RCR No.51 of 2012 (B)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **THURSDAY, THE 23RD DAY OF FEBRUARY 2012/4TH PHALGUNA 1933** **R.C.Rev..No. 51 of 2012 (B) --------------------------IN RCA.4/2009 of ADDL.DISTRICT COURT-I,MAVELIKKARA IN OP.12/2005 of MUNSIFF COURT,KAYAMKULAM** ## **REVISION PETITIONERS/APPELLANS/COUNTER PETITIONERS** **--------------------------------------------------** **1. R.SABBALEKSHMI BHAGAVATHY NIVAS, ANDA MUKKAM WARD,** - **KOLLAM EAST VILLAGE, KOLLAM.** **2. SUBBAYYA REDDIYAR,** - **SAKUNTHALA NIVAS, LEKSHMI NADA, KOLLAM.** **BY ADVS.SRI.B.KRISHNA MANI SRI.D.KESAVAN NAIR SMT.N.V.SANDHYA** **RESPONDENT/RESPONDENT/PETITIONER: --------------------------------** **DR.ANUJI DEENA JOHN NADAKKAPADICKAL VEEDU, CHIRAKKADAVAM MURI, KAYAMKULAM VILLAGE, KARTHIKAPPALLAY TALUK-690502.** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 23-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **MG** ## **PIUS C.KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ --------------------------------------------RCR No.51 of 2012 --------------------------------------------Dated this the 23[rd] day of February 2012** ## **JUDGMENT** ## **Pius C.Kuriakose, J** Under challenge in this revision filed under Section 20 by the tenant who are facing eviction before the rent control court on the ground of sub letting, is the judgment of the rent control appellate authority confirming the finding of the rent control court on a preliminary point as to whether the claim of permanent tenancy raised by the revision petitioners in respect of the building is the bonafide one. The revision petitioners claim permanent tenancy on the basis of Exts.B1 and B2. Ext.B1 is a rent chit which will show that a sum of Rs.18,000/- was advanced by the first revision petitioner to the predecessor in interest of the RCR No.51 of 2012 2 respondent (the original landlord) towards cost of construction of the building. Ext.B2 is a lease deed executed between the first respondent/the tenant and the second respondent, the alleged sub lessee. Ext.B2 will show that apart from the amount of Rs.18,000/originally advanced under Ext.B1, the first revision petitioner advanced a further amount of Rs.6500/more. The claim of permanent tenancy is raised on the basis of Section 106 of the Kerala Land Reforms Act (hereinafter referred to as 'KLR Act' for short). It is contended that what was let out was land and as the building in question was actually constructed with funds advanced by the first revision petitioner, the first revision petitioner has got a claim of permanent tenancy or immunity from eviction in terms of Section 106 of the Act. We find that the learned rent control court, on a meticulous analysis of the terms of Exts.B1 and B2, came to the conclusion that Ext.B1 discloses a lease of RCR No.51 of 2012 3 the building. It was accordingly found that the first revision petitioner cannot be entitled for the benefits of Section 106 of the KLR Act. Consequently, it was found that the juristic status of the first respondent can only be that of a building tenant who had advanced amounts to the original landlord, the predecessor in interest of the first respondent (the petitioner in the RCP) for carrying out the construction. 2. The rent control appellate authority considered an appeal preferred by the revision petitioners jointly and has confirmed the order of the rent control court which is impugned in this revision. 3. In this revision under Section 20, various grounds have been raised assailing the judgment of the appellate authority. It was very extensive submissions which were addressed before us by Sri.B.Krishnamani, the learned counsel for the revision petitioners. Strong reliance was placed by Mr.Krishnamani on the judgment RCR No.51 of 2012 4 of this Court in _**M.Raman Pillai**_ v _**K.I.George and another**_ (1974 KLT 246) wherein it has been held that the requirement of Section 106 is only that the building in question should have been constructed by the lessee. Mr.Krishnamani also referred to the judgment of a Division Bench of this Court in _**Govinda Panicker**_ v _**Sreedhara Warrier**_ (2000(2) KLT 43) and submitted that the question as to whether a person is entitled to the benefits of Section 106 need not be referred to the Land Tribunal. The intention of the parties behind the execution of Ext.B1 is to be decided by the rent control court at the initial stage through an enquiry. As directed by us, readable copies of Exts.B1 and B2 were made available before us by Sri.Krishnamani and we have very carefully gone through those copies. 4. The question which arises for consideration before us is whether the judgment of the appellate RCR No.51 of 2012 5 authority which is impugned in this revision suffers from any illegality, irregularity or impropriety as envisaged by Section 20 of Act 2 of 1965. As already indicated, it has been concurrently decided by the two fact finding authorities under the statute, i.e. the rent control court and the appellate authority, that the claim of permanent tenancy or immunity from eviction raised by the first revision petitioner on the basis of Ext.B1 is not sustainable as Ext.B1 makes out an arrangement of lease in respect of a prospective building and not an arrangement of lease of the land giving permission to the lessee of the land to put up the building. The maximum that will turn on Ext.B1 is that the building in question was constructed by utilising the amounts which were advanced by the first revision petitioner. But, it has been expressly agreed in Ext.B1, a document which is not disputed by the first revision petitioner and is actually relied on by her, that the first revision RCR No.51 of 2012 6 petitioner will be liable to pay rent for the prospective building – the building which is the subject matter of the present rent control petition. The judgment of a Division Bench of this Court in _**Aboobacker**_ v _**Girija**_ (1995 (1) KLT 553) is a leading light on the law pertaining to the claim of permanent tenancy and denial of title as contemplated under proviso to Section 11(1) of Act 1955. The question to be considered is whether the chance of the revision petitioners' of success, if they are relegated to a civil court are very bright. Applying the law as laid down in _**Aboobacker**_ v _**Girija**_ (supra), it is not difficult for us to conclude that in the teeth of Ext.B1 chances of the first revision petitioner's contention, that she is a lessee of the land and that the building was put up by her and the building belongs to her, being upheld by the civil court (in the event of a reference of civil court) are very remote. In short, we do not find any illegality, irregularity or impropriety RCR No.51 of 2012 7 about the judgment of the appellate authority. 5. Revision Petition is dismissed. However, we make it clear that the merits of the eviction ground raised in the rent control petition will be considered and decided by the rent control court on evaluation of the evidence which comes on record in the case. That court will not be influenced by the impugned judgment of the appellate authority and also by our own present judgment confirming the same while deciding the eviction grounds raised in the RCP. ## **Sd/- PIUS C.KURIAKOSE, JUDGE** ## **sd/- A.V.RAMAKRISHNA PILLAI, JUDGE css/** ## **true copy** ## **P.A.TO JUDGE**