RCRev..No. 355 of 2017

**“CR”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** ## **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY,THE 20TH DAY OF FEBRUARY 2019 / 1ST PHALGUNA, 1940** ## **RCRev..No. 355 of 2017** **AGAINST THE ORDER/JUDGMENT IN RCA 7/2014 of RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE), KALPETTA DATED 31-07-2017** **AGAINST THE ORDER/JUDGMENT IN RCP 3/2011 of THE RENT CONTROL COURT, MUNSIFF MAGISTRATE, SULTHAN BATHERI DATED 01-01-2014** **- REVISION PETITIONERS/RESPONDENTS 2 TO 6 SUPPLIMENTAL RESPONDENTS 2 TO 6:** - **1 KHADEEJA, W/O. LATE P.C. AHAMMED HAJI, SHERSHAD MAHAL, MOORKANATTU PARAMABA, KUNHIRAMAN COMPOUNTER ROAD, PUTHIYANGADI POST, CALICUT - 21.** - **2 P.C. FAIZAL, S/O. LATE P.C. AHAMMED HAJI, "PRIME ROSE", MANKUNI, S.BATTERY POST, VILLAGE AND TALUK, WAYANAD DISTRICT.** - **3 P.C. THAHIR, S/O. LATE P.C. AHAMMED HAJI, "SANA", CHALAPPURAM POST, CALICUT - 2.** - **4 P.C. FOOUZIYA, W/O. NELLIKKA MUHAMMED, ARAMAM, PERINGATHOOR POST, 67075, KANNUR DISTRICT.** - **5 DR. P.C. ANWAR, S/O. LATE P.C.AHAMMED HAJI, OFFICE OF THE JDT ISLAM INSTITUTIONS, P.O.MARIKUNNU, CALICUT - 12. BY ADVS. SRI.T.I.ABDUL SALAM SMT.K.R.MONISHA SRI.PHILIP T.VARGHESE** RCRev..No. 355 of 2017 2 ## **- RESPONDENT/APPELLANT PETITIONER:** **V.HARIS HAJI, S/O. LATE HAMZA HAJI, 24/1352, CHALIYIL, KACHERIKUNNU ROAD, POKKUNNU POST, VALAYANAD VILLAGE, KOZHIKODE DISTRICT - 673 007.** **BY SRI.T.ASAFALI ADV.LAZIYA T.Y.** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 20.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RCRev..No. 355 of 2017 3 ## **ORDER** ## **Harilal, J** The questions that emerge for consideration in this revision are given below: _1. Whether the denial of landlord-tenant relationship, invariably made in all facts and circumstances, would amount to denial of title, falling under second proviso to Section 11(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965 [for short, the Act]._ _2. Whether the denial of landlord-tenant relationship, without denial of title, would oust the rent control petition from the jurisdiction of the Rent Control Court, by the operation of the second proviso to Section 11(1) of the Act._ 2. The revision petitioners are the legal heirs of RCRev..No. 355 of 2017 4 the deceased original tenant, who died during the pendency of the rent control petition, and got impleaded subsequently in the rent control petition. The respondent herein is the landlord, who filed R.C.P.No.3/2011 against the original tenant under Section 11(2) and 11(3) of the Act, seeking an order of eviction. (The parties are referred to as in the rent control petition). 3. According to the petitioner/landlord, the petition schedule building belongs to him by virtue of a partition deed and at the time of partition, the deceased original tenant was in occupation of the tenanted premises. The petitioner entrusted the tenanted premises with the respondent/original tenant on 01.04.1998 by an oral lease. The RCRev..No. 355 of 2017 5 petitioner/landlord now wants the petition schedule shop room, for conducting a jewelry business and he has no other buildings of his own in his possession to start the proposed business. Thus he _bond fide_ needs the petition schedule shop room. 4. The respondents/tenants raised preliminary objection contending that the rent control court has no jurisdiction to entertain the rent control petition filed by petitioner/landlord as there was no landlordtenant relationship between the petitioner and the respondent. He emphatically denied the contention that the tenanted premises was leased out to him by the original petitioner on 01.04.1998 on an oral lease on a monthly rental basis @ Rs.3,000/-. He further contended that the first respondent or any of the RCRev..No. 355 of 2017 6 respondents have never took the plaint schedule shop room on lease or on any basis from the petitioner or anybody; and there is no landlord-tenant relationship between the petitioner and the first respondent or any of the respondents. The petition schedule building is occupied by a partnership firm, in which the first respondent was also a partner. Originally the partnership firm was constituted by Hamza Haji, the father of the petitioner, along with his brother and daughter and they were conducting a textile by name 'Ashamsa Textile'. After the death of Hamza Haji, the partnership firm was reconstituted by adding the petitioner and other legal heirs of Hamza Haji. Subsequently, the first respondent and two others were inducted to the firm. Thus, the first respondent conducted business in the tenanted building as a RCRev..No. 355 of 2017 7 partner only. There is no lease transaction between the petitioner and the first respondent with respect to the tenanted premises. Thus, the rent control court has no jurisdiction to consider the rent control petition and grant any relief claimed therein. 5. The preliminary objection pertaining to the jurisdiction was considered by the rent control court as a preliminary issue and arrived at a finding that the denial of title is found to be _bona fide,_ so also in view of the second proviso to Section 11 of the Act, the rent control court has no jurisdiction to try and decide the case, and hence, dismissed the rent control petition. 6. Feeling aggrieved, the petitioner/landlord preferred R.C.A.No.7/2014 before the Rent Control Appellate Authority, Kalpetta and the appellate RCRev..No. 355 of 2017 8 after the evidence on authority, re-appreciating record, reversed the findings of the rent control court and allowed the appeal on a finding that the denial of title of the landlord is not _bona fide_ . Thus, the legality and propriety of the divergent findings under the second proviso to Section 11(1) of the Act have come up in revision before us, for consideration. 7. Heard the learned counsel for the revision petitioners and the learned counsel for the respondent. 8. In view of the arguments advanced at the bar, the question referred to above would emerge for consideration in this appeal. Since both questions are inextricably interconnected, they are considered together and answered accordingly. It is the specific RCRev..No. 355 of 2017 9 case of the petitioner that the petition schedule shop room belongs to him by virtue of the partition deed No.1056/1987 and at the time of partition, the original first respondent was in occupation of the petition schedule shop room, as a tenant. So also it is averred that the petitioner entrusted the petition schedule shop room on an oral lease to the first respondent on 01.04.1998 on a monthly rental basis @ Rs.3,000/without any security amount. On the other hand, the respondents emphatically denied the aforesaid averments in the rent control petition stating that it is not true or correct. The first respondent or any of the respondents have never took the petition schedule shop room on lease or on any basis from the petitioner or anybody. The petition schedule shop room was not let out to the first respondent and there RCRev..No. 355 of 2017 10 is no lease transaction between the petitioner and the first respondent. No landlord-tenant relationship exists between the petitioner and the first respondent or any of the other respondents; as such, the rent control court is not having jurisdiction to try or grant any of the reliefs claimed therein. At the same time, they admitted that the plaint schedule shop room originally belonged to one K.Hamsza Haji, who is the father of the petitioner herein. Further it is contended that the Hamsza Haji along with his brother and daughter has constituted a partnership firm and started a textile business, under the name and style 'Ashamsa Textiles' and subsequently the first respondent has also joined in the said partnership firm as a partner . Eventually all other partners retired during different periods and at the time of filing of the RCRev..No. 355 of 2017 11 rent control petition, the business was being carried on by two among the legal heirs of Late K.Hamsza Haji, who are the co-owner of the petition schedule shop room, along with the first respondent. Thus, the first respondent has conducted business in the tenanted premises as a partner of the firm, which occupied the tenanted premises. So, there is no landlord-tenant relationship between the petitioner and the first respondent or any other respondents. In short, according to the first respondent, he is also a partner of the firm, in occupation of the petition schedule shop room, and conducting textile business. 9. On an analysis of the contentions in the counter statement, we find that there is no denial of title of the petitioner and on the other hand, the first RCRev..No. 355 of 2017 12 respondent admitted that the plaint schedule shop room originally belongs to one Mr.Hamsza Haji, who is the father of the petitioner herein. The first respondent has no challenge against the partition deed of 1056/1987 also. Therefore, we have no hesitation to hold that there was no denial of title of the petitioner. But, they specifically contended that there is no landlord-tenant relationship between the petitioner and the first respondent or any other respondents. Thus, the landlord-tenant relationship is denied, without denying the title of the petitioner. Here arises the question whether the denial of landlord-tenant relationship, without denial of the title, would oust the rent control petition from the jurisdiction of the rent control court by the operation of the second proviso to Section 11(1) of the Act. RCRev..No. 355 of 2017 13 Section 11(1) of the Act reads as follows: _**11.Eviction of tenants** .-(1) Notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act:_ _Provided that nothing contained in this section shall apply to a tenant whose landlord is the State Government or the Central Government or other public authority notified under this Act:_ _Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court shall decide whether the denial or claim is bona fide and if it records a finding to that effect, the landlord_ RCRev..No. 355 of 2017 14 _shall be entitled to sue for eviction of the tenant in a Civil Court and such Court may pass a decree for eviction on any of the grounds mentioned in this section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded. [emphasis supplied]_ 10. The language of the second proviso to Section 11(1) of the Act is very clear that the rent control court shall decide the question whether the denial of title or claim of permanent tenancy is _bona fide._ If only the tenant denies the title of the landlord or claims right of permanent tenancy, and if the denial of title or claims of permanent tenancy is _bona fide_ the rent control court shall record the finding and the landlord shall be entitled to sue for eviction of the tenant in a civil court and such court may pass a RCRev..No. 355 of 2017 15 decree for eviction on any of the grounds mentioned in the section. It follows that mere denial of landlordtenant relationship in all circumstances would not oust the rent control petition from the rent control court. There are various circumstances in which the tenant may deny the landlord-tenant relationship. He may be a licensee or a mortgagee or a trespasser or a partner and in such circumstances he may deny the landlordtenant relationship. We are of the opinion that the denial of landlord-tenant relationship would oust the rent control petition from the jurisdiction of the rent control court under Section 11(4)(c) of the Act, if only the denial of the landlord-tenant relationship arises out of denial of title or claim of permanent tenancy. In the absence of denial of title or claim of permanent tenancy, the mere denial of landlord-tenant RCRev..No. 355 of 2017 **==> picture [11 x 6] intentionally omitted <==** relationship only would not, under any other circumstance, oust the rent control petition from the jurisdiction of the rent control court and such rent control petition shall not be considered under the second proviso to Section 11(1) of the Act. In short, denial of landlord-tenant relationship that arises out of denial of title of the landlord or claim of permanent tenancy alone would fall under Section 11(1) of the Act. The rent control court has jurisdiction and power to consider the question, whether there is any landlordtenant relationship, in all circumstances, where there is no denial of title or claim of permanent tenancy. 11. The above view is supported by the decision of this Court in _**Charulatha v. Manju**_ [2004 KHC 50] and the full bench of this Court in _**Parthakumar v. Ajith**_ RCRev..No. 355 of 2017 17 ## _**Viswanathan**_ [2006 (2) KLT 250]. 12. When applying the aforesaid proposition to the instant case, we undoubtedly find that there is no denial of title of the petitioner or claim of permanent tenancy falling under the second proviso to Section 11(1) of the Act. So there was no need to consider the question whether the denial of title is _bona fide_ or not. Since the first respondent has denied the landlordtenant relationship only under the cover of a partnership deed, the rent control court has jurisdiction and power to consider the question, whether there is a landlord-tenant relationship between the petitioner and the respondents. Unfortunately, the Appellate Authority miserably failed to consider Section 11(1) of the Act in its correct RCRev..No. 355 of 2017 **==> picture [11 x 6] intentionally omitted <==** perspective; on the other hand, the Appellate Authority went wrong by ousting the rent control petition from the rent control court on an erroneous finding that mere denial of landlord-tenant relationship alone, without denial of title or claim of permanent tenancy, also would fall under Section 11(1) of the Act. 13. In the result, the impugned judgment passed by the court below would stand set aside and the rent control petition is remitted to the rent control court, for considering the question as to, whether there is landlord-tenant between the any relationship petitioner and the respondents, as a preliminary issue; and to proceed on the basis of the answer to the said question. The rent control court shall dispose of the RCRev..No. 355 of 2017 19 aforesaid rent control petition at the earliest, at any rate within a period of four months from the date of receipt of a copy of this order. The parties shall appear before the rent control court on 06.06.2019. sd/- ## **K.HARILAL, JUDGE** sd/- **ANNIE JOHN, JUDGE** AMV/22/02/2019