Joseph s/o Gabriel v. J. Lilly

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN TUESDAY, THE 22ND DAY OF MARCH 2016/2ND CHAITHRA, 1938 RCRev..No. 97 of 2016 () ------------------------- AGAINST THE ORDER/JUDGMENT IN RCA 23/2013 of RENT CONTROL APPELLATE AUTHORITY, TRIVANDRUM DATED 15-10-2015 AGAINST THE ORDER/JUDGMENT IN RCP 32/2012 of RENT CONTROL COURT, TVM DATED 31-08-2013 REVISION PETITIONER(S)/RESPONDENT/RESPONDENT: -------------------------------------------- JOSEPH S/O.GABRIEL, OLD TC.33/186 (NEW TC. 10/1235), PUTHENVILA VEEDU, VATTIYOORKAVU, THIRUVANANTHAPURAM BY ADV. SRI.G.SUDHEER RESPONDENT(S)/APPELANT/PETITIONER: ---------------------------------- J.LILLY W/O.LATE R. VISWAMBARAN, ARTHALA MELE PUTHEN VEEDU, PRA 116, PAPAD, NETTAYAM, THIRUVANANATHAPURAM 695001 R1 BY ADV. SRI.M..BALAGOVINDAN (CAVEATOR) THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 22-03-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **P.N. Ravindran & K. Ramakrishnan, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - R.C.R.No.97 of 2016 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 22[nd] March, 2016** ## **O R D E R** ## **K. Ramakrishnan, J.** The tenant in R.C.P.No.32 of 2012 on the file of the Rent Control Court, Thiruvananthapuram is the revision petitioner herein. The respondent herein as landlady, filed the application for eviction on the grounds of arrears of rent and bonafide need under sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as 'the Act' for short. It is alleged in the rent control petition that the petitioner therein is the wife and sole legal heir of late R. Viswambharan who obtained the property and the building therein. He let out a portion of the building to the respondent therein in the year 1994 on a monthly rent of Rs.300/- which has been subsequently enhanced to Rs.500/-. He died on 25.12.2006 and the petitioner became the absolute owner in possession of the petition schedule building. Mutation was effected in her name. The respondent did not pay rent to the husband from 2002 onwards. He had even physically harassed him. Litigations were pending between the parties. The petitioner is a retired teacher. She requires the petition schedule building to start a provision store. There are no other RCR 97/2016 2 buildings in her possession for that purpose. She sent a notice dated 16.5.2009 requesting to surrender vacant possession of the petition schedule building and to clear the rent arrears from January 2002 onwards. He sent a reply with false allegations. So, the petitioner had no other option but to file an application for eviction under sections 11 (2)(b) and 11(3) of the Act. 2. The respondent who is the revision petitioner herein entered appearance and filed a counter statement contending as follows: He denied the allegation that the petitioner is the legal heir of deceased Viswambharan. She has no locus standi to file the application. Viswambharan was unmarried and died issueless. There was no rental arrangement between Viswambharan and the respondent. The averment that Viswambharan rented out a portion of the petition schedule building to the respondent on a monthly rent of Rs.300/- in 1994 and it has been enhanced to Rs.500/- later, etc. are not correct. On 8.3.1994 Viswambharan agreed to sell the building and the landed property to the respondent and he received Rs.50,000/- as advance. On that day the possession of part of the building was given to the respondent and from that day onwards the respondent along with his family were residing in the petition schedule building, i.e. four rooms on the eastern side of the petition schedule building and the remaining two rooms remained in the possession of Viswambharan. After his RCR 97/2016 3 death, those rooms were lying vacant. The petitioner did not successful in proving the ownership of the petition schedule building. The respondent never paid rent to Viswambharan and there was no landlord-tenant relationship between them. The petitioner had no right to demand rent. She is not entitled to file the application as well. The respondent sent a reply stating the true state of affairs. On 1.1.2004 Viswambharan executed an agreement for sale in favour of the respondent after receiving a total amount of Rs.3 Lakhs inclusive of Rs.50,000/- received on 8.3.1994. But he failed to execute the document in favour of the respondent. He attempted to evict the respondent forcibly and he filed O.S.No.1060 of 2004 against forceful dispossession. After filing written statement, Viswambharan remained ex-parte. In the written statement filed by Viswambharan, he stated that he was unmarried and issueless and the marriage certificate relied on by the petitioner is a fabricated one. It is also stated that if at all it is found to be a genuine one, it has no connection with him who is the actual owner of the petition schedule building. The petitioner filed an application to set aside the ex-parte decree in O.S.No.1060 of 2004 along with an application to condone the delay of two years and that was dismissed. Appeals were filed against that order which were also disposed of by the District Court, Thiruvananthapuram with an observation that the petitioner is not precluded from establishing her RCR 97/2016 4 marital status in appropriate proceedings. It is thereafter that the present petition has been filed without approaching the family court to get a declaration of her status. So, the rent control court has no jurisdiction to adjudicate the marital status of the petitioner and he prayed for dismissal of the petition. He also denied the need alleged by the petitioner and the liability to pay rent. 3. The petitioner examined herself as PW1 and Exts.A1 to A13 were marked on her side. Exts.B1 to B4 were marked on the side of the respondent but no oral evidence was adduced on his side. 4. After considering the evidence on record, the rent control court found that the denial of title is bonafide and the petitioner has failed to prove her legal status as wife of deceased Viswambharan and dismissed the application. Aggrieved by the same, the landlady filed R.C.A.No.23 of 2013 before the Rent Control Court, Thiruvananthapuram which was made over to III Additional District Court, Thiruvananthapuram for disposal and the appellate authority by the impugned judgment dated 15.10.2015 allowed the appeal setting aside the order of dismissal passed by the rent control court holding that the denial of title is not bonafide and also entered a finding regarding the question of bonafide need, arrears of rent and allowed the application under sections 11(2)(b) and 11(3) of the Act. Aggrieved by the same, the present revision petition has been filed by RCR 97/2016 5 the revision petitioner/tenant before the rent control court. 5. Heard Shri G. Sudheer (Karakonam), learned counsel for the revision petitioner and Shri M. Balagovindan, learned counsel for the respondent. 6. Learned counsel for the revision petitioner submitted that in earlier proceedings Viswambharan had filed written statement stating that he is unmarried. So, without proving the marital status, the respondent herein is not entitled to maintain an application for eviction. The rent control court had considered all those aspects and rightly found that the denial of title is bonafide and the landlady is not entitled to file an application for eviction and rightly dismissed the petition. The appellate authority has not properly appreciated the evidence and come to a wrong conclusion that the tenant is not entitled to challenge the relationship in a rent control proceedings and also without remanding the matter, entered into a finding on other issues which have not been decided by the rent control court, thereby prejudice has been caused. 7. On the other hand, learned counsel for the respondent submitted that the oral evidence of PW1 and the documentary evidence produced by the petitioner established the legal status of the landlady with deceased Viswambharan and the revision petitioner did not go to the witness box to prove his case as well. So, the appellate RCR 97/2016 6 authority was perfectly justified in reversing the finding on the basis of the evidence and rightly allowed the application, as evidence has already been let in by the parties on all points and there is no need to remand the case for that purpose. 8. The case of the landlady/respondent herein was that the petition schedule building belonged to late Shri Viswambharan and she is his legally wedded wife and on that basis the application was filed. According to the landlady, a portion of the petition schedule building was let out to the revision petitioner herein by late Viswambharan on a monthly rent of Rs.300/- in the year 1994 and thereafter rent has been enhanced to Rs.500/- and rent from January 2002 was in arrears. She bonafide requires the petition schedule building to start a provision store as she had retired from service. The tenant had denied the landlord-tenant relationship and also denied the right of the landlady to file the application as the legal heir of Viswambharan. The fact that the petition schedule building belonged to Viswambharan and a portion of the building was in the possession of the revision petitioner as taken from Viswambharan is not in dispute. The case of the revision petitioner was that during 1994 he had entered into an agreement with deceased Viswambharan for sale of the petition schedule property and an amount of Rs.50,000/- was paid as advance. Thereafter, in the year 2004 he had executed an agreement for sale RCR 97/2016 7 agreeing to sell the property with the building for an amount of Rs.3 Lakhs including the sum of Rs.50,000/- obtained earlier and the entire sale consideration was paid and later the document was not executed. When late Viswambaran tried to evict him from the building forcefully, relief of injunction against forceful eviction. According to him, Viswambharan filed a written statement stating that he was unmarried but denied the allegation of entrustment as claimed by the revision petitioner. It is true that he produced Exts.B1 to B4 to prove this fact. It may be mentioned here that except producing Exts.B1 to B4, he had not produced any document to prove that there was an agreement to sell entered into between deceased Viswambharan and himself and he had paid the amount of Rs.3 Lakhs as claimed by him. He had also not entered the witness box to prove the arrangement with the original owner Viswambharan so as to attract the protection of section 53A of the Transfer of Property Act as there was an agreement to sell and in pursuance to the said agreement, he was put in possession of the property. So, under the circumstances, the appellate authority has rightly come to the conclusion that he had not proved that deceased Viswambharan had entrusted the property on the basis of the agreement to sell as claimed by him. 9. But since the status of the landlady was challenged, she went to the witness box and has deposed about the marital relationship and RCR 97/2016 8 she had produced Ext.A10 marriage certificate and Exts.A11 and A12 pension payment orders of both the deceased and herself wherein each of them were shown as nominees in their respective pension orders showing the status as husband and wife. Further, Ext.A13 ration card will go to show that Viswambharan had accepted the respondent herein as his wife. In a rent control proceedings, the tenant is not entitled to challenge the legal status of the petitioner. He is also not entitled to deny the paramount title of the landlord in respect of the property. (See **P.M. Parthakumar v. Ajith Viswanathan and others** - ILR 2006 (2) Ker. 149 (FB) and **Nabeesa Abdul Khader and others v. Suresh Kurian and others** - 2009 (1) KLT 1020). None of the family members have objected to these aspects. That shows that they have accepted the respondent herein as the wife of Viswambharan and that was the reason why they had not made any claim regarding the pensionary benefits payable to Viswambharan as well. So, under the circumstances, the rent control court as well as the appellate authority were perfectly justified in coming to the conclusion that the respondent herein is the wife of late Viswambharan. The rent control court came to the conclusion that the respondent herein had failed to prove the landlord-tenant relationship between them and on that ground dismissed the application. It is an admitted fact that Viswambharan was the owner of the property. It is RCR 97/2016 9 also an admitted fact that a portion of the building (which is the petition schedule building) was entrusted to the revision petitioner by deceased Viswambharan. The case of the respondent herein is that it was on rental basis, but the case of the revision petitioner is that he was in possession of the building on the basis of part performance of agreement for sale entered into between him and deceased Viswambharan. But both the courts found that the respondent herein had failed to prove that fact. If the case of the revision petitioner is not proved, it can only be presumed that the building was let out to the revision petitioner by Viswambharan on rental basis and the revision petitioner is the tenant of Viswambharan and on the death of Viswambharan, as his wife, the respondent herein became the owner of the property and even if there is entrustment of the building to the tenant, it can be presumed that there is attornment in favour of the legal heir by the tenant on the death of the original landlord. So, the appellate authority was perfectly justified in coming to the conclusion that there is landlord tenant relationship with the revision petitioner and the respondent herein and the application is maintainable and rightly reviewed the findings of the rent control court on that aspect. To that extent, the finding of the appellate authority is perfectly justifiable and does not call for any interference. So, we are inclined to confirm the order passed by the appellate authority that the denial RCR 97/2016 10 of title made by the revision petitioner/tenant is not bonafide and it can only be presumed that the tenant is in possession of the petition schedule building as entrusted by the original owner Viswambharan as the building tenant and nothing more and on his death the respondent became the landlord of the building as his sole heir. 10. But the rent control court, on finding that the denial of title is bonafide and there is no landlord-tenant relationship, dismissed the application for eviction without going into the question of bonafide need, arrears of rent, rate of rent, etc. The appellate authority had re appreciated the evidence on that aspect and then came to the conclusion that the probable rate of rent will be Rs.500/- and rent from January, 2002 is in arrears and ordered eviction under section 11(2) (b) of the Act. The rent control court also found that the need alleged is bonafide and passed an order of eviction under section 11(3) of the Act. Any how, the rent control court having not gone into those aspects and dismissed the application on the preliminary objection regarding denial of title, the appellate authority should not have passed an order of eviction under sections 11(2)(b) and 11(3) of the Act. After setting aside the finding that the denial of title is bonafide, the appellate authority ought to have remanded the matter to the rent control court with a direction to decide the other issues on the basis of evidence or allowing the parties to adduce evidence on that aspect if RCR 97/2016 11 they propose to do so because the tenant had not gone to the witness box and he may be under the impression that he will be able to succeed on the ground of denial of title alone. 11. Under such circumstances, we feel that the judgment delivered by the appellate authority ordering eviction under sections 11(2)(b) and 11(3) has to be set aside and the matter has to be remanded to the rent control court for entering a fresh finding on those aspects alone after consideration of evidence untrammelled by the observations and findings arrived at by the appellate authority on those aspects. 12. So, the judgment of the appellate authority to the extent ordering eviction under sections 11(2)(b) and 11(3) of the Act alone is set aside while confirming the finding that the denial of title made by the tenant is not bonafide and there is landlord-tenant relationship between the revision petitioner and the respondent and the application filed by the petitioner as wife of Viswambharan is perfectly maintainable and remitted the case to the rent control court for the purpose of deciding the question as to whether rent is in arrears, what is the rate of rent and whether the landlady is entitled to get eviction under sections 11(2)(b) and 11(3) of the Act, afresh after affording an opportunity to the parties to adduce evidence, if any required for proving their respective cases on the above aspects alone. The rent RCR 97/2016 12 control court shall pass fresh orders untrammelled by the observations, if any, made by the appellate authority on the above aspects. The parties are directed to appear before the rent control court on 17.5.2016. Considering the fact that the case is of the year 2012, the rent control court is directed to expedite the disposal of the case as expeditiously as possible and at any rate, on or before 31.8.2016. The revision petition is allowed in part and disposed of as stated above. Considering the circumstances, the parties are directed to bear their costs. ## **( P.N. Ravindran, Judge)** ## **(K. Ramakrishnan, Judge)** ## **kav/**