NAGARAJAN @ NAGARAJ NARAYANAN v. G. GOPAKUMAR

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 21[ST] DAY OF FEBRUARY 2022 / 2ND PHALGUNA, 1943** **OP (RC) NO. 3 OF 2022 AGAINST THE ORDER DATED 25.10.2021 IN I.A.NO.12637 OF 2019 IN R.C.P.NO.78 OF 2017 OF THE RENT CONTROL COURT (ADDITIONAL MUNSIFF-IV), THIRUVANANTHAPURAM** **PETITIONER:** ## **NAGARAJAN @ NAGARAJ NARAYANAN** **AGED 50 YEARS, S/O DR. N NARAYANAN NAIR, FORMERLY RESIDING AT 44, PADMA NAGAR, FORT, THIRUVANANTHAPURAM-695023 AND NOW RESIDING AT LAW ACADEMY QUARTERS, PEROORKADA, THIRUVANANTHAPURAM-695005.** **BY ADVS. R.T.PRADEEP M.BINDUDAS K.C.HARISH SAIJO HASSAN** ## **RESPONDENT:** **G.GOPAKUMAR** **AGED 48 YEARS, S/O GOPINATHAN NAIR, SHAKTHI MOTOR SCHOOL, TC 27/1770, VANCHIYOOR P O, THIRUVANANTHAPURAM-695035.** **BY ADVS. G.RAJEEV REJITH RAJENDRAN BINCY JOB AJITH KUMAR.S** **THIS O.P.(RENT CONTROL) HAVING COME UP FOR FINAL HEARING ON 14.02.2022, THE COURT ON 21.02.2022 DELIVERED THE FOLLOWING:** 2 O.P.(RC) No.3 of 2022 ## **JUDGMENT** Ajithkumar, J. This original petition was filed by the petitioner in R.C.P.No.78 of 2017 on the file of the Rent Control Court (Additional Munsiff-IV), Thiruvananthapuram, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 2. R.C.P.No.78 of 2017 was filed by the petitioner seeking eviction of the respondent under Sections 11(2)(b), 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The respondent filed a statement of objection, Ext.P2, in which he denied the title of the petitioner to the petition schedule shop room. Other contentions set forth as grounds for eviction in the rent control petition were also denied. While the respondent admitted that he has been in possession and enjoyment of the room bearing No.27/1770, which is the petition schedule shop room, raised a contention that the said building does not situate within the property claimed to have been purchased by the petitioner by 3 ## O.P.(RC) No.3 of 2022 virtue of sale deed Nos.4310 of 1991 and 2487 of 1991. Pointing out the said contentions, the petitioner has filed I.A.No.12637 of 2019 in the rent control petition seeking appointment of an Advocate Commissioner and a Surveyor to ascertain and report the following matters: - '1. To note and report the lie, nature location and boundaries of the building bearing T.C.No.27/1771 and 27/1772 and petition schedule portion of the building bearing TC 27/1770. 2. To note and report about the common walls and roofs of the building bearing T.C.No.27/1770, T.C.No.27/1771 and T.C.No.27/1772. 3. To report about the age of the old structure roofing, flooring and condition of the petition schedule premises bearing T.C.No.27/1770. 4. 5. To note and report about the common wall separates the tenanted portion bearing T.C.No.27/1770 on its northern side from T.C.No.27/1771 and the common wall between the portion bearing T.C.No.27/1771 on its northern side from portion bearing T.C.No.27/1772. - To note and report about the portion bearing T.C.Nos.27/1771 and 27/1772, which are being occupied and used by the Petitioner as his lawyer's office and the portions connected inside through a wide passage. 4 O.P.(RC) No.3 of 2022 6. To measure the properties of the petitioner as described in the schedule to the Exhibit A1 and A2 title deeds and also in accordance with its prior deeds and to prepare a plan showing the side measurements, area of the property and to depict the buildings bearing T.C.No.27/1770, T.C.No.27/1771 and T.C.No.27/1772 situated in the above said properties. 7. To clearly depict the northern boundary of the property described in the Exhibit A1 document taking into consideration its prior documents. 8. To measure and report the area of the petition schedule portion bearing TC 27/1770 and depict it in the plan. 9. To note and report about the electricity connection and other amenities to the petition schedule premises (T.C 27/1770) and also that of T.C.27/1771 & T.C.27/1772 10. To report any other matter sought to be ascertained by the petitioner at the time of visit of the commissioner.' 3. The respondent filed an objection to the said interlocutory application, a copy of which is Ext.P4, refuting the relevance of such a report. However, he contended that in the event of appointing a Commissioner, matters enlisted in Ext.P4 were also sought to be ascertained. As per Ext.P5 order dated 25.10.2021, the Rent Control Court dismissed the application. In the order, the Rent Control Court held: 5 O.P.(RC) No.3 of 2022 '6. The original RCP is filed by the petitioner for eviction under Section 11(2)(b), 11(3) and 11(4)(1) of the Kerala Buildings (Lease and Rent Control Act). The petitioner claimed that the petition schedule building absolutely belonged to the petitioner and his mother by virtue of two sale deeds such as 4310/1991 and 2487/1991. The respondent is their tenant who is conducting a motor driving school in the petition schedule property. Since the petitioner needs the petition schedule shop room for his bonafide need and also the rent is in arrears, it is necessary to evict the respondent from the petition schedule building. Here, the respondent stoutly contended there exists no landlord-tenant relationship. He contended that the petition schedule building is situated in a puthuval land which does not belong to the petitioner or his predecessor in interest. The scheme of the Rent Control Act and the rules framed thereunder envisages speedy disposal of cases pending before the court. In this case, the respondent denied the title of the landlord as well as the landlord-tenant relationship. Rent control petition is maintainable only when there exists a landlord-tenant relationship. In the petition, the petitioner had categorically stated that the respondent is his tenant. If that be so, there is no necessity to identify and locate the petition schedule building. If there exists a tenancy agreement between the parties, there is no need to 6 O.P.(RC) No.3 of 2022 identify the property or to measure the property with the help of a surveyor. Identification of the petition schedule building and the property in which the building is situated is not at all a matter within the purview of the rent control proceedings. Hence this court is of the opinion that the present petition to measure out the property with the help of a surveyor is not at all maintainable and it does not come within the purview of the rent control proceedings. The petition lacks bonafides. Hence the petition is only to be dismissed. 4. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 5. Definite claim of the petitioner is that room bearing door No.TC.27/1770, which is described as the petition schedule room, is situated on the property purchased by the petitioner along with his mother, who is now no more, as per sale deed Nos.4310 of 1991 and 2487 of 1991. The respondent admitted in Ext.P2 objection that he is in possession and enjoyment of the petition schedule shop room, which bears door No.27/1770. He is conducting Sakthi Motor Driving School in that room. The respondent however 7 ## O.P.(RC) No.3 of 2022 contends that he has been possessing the said room, following his father and grandfather and never he or his predecessors-in-interest paid rent for the said room. It is his contention that neither the petitioner nor his predecessors-ininterest demanded rent. Further to the said contentions, he averred in the objection that the petition schedule shop room does not situate in the property covered by sale deed Nos.4310 of 1991 and 2487 of 1991. 6. The learned counsel appearing for the petitioner would contend that in a proceedings for eviction of a tenant on the ground of personal need, the petitioner is expected to prove that he is the owner of the building, and therefore, it is necessary to measure and demarcate the property covered by the aforesaid sale deeds. It is his contention that in the wake of the contention that the petition schedule shop room is situated beyond the property covered by the said sale deeds, the petitioner was compelled to take out a Commission to measure and demarcate the property. In **Ambica Prasad v. Mohd.Alam and another [(2015) 13 SCC 13]** , the Apex 8 O.P.(RC) No.3 of 2022 Court while considering a matter relating to eviction under the provisions of Assam Urban Areas Rent Control Act, 1972, observed that for the purpose of eviction of a tenant on the ground of personal need or requirement, one must show that he is the owner of the building. The said principle is applicable in a proceedings under the Kerala Buildings (Lease and Rent Control) Act, 1965 also. That does not however mean that the question of title of the petitioner to the petition schedule shop room can be decided by the Rent Control Court. 7. The second proviso to Section 11(1) of the Act emphasises that if the tenant denies the title of the landlord or claims right of permanent tenancy and the Rent Control Court finds that the denial or claim is bonafide, the Rent Control Court loses its jurisdiction to consider the petition for eviction and then the remedy of the landlord is to sue for eviction of the tenant in a civil court. Therefore, the contention of the petitioner that in order to establish his title to the property, where the petition schedule shop room is situated, the property has to be measured and demarcated 9 ## O.P.(RC) No.3 of 2022 with the help of Commissioner and Surveyor in the rent control petition, cannot be entertained. 8. In a rent control proceedings, ordinarily the petition schedule building/room is identified by the door number it bears. In **Muhammed Sajid and others v. Khadeeja and others [2018 3 KLT SN 2]** this Court held, “it is the building number that is relevant for identification purposes in a petition seeking eviction and the extent of the landed property, wherein it is situated, has no relevance as in cases involving disputes relating to property. In the petition seeking eviction, identification of the building leased out needs to be done with the number it bears and not by measuring the property within which it is situated”. It is the specific case of the petitioner that he along with his mother purchased land where room Nos.27/1770 is situate and the respondent attorn to them as the landlord. In a rent control proceedings what is required to be established is that the petitioner has title to the building as the landlord. The paramount title to the building and the land where it is 10 ## O.P.(RC) No.3 of 2022 situated, may not be of much relevance. If the dispute confines to the landlord-tenant relationship alone, that dispute has to be decided by the Rent Control Court. On the other hand, if the denial of landlord-tenant relationship emanates from the plea that the petitioner does not have title to the building, it amounts to a denial of title as mentioned in the second proviso to Section 11(1) of the Act. In order to resolve such a question, the civil court alone has jurisdiction. In the circumstances, demarcation of the property covered by the sale deeds is unnecessary for deciding the matter in issue in the rent control petition. 9. The learned counsel appearing for the respondent would submit that a suit as O.S.No.1108 of 2021 was already filed by the respondent before the Munsiff's Court, Thiruvananthapuram, seeking an injunction against the petitioner against trespass upon the petition schedule shop room. Probably, identity of the building and property may be a relevant consideration in the said suit. But, for the disposal of R.C.P.No.78 of 2017, a report by a Commissioner with respect 11 ## O.P.(RC) No.3 of 2022 to the matters sought to be ascertained in Ext.P3 application is absolutely unnecessary. Hence, we are of the view that Ext.P5 order of the Rent Control Court, Thiruvananthapuram does not suffer from any illegality, requiring interference by this Court under Article 227 of the Constitution of India. The original petition is therefore dismissed. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr 12 O.P.(RC) No.3 of 2022 ## **APPENDIX OF OP (RC) 3/2022** **PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF PETITION DATED 31.10.2017 IN R C P NO.78/2017 BEFORE THE RENT CONTROL COURT, THIRUVANANTHAPURAM. Exhibit P2 TRUE COPY OF THE STATEMENT OF OBJECTION OF RESPONDENT DATED 19.02.2019 IN R C P NO.78/2017. Exhibit P3 TRUE COPY OF I A NO.12637/2019 IN R C P NO.78/2017 ON THE FILE OF RENT CONTROL COURT, THIRUVANANTHAPURAM. Exhibit P4 TRUE COPY OF OBJECTION DATED 7.11.2019 TO I A NO.12637/2019. Exhibit P5 TRUE COPY OF ORDER DATED 25.10.2021 IN I A NO.11637/2019 IN RCP NO.78/2017 BY THE RENT CONTROL COURT, THIRUVANANTHAPURAM.**