KIZHAKKAYIL HAMZA HAJI v. PUTHIYAPARAMBATH AMMED HAJI and others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE G.GIRISH ``` ``` THURSDAY, THE 4[TH] DAY OF APRIL 2024 / 15TH CHAITHRA, 1946 ``` **==> picture [159 x 9] intentionally omitted <==** ``` AGAINST THE JUDGMENT DATED 29.07.2023 IN RCA NO.1 OF 2023 OF DISTRICT COURT & SESIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA ARISING OUT OF THE ORDER DATED 15.11.2022 IN RCP NO.21 OF 2019 OF RENT CONTROL COURT, KALPETTA ``` ## **`REVISION PETITIONER/APPELLANT/RESPONDENT:`** ``` KIZHAKKAYIL HAMZA HAJI AGED 60 YEARS S/O.ANDRU HAJI, KIZHAKKAYIL HOUSE, KANIYAMBETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT., PIN - 673122 ``` ``` BY ADVS. RAJESH VIJAYAN SIKHA S.NAIR ``` ## **`RESPONDENTS/RESPONDENTS/PETITIONERS:`** ``` 1PUTHIYAPARAMBATH AMMED HAJI AGED 56 YEARS ``` ``` S/O.POKKER, THUNERI AMSOM, MUDAVANTHERI DESOM, VADAKARA TALUK, KOZHIKODE., PIN - 673505 ``` ``` 2CHECHAKANDY RABIYATH AGED 45 YEARS ``` ``` S/O.ABDULLA, CHECHAKANDY HOUSE, EDACHERI AMSOM & DESOM, VADAKARA TALUK, KOZHIKODE., PIN - 673502 ``` ## **`3 PERUVANKUNNINTAVIDA POKKER AGED 51 YEARS`** ``` S/O.MAMMU, PERUVAMKANDY HOUSE, IYYANGODE AMSOM AND DESOM, VADAKARA, KOZHIKODE., PIN - 673504 ``` 2 R.C.(Rev) No. 263 of 2023 ``` 4PERUVANKUNNINTAVIDA MAMI AGED 65 YEARS ``` ``` W/O.KUNJABDULLA HAJI, PERUVANKUNNINTAVIDA HOUSE, IYYANGODE AMSOM AND DESOM, VADAKARA, KOZHIKODE., PIN - 673504 ``` ``` 5PERUVANKUNNINTAVIDA RABIYA W/O.AZEEZ, PERUVANKUNNINTAVIDA HOUSE, IYYANGODE AMSOM AND DESOM, VADAKARA, KOZHIKODE., PIN - 673504 ``` ``` 6NADUVILATH KUNJABDULLA HAJI S/O.SOOPY HAJI, NADUVILATH HOUSE, KUMMANCODE AMSOM AND DESOM, VADAKARA TALUK, KOZHIKODE., PIN - 673504 ``` ``` 7NADUVILATH ALEEMA W/O.KUNJABDULLA HAJI, NADUVILATH HOUSE, KUMMANCODE AMSOM AND DESOM, VADAKARA TALUK, KOZHIKODE., PIN - 673504 ``` ``` BY ADVS. Arun Kumar P BALAGOPALAN P.(K/89/1988) ZUBAIR PULIKKOOL(K/1214/1995) ``` ``` THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 29.02.2024, THE COURT ON 04.04.2024 DELIVERED THE FOLLOWING: ``` 3 R.C.(Rev) No. 263 of 2023 ## **O R D E R** ## G. Girish, J. The tenant is the revision petitioner. He challenged the maintainability of R.C.P.No.21 of 2019 of the Rent Control Court, Kalpetta, and denied the title of the landlord, on the basis of a contention that his wife has got right over a fractional share of the leasehold premises. The challenge in the above regard was repelled by the Rent Control Court and Appellate Authority. It is thus that the petitioner is here before this Court with this revision petition. 2. The respondents-landlords sought eviction of the petitioner-tenant from the petition schedule building consisting of 22 rooms on the ground of arrears of rent and bona fide need for own occupation envisaged under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'). The rental arrangement is said to have commenced on the basis of a rent kaichit executed by the tenant in favour of the landlords on 28.06.2017. The landlords alleged that the tenant committed default in the payment of rent from 01.01.2019 onwards. They also stated that the petition schedule building, in its entirety, is required for them for the purpose of commencement of supermarket business. The tenant resisted the rent control proceedings mainly on the ground of maintainability. According to the tenant, his wife, at first, assigned 10 rooms in the ground floor 4 R.C.(Rev) No. 263 of 2023 of the petition schedule building to the respondents-landlords. The remaining 12 rooms in the ground floor and the entire first and second floors are claimed to have been constructed by the petitioner-tenant and his wife. Thereafter, the petitioner’s wife is said to have assigned 6.25 shares each in that building to the respondents 1 and 6 respectively. Thus the petitioner would contend that his wife is having 87.5% share in the 12 rooms forming part of the petition schedule building. The tenant stoutly denied the execution of rent deed on 28.06.2017 as claimed by the landlords. On the basis of the above challenge raised by the petitioner-tenant, the Rent Control Court considered the preliminary point of denial of title of the landlords and passed the impugned order against the tenant on 15.11.2022. The Appellate Authority, in R.C.A.No.1 of 2023 filed by the tenant, confirmed the finding of the Rent Control Court in the above regard and dismissed the appeal. Challenging the above concurrent findings of the Rent Control Court and the Appellate Authority in the matter of maintainability of this rent control proceedings, and the sustainability of the plea of denial of title of the landlord, the tenant has filed this revision under Section 20 of the Act. 3. Heard the learned counsel for the revision petitioner and the learned counsel for the respondents. 5 R.C.(Rev) No. 263 of 2023 4. The point to be decided is whether the concurrent findings of the Rent Control Court and the Appellate Authority on the plea of denial of title of the landlord, and the matter of maintainability of this rent control proceedings, are liable to be interfered in this revision. 5. The rent kachit relied on by the respondents-landlords, the copy of which was marked as Ext.A1 before the Rent Control Court, was said to have been impounded and sent to the District Collector, due to deficiency of payment of stamp duty. For the above reason, the Rent Control Appellate Authority has refrained from relying on Ext.A1 document relating to the rental arrangement between the landlords and tenant. However, it could be seen from the records that the Rent Control Court as well as the Appellate Authority have placed reliance upon the other evidence adduced by the landlords before the Rent Control Court through the documents marked as Exts.A2 to A13, and arrived at a finding regarding the rental arrangement between the petitioner and respondents. 6. Coming to the issue regarding the denial of title of the landlords over the petition schedule building, it has to be stated that the actual challenge raised by the tenant is not one denying the title of the landlord, but a claim that his wife is also having right of ownership over a fractional share of the petition schedule building. 6 R.C.(Rev) No. 263 of 2023 While admitting the right of ownership of the landlords, over 10 rooms in the ground floor and 12.5% share over the remaining rooms, the tenant would contend that his wife has got right of ownership over the 87.5% share of the 12 rooms which form part of the ground floor, first floor and the second floor. On the basis of the above contention, the petitioner-tenant would dispute the landlordtenant relationship between the respondents and the petitioner. 7. The challenge of the petitioner-tenant in the above regard has been rightly repelled by the Rent Control Court and the Appellate Authority on the basis of the documents brought on record by the landlords before the Rent Control Court. Among the above documents, Ext.A2 is the copy of a sale deed dated 29.10.2008, as per which nine shop rooms forming part of the petition schedule building and one-half share of right of ownership over the remaining portion of the building and appurtenant land, has been transferred by petitioner’s wife to respondents 2, 3 and two others. Thereafter, on 08.07.2009, the petitioner’s wife executed a sale deed transferring her ¼ share out of the one-half share retained over the petition schedule building and appurtenant land to respondents 6 and 7. The copy of the above sale deed is seen marked before the Rent Control Court as Ext.A3. Subsequently, on 25.11.2009, the petitioner’s wife is seen to have executed a sale deed in favour of 7 R.C.(Rev) No. 263 of 2023 respondents 4 and 5, as per which ½ share out of the ¼ share retained by her (1/8 share in total) in the petition schedule building, has been transferred to the aforesaid respondents. The copy of the above sale deed has been marked as Ext.A4 before the Rent Control Court. Out of the remaining 1/8 share (12.5%), which the petitioner’s wife held over the petition schedule building and appurtenant land, she transferred 1/16 share (6.25%) to the 1[st] respondent by virtue of the sale deed dated 18.03.2017, the copy of which is marked as Ext.A5 before the Rent Control Court. Thus, after the execution of Exts.A2 to A5 sale deeds, the right which remained for the petitioner’s wife over the petition schedule building and appurtenant land was only 1/16 share (6.25%). However, it could be seen that the above right of the petitioner’s wife over 6.25% share of the building portion and appurtenant land was sold to the 6[th] respondent by virtue of a sale deed dated 17.03.2017, the copy of which was marked before the Rent Control Court as Ext.A6. Thus, it is apparent from the recitals in the above documents marked as Exts.A2 to A6 that the contention of the petitioner-tenant about the right of ownership of his wife over 87.5% share of 12 rooms forming part of the ground floor, first floor and second floor of the petition schedule building, is devoid of merit. The trial court and the Appellate Authority are seen to have rightly appreciated the 8 R.C.(Rev) No. 263 of 2023 evidence in the above regard and rejected the claim of the petitioner-tenant about the right of ownership of his wife over a fractional share of the petition schedule building and appurtenant land. 8. As regards the standard of proof required in the adjudication of the bona fides of challenge of the tenant against the title of the landlord, it is well-settled that what the Rent Control Court is expected to look into is whether the materials brought on record would be prima facie indicative of the success of the tenant in a civil suit duly instituted before the competent court on the basis of such a plea. 9. The scope of enquiry that is contemplated under Section 11(1) of the Act has been dealt with elaborately in the Division Bench decision of this Court in **Retheesh Chandran A. R. v. Sarojini** **Amma [ILR 2011(1) Ker 193]** . It has been held in the aforesaid decision that the chances of success of the tenant in a civil suit is one of the tests for determining whether the plea of the tenant was bona fide or merely intended to protract the matters. Paragraph 17 of the aforesaid decision which elucidates the scope of enquiry under Section 11(1) of the Act and the mode of proof required to prima facie establish the denial of landlord’s title, is extracted hereunder: 9 R.C.(Rev) No. 263 of 2023 “17. Apart from the above, the nature of the enquiry that is stipulated by the second proviso to Section 11(1) of the Act requires the Rent Control Court to enter a definite finding as to whether the denial of title of the landlord by the tenant was bona fide or not. The scope of the enquiry that is contemplated has been considered by this Court in various decisions. It has been held that the chances of success of the tenant in a civil suit is one of the tests for determining whether the plea of the tenant was bona fide or merely intended to protract matters. In Aboobacker v. Girija [1995 (1) KLT 553], Dhinakar, J. speaking for a Division Bench of this Court has summarised the position in the following passage: "5. In Joseph v. Thomas, [1987 (2) KLT 1029] a Single Judge of this Court while dealing with proviso to Section 11(1) held as follows: "The enquiry conducted by the Rent Control Court is expected to be only in a summary manner. It is for the said reason that the legislature wanted such vexed and intricate questions of title to be determined by the Civil Court in the regular manner. But no tenant should be allowed to compel a landlord to resort to civil suit just because the tenant denied the title of the landlord. A bare statement denying the title is not sufficient to attract the proviso. As per the said proviso, power is given to the Rent Control Court to decide about its own jurisdiction when a tenant denies landlord's title. Such power can be discerned from the words "the Rent Control 10 R.C.(Rev) No. 263 of 2023 Court shall decide whether the denial or claim is bona fide." Thus, Rent Control Court has jurisdiction to decide whether the denial of title is bona fide. Further exercise of Rent Control Court's jurisdiction depends upon the result of the exercise of its initial jurisdiction. "Bona fide" (or good faith) is a familiar term in legal parlance. Honesty, of course is one of the attributes of good faith, but that is not enough. In certain contexts that which is done with due care and attention is said to have been done in good faith. But the word "bona fide when used in relation to jurisdictional permutations, has a wider import and a higher degree than the other two attributes. The aspect of bona fides in the context in which it is mentioned in the proviso may be referable to the state of mind of the tenant. But when a Court has to come to a finding regarding such state of mind, there must be objective satisfaction for Court that the tenant had that state of mind. The Court, whose jurisdiction stands ousted on a finding that a certain plea or assertion made by a party is bona fide, must be in a position to hold that the plea is based on a very fair and reasonable supposition. In holding so, the Court must have the satisfaction that there are strong or atleast substantial grounds or sufficient materials in support of the plea. The Court must be in a position to say that the chances of the plea being upheld by the Civil Court are fairly on the higher side. Then alone the Rent Control Court 11 R.C.(Rev) No. 263 of 2023 is justified in finding that the denial of landlord's title is bona fide." We too are of the view that the Court whose jurisdiction stands ousted must have the satisfaction that there are strong or atleast substantial grounds or sufficient materials in support of the plea of the petitioner and the chances of the plea being upheld by the Civil Court must be fairly on the higher side. In this case we see no such substantial grounds or sufficient materials in support of the plea of the petitioner." (emphasis supplied) 10. In the case on hand, notwithstanding the serious challenge raised by the tenant against the maintainability of the rent control proceedings, and the title of the landlords, there is absolutely no evidence adduced by the tenant before the Rent Control Court in support of the above plea. On the other hand, the evidence adduced by the respondents-landlords through Exts.A2 to A6 would dispel the contention of the tenant regarding the right of his wife over fractional share of the petition schedule building. When viewed in the above perspective, it can only be held that the challenge raised by the tenant in the above regard is totally baseless. 11. Having regard to the discussions aforesaid, the conclusion is irresistible that there is absolutely no scope for any interference with the concurrent findings of the Rent Control Court and the Appellate Authority on the point relating to the denial of title 12 R.C.(Rev) No. 263 of 2023 of the landlord and the maintainability of the rent control proceedings. Needless to say, that this revision can only fail. In the result, this Rent Control Revision fails and the same is accordingly dismissed. (sd/-) (sd/-) **G. GIRISH, JUDGE** jsr/vgd