Saraswathy and Anil v. Padmini, Romeo, Abhilash, Babu, Jaysree and Prasanna

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932 RCRev..No. 268 of 2010() -----------------------RCA.119/2004 of RENT CONTROL APPELLATE Authority , THRISSUR RCP.23/2001 of RENT CONTROL COURT COURT,THRISSUR .................... PETITIONERS/APPELLANTS 4 & 5/RESPONDENTS ------------------------------ 1. SARASWATHY, AGED 65, W/O.LATE UNNI @ PRABHAKARAN, VILAKKATHARA HOUSE, KUMARANELLUR DESOM & VILLAGE, TALAPPILLY TALUK. 2. ANIL, AGED 30 YEARS, S/O.LATE UNNI @ PRABHAKARAN, VILAKKATHARA HOUSE, KUMARANELLUR DESOM & VILLAGE, TALAPPILLY TALUK. BY ADV. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SRI.MAHESH V.MENON RESPONDENT(S)/RESPONDENTS/PETITIONERS/APPELLANTS 3 & 4: - --------------- 1. PADMINI, AGED 49 YEARS, D/O.NEEROLI KOCHU, EDAKKUNI VILLAGE DESOM, THRISSUR TALUK.680001 2. ROMEO, AGED 28 YEARS, S/O.PADMINI, EDAKKUNI VILLAGE DESOM, THRISSUR TALUK.680001 3. ABHILASH, AGED 24 YEARS, - S/O.PADMINI, EDAKKUNI VILLAGE DESOM, THRISSUR TALUK.680001 4. BABU, AGED 33 YEARS, S/O.LATE UNNI @ PRABHAKARAN, FASHION SALOON, OLLUR, THRISSUR TALUK & DISTRICT.680306 5. JAYASREE, AGED 40 YEARS, W/O.MOHANAN, VILAKKATHARA HOUSE, ENKAKKAD DESOM, WADAKKANCHERRY VILLAGE, TALAPPILLY TALUK & D/O.LATE UNNI @ PRABHAKARAN, VILAKKATHARA HOUSE, KUMAARANELLUR DESOM & VILLAGE TALAPPILLY TALUK. .680582 6. PRASANNA, AGED 35 YEARS, W/O. GOPALAKRISHNAN, VILAKKATHARA HOUSE, - & D/O. LATE UNNI @ PRABHAKARAN, -DO -DO- ADV. SANTHOSH P PODUVAL FOR CAVEATOR THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 27/10/2010, ALONG WITH RCR NO. 307 OF 2010 AND CONNECTED CASE THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. -----------------------R.C.R.Nos.268, 307 & 328 OF 2010 ------------------------** Dated this the 27[th] day of October, 2010 **O R D E R** ## Gopinathan, J. R.C.R. No.268/2010 was filed by the legal heirs of the respondent in RCP No.23/2001 on the file of the Rent Controller, Thrissur. The respondents herein instituted the above petition against late Prabhakaran with an allegation that the petition schedule building was let out to late Prabhakaran as per Ext.A5 rent deed and later renewed as per Ext.A6 rent deed dated 10/11/1973 for a monthly rent of Rs.110/- and it was subsequently enhanced to Rs.180/- and that the petition schedule building was originally belonging to Kochu in whose favour Ext.A6 rent deed was executed. Kochu died in 1990 and thereafter on the strength of Ext.A1 partition deed dated 7/5/1991 executed by the legal heirs of Kochu the petition schedule building along with adjacent room and appurtenant land measuring 10 cents were obtained to RCR.Nos.268/2010 & others 2 the share of respondents and that the 3[rd] respondent had been running a fruits & vegetable shop in the adjacent room and that he wanted to expand the business and to start an Ice cream and Cool Bar for which no sufficient space is available in the building already in their possession and that the petition schedule building was bonafide needed for the expansion of the business run by the 3[rd] respondent. With that plea, eviction was sought under Sections 11 (3) and 11(8) of the Kerala Buildings (Lease and Rent Control) Act 1965 (hereinafter referred to as ' the Act' for short). It was also contended that late Prabhakaran, who had been running a barber shop in the petition schedule building, had a saloon at Chavakkad. With that allegation, eviction was also sought under Section 11 (4)(iii) of the Act. 2. Late Prabhakaran in his counter statement denied the bona fide need urged by the respondents and further contended that late Kochu, in whose favour Ext.A6 rent RCR.Nos.268/2010 & others 3 deed was executed, had no right over the petition schedule building and that it was belonging to one Annie and knowing that Kochu had no right over the petition schedule building and that it belonged to Annie, he attorned to Annie and that the respondents had no manner of right over the petition schedule building and that they are not entitled to get an order of eviction on any of the grounds urged in the petition and that it is not correct to say that late Prabhakaran had a saloon at Chavakkad. 3. During the course of enquiry , the 3[rd] respondent was examined as PW1 and Exts.A1 to A12 were marked on the side of the respondents. On the side of the tenant, late Prabkaran and another were examined as RW1 & RW2, Exts.B1 to B11 and C1 were also marked. The Rent Controller on appraisal of the evidence on record, arrived at a finding that the respondents are entitled to an order of eviction under Section 11(8). The prayers for eviction under section 11(3) and 11(4)(iii) of the Act were declined. RCR.Nos.268/2010 & others 4 Aggrieved by the order of eviction under Section 11(8), late Prabhakaran preferred RCA No.119/2004 before the Rent Control Appellate Authority, Thrissur. Pending appeal, Prabhakaran died. His wife and three children were got impleaded as additional appellants 2 to 5. Prabakaran had another son by name Babu. Since he did not care to get impleaded as an additional appellant in the capacity as one of the legal heirs, he was arrayed as 4[th] respondent. The 4[th] respondent filed a petition as I.A. No. 583/2009 seeking an order to receive cross objection filed by him in the appeal. By the order impugned in RCR No.328/2010, that petition was dismissed. The Appellate Authority on merits dismissed the appeal preferred by the original tenant, who was subsequently represented by additional appellants. 4. Assailing the judgment dismissing the appeal, the additional appellants had preferred RCR No. 268/2010. The 4[th] respondent had preferred RCR No. 307/2010. Assailing the order dismissing I.A. No.583/2009, the RCR.Nos.268/2010 & others 5 respondent had also preferred RCR No.328/2010. 5. We heard the learned counsel appearing for the revision petitioners as well as for the respondents. 6. It is not disputed that late Prabhakaran, the predecessor of the revision petitioners, had obtained the petition schedule building on lease from Kochu on the strength of Ext.A5 lease deed dated 18/11/1971 and thereafter it was renewed as per Ext.A6 lease deed dated 10/11/1973. The learned counsel appearing for the revision petitioners does concede that the predecessor of the revision petitioners obtained possession of the petition schedule building on the strength of Ext.A5 and then renewed by Ext.A6. The revision petitioner in RCR Nos.307 & 328/2010 would contend that the petition schedule building belonged to one Anna (the name subsequently corrected as Annie) and that Annie executed Ext. B11 assignment deed dated 2/9/2003 in favour of the revision petitioner in RCR Nos.307 & 328/2010 and thus he is the RCR.Nos.268/2010 & others 6 absolute owner of the petition schedule building. His claim is neither under lessee nor under lessor. On the same time, the revision petitioners did not dispute the execution of Exts.A5 and A6 by their predecessor in favour of Kochu. In the above circumstance and taking note that Ext.B11 assignment deed was executed pending the proceedings, in the light of Section 116 of the Indian Evidence Act, we find no merit in the argument advanced by the revision petitioner in RCR Nos.307 & 328/2010. 7. A reading of Section 116 of the Evidence Act would be relevant. ## “ **116. Estoppel of tenant;** **and of licensee of person in possession.-** No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that RCR.Nos.268/2010 & others 7 the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given.” 8. So long as the revision petitioners do admit that their predecessor got possession of the petition schedule building on the strength of Exts.A5 and A6 and they succeeded to the possession of the petition schedule property on death of their predecessor, in the light of the Section 116 of the Evidence Act, which we quoted above, they are estopped from denying the title of Kochu over the RCR.Nos.268/2010 & others 8 petition schedule building. Adding to the above, we notice that other than the assertive statement of the revision petitioners, there is no material on record to come to a conclusion that the petition schedule property infact belonged to Annie or that Annie had any manner of right over the petition schedule property. The document by which Annie got right over the property was not produced. Though late Prabhakaran had raised a contention that later he knew that the petition schedule building was belonging to Annie or Anna and he had attorned to her, absolutely there is no bit of document to show that any rent deed was executed or any rent was paid to Anna or Annie. There is also no material to come to a conclusion that Anna or Annie had at any time exercised any right over the petition schedule building. Evidently, the revision petitioners also have no case that on the strength of Ext.B11, they had got the possession of the petition schedule building. They got possession as legal heirs of late RCR.Nos.268/2010 & others 9 Prabhakaran, the original tenant as per Ext.A5 and A6. In the above circumstance, we find no merit in the contention advanced by the revision petitioner in RCR Nos. 307 & 328/2010 that he had got absolute right over the petition schedule building. In the event he had got any right over the petition schedule building on the strength of Ext.B11, it is up to him to move the appropriate forum and get his right established. Since the so called assignment in favour of the revision petitioner is subsequent to the institution of the petition from a third party, for the purpose of eviction, Ext.B11 is to be ignored as it is a pendente lite transfer from a stranger. Ext.B11 would no way bind upon the respondents. To put it otherwise, the revision petitioner in RCR 307 and 328/2010 claims absolute title over the petition schedule building on the strength of Ext.B11 assignment obtained from a stranger to the lease deed. Such title cannot be got declared in a proceedings for eviction of the petition schedule building let out by the RCR.Nos.268/2010 & others 10 predecessor of the respondents to the predecessor of the revision petitioners. 9. The learned counsel for the revision petitioner in RCR Nos.307 & 328/2010 relying upon the decision reported in A.V.G.P.Chettiar & Sons And Others v. T.Palanisamy Gounder (2002(5 Supreme Court Cases 337) argued that the Rent Controller should have, in the light of the nature of the dispute raised by the tenant, enquired the question of title. At para 39 it was held by the Apex Court as follows; “What was the nature of the interest which Gowthaman had in the suit property ? Was it qua trustee or qua owner ? If it was that of a trustee, could he have, legally and in terms of the trust deed, transferred the suit property to the respondent ? Yet the Rent Controller refused to go into any of these questions RCR.Nos.268/2010 & others 11 although they were squarely raised by the appellants before him. Instead he decided the title of Gowthaman on the basis of a partition deed between the heirs of Venkata Naicker and rent receipts granted to the appellants by Gowthaman as proprietor. The Rent Controller could have only decided (i) whether there was a dispute regarding the landlord's title raised by the tenant, and (ii) whether the dispute was bona fide – the bona fides being established prima facie, by evidence in support of the tenant's stand. The Rent Controller could not have ignored the questions relating to the derivative title of the respondent. He could not have finally decided the issue of title of the RCR.Nos.268/2010 & others 12 respondent to the suit property, nor could he have, on that basis, found the appellants' denial of the respondent's title not bona fide.” 10. It was a case relating to Tamil Nadu Buildings (Lease & Rent Control) Act 1960. Going by Section 10 (2) (vii), we find that denial of title of the landlord without bona fides itself is a ground for eviction under the said statute. In that particular case, it was the case that the building was belonging to Venkata Naicker trust and the lease transaction was made by Gowthaman as a trustee. Eviction was sought by an assignee from Gowthman as an heir of Veknata Naicker. The dispute was that Gowthaman had no proprietary right to be sold and that the property belonged to the Trust, which is not alienable by Gowthaman. It is in that circumstance, the decision was rendered. The denial of title was bona fide. Here, the facts RCR.Nos.268/2010 & others 13 of the case has no bearing with the facts of the case in A.V.G.P.Chettiar's case (cited supra). The dictum laid down by the Apex Court has no application to the case on hand. It is a precedent on facts. The lower appellate authority dismissed the petition I.A. No.583/2009 filed by the revision petitioner in RCR No.328/2010 for the reason that he is only one of the legal heirs of the deceased tenant and he is not entitled to file separate cross objection as against the landlord respondent and that he is not entitled to raise an independent claim since he has been impleaded in the appeal as the 4[th] respondent in the capacity as one of the legal heirs of the deceased tenant that too when he did not care to get impleaded in the appeal wherein the order of eviction was assailed. In the above circumstance, he is not entitled to file a separate cross objection to assail the order of eviction or to challenge the title of the respondents. We find that the Appellate Authority was justified in dismissing I.A. No. RCR.Nos.268/2010 & others 14 583/2009. RCR No.328/2010 is devoid of any merit. 11. As regards RCR No.307/2010, we find that the revision petitioner therein on death of his father did not care to get impleaded in the appeal and to assail the order of eviction. In the above circumstance, and for the reason stated earlier, we find that the revision petitioner in RCR No.307/2010, who was the 4[th] respondent, is not entitled to assail the judgment of the Appellate Authority. The revision petition RCR No.307/2010 is also devoid of merit and it is only to be dismissed. 12. The question now that arises is whether the order of eviction under Section 11 (8) confirmed in appeal is liable to be interfered in exercise of the revisional powers. Going by Ext.A1 partition deed, on the strength of which landlords claim the title over the petition schedule building, it is seen that the petition schedule building was set apart to the share of the first respondent in RCR No. 268/2010. The respondents 2 and 3 have got no title over the RCR.Nos.268/2010 & others 15 petition schedule building. Their right, if any, over the petition schedule building is only in the capacity as the children of the first respondent. So long as by virtue of Ext.A1, the petition schedule building absolutely belongs to the first respondent, the respondents 2 and 3 cannot claim any independent right over the petition schedule building. Ext.A7 would show that the first respondent had obtained licence in respect of the business alleged to be run by respondents 1 to 3 in the building in their occupation. In the petition, it was pleaded that the petition schedule building is required for the expansion of the said business run by the 3rd respondent. Canvasing our attention to Section 11 (8) of the Act, the learned counsel for the revision petitioner in RCR No.268/2010 argued that since the very case of the respondents is that the 3[rd] respondent had been running the business in the building occupied by them and the first respondent, being the title holder and she is not occupying the part of RCR.Nos.268/2010 & others 16 the building, the claim for eviction under Section 11(8) of the Act is not sustainable. 13. A reading of Section 11(8) would be relevant for correct appraisal of the dispute. “Section 11(8):A landlord who is occupying only a part of a building, may apply to the Rent Control Court for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for his personal use. “ The words used are that the landlord, who is occupying another part of the building, may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession. Stressing upon the above wordings, it was RCR.Nos.268/2010 & others 17 argued that since the first respondent is not in occupation of the building, in which the 3[rd] respondent was doing the business, according to the learned counsel, the respondents are not entitled for an order of eviction under Section 11(8). He had also given reliance to the decision reported by another Division Bench of this Court in Retnakaran v. Rosy (2004 (3) KLT 154). At para 4 of the above decision this court has held as follows; “The Section uses the expression “occupying” in contradistinction to “possession”. In other words, landlord must be occupying a part of the building of which tenanted premises is also a part. The word occupy means, to take possession of, to hold or have in possession to keep possession of etc. The word occupy also means engage, hold, cohabit etc. Mere RCR.Nos.268/2010 & others 18 possession of the premises by the landlord would not be sufficient to attract S.11(8). Landlord's occupation may be residential or non -residential. Landlord could retain possession of a building without occupying. The test is that in the case of a residential building he must really occupy the building for his residence an in the case of nonresidential building he must occupy for non-residential purposes.” 14. The word “occupation“, with reference to Section 11(8) , had been defined in yet another decision reported in Abraham Roy v. Philip @ Pappachan and Others (2009 (2) KHC 462 (DB) KHC 465), which was rendered on behalf of another Division Bench by one of us (PCK(J). 15. In RCR 138/2007, we had considered an identical RCR.Nos.268/2010 & others 19 issue and by order dated 16/9/2010 referring to decisions in Abraham Roy v. Philip @ Pappachan and others (2009 (2) K.H.C. 462), Pakran v. Kunhiraman Nambiar (2004 (1) KLT 824), Arjunan v. Eranu (1991 (2) KLT 279) and Bega Begum v. Abdul Ahad Khan (1979 S.C. 272), it was held that the concept of occupation by the landlord is not to be construed in a manner though the same is confined to own occupation by the landlord nothing short of that. 16. As we mentioned earlier, by Ext.P7 it is revealed that the first respondent, who obtained the petition schedule building by virtue of Ext.A1 partition deed, had obtained licence for running the vegetable and fruits stall. The very pleading is that the 3[rd] respondent had been running it and to expand the same the petition schedule building is required. On reading the petition in full, the eviction was sought for as if it is a business run by the respondents 1 to 3 together. The respondents were, in fact, in doubt as to whether Section 11(3) is applicable or RCR.Nos.268/2010 & others 20 Section 11(8) is applicable. In the event the business run in the portion of the building occupied by the respondents is being run by the 3[rd] respondent and in the event the first respondent is desirous of starting an Ice Cream & Cool Bar, the the first respondent could have sought for eviction of the petition schedule building under section 11(8) for starting Ice Cream & Cool Bar business in the petition schedule premises. On the other hand, if the first respondent has been running the fruits & vegetable stall in the building occupied by them and the 3[rd] respondent being a dependent of the first respondent bona fide desired to start an Ice Cream & Cool Bar in the petition schedule building, the respondents could have sought for eviction under Section 11(3). Going by the pleadings in the petition, it is not clear as to whether the eviction in respect of the petition schedule building was sought as if the 3[rd] respondent is the owner of the petition schedule building or not. It is not clear as to whether the eviction RCR.Nos.268/2010 & others 21 was sought for starting Cool Bar & Ice Cram Parlor for the 3[rd] respondent as if a dependent of the first respondent. It is also not revealed out whether the first respondent is in fact doing business in the building occupied by them. We find that the pleadings and evidence on record prima facie establishes that the respondents together in fact is very desirous of starting a Cool Bar and Ice Cream Parlor. Whether it is for the 3[rd] respondent independently or it is for the respondents together is not clear from the pleadings in the petition. So also, eviction was sought as if all the respondents have title over the petition schedule building and the respondents together bona fide needed. Probably, in the thick of relationship all may claim title, but not legally. It also appears that the respondents together claim right over the business licenced in the name of the 1[st] respondent in the thick of the relationship. There is lack of clarity in the pleadings and evidence. Pleadings, as stated earlier, may appear that the building belongs to the RCR.Nos.268/2010 & others 22 respondents together and in the building in the possession of the respondents, third respondent is doing business and to expand the business additional accommodation is needed. On the other hand, the title holder of the building is the 1[st] respondent and she is the licence holder of the business said to have been run by the 3[rd] respondent. As mentioned earlier, if the 1[st] respondent wanted to expand the business licenced in her name she can claim eviction under section 11(8). On the other hand if the 3[rd] respondent wanted to start an Ice Cream and Cool Bar of his own, the 1[st] respondent can seek eviction under section 11(3). As regards exact requirement, pleadings require clarification. In the above circumstance, we find that to have proper appraisal of the claim for eviction, amendment of the pleadings is an absolute necessity. Only if it is specifically pleaded in the petition the revision petitionerstenants can counter the pleadings and they would be able to defend the proceedings for eviction. Respondents should RCR.Nos.268/2010 & others 23 convince good reasoning to evict the revision petitioners. In the above circumstance we find that we could not avoid a remand of the case to the Rent Controller. Hence, the judgment impugned and the order of the Rent Control Court are set aside and the matter is remanded back to the Rent Controller for a fresh disposal after allowing the parties to amend the pleadings and to adduce fresh evidence, if they so choose. 17. Incidentally we notice that the rate of rent of the petition schedule building is determined decades back and it is too low when compared to the present rate of rent. We find that provisional fixation of the fair rent of the petition schedule building is warranted. Having taken note that the petition schedule building is situated very near to Ollur junction and along the side of a road having bus service and very close to the N.H. and that the petition schedule building measures more than 200 sq. feet., we find that the fair rent of the petition schedule RCR.Nos.268/2010 & others 24 building can be provisionally fixed at Rs. 1500/- per month payable with effect from 1/11/2010. The above provisional fixation of the fair rent would remain in force till the fair rent of the petition schedule building is fixed by the Rent Control Court on an application by either party. Either party is at liberty to move the Rent Control Court for fixing the fair rent. 18. The parties shall appear before the Rent Controller on 15/11/2011. In the result, while allowing RCR No. 268/2010, the judgment of the Appellate Authority and Rent Controller are set aside and the eviction petition is remitted back to the Rent Controller for fresh disposal after allowing either party to amend the pleadings and taking further evidence, if any, untrammeled by the observations in this order, except the title claimed by revision petitioners in RCR Nos.307 and 328/2010 on the strength of Ext.B11. RCR Nos. 307 & 328/2010 would stand RCR.Nos.268/2010 & others 25 dismissed with liberty to the revision petitioner therein to establish his title over the petition schedule building if any on the strength of Ext.B11 in appropriate forum. No costs. ## **PIUS C.KURIAKOSE,JUDGE** **P.S.GOPINATHAN, JUDGE** dpk