Mary Raphel and Kennedy v. Anil Kumar and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 09TH DAY OF JULY 2019 / 18TH ASHADHA, 1941** ## **RCRev..No.213 of 2013** **AGAINST THE JUDGMENT DATED 20-12-2012 IN RCA 39/2009 of VI ADDITIONAL DISTRICT COURT AND RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM.** **AGAINST THE ORDER DATED 25-08-2009 IN I.A NO.5595 OF 2009 IN RCP 3/2008 of III ADDITIONAL MUNSIFF COURT AND THE RENT CONTROL COURT, ERNAKULAM.** **PETITIONERS/APPELLANTS/PETITIONERS IN I.A/RESPONDENTS 1 AND 2 IN THE RCP :** **1 MARY RAPHEL, W/O.RAPHEL, VITHAYATHIL HOUSE, DOOR NO.38/542, NEAR VIMALAMBIKA CONVENT, PANAMPILLY NAGAR, ERNAKULAM. 2 KENNEDY, VITHAYATHIL HOUSE, DOOR NO.38/542, NEAR VIMALAMBIKA CONVENT, PANAMPILLY NAGAR, ERNAKULAM.** **BY ADVS. SRI.A.K.MOHAMED ALI SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH SRI.V.S.SHIRAZ BAVA** R.C.R Nos.213 & 214 of 2013 2 **RESPONDENTS/RESPONDENTS/RESPONDENTS NO.1 AND PETITIONERS 3 TO 5 IN THE I.A/ PETITIONER AND RESPONDENTS 3 TO 5 IN THE RCP :** - **1 ANIL KUMAR, S/O.KRISHNAN, THANKAM SREE, VATTAPPALLY LANE, EDAPPALLY, ERNAKULAM DISTRICT.** - **2 RANI GOPI, VITHAYATHIL HOUSE, DOOR NO.38/542, NEAR VIMALAMBIKA CONVENT, PANAMPILLY NAGAR, ERNAKULAM.** - **3 LAILA, VITHAYATHIL HOUSE, DOOR NO.38/542, NEAR VIMALAMBIKA CONVENT, PANAMPILLY NAGAR, ERNAKULAM.** - **4 JAGLIN, VITHAYATHIL HOUSE, DOOR NO.38/542, NEAR VIMALAMBIKA CONVENT, PANAMPILLY NAGAR, ERNAKULAM.** **BY ADVS. SMT.BHAVANA VELAYUDHAN SMT.T.J.SEEMA SRI.S.SANAL KUMAR** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 09.07.2019, ALONG WITH RCRev. NO.214/2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** R.C.R Nos.213 & 214 of 2013 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **&** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 09TH DAY OF JULY 2019 / 18TH ASHADHA, 1941** **RCRev..No.214 of 2013** **AGAINST THE JUDGMENT DATED 20-12-2012 IN RCA 63/2009 of VI ADDITIONAL DISTRICT COURT AND RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM.** **AGAINST THE ORDER DATED IN RCP 3/2008 of III ADDITIONAL MUNSIFF COURT AND THE RENT CONTROL COURT, ERNAKULAM.** ## **PETITIONERS/APPELLANTS/RESPONDENTS 1 AND 4 :** **1 MARY RAPHEL, W/O.RAPHEL, VITHAYATHIL HOUSE, DOOR NO.38/542, NEAR VIMALAMBIKA CONVENT, PANAMPILLY NAGAR, ERNAKULAM.** **2 KENNEDY, VITHAYATHIL HOUSE, DOOR NO.38/542, NEAR VIMALAMBIKA CONVENT, PANAMPILLY NAGAR,ERNAKULAM.** **BY ADVS. SRI.A.K.MOHAMED ALI SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH SRI.V.S.SHIRAZ BAVA** R.C.R Nos.213 & 214 of 2013 4 **RESPONDENTS/RESPONDENTS/PETITOINER AND RESPONDENTS 2, 3 & 5 :** - **1 ANIL KUMAR, S/O.KRISHNAN, THANKAM SREE, VATTAPPALLY LANE, EDAPPALLY, ERNAKULAM DISTRICT.** - **2 RANI GOPI, VITHAYATHIL HOUSE, DOOR NO.38/542, NEAR VIMALAMBIKA CONVENT, PANAMPILLY NAGAR, ERNAKULAM.** - **3 LAILA, VITHAYATHIL HOUSE, DOOR NO.38/542, NEAR VIMALAMBIKA CONVENT, PANAMPILLY NAGAR, ERNAKULAM.** - **4 JAGLIN, VITHAYATHIL HOUSE, DOOR NO.38/542, NEAR VIMALAMBIKA CONVENT, PANAMPILLY NAGAR, ERNAKULAM.** **BY ADVS. SRI.N.K.MOHANLAL SMT.BHAVANA VELAYUDHAN SMT.T.J.SEEMA SRI.S.SANAL KUMAR** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 09.07.2019, ALONG WITH RCRev.NO.213/2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** R.C.R Nos.213 & 214 of 2013 5 A.HARIPRASAD & SHIRCY.V, J J. -------------------------------------- R.C.R Nos.213 & 214 of 2013 -------------------------------------- Dated this the 9th day of July, 2019 ## C O M M O N O R D E R ## A.HARIPRASAD, J These two cases arise out of R.C.P No.3 of 2008 before the Rent Control Court, Ernakulam. One revision is against the order of eviction passed by the Rent Control Court, which is confirmed by the appellate authority under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (in short 'the Act'). The other revision arises out of an order passed by the Rent Control Court on I.A No.5595 of 2009 in R.C.P No.3 of 2008 requesting the Rent Control Court to refer the matter to the Land Tribunal concerned under Section 125(3) of the Kerala Land R.C.R Nos.213 & 214 of 2013 6 Reforms Act, 1963 (in short 'KLR Act') since the revision petitioners claimed “kudikidappu” right in respect of the building in dispute. The request made by the revision petitioners was turned down by the Rent Control Court and the Appellate Authority affirmed the finding of the Rent Control Court. Hence that order is challenged before this Court. 2. Heard the learned counsel for the revision petitioners and respondents. 3. Short facts, required for disposal of the case, are as follows : Respondents are said to be the legal heirs of original tenant in respect of the building. According to the averments in the petition, the residential building scheduled to the petition was let out to the predecessor in interest of the revision petitioners in the month of May 1975 fixing a monthly rent of Rs.100/- for a period of eleven months. After the tenancy arrangement, predecessor in title of the contesting respondent expired and R.C.R Nos.213 & 214 of 2013 7 the landlord's right devolved on the respondents. The revision petitioners kept the rent in arrears. Moreover, the building is required for bonafide occupation of the dependant sister of the eviction petitioner. She has no other place to live and therefore the eviction petitioners/respondents are entitled to evict the revision petitioners under Section 11(3) of the Act. Since it is a residential building, the second proviso to Section 11(3) of the Act has no application. 4. The revision petitioners filed separate counter statements disputing the averments in the petition. They contended that predecessor in title of the contesting respondents put the predecessor in interest of the revision petitioners into possession of the building in the year 1958. The entrustment was in the nature of creating a kudikidappu right defined in Section 2(25) of the K.L.R Act. The arrears of rent claimed is untrue. The bonafide need set up is also a ruse to evict the revision petitioners. R.C.R Nos.213 & 214 of 2013 8 5. The Rent Control Court considered the evidence on record and found that the bonafide need set up is true. It also found that the revision petitioners are liable to be evicted for keeping the rent in arrears. The Rent Control Court dismissed I.A No.5595 of 2009 filed in R.C.P No.3 of 2008 finding that the application was filed on the date when the matter came up for trial and the request for reference was not justified from the pleadings in the counter statement. 6. Learned counsel for the revision petitioners strongly contended that the courts below failed to consider the totality of pleadings and evidence justifying a reference on the issue of kudikidappu rights raised by the revision petitioners under Section 125 (3) of the K.L.R Act. According to them, it has been clearly pleaded that they have kudikidappu right. It is the argument raised by the learned counsel for the revision petitioners that the details regarding the building need not be pleaded as it is a matter to be R.C.R Nos.213 & 214 of 2013 9 proved at the time of considering the issue by the Land Tribunal concerned. 7. Learned counsel for the contesting respondents strongly opposed the plea of kudikidappu raised by the revision petitioners contending that the authorities below are justified in dismissing the plea on the ground of lack of pleadings. It is also pointed out that even in the proof affidavit filed by the revision petitioners, no specific details have been mentioned regarding the right of kudikidappu. 8. In order to claim kudikidappu right, essential things have to be established by the revision petitioners. Let us see the definition of “kudikidappukaran” in Section 2(25) of the K.L.R Act. It is extracted hereunder for convenience : 2(25) “kudikidappukaran” means a person who has neither a homestead nor any land exceeding in extent three cents in any city or major municipality or five cents in any other R.C.R Nos.213 & 214 of 2013 10 municipality or ten cents in any panchayat area or township, in possession either as owner or as tenant, on which he could erect a homestead and - - (a) who has been permitted with or without an obligation to pay rent by a person in lawful possession of any land to have the use and occupation of a portion of such land for the purpose of erecting a homestead; or - (b) who has been permitted by a person in lawful possession of any land to occupy, with or without an obligation to pay rent, a hut belonging to such person and situate in the said land; and “kudikidappu” means the land and the homestead or the hut so permitted to be erected or occupied together with the easements attached thereto : - Explanation I - In calculating the total extent of the land of a kudikidappukaran for the purposes of this clause, three cents in a city or major R.C.R Nos.213 & 214 of 2013 11 municipality, shall be deemed to be equivalent to five cents in any other municipality, and three cents in a city or major municipality or five cents in any other municipality shall be deemed to be equivalent to ten cents in a panchayat area or township. Explanation II - For the purposes of this clause,- - (a) “hut” means any dwelling house constructed by a person other than the person permitted to occupy it - - (i) at a cost, at the time of construction, not exceeding seven hundred and fifty rupees; or - (ii) which could have at the time of construction, yielded a monthly rent not exceeding five rupees, - and includes any such dwelling house reconstructed by the kudikidappukaran in accordance with the provisions of Section 79; and - (b) “homestead” means, unless the context otherwise requires, any dwelling house erected by the R.C.R Nos.213 & 214 of 2013 12 person permitted to have the use and occupation of any land for the purpose of such erection, and includes any such dwelling house reconstructed by the kudikidappukaran in accordance with the provisions of Section 79. - Explanation IIA Notwithstanding any judgement, decree or order of any Court, a person, who, on the 16th day of August, 1968, was in occupation of any land and the dwelling house thereon (whether constructed by him or by any of his predecessors-in-interest or belonging to any other person) and continued to be in such occupation till the 1st day of January, 1970, shall be deemed to be a kudikidappukaran : Provided that no such person shall be deemed to be a kudikidappurkaran - - (a) in cases where the dwelling house has not been constructed by such person or by any of his predecessors-in-interest, if - R.C.R Nos.213 & 214 of 2013 13 - (i) such dwelling house was constructed at a cost, at the time of construction, exceeding seven hundred and fifty rupees; or - (ii) such dwelling house could have, at the time of construction, yielded a monthly rent exceeding five rupees; or - (b) if he has a building or is in possession of any land exceeding in extent three cents in any city or major municipality or five cents in any other municipality or ten cents in any panchayat area or township, either as owner or as tenant, on which he could erect a building. Explanation III. -Where any kudikidappukaran secures any mortgage with possession of the land in which the kudikidappu is situate, his kudikidappu right shall revive on the redemption of the mortgage, provided that he has at the time of redemption no other homestead or any land exceeding three cents in any city or major R.C.R Nos.213 & 214 of 2013 14 municipality or five cents in any other municipality or ten cents in any panchayat area or township, in possession either as owner or as tenant, on which he could erect a homestead. Explanation IV. -Where a mortgagee with possession erects for his residence a homestead, or resides in a hut already in existence, on the land to which the mortgage relates, he shall, notwithstanding the redemption of the mortgage, be deemed to be a kudikidappukaran in respect of such homestead or hut, provided that at the time of the redemption- (a) he has no other kudikidappu or residential building belonging to him, or any land exceeding three cents in any city or major municipality or five cents in any other municipality or ten cents in any panchayat area or township, in possession either as owner or as tenant, on which he could erect a homestead; and R.C.R Nos.213 & 214 of 2013 15 - (b) his annual income does not exceed two thousand rupees. - Explanation V. Where a kudikidappukaran transfers his right in the kudikidappu to another person, such person shall be deemed to be a kudikidappukaran, if - - (a) he has no other homestead or any land in possession, either as owner or as tenant, on which he could erect a homestead; and - (b) his annual income does not exceed two hundred rupees. Explanation VI. -For the purposes of this clause, a person occupying any hut belonging to the owner of a plantation and situate in the plantation shall not be deemed to be a kudikidappukaran if such person was permitted to occupy that hut in connection with his employment in the plantation, unless- - (a) he was, immediately before the commencement of R.C.R Nos.213 & 214 of 2013 16 this Act, entitled to the rights of a kudikidappukaran or the holder of a protected ulkudi or kudikidappu under any law then in force; or - (b) he would have been entitled to the rights of a kudikidappukaran if the area in which that hut is situate had not been converted into a plantation subsequent to his occupation of that hut; Explanation VII. -For the removal of doubts it is hereby declared that a person occupying a homestead or hut situate on a land held or owned by the Government of Kerala or the Government of any other State in India or the Government of India shall not be deemed to be a kudikidappukaran”. 9. It is to be noted that the revision petitioners have no case that they constructed a homestead in the property as permitted by the predecessor in title of the eviction petitioners. Instead, it is their case that R.C.R Nos.213 & 214 of 2013 17 they started residing in a small house (shed) belonging to the predecessor in title of the eviction petitioner. Going by the definition of ''Kudikidappukaran'' in Section 2(25)(b) of the K.L.R Act, the revision petitioners must have been permitted by a person in lawful possession of any land to occupy, with or without an obligation to pay rent, a hut belonging to such person and situated in the said land. In the Explanation to the above Section, hut has been explained as a dwelling house constructed by a person other than the person permitted to occupy it, at a cost, at the time of construction not exceeding seven hundred and fifty rupees or which could have, at the time of construction, yielded a monthly rent not exceeding five rupees. 10. No where in the counter statement, the details of building occupied by the revision petitioners have been mentioned. Actually it is mentioned that they were permitted to occupy a small house by the R.C.R Nos.213 & 214 of 2013 18 predecessor in title of the eviction petitioner in the year 1958. It is also to be noticed that there is no material on record to show that they started occupation of the building in the year 1958, except the oral evidence tendered by the revision petitioners. This aspect has been challenged in cross examination as well as controverted by the eviction petitioners at the time of tendering evidence. 11. It is pointed out by the learned counsel for the contesting respondents that the case of the revision petitioners that they were permitted by Devaki, the predecessor in title of the eviction petitioner, to occupy the building in the year 1958 can only be a falsehood since Ext.A7 deed executed by Devaki's parents in her name was in the year 1959 only. So, there is no material on record available to show that Devaki had title to the property in the year 1958. 12. It is seen from the counter statement that the revision R.C.R Nos.213 & 214 of 2013 19 petitioners were permitted to occupy the small house described in the petition schedule building in the year 1958 indicating that the same structure was in existence at that time. If that be so, the petition schedule building cannot fall within the description of a 'hut' mentioned in Section 2(25) of the K.L.R Act. For this reason also, the plea of kudikidappu does not arise for consideration. Going by the principles laid down in Kesava Bhat v. Subraya Bhat (1979 KLT 766), the question of kudikidappu does not arise in this case in the light of the pleadings and averments in the proof affidavit. The Rent Control Court as well as the Appellate Authority are perfectly justified in declining the request for the revision petitioners to refer the matter to the Land Tribunal concerned. Therefore, revision in that regard has to fail. 13. In the matter of eviction under Sections 11(2)(b) and 11(3) of the Act, the authorities below have considered the evidence correctly to R.C.R Nos.213 & 214 of 2013 20 enter a finding that the revision petitioners have kept rent in arrears and that the bonafide need set up by the eviction petitioners on behalf of their sister is genuine. As mentioned above, since this is a residential building, second proviso to Section 11(3) of the Act does not arise. Having regard to the legal issues involved and the evidence on record, we find no illegality or impropriety in the concurrent decision taken by the authorities below. It is pointed out by the learned counsel for the revision petitioners that they are hailing from the lowest strata of the society and they have no other place to go, if evicted. Considered the argument of the learned counsel for the revision petitioners, we deem it fit to grant one year time to the petitioners to vacate the building on fulfilling the following conditions : Revision petitions are dismissed. Revision petitioners shall file an affidavit within one month from R.C.R Nos.213 & 214 of 2013 21 today unconditionally undertaking to vacate the building within a period of one year from today. Revision petitioners shall pay Rs.100/- (Rupees one hundred only) as rent determined by the Rent Control Court every month until they vacate the premises. If any of the conditions is breached, the landlords/contesting respondents are free to take steps for execution of the eviction order without regard to the time fixed by this Court. All pending interlocutory applications will stand dismissed. A. HARIPRASAD, JUDGE. SHIRCY.V, JUDGE amk