Rajamma v. N. Krishna Moorthy (R.C.Rev. Nos. 261/09 to 265/09 and connected cases; RCA.47/2008; RCP.53/2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 RCRev..No. 261 of 2009 (B) ------------------------------RCA.47/2008 of II ADDL. DISTRICT COURT, TRIVANDRUM RCP.53/2006 of ADDL. MUNSIFF COURT, TVM .................... ## REVN.PETITIONER/RESPONDENT/COUNTER-PETITIONER --------------------------------------------------------------- RAJAMMA, D/O. BHAGEERATHY AMMA, AGED 64 YEARS, RESIDING AT TC 17/988, PARAYIL KANDAM, POOJAPPURA, THIRUVANANTHAPURAM. BY ADV. SRI.S.BALACHANDRAN (KULASEKHARAM) SRI.SASTHAMANGALAM S. AJITHKUMAR RESPONDENT(S): REVN.RESPONDENT/APPELLANT/PETITIONER ---------------------------------------------------------------------- N.KRISHNA MOORTHY, S/O. LATE NARAYANAN NAIR, TC 17/1643(1), KATTU ROAD, POOJAPPURA, THIRUVANANTHAPURAM. ADV. R.S.KALKURA FOR R1 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 14/01/2010, A/W RCR.262/09 & CON. CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ.** ``````````````````````````````````````````````````````` R.C.Rev. Nos.261, 262, 263, 264 and 265 of 2009 ``````````````````````````````````````````````````````` Dated this the 14[th] day of January, 2010 ## **O R D E R** ## **Pius C. Kuriakose, J.** The tenants are the revision petitioners in all these cases. They were sought to be evicted on the ground of arrears of rent, bona fide need for own occupation and also the need for reconstruction. The parties will be referred to as landlord and tenant. The landlord/respondent relied on a rental arrangement originally between his mother Dr.Kamalamma and the revision petitioners on the terms of which Rs.750/- per mensem is the monthly rent. The allegation was that after his mother died in the year 1997, the tenant did not pay any amount towards rent and that even after issuing statutory intimation notice under Section 11 (2)(b), the tenant did not discharge the arrears of rent. The need projected in the context of the ground under sub-section (3) of Section 11 was that the landlord was in Government service and RCR.261/09 & connected cases : 2 : has now come back to Thiruvananthapuram after retirement and that he does not have any building of his own in Thiruvananthapuram, his home town; and that he wants to occupy the petition schedule building after reconstructing the same. In the context of the ground under Section 11(4)(iv), the case of the landlord was that the buildings are old fashioned and dilapidated and that they require reconstruction in view of the physical and social condition of the buildings. It was also averred that reconstructing the building will be profitable from the landlord's point of view. No offer was made in the RCP to re-induct the tenants after reconstruction. The Rent Control Court consolidating all the five RCPs since the grounds were common and the contentions raised by the revision petitioners were also identical. The revision petitioners contended that the landlord has no title to the buildings and that, at any rate, there is no landlord - tenant relationship between the landlord and them. It was also contended that the need is not bona fide and that there was no RCR.261/09 & connected cases : 3 : agreement to pay the rent at the claimed rate and also that the buildings do not require reconstruction at all. The Rent Control Court did not formulate a preliminary point as to whether the tenant's denial of landlord's title is bona fide. The Rent Control Court did not consider the question as to whether the denial of landlord's title of the tenant is bona fide as a preliminary question. Instead the RCP was enquired into and at trial the evidence consisted of Exts.A1 to A18, B1 to B27, Commission report Ext.C1 and sketch C1(a) to C1(d). The oral evidence from the side of the landlord consisted of PW1 and that the Advocate Commissioner as PW2. On the side of the tenants, they got themselves examined as CPW1 to 5. Ext.A1 was the settlement deed under which the landlord/petitioner in the RCP, came to have title over the petition schedule premises. Ext.A2 was the sale deed executed by the petitioner in the RCP in respect of a portion of the property obtained by him by virtue of Ext.A1. Ext.A4 to A4(b) were basic tax receipts. Ext.A6 was the Thandaper account pertaining RCR.261/09 & connected cases : 4 : to the land in question. Ext.A11 was the plan approved by the Corporation of Thiruvananthapuram regarding the proposed reconstruction. Ext.A12 series were extracts of the Property Tax Assessment Registers maintained by the Thiruvananthapuram Corporation in respect of the buildings which were the subject matter of the RCPs commencing from the period 1955 -1956 to 1993-1994. Ext.B9 series were receipts against remittance of property tax to the Corporation by the tenants in respect of the buildings in question in the name of Narayanan Nair, father of the landlord. Exts.B17, 17(a) and 17(b) were similar receipts. Ext.B22 series were also similar receipts. The Rent Control Court, on appreciating the evidence, came to the conclusion that the tenant's denial of the landlord's title was not bona fide. That court noticed that there was no evidence on the case on the basis of which it could be held that the landlord - tenant relationship as pleaded by the landlord did exist. However, the court proceeded to examine the merits of the eviction grounds. It was found that if RCR.261/09 & connected cases : 5 : there was a landlord - tenant relationship between the parties, the tenants were liable to be evicted on the ground under sub-section (3) of Section 11. Since it was found that the need was to occupy the building after reconstruction, the tenant is not entitled to the statutory right of re-induction as envisaged by the third proviso to clause (iv) of sub-section (4) of Section 11 of Act 2 of 1965. However, in view of the findings on the question of denial of title and existence of landlord - tenant relationship, that court would dismiss the RCP. Even though, the Rent Control Court did find that the building in questions are old and dilapidated and incongruous to the social setting and surroundings that court found that the need for reconstruction projected by the landlord is a ruse. This finding was entered by the Rent Control Court on the reason that the landlord has not established his financial capacity to carry out the reconstruction. 2. The landlord preferred an appeal to the Rent Control Appellate Authority. The Appellate Authority made a thorough re- RCR.261/09 & connected cases : 6 : appraisal of the entire evidence on record in the case as well as the pleadings. That court would reverse the finding of the Rent Control Court and hold that the denial of the landlord's title by the tenants is not at all bona fide. It was also found that the tenants having failed to establish their plea of having perfected title over the buildings by adverse possession and limitation, the landlord's case that there is relationship between the parties as landlord and tenant that is only to be accepted. The Appellate Authority would accept the finding of the Rent Control Court in the context of subsection (3) of Section 11 and passed an order of eviction on the ground under sub-section (3) of Section 11. 3. The Appellate Authority would thoroughly re-appraise the evidence in the case adduced by the parties in the context of the claim for re-construction. The Appellate Authority found on the basis of the oral evidence in the case and also on the basis of Exts.C1 to C1(d) Commission Reports that the buildings are aged more than 75 years; that the roof of the buildings are broken and RCR.261/09 & connected cases : 7 : are detached here and there. The Appellate Authority also noticed the admission of the tenants that the condition of the building was not strong or stable. The Commission Report was relied on to find that in the locality where the petition schedule buildings are situated, there is fast development and several new buildings have sprung up near and around the building. The Appellate Authority also noticed on the basis of Ext.A11 that the landlord has obtained a valid plan and licence from the local authority regarding the proposed reconstruction. Thus, it was held by the Appellate Authority in a very convincing manner that the condition of the building is such that the same warrants reconstruction. According to the Appellate Authority ability to reconstruct as envisaged by clause 4 of sub section 4 of section 11 of Act 2 of 1965 does not mean actual ready cash and the landlord is not expected to jingle coins before the court. The Appellate Authority found that the landlord had given clear evidence to the effect that the State Bank of Travancore had offered to advance a loan to him for the RCR.261/09 & connected cases : 8 : proposed reconstruction and also that the landlord's brother who is financially well off has also promised to help him. The Appellate Authority also noticed the evidence of CPW1 given in cross examination that the landlord will get loan from the Bank for carrying out the reconstruction. Thus, the Appellate Authority reversed the finding of the Rent Control Court and held that the landlord was having the ability to carry out the reconstruction. Accordingly, it was held that the landlord is entitled for an order of eviction on the ground of reconstruction. Even though, claim for own occupation under sub section 3 of section 11 was also there and the said claim was also upheld, the Appellate Authority noticed that in the proposed new building after reconstruction, there will be space enough to accommodate the tenants also and hence, order of eviction was separately passed under section 11 (4)(iv) and the tenants were given the benefit of re-induction as contemplated by the third proviso to clause 4 of sub section 4 of section 11. RCR.261/09 & connected cases : 9 : 4. In this revision petition filed under section 20 of Act 2 of 1965, the tenants have assailed the judgment of the Rent Control Appellate Authority on various grounds. We have heard the submissions of Sri.S.Balachandran Kulasekharam, the learned counsel for the revision petitioners and those of Sri.R.S.Kalkura the learned counsel for the respondents. It was very extensive arguments which was addressed before us by Sri.Balachandran. According to Sri.Balachandran, the judgment of this Court in _Nabeesa Abdul Khader v Suresh Kurian (2009(1) KLT 1020)_ was misinterpreted by the learned Appellate Authority. The presumption aroused under section 26 of Act 2 of 1965 by the certified copy of the Property Tax Assessment Register in the argument of the learned counsel is only regarding the correctness of the entry about the rental value of the building. There is no presumption at all regarding the correctness of any other thing recorded in the Property Tax Assessment Register. According to the learned counsel, just because it is recorded in the Property RCR.261/09 & connected cases : 10 : Tax Assessment Register that the occupation of the revision petitioners of the building is as tenants, it is not possible to come to an immediate conclusion that there is landlord-tenant relationship between the revision petitioners and the petitioners in this RCP. Counsel submitted that it is only in the Assessment Register pertaining to the period 1993-1994 that the status of the revision petitioner is recorded as tenant. In the Assessment Registers pertaining to earlier periods, there is no such description. The counsel argued that the entries in Assessment Register Ext.A12 regarding the gross annual rental value of the building is Rs.320/- only. If Ext.A12 Assessment Register is relied on for the purpose of determining the contract rent, it can be found that the rate of rent alleged by the landlord i.e. Rs.750/- per mensem is absolutely incorrect. The learned counsel submitted that the oral evidence of PW1 was not at all inspiring. PW1 stated that he is unaware of the date of commencement of the tenancy, the names of the various tenants occupying the rooms and that he RCR.261/09 & connected cases : 11 : became aware of the facts only six years prior to his examination. Counsel pointed out that even though PW1 stated in evidence that his mother is in possession of rent deeds, he did not choose to produce any of the rent deeds and therefore, there was justification for drawing adverse inferences against him. The learned counsel argued that it was the evidence of PW1 that the rent to begin with was Rs.95 per mensem and that by successive enhancements, the same had now reached the rate of Rs.750/per mensem. This case did not have proper pleadings in evidence and should not have been accepted by the court below. The learned counsel referred to certain passages from the evidence of PW1 and submitted that the evidence of PW1 was to the effect that the revision petitioners were treating the property to be their own and that the revision petitioners extended the building let out to them un-authorisedly. This evidence will support the case of the revision petitioners that they have, at any rate, prescribed a title for themselves over the buildings in question by adverse possession RCR.261/09 & connected cases : 12 : and limitation. 5. All the submissions of Sri.Balachandran were forcefully resisted by Sri.R.S.Kalkura, the learned counsel for the respondent. Sri.Kalkura took us extensively through the judgment of the Rent Control Appellate Authority supporting the above judgments on the various reasons stated therein. Mr.Kalkura submitted that there is no warrant at all for interfering with the above judgments within the contours of the revisional jurisdiction of this Court under section 20 of Act 2 of 1965. 6. We have anxiously considered the rival submissions addressed at the Bar. We have very carefully gone through the order of the Rent Control Court and also the judgment of the Rent Control Appellate Authority by which the order of the Rent Control Court was reversed and order of eviction was passed against the revision petitioners. The judgment of this Court in _Aboobekker v. Girija (1995(1) KLT 553)_ is a leading light containing guidelines for deciding whether the denial of the landlord's title as envisaged by RCR.261/09 & connected cases : 13 : the proviso to sub section 1 of section 11 is bona fide. This Court has held that the court whose jurisdiction stands ousted in terms of the proviso to sub section 1 of section 11 must have the satisfaction that there are strong or at least substantial grounds or sufficient materials in support of the plea of the petitioners and the chances of the plea being upheld by the civil court are fairly on the higher side. It is held that the person who denies the landlord's title has to satisfy the Rent Control Court that his denial is bona fide. This is to be done either by producing materials or by focusing on admissions or reliable circumstances. It has been clearly held that even if the stage for adducing evidence has not begun and when the issue whether the denial is bona fide is taken up preliminary, then also the tenant cannot escape from satisfying the court that his denial is based on materials. 7. On going through the judgment of the Rent Control Appellate Authority, we find that the guidelines laid down by this Court in _Aboobekker's case (cited supra)_ have been kept in mind RCR.261/09 & connected cases : 14 : by the learned Appellate Authority while coming to the conclusion that the denial of the landlord's title by the revision petitioners is not bona fide. We notice that the learned Appellate Authority had due regard to the judgments of the Full Bench of this Court in _Bharathy v. Vinod (2008(1) KLT, 93)_ and also the judgment of another Full Bench of this Court in _Parthakumar v. Ajith Viswanadhan (2006(2) KLT 250)_ and rightly held that though the Rent Control Court does not have jurisdictional competence to finally decide whether any of the parties is having title it, has the jurisdiction to decide whether the denial of the landlord's title by the tenant is bona fide. It was found by the Appellate Authority on a close scrutiny of Exts.A1 and A2 Registered Deeds of gifts and assignments that the petitioner in the RCP was prima facie having title over the buildings which were subject matter of the Rent Control Petition. Ext.A12 Property Tax Assessment Register maintained by the Local Authority was very much relied on by the learned Appellate Authority. It was noticed that the revision RCR.261/09 & connected cases : 15 : petitioners do not have a case that the buildings mentioned in Ext.A12 Property Tax Assessment Register pertaining to the period of 1972-1994 are not the petition schedule buildings. Exts.A4 to A10 Property Tax Payment Receipts Possessions Certificates, Thandapper Register, Land Revenue Payment Receipts all were relied on by the Appellate Authority to accept the case of the landlord/petitioner that Ext.A1 gift deed was accepted and acted upon and that the entire land covered by Ext.A1 stood transferred to the possession of the donee, the petitioner in the RCP. 8. On the basis of all the above documents Exts.A4 to A10 and Ext.A12 it was concluded that the ownership over these buildings originally stood in the name of the parents of the petitioner and subsequently, the same stood transferred to the name of the petitioner in the books of the authorities of Land Revenue as well as the Local Authorities. It was noticed that CPW5, one of the revision petitioners have admitted in the witness RCR.261/09 & connected cases : 16 : box that the electricity connection and water connection of the building in his possession stands in the name of Narayanan Nair, father of the petitioner in the RCP. Similar admission was made by CPW2 regarding the payment of Land Revenue. The learned Appellate Authority noticed that though the contention of the counter petitioners/revision petitioners was to the effect that the petition schedule buildings do not belong to the petitioners in the RCP when a specific question was put to CPW1 and CPW2, their answer was that they did not verify the documents relied on by the petitioner to find out whether the buildings belong to the petitioner or not. But CPW3 did admit that after receiving notice, he came to understand that the building belong to Narayanan Nair, father of the petitioner. Exts.B9 to B17 series and B18 and B22 series produced by the revision petitioners themselves prove that the revision petitioners have admitted the title of Narayanan Nair and Kamalamma, parents of the petitioner in the RCP over the buildings. Exts.B9 and B17 series are property tax receipts. RCR.261/09 & connected cases : 17 : Ext.B22 is the Land Revenue payment receipt and Ext.B18 is the water bill payment receipt. Though payments are made by the revision petitioners all these payments are made on behalf of and in the name of Narayanan Nair. We notice that the finding of the Appellate Authority that the revision petitioners have failed miserably in establishing their case that they have perfected the title over the building by adverse possession and limitation does not suffer from any infirmity. As noticed by the Appellate Authority, the pleadings regarding adverse possession and limitation raised through the objection statements are very vague. It is not pleaded as to when the possession become adverse, who was the original owner etc. The ingredients to constitute adverse possession which will ripen to possessory title have been correctly kept in mind by the learned Appellate Authority. One of the revision petitioners even raised the plea of kudikidappu and the Appellate Authority rightly noticed that a plea of kudikidappu and a plea of title by adverse possession and limitation are inherently inconsistent with RCR.261/09 & connected cases : 18 : each other. Applying the principles laid down by a Division Bench of this Court in _Aboobekker's case (cited supra),_ the learned Appellate Authority has found that in the present case, there is no sufficient pleadings regarding adverse possession and limitation and that no strong or substantial grounds or sufficient materials have been placed by the revision petitioners in support of their plea of adverse possession and limitation. As rightly noticed by the Appellate Authority, the learned Rent Control Court was carried away by certain insignificant answers given by PW1 in the witness box that he was not aware of the affairs of the petition schedule building prior to 1996. But, the facts remains that PW1 was a Government employee and he came to Thiruvananthapuram only after his retirement in 1996. It is common case and that it was PW1's mother who was looking after the affairs including the affairs in respect of the buildings till her death in 1997. Therefore, much significance should not have been attached to the statement of PW1 that he was not aware of the affairs of the building prior to RCR.261/09 & connected cases : 19 : 1996. We are of the view that the finding by the learned Appellate Authority that the denial of the landlord's title by the revision petitioners is not bona fide, is quite correct. 9. According to us, the Appellate Authority was perfectly justified in relying on Ext.A12 series Property Tax Assessment Registers pertaining to the period from 1972 - 1994 and especially the one pertaining to the period from 1993 - 1994 to accept the case of the landlord that the relationship between the parties is that of landlord and tenant. We cannot accept the argument of Sri.Balachandran, the learned counsel for the petitioner that the presumption aroused by section 26 of Act 2 of 1965 is regarding the correctness of the Annual Rental Value pertaining to the building alone. A careful reading of the section will show that the presumption aroused by the above statutory provision is regarding all the facts stated in the documents contemplated by section 26. Of course, it is a rebuttable presumption. But once a presumption is aroused rebuttal evidence has to be adduced by the party who RCR.261/09 & connected cases **==> picture [26 x 9] intentionally omitted <==** wants to rebut the presumption. In the instant case, the tenant miserably failed to adduce cogent evidence to rebut the presumption. Thus, in our opinion, there is no warrant for interference with the finding that the denial of title is not bona fide and that there exists a landlord - tenant relationship between the petitioners in the RCP and the revision petitioners. 10. At the same time, we feel that the evidence in the case falls short off holding that rent at the rate of Rs.750/- per mensem is in arrears as alleged in the Rent Control Petition. Even though applying the rule of preponderance of probabilities the landlord's version that Rs.750/- is the monthly contract rent can be accepted, it is difficult to accept his version that rent at that rate is in arrears as alleged from October 1997. According to us, the correct conclusions to be drawn on available evidence is that rents is in arrears at that rate only from 28/01/06, the date of issuance of the demand notices. The above finding would mean that the orders of eviction passed by the Rent Control Court under Section 11(2)(b) RCR.261/09 & connected cases : 21 : are liable to be vacated. 11. We will now examine the correctness of the orders of eviction passed under sub section 3 of section 11 and under clause 4 of sub section 4 of section 11 i.e. bona fide need for own occupation and the requirement of re-construction. As for the bona fide need for own occupation, even the Rent Control Court found that the need projected in the RCP and spoken to by PW1 is a bona fide one, but that court did not order eviction on the ground under sub section 3 of section 11 only because of its finding that the denial of title made by the tenant is bona fide. Once we are approving the judgment of the Appellate Authority that the denial is not bona fide and that a landlord tenant relationship exists between the parties necessarily, the judgment of the Appellate Authority ordering eviction on the ground of bona fide need for own occupation also has to be approved. We do so. Almost the same is the position as regards the order of eviction passed on the ground of re-construction. Both the authorities concurrently held RCR.261/09 & connected cases : 22 : that the buildings are dilapidated and in terms of the social and physical condition of the buildings there is justification for reconstruction. The Rent Control Court dis-allowed order of eviction on the ground of re-construction on the reason that the landlord has not proved his ability to carry out the proposal for reconstruction which may cost him a sum of Rs.30 lakhs. We find that the Appellate Authority has found that there was no effective cross examination on the Landlord's version that the State Bank of Travancore has agreed to advance him a loan for carrying out the re-construction. The building we notice is situated on a very valuable property situated in a commercially and socially very important area of the capital city of the state. The capital value of the land will come to crores of rupees. We are not surprised that the State Bank of Travancore became willing to advance loan to the landlord for putting up new constructions upon the land. The brother of the landlord is financially well off and the landlord's version is that the brother has also promised assistance. On this RCR.261/09 & connected cases : 23 : aspect also, there is no effective challenge. As rightly found by the Appellate Authority ability for the purpose of reconstruction as contemplated by clause 4 of sub section 4 of section 11 does not mean actual cash, it only means the ability to raise funds. Thus, the evidence in the case is that the building is in such a condition that the same warrants reconstruction; that the landlord has the ability to carry out the reconstruction and that the landlord has been issued with a valid licence by the local authorities for carrying out the reconstruction. Hence, order of eviction is rightly ordered on the ground of reconstruction. 12. Even though, eviction has been ordered on the ground of own occupation, we notice that the Appellate Authority has consciously and conscientiously noticed that the newly constructed building will be large enough to accommodate the revision petitioners also. That is why the revision petitioners have been allowed the right of re-induction as contemplated by the third proviso to clause 4 of sub section 4 of section 11. This means RCR.261/09 & connected cases : 24 : that every revision petitioner will be entitled to be re-inducted into the building subject of course to his liability to pay fair rent. 13. The up short of the above discussion is that all the Revision Petitions will fail, except to the extent the same relates to the order of eviction passed under section 11(2)(b). We confirm the finding that the denial of title made by the revision petitioners is not bona fide and that the landlord/tenant relationship exists between the parties. We confirm the order of eviction passed on the grounds under section 11(3) and 11(4)(iv) of Act 2 of 1965. We vacate the order of eviction passed under section 11(2) (b) and hold that rent is in arrears only from the dates of the demand notices sent by the landlord prior to the institution of the RCP. We clarify that the eviction order which is confirmed in RCP.56/06 (corresponding to RCR.263/09) will be subject to the result of the proceedings which are stated to be pending before the Land Tribunal. 14. However, considering the last plea of the learned : 25 : RCR.261/09 & connected cases counsel for the revision petitioners, we are inclined also to order that the execution Court shall not order or effect delivery of the buildings till 30/09/10 subject to the following conditions:- 1) All the revision petitioners shall file affidavits before the Execution Court undertaking to surrender peaceful possession of the buildings to the respondents on or before 30/09/10. It shall also be undertaken through the affidavits that arrears of rent at the rate of Rs.750/- per mensem from 01/01/06 will be discharged within three months and that occupational charges at the above rates will also be paid as and when the same falls due. It is made clear that the revision petitioners will get the benefit of time granted as above only if affidavits are filed on time. ## **(PIUS C. KURIAKOSE, JUDGE)** **(C.K.ABDUL REHIM, JUDGE)** aks/kns RCR.261/09 & connected cases : 26 :