Madhusoodanan and Laila v. Saraswathy and Others (RCREV Nos. 270/2014 and 279/2014, Kerala High Court)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA THURSDAY, THE 17[TH] DAY OF NOVEMBER 2022 / 26TH KARTHIKA, 1944** **RCREV. NO. 270 OF 2014** **AGAINST THE ORDER IN RCP NO.21 OF 2006 OF PRINCIPAL MUNSIFF COURT , KOLLAM CONCURRING WITH THE COMMON ORDER IN RCA NO.11 OF 2012 OF II ADDITIONAL DISTRICT COURT & RENT CONTROL APPELLATE AUTHORITY ,KOLLAM REVISION PETITIONERS/APPELLANTS/PETITIONERS:** 1 MADHUSOODANAN AGED 47 YEARS S/O.SAHADEVAN, NOW RESIDING AT KAILAS BHAVAN, MAYYANAD VILLAGE, FROM AJITHA BHAVAN, IRAYIL KIZHAKATHIL, UDAYAMARTHANDAPURAM CHERRY, MUNDAKKAL VILLAGE. 2 LAILA AGED 46 YEARS W/O.MADHUSOODHANAN, RESIDING AT -DO- -DOBY ADV SRI.V.PREMCHAND ## **RESPONDENTS/RESPONDENTS/COUNTER PETITONER:** 1 SARASWATHY AGED 53 YEARS D/O.KUNJUKUTTY, RESIDING AT PARAKKOTTU PADINJATTATHIL, UDAYAMARTHANDAPURAM CHERRTY, MUNDAKKAL VILLAGE. 2 BABY AGED 49 YEARS D/O.KUNJUKUTTY, RESIDING AT PARAKKOTTU PADINJATTATHIL, UDAYAMARTHANDAPURAM CHERRTY, MUNDAKKAL VILLAGE. 3 SATHEESAN AGED 47 YEARS, S/O.THANKAPPAN, RESIDING AT PARAKKOTTU PADINJATTATHIL, UDAYAMARTHANDAPURAM CHERRTY, MUNDAKKAL VILLAGE. RESPONDENTS NO.S 2 AND 3 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 25/05/2022 IN I.A.NO.1/2022 IN RCR.NO.270/2014. BY ADV B.S.SIVAJI THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 17.11.2022, ALONG WITH RCRev..279/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.C.R.Nos. 270 and 279 of 2014 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **THURSDAY, THE 17[TH] DAY OF NOVEMBER 2022 / 26TH KARTHIKA, 1944** **RCREV. NO. 279 OF 2014** **AGAINST THE JUDGMENT DATED 21.02.2012 IN RCOP NO.21 OF 2006 OF PRINCIPAL RENT CONTROL (MUNSIFF) COURT , KOLLAM CONCURRING WITH THE COMMON ORDER IN RCA NO.12 OF 2012 DATED 22.03.2014 OF II ADDITIONAL DISTRICT COURT & RENT CONTROL APPELLATE AUTHORITY ,KOLLAM** ## **REVISION PETITIONERS/RESPONDENTS/PETITIONERS:** 1 MADHUSOODANAN AGED 47 YEARS S/O. SAHADEVAN, NOW RESIDING AT KAILAS BHAVAN, MAYYANAD VILLAGE, FROM AJITHA BHAVAN, IRAYIL KIZHAKATHIL, UDAYAMARTHANDAPURAM CHERRY, MUNDAKKAL VILLAGE. 2 LAILA AGED 46 YEARS W/O. MADHUSOODANAN, RESIDING AT -DO- -DO-. BY ADV SRI.V.PREMCHAND ## **RESPONDENT/APPELLANT/1ST COUNTER PETITIONER:** SARASWATHY AGED 53 YEARS D/O KUNJUKUTTY RESIDING AT PARAKKOTTU PADINJATTATHIL UDAYAMARTHANDAPURAM CHERRY, MUNDAKKAL VILLAGE BY ADV SIVAJI P.S THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ON 17.11.2022, ALONG WITH RCRev..270/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.C.R.Nos. 270 and 279 of 2014 3 **P.B.SURESH KUMAR & C.S.SUDHA, JJ. -------------------------------------------------R.C.R.Nos. 270 and 279 of 2014 ------------------------------------------Dated this the 17[th] day of November, 2022** ## **ORDER** ## **C.S.Sudha, J.** These revision petitions under Sections 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act) have been filed against the common judgment dated 22/03/2014 in R.C.A.No.11/2012 and 12/2012 on the file of the Rent Control Appellate Authority (RCAA), Kollam. The petitioners in both the revisions are the appellants in R.C.A.No.11/2012 and the petitioners in the R.C.P. The respondent herein is the respondent in the aforesaid appeal and the first respondent in the R.C.P. The respondent herein is the appellant in R.C.A.No.12/2012. The parties and the documents will be referred to as described in the R.C.P. 2. R.C.P.No.21/2016 was filed by the petitioners seeking eviction under Section 11(2)(b) and 11(3) of the Act. In the R.C.P, the allegations are as follows: - an extent of 3 cents of property in Mundakkal Village in which an old building bearing number M.C.526 of Kollam Municipality and an incomplete two storied building are situated, was in the absolute ownership and possession of the first respondent. While so, she executed Ext.A1 sale deed dated 25/04/2001 in respect of the property along with the structures therein in favour of the petitioners, who R.C.R.Nos. 270 and 279 of 2014 4 purchased the same with the intention of using it for their residence. After the execution of Ext.A1 sale deed dated 25/04/2001, as requested by the first respondent, the petitioners have as per Ext.A1 rent deed dated 26/04/2001 let out both the aforesaid buildings to the former for a period of three months for her residence. The monthly rent of the building is ₹5,000/-. Thus, the first respondent was put in possession of the premises as a tenant. On 30/05/2001, ₹5,000/- towards one month's rent was paid and receipt obtained from the 2[nd] petitioner. Thereafter, the petitioner has committed default in the payment of rent. Though she was requested to vacate the premises on the expiry of the lease agreement, she has refused to do so. The first respondent initially had taken the old building bearing no.M.C.526 also on rent. However, she kept the same idle and was using the incomplete double storied building alone for her residence. The said old building was thereafter surrendered by the first respondent in September 2001, which was later on demolished by the petitioners. The aforesaid two storied building is the petition schedule building. 2.1. The petitioners after their marriage were residing in the family house of the first petitioner. Due to certain inconveniences in continuing their residence there, they have shifted their residence to a rented building. The petitioners have no buildings of their own for their residence and hence they require the petition scheduled building _bona fide_ for their own occupation. Though the first respondent had agreed to surrender possession of the building by the end of February 2002, she has been delaying the matter and has not surrendered the building so far. When the R.C.R.Nos. 270 and 279 of 2014 5 first respondent started making attempts to sub-let the premises, the petitioners filed O.S.638/2002 before the Munsiff Court, Kollam for restraining her from inducting any strangers into the property and buildings thereon and also from committing any waste. The first respondent entered appearance and filed written statement raising untenable contentions. She has denied the execution of Ext.A1 sale deed, the tenancy arrangement as well as the existence of any landlord-tenant relationship between the parties. The said suit has been decreed as per Ext.A6 decree dated 26/10/2005. In violation of the decree, the first respondent has sublet a portion of the ground floor of the schedule building to her sister, namely, the second petitioner herein and the first floor to the third respondent and his family. As the first respondent is refusing to vacate the building, a lawyer notice was sent to the first respondent demanding the arrears of rent with interest as well as vacant possession of the schedule building for the _bona fide_ occupation of the petitioners. However, the notice was returned with an endorsement that the addressee is out of India. Hence the R.C.P. seeking eviction under Section 11(2)(b) and 11(3). 3. The 2[nd] and the 3[rd] respondent have been set _ex parte_ by the Rent Control Court (RCC). 4. The first respondent entered appearance and filed objection denying the allegations in the R.C.P. The first respondent denied the title of the petitioners over the petition schedule building and contended that Ext.A1 document is a fraudulent one. According to her, the loan of ₹2 lakhs availed by her from the R.C.R.Nos. 270 and 279 of 2014 6 Urban Co-operative Bank was insufficient to complete the construction of the building in the petition schedule property and hence she was constrained to borrow an amount of ₹50,000/- from the first petitioner herein. Taking advantage of the fact that the first respondent is an illiterate lady, the first petitioner made her believe that she was executing a document as security for the loan transaction. Believing the words of the first petitioner, she signed the document, which she later on realised was a sale deed. She denied having executed any rent deed as alleged by the petitioners. The allegation of subletting was also denied. The respondent contended that no landlord-tenant relationship exists between the parties; that she had never executed any sale deed in favour of the petitioners and so the petitioners have not acquired any right, title or interest in the property. Hence the contention was that the petition is not maintainable and hence is liable to be dismissed. 5. The parties went to trial on the aforesaid pleadings. PW1 was examined and Exts.A1 to A16 were marked on the side of the petitioners. The first respondent's daughter was examined as CPW.1. No documents have been marked on the side of the first respondent. The RCC as per order dated 21/12/2012 found the denial of title by the respondent to be not _bona fide_ and proceeded to consider the grounds for eviction under Section 11(2)(b) and 11(3). The ground for eviction under Section 11(3) was rejected and the R.C.P was allowed and eviction allowed under Section 11(2)(b). The petitioners-landlord aggrieved by the rejection of the ground for eviction under Section 11(3), filed R.C.A.No.11/2012. The first respondent filed R.C.R.Nos. 270 and 279 of 2014 7 R.C.A.No.12/2012. The RCAA by the impugned common judgment dated 22/03/2014 dismissed R.C.A.No.11/2012 and allowed R.C.A.No.12/2012. The denial of title has been found to be _bona fide_ and that the petitioners have failed to prove the existence of any landlord-tenant relationship between the parties. The RCAA however made it clear that the petitioners would be entitled to pursue their remedies before the civil court. Aggrieved, the petitioners-landlords have come up in revision. 6. The only point that arises for consideration in these cases is whether the findings of the RCAA suffer from any illegality, irregularity or impropriety. 7. Heard Sri.V.Premchand, the learned counsel for the petitioners and Sri.Sivaji B.S, the learned Counsel for the respondent. 8. As is evident from the contentions contained in the counter filed by the first respondent-tenant, the execution of Ext.A1 sale deed is disputed. It is true that the signature in Ext.A1 sale deed as well as Ext.A4 rent deed is not disputed. However, it is well settled that mere admission of the signature in the disputed documents does not mean admission of the execution of the documents. If any authority is required, see **Kapil Corepacks (P.Ltd), v. Harbans Lal, AIR 2010 SC 2809** . Here is a case where the first respondent takes up a case that she was misled into executing Ext.A1 sale deed. According to her, she signed the deed under the belief that it was a document executed as a security when she borrowed an amount of ₹50,000/- from the first petitioner. Before the filing of the R.C.P. in the year 2016, it R.C.R.Nos. 270 and 279 of 2014 8 is seen that the petitioners herein had filed O.S.No.613/2002, a suit for injunction, for restraining the first respondent from sub-letting the buildings or committing any waste in the said property. Ext.A5 is the plaint in the said suit, which is seen filed before the court concerned on 14/08/2002. Ext.A7 is the copy of the written statement filed by the first respondent in which also she has denied the execution of Ext.A1 sale deed, the lease agreement and has also denied the existence of any landlord-tenant relationship between the parties. She has narrated in detail the circumstances under which she had executed the deeds. Thereafter it is seen that the first respondent was set _ex parte_ and the suit was decreed _ex parte_ as per Ext.A6 decree dated 26/10/2005. The R.C.P. in this case is seen filed on 12/08/2006. The first respondent on 19/07/2010 filed O.S.No.494/2010 against the petitioners herein in which also she has denied the execution of Ext.A1 sale deed. Ext.A11 is the copy of the plaint in the said suit. The allegation in the said suit is that a deed had been executed by her under the impression that she was executing a simple mortgage deed when she had borrowed an amount of ₹50,000/- from the first petitioner. According to her, no sale deed had been executed and so no title had passed to the petitioners by way of execution of Ext.A1. She sought setting aside of Ext.A1 on the ground that it was got fraudulently executed. The petitioners denied the allegations of the first respondent and reiterated their case of sale of the property and the existence of a landlord-tenant relationship between the parties. Ext.A12 is the copy of their written statement. In Ext.A11 plaint the first respondent has also alleged that as she had not R.C.R.Nos. 270 and 279 of 2014 9 repaid the loan availed from the Urban Co-operative Bank, the Bank had initiated proceedings under the SARFAESI Act. The Bank moved the CJM Court, Kollam, for taking possession of the property. The first respondent further alleges that she had thereafter deposited an amount of ₹2 lakhs and then moved this Court by filing W.P. (C)No.16012/2010 seeking permission to pay off the loan amount in installments. This Court in the said proceedings had directed her to repay @ ₹50,000/- per month, pursuant to which, on 05/06/2010 she had paid the amount also. Due to her financial difficulties, she was unable to repay the amount that she had borrowed from the first petitioner. In spite of the fact that the first respondent had produced all evidence to probabilise her case, the learned Munsiff was not inclined to accept her case and hence dismissed the suit as per Ext.A13 judgment dated 18/01/2011. The appeal filed by the first respondent against Ext.A13 judgment and decree is stated to have been allowed and Ext.A11 suit partly decreed. This is stated in paragraph 21 of the impugned judgment. 9. Here we refer to the second proviso to Section 11(1) of the Act which says that when the tenant denies the title of the landlord or claims right of permanent tenancy, the RCC shall decide whether the denial or claim is _bona fide_ and if it records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and such Court may pass a decree for eviction on any of the grounds mentioned in this section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded. When R.C.R.Nos. 270 and 279 of 2014 10 title is denied or permanent tenancy is claimed, the RCC has to conduct an enquiry and record a finding whether the denial or claim is _bona fide_ . If the finding is in the negative, the proceedings can continue. On the other hand, if the finding is in the affirmative involving _bona fide_ dispute on the question of title, it cannot be decided by the RCC. The petitioner will have to sue for eviction in a civil court competent to try the suit. ( **Ponny v. Anthony, 1989 KHC 472** ). 9.1. The proviso is meant for a jurisdictional purpose. As per the said proviso, power is given to the RCC to decide about its own jurisdiction when a tenant denies the landlord's title. Further exercise of the RCC’s jurisdiction depends upon the result of the exercise of its initial jurisdiction. Intricate or vexed questions relating to title cannot normally be left to be decided by tribunals which are created for limited purposes. One of the legislative ideas in creating authorities like RCC and Accommodation Controller is to afford expedient remedies or reliefs to the tenants or landlords in relation to the buildings concerned. The said idea is adumbrated in S.24 of the Act which prescribes a time limit to pass final orders, subject to practical problems. R.11(8) of the Kerala Buildings (Lease and Rent Control) Rules, 1979 says that the Rent Control Court need make only a brief note of the evidence adduced by parties and witnesses. So, 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 ( **Joseph v. Thomas, 1987 KHC 646** ). R.C.R.Nos. 270 and 279 of 2014 11 9.2. It is true that the denial of title of the landlord or claim of permanent tenancy by the tenant does not _ipso facto_ efface the jurisdiction of the RCC to decide the petition for eviction under sub-section (1) of S.11. The essential requisite to attract the said proviso is that such benefit or claim by the tenant shall be _bona fide_ . When such a question is raised by the tenant, the RCC shall decide whether the said denial or claim is _bona fide_ and record a finding thereon. It is only thereafter that the landlord shall be entitled to sue for eviction of the tenant in a civil court ( **Gouthami v. Indira Kunjamma, 1994 KHC 246** ). 9.3. As held by a full Bench of this court in **Partha Kumar v. Ajith Viswanathan, 2006 KHC 520** , Statutory Tribunals -- Rent Control Court and Appellate Authorities, are constituted so that the claims for eviction on specified ground shall be considered summarily and expeditiously. The most important right which a landlord gets under the Act is his right to claim expeditious and inexpensive eviction on specified grounds before the Special Tribunals constituted under the Act. The Act itself specifies the limits of time within which a claim for eviction must be disposed of. The Act takes within its fold only certain classes of cases relating to eviction. The Special Tribunals are constituted only to resolve the limited disputes relating to eviction falling under S.11 of the Act. Existence of landlord- tenant relationship between the contestants is _sine qua non_ for S.11 (2) to 11 (8) to operate and for the Special Tribunals to have jurisdiction. Only when the landlord-tenant relationship in respect of the building exists, does and can the Special Tribunal have R.C.R.Nos. 270 and 279 of 2014 12 jurisdiction to consider a claim for eviction. Summary and expeditious procedure is prescribed for eviction only in cases where the landlord-tenant relationship exists and the dispute regarding eviction is between the landlord and the tenant. Existence of landlord- tenant relationship between the claimant/landlord and respondent/tenant is thus essential to confer jurisdiction on the Rent Control Authorities. If there is admission of such title, the Rent Control Court certainly has jurisdiction to proceed. If that is in dispute, second proviso to S.11(1) comes into play. The Legislature obviously wanted such disputes relating to title of the landlord to be taken outside the sweep of the powers of the Special Tribunals (the Rent Control Court/the Appellate Authority). This is the rationale underlying the second proviso to S.11 (1) of the Act. The Legislature wanted such disputes regarding title/claim of permanent tenancy to be considered only by the regular civil courts which follow exhaustive procedure and not by statutory Tribunals invested with limited jurisdiction to decide the dispute between the landlords and tenants relating to eviction on specified grounds. If the dispute does not fall within the circumscribed zone such dispute must be decided by the regular civil courts following exhaustive procedure. The Special Tribunals cannot be expected to decide such disputes. The legislature therefore felt that only _bona fide_ denial of title or a _bona fide_ claim for permanent tenancy should alone divest the Special Tribunals of their jurisdiction under S.11 of the Act. It is hence stipulated that the denial of title/claim for permanent tenancy must be _bona fide_ . The Tribunal's jurisdiction is only to decide whether the denial of title or claim for permanent R.C.R.Nos. 270 and 279 of 2014 13 tenancy is _bona fide_ . It is not expected to and does not have the jurisdictional competence to enter a finding whether the denial of title is valid or not. Whether the denial of title is _bona fide_ or not has to be decided by the Rent Control Court considering the nature of the contentions raised and the materials placed before it. This is a jurisdictional question and if raised must normally be decided by the Tribunal before assuming jurisdiction. 9.4. As far as the scope of enquiry is concerned, the RCC is expected to do that only in a summary manner. The court must be in a position to say that the chances of the plea being upheld by the civil court is fairly on the higher side. Then alone, the RCC is justified in holding that the denial is _bona fide_ . The court whose jurisdiction stands ousted must have the satisfaction that there are strong or at least substantial grounds or sufficient materials in support of the plea **(Aboobacker v. Girija, 1995 KHC 100)** . 9.5. When a party is relegated to a civil court as per the second proviso to Section 11(1), the landlord can take recourse to the proceedings before a civil court for a decree on the same grounds contemplated under Section 11 of the Act ( **Paranthillatt Aboobacker Haji v. K.E.N. Ahammed, 2017 (4) KLJ 752** ). 10. The dispute involved in the case on hand cannot be resolved by the RCC as the legislature has never intended such questions relating title to be decided by the RCC. The improbability of the existence of landlord-tenant relationship between the parties is writ large from the pleadings and the materials on R.C.R.Nos. 270 and 279 of 2014 14 record. As stated earlier, the case of the petitioners is that they had purchased the property in the year 2001 specifically for their own residence. But immediately thereafter, that is, on the next day of execution of Ext.A1, they have let out the schedule building to the first respondent. Further, according to the petitioners, the first respondent has paid rent only for one month, that is, in May 2001. Thereafter, no rent whatsoever has been paid. Even much before the filing of the R.C.P. in the year 2016, in the several proceedings between the parties, the first respondent has clearly denied the title of the petitioners and set up title in herself. In spite of that till 2016 no steps are seen taken by the petitioners to get the first respondent evicted from the petition schedule building though their specific case is that they purchased the property in the year 2001 for their own residence. Further, the petitioners also have a case that the premises has been sublet to the 2[nd] and the 3[rd] respondents. However, no ground for eviction is seen sought under Section 11(4)(i). In Ext.A5 suit, the petitioners have obtained Ext.A6 decree by which the first respondent has been restrained from subletting the schedule premises to strangers. The allegation in the R.C.P. is that the building has been sub-let in violation of Ext.A6 decree. But no proceedings have been initiated by the petitioners against the first respondent for the alleged violation. Therefore, all these aspects raise doubts regarding the case put forward by the petitioners and probabilises the case of the first respondent. This is a case where the RCC as contemplated under the second proviso to Section 11(1), ought to have considered the plea of denial of title as a preliminary point and given a R.C.R.Nos. 270 and 279 of 2014 15 finding on the same. As rightly found by the RCAA, the denial of title appears _bona fide_ and so the parties need to be relegated to a Civil Court for the resolution of the disputes involved. O.S.494/2010 filed by the first respondent for setting aside Ext.A1 has been dismissed as per Ext.A13 judgment dated 18/01/2011. In appeal, the same has been reversed and the suit partly decreed. It is true that a second appeal is pending before this Court against the said judgment. That cannot be a ground to hold in favour of the petitioners. When the denial is found to be _bona fide_ , the RCC loses its jurisdiction and then the parties will have to be relegated to the Civil Court for the resolution of dispute between the parties. We find no infirmity, illegality or impropriety in the findings rendered by the RCAA warranting an interference. In the result, the Rent Control Revisions are found to be without any merit and hence they are dismissed. Interlocutory applications, if any pending, shall stand closed. **==> picture [430 x 43] intentionally omitted <==** **JUDGE** Jms/10.11