Rama Lekshmi v. Abdul Rafeeq

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **FRIDAY, THE 13TH DAY OF JANUARY 2012/23RD POUSHA 1933** **RCR.No. 12 of 2012 ()** **-------------------------RCA.19/2009 of I ADDL.D.C. & ADDL.MACT,KOLLAM RCOP.4/2007 of MUNSIFF COURT, PUNALUR** **...................** ## **REVISION PETITIONER/APPELLANT/RESPONDENT:** **------------------------------------------------------------** **RAMA LEKSHMI, AGED 59 YEARS, W/O. SREENIVASA CHETTIYAR, CHEMPAKASSERY COMPOUND PUNALUR MURI, PATHANAPURAM TALUK.** **BY ADVS.SRI.R.KISHORE SRI.ARUN BABU SRI.G.HARIPRASAD** ## **RESPONDENT(S)/RESPONDENT/PETITIONER:** **------------------------------------------------------** **1 ABDUL RAFEEK S/O. AHAMMED I.A.S., AC, BLOCK NO.22 ANNA NAGAR CHENNAI-40, TAMIL NADU.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 13-01-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **svs** ## **PIUS C.KURIAKOSE &** ## **C.K.ABDUL REHIM, JJ.** **=====================** R.C.R. NO. 12 OF 2012 **=====================** Dated this the 13[th] day of January 2012 ## ORDER ## **Pius C.Kuriakose,J.** Under challenge this revision filed by the tenant is the judgment of the appellate authority confirming the order of eviction passed by the Rent Control Court under Section 11(3) read with Section 11(4)(iv) of the Kerala Buildings (Lease & Rent Control) Act, 1965. The parties will be referred to as landlord and tenant. The landlord claimed proprietary title over the petition schedule building on the strength of Ext.A1 sale deed. He claimed landlord-tenant relationship between him and the revision petitioner on the RCR 12/2012 2 strength of Ext.A1 rent chit and it was averred that rent at the rate of Rs.625/- per mensem is being paid. 2. The ground urged under Section 11(3) and Section 11(4)(iv) is that the petitioner has been issued a valid plan and licence by the Punalur Municipality for construction of the building and that the landlord bona fide wants to reconstruct the building so that the landlord can occupy the same after reconstruction. The tenant through the detailed statement of objections filed in the rent control petition disputed the claim of the landlord that the landlord has proprietary title upon the building by virtue of Ext.A1 sale deed. Execution of Ext.A2 rent chit was also strongly disputed. However, tenant’s possession of the building and their juristic status in the building as a tenant was admitted, what was contended was that the building was taken on lease from one Pareedkunju (who is proved in evidence to be the maternal grandfather of the respondent). It is also claimed that upon demise of Sri RCR 12/2012 3 Pareed Kunju, the rent at the rate of Rs.625/- per mensem is being paid regularly by the revision petitioner to Shri Rahim, S/o.Shri Pareed Kunju. The bona fides of the need for reconstruction and own occupation was also disputed. It was contended that the plan and licence has been obtained from the Municipality by wielding undue influence on them. It is specifically contended that as the building is situated very near to a railway lane. Consent of the railway ought to have been obtained before the plan was approved by the Municipality. As such previous consent has not been obtained, the plan is invalid. It was alternatively contended that at any rate, the tenant is entitled to the protection of the 2[nd] proviso to sub-section (3) of Section 11. On the above pleadings , the parties went for trial before the Rent Control Court. At trial, the evidence on the side of the landlord consisted of Ext.A1 to A6. No documentary evidence was adduced over the side of the tenant. Oral evidence on the side of the landlord consisted of that of himself as PW1 and that of the revision petitioner/tenant as RCR 12/2012 4 DW1. The Rent Control court formulated the following points for consideration. 1)Whether there is a landlord – tenant relationship? 2)Whether the petitioner bona fides require the plaint schedule building for his own occupation? 3)If so, whether the tenant is entitled to protection under 2[nd] proviso to Section 11 sub section 3? 4)Whether petition schedule building bona fide require to be reconstructed? 5) If so, whether the respondent is liable to be evicted? 6) Relief and costs. 3. On evaluating the evidence, the Rent Control Court answered all the points in favour of the landlord and on the basis of the findings, order of eviction under Section 11(3) was passed taking the view that in the nature of the pleadings, substantial ground was Section 11(3) and the ground under Section 11(4)(iv) was quoted only because, the landlord wanted to occupy the building after reconstruction. The tenant prepared an appeal before the RCR 12/2012 5 Rent Control appellate authority. The learned appellate Authority under the impugned judgment has virtually confirmed all the findings of the Rent Control Court. The appeal was thus dismissed. 4. In this revision under Section 20, various grounds have been raised assailing the findings of the Appellate Authority. Sri. Arun Babu, learned counsel for the revision petitioner would address submissions before us very ably and fervently. The learned counsel would draw our attention at the very outset to the 2[nd] proviso to sub-section (1) of Section 11. He submitted that in a case where the tenant denies the title of the landlord , it is obligatory that the Rent Control Court formulates a preliminary point as to whether the above denial is bona fide and enters a finding after holding an enquiry into the same. The above procedure which is mandatory under law has not been followed in the present case. To support this argument, learned counsel placed strong reliance of the Full Bench of this Court in **Parthakumar v. Ajith Viswanathan[2006** RCR 12/2012 6 **(2)K.L.T.250]** and two Division Bench decisions of this court in **Narayan Murti v. Thankamma[** 2005 KHC 977] and in **Ratheesh Chandran A.R. v. Sarojioni Amma [2010 K.H.C.1064] .** The learned counsel would argue that on account of the non-compliance with the mandatory procedure, serious prejudice has been caused to the revision petitioner. Learned counsel also pointed out that in respect of a nearby building in which the revision petitioner’s son is the tenant and exactly identical contention was raised though the above contention was turned down by the Rent Control Court and the Rent Control Appellate Authority noticed merit in that contention and has now directed the landlord (the very same landlord) to have his remedy from competent civil court as the denial of the landlord’s title raised by the petitioner’s son was found to be bona fide. According to Shri Arun Babu, the factual situation which obtained in the present case is exactly identical and hence the case should be remitted back to the Rent Control court with a direction RCR 12/2012 7 to that court to formulate a point as to whether the denial of title is bona fide, to hold an enquiry into that point and take a decision as to whether the denial is bona fide. The learned counsel would assail the merits of the eviction ground which have been upheld. According to him, the findings regarding existence of the eviction ground under Section 11(3) which in this case is inseparably intertwined with the need of the landlord to reconstruct the building is unsupported by any acceptable legal evidence. Therefore, according to the learned counsel those findings suffer from illegalities, irregularities and improprieties as contemplated by Section 20 of Act 2 of 1965. Counsel would lastly request that the eviction order passed be vacated and the rent control petition be dismissed on merits. 5. We shall first deal with the argument of the learned counsel for the revision petitioner that as the question whether the denial of title advanced by the respondent is bona fide or not was not decided as a preliminary point, prejudice has been occasioned to the revision petitioner and that there is procedural RCR 12/2012 8 irregularity warranting interference by this Court in revision. 6. It is true that the Rent Control Court did not formulate a specific point as to whether the denial of title raised by the tenant is bona fide. In fact point No.1 raised by the Rent Control Court was whether there is landlord-tenant relationship between parties. This point was of course, not decided as a preliminary point but was decided along with other points touching the merits of the eviction grounds and the tenants eligibility for the protection of the second proviso to sub Section 3 of Section 11. It is trite that title for the purpose of Rent Control Proceedings means a landlord-tenant relationship and not proprietary title. Questions of proprietary title over the building will have only limited relevance. What is important is the existence of a landlord-tenant relationship. What we notice from the statement of objections filed by the tenant to the Rent Control Petition is that the revision petitioner did not specifically deny the claim of the landlord that he came to have ownership over the building under Ext.A1 Sale Deed. His contention is that he does not know that the petitioner has become the owner of the building as the obtaining of ownership was never conveyed to him by the RCR 12/2012 9 landlord. But he certainly denied the Rent Chit relied on by the landlord. The evidence before the Rent Control Court consisted of Exts.A1 to A6 apart from the oral evidence of PW1 the landlord and that of DW1 the tenant. 7. The learned Rent Control Court observed that “unless and until the tenant is able to establish the fact that she is having a better title over the plaint schedule property an enquiry based on Ext.A2 is not called for”. The above approach of the Rent Control Court is certainly not proper. But the Rent Control Court was correct in its view that Ext.A1 has conferred ownership over the building upon the respondent and as the revision petitioner had admitted his status to be that of a building tenant under Pareedu Kunju the grandfather of the respondent who conveyed title to the respondent and the revision petitioner had also contended that he has been paying rent even after the demise of Sri.Pareedu Kunju, the existence of a landlord-tenant relationship can be presumed. Thus in our opinion though the reasoning is not fully correct the finding of the Rent Control Court that the revision petitioner is a building tenant under the respondent is a correct finding. RCR 12/2012 10 8. Under the statutory scheme the final court on facts is the Rent Control Appellate Authority. A reading of paragraph 11 of the Rent Control Appellate Authority's judgment will show that though not after raising specific point regarding the existence of a landlord-tenant relationship, the existence of such a relationship between the revision petitioner and the respondent has been found by the Appellate Authority. The appellant Authority has stated at paragraph 11 inter alia as follows:- “The landlord-tenant relationship also proved by the production of Ext.A2 rent deed. The above relationship is admitted by DW1 during her cross examination. It has also come out in evidence that the rent is being paid without default. It may be to the younger brother of the landlord. But DW1 has no case that Ext.A1 sale deed is not genuine”. 9. What is discernible on a reading of the appellate judgment is that though in the memorandum of Rent Control Appeal, the correctness of the finding that there is landlordtenant relationship between the parties had been challenged, at the time of hearing thrust was given to the challenge against the eviction order on merits. 10. We are not impressed by the submission of the learned counsel for the revision petitioner that as the question whether RCR 12/2012 11 the denial of title is bona fide or not has been remanded to the Rent Control Court by the Rent Control Appellate Authority. On the basis of identical contentions raised in another case where the revision petitioner's son is the tenant, we should adopt the same course in this case. The present case and the case where the revision petitioner's son is tenant were tried separately and unlike that case, in the present case it has been concurrently found that there exists landlord-tenant relationship between the respondent and the revision petitioner. 11. Coming to the merits of the eviction grounds, we find that the finding that the need projected in the RCP is a bona fide one and the further finding that the revision petitioner is not entitled for the protection of the second proviso are findings entered on the basis of the evidence on record. Inspiring evidence was given before the Rent Control Court by the landlord as PW1 whose testimony in chief was not shaken in cross examination. This evidence was appreciated by the Rent Control Court and the Appellate Authority and accepted by those two authorities concurrently. It is trite by judgment of the Full Bench RCR 12/2012 12 of this Court in _Francis v. Sreedevi Varassiar (2003(2) KLT 230)_ and that of the Supreme Court in _Kunhamma v. Akkali Purushothaman (2007(3) KLT 99)_ that the burden to prove that the tenant satisfies both the ingredients of the second proviso to Sub Section 3 of Section 11 is on the tenant. It has been found by the two fact finding authorities that the tenant did not discharge that burden. Necessarily the findings have to be confirmed and the revision has to be dismissed. We do so. ## **Sd/PIUS C.KURIAKOSE,JUDGE** **Sd/-** **C.K. ABDUL REHIM, JUDGE** ## **ks/kns** ## **True copy** ## **P.S.To Judge**