Naresh Kumar Agarwal v. Moulshree Singal

**RCRev.No.10 OF 2020** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 21ST DAY OF JANUARY 2020 / 1ST MAGHA, 1941** **RCRev..No.10 OF 2020** **AGAINST THE ORDER/JUDGMENT IN RCA 62/2019 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM** **AGAINST THE ORDER/JUDGMENT IN RCP 9/2014 DATED 24-062019 OF ADDITIONAL MUNSIFF COURT,KOCHI** ## **REVISION PETITIONER/S:** **NARESH KUMAR AGARWAL, AGED 57 YEARS S/O. DWARAKA PRASAD, PROPRIETOR OF M/S. GUPTA TRADING COMPANY, C.C.NO.7/50 AND 7/52, CHAKKAMADOM, JEW TOWN, KOCHI-682 002.** **BY ADVS. SRI.PRATHEESH.P SRI.S.ABHILASH SRI.K.SIJU SMT.S.REKHA KUMARI SMT.S.SEETHA** ## **RESPONDENT/S:** **MOULSHREE SINGAL, AGED 42 YEARS W/O VIKASH KUMAR SINGHAL, RESIDING AT NAKIPURIA SADAN, CC NO.8/2012, GUJARATHI ROAD, KOCHI-682 002.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 21.01.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RCRev.No.10 OF 2020** **2** ## **ORDER** ## **Dias,J.** The revision petitioner is the respondent in RCA No.62/2019 on the file of the Rent Control Appellate Authority (in short “Appellate Authority”), Ernakulam. The respondent in this revision petition was the appellant in the above appeal. 2. This revision petition is aggrieved by the judgment dated 5.12.2019 passed by the Appellate Authority setting aside the order in R.C.P No.9/2014 of the Rent Control Court, Kochi. The parties are for the sake of convenience, referred to, as per their litigate status in this revision petition as 'revision petitioner' and 'respondent'. 3. The respondent had filed the Rent Control Petition (in short 'RCP') against the revision petitioner seeking an order of eviction of the petition schedule building (for brevity hereinafter referred to as **RCRev.No.10 OF 2020** **3** 'building') under Sections 11(2)(b),11(3) and 11 (4) (iii)of the Kerala Buildings (Lease and Rent Control), Act (hereinafter referred to as 'Act'). 4. The case of the respondent in the RCP was as follows: The building originally belonged to Sri.C.R.Ramesh, from whom the revision petitioner had taken the building on lease. During the subsistence of the lease, the land owner had assigned the building to the respondent. Thus, the respondent became the owner of the building. The respondent sought vacant possession of the building, but the revision petitioner refused to vacate the building. Hence the RCP was filed. 5. The revision petitioner contested the RCP. He filed a counter statement, inter alia, contending as follows: He denied that there was a landlord-tenant relationship between him and the respondent. He also denied that the respondent had title over the building. According to him, he is occupying the building on the strength of Ext.B1 agreement of sale executed between him and the erstwhile landlord. As the revision **RCRev.No.10 OF 2020** **4** petitioner has denied the respondent's title over the building, the said question has to be considered as a preliminary issue. 6. The Rent Control Court proceeded with the trial of the case without considering the preliminary objection. The revision petitioner challenged the procedure adopted in RCA No.56/2016 before the Appellate Authority. But the Appellate Authority dismissed the appeal. The revision petitioner filed RCR No.115/2019 before this Court, being aggrieved by the judgment passed by the Appellate Authority refusing to consider the preliminary objection. 7. This Court by order dated 25.3.2019 allowed the revision petition by setting aside the judgment of the Appellate Authority and directed the Rent Control Court to consider the issue raised by the revision petitioner as a preliminary issue. 8. As directed by this Court, the Rent Control Court formulated a preliminary issue, whether the denial of the landlord-tenant relationship by the respondent is bona fide? **RCRev.No.10 OF 2020** **5** 9. The respondent was examined as PW1 and and Exts.A1 to A24 were marked through her. The revision petitioner and a witness were examined as RW1 and RW2 and Exts.B1 to B6 were marked through them. Exts.X1 to X3 were also marked as court exhibits. 10. The Rent Control Court by its order dated 24.6.2019, upheld the preliminary objection raised by the revision petitioner, and held that the denial of landlord-tenant relationship by the revision petitioner is bona fide and that, the Rent Control Court could not entertain the RCP by virtue of the second proviso to Section 11 (1) of the Act. The preliminary issue was answered accordingly. 11. Assailing the order passed by the Rent Control Court, the respondent filed RCA 62/2019 before the Appellate Authority. The Appellate Authority allowed the appeal and set aside the order passed by the Rent Control court. It is challenging the said judgment that this rent control revision petition is filed. **RCRev.No.10 OF 2020** **6** 12. Heard Sri.S.Abhilash, the learned counsel for the revision petitioner. 13. The learned counsel for the revision petitioner argued that the Appellate Authority has failed to consider the preliminary objection raised by the revision petitioner in its proper perspective. There is no landlord-tenant relationship between the parties. According to him, the Appellate Authority placed undue emphasis on the decision in H.K.Sharma v. Ramlal [AIR 2019 SC 682] to distinguish the decision that was relied on by the Rent Control Court in R.Kanthimathi and Another v. Beatrice Xavier [2000 KHC 1503]. The learned counsel argued that the Appellate Authority ought to have considered that the erstwhile owner of the building had entered into an agreement of sale with the revision petitioner and his wife to sell the property for a consideration of Rs.27,45,000/-, and an amount of Rs.4,25,000/- was paid as advance sale consideration. The recitals in the agreement substantiate that as per Ext.B1 agreement, the revision petitioner is in possession of the building **RCRev.No.10 OF 2020** **7** as a purchaser and not as a tenant. He therefore prayed that the revision petition be allowed and the impugned judgment of the Appellate Authority be set aside. 14. The question that emerges for consideration in this revision petition is whether there is any illegality, or irregularity or impropriety in the impugned judgment passed by the Appellate Authority, setting aside the order of the Rent Control Court in RCP 9/2014. 15. We have meticulously gone through the pleadings, the oral evidence and the exhibits that are on record. 16. This Court by its judgment in RCR No.115/2019 directed the Rent Control Court to consider the contention raised by the revision petitioner whether there was any landlord-tenant relationship between the parties as a preliminary issue. It was on the basis of the direction that the Rent Control Court decided the contention as a preliminary issue. **RCRev.No.10 OF 2020** **8** 17. The trum card of the revision petitioner was that he is occupying the building on the basis of Ext.B1 agreement dated 4.12.2006 which was executed between him and the erstwhile owner Sri.C.R.Ramesh. The revision petitioner had paid advance sale consideration, which is proved by Exts.B4 and B5. 18. It is the case of the revision petitioner Ext.A1 sale deed was executed by the erstwhile owner in favour of the respondent without the revision petitioner's knowledge or consent. Hence he has filed Ext.A22 complaint before the jurisdictional Magistrate alleging that the erstwhile owner had committed an offence of cheating. He denied that he had paid rent to the respondent during the subsistence of lease. Therefore, there cannot be any landlord-tenant relationship. It was on the above plea that the Rent Control Court accepted the defence of the revision petitioner and held the denial of landlord-tenant relationship by the revision petitioner as bona fide. 19. A Full Bench of this Court in Parthakumar v. Ajith Viswanathan [2006 (2) KLT 250] has laid down **RCRev.No.10 OF 2020** **9** the law that the denial of paramount title or proprietary right of the landlord is absolutely irrelevant and it is not the precise denial of title as contemplated under the second proviso to Section 11(1) of the Act. Therefore, the law laid down is the denial of title as landlord alone is relevant, and wherever there is denial of the right of the landlord to claim eviction on the ground that he is not the landlord of the person proceeded against such denial must certainly be reckoned as denial of title of the landlord as contemplated under Section 11 (1) of the Act. 20. The specific case of the respondent is that he purchased the building on the basis of Ext.A1 from Sri.C.R Ramesh on 28.12.2006. After purchasing the property, the respondent and the erstwhile owner issued Ext.A3 letter to the revision petitioner on 25.1.2007, intimating him regarding the transfer of ownership of the building. The revision petitioner maintained stoic silence. It was after the RCP was filed, that the revision petition came up with the defence that he is in possession of the building on the **RCRev.No.10 OF 2020** **10** basis of Ext.B1 agreement of sale. So therefore, he is entitled to continue in occupation of the building on the strength of Ext.B1 dehors Ext.A1 executed between the respondent and the erstwhile owner. The fact that the revision petitioner has kept quite despite having allegedly entered into an agreement of sale with the erstwhile owner as early as on 17.1.2005 establishes there is no bona fies in his defence. If the revision petitioner had a case that, despite executing Ext.B1 agreement and paying advance sale consideration to the erstwhile owner, the erstwhile owner refusing to execute the sale deed, it was for him to have moved for a specific performance of the agreement. Without budging an inch, the revision petitioner has set up the present defence when the respondent filed RCP for eviction. 21. The Appellate Authority has rightly found that the revision petitioner is not entitled to raise the plea of part performance under Section 53(A)of the Transfer of Property Act, because the so-called Ext.B1 agreement is barred by the principles of limitation **RCRev.No.10 OF 2020** **11** and, therefore, is not enforceable in law. 22. It is discernible from the records that the erstwhile owner subsequent to Ext.B1 executed Ext.A1 sale deed in favour of the respondent. This fact was intimated to the revision petitioner by Ext.A3. Even then the revision petitioner did not seek to enforce his right. He allegedly lodged Ext..A22 complaint before the jurisdictional court on 12.1.2007 alleging that the erstwhile owner had cheated him for not selling the building after receiving advance. Thus, it is explicit that the revision petitioner has full knowledge that the respondent is the owner of the building. In light of the transfer of property by Ext.A1 sale deed, which was attorned to by the revision petitioner, the respondent had stepped into shoes of the erstwhile owner. Hence, there is a landlord-tenant relationship between the respondent and revision petitioner. The defence of the revision petitioner is not bona fide. 23. In light of the above discussions, we have no doubt in our minds that the denial of title by the revision petitioner is not bona fide. We do not find any **RCRev.No.10 OF 2020** ## **12** illegality, irregularity or impropriety in the impugned judgment passed by the Appellate Authority in RCA No.62/2019. We confirm the impugned judgment and dismiss this revision petition. 24. In view of the fact that Rent Control Petition was filed in the year 2014, and is still pending consideration, we direct the Rent Control Court to consider and dispose of RCP 9/2014, in accordance with law, as expeditiously as possible. In the result, this revision petition is dismissed. ma/28/1/2020 Sd/- K.HARILAL, JUDGE Sd/-C.S.DIAS, JUDGE /True copy/ P.S to Judge