RCR Nos. 123 & 126 of 2012 (Tenant revisions against Rent Control petition—G. Pankajakshy, K. Sathi, K. Ramesh v. Rajan K. Abraham)

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 WEDNESDAY, THE 4TH DAY OF APRIL 2012/15TH CHAITHRA 1934 RCRev..No. 123 of 2012 () ------------------------RCA.35/2007 of RENT CONTROL APPELLATE AUTHORITY, KOTTAYAM RCOP.34/2005 of RENT CONTROL COURT, KOTTAYAM REVISION PETITIONER(S)/APPELLANTS-RESPONDENTS 1 TO 3: ----------------------------------------------------- 1. G.PANKAJAKSHY W/O LATE P.S.KESAVAN VAIDYAN, DHANWANTHARI BHAVAN, PALACE WARD. ALAPPUZHA. 2. K.SATHI D/O LATE P.S.KESAVAN VAIDYAN, DHANWANTHARI BHAVAN, PALACE WARD. ALAPPUZHA. 3. K.RAMESH, S/O LATE P.S.KESAVAN VAIDYAN, DHANWANTHARI BHAVAN, PALACE WARD. ALAPPUZHA. - BY ADVS.SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI RESPONDENT(S)/RESPONDENTS-PETITIONER & COUNTER PETITIONERS 4 TO 10: -------------------------------------------------------------- 1. SHRI RAJAN K.ABRAHAM, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, ROY CHERIAN, AGED 45 YEARS, VELANGATTU THEKKEMURIYIL, MANGANAM KARA VIJAYAPURAM VILLAGE, KOTTAYAM - 686 001. 2. SHRI. K. DINESH, AGED 60 YEARS, S/O LATE P.S.KESAVAN VAIDYAN, DHANWANTHARI BHAVAN, PALACE WARD, ALAPPUZHA 688 008. 3. SMT. K.LEELA, AGED 50 YEARS D/O LATE P.S.KESAVAN VAIDYAN, DHANWANTHARI BHAVAN, PALACE WARD, ALAPPUZHA 688 008. 4. SMT. K.PRIYA, AGED 35 YEARS, D/O LATE P.S.KESAVAN VAIDYAN, DHANWANTHARI BHAVAN, PALACE WARD, ALAPPUZHA 688 008. 5. SMT. SARAMMA PUNNEN, AGED 57 YEARS, W/O LATE PUNNEN KURUVILA, VELANGATTU HOUSE, MATTEETHARA THOP, YWCA LANE, KOTTAYAM 688 008. 6. SMT. ASHA PUNNEN, AGED 36 YEARS,D/O LATE PUNNEN KURUVILA, VELANGATTU HOUSE, MATTEETHARA THOP, YWCA LANE, KOTTAYAM 688 008. 7. SHRI ANU PUNNEN, AGED 34 YEARS,D/O LATE PUNNEN KURUVILA, VELANGATTU HOUSE, MATTEETHARA THOP, YWCA LANE, KOTTAYAM 688 008. 8. SHRI NATESAN P.P. AGED 38 YEARS, AISWARYA JEWELLERY, KMC XII, ROOM NO.1503, K.K.ROAD, OPP. SEEMATTI, KOTTAYAM 686 001, RESIDING AT POOVELIKUNNEL HOUSE, AMAYANNOOR P.O. KOTTAYAM DISTRICT. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 0404-2012, ALONG WITH RCR. 126/12 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C. KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ.** -------------------------------------------------------------RCR. Nos. 123 & 126 of 2012 ----------------------------------------------Dated this the 4[th] day of April, 2012 ## **O R D E R** ## **Pius C.Kuriakose, J.** These belated revisions are filed by the tenants. Under challenge in these revisions is the decision of the Rent Control Appellate Authority to confirm the finding entered by the Rent Control Court in favour of the maintainability of the rent control petitions and also the bonafides of the denial of the landlord's title raised in RCP. No. 34 of 2005 corresponding to RCA. No. 35 of 2007 and RCR. No. 123 of 2012. The Rent Control Court by a common order, ordered eviction on the ground under sub-section (3) of Section 11 in both the rent control petitions. This was done after repelling contentions regarding maintainability and also the contention regarding title raised in one of the RCPs. The RCR. Nos. 123 & 126 of 2012 -2- Rent Control Appellate Authority under the impugned common judgment while upholding the findings of the Rent Control Court in the landlord's favour regarding the maintainability of the rent control petitions and also regarding title ( in the sense of the landlord's entitlement to receive rent and to seek eviction) interfered with the eviction order, holding that the need projected by the landlord is not bona fide and allowed the RCA to that extent. We have today by a detailed common judgment in RCR. Nos. 339 and 341 of 2011 filed by the landlord restored the eviction order passed by the Rent Control Court under Section 11(3). In that judgment however, we did not deal with the contentions regarding maintainability or regarding title in view of the pendency of these revisions. 2. The only issue which calls for decision in these cases is whether the findings concurrently entered by the Rent Control Court and the Appellate Authority in these two cases regarding the maintainability of the rent control petitions and also regarding the right claimed by the RCR. Nos. 123 & 126 of 2012 -3- landlord in the buildings warrant interference. We therefore in this judgment are referring to the pleadings only to the extent necessary for deciding the issue involved in these revisions. Both the rent control petitions were filed by the landlord Sri.Rajan K. Abraham (the respondent in RCR. No. 126/12 and the first respondent in RCR. No. 123/12) claiming that he is the only landlord of the subject buildings viz., buildings having door Nos. 1504 and 1505 of Division No. 12 of Kottayam Municipality. Building having door No. 1505/12 is the subject matter of RCP. No. 44 of 2005 and is the entire first floor portion of a double storeyed building. In this building the tenant therein (the revision petitioner in RCR No. 126/12) is conducting a photo studio by name Beetal Studio. Building having door No. 1504/12 is portion of the ground floor of the above double storeyed building. The revision petitioners in RCR. No. 123 of 2012 as well as respondent Nos. 2 to 4 in that RCR who along with the revision petitioners are the legal heirs of one P.Kesavan Vaidyan the original tenant conducting an Ayurvedic RCR. Nos. 123 & 126 of 2012 -4- Pharmacy by name S.D. Pharmacy. The common case of the landlord in both the RCPs. is that he is the landlord of the petition schedule building and that the revision petitioner in RCR No. 126/12 and the revision petitioners and respondent Nos. 2 to 4 in that RCR are his tenants. According to him the original tenant in occupation of the building subject matter of RCP No. 34 of 2005 was Sri. Kesavan Vaidyan and it is his legal heirs who have become statutory tenants in that building upon the demise of Sri. Kesavan Vaidyan. 3. Both the rent control petitions were filed by the landlord Sri. Raju Abraham represented by his power of attorney holder Sri. Roy Cherian. We should refer to the pleadings raised by the respective tenants so as to understand the nature of the contentions raised. Of the six tenants in RCP. No. 34 of 2005 only three, revision petitioners in RCR. 123 of 2012 filed statement of objections on receiving notice of the rent control petition. They contended that the RCP is not maintainable in law only for the following reasons. (i) The power of attorney executed in RCR. Nos. 123 & 126 of 2012 -5- favour of Roy Cherian is not valid and enforceable. Hence the power of attorney holder has no right to file the rent control petition. (ii) Sri. Rajan K. Abraham has only onethird udukoor right (undivided interest) in the petition schedule building as no partition has been effected between Sri. Rajan K. Abraham and counter petitioners 7 to 9 , Smt. Saramma Punnen, Smt. Asha Punnen, and Sri. Anu Punnen, legal heirs of late Punnen Kuruvila (who was also a coowner of the entire double storeyed building). (iii) RCP. No. 2 of 1997 filed earlier by the mother of the landlord seeking eviction on the ground of occupation by the landlord's father was dismissed and hence the present RCP is barred under Section 15 of the Rent Control Act. The directions in CRP. No. 1796 of 1994 relied on by the landlord for maintaining the present RCP notwithstanding the dismissal of RCP. No. 2 of 1997 are irrelevant. in the above RCP the 10[th] respondent Natesan (10[th] respondent in RCR. No. 341 of 2011) who is an assignee under respondent Nos. 7 to 9 also filed statement of objections. It is contended therein that RCR. Nos. 123 & 126 of 2012 -6- the RCP is not maintainable in law as the owners of the building are not made parties. It is further contended that the landlord cannot have any interest over the building. It is further contended that he is the owner in possession of a room situated on the eastern side of the petition schedule room by virtue of document No. 2482/91 and that he has no connection whatsoever with the petition schedule room. 4. When we go to the counter filed by the tenant in RCP. No. 44 of 2005 (corresponding to RCR. No. 126 of 2012) it will be seen that apart from raising a bald contention that the RCP is not maintainable he has not stated any reason as to why the petition is not maintainable. Though he has referred to the power of attorney holder as a tactful veteran litigant he does not contend that the power of attorney executed by the landlord in favour of the power of attorney holder is not a genuine one. Importantly, he has admitted the existence of a landlord tenant relationship between him and the landlord. On appreciating the evidence which came on record in the case which consisted RCR. Nos. 123 & 126 of 2012 -7- interalia of Ext.A1 and A2 powers of attorney, Ext. A5 certified copy of the order passed by the High Court in CRP. No. 1796 of 1994 which arose from RCP. No. 2 of 1997, Ext. A6 letter issued from Kottayam Municipality to the landlord, Ext.A11 document executed by one Asha Shaji (Asha Punnen) and Smt. Saramma Punnen in favour of Sri. P.p.Natesan, Exts. B1 and B2 receipts issued by Manganam Service Co-operative Bank remittance of rent by the tenants in RCP No. 34 of 2005 and the oral evidence in the case, especially the evidence of CPW-2 Saramma Punnen the Rent Control Court would come to the conclusion that the rent control petition was perfectly maintainable, that there existed landlord tenant relationship between the landlord and the persons who are arrayed as tenants in the RCPs and also that respondents 7 to 9 in RCP. No. 34 of 2005 did not have any right any longer over the buildings which are subject matter of the rent control petition. The learned Rent Control Appellate Authority on reconsidering the evidence would endorse the finding of the Rent Control Court that the RCR. Nos. 123 & 126 of 2012 -8- RCPs were not maintainable. However, deviating from the finding of the Rent Control Court, it was found by the Rent Control Appellate Authority that respondents 7 to 9 in RCP. No. 34 of 2005 continued to be co-owners of the buildings though the landlord tenant relationship in respect of the buildings was only between the landlord petitioner and the persons who are arrayed by him as tenants. The Appellate Authority while affirming the finding of the Rent Control Court regarding maintainability of the RCP would make an observation that the question of title (in the sense of proprietory title) over the buildings is left open. In these revisions filed by the tenants under challenge is the decision concurrently taken by the Rent Control Court and the Appellate Authority in favour of the landlord holding that both the rent control petitions are maintainable at the instance of the landlord. 5. We have heard the submissions of Advocate Rajeev V. Kurup appearing for the revision petitioner in RCR No. 126 of 2012 and Smt. Sumathi Dandapani, senior counsel RCR. Nos. 123 & 126 of 2012 -9- appearing for revision petitioners in RCR No. 123 of 2012. We have heard Sri. Thomas George, learned counsel for the landlord in both these cases. Sri. T.O. Xavier addressed arguments on behalf of respondent Nos. 7 to 9 in RCR.No. 341 of 2011. 6. As is clear from the resume of the tenants' pleadings which we have already given only the tenants in RCP No. 34 of 2005 (corresponding to RCR. No. 123 of 2012) have raised apparently serious contentions regarding the maintainability of the RCP. Title as envisaged by the first proviso to sub-section (1) of Section 11 is not proprietory title, instead the same is title as landlord or entitlement to receive rent. It is trite by decisions that proprietory title can have only limited relevance in rent control jurisprudence. This should be why the learned Appellate Authority notwithstanding its view that the landlord is only a co-owner and that respondent Nos. 7, 8 and 9 in RCP No. 34 of 2005 continue to be co-owners of the building as no partition is seen effected, relegated the issue of title to RCR. Nos. 123 & 126 of 2012 -10- other proceedings. According to us, though it is true that what is more important in Rent Control Law is the existence of a landlord tenant relationship between the parties to the rent control petition, the question whether the landlord is the absolute owner or only a co-owner has relevance in the present case where it was seriously argued before the Appellate Authority and before us that respondent Nos. 7, 8 and 9 are co-owners and that they are not willing to evict the tenants for accomplishing the bona fide need of the landlord. The case consistently asserted by the landlord is that he is the absolute owner. That case was accepted by the Rent Control Court relying mainly on Ext.A5 order of this Court in CRP. No. 1796 of 1994. Ext.A5 CRP was filed before this Court by Aleyamma Abraham,the mother of the present landlord and by Sri.Rajan K.Abraham, the present landlord. Ext.A5 CRP arose from RCP. 2 of 1979. RCP. 2 of 1979 was filed originally by one Punnen Kuruvila, the predecessor in interest of respondent Nos. 7 to 9 in RCP,. No. 44 of 2005 and by Smt. Aleyamma Abraham, the RCR. Nos. 123 & 126 of 2012 -11- mother of the present landlord. The case projected bythe petitioners in RCP. No.2 of 1979 was that they were coowners of the building which is subject matter of RCP No. 44 of 2005. The above RCP was dismissed holding that the need projected therein which was one for the husband of Aleyamma Abraham, the father of the present landlord to conduct a business is not a bona fide one. The Appellate Authority confirmed the above decision. It was only Smt. Aleyamma Abraham, mother of the present landlord who challenged the judgment of the Appellate Authority before this Court filing CRP. No. 1796 of 1994. Smt. Aleyamma Abraham died pending CRP and after her demise the present landlord alone got himself impleaded as additional 2[nd] respondent. This court by Ext. A5 order dismissed the revision, however, giving liberty to the present landlord to file a fresh rent control petition against the tenants. Significantly in Ext.A11 Smt. Saramma Punnen, Smt.Asha Punnen and also Sri. Anu Punnen, respondent Nos. 7 to 9 in RCP. No. 34 of 2005 were made parties. Ext.A5 is binding RCR. Nos. 123 & 126 of 2012 -12- only the tenant in RCP. No. 2 of 1979 and also respondents 7 to 9 in that RCP who alone claim to be co-owners of the building along with the present landlord. It is pertinent to note that respondents 7 to 9 in RCP 44 of 2005 did not raise any contentions in the rent control petition. By non traverse they accepted the case of the landlord that he is the only person having interest in the petition schedule building. They accepted the case of the landlord regarding existence of a landlord tenant relationship between him and the tenants. According to us, there is sufficient material on the basis of which it can be safely concluded that the present landlord Rajan K. Abraham is not only the sole landlord in respect of the building but is having ownership also on the basis of an oral partition or family arrangement to which all the original co-owners to the buildings are parties. Ext.A11 is a sale deed executed by Smt. Saramma Punnen and her daughter Smt. Asha Punnen in favour of Sri.Natesan, the 10[th] respondent in RCP. 44 of 2005. Under this registered sale deed dated 27[th] September 1991 they purport to RCR. Nos. 123 & 126 of 2012 -13- convey absolute rights in respect of one room in the ground floor of the double storeyed building, the room adjacent to a room which is subject matter of RCP. No. 44 of 2005 in favour of Sri. P.P.Natesan. This sale deed refers to a partition deed No. 1604/89 and recites that under the above partition deed 1 cent and 166.5 sq. links of land and building portion in the ground floor of a larger double storeyed building was obtained by the executants and that it is that building which is conveyed to Natesan. When the issue regarding the separation of the shares in the entire building between the present landlord and the predecissors in interest of respondents 7. 8 and 9 in RCP No. 44 of 2005 became contentious we directed respondents 7 to 9 to produce before this court a photostat copy of the above partition deed. Accordingly photostat copy of the above partition deed was produced as Annexure R8 in IA. No. 906 of 2012. Annexure R8 forms part of the record in RCR. No. 341 of 2011 which we have already disposed of. Annexure R8 give strong support to the present landlord's case that RCR. Nos. 123 & 126 of 2012 -14- the legal heirs of Sri. Punnen Kuruvila, respondents 7 to 9 who was a co-owner along with his father in the entire building have confined their co-ownership to that portion of the building which is already conveyed to Sri. P..Natesan under Ext.A11. But we notice that in the affidavit in support of I.A. No. 906 of 2012 Smt. Asha Punnen who is one of the executants to Ext. A11 document has stated that she has already filed a suit O.S. No. 6430 of 2010 for getting her one-third share in the properties including petition schedule building. Interestingly this suit is filed only in 2010, i.e., during the pendency of rent control appeals preferred before the Rent Control Appellate Authority. There is sufficient material in Ext. A11 and AnnexureR8 in support of the present landlord's argument that he alone is having proprietory title over the buildings which are subject matter of the two RCPs. As already indicated in matters concerning Rent Control Law, what is important is existence of a landlord tenant relationship. The tenant RCP. No. 44 of 2005 admitted the existence of such relationship between RCR. Nos. 123 & 126 of 2012 -15- the tenants and the present landlord. The tenants in RCP. 34 of 2005 have also admitted that they are paying rent to the present landlord. Though they have feebly contended that it is only 1/3[rd ] the rent payable by them that they are remitting in a local service co-operative bank no evidence has been brought on record by them to show that they are paying rent to anybody else The municipal assessment records will also reveal that the local authority has also recognised the present landlord Sri. Rajan K. Abraham alone as the landlord. Ext.A5 order of this court has become final. In terms of Ext.A5 it is not open to anybody to raise a contention that the present landlord is not the landlord and is not entitled to seek eviction. 7. Coming to the contentions raised by the tenants in RCP. 34 of 2005 based on the power of attorney it is very clear to our mind that those contentions are only to be repelled. Ext.A2 power of attorney is executed by the landlord who at that time was in the United States. Ext.A1 power of attorney is executed by the landlord in favour of RCR. Nos. 123 & 126 of 2012 -16- his cousin Sri. Roy Cherian in America in the presence of Mike Taylor, Notary Public, Georgia. The same is attested by Assistant Consular Officer, Embassy of India, Washington DC. The Revenue Divisional Officer Kottayam levied a sum of Rs.150/- together an adjudication fee of Rs.50/- from the power of attorney holder upon presentation. A2 power of attorney is executed by the landlord in Kottayam itself. The same is notarially attested. It is clear from A1 power of attorney that the power of attorney holder the signatory to the RCP is authorised to institute RCP No. 34 of 2005. It is clear from A2 that the power of attorney holder is authorised to institute RCP No. 44 of 2005. To crown all, the landlord himself came down and gave evidence as PW-1. In his evidence he has completely owned up the powers of attorney. 8. We do not find any specific contentions as contemplated by the proviso to subsection (1) of Section 11 raised even in RCP. No. 34 of 2005. We are sure that when the principles laid down by the Division Bench of this Court RCR. Nos. 123 & 126 of 2012 -17- in Aboobacker v. Girija 1995(2) KLT 553 are followed it will be very easy to hold that the facts and materials being what they are, even if the respondents in RCP. 34 of 2005 had raised a specific denial of the landlord's title as required by proviso to sub-section (1) of Section 11 the above denial can easily be held to be not bona fide as the chances of the respondents in RCP. 34 of 2005 succeeding on that contention in the event of their being relegated to civil court are remote. In short we don't find any illegality, irregularity or impropriety as contemplated by Section 20 of Act 2 of 1965 in the findings concurrently entered by the Rent Control Court and the Appellate Authority in favour of the landlord regarding the maintainability of the rent control petitions and also regarding the landlord's right to evict the tenants. However, as it is reported to us that OS. No. 6430 of 2010 has been instituted by respondents 7, 8 and 9 seeking a partition we clarify that this judgment shall be without prejudice to the rival contentions raised in that partition suit and the issue of proprietory title over the RCR. Nos. 123 & 126 of 2012 -18- property shall be decided finally in the above partition suit. Both the revisions fail and will stand dismissed. No costs. ## **(PIUS C.KURIAKOSE, JUDGE)** **(A.V.RAMAKRISHNA PILLAI, JUDGE)** ksv/-