## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE K.HARILAL**
## **&**
**THE HONOURABLE MR.JUSTICE N.ANIL KUMAR**
**WEDNESDAY, THE 09TH DAY OF OCTOBER 2019 / 17TH ASWINA, 1941**
## **RCRev..No.378 OF 2019**
**AGAINST THE JUDGMENT IN RCA 33/2018 DATED 18-06-2019 OF II ADDITIONAL DISTRICT COURT,ERNAKULAM**
**AGAINST THE ORDER IN RCP 179/2015 DATED 03-07-2018 OF III ADDITIONAL MUNSIFF COURT, EKM (RENT CONTROL)**
## **REVISION PETITIONER/APPELLANT/RESPONDENT:**
**SREELATHA SUNILKUMAR AGED 51 YEARS D/O.A.K.SIVAN PILLAI,EDAKATHALATHIL VEETIL,ELOOR.P.O,ELOOR KISHAKKUMBHAGAM,PARUR TALUK, ERNAKULAM DISTRICT.**
**BY ADV. SRI.BABU CHERUKARA**
## **RESPONDENT/RESPONDENT/RESPONDENT:**
**N.S.S.KARAYOGAM 2124 ELEMAKKARA,REPRESENTED BY ITSECRETARY,MR.B.M.SANALKUMAR,AGED 56 YEARS,S/O MADHAVAN PANICKER,BRAHMANI VEEDU,ELAMAKKARA,COCHIN-682026.**
## **R1 BY ADV. P.CHANDRASEKHAR (CAVEATOR)**
**THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 09.10.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
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## **ORDER**
## **Dated this the 9[th] day of October 2019**
The revision petitioner is the tenant, who is confronting with order of eviction passed concurrently by the courts below under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as the Act for short). The parties are referred to as they are arrayed in the Rent Control Petition. According to the petitioner, the respondent is a tenant who took possession of the petition schedule building on a rent of Rs.1,900/- per month vide lease deed dated 13.02.2015 and she was paying rent regularly till February, 2015 and rent is in arrears thereafter. Though he had issued Ext.B4 notice, under Section 11(2)(b) calling upon the respondent to pay off the arrears, she has not responded to the said notice. Hence, he is
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entitled to get an order of eviction under Section 11(2)(b) of the Act.
2. The respondent filed a counter statement admitting the landlord-tenant relationship. But, she further contended that, the tenanted building is constructed in a puramboke land without any authority and she was ignorant about the said facts and the lease agreement was executed without knowing the same under wrong belief that the petitioner is the title holder in possession of the tenanted premises. In the year 2015, the respondent got information that the petitioner was not the actual owner of the land in which the building is situated and the said land is a purampoke land and the Government has proceeded against the petitioner. So she informed the petitioner on 10.06.2015, that she will not pay rent to the petitioner till the disposal of the proceedings initiated by the Government against the petitioner. Further, it is contended that the rent
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agreement executed on 13.02.2015, in ignorance of the title dispute of land, is not binding on her.
3. On the rival pleas, both parties adduce evidence which consist of oral testimony of PW1 and Exts. A1 to A3 from the part of the petitioner and oral testimony of RW1 and Ext.B1 to B4 from the part of the respondent. After considering the aforesaid evidence, the Rent Control Court rejected the contentions raised by the respondent and passed an order of eviction under Section 11(2)(b) of the Act. In appeal, the appellate authority also confirmed the order of eviction passed by the Rent Control Court. Thus, the legality and propriety of the concurrent findings whereby the courts have below have passed an order of eviction under Section 11(2)(b) are under challenge in this Revision Petition.
4. Heard the learned counsel for the revision petitioner.
5. It is needless to say that the scope and extent of
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consideration in this Revision Petition is confined to legality, propriety and regularity of the findings of the courts below only. This Court is not inclined to reappreciate the entire evidence on record. The sum and substance of contentions advanced by the learned counsel for the respondent is that, the courts below have erroneously arrived at a finding that the plea in respect of the denial of title is barred by Section 116 of the Evidence Act. In support of the said argument, the learned counsel sited **D.Satyanarayana v. P. Jagadish** [(1987) 4 SCC 424].
6. So the question to be considered is whether there is any illegality or impropriety in the finding that the denial of title raised by the respondent is bonafide and barred by Section 116 of the Evidence Act. Going by the impugned judgment, we find that the landlord-tenant relationship is not disputed and the date of commencement of the tenancy is also not disputed. The
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rent deed was executed on 29.01.2002. According to the respondent, after the long lapse of more than 13 years after the commencement of tenancy, he came to know that the petitioner has no title over the said property wherein the building is situated and the Government has initiated a proceedings against the petitioner seeking eviction. The respondent has pressed into service Exts. B1 to B3 to substantiate the said contention. Ext.B1 is a copy of the original petition filed by the petitioner challenging the proceedings initiated by him before the High Court of Kerala and that Original Petition is still pending. It has not become final so far. The respondent also conceded that the said writ petition is still pending. Going by the impugned judgment herein, we find that in the oral deposition also, the respondent admitted that he has paid rent from the year 2002 to 2015 and thereafter, the rent is in arrears. She admitted the receipt of Ext.A1 statutory notice issued under Section 11(2)(b) of the Act
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and further she admitted that he has not paid any amount towards arrears of rent, after the receipt of notice and she has not denied the title of the petitioner by sending a reply notice. It follows that the petitioner has complied the statutory requirements to get an order of eviction under Section 11(2)(b) of the Act. Going by Section 116 of the Evidence Act, we find that the aforesaid provision provides that no tenant of immovable property, or person claiming to be such tenant, shall during the continuance of tenancy be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property.
7. When applying the aforesaid proposition to the instant case, we find that the respondent had admitted the title of the petitioner over the building and executed rent deed in the year 2002 and paid rent up to 2015. Thereafter, when the petitioner proceeded against her seeking an order of eviction, she raised a contention that
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the petitioner has no title over the property and the building thereon and she is not liable to pay rent unless and until the proceedings initiated by the Government against him has attained a finality. Obviously, the denial of title raised by the respondent long after the commencement of tenancy lacks bonafides and is barred by the principles of estoppel under Section 116 of the Evidence Act.
8. The learned counsel for the respondent cited **D.Satyanarayana v. P. Jagadish** [(1987) 4 SCC 424] . Going by the said decision, we find that the aforesaid decision was rendered under the Andhra Pradesh Building (Lease and Rent Control) Act, 1960, wherein there is a provision under Section 238 with a caption Eviction under Title Paramount. The aforesaid decision was rendered in the light of the said provision. But in Kerala Buildings (Lease and Rent Control) Act, there is no such provision and the definition of landlord and tenant
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envisaged under Section 2(3) and Section 2(6) shows that paramount title of the landlord does not require consideration, while determining the landlord-tenant relation ship. The aforesaid view is supported by the Full Bench decision of this Court in **Parthakumar v. Ajith Viswanathan** [2006(2) KLT 250]. Therefore, we reject the said argument also. It is needless to say, an order of eviction passed under Section 11(2)(b) is subject to Section 11(2)(c) of the Act.
We do not find any illegality or impropriety in the said findings. This Revision Petition is dismissed.
Sd/- **K.HARILAL JUDGE**
Sd/- **N.ANIL KUMAR JUDGE**
kkj
