RC Rev. No. 162 of 2018 – Usha, Abinav and Aswathi v. Janaki and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN MONDAY, THE 21[ST] DAY OF NOVEMBER 2022 / 30TH KARTHIKA, 1944** **RC REV. NO. 162 OF 2018 RCA 187/2016 OF RENT CONTROL APPELLATET AUTHORITY,** ## **VATAKARA** **RCP 66/2015 OF RENT CONTROL COURT, VATAKARA** ## **REVISION PETITIONERS – SUPPL. RESPONDENTS 2-4/LRs OF RESPONDENT NO.1 IN RCP:** 1 USHA, AGED 52 YEARS W/O. MANMADHAN, AGED 52, RESIDING AT ELAMPILAVIL (ALAKA), AYANIKKAD AMSOM, KOYILANDY TALUK, KOZHIKODE DIST.-673305. 2 ABINAV, AGED 29 YEARS S/O. MANMADHAN, AGED 29, RESIDING AT ELAMPILAVIL (ALAKA), AYANIKKAD AMSOM, KOYILANDY TALUK, KOZHIKODE DIST.-673305. 3 ASWATHI, AGED 26 YEARS D/O. MANMADHAN, AGED 26, RESIDING AT ELAMPILAVIL (ALAKA), AYANIKKAD AMSOM, KOYILANDY TALUK, KOZHIKODE DIST.-673305. BY ADVS. SRI.P.B.KRISHNAN SMT.B.ANUSREE SRI.P.M.NEELAKANDAN SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN RC REV. NO. 162 OF 2018 ..2.. ## **RESPONDENTS – APPELLANTS/PETITIONERS:** - 1 JANAKI, AGED 87 YEARS W/O. CHATHU, AGED 87, SWASTHAM, PAROL HOUSE, VATAKARA AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE-673101. - 2 P. K. PREMAVALLI, D/O. CHATHU, PAROL HOUSE, VATAKARA AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE-673101. - 3 P. K. SASIDHARAN, S/O. CHATHU, PAROL HOUSE, VATAKARA AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE-673101. - 4 P.K. JAYACHANDRAN, S/O. CHATHU, PAROL HOUSE, VATAKARA AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE-673101. DELETED LEGAL HEIRS IMPLEADED AS R7 TO R9 - 5 P.K. VIJAYAN, S/O. CHATHU, PAROL HOUSE, VATAKARA AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE-673101. - 6 P.K. PRASEETHA, D/O. PREMARAJAN, PAROL HOUSE, VATAKARA AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE-673101. - 7 ADDL.R7 .MEENA,W/O P.K.JAYACHANDRAN, PAROL HOUSE,VATAKARA AMSOM, DESOM,VATAKARA TALUK,KOZHIKODE-673 101 - 8 ADDL.R8. JITESH,S/O P.K.JAYACHANDRAN, PAROL HOUSE,VATAKARA AMSOM,DESOM,VATAKARA TALUK,KOZHIKODE-673 101 - 9 ADDL .R9.ARUN S/O P.K.JAYACHANDRAN, PAROL HOUSE,VATAKARA AMSOM,DESOM,VATAKARA TALUK,KOZHIKODE-673 101 ADDL.RESPONDENTS 7 TO 9 ARE IMPLEADED AS LEGAL HEIRS OF DECEASED 4TH RESPONDENT AS PER ORDER DATED 19/09/2018 IN IA 2/2018 RC REV. NO. 162 OF 2018 **==> picture [31 x 8] intentionally omitted <==** BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 21.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RC REV. NO. 162 OF 2018 **==> picture [31 x 8] intentionally omitted <==** ## **ORDER** ## A. MUHAMED MUSTAQUE, J. In a rent control petition initiated by the respondents, the revision petitioners raised a dispute on title. That objection was upheld by the Rent Control Court. In appeal, this objection was overturned and found that the dispute of title was not _bona fide_ . This is how, the revision was filed. 2. There is no dispute to the fact that in 1989, a lease was executed by the predecessor in interest of the respondents herein, viz., Sri.Chathu, in favour of the predecessor in interest of the revision petitioners, viz., Sri.Manmadhan. The property originally belonged to Kuttippuram Kovilakam. There was a suit for partition in respect of the properties owned in 'jenmam' of the Kuttippuram Kovilakam. In that suit, a receiver was appointed, who was RC REV. NO. 162 OF 2018 **==> picture [31 x 8] intentionally omitted <==** authorized to sell some of the properties. Admittedly, the land, on which the building in question situates, also was sold by the receiver. Sri.Manmadhan was the purchaser of the land, as seen from Ext.B1, in the year 2002. The respondents claim that Sri.Manmadhan paid rent upto 2015. The revision petitioners raise the issue of maintainability of the revision control petition, contending that since Sri.Manmadhan purchased the entire right in the property, there is a determination of lease under Section 111 of the Transfer of the Property Act and there exists no landlord-tenant relationship. The Rent Control Court upheld the objection holding that the tenant having purchased the 'jenmam' right over the property from the receiver, he became the absolute owner. The Rent Control Court relied on the basic tax receipts in favour of Sri.Manmadhan. 3. In appeal, the appellate authority noted that RC REV. NO. 162 OF 2018 **==> picture [31 x 8] intentionally omitted <==** denial was not _bona fide_ inasmuch as that, what was acquired by the tenant, Sri.Manmadhan, is only the ownership of the land and not the ownership of the building. Therefore, finding that there exists a landlord-tenant relationship between Sri.Manmadhan and Sri.Chathu followed by the legal heirs of both parties, the appellate authority held that the rent control petition for eviction is maintainable. 4. The learned counsel for the revision petitioners submits that the larger right of ownership of the property having acquired by Sri.Manmadhan, there exists a merger and therefore, the petition for eviction is not maintainable. Further, it is argued that when, _prima facie,_ the revision petitioners were able to demonstrate paramount title of the land vested with them, it was not proper for the Rent Control Court or the appellate authority to conduct further enquiry in the petition for RC REV. NO. 162 OF 2018 **==> picture [31 x 8] intentionally omitted <==** eviction. The objector only need to point out as to the maintainability. Once the objector is able to demonstrate that the dispute regarding title is _bona fide,_ parties ought to have been relegated to a civil court for further decision. It is further submitted that the appellate authority erred in embarking upon enquiry as to the title inasmuch as that such adjudication is possible only through a civil court. 5. _Per contra_ , the learned counsel for the respondents submits that Sri.Manmadhan or his legal heirs had no case that they have purchased the entire rights over the property. It is further pointed out that Sri.Manmadhan paid rent upto 2015 even after existence of Ext.B1, purchasing the interest of the land in the year 2002. It is further argued that, what was sold by the receiver is the 'jenmam' right of the land belonging to Kovilakam and not the entire right over the land. It is further RC REV. NO. 162 OF 2018 **==> picture [31 x 8] intentionally omitted <==** submitted that the land outstanding with 'kanam' is independent distinct right, sold as 'jenmam' in law by the receiver. 6. There cannot be any dispute under law that one can be the owner of the building and another can be the owner of the land. The distinct interest one can hold in respect of the same land in law is recognized in a different mode. The lease is a creation by contract. It is not necessary that one should have paramount interest in respect of the land, in which the superstructure exists. The superstructure is having all qualifications of a building, irrespective of whether one is such owner of the building, who has ho interest in the land, on which such construction is made. The competency of such owner of the building to enter into a lease agreement cannot be doubted. That being the case, the scope of enquiry in such cases is to find out the nature of relationship between the parties in making RC REV. NO. 162 OF 2018 **==> picture [31 x 8] intentionally omitted <==** contractual obligation in respect of the building. 7. True that by assigned definition under Section 2 of the Kerala Buildings (Lease & Rent Control) Act, 1965, the building includes appurtenant, but, that does not mean that mere acquisition of the land, on which such construction is made, will create an interest in the building along with interest in the land, when somebody acquires interest in the land. In order to acquire interest in the building, there must be a transfer of interest in that building as well. The doctrine of merger would apply when larger interest subsumes smaller interest by transfer of interest by parties or through operation of law. It is not a case, _prima facie_ , where the objector/revision petitioners were able to demonstrate before the authorities below that they have acquired any interest in the building. In the absence of any evidence or RC REV. NO. 162 OF 2018 **==> picture [37 x 8] intentionally omitted <==** materials being placed before the court below to show that they have acquired interest in the building, the appellate authority was justified in holding that there exists landlord-tenant relationship. 8. The judgments relied on by the learned counsel for the revision petitioners in **D.Satyanarayana** v. **P.Jagadish** [AIR 1987 SC 2192], **Subhash** **Chandra v. Mohammad Sharif & Ors. [AIR 1990 SC** **636]** etc., cannot have much relevance in this case inasmuch as that the revision petitioners so far are not able to establish acquisition of any interest over the building. However, we are not denying an opportunity to the tenants to prove before the court below that they have acquired interest in the building. This is a case, where the dispute is presently arisen in a threshold when the revision petitioners raised an objection to the acquisition of the building. Still, we are of the view that an opportunity can be given to the revision RC REV. NO. 162 OF 2018 **==> picture [37 x 8] intentionally omitted <==** petitioners to produce any material to prove before the authorities below at the final stage to prove that they have acquired interest in the building as well. In that case, if the authorities below is of the view that the revision petitioners/tenants acquired interest in the building, no doubt, it may cause to jurisdiction of the court in deciding the case and if that be so, the present order will not prevent the authorities below for revisiting the issue on dispute regarding the title. With liberty as above, we dismiss the revision. ## **Sd/-** ## **A. MUHAMED MUSTAQUE** ## **JUDGE** **Sd/-** ## **SHOBA ANNAMMA EAPEN** **JUDGE** bka/-