Ravikumar S/o David; Ravi Kiran; Neethi Nagar, Peroorkada Village, Thiruvananthapuram v. D. Purushothaman S/o David, Sobha Bhavan, Manikanteswaram P.O., Thiruvananthapuram

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **THURSDAY, THE 9TH DAY OF MARCH 2017/18TH PHALGUNA, 1938** **RSA.No. 1160 of 2012 ()** **------------------------** **AGAINST THE JUDGMENT IN AS 133/2008 of PRL.SUB COURT,TRIVANDRUM AGAINST THE JUDGMENT IN OS 1230/2007 of I ADDL.M.C.,TRIVANDRUM APPELLANT(S)/APPELLANT/PLAINTIFF:** **--------------------------------** ## **RAVIKUMAR, S/O.DAVID, RAVI KIRAN, NEETHI NAGAR, PEROORKADA VILLAGE, THIRUVANANTHAPURAM.** ## **BY ADVS.SRI.G.P.SHINOD** **SRI.MANU V. SRI.RAM MOHAN.G.** ## **RESPONDENT(S)/DEFENDANT/DEFENDANT:** **---------------------------------** **D.PURUSHOTHAMAN** **S/O.DAVID, VP III/744, SOBHA BHAVAN, MANIKANTESWARAM P.O., THIRUVANANTHAPURAM.** **R BY ADV. SRI.G.SUDHEER** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **[CR]** ## **B. KEMAL PASHA, J.** ................................................................ R.S.A. No. 1160 of 2012 ............................................................... Dated this the 9[th] day of March, 2017 ## **J U D G M E N T** Challenging the concurrent findings entered by the First Additional Munsiff's Court, Thiruvananthapuram in O.S.No.1230/2007, followed by those of the Principal Subordinate Judge's Court, Thiruvananthapuram in A.S.No.133/2008, the plaintiff in the suit has come up with this second appeal. 2. The suit is one for recovery of possession based on title, for a decree of perpetual injunction and for realisation of arrears of rent. Relief (A) has been sought for as follows: “A decree be passed declaring independent title and possession of the plaintiff over the plaint schedule property R.S.A.1160 of 2012 -: 2 :- and also the plaintiff may be allowed to recover possession of the plaint schedule property and building by evicting the defendant.” 3. The plaintiff and defendant are direct brothers. According to the plaintiff, the plaint schedule property having an extent of 13 cents and a building thereon was purchased by the plaintiff through Ext.A1 sale deed from one Kunjan. The same is out of a larger extent of 1 acre and 67½ cents of property devolved on Kunjan through Ext.B18 gift deed. Ext.A1 is dated 15.5.1996. It is the case of the plaintiff that the defendant, who is the brother, had no place of abode, whereby the defendant approached the plaintiff and sought for the building in the said property on lease. Accordingly, the plaintiff rented out the building to the defendant, allegedly on an oral arrangement on a monthly rent of ₹ 100/-. 4. Admittedly, the area wherein the building is situated is a notified area coming under the provisions of the R.S.A.1160 of 2012 -: 3 :- Kerala Buildings(Lease and Rent Control) Act(hereinafter referred to as _'the Rent Control Act'_ ). Even though the main relief sought for is one for declaration of title and possession and also for recovery of possession of the building by vacating the defendant, precisely it seems that the main relief sought for is one for recovery of possession based on title. On the basis of the averments contained in the plaint, the suit is not maintainable before a civil court. When recovery of possession based on title is sought for, especially by alleging that there is a rental arrangement between the parties, the plaintiff ought to have preferred a rent control petition before the rent control court on any of the grounds mentioned under Section 11 of the Rent Control Act. Section 11(2) of the Rent Control Act clearly takes away the jurisdiction of the civil court in such matters. Under Section 11(1) of the Rent Control Act, notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution R.S.A.1160 of 2012 -: 4 :- of a decree or otherwise, except in accordance with the provisions of the Rent Control Act. Even if a decree is there prior to the inclusion of the area within the notified area on which, the provisions of the Rent Control Act are applicable, even then such a decree becomes not executable. 5. Matters being so, the suit itself is not maintainable before a civil court. Of course, on the filing of the Rent Control Petition by the plaintiff, the defendant may take up a contention that the plaintiff has no title. In such case, as per the provisions under the second proviso to Section 11(1) of the Rent Control Act, where the tenant denies the title of landlord, the Rent Control Court shall decide whether the denial is _bona fide,_ and if it records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a civil court and such court may pass a decree for eviction on any of the grounds mentioned under Section 11. Therefore, the provision is clear. In this particular case, the plaintiff ought to have approached the R.S.A.1160 of 2012 -: 5 :- Rent Control Court and ought to have invoked the provisions contained under the second proviso to Section 11(1) of the Rent Control Act, in case of denial of his title by the defendant. 6. The learned counsel for the respondent has relied on the decision in _**M/s East India Corporation Ltd. v. Shree Meenakshi Mills Ltd**_ . _[AIR 1991 SC 1094]_ wherein it was held: “What is stated in the second proviso to S.10(1) is the sole circumstance in which the Civil Court is invested with jurisdiction in matters of eviction. But the jurisdiction cannot be invoked otherwise than as stipulated in the second proviso. This means that the condition precedent to the exercise of jurisdiction by a Civil Court is that the tenant should have denied the title of the landlord or claimed right of permanent tenancy and the Controller should, on such denial or claim by the tenant, reach a decision whether such R.S.A.1160 of 2012 -: 6 :- denial or claim is bona fide. Upon such decision, the Controller must record a finding to that effect. In that event, the landlord is entitled to sue for eviction of the tenant in a Civil Court. Where these conditions are satisfied, the Civil Court will have jurisdiction to pass a decree for eviction on any of the grounds mentioned in S.10 or Ss.14 to 16, notwithstanding that the Court has found that the tenant's denial of the landlord's title does not involve forfeiture of the lease, or, his claim of right of permanent tenancy is unfounded. Except to this limited extent, the jurisdiction of the Civil Court in matters of eviction of a tenant is completely barred and the jurisdiction in such matters is vested in the tribunals set up under the statute.” 7. The learned counsel for the appellant has pointed out that both the courts below have found that the plaintiff has no title. The said finding entered by both the courts R.S.A.1160 of 2012 -: 7 :- below are without jurisdiction in view of Section 11(1) as well as Section 11(2)(a) of the Rent Control Act. There is inherent lack of jurisdiction on the part of both the courts below to entertain the said matter. Therefore, the said findings entered by both the courts below are liable to be set aside. The suit itself is not maintainable and therefore, the suit is liable to be dismissed. 8. Still it is open to the plaintiff to pursue his remedies through the Rent Control Court, if so advised. In such case, the defendant can take up all the possible contentions. In the result, this Second Appeal is allowed and the judgments and decrees passed by the both the courts below are set aside. The suit is not maintainable and therefore, the suit stands dismissed. All the interlocutory applications in this appeal are closed. ## **Sd/- B. KEMAL PASHA, JUDGE.** ul/- // true copy // P.S. to Judge.