R.C.Rev. No.151 of 2020

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA FRIDAY, THE 9[TH] DAY OF DECEMBER 2022 / 18TH AGRAHAYANA,** ## **1944** **RCREV. NO. 151 OF 2020** **AGAINST THE ORDER DATED 24.09.2019 IN RCP NO.167 OF 2016 OF THE COURT OF THE RENT CONTROLLER/PRINCIPAL MUNSIFF-I, KOZHIKODE CONCURRING WITH THE COMMON JUDGMENT IN RCA NO.144 OF 2019 DATED 30.07.2020 OF THE II ADDITIONAL RENT CONTROL APPELLATE AUTHORITY/II ADDITIONAL DISTRICT JUDGE,** ## **KOZHIKODE** ## **REVISION PETITIONERS/RESPONDENTS 5 & 7/RESPONDENTS 5 & 7:** - **1 A.P.KRISHNAKUMAR AGED 60 YEARS** **S/O LATE A.P. KRISHNA PILLAI, BRAHMANANA BHAVAN, KOTTOOLI AMSOM, PARAYANCHERI DESOM, KOZHIKODE TALUK, PIN-673 004.** **2 A.P. SAI NARAYANAN, AGED 54 YEARS S/O LATE A.P.BALAKRISHNA PILLAI, BRAHMANANA BHAVAN, KOTTOOLI AMSOM, PARAYANCHERI DESOM, KOZHIKODE TALUK, PIN-673 004.** **BY ADV R.RAMADAS** **RESPONDENTS/APPELLANT AND RESPONDENTS 1 TO 4, 6, 8 TO 10/PETITIONER AND RESPONDENTS 1 TO 4, 6, 8 TO 10:** **1 T.V.GOPALAKRISHNAN, AGED 80 YEARS S/O NARAYANA PILLAI, HOUSE NO 13/542, KAMMATHI LANE, NAGARAM AMSOM AND DESOM, KOZHIKODE TALUK, PIN-673 002.** R.C.Rev. No.151 of 2020 -: 2 :- - **2 A.P. AMMINI AMMAL, AGED 88 YEARS** - **W/O LATE BALAKRISHNA PILLAI, BRAHMANANDA BHAVAN, KOTTILI AMSOM, PARAYANCHERI DESOM, KOZHIKODE TALUK, PIN-673 004.** - **3 A.P. SOBHANA KUMARI, AGED 69 YEARS** - **D/O LATE A.P. BALAKRISHNA PILLAI, TAMARIND NEST, NEAR CHEROOTTY NAGAR HOUSING COLONY SWIMMING POOL, P.O.PUTHIYARA, KALATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK, PIN-673 004.** - **4 A.P. SASIKALA, AGED 66 YEARS** - **D/O LATE A.P. BALAKRISHNA PILLAI, SREENIVAS, NEAR KANAKALAYA BANK, KACHERI AMSOM AND DESOM, KOZHIKODE TALUK.** - **5 A.P. GEETHA, AGED 63 YEARS** **D/O LATE A.P. BALAKRISHNA PILLAI, VINAYAKA P.O.AZHOOR, AZHOOR AMSOM AND DESOM, PATHANAMTHITTA TALUK.** - **6 A.P. AMBIKA, AGED 59 YEARS** **D/O LATE A.P. BALAKRISHNA PILLAI, 36/2172, 5TH LINE, VIDYANAGAR, P.O. KALOOR, KOCHI-682 017.** - **7 A.P. JYOTHI, AGED 51 YEARS** - **D/O LATE A.P.BALAKRISHNA PILLAI, THANKAM, 5TH BENEDICT ROAD, ERNAKULAM NORTH, PIN-682 018.** - **8 A.P. SANTHI AGED 48 YEARS** - **D/O LATE A.P. BALAKRISHNA PILLAI, IF SKY LINE GARNET , K.T. GOPALAN ROAD, KOTTOOLI AMSOM DESOM, KOZHIKODE TALUK.** - **9 A.P. SUBHASHINI, AGED 45 YEARS** **D/O LATE BALAKRISHNA PILLAI T.C, 16/130(2) , AISWARYA, EASWARAMANGALAM JUNCTION, VAZHUTHAKKAD, THIRUVANANTHAPURAM, PIN-695 014.** R.C.Rev. No.151 of 2020 -: 3 :- **BY ADVS. SRI.P.B.KRISHNAN PRASHANTH KUMAR G.C. SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SMT.B.ANUSREE SRI.MANU VYASAN PETER SMT.MEERA P. MITHUN P.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 09.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.C.Rev. No.151 of 2020 -: 4 :- ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** ## **-----------------------------------------------** ## **R.C.Rev. No.151 of 2020** ## **-----------------------------------------------** ## **Dated this the 9[th] day of December, 2022.** ## **O R D E R** ## **P.B.Suresh Kumar, J.** Respondents 5 and 7 in an application for fixation of fair rent under Section 5 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act), are the petitioners in this revision petition. Pursuant to the direction issued by this Court, the Rent Control Court considered the maintainability of the application and dismissed the same as not maintainable. However, in appeal, the Appellate Authority remitted the application for disposal on merits, after holding that the application is maintainable. Respondents 5 and 7 in the application are aggrieved by the said decision of the Appellate Authority and hence, this revision petition. Parties are referred to in this order for convenience, as they appear in the application before the Rent Control Court. 2. The subject matter of the application is a building situated in a prominent locality of Kozhikode town. R.C.Rev. No.151 of 2020 -: 5 :- The building belonged to one Narayana Pillai. On his death, there was a suit filed as O.S.No.66 of 1968 before the Sub Court, Kozhikode for partition of the properties held by Narayana Pillai. Though a preliminary decree was passed in the said suit on 23.12.1971, the application preferred by the plaintiff in the suit in the year 1976 for passing of the final decree is still pending. In the meanwhile, on 08.07.1972, the petitioner along with his mother who are two among the sharers entered into a rental arrangement in respect of the building with one A.P.Balakrishna Pillai and the fifth respondent, the son of A.P.Balakrishna Pillai. The monthly rent agreed in terms of the said arrangement was Rs.150/-. A.P.Balakrishna Pillai and the fifth respondent were conducting a jewellery business in the leasehold thereafter. While so, A.P.Balakrishna Pillai died. In terms of a Will executed by A.P.Balakrishna Pillai, the tenancy rights in respect of the building held by A.P.Balakrishna Pillai devolved on respondents 5 and 7, being the legatees of the Will. Respondents 5 and 7, thereupon acquired fractional interests to the tune of 1/27 shares each in the properties held by Narayana Pillai including the building and got themselves impleaded in the final decree application for allotment of the building to them towards their R.C.Rev. No.151 of 2020 -: 6 :- shares. 3. While so, the petitioner filed an eviction petition as R.C.P.No.43 of 1989 against respondents 5, 7 and others alleging that the rent of the building is in arrears since 1990 and that he needs the building _bona fide_ for his occupation. As respondents 5 and 7 have acquired fractional interests in the leasehold, the eviction petition was dismissed by the Rent Control Court as not maintainable. In appeal, the Appellate Authority however reversed the decision of the Rent Control Court and remanded the eviction petition for consideration on merits, after holding that the eviction petition is maintainable. In C.R.P.No.1899 of 1999 filed by respondents 5 and 7, this Court restored the decision of the Rent Control Court, taking the view that an eviction petition is not maintainable against a tenant who has acquired fractional interests in the leasehold. The petitioner though challenged the decision of this Court before the Apex Court in Civil Appeal No.2365 of 2001, the same was dismissed on 31.07.2007. 4. The application for fixation of fair rent was instituted by the petitioner thereafter alleging that the agreed rent is meagre and that the building would fetch a minimum rent of Rs.30,000/- per month, being one located in a R.C.Rev. No.151 of 2020 -: 7 :- prominent place. Respondents 5 and 7 filed objections to the application contending that the application is not maintainable inasmuch as they have acquired fractional interests in the leasehold and become co-owners of the leasehold to that extent. They have also contended that the application is not maintainable inasmuch as the earlier application filed by the petitioner for eviction of respondents 5 and 7 was dismissed. As noted, it is in the aforesaid background that the Rent Control Court and the Appellate Authority considered the maintainability of the application, culminating in the impugned judgment of the Appellate Authority. 5. Heard the learned Senior Counsel for respondents 5 and 7 as also the learned counsel for the petitioner. 6. The learned Senior Counsel for respondents 5 and 7 submitted that in light of the findings rendered by this Court in Ext.B34 order in the earlier eviction petition between the same parties and in light of the finding rendered by the Apex Court in Ext.B35 order in the civil appeal preferred against Ext.B34 order, the Appellate Authority erred in reversing the decision of the Rent Control Court. It was observed by the Apex Court in Ext.B35 order that since the R.C.Rev. No.151 of 2020 -: 8 :- tenants have also become co-owners of the building, the proceedings instituted by the landlord against the tenants cannot survive. According to the learned Senior Counsel, even if it is held that the said findings of the Apex Court in Ext.B35 order are incorrect, the same binds the parties and a party to the proceedings cannot be heard to contend that the landlordtenant relationship subsists between the parties so as to enable the landlord to prefer an application for fixation of fair rent against the tenants. According to the learned Senior Counsel, insofar as the petitioner as also respondents 5 and 7 are the co-owners of the building and insofar as the final decree application is pending consideration, it cannot be said that one among them can prefer an application for fixation of fair rent against another who holds a property in his capacity as its tenant also. It is all the more so since, according to the learned Senior Counsel, the petitioner has only a fractional interest in the building as in the case of respondents 5 and 7 and respondents 5 and 7 are also bound to account for the rent payable in respect of the building in their capacity as coowners in possession of that item of property to be partitioned in terms of the preliminary decree. In order to demonstrate that the landlord-tenant relationship is not subsisting, the R.C.Rev. No.151 of 2020 -: 9 :- learned Senior Counsel for respondents 5 and 7 has relied on the decisions of the Apex Court in **P.Veerappa v. M.A.Mohammed Amanullah** , 1996 KHC 630 and **R.Kanthimathi and Another v. Beatrice Xavier (Mrs.)** , 2000 KHC 1503, wherein it has been held that if a landlord enters into an agreement for sale with the tenant in respect of the tenanted premises, the relation between them as landlordtenant ceases to exist. 7. Per contra, the learned counsel for the petitioner submitted that unless the entire right of the landlord is vested with the tenant, one of the co-owners is very much entitled to seek fixation of fair rent for the leasehold and that there is therefore no illegality, irregularity or impropriety in the decision of the Appellate Authority. It was pointed out by the learned counsel that the proposition that a tenant on acquiring the right of a co-owner-landlord, the tenancy would get extinguished, was repelled by the Apex Court in **Pramod Kumar Jaiswal v. Bibi Husn Bano** , (2005) 5 SCC 492. According to the learned counsel, until a final decree is passed in a suit for partition, it cannot be said that one of the coowners is not entitled to prefer an application for fixation of fair rent in respect of a building which is held by another co- R.C.Rev. No.151 of 2020 -: 10 :- owner in the capacity of a tenant as well. It was argued by the learned counsel that the attempt of the petitioner in preferring the application to seek fixation of fair rent is only to augment the profits from the property and it cannot be said that a coowner is not entitled to take measures to augment profits from a property, when such a step is beneficial to all co-owners except the co-owner in possession of the property in his capacity as a tenant as well. As regards the observation made by the Apex Court in Ext.B35 order, it was contended by the learned counsel that if the said order is read and understood in the light of the background of the case which culminated in the said order, it could be seen that the aforesaid observation was made by the Apex Court, as the proceedings dealt with therein was one for eviction. According to the learned counsel, the said observation cannot be made use of by the tenants in the context of an application for fixation of fair rent, as in the case on hand. It was argued by the learned counsel for the petitioner alternatively that at any rate, since the general principles of _res judicata_ do not apply to the proceedings under the Act, the observations made by the Apex Court do not preclude the petitioner from instituting an application for fixation of fair rent. The learned counsel has relied on a R.C.Rev. No.151 of 2020 -: 11 :- Division Bench judgment of this Court in **Govindan v. Subaida Beevi** , 1997 (1) KLT 910, in support of the said proposition. 8. We have examined the arguments advanced by the learned counsel for the parties on either side. 9. The question whether there is extinguishment of the landlord-tenant relationship, if the tenant purchases a fractional interest in the leasehold, is no longer _res integra._ In **Pramod Kumar Jaiswal** , it has been categorically held by the Apex Court that lease or tenancy do not get determined by the tenant acquiring the rights of a co-owner landlord and the lease gets determined only if the entire reversion is purchased by the tenant. Paragraph 6 of the said judgment reads thus: “6. Thus, the ingredients are that two immediate estates should come into the hands of the same person at the same time and it must be rights in the whole of the property. A merger is prevented if there is an intermediate estate outstanding with another at the relevant time. Obviously, the taking of an assignment of a fraction of the reversion, or the rights of a co-owner landlord, does not and cannot bring about a determination of the lease in terms of Section 111(d) of the Transfer of Property Act. That a lease is not extinguished because the lessee purchases a part of the reversion was laid down by the Privy Council in Sk. Faqir Bakhsh v. Murli Dhar. Their Lordships after setting out the terms of Section 111 of the Transfer of Property Act quoted with approval (at IA p. 78) the statement of the law made by the trial court in that case that for a merger to take place, R.C.Rev. No.151 of 2020 -: 12 :- “the fusion of interests required by law is to be in respect of the whole of the property”. This Court in Badri Narain Jha v. Rameshwar Dayal Singh held that if a lessor purchases the whole of the lessee's interest, the lease is extinguished by merger, but there can be no merger or extinction where one of several joint holders of the mokarrari interest purchases portion of the lakhraj interest. It was held that when there was no coalescence of the interest of the lessor and the lessee in the whole of the estate, there could be no determination of the lease by merger. We do not think that it is necessary to multiply authorities in the face of the plain language of the provision and the authoritative pronouncements of the Privy Council and of this Court referred to above. The position emerging from the relevant provision of the Transfer of Property Act is that the lease or tenancy does not get determined by the tenant acquiring the rights of a co-owner landlord and a merger takes place and the lease gets determined only if the entire reversion or the entire rights of the landlord are purchased by the tenant.” **Pramod Kumar Jaiswal** was a case where, after the death of the landlord, the tenant purchased a fractional interest of the landlord in the building from one of his legal representatives. Ignoring the same, the remaining co-owners who had not assigned their rights to the tenant, preferred an application under the relevant Rent Control statute for fixation of fair rent for the building, and the fair rent was accordingly fixed. Later, the co-owners who instituted the proceedings for fixation of fair rent, preferred an application for eviction of the tenant on the ground of arrears of rent. In that eviction petition, on an application of the petitioners, there was a direction to the R.C.Rev. No.151 of 2020 -: 13 :- tenant to deposit the arrears of rent fixed in the earlier proceedings. That order was challenged by the tenant in revision before the High Court and the matter dealt with before the Apex Court in **Pramod Kumar Jaiswal** was one preferred challenging the decision of the High Court in dismissing the said revision. It was held in the said case that the position of the appellants before the Apex Court as tenants continues and that they are bound, therefore, to comply with the requirements of the Rent Control Act under which the order for deposit of arrears of rent has been passed against them. Paragraph 23 of the said judgment reads thus: “23. A plain and grammatical interpretation of Section 111(d) of the Transfer of Property Act leaves no room for doubt that unless the interests of the lessee and that of the lessor in the whole of the property leased, become vested at the same time in one person in the same right, a determination of the lease cannot take place. On taking an assignment from some of the co-owner landlords, the interests of the lessee and the lessor in the whole of the property do not become vested at the same time in one person in the same right. Therefore, a lessee who has taken assignment of the rights of a co-owner lessor, cannot successfully raise the plea of determination of tenancy on the ground of merger of his lessee's estate in that of the estate of the landlord. It is, thus, clear that there is no substance in the contention of the learned counsel for the appellants that in the case on hand, it should have been held that the tenancy stood determined and the application of the landlord for a direction to the tenant to deposit the rent in arrears should have been dismissed. The position of the appellants as tenants continues and they are bound to comply R.C.Rev. No.151 of 2020 -: 14 :- with the requirements of the Rent Control Act under which the order for deposit has been passed against them. The High Court has rightly dismissed the revision.” In light of the said decision, respondents 5 and 7 cannot be heard to contend that they are no longer tenants so as to refuse to discharge their obligation to pay fair rent under the Act. 10. Now let us understand the premise on which Ext.B34 order has been rendered by this Court. Paragraph 5 of Ext.B34 order reads thus: “5. The Appellate Authority has relied on the definition of ‘landlord’ in the Act and the decision in Sudhakaran Pillai v. Kadeeja Beevi (1997(2) K.L.T.321) and in Rajeshwari v. Palaniappan (1984 (2) M.L.J.62) to hold that one of the coowners authorised to receive rent can maintain an action for eviction and even if the other co-owners assign their right, so long as the landlord and tenant relationship subsisted an application for eviction was maintainable. In Sudhakaran Pillai v. Kadeeja Beevi (1997(2) K.L.T.321) a fresh lease by some of the co-owners after an order for eviction had been obtained by the landlord who was a co-owner was put forward in execution as disentitling the co-owner landlord to execute an order for eviction. This court rejected that plea on the ground that there could have been no surrender by some of the coowners of the tenant pending the order for eviction to some of the co-owner landlords and that such an objection could not be entertained by the execution court. The learned Judge had referred to the decisions in Narayani Amma v. Govindan Nambi (1994 (2) K.L.T.485) and Rajeswari v. Palaniappan (1984 (2) M.L.J.62). The learned Judge overruled the objection of the tenant and held that the order for eviction was executable. We think that the position on facts is different R.C.Rev. No.151 of 2020 -: 15 :- here. Here, there is already a preliminary decree for partition among the heirs of the landlord and the proceedings for the passing of the final decree are pending. At that stage some of the co-owners who had already attained a division in status had assigned their rights in favour of the legal representatives of the original tenant who are arrayed as respondents in the petition for eviction. Thus the heirs of the original tenant had become co-owners with the petitioner landlord in respect of the building. The question here relates not to enforceability of a decree for eviction already obtained as was the case in Narayani Amma v. Govindan Nambi (1994(2) K.L.T.485) and Sudhakaran Pillai v. Kadeeja Beevi (1997(2) K.L.T.321). In this case the question is whether it can be postulated that there is a subsisting relationship of landlord and tenant between the petitioner landlord and the legal representatives of the original tenant, respondents in the application for eviction. At best what can be said based on Badri Narain v. Rameshwar Dayal (A.I.R.1951 SC 186) is that there is no extinguishment of the tenancy as a whole and there is only a partial extinguishment. But as noticed in the judgment in A.F.A.58 of 1998 (since reported in Jayachandra Nadar v. Malathi (2000(2) K.L.T.660) even in the case of partial extinguishment the Supreme Court had indicated that no application for eviction under the Rent Control Act can be maintained against the lessee. Such a lessee could not any more be described only as tenant as defined in the Kerala Buildings (Lease and Rent Control) Act. In such a situation in the light of the authorities referred to, we are of the view that the Appellate Authority was in error in holding that the application for eviction is maintainable.” (underline supplied) As revealed from the extracted paragraph, the view taken by this Court in the said case was that even though there is no extinguishment of the tenancy as a whole, since there is a R.C.Rev. No.151 of 2020 -: 16 :- partial extinguishment of tenancy, the application for eviction is not maintainable. The reason being that, if a tenant purchases a fractional interest in the leasehold and thereby becomes a co-owner, he is also deemed to be in possession of the building with others and he cannot be physically removed from the building, even if an order of eviction is passed. But the said order, according to us, cannot be understood as laying down a proposition that an application for fixation of fair rent by one co-owner is not maintainable against another who is holding a property in his capacity as a tenant as well. 11. Now let us deal with Ext.B35 order of the Apex Court. As noted, Ext.B35 order is one passed in an appeal preferred against Ext.B34 order. The order reads thus: “Heard learned counsel for the parties. We do not find any merit in this appeal, the same is dismissed in view of the subsequent developments that have taken place in that the respondents have also become co-owners of the same estate and, therefore, the landlord-tenant suit now cannot survive. We have been informed that a suit for partition for determining the rights of the parties by metes and bounds has already been filed and the same is pending. We request the court concerned to expeditiously dispose of the suit for partition. No order as to costs.” True, it is observed in Ext.B35 order that “the respondents have also become co-owners of the same estate and, therefore, the landlord-tenant suit now cannot survive”. The R.C.Rev. No.151 of 2020 -: 17 :- said observation, according to us, can be understood only as an observation and that the proceedings from which the appeal arises, is not maintainable in the light of the subsequent developments. The said observation cannot be understood as one precluding the petitioner from instituting an application for fixation of fair rent, if he is otherwise entitled in law to do so, especially in light of the declaration of law made by the Apex Court in **Pramod Kumar Jaiswal.** 12. There is also no substance in the arguments advanced by the learned Senior Counsel for respondents 5 and 7 based on the decisions of the Apex Court in **P.Veerappa** _(supra)_ and **R.Kanthimathi** _(supra)_ . As noted, those are cases where the tenants have entered into agreements for purchase of the rights of the landlord during the pendency of the tenancy arrangements and the question considered was as to whether the tenancy arrangement would be held to be continuing, even after the agreements for sale. The said decisions, according to us, do not have any application to the facts of the present case. 13. The surviving question is as to whether the pendency of the final decree application would in any manner affect the right of the petitioner to prefer an application for R.C.Rev. No.151 of 2020 -: 18 :- fixation of fair rent. As rightly pointed out by the learned counsel for the petitioner, until a final decree is passed allocating the building towards the share of respondents 5 and 7, if at all the final decree court chooses to do so, it cannot be said that one of the co-owners is not entitled to prefer an application for fixation of fair rent in respect of a building which is held by another co-owner in his capacity as a tenant as well. It is all the more so since, such a course of action would only be an attempt on the part of that co-owner to augment profits from the building. It cannot be said that a coowner is not entitled to take appropriate measures for augmenting profits from the property merely for the reason that the application for passing of the final decree is pending, especially when the same is an act which is beneficial to all coowners except the co-owner who is holding the property in his capacity as a tenant also. According to us, it is always open to a co-owner to do all that is necessary to augment the income from the property for the benefit of other co-owners until a final decree is passed, for the property continues to retain the joint status till a partition by metes and bounds takes place pursuant to the final decree. It is all the more so since, coowners who hold buildings in their capacity as tenants as well, R.C.Rev. No.151 of 2020 -: 19 :- are obliged by law to pay fair rent to the remaining co-owners in terms of the provisions of the Act and if they do not discharge the said obligation, the remaining co-owners cannot be held to be remedy-less. In this view of the matter, it cannot be said that the application for fixation of fair rent by one coowner against another co-owner before actual partition of the property by metes and bounds, is not maintainable. In the light of the discussion aforesaid, we do not find any illegality, irregularity or impropriety in the impugned decision of the Appellate Authority. The revision petition, in the circumstances, is devoid of merits and the same is accordingly dismissed. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **C.S.SUDHA, JUDGE.** ds 25.11.2022