INDIAN NATIONAL CONGRESS BLOCK CONGRESS COMMITTEE OFFICE EAST FORT GATE TRIPUNITHURA v. LAILA MURALEEDHARAN, MITHUL KUMAR, PAPITHA PRAMOD

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 10TH DAY OF NOVEMBER 2014/19TH KARTHIKA, 1936** **RCRev..No. 296 of 2014 ()** **--------------------------** **AGAINST THE ORDER/JUDGMENT IN RCA 37/2011 of v[th] ADDL.DISTRICT COURT AND RENT CONTROL APPELLATE AUTHORITY,.EKM DATED 19-03-2014 AGAINST THE ORDER/JUDGMENT IN RCP 127/2009 of III ADDL.M.C.EKM (RENT CONTROL) DATED 25-02-2011** **REVISION PETITIONER(S)/APPELLANTS/RESPONDENTS:** **------------------------------------------------** **1. INDIAN NATIONAL CONGRESS BLOCK CONGRESS COMMITTEE OFFICE EAST FORT GATE TRIPUNITHURA, REP.BY MR.T.V.SHAJI SECRETARY** **2. KERALA PRADESH DRIVERS CONGRESS INTUC MEKHALA COMMITTEE, EAST FORT GATE, TRIPUNITHURA. BY ADVS.SRI.K.V.SADANANDA PRABHU SRI.C.S.AJITH PRAKASH** **RESPONDENT(S)/RESPONDENTS/PETITIONERS: -----------------------------------------** **1. LAILA MURALEEDHARAN, AGED 73 YEARS W/O.LATE DR.N.K.MURALEEDHARAN NADEPPILLY BHANU BHAVAN, UDAYAMPEROOR P.O, ERNAKULAM-682 307. 2. MITHUL KUMAR S/O.LATE DR.N.K.MURALEEDHARAN NADEPPILLY BHANU BHAVAN, UDAYAMPEROOR P.O, ERNAKULAM-682 307.** **3. PAPITHA PRAMOD, W/O.PRAMOD C.S. MULLAMOOTTIL HOUSE, ANJALPARA THATTARAMBALAM P.O. MAVELIKKARA-03 REP. BY POWER OF ATTORNEY HOLDER 2ND RESPONDENT** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 10-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **K.T. SANKARAN & P.D. RAJAN, JJ.** ------------------------------------------R.C.R. No. 296 of 2014 ---------------------------------------------Dated this the 10[th] day of November, 2014 ## **ORDER** ## **K.T. SANKARAN,J.** The respondents filed R.C.P. No.127/2009 on the file of the Rent Control Court, Ernakulam against the petitioners under Sections 11(2)(b), 11(3) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act. 2. Hereinafter the parties are referred to as per their rank in the Rent Control Petition. 3. The case of the petitioners/landlords is that the building originally belonged to Dr. N.K. Kumaran, the grand father of petitioners 2 and 3 in the Rent Control Petition. After the death of Dr. N.K. Kumaran, the predecessor-ininterest of the petitioners, namely, Dr.N.K.Muraleedharan R.C.R.No.296/14 2 got title to the building. Dr. N.K. Muraleedharan died on 4.8.2009. The petitioners/landlords are the legal representatives of Dr. N.K. Muraleedharan. According to the petitioners/landlords, the building was let out to Block Congress Committee of Indian National Congress for the purpose of their office. Respondents 1 and 2 are having office in that building. Originally, the building was let out on a monthly rent of 100/-. The respondents/tenants₹ failed to pay the arrears of rent. In the year 1992, Dr. N.K. Muraleedharan requested the office bearers of the tenants to vacate the premise. After several mediations, the parties agreed to continue the tenancy on a monthly rent of Rs.500/- from January 1993 onwards. A rent deed was also executed. Still thereafter, the respondents/tenants failed to pay the rent from 1993 onwards. The petitioners/landlords also contended that R.C.R.No.296/14 3 the 2[nd] petitioner, who is conducting ready made garments shop in one of the rooms in the ground floor, bona fide needs to expand his business by providing an office room in the premises occupied by the tenant. It is contended that there is no sufficient space in the existing store room to keep the goods. There is no vacant space available to keep the files and records. According to the petitioners/landlords, the petition schedule room is very suitable for the said purpose. 4. The respondents/tenants in the R.C.P contended that the Rent Control Petition is not maintainable, since they are not tenants of the petitioners. According to them, the building originally belonged to Dr. N. K. Kumaran, the grand father of petitioners 1 and 2. Later, Dr. N.K. Kumaran, became a Member of Legislative Assembly (M.L.C.). At the time when he was elected as M.L.C., he R.C.R.No.296/14 4 gifted the petition schedule room to Indian National Congress. The gift was accepted by the donee. Since the value of the building at that time was less than 100, the₹ gift was not registered. Since the respondents/tenants owned the petition schedule building, there is no necessity to pay the rent and therefore, the petition on the ground of arrears of rent is not maintainable. On the same ground, the other reliefs in the Rent Control Petition are not maintainable. Even in the year 2008-2009, the landlords let out two rooms to other tenants and that shows that there is no bona fides in the claim of the petitioners. 5. Before Rent Control Court, the 1[st] petitioner was examined as PW1 and her son, the 2[nd] petitioner was examined as PW2. Exts.A1 to A13 were marked on their side. On behalf of the respondents, Rws 1 to 3 were R.C.R.No.296/14 5 examined. The Commissioner's report and sketch were marked as C1 and C1(a) respectively. 6. The Rent Control Court considered the plea of denial of title made by the respondents/tenants in the R.C.P. and held that the case put forward by them that Dr.N.K. Kumaran had gifted the petition schedule building to the Indian National Congress cannot be accepted. The gift deed is not a registered one. Under Section 123 of the Transfer of Property Act, 1882, for making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. In **State of Kerala** v. **Oomman** [1992 (1) KLT SN 8 (Case No.9)], it was held that in the case of a gift, registered deed cannot be avoided even for a property having small value as in the case of sale. To be a valid gift, it must be effected by a R.C.R.No.296/14 6 registered instrument singed by or on behalf of the donor and attested by at least two witnesses. The gift deed is not valid even in a case where it is registered but not attested by two witnesses. A gift of immovable property not in accordance with the requirements of S.123 of the Transfer of Property Act cannot be considered to be a gift in the eye of law. 7. On the basis of the evidence on record, the Rent Control Cort held that the contention of denial of title raised by the respondents/tenants is unsustainable. The Rent Control Court noticed that in the Municipal registers, property tax and building tax stand in the name of Dr. N.K. Muraleedharan. Exts.A7, A8, A10, A11, A12 and A13 were relied on by the Rent Control Court to arrive at this conclusion. In the Municipal records, the owner of the building is Dr. N.K. Muraleedharan and the occupier/tenant R.C.R.No.296/14 7 is “Congress Mandalam Committee Office”. The Municipal records also shows the entries regarding tax as well as rental value of the building. Relying on these records, the Rent Control Court held that the respondents in the RCP are in possession of the building as tenants. 8. No documents were produced by the respondents/tenants to show that they are the owners of the building. Interested testimony of Rws 1 to 3 was not found reliable by the Rent Control Court. 9. At the time of arguments, the respondents/tenants in the R.C.P. raised a contention that they have perfected title by adverse possession and limitation. The Rent Control Court held that there is no pleading regarding adverse possession. Without pleading regarding adverse possession, the respondents/tenants were not entitled to raise the plea of adverse possession. R.C.R.No.296/14 8 The principles of adverse possession as settled in the decision in **Karnataka Board of Wakf** v. **Government of India** [2004(10) SCC 779] were relied on by the Rent Control Court. The Rent Control Court also relied on the decision of this Court in **Ratheesh Chandran A.R.** v. **Sarojini Amma** [ILR 2011 (1) Kerala 193] and held that chances of success of the tenant in a civil suit is one of the tests to be adopted by the Rent Control Court while dealing with the case of denial of title. Under 2[nd] proviso to Section 11(1) of the Act, where the tenant denies the title of the landlord or claims a 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. The Civil Court, in such a suit, may pass a decree for eviction on any of the grounds mentioned in Section 11, 9 R.C.R.No.296/14 notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded. In the present case, no materials were produced by the respondents/tenants before the Rent Control Court to establish their plea of denial of title and therefore, the denial of title was not bona fide. On the other hand, the extract of building tax and property tax maintained by the Municipality clearly shows that predecessor of the petitioners was the landlord and the respondents were the tenants. There is no reason why the extract of building tax register and the property tax register should not be accepted in the case, especially, in the absence of any convincing evidence on the side of the respondents/tenants regarding the denial of title of the landlord. 10. It has come out in evidence that there are four R.C.R.No.296/14 10 rooms in the ground floor of the building. In one of those four rooms, the 2[nd] petitioner is running the business in ready made garments. The other three rooms are occupied by other tenants. In the up stair of the building, in one of the rooms, the goods belonging to the 2[nd] petitioner are being stored. Another up stair room is in the possession of the respondents/tenants. According to the petitioners/landlords, they bona fide require that room for expanding the business of the 2[nd] petitioner and for providing an office space and to place the records, computer etc in that room. They contended that the space now available with the 2[nd] petitioner is not sufficient for that purpose. The Rent Control Court relied on the Commissioner's report and the evidence adduced on behalf of the petitioners/landlords and held that the need put forward by the landlords is genuine. R.C.R.No.296/14 11 11. It is true that in the Rent Control Petition, Sections 11(3) and 11(8) are quoted. The Rent Control Court relied on the decision of this Court in **Indian Saree House** v. **Radha Lakshmi** [2006 (3) KLT 129] and the decision of the Supreme Court in **S.R. Babu** v. **T.K. Vasudevan** [2001 (3) KLT 468]. In **Indian Saree House** 's case (supra), it was held thus: “12. In view of the Supreme Court decision in S.R. Babu's case and the principles laid down in the abovementioned decisions (except 1983 KLT 874), we are not inclined to accept the view taken by the authorities below that S.11(3) applies in the present case. Admittedly, petitioners 4 and 5 in the Rent Control Petition are in occupation of a portion of the whole building (or larger building). They do not want to vacate it and shift that business to the tenanted premises. They want to expand their business activities and for that purpose, the tenanted portion of the building is also required. Therefore, their requirement does not satisfy the ingredients of the expression “bona fide needs the building for his own occupation” under S.11(3). On the other hand, the claim comes within the meaning of the expression “he requires additional accommodation for his personal use.” The need for additional R.C.R.No.296/14 12 accommodation shall be for the “personal use” of the landlord. Of course, personal use includes use by the members of the landlord's family. At the same time, if the need for personal use is only for the members of the family of the landlord and it is unconnected with the occupation by the landlord of a portion of the building already in his possession, S.11(8) may not apply and such a case would be covered by S.11(3). The ingredients of sub-ss.(3) and (8) are distinct and different. They are mutually exclusive. Of course, some of the matters to be proved in order to get an order either under sub clause (3) or sub-clause (8) of S.11 are common. The landlord has to prove that the claim is bona fide in both these situations. If the claim is not proved to be bona fide, it shall be rejected as provided under S.11(10) of the Act. The first proviso to S.11(3) deprives the landlord to get an order for eviction if he has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that special reasons exist. Such a condition is absent in the case of S.11(8). Even if the landlord has another building, it may not have any relevance in an application under S.11(8). In an application under S.11(8), the landlord need not prove any special reasons as provided in the first proviso to S.11(3). Ownership and possession of the landlord in respect of another building is irrelevant in deciding an application of S.11(8), except, probably, in deciding the comparative hardship under the proviso to S.11(10), that too, depending upon the facts and circumstances of the case. The second proviso to S.11(3) R.C.R.No.296/14 13 mandates that no order under S.11(3) shall be passed in favour of the landlord if the tenant is depending for his livelihood mainly on the income derived from any trade or business carried in the building and if there is no other suitable building available in the locality for the tenant to carry on such trade or business. These requirements are absent in S.11(8). So also, such protection is not available to a tenant against whom an application under S.11(8) is filed. The first proviso to S.11(10) states that the Rent Control Court shall reject the application under S.11(8) if it is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord. The facts constituting the ingredients of the second proviso to S.11 (3) may be relevant in certain cases coming under S.11 (8) only for considering the proof or otherwise of the comparative hardship under the first proviso to S.11(10). The third and fourth proviso to S.11(3) are also not applicable in the case of an application under S.11(8). To our mind, the abovementioned items of distinction between S.11(3) and 11(8) would make it clear that they are mutually exclusive. We are of the view that in the light of the S.R. Babu's case, 2001(3) KLT 468(SC) = (2001) 8 SCC 110 and Pakran's case: 2004 (1) KLT 824, the view to the contra taken in Muhammad's case: 1983 KLT 874 does not survive.” 12. Even if the landlord establishes the bona fides under Section 11(8) of the Act for additional 14 R.C.R.No.296/14 accommodation, he would not be entitled to get eviction, if the Rent Control Court is satisfied that the hardship, which may be caused to the tenant by granting it will outweigh the advantage to the landlord. The Rent Control Court noticed that the tenants failed to adduce any evidence to prove the ingredients of the 2[nd] proviso to sub section (10) of Section 11 of the Act. Accordingly, the Rent Control Court allowed the Rent Control Petition under Section 11(8) of the Act. The claim for eviction under Section 11(2) (b) of the Act was rejected. 13. The tenants filed R.C.A No.37/2011 on the file of the Rent Control Appellate Authority, Ernakulam challenging the order of the Rent Control Court. The Appellate Authority dismissed the appeal holding that the findings of the Rent Control Court are correct. The appellate authority also considered the facts and R.C.R.No.296/14 15 circumstances of the case to arrive at the conclusion. 14. In a revision under Section 20 of the Act, the High Court would not be justified in interfering with the findings of fact arrived at by the authorities below, unless the findings are illegal, irregular or improper. There is no such illegality, irregularity or impropriety in the order and judgment of the authorities below. The Rent Control Petition was filed in the year 2009 and even after the expiry of five years, the landlords did not get the fruits of the order passed by the Courts below. 15. We do not find any ground to interfere with the well considered order and judgment of the Rent Control Court and the Appellate Authority. The Rent Control Revision fails and it is accordingly dismissed. In the facts and circumstances of the case, we grant time till 31.3.2015 to the respondents/tenants(revision R.C.R.No.296/14 16 petitioners) to vacate the petition schedule building on condition that they shall file affidavits on or before 31.12.2014 before the Rent Control Court unconditionally undertaking to vacate the petition schedule building on or before 31.3.2015 and also on condition that they shall deposit the entire arrears of rent before the Rent Control Court, Ernakulam on or before 31.12.2014 and they shall continue to pay the monthly rent on or before 10[th] of every succeeding month. If the respondents/tenants fail to comply with any of the conditions mentioned above, the order of eviction shall be executable forthwith. If the tenants comply with the above conditions, the order of eviction shall not be executed till 31.3.2015. **K.T. SANKARAN, JUDGE.** ## **P.D. RAJAN, JUDGE.** acd R.C.R.No.296/14 17 R.C.R.No.296/14 18