Shyla v. Leelamma Punnoose

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE P.SOMARAJAN THURSDAY, THE 6TH DAY OF JULY 2017/15TH ASHADHA, 1939 ## **RCRev..No. 170 of 2015 (B)** AGAINST THE JUDGMENT IN RCA NO.41/2011 ON THE FILES OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE), ALAPPUZHA, DATED 31-03-2015 AGAINST THE ORDER IN RCP NO.2/2006 ON THE FILES OF THE RENT CONTROL COURT (PRINCIPAL MUNSIFF), ALAPPUZHA, DATED 17-10-2011. ## REVISION PETITIONER/APPELLANT/RESPONDENT: SHYLA, AGED 43 YEARS, W/O. ABDUL RAHEEM, SHYLA MANZIL, NADAKKAVU ROAD, CHUNGAM WARD, ALAPPUZHA. BY ADVS.SMT.C.G.BINDU SMT.C.G.AJITHA SMT.SEEMA.E.GEORGE ## RESPONDENTS/RESPONDENTS/PETITIONER (LRS): 1. LEELAMMA PUNNOOSE, AGED 55 YEARS, W/O. PUNNOOSE, KONDAKASSERIL, MAMPUZHAKARI, RAMANKARI VILLAGE, ALAPPUZHA. 2. AISHA, D/O. ABDUL REHMANKUNJU, FATHIMA KUNJU, THEKKEVEEDU HOUSE, CHUNGAM WARD, ALAPPUZHA. (DELETED) NAME OF SECOND RESPONDENT IS DELETED FROM THE ARRAY OF PARTIES VIDE ORDER DATED 6.7.2017 IN I.A.NO.1676 OF 2017. R1 BY ADV. DR..GEORGE ABRAHAM (CAVEATOR) THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 06.07.2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **I.A.NO.1787/2015 IN R.C.R.NO.170/2015** CLOSED 06/07/2017 SD/- **K.HARILAL, JUDGE** SD/- **P.SOMARAJAN, JUDGE** //TRUE COPY// AHZ/ ## **K. HARILAL & P. SOMARAJAN, JJ.** -----------------------------------------------R.C.R. No.170 of 2015 -----------------------------------------------Dated this the 06[th] day of July, 2017 ## O R D E R ## **K. Harilal, J.** The revision petitioner is the tenant who is suffering from an order of eviction under Sections 11(2)(b), 11(3) and 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'). This revision has been filed challenging the concurrent findings, whereby the courts below rejected the claim of the tenant that she is entitled to get protection under Section 106 of the Kerala Land Reforms Act and thereby she is not liable to be evicted under the Act. 2. According to the landlord, the plaint schedule building belongs to her by virtue of Exhibit A4 sale deed of the year 2005 and at the time of aforesaid sale, the tenant herein was in occupation of the petition schedule building, ## R.C.R. No.170 of 2015 :: 2 :: in continuation of the original tenant, as her legal heir. The purchase of the petition schedule building and the attornment thereunder was intimated to the tenant by registered notice, dated 17.02.2005, and the same was accepted by the tenant. Thereafter, she had paid arrears of rent through money order. The landlord needs the petition schedule building for starting a tailoring-cum-textile shop in order to eke out her livelihood and she has no other building of her own in her possession. 3. The tenant filed an objection admitting the landlord-tenant relationship and the attornment thereunder, but contended that Exhibit A7 lease deed was executed for the enhancement of rent only and her predecessors-in-interest was in occupation of the petition schedule building from a period before 01.07.1978. Further, it was contended that the _bona fide_ need projected in the petition is a pretext for eviction only and she is entitled to get protection under the second proviso to Section 11(3) of ## R.C.R. No.170 of 2015 :: 3 :: the Act. Moreover the tenant specifically admitted that she is liable to be evicted under the grounds provided in the Kerala Buildings (Lease and Rent Control) Act only. 4. The first objection was filed in the year 2006. Thereafter, in the year 2010 the tenant filed an additional objection rescinding all the admissions as to landlord-tenant relationship made in the first objection and the applicability of the provisions under the Act. Further, it was contended that her father by name 'Bukhari' has taken 1.20 square meter of land from the landlord on ground rent in the year 1948 and thereafter he had constructed a building thereon and the petition schedule building is the building which was constructed by Bukhari. According to the tenant, the said construction was made for commercial purpose before 1967 and thereby she is entitled to get the protection under Section 106 of the Kerala Land Reforms Act, 1963. Further, she contended that in the first objection, certain mistakes and omissions were crept and she realized the ## R.C.R. No.170 of 2015 :: 4 :: same in the year 2010 only, when she changed vakalath and entrusted the case to another lawyer. Thus, in the second objection she has rescinded all her earlier admissions made in the first objection as regards the landlord-tenant relationship and the title of the landlord over the petition schedule building. 5. On the aforesaid rival pleadings, both parties adduced evidence, both oral and documentary, and the trial court framed 12 issues pertaining to rival pleadings and thereafter considered the principal question at first whether the tenant is entitled to get protection under Section 106 of the Kerala Land Reforms Act and the denial of title of the landlord is _bona fide_ or not. After considering the evidence, on record, the Rent Control Court found that the denial of title of the landlord and the claim of protection under Section 106 of the Kerala Land Reforms Act are not _bona fide_ and she is liable to be evicted under the provisions of the Act. Thereafter, further found that the need projected in ## R.C.R. No.170 of 2015 :: 5 :: the Rent Control Petition is a _bona fide_ one and the tenant is not entitled to get protection under the proviso to Section 11(3) of the Act. In appeal, the Appellate Court also confirmed the aforesaid findings. 6. Heard the learned counsel for the landlord and the learned counsel appearing for the tenant. 7. The learned counsel for the tenant advanced arguments exhaustively contending that the courts below failed to consider the claim under Section 106 of the Kerala Land Reforms Act and the denial of title of the landlord in its correct perspective. So also, the courts below failed to consider Exhibits B1 to B7 produced by the tenant. The learned counsel further contended that the second objection was filed with the permission granted by the High Court in R.C.R.No.160/2010 and thereby this Court also accepted the circumstances under which the second objection was filed. The learned counsel also admitted that the tenant has rescinded all the admissions made in the first objection. ## R.C.R. No.170 of 2015 :: 6 :: More clearly, it is admitted that, in the first objection, she has stated that she is liable to be evicted under the provisions of the Act. That apart, she had admitted the receipt of notice intimating the purchase of petition schedule property and the attornment of the tenant thereunder. As regards Exhibit A7 rent deed, in the first objection, it was contended that Exhibit A7 was executed for the enhancement of rent and it was further contended that actually her predecessor-in-interest was in occupation of the petition schedule building before 01.07.1978. The learned counsel further contended that this Court has granted permission to file additional affidavit in derogation of the pleadings made in the first objection in view of the fact that the amendment application filed by the tenant was dismissed by the courts below and confirmed by this Court in R.C.R.No.160/2010. According to the learned counsel, the pleadings in the first objection would stand obliterated by the acceptance of second objection with the permission ## R.C.R. No.170 of 2015 :: 7 :: of the Court. Therefore, the right of permanent lease under Section 106 of the Kerala Land Reforms Act is liable to be considered in view of the specific pleadings in the second objection only and the admissions made in the first objection cannot be looked into. 8. Per contra, learned counsel for the first respondent advanced arguments to justify the concurrent findings of the courts below whereby the claim of permanent tenancy under Section 106 of the Kerala Land Reforms Act and denial of title of the landlord stand rejected. According to the learned counsel for the landlord, merely on the reason that this Court had given permission to file an additional affidavit, it cannot be interpreted to mean that this Court has accepted the contents of the additional affidavit. The learned counsel further submits that the pleadings in the second affidavit is filed in derogation of the pleadings in the first objection and thereby the pleadings are mutually destructive and opposing and that itself is sufficient to ## R.C.R. No.170 of 2015 :: 8 :: prove the lack of _bona fides_ in the claim under Section 106 of the Kerala Land Reforms Act. 9. In view of the submissions made at the Bar, the principal question to be considered in this revision is, whether there is any illegality, impropriety or irregularity in the concurrent findings of the courts below that the denial of title of the landlord and the claim under Section 106 of the Kerala Land Reforms Act are made without _bona fides._ Going by S.106 of the Kerala Land Reforms Act, the person in occupation of the land has to prove the following, to claim protection under Section 106 of the KLR Act. (1) He had been granted lease of land for commercial or industrial purpose; (2)After grant of such lease, he had constructed a building for industrial or commercial purpose; and (3) Such construction had been made before 20[th] May, 1967. 10. A Full Bench of this Court in **Parthakumar** v. **Ajith Viswanathan (2006 (2) KLT 250(F.B.)),** has elaborately considered the statutory requirement under R.C.R. No.170 of 2015 :: 9 :: Section 106 of the Kerala Land Reforms Act as given below: “22. What then is the title of the landlord contemplated under the second proviso to S.11 (1) of the Act. Title, it is trite, is the sum total or the bundle of rights in respect of property. The paramount title of the landlord is absolutely irrelevant for the purpose of a claim under S.11. His title as the landlord alone is relevant in a dispute under S.11 of the Act. Is he the landlord of the person proceeded against? If he is, he has the requisite title to sustain the claim for eviction under S.11. He may be only a mortgagee or a lessee who had leased/sub leased the building. A denial of paramount title is, in these circumstances, irrelevant if the person proceeded against is the tenant and the person making the claim is the landlord. Proprietary title of the person claiming eviction is thus irrelevant and the denial contemplated under S.11(1) of the Act could never have been the denial of paramount, or proprietary title. The denial of paramount title may in a given case include the denial of title as landlord also. Such title as landlord alone is ## R.C.R. No.170 of 2015 :: 10 :: essential to sustain a claim for eviction under S.11(1) of the Act. All that we intend to take note is that the denial of paramount or proprietory title is irrelevant and that is not the precise denial of title contemplated under the second proviso to S.11(1) of the Act. The denial of title as landlord alone is relevant. So wherever there is a denial of the right of the landlord to claim eviction - on the ground that he is not the landlord of the person proceeded against, such denial must certainly be reckoned as denial of title of the landlord as contemplated under S.11(1) of the Act. In short, we are of opinion that denial of landlord – tenant relationship between the claimant/landlord socalled and the respondent/tenant so-called is the denial of title which alone is contemplated under the second proviso to S.11(1). If there is admission of such title, the Rent Control Court certainly has jurisdiction to proceed. If that is in dispute, second proviso to S.11(1) comes into play. The Supreme Court referred to the distinction in the concept of ownership in a claim for eviction under the Rent Control legislation in R.C.R. No.170 of 2015 :: 11 :: contra distinction to the same in a title suit in the following words in para-10 in _Sheela & Ors. v. Firm Prahlad Rai Prem Prakash_ ((2002) 3 SCC 375) are refer to: **“10. ....... We may hasten to add that the concept of ownership in a landlord-tenant litigation governed by rent control law has to be distinguished from the one in a title suit. Ownership is a relative term, the import whereof depends on the context in which it is used. In rent control legislation, the landlord can be said to be the owner if he is entitled in his own legal right, as distinguished from for and on behalf of someone else, to evict the tenant and then to retain, control, hold and use the premises for himself. What may suffice and hold good as proof of ownership in a landlord-tenant litigation probably may or may not be enough to successfully sustain a claim for ownership in a title suit.”** ” 11. Let us examine, how far the tenant herein succeeded in bringing a _bona fide_ claim under Section 106 of the Kerala Land Reforms Act. Going by the first objection filed by the tenant, it stands undisputed that she admitted the title of the landlord under Ext.A4 and the attornment of tenancy made thereunder. Further, it was R.C.R. No.170 of 2015 :: 12 :: stated that she is liable to be evicted under the grounds provided in the Kerala Buildings (Lease and Rent Control) Act only. According to her, Ext.A7 rent deed was executed for the enhancement of rent and her predecessor-ininterest was in occupation of the petition schedule shop room from a period before 1978. She further admitted that she had tendered the arrears of rent on receipt of notice under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, but the landlord refused to accept the same. In short, the title of the landlord and her status as tenant under the landlord are admitted in the first objection. 12. It is true that she filed an application to amend the objection filed in the year 2010, but the same was dismissed concurrently by the Rent Control Court and the Rent Control Appellate Authority and that culminated in R.C.R.No.160 of 2010 before this Court. In R.C.R.No.160 of 2010, this Court confirmed the orders passed by the R.C.R. No.170 of 2015 :: 13 :: courts below dismissing the amendment application, but granted permission to the tenant to file an additional affidavit. In that order, it was made clear that “the contentions in the additional objection would be considered along with the other issues which arise on the pleadings already raised”. In view of this specific observation of this Court, it could be presumed that this Court has not granted permission to file additional affidavit raising a new plea in derogation of the earlier pleadings in the first objection. Therefore, we find that the pleadings in the first objection would stand as such and this Court has made clear that fresh contentions also would be considered along with the contentions raised in the first objection. In our opinion, it cannot be interpreted to mean that additional objections were allowed to be raised in derogation of the admissions made in the first objection or the contentions to be raised in the additional objections would be accepted. Needless to say,if the contentions raised in the additional objections are ## R.C.R. No.170 of 2015 :: 14 :: contrary to the earlier contentions in the first objection, the contentions raised in the additional objections would render themselves invalid. Further, we find that in view of the admission, accepting the landlord-tenant relationship and the title of the landlord, she is estopped from raising a permanent lease or tenancy, under Section 116 of the Indian Evidence Act. Therefore, all the pleadings made in the second objection in derogation of the admissions made in the first objection would be hit by Section 116 of the Indian Evidence Act. Therefore, we are of the opinion that the denial of landlord-tenant relationship and the title of the landlord are not legally valid in the eye of law. Further, it gives rise to a legal presumption that the denial of landlordtenant relationship and the right of permanent lease under Section 106 of the Kerala Land Reforms Act are raised without _bona fides_ . 13. More over, it is to be remembered that in the first objection, she admitted the title of the landlord, but in ## R.C.R. No.170 of 2015 :: 15 :: the second objection, she denied the title and raised the claim of permanent tenancy. Unless title of the lessor is admitted, there cannot be a claim of permanent tenancy under Section 106 of the Kerala Land Reforms Act, as permanent tenancy rests on the construction of the building for industrial and commercial purpose with the permission of the lessor only. In other words, the contentions in the first objection and the second objection are mutually destructive and opposed. In the above view, the courts below are legally justified in finding that the denial of title and the landlord-tenant relationship and the claim of protection under Section 106 of the Kerala Land Reforms Act lack bona fides. 14. Coming to Exts.B1 to B7 documents produced by the tenant, Exts.B2 and B3 are photocopies of the settlement registers issued by the Tahsildar, Ambalappuzha. Neither Ext.B2 nor Ext.B3 gives rise to any evidence as to the claim of permanent tenancy under ## R.C.R. No.170 of 2015 :: 16 :: Section 106 of the KLR Act. Exts.B2 and B3 do not refer to any period to which they relate. Exts.B4 and B5 are electricity bills issued by the Kerala State Electricity Board. It is pertinent to note that the consumer numbers in Exts.B4 and B5 are entirely different and there is no material, on record, to prove that the consumer number referred to in Exts.B4 or B5 is the consumer number of the petition schedule building. Further, Ext.B6 series show that, during the pendency of the Rent Control Petition, the tenant herein had applied for issuing patta, in respect of the petition schedule building, before the Land Tribunal, under the alleged claim of Section 106 of the KLR Act, without impleading the landlord herein as party and the Tribunal rejected the application stating that she is not entitled to get patta. Similarly, Ext.B7 established that the tenant herein is the only legal heir of the deceased parents and she is continuing the tenancy in the schedule building after the death of her mother as a statutory tenant. Thus, ## R.C.R. No.170 of 2015 :: 17 :: Ext.B7 cut the root of her claim under Section 106 of the KLR Act. However, even if Exts.B2 to B7 are admitted, at its face value, and taken in evidence as such, none of the documents would prove that the petition schedule building was constructed for industrial or commercial purpose by the predecessor of the tenant before 20[th] May, 1967. We find that the courts below have rightly evaluated the evidenciary value of Exts.B2 to B7 and found that those documents would not establish a _prima facie_ case under Section 106 of the KLR Act. Therefore, the courts below are justified in not placing reliance on Exts.B2 to B7. There is no illegality or impropriety in the finding that the claim of permanent lease under Section 106 of the Kerala Land Reforms Act and the denial of title of the landlord are made without any kind of _bona fides_ . The courts below are justified in finding that the tenant is liable to be evicted under the provisions of the Kerala Buildings (Lease and Rent Control) Act. The Revision Petitioner/tenant has not challenged the findings ## R.C.R. No.170 of 2015 **==> picture [39 x 10] intentionally omitted <==** under Section 11(3) of the Act in this Revision. Therefore, the concurrent findings under Section 11(3) of the Act do not require any consideration in this Revision Petition. This Revision is devoid of merits and it is accordingly dismissed. ## **K. HARILAL (JUDGE)** **P. SOMARAJAN (JUDGE)** DMR/AHZ