RCR No. 208 of 2011

# **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 12TH DAY OF JANUARY 2012/22ND POUSHA 1933** ## **RCR.No. 208 of 2011** **----------------------RCA.109/2011 of ADDL.D.C. & ADDL.MACT,THALASSERY RCP.331/1999 of PRL.M.C.,KANNUR** ## **REVISION PETITIONER(S)/REVN.PETITIONER/RESPONDENTS.:** **---------------------------------------------------** **1. K.E.AYSHA,W/O.LATE C.V.C.MAMMU,AGED 61 YEARS,RESIDING AT ROSHAN HOUSE, KOTTACHERRY LANE THANA,KANNUR-12.** **2. RAHMAN, S/O.LATE C.V.C.MAMMU,AGED 52 YEARS,RESIDING AT ROSHAN HOUSE, KOTTACHERRY LANE THANA,KANNUR-12.** **3. K.E.MARIYU,D/O.LATE C.V.C.MAMMU,AGED 53 YEARS,RESIDING AT ROSHAN HOUSE, KOTTACHERRY LANE THANA,KANNUR-12.** ## **4. K.E.ROUSIYATH,D/O.LATE C.V.C.MAMMU,AGED** **45 YEARS,RESIDING AT ROSHAN HOUSE, KOTTACHERRY LANE THANA,KANNUR-12.** ## **5. K.E.RAMEEZ,S/O.LATE C.V.C.MAMMU,AGED** **37 YEARS,RESIDING AT ROSHAN HOUSE, KOTTACHERRY LANE THANA,KANNUR-12.** **BY ADVS.SRI.A.MOHAMED MUSTAQUE SRI.K.R.AVINASH (KUNNATH)** ## **RESPONDENTS/APPELLANT/RESPONDENT.:** **------------------------------------** - **1 KUNHIPURAYIL SHAIK MOIDEEN,** **S/O.SHAREEFABI,AGED 60 YEARS, OCCUPATION NIL RESIDING AT AYIKKARA,KANNUR-3.** **R1 BY SRI.P.M.PAREETH** **AMICUS CURIAE MR. B.JAYASANKAR** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 12-01-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **C. R** ## **PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ.** **=====================** R.C.R. NO. 208 OF 2011 **=====================** Dated this the 12[th] day of January 2012 ## ORDER ## **Pius C.Kuriakose,J.** The tenants are the revision petitioners in this revision under Section 20 of Kerala Buildings (Lease & Rent Control) Act 2 of 1965. They challenge the judgment of the Rent Control Appellate Authority reversing the finding of the Rent Control Court that the Rent Control petition is not maintainable for the reason that the original tenancy has been split up and the petitioner is seeking only partial eviction in respect of the premises which had been originally let out. The respondent is the landlord and the revision petitioners are tenants being the successors in interest of the original tenant one Mammu. The original tenant was the RCR 208/2011 2 husband of the first revision petitioner and the father of the other revision petitioners. According to the revision petitioners, the original landlady leased out the petition schedule building along with the adjacent building, to late Mammu as per a cooli chit dated 23/1/1970, on a monthly rent of Rs.145/-, which was later enhanced to Rs.170/-. The respondent-landlord filed Rent Control Petition alleging that the petition schedule building was gifted to him by Smt. Shereefa Beevi while the adjacent building covered by the cooli chit was gifted to his brother. Eviction was sought for by the respondent on various grounds such as Section 11(2) (b), 11(3), 11(4)(ii) and 11(4)(iii) of the Act. The Rent Control Court came to the conclusion that as the original lease was in respect of not only the petition schedule room but also the adjacent room, a splitting up of the tenancy by Shereefa Beevi through the gift deed, is not permissible in law and hence the very Rent Control Petition is not RCR 208/2011 3 maintainable. On that reason, the Rent Control Petition was dismissed by the Rent Control Court without adverting to the merits of the eviction grounds. 2. Respondent preferred R.C.A.No.109/2001 before the Rent Control Appellate Authority, Thalassery. The learned appellate Authority relied on the judgment of a Division Bench of this court in **Mar Appraem Kuri Company v. Dix [2004(1)K.L.T.678]** and took the view that Section 109 of the Transfer of Property Act provides a statutory exception to the Rule that a landlord cannot split up the unity and integrity of the tenanancy and recover possession of a part of the demised premises from the tenant. Following the above judgment to which one among us (Pius C.Kuriakose,J.) is party, it was held that as there is no dispute regarding the identity of the portion assigned to the respondent(landlord) and as eviction ground is established under Section 11, the splitting up made by the original RCR 208/2011 4 landlord can be approved even without the consent of the tenant. Accordingly, the Rent Control Appellate Authority held that the Rent Control Petition is maintainable and allowed the Rent Control Appeal by passing an order of remand and the R.C.P.was remitted back to the Rent Control Court directing the Rent Control Court to take a decision on the merits of the eviction grounds. 3. In this revision under Section 20, various grounds have been raised challenging the judgment of the Rent Control Appellate Authority. It is urged in the memorandum of revision that the facts of **Mar Appraem Kuri Co.’s case(supra)** and the facts which obtained in the present case are different. In **Mar Appraem Kuri Co.’s case** , the tenancy was split up as ground floor and up stair portion. But in the present case, the entire building is in the ground floor itself. It is urged that the integrity of the tenancy has been split up in a manner detrimental to the RCR 208/2011 5 interest of the tenant. It is also urged that the validity of the gift deed should have been gone into by the appellate authority. 4. We have heard the submissions of Sri Muhammed Mustaque, learned counsel for the revision petitioner and Shri P.M.Pareed, learned counsel for the respondent. Shri Muhammed Mustaque would draw our attention to the judgment of a subsequent Division Bench of this Court in **Antony v. Kesavan[2007(1)K.L.T. 740]** . According to Mr. Muhammed Mustaque, it has been very clearly held in that decision, that in the absence of a statutory provision, a single indivisible contract of tenancy cannot be split up and also that splitting up of tenancy is not contemplated under Kerala Buildings Rent Control Act and further that there is no provision in the Act for granting partial eviction of the premises. According to Mr. Muhammed Mustaque, RCR 208/2011 6 the subsequent decision rendered by a Co-ordinate Bench is to be followed and the judgment in **Mar Appraem Kuri Co.Ltd.** v **. Dix(supra)** cannot have any application. 5. Mr.Muhammed Mustaque would further submit that even if it is assumed that he judgment in **Antony v. Kesavan(supra)** is a judgment rendered per incuriam as the same was rendered without reference to the judgment in **Mar Appraem Kuri Co.’s case(supra)** , then also the splitting up of the tenancy, even if permissible under Section 109, can only be subject to Section 108(c) of the Transfer of Property Act. According to Mr. Muhammed Mustaque, under Section 108(c), a splitting up which will result in interruption of the enjoyment of the lease hold for the purpose for which the lease was given cannot be permitted. Mr.Muhammed Mustaq requested that the Rent Control Court be directed to consider whether splitting up of RCR 208/2011 7 tenancy in the present case has not resulted in interruption of the enjoyment of the lease by the revision petitioner as contemplated under Section 108(c) of the Transfer of Property Act. 6. Shri P.M.Pareed, learned counsel for respondent would support the impugned judgment of the Appellate Authority on the reason stated in that judgment. According to Shri Pareed, the judgment in **Antony’s case (supra** ) which has been rendered without referring to the judgment in **Mar Appraem Kuri Co.’s** case rendered by a Co-ordinate Bench is rendered per incuriam and will not have any probative force. Mr. Pareed also referred to a still subsequent judgment rendered by another Division Bench in **K. George v. Thankamma Varghese[CDJ 2009 Ker HC 767]** authored by one among us (Pius C.Kuriakose,J). It was submitted that the subsequent Division Bench in RCR 208/2011 8 **K.George v. Thankamma Varghese,** noticed and followed the judgment in **Mar Appraem Kuri Co.’s case** . 7. In view of the importance of the issue involved and the apparent conflict between the views taken in **Mar Appraem Kuri Co.’s case(supra)** , **K.George v. Thankamma Varghese(supra)** and the view taken in **Antony v. Kesavan(supra),** we requested Sri. B.Jayasankar, Advocate to assist the court as Amicus Curiae. He readily agreed and would address us in support of the view taken by the learned appellate Authority in the impugned judgment. 8. Our attention was drawn by Shri Jayasankar to the judgment of the Supreme Court in **Mohar Singh v. Devi Charan[A.I.R. 1988 S.C. 1365]** wherein Supreme Court has held that Section 109 of the Transfer of Property Act provides statutory exception to the Rule that the landlord cannot split up the unity and integrity of the tenancy and RCR 208/2011 9 recover possession of a part of the demised premises from the tenant. Our attention was drawn by Mr.Jayasankar also to the judgment of the Supreme Court in **SK Sattar SK Mohd.Choudhar v. Gundappa Amabadas Bukate [(1996)6 S.C.C. 373]** which takes the view that though the identity and integrity of a tenancy cannot be split up, either in estate or in any other obligation, by the unilateral act of one of the co-owners (when the entire building belonged to co-owners in common), if all the co-owners or co-lessors agree among themselves and split up by partition the demised property by metes and bounds and come to have definite, positive and identifiable shares in that property, they become separate individual owners of each severed portion and can deal with that portion as also the tenant thereof as individual owner/lessor. Reference was made by Mr.Jayasankar also to the judgment of the Supreme court in **Miss S.Sanyal v. Gian Chand[1968 AIR** RCR 208/2011 10 ## **(SC)-0-438]** also . 9. We have considered the submissions addressed at the Bar by the learned counsel for the parties and also by the learned Amicus Curiae. The ratio of the judgment **in Mar Appraem Kuri Co.’s case** endorsed by another Division Bench in **K.George v. Thankamma Varghese (supra)** is clear and does not admit of any ambiguity. The same is that Section 109 of the Transfer of Property Act provides a statutory exception to the Rule that a single indivisible contract of tenancy cannot be split up unless there is statutory provision to that effect or by a contract between the parties. The above statutory exception provided under Section 109, which deals with the rights of the transferee of a lessor, enables such transferee of a portion to exercise all the rights of the landlord in respect of the portion of the building assigned to him. In fact it was by following the judgment of the Supreme court in **Mohar** RCR 208/2011 11 **Singh v. Devi Charan(A.I.R.1988 S.C.1365]** that the Division Bench decided **Mar Appraem Kuri Co.’s case** . It was held in **Mar Appraem Kuri Co.’s** case thus: _“On purchasing the tenanted premises unity and integrity of the estate could be split up and the assignee landlord could seek eviction on the available grounds under Section 11 of the Act. The assignee however, has to show that the assigned portion is in a state of being identified and partial eviction is possible on facts. There is no need for the consent of the tenant for severance of the reversion and the assignment of the part so severed. Further there is no need for a_ consensual attornment since the attornment is brought about by operation of law.” It was after referring to the entire gamut of the case law pertaining to the issue that the above view was taken in RCR 208/2011 12 ## **Mar Appraem Kuri Co.'s** case **.** 10. That the original tenancy in this case pertained to two different identifiable rooms and that the petition schedule building is one of those two rooms is evident and is not disputed. The principles laid down in **Mar Appraem Kuri Co.’s case(supra)** squarely apply to the facts of the present case. Subsequent Bench decision in Antony v. Kesavan has been rendered without reference to the earlier Bench decision in **Mar Appraem Kuri Co.’s case.** It is clear to our mind that the decision in **Antony's case (supra)** has been rendered per incuriam and cannot be binding on the learned appellate Authority. 11. We shall now consider the arguments of Mr.Muhammed Mustaque, founded on Section 108( c) of the Transfer of Property Act. Section 108(A) deals with the rights and liabilities of the lessor and Section 108 (B) deals with rights and liabilities of the lessee. Section 108(c) RCR 208/2011 13 which comes under (A), provides the lessor shall be deemed to contract with the lessee that if the latter pays the rent reserved by the lease and performs the contract binding on the lessee, he may hold the property during the time limited by the lease without interruption. It is also provided that the benefit of such contract shall be annexed to go with the lessee’s interest as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested. The argument of Mr.Muhammed Mustaque was that a splitting up which is permitted under Section 109 shall not affect the lessee’s right to hold the property during the time limited by the lease without interruption. When we requested Mr.Muhammed Mustaq to expatiate the argument, he submitted that it has to be ensured that even after the splitting up, the lessee is able to carry on the activities which he would otherwise carry on in the original building RCR 208/2011 14 uninterruptedly. 12. For several reasons, we are not impressed by the argument advanced by Mr.Muhammed Mustaque in the above line. On going through the detailed statement of objections filed by the revision petitioners, it is seen that though they have described the splitting up of the tenancy as a dubious act and have even challenged the maintainability of the Rent Control petition on the reason that the tenancy has been split up, they do not contend even for a moment that because of the above splitting up, it has become impossible for them to carry on their business. We also do not think that Section 108(c) guarantees to the tenant the right to continue the same business originally started by him in the premises or to the same extent. So far as we can see Section 108(c) guarantees to the tenant, the right to hold the leased property till the period of lease is over. There is no case for the revision petitioners that RCR 208/2011 15 the period prescribed by the original cooli chit has not expired. Obviously, the revision petitioners are continuing as tenants holding over from month to month. They are sought to be evicted in terms of Section 11 of Act 2 of 1965, which is the law which governs the liability of all statutory tenants be evicted. 13. The result of the above discussion is that we do not find any infirmity about the judgment of the appellate Authority. We confirm the same and dismiss the R.C.R., however without any order as to costs. We also place on record our appreciation for the ability and learning with which Sri B.Jayasankar, the amicus curiae assisted us. ## Sd/- ## PIUS C. KURIAKOSE, JUDGE Sd/- ks. C.K.ABDUL REHIM,JUDGE True copy P.S.to Judge RCR 208/2011 16 RCR 208/2011 17