K.P. Geetha v. Fathima Beevi and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR ``` ``` & THE HONOURABLE MRS. JUSTICE SOPHY THOMAS MONDAY, THE 6[TH]DAY OF FEBRUARY 2023 / 17TH MAGHA,1944 ``` ``` RCREV. NO. 33 OF 2023 ``` ``` AGAINST THE JUDGMENT DATED 03.12.2022 IN RCA NO.2 OF 2022 OF VI ADDITIONAL DISTRICT COURT/RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM CONCURRING WITH THE ORDER DATED 05.11.2021 IN RCP NO.210 OF 2018 OF III ADDITIONAL MUNSIFF COURT, ERNAKULAM (RENT CONTROL) ``` ## **`REVISION PETITIONER/APPELLANT/1ST RESPONDENT:`** ``` K.P. GEETHA, AGED 64 YEARS, W/O. K.D. AJAYAGHOSH, 43/17-18 A, KALAVATH CROSS ROAD, CHACKALAKKAL, PALARIVATTOM, ERNAKULAM, RESIDING AT KARUMALI HOUSE, BROTHER'S VILLA, VENNALA, EDAPPALLY SOUTH, KOCHI - 682 028. ``` ``` BY ADVS. SRI.D.G.VIPIN SRI.DANIEL A.J. ``` ## **`RESPONDENTS/RESPONDENTS/PETITIONERS & 2ND RESPONDENT:`** - **`1 FATHIMA BEEVI, AGED 79 YEARS W/O. LATE. KHALID HAJI, RESIDING AT NO.12, APPA GARDENS, KILPAUK, CHENNAI-600 010.`** - **`2 ANWAR, AGED 61 YEARS, S/O. LATE. KHALID HAJI, RESIDING AT NO.14, APPA GARDENS, KILPAUK, CHENNAI - 600 010.`** - **`3 ANSAR, AGED 54 YEARS, S/O. LATE. KHALID HAJI, RESIDING AT NO.14, APPA GARDENS, KILPAUK, CHENNAI - 600 010.`** - **`4 SAKKIR, AGED 50 YEARS, S/O. LATE. KHALID HAJI, RESIDING AT CHENDIYIL HOUSE, ORUMANAYOOR, CHAVAKKADU, CHETTUVA HIGHWAY, THRISSUR,`** RCRev No.33 of 2023 2 ``` PIN 680 514. ``` - **`5 ZABIRA SALI, AGED 55 YEARS, D/O. LATE KHALID HAJI, RESIDING AT ASHIANA, PARAWILLA, PACHALLOOR P.O., TRIVANDRUM - 695 029.`** - **`6 SHAGINA P.M., AGED 47 YEARS W/O. SAKKIR, RESIDING AT CHENDIYIL HOUSE, ORUMANAYOOR, CHAVAKADU, CHETTUVA HIGHWAY, THRISSUR, PIN - 680 514.`** - **`7 AFTAB P.Z., AGED NOT KNOWN TO THE APPELLANT, S/O. SAKKIR, RESIDING AT CHENDIYIL HOUSE, ORUMANAYOOR, CHAVAKADU, CHETTUVA HIGHWAY, THRISSUR, PIN - 680 514.`** - **`8 M/S. ZOOM CARS, 43/1718 A, KALAVATH CROSS ROAD, CHACKALAKAL, PALARIVATTOM, KOCHI - 682 025, REPRESENTED BY ITS MANAGING PARTNER.`** ## **`BY ADV P.MARTIN JOSE(M-580) (CAVEATOR)`** ``` THISRENTCONTROLREVISIONHAVINGCOMEUPFORADMISSIONON 06.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` RCRev No.33 of 2023 3 ## **P.B.SURESH KUMAR & SOPHY THOMAS, JJ.** ## **------------------------------------------RCRev No. 33 of 2023 -------------------------------------------** Dated this the 6[th] day of February, 2023 ## **O R D E R** ## **Sophy Thomas, J.** The 1[st] respondent/tenant in RCP No.210 of 2018 on the file of the Rent Control Court, Ernakulam, filed this revision petition, impugning the judgment of the Rent Control Appellate Authority dated 03.12.2022 in RCA No.2 of 2022. The Rent Control Petition was filed by the legal heirs of the original landlord late Sri. P.O.Khalid Haji, under Sections 11(2)(b), 11(3), 11(4)(i) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (hereinafter referred to as ‘The Act’). 2. The Rent Control Court allowed RCP No.210 of 2018 under Sections 11(2)(b), 11(3) and 11(4)(i) of the Act and disallowed the claim of the landlords under Section 11(4)(ii) of the Act. RCRev No.33 of 2023 4 3. Brief facts can be stated as follows referring the parties according to their status in the Rent Control Petition. 4. The petition schedule building belonged to the predecessor of the petitioners late Sri.P.O.Khalid Haji. The 1[st] respondent took that building on rent for a period of three years from 03.05.1991, for residential purpose and thereafter, he started a small industry in the said building in the name and style ‘Nithin Creation’. On death of Sri.P.O.Khalid Haji, the schedule property devolved upon petitioners 1 to 5. The 1[st] respondent/tenant approached the predecessor in interest of the petitioners, for purchasing the schedule building and the appurtenant land, and accordingly, a sale agreement was executed on 22.05.1994 for a total sale consideration of Rs.17,00,000/-. Thereafter, the 1[st] respondent filed OS No.198 of 1995 before Sub Court, Ernakulam, for specific performance of the sale agreement. That suit was partly decreed allowing the 1[st] respondent to realise the advance sale consideration with interest. He filed EP No.104 of 1999 for executing the decree. In execution, the schedule building and property was put in auction sale, and the 1[st] respondent purchased the same in public auction for a price of Rs.10,00,000/-. Sale was confirmed in her name, and Sale Certificate RCRev No.33 of 2023 5 also was issued. The petitioners filed petition to set aside the sale, but it was dismissed by the Sub Court. This Court set aside the sale in CRP on condition that the petitioners shall deposit Rs.25,00,000/- in addition to the amount already deposited. Accordingly, the petitioners deposited Rs.25,00,000/-. SLP preferred by the 1[st] respondent before the Apex Court was dismissed on 02.02.2016. Thereafter, in EP No.104 of 1999, symbolic delivery of the property including the schedule building was effected in favour of the petitioners on 14.04.2018. 5. Thereafter, the petitioners filed RCP No.210 of 2018 for getting vacant possession of the petition schedule building from the respondents under Sections 11(2)(b), 11(3), 11(4)(i) and 11(4)(ii) of the Act. 6. The 2[nd] respondent is the sub-tenant under the 1[st] respondent and he is _ex parte_ . 7. The 1[st] respondent vehemently opposed the Rent Control Petition, and according to her, by executing the sale agreement, the landlord-tenant relationship ceased to exist between herself and late Sri.P.O.Khalid Haji. She purchased the petition schedule building and the appurtenant land in court auction, and thus RCRev No.33 of 2023 6 she became the absolute owner of that property. So, there was no need to pay any rent thereafter. She continued to be the owner of the schedule building, till the SLP was dismissed by the Apex Court. The _bona fide_ need projected by the petitioners are not correct. They have got their own buildings and the 1[st] petitioner is residing at Chennai and is having two bungalows there. There is no _bona fides_ in her statement that for taking treatment, she has to stay in Kochi. The 1[st] respondent expended huge amounts for improving the building and also the land and she is living with the income derived from the business conducted in that building. 8. During trial, the Rent Control Court examined PWs1 and 2 and RW1, and marked Exts.A1 to A9, B1 to B14, Exts.C1 and C1(a). After analysing the facts and evidence, and on hearing the rival contentions raised by either side, the Rent Control Court found that the landlord-tenant relationship between the petitioners and the 1[st] respondent was subsisting and the respondents were liable to be evicted from the petition schedule building under Sections 11(2)(b), 11(3) and 11(4)(i) of the Act. 9. Aggrieved by the finding of the Rent Control Court, the 1[st] respondent filed RCA No.2 of 2022 before the Rent Control RCRev No.33 of 2023 7 Appellate Authority. The Rent Control Appellate Authority upheld the findings of the Rent Control Court and dismissed the appeal as per impugned judgment dated 03.12.2022. Aggrieved by the same, the 1st respondent/tenant has preferred this revision, invoking the revisional jurisdiction of this Court. 10. Now let us see whether any illegality or impropriety is there in the impugned judgment, warranting interference by this Court. 11. Heard learned counsel Sri.D.G.Vipin appearing for the revision petitioner and learned counsel Sri.Martin Jose appearing for the respondents. 12. The main contention put forward by the revision petitioner is that there is no landlord-tenant relationship between herself and the petitioners and so, the Rent Control Petition was not maintainable. According to her, the landlord-tenant relationship ceased to exist on the date of execution of the sale agreement between herself and late Sri.P.O.Khalid Haji, who was the original landlord. She filed OS No.198 of 1995 before Sub Court, Ernakulam, for specific performance of the sale agreement, and it was allowed in part granting a decree for realisation of the advance amount with RCRev No.33 of 2023 8 interest. In execution, she purchased the schedule property in public auction for an amount of Rs.10,00,000/-. Though sale was confirmed and Sale Certificate was issued in her favour, subsequently, this Court set aside the sale in CRP on condition to deposit Rs.25,00,000/- in addition to the amount already deposited. The petitioners/landlords deposited that amount and the revision petitioner/tenant received that amount also. SLP preferred by the revision petitioner was also dismissed and symbolic delivery of the schedule property and the building was handed over to the petitioners. So at present, the sale agreement has no relevance, as it was superseded by a decree and the decree was also satisfied. So the tenant cannot claim any right on the basis of the above agreement for sale, any more. 13. The revision petitioner is relying on the decision **R.Kanthimathi and Others vs. Beatrice Xavier** of the Apex Court reported in [(2000) 9 SCC 339] to say that when an agreement for sale was executed between the landlord and tenant regarding the tenanted premises, it will put an end to the landlord-tenant relationship. But on going through the facts of that case, it could be seen that it has no bearing with the facts involved in the case on hand. In **Kanthimathi’s** case cited ( _Supra_ ), there was clear evidence RCRev No.33 of 2023 9 confirming delivery of possession in connection with the sale agreement, which constituted clear intention of the landlady for entering into a new relationship with the tenant. The recitals in the sale agreement were also sufficient enough to show that the word “already been surrendered” has been incorporated with consciousness, as the landlady had received major amount of sale consideration. Normally, if substantial sum is received by the seller, the purchaser will be put in possession of the property, and hence to fall in the same lines, the words “already been surrendered” were used to confirm possession in that context. ## 14. In **Andrews V.M. vs. Daisy Punnan and Others** [2016 (2) KHC 37], this Court held that merely because the tenant entered into an agreement for sale with the landlord, their status will not change, and in spite of agreement for sale entered into between the landlord and tenant, they will continue to be landlord and tenant as the agreement for sale will not confer any title on the tenant. ## 15. In **Chandran v. Harinarayanan** [2017 (2) KHC 255], a Division Bench of this Court held that while executing an agreement for sale by the landlord with the tenant, who is occupying the room on the basis of a rent agreement, and paying advance sale consideration, RCRev No.33 of 2023 10 what is relevant is the intention of the parties, as discernible from the agreement for sale. In the absence of any specific stipulation in the agreement for sale, putting the tenant in possession or permitting his continuation of possession, based on the sale agreement, the tenant can only be said to be enjoying possession in his original capacity as a tenant, in accordance with the stipulation in the rent agreement. Therefore, it is clear that only when possession of the property already held, in pursuance of a separate transaction that is to say a lease agreement is stipulated by the terms incorporated in the contract of sale, later entered among them as continued with and some positive acts have been performed by the parties in furtherance of the terms so agreed therein or expressed his readiness to perform his part, then alone he would be entitled to seek the defence under the doctrine of part performance. 16. In the case on hand, the sale agreement alleged to have been executed between the landlord and tenant is not produced by the revision petitioner to verify whether there was any stipulation in the sale agreement putting the tenant in possession or permitting him to continue in possession as part of the sale agreement and in its absence, it could be gathered that, in spite of execution of the sale RCRev No.33 of 2023 11 agreement, the tenant continued possession, in his capacity as the tenant, as per the original lease deed. Nothing is brought out from the part of the revision petitioner to prove it otherwise. So the contention of the revision petitioner that there was no landlord-tenant relationship between herself and the petitioners/landlords is given a go by. Regarding the grounds of eviction under Sections 11(2)(b), 11(3) and 11(4)(i) of the Act, this Court finds no reason to interfere with the concurrent findings of the Rent Control Court as well as the Rent Control Appellate Authority. So the revision petition is liable to be dismissed. 17. Considering the peculiar facts and circumstances of this case, the revision petitioner is granted six months time to vacate the schedule building on condition that he has to file an affidavit before the Rent Control Court, within a period of two weeks from the date of receipt of a copy of this judgment undertaking to surrender vacant possession of the premises on or before 06.08.2023. There shall be a further condition that the revision petitioner shall pay the entire arrears of rent, if any remaining unpaid, and shall continue to pay the rent without any delay or default, within the due date, until vacant possession is surrendered to the landlord. In the event of the revision RCRev No.33 of 2023 12 petitioner committing default in complying with any of the above conditions, the benefit of the directions given in this order shall stand forfeited, and the landlord shall be at liberty to pursue further proceedings in accordance with law. In the result, the Rent Control Revision is dismissed. The pending Interlocutory Applications, if any, shall stand closed. Sd/- **P.B.SURESH KUMAR JUDGE** Sd/- **SOPHY THOMAS JUDGE** DSV/07.02.2023