M/S Mahmood Stores & Ors v Abdul Kariam Sait & Ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 12[TH] DAY OF DECEMBER 2022 / 21ST AGRAHAYANA,** ## **1944** **RCREV. NO. 352 OF 2019** **AGAINST THE JUDGMENT DATED 30.03.2019 IN RCA NO.22 OF 2015 OF THE RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM CONCURRING WITH THE COMMON ORDER IN RCP NO.59 OF 2014 DATED 19.02.2015 OF THE III ADDITIONAL MUNSIFF AND RENT** **CONTROL COURT, ERNAKULAM** ## **REVISION PETITIONER/APPELLANTS/RESPONDENTS:** - **1 M/S.MAHMMOD STORES,** **CLOTH BAZAR ROAD, ERNAKULAM, REPRESENTED BY ITS MANAGING PARTNER., M.IBRAHIMKUTTY, AGED 64 YEARS.** - **2 M.IBRAHIMKUTTY, AGED 64 YEARS BROADWAY, ERNAKULAM.** - **3 M.JABBAR,** **AGED 57 YEARS** - **S/O.P.C.MAHMOOD, M/S.MAHMOOD RUFFER ENTERPRISES, CLOTH BAZAR ROAD, ERNAKULAM.** **BY ADVS. GEORGE POONTHOTTAM (SR.) NISHA GEORGE VISHNU B.KURUP** R.C.Rev No.352 of 2019 2 ## **RESPONDENTS/RESPONDENTS/PETITIONERS:** - **1 ABDUL KARIAM SAIT, AGED 59 YEARS S/O.HAJI NOOR MUHAMMED SAIT, 42/2260, B-4, JEWELS PARK, PROVIDENCE ROAD, ERNAKULAM-682018.** - **2 MUHAMMED JAMAL, AGED 56 YEARS S/O.HAJI NOOR MUHAMMED SAIT, 42/2260, B-4, JEWELS PARK, PROVIDENCE ROAD, ERNAKULAM-682018.** - **3 MOHAMMED IRFAN, AGED 39 YEARS S/O.ABDUL GAFFAR SAIT, 42/2260, B-3, JEWELS PARK, PROVIDENCE ROAD, ERNAKULAM-682018.** **BY ADVS. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.P.U.VINOD KUMAR SRI.AVINASH P RAVEENDRAN SMT.ARYA RAGHUNATH SMT.KADIJA JASMINE** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 12.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.Rev No.352 of 2019 3 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ. -----------------------------------------------** ## **R.C.Rev. No.352 of 2019** ## **-----------------------------------------------** ## **Dated this the 12[th] day of December, 2022.** ## **O R D E R** ## **P.B.Suresh Kumar, J.** Respondents in a proceedings for eviction of a building under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act) are the petitioners in this revision petition. The Rent Control Court ordered eviction of the petitioners, and the decision of the Rent Control Court was affirmed in appeal. It is aggrieved by the concurrent decisions of the authorities below that this revision petition under Section 20 of the Act is preferred. Parties are referred to in this order for convenience, as they appear in the proceedings for eviction. 2. The subject matter of the proceedings is a building situated in an item of land measuring 496 square links in Survey No.1109 of Ernakulam Village. The case of the R.C.Rev No.352 of 2019 4 petitioners is that the land referred to above is part of the 25 cents obtained by one Asmabi on ground rent basis as per patta No.14 from the Diwan Peshkar of the erstwhile Cochin State for the development of the town in and around Broadway; that there was a partition among the legal representatives of Asmabi on her death; that the subject building was allotted in the said partition to the share of one Babu Sait; that Babu Sait sold the property to one K.V.George in the year 1997; that K.V.George sold the property in turn to Tony Mathew in the year 1998; that Tony George sold the property back to K.V.George in the year 1999 and that the petitioners have purchased the property from K.V.George in the year 2002. It is also the case of the petitioners that the predecessor of respondents 2 and 3 was the tenant under Asmabi in the building constructed by her in the said land and on his death, respondents 2 and 3 are running a business in the building in partnership, in the name and style M/s.Mahmood Stores. The first respondent is the partnership of respondents 2 and 3. It was alleged by the R.C.Rev No.352 of 2019 5 petitioners in the eviction petition that the third petitioner intends to start a textile business in the building and that even though the respondents were required to surrender the building for the said purpose, they refused to do so. It is on that premise that the eviction petition was instituted. 3. The respondents filed a counter statement contending, among others, that the land on which the building referred to in the eviction petition is constructed belongs to the Government; that neither the petitioners nor their predecessors have any right over the said land; that the predecessor of respondents 2 and 3 and thereafter respondents 2 and 3 have been in possession of the land for more than 60 years and that the respondents are not the tenants of the building as alleged by the petitioners. It was also contended by the respondents in the counter statement that the need projected by the petitioners in the eviction petition is not _bona fide_ and that at any rate, respondents are entitled to the benefit of the first and second provisos to Section 11(3) of the Act. R.C.Rev No.352 of 2019 6 4. Earlier on 02.05.2005, on an application preferred by the second respondent, the District Collector, Ernakulam issued an order assigning the land on which the building is situated to the second respondent on the basis that the same is a Government land and that the second respondent is in possession of the same for more than 60 years. The petitioners challenged the said order in W.P.(C) 20734 of 2005 before this Court, and the same was allowed setting aside the impugned order. The decision of this court in W.P.(C) No.20734 of 2005 was affirmed by the Division Bench in W.A.No.647 of 2009. It is thereafter, that the present eviction petition was instituted. 5. On the side of petitioners, the third petitioner, for whose need the building is sought to be evicted, was examined as PW1 and the immediate predecessor of the petitioners K.V.George was examined as PW2. Exts.A1 to A29 are the documentary evidence produced by the petitioners, of which Exts.A1 to A5 are the title deeds of the petitioners and R.C.Rev No.352 of 2019 7 their predecessors in respect of the land on which the subject building is situated, Ext.A6 is the true extract of the counterfoil of a receipt issued to K.V.George for payment of land tax showing Asmabi as the title holder, Ext.A7 is the certified extract of page No.84 of the property tax assessment list of the Corporation of Cochin for the years 1971-1976 where the owner of the building is shown as Asmabi and the first petitioner is shown as the occupier/tenant of the building, Exts.A8 to A12 are similar documents of the subsequent years, Ext.A13 is a similar document in which K.V.George is shown as the owner of the building, Exts.A14 to A18 are receipts evidencing payment of property tax in respect of the building, remitted by K.V.George, Ext.A19 is the carbon copy of a rent receipt which according to the petitioners, evidences payment of rent in respect of the building by the second respondent to K.V.George, Exts.A22 to A25 are receipts evidencing payment of property tax in respect of the building by the petitioners, Ext.A26 is the judgment in W.P.(C) No.20734 of 2005 and R.C.Rev No.352 of 2019 8 Ext.A27 is the judgment in W.A.No.647 of 2009, in terms of which Ext.A26 judgment was affirmed. 6. On the side of the respondents, the third respondent gave evidence as RW1 and the Advocate Commissioner appointed in the proceedings was examined as RW2. Exts.B1 series and B2 series are the documentary evidence adduced on the side of the respondents. Ext.C1 is the report of the Advocate Commissioner. 7. In the light of the contentions taken by the respondents in the counter statement, the main question formulated for decision by the Rent Control Court was whether the denial of title of the petitioners by the respondents is _bona fide_ . On an elaborate consideration of the evidence on record, the Rent Control Court found that the denial of title of the petitioners by the respondents is not _bona fide_ . Thereupon, the Rent Control Court proceeded to consider the question whether the need set out by the third petitioner for eviction is _bona fide_ and also the question whether the respondents are entitled to R.C.Rev No.352 of 2019 9 the benefit of the first and second provisos to Section 11(3), and answered the said questions also in favour of the petitioners and it is on that basis, eviction of the respondents was ordered. It is the said decision that was affirmed in appeal by the Appellate Authority. 8. The learned counsel for the respondents persuasively contended that there is no material whatsoever on record for the Rent Control Court to make an inference that there is landlord-tenant relationship between the parties. It was pointed out that no evidence was let in by the petitioners to show that rent has been paid by the respondents to the petitioners or to their predecessors at any point of time. It was argued by the learned counsel that no credence whatsoever can be given to Ext.A19 carbon copy of the rent receipt allegedly signed by the second respondent, for such a document being only secondary evidence, the same ought not have been permitted to be let in by the Rent Control Court without a notice as mentioned in Section 66 of the Indian R.C.Rev No.352 of 2019 10 Evidence Act. Even otherwise, in the absence of any explanation from the petitioners as to their inability to produce any other rent receipt for the last 70 years, no sanctity can be attributed to Ext.A19, submits the counsel for the respondents. It was pointed out that existence of landlord-tenant relationship is necessary for the Rent Control Court to exercise its jurisdiction. It was also pointed out by the learned counsel that the patta stated to have been obtained by Asmabi does not confer on her title to the land on which the subject building is situated. As regards Exts.A26 and A27 judgments, it was argued by the learned counsel that the only point examined in those cases was the sustainability of the order of assignment and the same does not in any manner help the petitioners to assert that there exists landlord-tenant relationship between the parties. Similarly, it was also argued by the learned counsel that the payment of property tax in respect of the building by the petitioners and their predecessors also does not lead to the inference that there is landlord-tenant relationship between the R.C.Rev No.352 of 2019 11 parties. In short, the submission made by the learned counsel for the respondents is that the materials on record would show beyond doubt that the denial of title of the petitioners by the respondents is _bona fide_ and that the authorities below ought to have, therefore, relegated the parties to the civil court for adjudication of the dispute as to the title, before considering the case of the petitioners for eviction of the respondents from the subject building. 9. Per contra, the learned counsel for the petitioners supported the impugned orders of the authorities below placing reliance mainly on Ext.A26 judgment of this court in W.P.(C) No.20734 of 2005 and Ext.A27 judgment of the Division Bench affirming the same. The learned counsel has also relied on Ext.A19 carbon copy of the rent receipt to reinforce the said stand. According to the learned counsel, in the absence of any evidence from the second respondent, that the signature allegedly put in by him in Ext.A19 is not his signature, the authorities below cannot be found fault with for R.C.Rev No.352 of 2019 12 having placed reliance on the same in the matter of considering the question as to the bona fides of the denial of title of the petitioners by the respondents. 10. We have examined the arguments advanced by the learned counsel for the parties on either side. We have also perused the records of the case. 11. In terms of the second proviso to Section 11(1) of the Act, in a given case where the tenant denies the title of the landlord, the Rent Control Court is bound to decide whether such denial is _bona fide_ and if the Rent Control Court records a finding to that effect, the parties are to be relegated to the civil court to decide the dispute between them as to the title, before considering the claim of the landlord for eviction. It is therefore the finding that is rendered by the Rent Control Court as to the _bona fides_ of the denial of title of the landlord by the tenant that gives jurisdiction to the Rent Control Court to proceed with the claim of the landlord for eviction of the tenant. The authorities under the Act ought not decide the title in dispute R.C.Rev No.352 of 2019 13 between the parties, rather their function is only to ascertain whether denial of title is _bona fide._ In **Mariamma and Another v. Chinnamma John,** 2015 (2) KHC 226, the Division Bench of this Court held that a _prima facie_ case of _bona fide_ denial of title should be strong enough, no matter in whatever way it is projected, so as to dissuade the Court from proceeding further to adjudicate on rival issues as to the title. As noted, the first and foremost question to be considered in the case on hand is the question as to whether the denial of the title of the petitioners as landlords by the respondents is _bona fide_ . The question aforesaid, according to us, is a pure question of fact to be answered based on the materials on record. 12. Before proceeding to examine the question aforesaid, it is necessary to understand the scope of the jurisdiction of this Court under Section 20 of the Act. Section 20 of the Act reads thus: **20. Revision.** - (1) In cases where the appellate authority empowered under section 18 is a Subordinate Judge, the District Court, and in other cases the High Court, may, at any time, on the application of any aggrieved party, call for and examine the R.C.Rev No.352 of 2019 14 records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto as it thinks fit. (2) The costs of and incident to all proceedings before the High Court or District Court under sub-section (1) shall be in its discretion. ## In **Rukmini Amma Saradamma v. Kallyani Sulochana,** (1993) 1 SCC 499, the Apex Court has held, placing reliance on the word “propriety” used in the Section, that the High Court exercising power under Section 20 of the Act cannot reappreciate the evidence and come to a different conclusion on a question of fact and that the revisional court can come to a different conclusion only by confining itself to legality, regularity and propriety of the order impugned before it. The view taken by the Apex Court in **Rukmini Amma Saradamma** has been approved by a Bench consisting of five Judges of the Apex Court in **Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh** , (2014) 9 SCC 78. Paragraph 43 of the said judgment reads thus: R.C.Rev No.352 of 2019 15 “43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the first appellate court/first appellate authority because on reappreciation of the evidence, its view is different from the court/authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the court/authority below is according to law and does not suffer from any error of law. A finding of fact recorded by court/authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or R.C.Rev No.352 of 2019 16 ## irregularity.” As evident from the extracted passage, only findings of facts which are perverse or has been arrived at without consideration of the material evidence, or findings which are based on no evidence or misreading of the evidence, or findings which are grossly erroneous and the same, if allowed to stand, would result in gross miscarriage of justice, alone are amenable for correction, in exercise of the revisional jurisdiction of this Court under Section 20 of the Act. 13. Let us now examine the question aforesaid keeping in mind the principles as to the limitations of the jurisdiction of this court under Section 20 of the Act. It is now settled that a mere denial of landlord-tenant relationship in all circumstances, would not oust the jurisdiction of the Rent Control Court. The denial of landlord-tenant relationship that arises out of denial of title of the landlord alone would fall under Section 11(1)[See **Satheesh Kumar and Another v. K.Balasubramanian,** 2021 (2) KHC 483]. As far as the case on hand is concerned, as noted, the specific case of the petitioners R.C.Rev No.352 of 2019 17 as regards their title to the land on which the building in the occupation of the respondents is situated is that the same is part of the 25 cents obtained by one Asmabi on ground rent basis from the Diwan Peshkar of the erstwhile Cochin State and that they have acquired the same from the successor of Asmabi. Exts.A1 to A5 title deeds produced on the side of the petitioners would establish that the petitioners are the successors of Asmabi who obtained the 25 cents on ground rent basis from the erstwhile Cochin State. Ext.A6 tax receipt shows that as per the revenue records, Asmabi is shown as the title holder of the property. Ext.A26 judgment in W.P.(C) No.20734 of 2005 was rendered based on the earlier judgment of this Court in O.P.No.22270 of 1998 and connected cases and also the judgment in S.A.No.1217 of 1974. In Ext.A26 judgment, this Court accepted the case of the petitioners that they have title to the land over which the building in the occupation of the respondents is put up and the Government does not retain any right over the same. The fact that Ext.A26 R.C.Rev No.352 of 2019 18 judgment has become final and binding _inter partes_ is not disputed. In other words, in the light of Ext.A26 judgment, the respondents are precluded from contending that the petitioners do not have title to the land. 14. The next question is as to whether there exists a landlord-tenant relationship between the parties. As noted, in this regard, the case set out by the petitioners in the eviction petition is that the predecessor of respondents 2 and 3 was the tenant under Asmabi and on his death, respondents 2 and 3 are running a business in the building in partnership in the name and style M/s.Mahmmod Stores. The respondents have no case in the counter statement as to how they came into possession of the property. In the chief examination, it was however stated by the third respondent that the land being one held by the Government, his predecessor trespassed into the land and put up the building which is now in existence after removing a shed that existed therein. As noted, in Exts.A7 to A13 extracts of the property tax assessment list of the R.C.Rev No.352 of 2019 19 Corporation of Cochin for the period from 1971, the predecessors of the petitioners are shown as the owners of the building and the first respondent is shown in all the documents only as the occupier/tenant of the building. As rightly observed by the authorities below, if the entries in the said public documents are incorrect and if the respondents are the owners of the building, what is expected from them is to take some steps to correct the same. Admittedly, the respondents have not taken any steps to correct the entries in the property tax assessment list maintained by the local authority. That apart, Exts.A14 to A18 and Exts.A21 to A25 are receipts evidencing payment of property tax in respect of the building remitted by K.V.George and the petitioners. The aforesaid documents, according to us, would demolish the case of the respondents that the building is one put up by them. The moot question is, in what capacity the respondents are occupying the building. Ext.A19 is the carbon copy of a rent receipt, which according to the petitioners evidences payment of rent in respect of the R.C.Rev No.352 of 2019 20 building by the second respondent to K.V.George. The said document is one proved through PW2 namely K.V.George. PW2 has categorically stated in his evidence that the signature of the tenant contained in Ext.A19 is the signature of the second respondent. In the light of the said evidence of PW2, it was obligatory on the part of the second respondent to give evidence denying his signature in Ext.A19, if the same was not one put by him. The second respondent did not come forward to give evidence in the case. Instead, the third respondent who gave evidence in the case stated that the signature contained in Ext.A19 is not that of the second respondent. Insofar as the second respondent is alive, and in the absence of anything on record as to his inability to give evidence, we do not think that any sanctity could be attributed to the said evidence of the third respondent. Be that as it may, as noted, the argument advanced by the learned counsel for the respondents was that Ext.A19 being a piece of secondary evidence, the same ought not have been admitted in evidence by the Rent Control Court R.C.Rev No.352 of 2019 21 without notice in terms of Section 65(a) of the Indian Evidence Act. It is now settled that the carbon copy being a document made by one uniform process, the same is primary evidence within the meaning of Explanation 2 to Section 62 of the Indian Evidence Act [See **Prithi Chand v. State of H.P** ., (1989) 1 SCC 432]. Ext.A19 is the rent receipt issued for the period from January 1998 to September 1998. In other words, Ext.A19 would _prima facie_ establish the fact that the second respondent has paid rent in respect of the subject building to K.V.George, the predecessor of the petitioners. True, there is no other material to indicate that the respondents have paid rent to the petitioners and their predecessor at any point of time in respect of the subject building. But, according to us, from the said circumstances alone, it cannot be said that the denial of title of the petitioners by the respondents is _bona fide_ . On an evaluation of the materials on record, we do not find any reason to interfere with the concurrent findings of fact rendered by the authorities below on the question as to whether the R.C.Rev No.352 of 2019 22 denial of title of the petitioners by the respondents is _bona fide_ . 15. As noted, the authorities below have concurrently found that the need set out by the petitioners for eviction of the respondents is _bona fide_ and that the respondents are not entitled to the benefit of the provisos to Section 11(3) of the Act. Serious arguments were not advanced in respect of the said findings except the argument that the earlier application filed by the petitioners for eviction of the respondents as R.C.P No.160 of 2005 was dismissed by the Rent Control Court. The materials on record would indicate that the earlier application was one filed projecting the need of the third petitioner to establish a jewellery shop in the subject building. The said application was not dismissed on merits. Instead, it was not pressed as the petitioners had, in the meanwhile, dropped the idea of establishing the jewellery shop. The bar under Section 15 of the Act is only in the matter of filing another application on the same cause of action. The dismissal of the earlier application for eviction preferred by the R.C.Rev No.352 of 2019 23 petitioners, according to us, does not therefore preclude the petitioners from instituting a fresh application on a new ground under the changed circumstances. We do not find any reason to interfere with the concurrent findings of facts rendered by the authorities below on the questions relating to the _bona fides_ of the need set out by the petitioners for eviction and also as to their entitlement of the benefits of the provisos to Section 11(3) of the Act. The revision petition, in the circumstances, is devoid of merits and the same is, accordingly, dismissed. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **C.S.SUDHA, JUDGE.** Mn R.C.Rev No.352 of 2019 24 ## **APPENDIX** ## **PETITIONER ANNEXURES** **Annexure A1 TRUE COPY OF THE LETTER SUBMITTED BEFORE THE DEPUTY COLLECTOR (LR) DATED 05.09.2011**