Kuttappan Achary v. Roy Zacharia

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR TUESDAY, THE 3RD DAY OF OCTOBER 2017/11TH ASWINA, 1939 RCRev..No. 273 of 2016 () -------------------------- RCP 5/2010 of MUNSIFF COURT,MAVELIKKARA RCA 6/2013 of ADDL.DISTRICT COURT,KAYAMKULAM ## REVISION PETITIONER/RESPONDENT/RESPONDENT.: -------------------------------------------------------------------------- KUTTAPPAN ACHARY AGED 73 YEARS, S/O MADHAVAN ACHARI, MADHAVA NIVAS, CHIRAKKADAVU MURI, KAYAMKULAM VILLAGE, PIN-690502. BY ADVS.SRI.G.ANANTHANARAYANAN SRI.K.GOPALAKRISHNAN UNNITHAN SRI.S.SOMAN RESPONDENT/APPELLANT/PETITIONER.: ----------------------------------------------------- ROY ZACHARIA, AGED 51 YEARS, MANANGNAZHIKATHU, KAYAMKULAM MURI, KAYAMKULAM VILLAGE, REP. BY POWER OF ATTORNEY HOLDER SUJA ROY, W/O ROY ZACHARIA, MANANGNAZHIKATHU, KAYAMKULAM MURI, KAYAMKULAM VILLAGE, PIN-690502. R1 BY ADV. SRI.A.SHAFEEK (KAYAMKULAM) THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03-102017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **C.T.RAVIKUMAR & B.SUDHEENDRA KUMAR, JJ.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - R.C.R. No.273 of 2016 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 3[rd] day of October 2017 ## O R D E R ## **Sudheendrakumar J.,** The revision petitioner is the tenant in R.C.P. No.5 of 2010 on the files of the Rent Control Court, Kayamkulam. 2. The rent control petition was filed under Sections 11(2)(b) and 11(3) of the Kerala Building (Lease and Rent Control) Act, 1965 (for short 'the Act'). 3. For the sake of convenience, the parties are referred to as 'landlord' and 'tenant' in this judgment. R.C.R. No.273 of 2016 2 4. The landlord contended that the shop room bearing No.9/470 and a shed bearing No.9/467 situated in 7.25 ares of land in Resurvey No.65/40 of Kayamkulam village belong to the landlord. The landlord executed Ext.A6 Power of Attorney in favour of his wife. Originally, the property belonged to Shri.Skaria Kathanar Thomas. He executed Ext.B1 consent deed in favour of Shri.Madhavan Achari, who was the father of the tenant, on 29.6.1922. As per the said deed, Shri.Madhavan Achari was permitted by Shri.Skaria Kathanar Thomas to use the chetta pura, peedika thara and the land having an extent of 15 sq.feet behind the said structures for ground rent of two chakras. Shri.Skaria Kathanar Thomas filed O.S. No.156 3 R.C.R. No.273 of 2016 of 1967 before the Munsiff Court, Krishapuram against the wife and children of the brother of the landlord, namely, Philipose. After the death of Scaria Kathanar Thomas, the rent was paid to Annamma and thereafter, to Philipose. The suit was filed for eviction of Madhavan Achary by the father of the landlord herein. The said suit was decreed as per Ext.A8 compromise decree. Thereafter, the tenant executed Ext.A1 agreement on 23.6.1969. 5. The above Rent Control Petition was filed for eviction of the tenant on the ground of arrears of rent and _bonafide_ need. 6. The tenant filed objection mainly challenging the landlord-tenant relationship. The tenant also claimed that R.C.R. No.273 of 2016 4 he is entitled to fixity of tenure and hence, he is entitled to protection under Section 106 of the Kerala Land Reforms Act (for short 'the K.L.R. Act'). 7. No oral evidence was adduced by both sides. On the basis of the documents produced, the Rent Control Court found that the tenant is entitled to fixity of tenure and hence, the parties were referred to Civil Court. The Rent Control Appellate Authority set aside the order passed by the Rent Control Court and remitted the matter to the Rent Control Court for considering the claim of the landlord for eviction under Sections 11(2)(b) and 11(3) of the Act. ## 8. We have heard both sides. R.C.R. No.273 of 2016 5 9. Now the only question to be considered is as to whether the tenant is entitled to fixity of tenure as provided under Section 106 of the K.L.R. Act. 10. Admittedly, a building with a chettapura and a peedikathara along with the land had been given on rent to the predecessor-in-interest of the tenant by the predecessor of the landlord. The predecessor of the tenant was permitted to use and make additional construction on the said land for his purpose. 11. This court in Abdul Rahiman v. Iype (1965 KLT 247) lucidly considered the provisions of Section 106 of the K.L.R. Act and held that within the purview of Section 106 read with Section 3(1)(iii) of the K.L.R. Act, leases R.C.R. No.273 of 2016 6 relating to lands on which after the grant of lease, building for industrial or commercial purposes was constructed by the lessee before 20.5.1967 alone would cover. It was further held by the Division Bench in Abdul Rahiman (supra) that two types of leases viz., leases of building and leases of building together with land, are not entitled to protection against eviction under Section 106 of the K.L.R. Act. 12. The Apex Court in Chandy Varghese v. Abdul Khader [2003(3) KLT 553] approved the principle enunciated in Abdul Rahiman (supra). Now the position is that unless it is shown that the subject matter of lease for commercial or industrial purposes was the land alone, R.C.R. No.273 of 2016 7 Section 106 of the K.L.R.Act would have no application. Since the lease in this case was admittedly a lease of land with building, the protection under Section 106 of the K.L.R. Act will not be available to the tenant. For the said reason, the tenant/revision petitioner is not entitled to protection under Section 106 of the K.L.R. Act. 13. There is yet another reason to hold that the tenants are not entitled to fixity of tenure. The tenants denied the landlord-tenant relationship in his objection. It is elementary that in order to get the benefit under Section 106 of the K.L.R. Act, there should be landlord-tenant relationship. This would mean that the tenant should admit the landlord-tenant relationship to plead for fixity of R.C.R. No.273 of 2016 8 tenure. Since the tenant did not admit the landlord-tenant relationship, the tenant is not entitled to get the protection under Section 106 of the K.L.R. Act. The above denial of landlord-tenant relationship coupled with the plea that the tenant is entitled to fixity of tenure, would lead to the only inference that the denial of the landlord-tenant relationship is not _bonafide._ 14. The upshot of the above discussion is that the Rent Control Appellate Authority was perfectly right in holding that the tenant is not entitled to the protection under section 106 of the K.L.R. Act. The Rent Control Appellate Authority therefore rightly remitted the matter to the Rent Control Court to consider the petition for eviction under R.C.R. No.273 of 2016 9 Section 11(2)(b) and 11(3) of the Act, in accordance with law. We find no reason to interfere with the finding of the Appellate Authority. In the result, this R.C.R. stands dismissed. In the circumstances of the case, there is no order as to costs. Transmit the records to the Rent Control Court forthwith. **Sd/-** **C.T.RAVIKUMAR,** **JUDGE** Sd/- **B.SUDHEENDRA KUMAR, JUDGE** _dl/4.10.17_ _// True Copy //_ _PA to Judge_