M. Jameela v. K.V. Narayanan

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 RCRev..No. 200 of 2011() -----------------------RCA.50/2009 of RENT CONTROL APPELLATE AUTHROITY PALAKKAD RCP.1/2009 of RENT CONTROL COURT, CHITTUR .................... ## PETITIONER/APPELLANT/RESPONDENT M.JAMEELA, AGED 51 YEARS, W/O.K.SHAHUL HAMED, OWNER OF SONA MEDICALS, OPPOSITE KOLLENGODE POLICE STATION, KOLLENGODE, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR RESPONDENT(S):/RESPONDENT/ PETITIONER K.V.NARAYANAN, S/O.VAYYAPURI MANNADIYAR, AGED 50 YEARS, RESIDING AT KEERTHY, KARNAKI NAGAR, KODUVAYUR AMSOM & DESOM, CHITTUR TALUK, PALAKKAD. ADV. BINOY VASUDEVAN BY MANIKANTAN THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 12/08/2011, THE COURT ON THE SAME DAY PASSED THE ## **PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. -----------------------R.C.R.No. 200 OF 2011 ------------------------** Dated this the 12th day of August, 2011 ## **O R D E R** Pius C.Kuriakose, J. Under challenge in this revision filed by the tenant under Section 20 is the judgment of the Rent Control Appellate Authority confirming the finding entered by the Rent Control Court under the proviso to sub section (1) of Section 11 that the denial of title made by the revision petitioner is not bona fide. 2. The petition schedule building originally belonged to one Unnikrishnan. The tenant concedes that she was inducted into the building by Unnikrishnan as a building tenant. There took place partition in the family of Unnikrishnan and in the above partition the building came to the share of Sri. Murugadas, the son of Unnikrishnan. The tenant concedes that after Murugadas became owner of the property under partition, the tenant treated Murugadas as his landlord and was paying rent to him. The respondent/the petitioner in the rent control RCRNo.200/2011 2 petition is claiming ownership on the basis of a gift deed executed by Murugadas in his favour. Upon execution of the above gift deed, Ext.A2 lawyer notice was sent by the respondent to the petitioner through Advocate P.R.N.Rajajn of Chittur Bar, Palakkad. It is requested in Ext.A2 that the rent in arrears shall be paid and that rent at an enhanced rate should be paid with effect from December 2007. To Ex.A2, the petitioner through his advocate sent a reply, which is marked in the case as Ext.A3. Through the reply notice, the allegation that the rent is in arrears is denied. So also the claim that a higher rate is liable to be paid by way of rent is disputed. In the penultimate paragraph of the reply notice, after reiterating the contention that the revision petitioner is not a wiflul defaulter of payment of rent, it is stated that cheque for Rs.21,000/- towards the rent for 19 months allegedly in arrears drawn in favour of Advocate P.R.N.Rajan is enclosed with instructions '" to make payment to the owner and send a receipt for the same in the name of my client". It will be noticed immediately that upto paragraph 5 of Ext.A3 the claim that the respondent is the owner/landlord is not disputed. But in the last paragraph (paragraph 6) of Ext.A3 it RCRNo.200/2011 3 is contended as follows; "Your client is only a distant relation of Sri.Murukadas and there is no conceivable reason for the execution of a gift deed in favour of Sri.K.V.Narayanan, who is also as well to do man with properties. The document mentioned in your notice apparently and evidently is done with oblique motives and the same is fictitious. My client wants harmonious relationship with the owner and values good will and there is no need for any legal action, which will be duly resisted, if filed and hopefully defeated". 3. A careful reading of the above quoted last paragraph will show that it is in an apologetic manner that the gift deed relied on by the respondent is disputed. The very last sentence in Ext.A3 will indicate that the revision petitioner wanted a harmonious relationship with the owner and wanted to avoid any legal action at any cost. Ext.A3 is followed by yet another RCRNo.200/2011 4 letter from the author of Ext.A2 under instructions from the revision petitioner herself. Along with Ext.A3 the cheque for the rent which fell due after Ext.A2 was sent by cheque enclosed and here again the request is only that the proceeds of the cheque be paid to the owner and he be instructed to send a receipt to the revision petitioner. It is clear to our mind that in Ext.A3 also there is no serious denial of the existence of the landlord tenant relationship. The Rent Control Court in its order formulated the preliminary point, as envisaged by provisos to sub section (1) of Section 11, as to whether the denial of title raised by the revision petitioner is bona fide and decided the same in favour of the landlord. 4. The learned Appellate Authority has passed the impugned judgment considering the appeal preferred by the revision petitioner. The learned Appellate Authority also made a thorough reappraisal of the case referring to various judicial precedents pertaining to the issue including the judgments of the Supreme Court in Devi Das v. Mohan Lal (AIR 1982 SC 1213), Vidhyadhar v. Mankikrao and Another ( AIR 1999 SC 1441) and a Full Bench of this Court in Parthakumar v. Ajith Viswanathan RCRNo.200/2011 5 2006 (2) KLT 250(FB) and a judgment of a Division Bench of this court in Aboobacker v. Girija 1995 (1) KLT 553) and came to the conclusion that this is a case where it has to be held that the denial of title raised by the tenant, the respondent in the rent control petition, is not bona fide. 5. Various grounds are raised in this revision petition assailing the judgment of the Appellate Authority. Smt.Prabha R.Menon, learned counsel for the revision petitioner addressed us extensively. Smt.Prabha submitted, referring to decision that the enquiry contemplated under the provisos to sub section (1) of Section 11 is a summary enquiry. In the present case the statutory authorities, particularly the rent Control appellate authority has gone into the matter in depth and given a verdict against the revision petitioner. According to the learned counsel, the very fact that the learned Appellate Authority found it necessary to go into the matter in depth will show that there was warrant for a full fledged enquiry into the question of denial of title, which is outside the domain of the Rent Control Court. It is only a civil court which can consider the issue in depth. Smt.Prabha submitted that the gift deed relied on by the tenant RCRNo.200/2011 6 is shrouded in suspicious circumstances. The donor is a young man and donee is a senior citizen. The relationship between the donor and donee is not very close. There was every probability that the civil court would have found that gift deed to be fictitious one. The learned counsel submitted that the Authorities below are not correct in observing that the rent was paid to the present respondent. The rent was sent to the advocate who had issued notice on behalf of the present respondent with instructions to pay not to the present respondent, but to the owner. No intimation was sent by Sri.Murugadas , the landlord, to whom the revision petitioner was paying rent regarding gift deed. The revision petitioner was taken by surprise on receiving Ext.A2 which was served by the present landlord. All documents other than Exts.A2 and A3 relied on by the statutory authorities to decide the issue in favour of the respondents are post litem documents which should not have been taken into account. 6. Sri.R.Manikantan, who had lodged a caveat on behalf of the respondent landlord, would oppose all the submissions of Smt.Prabha. Reminding us of the contours of our jurisdiction under Section 20, Mr.Manikantan would submit that there is RCRNo.200/2011 7 absolutely no warrant for interference within the well delineated contours of the present jurisdiction. Referring to and relying on the various decisions referred to by the learned Appellate Authority, particularly the judgment of a Division Bench in Aboobacker v. Girija 1995 (1) KLT 553) , the learned counsel submitted that the issue to be considered is whether on the available materials, it can be held that the revision petitioner has a reasonable chance of success if the issue is relegated to the civil court. According to him, the above issue can be answered only against the revision petitioner. 7. We have anxiously considered the rival submissions addressed at the Bar. We have carefully gone through the judgment of the Appellate Authority as well as the order of the Rent Control Court. We have considered certain items of evidence, to which our attention was drawn by the learned counsel in their submissions, particularly Exts.A2 and A3. It is clear to our mind that there is no warrant for interference with the impugned judgment of the Appellate Authority within the present jurisdiction which is attenuated in nature. The ratio, which emerges from the various decisions cited at the Bar and RCRNo.200/2011 8 relied on by the Appellate Authority, is that when the tenant against whom proceedings are initiated for eviction under the provisions of the Rent Control Act denies the landlord's title, the statutory authorities should be concerned with the existence or otherwise of landlord tenant relationship. The jural status of the revision petitioner in the petition schedule building is that of a building tenant. It is not even contended for a moment that Sri.Murugadas has taken any exception to the gift deed executed by him in favour of the respondent. On the strength of the gift deed Ext.A2 notice demanding higher rent was served. Ext.A3 reply is sent and followed by Ext.A4. We do not find any specific denial of the landlord tenant relationship claimed by the respondent over the building. It is a weak and evasive denial. 8. In rent control jurisprudence the concept of title is not proprietary as known to property law. On the contrary, it is title as landlord or entitled to receive rent or in other words, the existence of a landlord tenant relationship. A reading of the statement of objections filed by the revision petitioner will show that her challenge was directed mostly against the proprietory title claimed by the respondent on the strength of a gift deed. RCRNo.200/2011 9 According to us, the learned Rent Control Appellate Authority which under the scheme of the Act is the final court on facts, was justified in approving the finding of the Rent Control Court which is based on a correct appreciation of the relevant evidence. We also find that the learned Appellate Authority has analysed all the judicial precedents cited at the Bar including the judgment of the Division bench of this Court in Aboobacker v.Girija (1995(1) KLT 553), which in our view throws sufficient light as to how the issue of bonafides of the denial of title under the proviso to subsection (1) of Section 11 should be decided. We don't find any warrant for interference of the judgment of the Appellate Authority. We confirm the same. 9. The learned Rent Control Court is directed to expedite matters and to special list the rent control petition for trial in the earliest available special list. 10. We make it clear that nothing stated by us in this judgment shall cause any prejudice to either party in the adjudication of the grounds raised in this revision petition. Before the learned Rent Controller commences the trial, he shall explore the possibility of an amicable settlement of the issue RCRNo.200/2011 10 between the parties and only when it is seen that settlement is out of question, he should commence trial. **PIUS C.KURIAKOSE,JUDGE** **C.K.ABDUL REHIM, JUDGE** dpk/ksv