Satheesh Kumar and Nandakumar v. K. Balasubramanian

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MR.JUSTICE DR. KAUSER EDAPPAGATH** **MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942** **RCRev..No.54 OF 2021** **AGAINST THE JUDGMENT IN RCA 202/2016 OF ADDITIONAL DISTRICT COURT KOZHIKODE- II** **AGAINST THE ORDER IN RCP 135/2014 OF PRINCIPAL MUNSIFF COURT KOZHIKODE-I** ## **PETITIONERS/APPELLANTS/RESPONDENTS:** **1 SATHEESH KUMAR AGED 59 YEARS S/O A.A. NARAYANAN, CHENOTHKANDY PARAMBA, NADAKKAVU P.O., KOZHIKODE-673011.** **2 NANDAKUMAR AGED 57 YEARS S/O A.A. NARAYANAN, CHENOTHKANDY PARAMBA, NADAKKAVU P.O., KOZHIKODE-673011.** **BY ADVS. SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH** ## **RESPONDENTS/RESPONDENTS/PETITIONERS:** **K.BALASUBRAMANIAN AGED 71 YEARS S/O KALOOR KRISHNAN, KALOOR HOUSE, KASABA AMSOM DESOM, KOZHIKODE-673002.** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 08.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** RCR No.54/2021 -:2:- **==> picture [66 x 13] intentionally omitted <==** O R D E R Dated this the 8[th] day of March, 2021 ## Dr.Kauser Edappagath, J. This revision petition is filed by the tenants, invoking S.20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short ‘Rent Control Act’), aggrieved by the concurrent findings rendered by the Rent Control Court as confirmed by the Rent Control Appellate Authority. 2. For the sake of brevity, we refer the parties to as the landlord and the tenants. The landlord filed a consolidated Rent Control Petition for eviction on the ground of arrears of rent invoking Section 11(2)(b) of the Rent Control Act and for fixation of fair rent invoking S.5 of the Rent Control Act. It is not in dispute that the petition-schedule building originally belonged to the father of the landlord, which was taken on lease by the predecessor in interest of the tenants in the year 1963 as per Ext. A1 lease deed. It was alleged by the landlord that after the death of his father, the petition-schedule building was set apart to his RCR No.54/2021 -:3:- share by virtue of Ext.A2 partition deed entered into between the legal heirs. It was further alleged that after the death of the predecessor in interest of the tenants, the tenancy right devolved upon the respondents/tenants and they continued as tenants attorning to the landlord. The landlord further alleged that the rent of the building is `45/- per month and the tenants have kept the rent in arrears after March, 1992. It was also alleged that the petition-schedule building is situated in an important locality at Kozhikode and the existing rate of rent paid by the tenant is quite inadequate and unreasonable considering the rate of rent in the locality and demand for accommodation and scarcity of space. The landlord sought to get the fair fixed at the rate of `5,000/per month. 3. The tenants entered appearance and filed counter statement. The case of the landlord that petition schedule building originally belonged to his father was not disputed. On the other hand, it was contended that the landlord never intimated them his acquisition of ownership over the building. The tenants raised plea of kudikidappu. It was contended that the building in question is a ‘hut’ and they are ‘kudikidappukars’ coming under RCR No.54/2021 -:4:- the Kerala Land Reforms Act, 1963 ( for short ‘KLR Act’) and, thus, entitled to fixity of tenure. It was also contended that they have already moved the Land Tribunal, Kozhikode and filed OA No.18/2014 for the purchase of kudikidappu right. So far as the rent arrears is concerned, it was contended that the failure to pay the rent was not wilful. According to them, the landlord is not entitled to get the fair rent of the building fixed as prayed for. They sought for dismissal of the petition. 4. On the side of the petitioner/landlord, PWs 1 and 2 were examined and Exts. A1 to A6 were marked. On the side of the respondents/tenants, RW1 was examined. Commissioner's report and sketches were marked as Exts. C1 to C3. After trial, the Rent Control Court allowed the petition u/s 11(2)(b) of the Act. The fair rent of the building was fixed at the rate of `5,000/per month. Challenging the order of the Rent Control Court, the tenants preferred appeal before the Rent Control Appellate authority, Kozhikode as RCA No.202/2016. The Rent Control Appellate Authority as per the judgment dated 15/6/2017 dismissed the appeal. The order of the Rent Control Court and the judgment of the Rent Control Appellate Authority are under RCR No.54/2021 -:5:- challenge in this revision. 5. Heard. 6. The learned counsel for the petitioners/tenants argued that findings of the courts below, especially on the denial of title and claim of right of permanent tenancy, are not sustainable and that the impugned orders are vitiated by illegality, irregularity and impropriety. 7. The main thrust of argument of the learned counsel is based on the second proviso to S.11(1) of the Rent Control Act. The learned counsel submitted that the tenants have raised a specific plea before the courts below that their status is that of kudikidappukars and not tenants and as such, the landlord-tenant relationship stands denied. The learned counsel further argued that since the tenants raised the plea of kudikidappu, they have set up a title in themselves which amounts to denial of title of the landlord. It was also argued that plea of kudikidappu is nothing but a claim of right of permanent tenancy falls within the second proviso to S.11(1). The said plea being bonafide one, the courts below ought to have relegated the parties to the civil Court, argued the counsel. RCR No.54/2021 ## -:6:- ## 8. S.11(1) of the Rent Control 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 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 the section, notwithstanding that the court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded."_ The language of the second proviso to S.11(1) is very clear that only when the tenant denies the title of the landlord or claims right of permanent tenancy, the parties need to be relegated to the civil Court. In other words, a specific denial of title or claim of right of permanent tenancy by the tenant is _sine qua non_ for the Rent Control Court to record a finding that such a plea is bonafide RCR No.54/2021 -:7:- or not. Now, let us examine whether the tenants have taken either of these pleas. 9. A perusal of the counter statement filed by the tenants would show that they have not denied the title of the landlord. They have also not denied Ext. A1 lease deed or Ext. A2 partition deed. Even the landlord-tenant relationship is not specifically denied. What is pleaded in the counter statement is that the landlord has to prove that there exists a landlord-tenant relationship between the landlord and the tenants. The courts below proceeded as if the denial of landlord-tenant relationship amounts to denial of title, and plea of kudikidappu amounts to claim of right of permanent tenancy. However, on facts, it was found that those pleas were not bonafide and decided against the tenants. 10. What is contemplated u/s 11(1) of the Rent Control Act is a “bonafide denial of title or claim of right of permanent tenancy” and not a “bonafide denial of landlord-tenant relationship”. Even if the landlord-tenant relationship is denied, same will not fall within S.11(1). The Division Bench of this Court in _**Khadeeja and Others v. Haris Haji V.**_ [2019 (3) KHC 527] RCR No.54/2021 -:8:- has held that mere denial of landlord-tenant relationship in all circumstances would not oust the jurisdiction of the Rent Control Court and 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). As already stated, in this case, there is no denial of landlord's title. Moreover, the very claim of kudikidappu right implies an admission of the title of the landlord. 11. Next question is whether plea of kudikidappu taken by the tenants would fall within the claim of right of permanent tenancy. ‘Kudikidappukaran’ is not a ‘tenant’ as defined in the Rent Control Act or in the KLR Act. 'Kudikidappukaran' is defined in S.2(25) of the KLR Act and is generally understood as hutment/dweller who has been permitted to occupy the land of another and has been either permitted to put up a hut of his own for such residence or is permitted to occupy a hut belonging to the landlord. S.2(57) of the KLR Act defines a 'tenant'. It is an inclusive definition and takes in the various persons described therein, but a ‘kudikidappukaran’ coming u/s 2(25) is not taken in. S.2(6)(ii) of the Rent Control Act specifically says that a tenant under the Rent Control Act does not include a ‘kudikidappukaran’ RCR No.54/2021 -:9:- as defined in the KLR Act. The tenancy right under the Rent Control Act is quite distinct and different from the tenancy right or kudikidappu right under the KLR Act. This Court in _**K.C.P.K.C.V. & CO. v. Venkitakrishnan & Others**_ [1998 KHC 285] has held that the claim of permanent tenancy referred to in second proviso to S.11(1) of the Rent Control Act is not in respect of tenancy contemplated under the KLR Act and is in respect of building as defined in S.2(1) of the Rent Control Act. In _**Mariyappanassari v. Amaravathy Ammal**_ [1995 KHC 207], it was held that the bar under S.11(1) is attracted only in a case where the subject matter of the suit is a building as defined in the Rent Control Act and not in a case where title to the land and a claim of fixity under the Kerala Land Reforms Act is involved. The Division Bench of this Court in _**Govindan V. and Others v. P.A.Rasheed**_ [2009 (1) KHC 587] considered the question what is “permanent tenancy” in the context of the second proviso to S.11(1) of the Rent Control Act. It was held that permanent tenancy means a tenancy in perpetuity or a claim of permanent immunity from eviction or a tenancy which is to last forever till its subject matter, the building exists. Thus, in a case where there is RCR No.54/2021 -:10:- no denial of landlord's title, but the tenant claims right of kudikidappu, there is no scope for invoking the second proviso to S.11(1) since claim of kudikidappu can never be a claim of permanent tenancy. 12. When the tenant claims kudikidappu right in a rent control proceedings, what is the course open to the Rent Control Court?, is the next question. In a proceeding where the question regarding kudikidappu actually arises, the Rent Control Court has no jurisdiction to decide any aspect of it since the entire question has to be decided by the Land Tribunal. S.125 (1) of the KLR Act bars the jurisdiction of the civil Court to decide question about the status of kudikidappukaran. S.125(3) specifically says that if such a question arises, the civil Court shall stay the suit or other proceedings and refer such question to the Land Tribunal for the decision of that question. Sub-section (8) of S.125 introduced in the statute book w.e.f. 2/11/1972 makes it clear that the civil Court would include the Rent Control Court as defined in the Rent Control Act. S.125(3) of the KLR Act makes it clear that a reference to the Land Tribunal need to be made only if such question 'arises' in the suit or other proceedings concerned. It RCR No.54/2021 -:11:- has been consistently held by this Court that unless such question legally arises, there is no need to make the reference to the Land Tribunal u/s 125(3) of the KLR Act vide the Full Bench decisions in _**Kesava Bhatt v. Subraya Bhat**_ {1979 KLT 766} and _**Muhammad Haji v. Kunhunni Nair**_ {1993 (1) KLT 227}. Subsequently in _**Sundaran v. Mohammed Koya**_ {1995 (2) KLT 115}, it was held that the civil Court is not obliged to make a reference unless the question genuinely arises. The Supreme Court in _**Thomas Antony v. Varkey**_ (2000 KHC 3) has held that if there is not even a remote possibility of the plea being upheld, the civil Court can conclude that the question does not reasonably arise in the case. It was observed that the civil Court is not obliged to make a reference to the Land Tribunal as per S.125(3) of the KLR Act merely because a party has raised a contention that he is a tenant or kudikidappukaran, and the civil Court has power to consider whether such contention has been raised without any legal foundation or with only intention to gain time by protracting the litigation. If the civil Court is of opinion that there is not even a remote possibility of the plea being upheld, the Court can proceed to dispose of the suit without RCR No.54/2021 -:12:- resorting to circumlocuted route via the Land Tribunal. In _**Sundaran**_ (supra), the Division Bench of this Court held that unless the question of tenancy legally arises, there is no obligation for the civil Court to make a reference. If the question of tenancy or kudikidappu genuinely and legally arises, the Rent Control Court has no jurisdiction to proceed further. Similarly, if the denial of title of the landlord is found to be bonafide, then also, the Rent Control Court has no jurisdiction. Both situation affects the jurisdiction of the Rent Control Court. But the procedure to be followed in both eventuality is distinct and different. Where the tenant claims kudikidappu right, the Rent Control Court has no jurisdiction even to proceed further as the question has to be referred to the Land Tribunal as envisaged in S.125(3) of the KLR Act and the Rent Control Court has to stay the proceedings before the reference is made. On the other hand, in the latter eventuality, the Rent Control Court has the power to determine its own jurisdiction by deciding whether the denial of title is bonafide. In a case where a reference is made u/s 125(3), after the reference is answered, the Rent Control Court has to pass an order taking into consideration the answer of the RCR No.54/2021 -:13:- reference. On the other hand, when the matter is relegated to the civil Court under second proviso to S.11(1) of the Rent Control Act, the civil Court has to decide the entire issue. Thus, when a tenant in rent control proceeding admit the title of the landlord, but set up a plea of kudikidappu, the Court has to consider the bonafides or genuineness of the said claim so as to make a reference to the Land Tribunal within the parameters of S.125(3) of the KLR Act and not within the parameters of S.11(1) of the Rent Control Act. Thus, the Court below committed illegality in considering the whole issue u/s 11(1) of the Rent Control Act. 13. Sometimes a situation may arise where the tenant denies the title of the landlord and claims kudikidappu right as well. In both situations, if the denial of title or the claim of kudikidappu is found to be bonafide, the Rent Control Court has no jurisdiction to decide either of the issues. Then, a question would arise whether the Rent Control Court should decide the plea relating to denial of title first before considering the genuineness of the plea of kudikidappu. A similar question arose before this Court in _**Janaki Amma v. S.V.Vidya Samajam**_ [1992 KHC 455]. It was held that a tenant cannot compel the Rent RCR No.54/2021 -:14:- Control Court that the plea relating to denial of title must be decided before making reference under S.125(3) of the KLR Act. It was further held that it is for the Court to adopt either of the two courses first and it would be quite unnecessary to lay down any principle or to fix any specific rule regarding the order of priority in adopting the said two courses. 14. The upshot of the above discussion is as follows: (i) Mere denial of landlord-tenant relationship in all circumstances would not fall within the proviso to Section 11(1) of the Rent Control Act unless the said denial of landlord-tenant relationship arises out of denial of title of the landlord. (ii) ‘Kudikidappukaran’ is not a ‘tenant’ as defined in the Rent Control Act or in the KLR Act. The tenancy right under the Rent Control Act is quite distinct and different from the tenancy right or kudikidappu right under the KLR Act. Hence, plea of kudikidappu taken by the tenants in a Rent Control proceedings would not fall within the claim of permanent tenancy u/s 11(1) of the Rent Control Act. (iii) In a case where there is no denial of landlord's title, but the tenants claim right of kudikidappu, there is no scope for invoking RCR No.54/2021 -:15:- the second proviso to S.11(1) of the Rent Control Act since claim of kudikidappu can never be a claim of permanent tenancy. (iv) When the tenant claims kudikidappu right in a rent control proceedings and the said question regarding kudikidappu actually arises, the course open to the Rent Control Court is to stay the proceedings and refer such question to the Land Tribunal for the decision of that question u/s 125(3) of the KLR Act. (v) When a tenant in rent control proceeding admits the title of the landlord, but set up a plea of kudikidappu, the Court has to consider the bonafides or genuineness of the said claim so as to make a reference to the Land Tribunal within the parameters of S.125(3) of the KLR Act and not u/s 11(1) of the Rent Control Act. (vi) In a case where the tenant denies the title of the landlord as well as claims kudikidappu right, there is no hard and fast rule that the plea relating to denial of title u/s 11(1) of the Rent Control Act must be decided first before making reference under S.125(3) of the KLR Act. It is for the Court to adopt either of the two courses first depending on facts and circumstance of each case 15. Now, we will examine the question whether plea of RCR No.54/2021 -:16:- kudikidappu genuinely or legally arises in this case. Ext. A1 is the lease deed executed by the predecessor in interest of the tenant in favour of the father of the landlord. Ext.A1 has not been disputed by the tenants. It is of the year 1963. The rate of rent agreed in Ext.A1 is `45/-. There is nothing on record at least to _prima facie_ satisfy the plea of the tenants that the cost of construction of the building would not exceed `750/- and the rent that would have been fetched at the time of construction would be not exceeding `5/- per month apart from the vague plea raised in the counter statement. A commission has been taken out. Ext.C1 is the commission report and Exts.C2 and C3 are the sketches. The report of the Commissioner would show that the petition-schedule building can never be termed as a “hut” as defined under the KLR Act. The sketch given by the Commissioner would show that the petition-schedule building is having four bed rooms, dining hall, verandah, prayer hall, store room and kitchen. The area of the petition-schedule building reported by the Commissioner is 900 sq.ft. All the bed rooms are having 18 ft. length and 7 ft. width. Thus, petition-schedule building is a pucca residential building with all the facilities and RCR No.54/2021 -:17:- amenities. It is situated in an important locality also. That apart, the entrustment as evident from Ext. A1 is purely a building lease. For all these reasons, we hold that the plea of kudikidappu does not genuinely or legally arises for consideration and hence the said plea need not be referred to Land Tribunal for decision. Apart from such a claim of kudikidappu in the counter statement, there is no other claim of right of permanent tenancy. 16. So far as the eviction sought for u/s 11(2) of the Rent Control Act is concerned, the definite case of the landlord is that the rate of rent is `45/- per month and the tenants have defaulted the rent after March, 1992. Ext. A1 proves that rate of rent is `45/- per month. The tenants have no case that they have paid rent after March, 1992. The contention raised in the counter statement is that the failure to pay rent after March, 1992 was not wilful. The landlord has issued statutory notice u/s 11(2)(b) to the tenants. In spite of the receipt of the notices, the tenants did not pay the same. Hence, we are of the view that the Court below was absolutely justified in granting an order of eviction u/s 11(2) (b) of the Rent Control Act. 17. According to the landlord, the present rate of rent paid RCR No.54/2021 -:18:- by the tenants is inadequate considering the importance of the locality, inflation and prevailing rate of rent in the locality for similar buildings. The tenants disputed the said contention of the landlord and contended that the present rate of rent is reasonable and adequate and no revision is warranted. The Court below accepted the case of the landlord and fair rent of the building is fixed @`5,000/- per month. 18. This Court in _**Edger Ferus v. Abraham Ittycheriya**_ (2004 (1) KLT 767) has held that S.5(1) of the Rent Control Act will remain in the statute book enabling the Rent Control Court to fix fair rent and the landlord or the tenant, as the case may be, can approach the Rent Control Court for revision of rent quinquennially. The said decision has been confirmed by the apex Court in _**Edger Ferus v. Abraham Ittycheriya**_ (2009 (4) KLT 673). In the said decision, the apex Court has given certain guidelines that have to be taken into consideration while fixing the fair rent. It was held that while fixing the fair rent, the Court should take note of the inflation and the resultant variations in the purchasing power of money, variation in the cost of living index in the area since the commencement of the lease, demand RCR No.54/2021 -:19:- for accommodation and availability of the building in the locality, locational importance, access to the place, public importance like bus stand, railway station, hospital etc and also prevailing rent in the locality for the same and similar accommodation. 19. To prove the case of the landlord, the landlord gave evidence as PW1. A commission was taken out and the Commissioner's report and sketches were marked as Exts. C1 to C3. The commission report coupled with the evidence of PW1 would clearly show that the petition-schedule building is a pucca residential unit having all the facilities and amenities. The report would further show that the building is situated in a commercially important area in Kozhikode. There are many residential houses and flats around the building. It abuts the corporation road. The Commissioner has reported that Panicker Road Market, Nadakkadvu market, office of fisheries, Vellayil railway station, electricity office etc., are situated within a radius of 250 metres of the petition-schedule building. While fixing the fair rent, the Court cannot ignore inflation and resultant variation in the purchasing power of money, variation in the cost of living index etc. The building was let out as early as in the year 1962. There was no RCR No.54/2021 -:20:- enhancement thereafter. Considering all these aspects, we are of the view that the Court below was absolutely justified in fixing the fair rent at `5,000/- per month. 20. On an anxious consideration of the entire pleadings and evidence on record, we are satisfied that there is neither denial of the title of the landlord nor claim of right of permanent tenancy so as to attract the second proviso to section 11(1) of the Rent Control Act. The plea of kudikidappu raised by the tenants does not arise for consideration so as to refer the same to the Land Tribunal for decision u/s 125(3) of the KLR Act. The Court below was absolutely justified in granting an order of eviction u/s 11(2)(b) for the reasons stated above. The fair rent fixed by the Court below as per the impugned order also appears to be very reasonable and adequate. For all these reasons, we find no reason to interfere with the concurrent findings of the court below under the exercise of jurisdiction vested with this Court u/s 20 of the Rent Control Act. In the result, the revision is dismissed. However, the tenants are granted three months' time to deposit the entire arrears of rent with interest and cost of proceedings so as to vacate the RCR No.54/2021 -:21:- order u/s 11(2)(b) of the Rent Control Act. The parties shall bear their respective costs. **Sd/-** **A.MUHAMED MUSTAQUE** **JUDGE** **Sd/DR. KAUSER EDAPPAGATH** Rp True Copy **JUDGE** PS to Judge