to all proceedings before the High Court or District Court under subsection (1) shall be at its discretion. 20. In **Rukmini Amma Saradamma v. Kallyani Sulochana [(1993) 1 SCC 499]** , the scope of revisional powers of the High Court under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 came up for consideration before the Three-Judge Bench of the Apex Court. While considering whether the High Court could have re-appreciated the entire evidence, the Apex Court held that even the wider language of Section 20 of the Act cannot enable the High Court to act as a first or a second court of 22 R.C.Rev.No.83 of 2018 appeal. Otherwise, the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High Court was not right in re-appreciating the entire evidence both oral or documentary in the light of the Commissioner's report. The High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word ‘propriety’ it - cannot mean that there could be a re appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a re-appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. 21. In **T. Sivasubramaniam v. Kasinath Pujari [(1999) 7 SCC 275]** the Apex Court held that, the words ‘to satisfy itself’ employed in Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 no doubt is a power of superintendence, and the High Court is not required to interfere with the finding of fact merely because the High Court is not in agreement with the findings of the courts below. It is also true that the power exercisable by the High 23 R.C.Rev.No.83 of 2018 Court under Section 25 of the Act is not an appellate power to reappraise or reassess the evidence for coming to a different finding contrary to the finding recorded by the courts below. But where a finding arrived at by the courts below is based on no evidence, the High Court would be justified in interfering with such a finding recorded by the courts below. 22. In **Ubaiba v. Damodaran [(1999) 5 SCC 645]** the Apex Court considered the exercise of revisional power by the High Court, under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, in the context of an issue as to whether the relationship of landlord-tenant existed or not. It was urged that whether such a relationship existed would be a jurisdictional fact. Relying on the decision in **Rukmini Amma Saradamma** it was contended that, however wide the jurisdiction of the revisional court under Section 20 of the Act may be, it cannot have jurisdiction to reappreciate the evidence and substitute its own finding upsetting the finding arrived at by the appellate authority. The Apex Court held that, though the revisional power under 24 R.C.Rev.No.83 of 2018 Section 20 of the Act may be wider than Section 115 of the Code of Civil Procedure, 1908 it cannot be equated even with the second appellate power conferred on the civil court under the Code. Therefore, notwithstanding the use of the expression ‘propriety’ in Section 20 of the Act, the revisional - court will not be entitled to re appreciate the evidence and substitute its own conclusion in place of the conclusion of the appellate authority. On examining the impugned judgment of the High Court, in the light of the aforesaid ratio, the Apex Court held that the High Court exceeded its jurisdiction by reappreciating the evidence and in coming to the conclusion that the relationship of landlord-tenant did not exist. 23. In **Hindustan Petroleum Corporation Limited v. Dilbahar Singh [(2014) 9 SCC 78]** a Five-Judge Bench of the Apex Court considered the revisional powers of the High Court under Rent Acts operating in different States. After referring to the law laid down in **Rukmini Amma Saradamma** the Apex Court reiterated that even the wider language of Section 20 of the Kerala Buildings (Lease and 25 R.C.Rev.No.83 of 2018 Rent Control) Act, 1965 does not enable the High Court to act as a first or a second court of appeal. The Constitution Bench agreed with the view of the Three-Judge Bench in **Rukmini Amma Saradamma** that the word ‘propriety’ does not confer power upon the High Court to re-appreciate evidence to come to a different conclusion, but its consideration of evidence is confined to find out legality, regularity and propriety of the order impugned before it. 24. Viewed in the light of the above, we find no reason to interfere with the findings in the judgment of the Appellate Authority dated 29.11.2017 in R.C.A.No.2 of 2012 in exercise of the powers under Section 20 of the Act. Therefore, the Revision Petition fails and it is accordingly dismissed. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr