Sunil P Varghese v. K P George and Nidhi Electricals

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 15[TH] DAY OF NOVEMBER 2022 / 24TH KARTHIKA, 1944** **RCREV. NO. 331 OF 2015** **AGAINST THE JUDGMENT DTD 20/10/2015 IN RCA 8/2014 OF 2ND ADDL.DISTRICT JUDGE & RENT CONTROL APPELLATE AUTHORITY,ERNAKULAM WHICH WAS PREFERRED AGAINST THE ORDER IN RCP 41/2012 DTD 30/10/2013 OF RENT CONTROL COURT, EKM** ## **REVISION PETITIONER/RESPONDENT IN RCA/PETITIONER IN RCP:** **SUNIL P VARGHESE, AGED 37, S/O SRI. P.U. VARGHESE, PANICKAVEETTIL HOUSE, THIRUVANKULAM-682 305, TRIPUNITHURA MUNICIPALITY** **BY ADVS.SRI.T.K.RADHAKRISHNAN SMT.S.SREEDEVIALP** ## **RESPONDENT/APPELLANT IN RCA/RESPONDENT IN RCP:** **K P GEORGE, AGED ABOUT 63, S/O PAILY, KAVALESWARATH VEEDU, KUREEKAD,TRIPUNITHURA, AND NITHIN ELECTRICALS, DOOR NO.VII/440, FORMER THIRUVANAKULAM PANCHAYATH, TRIRUVANKULAM-682 305, TRIPUNITHURA MUNICIPALITY,ERNAKULAM DISTRICT** **BY ADV SRI.N.M.MOHAMMED AYUB** **THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL HEARING ALONG WITH CROSS OBJECTION NO.52/2016 ON 15.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **Cross Objn. No.52/2016** **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 15[TH] DAY OF NOVEMBER 2022 / 24TH KARTHIKA, 1944 CO NO. 52 OF 2016** **RCRev. 331/2015 OF HIGH COURT OF KERALA** ## **PETITIONER IN CROSS OBJECTION/RESPONDENTS IN REVISION PETITION:** **K.P.GEORGE,AGED ABOUT 63, S/O PAILY, KAVALESWARATH VEEDU, KUREEKAD,TRIPUNITHURA, NIDHI ELECTRICALS, DOOR NO.VII/440, TRIRUVANKULAM-682 305,FORMER THIRUVANAKULAM PANCHAYATH, TRIPUNITHURA MUNICIPALITY,ERNAKULAM DISTRICT** **BY ADV SRI.N.M.MOHAMMED AYUB** **RESPONDENT/PETITIONERS IN REVISION PETITION:** **SUNIL P.VARGHESE** **BY ADV SRI.T.K.RADHAKRISHNAN** **THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 15.11.2022, ALONG WITH RCRev..331/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 **Cross Objn. No.52/2016** **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **-------------------------------------------------R.C.R.No.331 of 2015 and Cross Objn. No.52/2016** **------------------------------------------------------------Dated this the 15th day of November, 2022** ## **O R D E R** ## **C.S.Sudha, J.** This revision filed under Section 20 of the Kerala Building (Lease and Rent Control) Act, 1965 (the Act) is against the judgment dated 20/10/2015 in R.C.A.No.8/2014 on the file of the Rent Control Appellate Authority (RCAA), Ernakulam, which appeal was preferred against the order dated 30/10/2013 in R.C.P.No.41/2012 of the Rent Control Court (RCC), Ernakulam. The revision petitioner herein is the respondent in the appeal and the petitioner-landlord in the R.C.P. The respondent herein is the appellant before the RCAA and the respondent-tenant in the R.C.P. The parties and the documents in this revision petition will be referred to as described in the R.C.P. 2. The petitioner claiming to be the landlord of the petition schedule room moved the RCC seeking eviction of the respondent under Section 11(2)(b) of the Act. The RCC allowed the petition. The respondenttenant took up the matter in appeal. The RCAA holding that partial eviction 4 **Cross Objn. No.52/2016** is impermissible, reversed the finding of the RCC and dismissed the appeal. Aggrieved, the petitioner/landlord has come up in revision. 3. The point that arises for consideration is whether there is any illegality, irregularity or impropriety in the findings of the court below. 4. Heard Adv.T.K.Radhakrishnan, the learned counsel for the revision petitioner and Adv.N.M.Mohammed Ayub, the learned counsel for the respondent. 5. For a resolution of the controversy involved, a reference to the pleadings of the parties in the R.C.P is required. In the R.C.P., the allegation is that the petitioner by virtue of Ext.A1 sale deed is the absolute owner in possession of an extent of 0.38 ares equivalent to 938 sq. links of land and building comprised in survey no.900 and re.sy.no.537/12 in block no.10, which includes two shop rooms bearing door no.TP/VII/439 (VI/293) and VII/440 (VI/294) of Trippunithura Municipality. According to the petitioner, pursuant to the sale, when he took possession of the two rooms, it was found that the respondent was in possession of the shop room bearing no. VII/440 in his capacity as a tenant of the predecessor-in-interest of the petitioner. It was also found that the adjacent shop owners had encroached into a portion of the shop room of the petitioner relating to which he filed O.S.No.674/2004 for recovery of possession. The said suit was decreed in 5 **Cross Objn. No.52/2016** favour of the petitioner. In the execution proceedings, when delivery was attempted to be taken, the respondent obstructed and filed a claim petition. Hence symbolic delivery alone was ordered by the court. The respondent has now become the tenant of the petitioner in respect of the room bearing No.VII/440. The petitioner is a _bona fide_ purchaser of the property with one shop room. Because of the pendency of suit, the petitioner was unable to demand the rent for the past seven years. Symbolic delivery of the property was taken on 07/10/2008 and the same was reported before the court on 13/10/2008 in E.P. No.188/07 in O.S No.674/04 on the file of the Munsiffs Court, Ernakulam. The rent of the premise is ₹175/- per month The petitioner being the owner of the shop room occupied by the respondent, is entitled to the rent arrears from 07/10/2008 onwards on a pro-rata basis. The petitioner issued Ext.A6 notice dated 20/10/2009 demanding rent arrears. The first notice issued to the respondent was returned unclaimed and therefore Ext.A8 notice dated 05/02/2010 was issued to the respondent. The said notice was accepted by the respondent to which Ext.A9 reply notice dated 27/02/2010 has been sent, raising untenable contentions. Hence the R.C.P. seeking eviction under Section 11(2)(b) of the Act. 6. The respondent-tenant filed objection to the R.C.P. disputing the allegation of the petitioner that he is the absolute owner in possession 6 **Cross Objn. No.52/2016** and enjoyment of the building bearing door no. VII/440. According to the respondent, the petitioner is neither the absolute owner nor the co-owner or the landlord of the entire room bearing door no. VII/440. As per Ext.A1 sale deed and the decree in O.S.No.674/2004, the petitioner can claim ownership of only the western portion of the room. The remaining eastern portion of the room is still owned by the heirs of the respondent’s landlady, namely, Sosamma. There is no landlord-tenant relationship between the petitioner and the respondent in respect of the eastern portion of the room. On the other hand, landlord-tenant relationship exists between the respondent and the heirs of Sosamma. As the petitioner is not the owner of the entire room, he cannot seek eviction of the respondent. The petition is bad for partial eviction and hence is liable to be dismissed on that score alone. The allegation that the rent is in arrears for the past seven years is incorrect. The respondent has been regularly paying rent to Sosamma. 7. Going by the allegations contained in the R.C.P., the case of the petitioner is that he is the absolute owner of two rooms, i.e., room No. VII/439 and VII/440. Admittedly, the respondent is in possession of room No. VII/440 in his capacity as tenant. The fact that the room was let out to the respondent by Sosamma is not disputed by the petitioner. His case seems to be that on execution of Ext.A1 sale deed in his favour by Sosamma, he 7 **Cross Objn. No.52/2016** stepped into her shoes and became the owner of the room in possession of the respondent also. Let us examine whether this allegation is true. 7.1. A reading of the averments in the R.C.P. shows that the petitioner himself is not sure of the identity or description of the tenanted premises. Going by the description in Ext.A1 deed, the property purchased by the petitioner is 938 sq. links of property which is equal to 0.38 ares of property and an old tiled building bearing No. T.P.VII/439 situated therein. There no reference to room bearing No. VII/440 in the deed. Apart from Ext.A1, there are no other documents produced to prove his title over room bearing no. VII/440. In the particulars furnished in the R.C.P. under Section 27 of the Act read with Rule 12 of the Kerala Buildings (Lease and Rent Control) Rules, 1979, the door number of the tenanted premises is stated to be VII/439 and VII/440. This is apparently and obviously incorrect because the admitted case of both the parties is that the petitioner is the absolute owner in possession of room No. VII/439. Therefore, the same cannot form part of the tenanted premises. We will assume that reference to room No. VII/439 in the particulars furnished is a mistake. The description of the tenanted premises as described in the schedule to the R.C.P. reads - _“An extent of about 13.48 sq. Meter of land and building comprised in Sy.No.900/1 and Re.Sy.No.537/12 in Block 10 including shop room portion_ 8 **Cross Objn. No.52/2016** _of the building having door No.TP/VII/440 (new number) VI/294 (8/281 of Tripunitura Municipality)._ ” Therefore, as per the schedule, the tenanted premise is not only a portion of room bearing No. VII/440 but also the building situated in the survey numbers referred to therein. Now, the question is which is the portion of room bearing No. VII/440 that is referred to in the schedule? We will examine the materials before us to find out whether we have an answer to the same. 8. Before the filing of the R.C.P., the petitioner is seen to have filed O.S.No.674/2004 for fixation of boundary, wherein Sosamma and her children are the defendants. Ext.B1 is the copy of the plaint in the said suit. In Ext.B1, the allegation is that the petitioner has purchased 38 sq.m. of land equivalent to 938 sq. links in survey no.537/12 in block 10 comprised in old survey no.900/1 in Thiruvankulam Village with building having door no. T P VII/439 by virtue of Ext.A1 sale deed from the defendants. The defendants are in possession of the remaining land having approximately an extent of 20 sq. m. and **two shop rooms** constructed by them, which have been let out. The property purchased as per Ext.A1 is stated to be the plaint A schedule and the remaining portion of the property as plaint B schedule. It is also alleged that defendants therein are trying to alienate the remaining B schedule portion of the land to the tenants in occupation of the said rooms. 9 **Cross Objn. No.52/2016** The building being a commercial one, separate boundary line is required to be fixed in order to avoid disputes among the adjoining tenants. The boundary of 38 sq.m. of land purchased by the petitioner as per Ext.A1 could not be fixed at the time of execution of the sale deed due to strained relationship of the defendants with the other tenants in occupation of the shop rooms. Attempts are being made by the defendants to sell the B schedule property by including portions of A schedule also, for which they have no right. Though the petitioner approached the defendants several times requesting fixation of the boundary, the defendants have not acceded to the same. Hence the suit seeking a decree for fixation of boundary after measurement of the property with the assistance of a surveyor. The plaint is thereafter seen amended and a prayer for recovery of possession of the plaint C schedule was also sought from the defendants. 8.1. The plaint A schedule in Ext.B1 is described as - _An extent of 38 sq. metre equivalent to 938 sq.links of land and building comprised in Sy.No.900/1 and Re.Sy.No.537/12 in block-10 of including shop room having door No.TP/VII/439 of Thiruvankulam Panchayat and all other rights thereto which is more fully described in the deed No.810/20 of S R O Tripunithura._ Plaint B schedule is described as - _An extent of about 20 sq.metre equivalent to 500 sq.links of land and building comprised in_ 10 **R.C.R.No.331 of 2015 & Cross Objn. No.52/2016** _Sy.No.900/1 and Re.Sy.No.537/12 in block-10 of_ _**including 2 shop rooms having door No.TP/VII/440 & 441** of Thiruvankulam Panchayat and all other rights thereto which is more fully described in the F schedule in will No.56/1980 of SRO Tripunithura._ The plaint C schedule is described as _-An extent of about 13.48 sq.metre of land and building comprised in Sy.No.900/1 and Re.Sy.No.537/12 in block-10 of_ _**including shop rooms**_ _**portion of the building adjoining to door No.TP/VII/440&441** of Thiruvankulam Panchayat and all other rights thereto which is more fully described in the F Schedule in will No.56/1980 of SRO Tripunithura and as described in the sketch attached to the commission report._ 8.2. A reading of the description of the C schedule in Ext.B1 plaint would make it clear that the same does not include any portion(s) or part of room bearing no. VII/440 but only portion of the building adjoining rooms bearing no. VII/440 and 441. Ext.B4, the copy of the decree in O.S.No.674/2004 contains the commission report and plan also. The advocate commissioner has described the plaint schedule building as ‘a commercial line building’ consisting of 3 shop rooms in which the petitioner’s room is on the western side. The plaintiff is reported to be holding 24.25 sq. meters of land and the rest 13.48 sq. meters of property is reported to be situated on the eastern side. As is evident from the records, 11 **R.C.R.No.331 of 2015 & Cross Objn. No.52/2016** rooms bearing no. VII/439, 440 and 441 are adjacent rooms in a single tiled building. So, what was the necessity to fix a boundary as prayed for in Ext.B1 plaint? Allegation of trespass also does not seem to be right or probable because apparently there are walls in existence separating the rooms. Admittedly room No. VII/439, of which the petitioner has absolute title as per Ext.A1, is on the western side. The other two rooms are on the eastern side of the said room. There does not appear to be any gap or space in between the aforesaid rooms. The apprehension voiced in Ext.B1 plaint is that the defendants are attempting to sell the rooms on the eastern portion by including portions of the building/room purchased by the petitioner as per Ext.A1. The defendants in Ext.B1 suit were set _ex parte._ The court without considering whether there was any necessity to fix the boundary as prayed for, decreed the suit. As per the decree, the right, title and interest of the petitioner over the plaint A and C schedule property was declared and the defendants were directed to handover vacant possession of the C schedule property to the petitioner. 8.3. From Ext.C2 plan prepared by the advocate commissioner with the help of a surveyor seen appended to Ext.B4 decree, one cannot make out as to what extent or whether any portion of room No. VII/440 is included in C schedule directed to be recovered from the defendants. It only shows that 12 **Cross Objn. No.52/2016** the petitioner is in possession of 24.25 sq.m. of property and that 13.48 sq.m. is in the possession of others. The advocate commissioner has reiterated the same thing in the report. In the R.C.P., the petitioner has made a wrong and incorrect assertion claiming title over the entire room bearing No. VII/440, which is disproved by the materials on record. The petitioner does not specify the total plinth area of room No. VII/440 nor does he specify the exact area or portion of the room owned by him. In the R.C.P. though he asserts that he is the absolute owner of the said room, he thereafter claims pro-rata rent out of the total rent of ₹175/- per month. Even during the arguments, though a specific query was put to the learned counsel for the petitioner, he was unable to specify the rent claimed or the rent to which the petitioner is entitled to. 9. Here we refer to the second proviso to Section 11(1) of the Act which says that when the tenant denies the title of the landlord or claims right of permanent tenancy, the RCC 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 this section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded. When title is 13 **Cross Objn. No.52/2016** denied or permanent tenancy is claimed, the RCC has to conduct an enquiry and record a finding whether the denial or claim is _bona fide_ . If the finding is in the negative, the proceedings can continue. On the other hand, if the finding is in the affirmative involving _bona fide_ dispute on the question of title, it cannot be decided by the RCC. The petitioner will have to sue for eviction in a civil court competent to try the suit. ( **Ponny v. Anthony, 1989 KHC 472** ). 9.1. The proviso is meant for a jurisdictional purpose. As per the said proviso, power is given to the RCC to decide about its own jurisdiction when a tenant denies the landlord's title. Further exercise of the RCC’s jurisdiction depends upon the result of the exercise of its initial jurisdiction. Intricate or vexed questions relating to title cannot normally be left to be decided by tribunals which are created for limited purposes. One of the legislative ideas in creating authorities like RCC and Accommodation Controller is to afford expedient remedies or reliefs to the tenants or landlords in relation to the buildings concerned. The said idea is adumbrated in S.24 of the Act which prescribes a time limit to pass final orders, subject to practical problems. R.11(8) of the Kerala Buildings (Lease and Rent Control) Rules, 1979 says that the Rent Control Court need make only a brief note of the evidence adduced by parties and witnesses. So, the enquiry 14 **Cross Objn. No.52/2016** conducted by the Rent Control Court is expected to be only in a summary manner. It is for the said reason that the legislature wanted such vexed and intricate questions of title to be determined by the Civil Court in the regular manner ( **Joseph v. Thomas, 1987 KHC 646** ). 9.2. The denial of title of the landlord or claim of permanent tenancy by the tenant does not _ipso facto_ efface the jurisdiction of the RCC to decide the petition for eviction under sub-section (1) of S.11. The essential requisite to attract the said proviso is that such benefit or claim by the tenant shall be _bona fide_ . When such a question is raised by the tenant, the RCC shall decide whether the said denial or claim is _bona fide_ and record a finding thereon. It is only thereafter that the landlord shall be entitled to sue for eviction of the tenant in a civil court ( **Gouthami v. Indira Kunjamma, 1994 KHC 246** ). 9.3. As held by a full Bench of this court in **Partha Kumar v. Ajith Viswanathan, 2006 KHC 520** , Statutory Tribunals -- Rent Control Court and Appellate Authorities, are constituted so that the claims for eviction on specified ground shall be considered summarily and expeditiously. The most important right which a landlord gets under the Act is his right to claim expeditious and inexpensive eviction on specified grounds before the 15 **R.C.R.No.331 of 2015 & Cross Objn. No.52/2016** Special Tribunals constituted under the Act. The Act itself specifies the limits of time within which a claim for eviction must be disposed of. The Act takes within its fold only certain classes of cases relating to eviction. The Special Tribunals are constituted only to resolve the limited disputes relating to eviction falling under S.11 of the Act. Existence of landlordtenant relationship between the contestants is _sine qua non_ for S.11 (2) to 11 (8) to operate and for the Special Tribunals to have jurisdiction. Only when the landlord-tenant relationship in respect of the building exists, does and can the Special Tribunal have jurisdiction to consider a claim for eviction. Summary and expeditious procedure is prescribed for eviction only in cases where the landlord-tenant relationship exists and the dispute regarding eviction is between the landlord and the tenant. Existence of landlord-tenant relationship between the claimant/landlord and respondent/tenant is thus essential to confer jurisdiction on the Rent Control Authorities. 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 Legislature obviously wanted such disputes relating to title of the landlord to be taken outside the sweep of the powers of the Special Tribunals (the Rent Control Court/the Appellate Authority). This is the rationale underlying the second proviso to S.11 (1) of the Act. The Legislature wanted such disputes 16 **R.C.R.No.331 of 2015 & Cross Objn. No.52/2016** regarding title/claim of permanent tenancy to be considered only by the regular civil courts which follow exhaustive procedure and not by statutory Tribunals invested with limited jurisdiction to decide the dispute between the landlords and tenants relating to eviction on specified grounds. If the dispute does not fall within the circumscribed zone such dispute must be decided by the regular civil courts following exhaustive procedure. The Special Tribunals cannot be expected to decide such disputes. The legislature therefore felt that only _bona fide_ denial of title or a _bona fide_ claim for permanent tenancy should alone divest the Special Tribunals of their jurisdiction under S.11 of the Act. It is hence stipulated that the denial of title/claim for permanent tenancy must be _bona fide_ . The Tribunal's jurisdiction is only to decide whether the denial of title or claim for permanent tenancy is _bona fide_ . It is not expected to and does not have the jurisdictional competence to enter a finding whether the denial of title is valid or not. If the denial is _bona fide_ , the landlord can sue for eviction before the civil court. If it is not _bona fide_ , the Special Tribunal can proceed to exercise its jurisdiction after recording a finding that the denial is not _bona fide_ . Whether the denial of title is _bona fide_ or not has to be decided by the Rent Control Court considering the nature of the contentions raised and the materials placed before it. This is a jurisdictional question and if raised 17 **R.C.R.No.331 of 2015 & Cross Objn. No.52/2016** must normally be decided by the Tribunal before assuming jurisdiction. (Emphasis supplied). 10. In this case, though the respondent disputed the claim of the petitioner that he is the owner of the entire room bearing no. VII/440 and disputed his title, the RCC never considered the same as a preliminary point or gave a decision on the same. On the other hand, the RCC found that the petitioner has title over the entire room based on Ext.B2 decree. This finding is apparently wrong because Ext.A1 sale deed relied on by the petitioner itself makes it clear that he is the owner of only room no. VII/439. In Ext.B1 plaint in O.S.No.674/2004 the petitioner has not claimed title over any portion of the aforesaid room, which is clear from a reading of the description of C schedule therein, to which reference has already been made. Therefore, the finding of the RCC that the petitioner has obtained title over the entire room bearing no.VII/440 in the possession of the respondent on the basis of Ext.A1 and Ext.B4 decree in O.S.No.674/2004 is apparently wrong and incorrect. These were matters to be decided by a civil court and not by the RCC. 11. In appeal, the RCAA also did not notice this aspect. On the other hand, it found that the claim of the petitioner is for partial eviction of 18 **R.C.R.No.331 of 2015 & Cross Objn. No.52/2016** the said room which is not permissible and hence reversed the order of the RCC and dismissed the appeal. The learned counsel for the petitioner sought for a remand so as to enable the petitioner to take steps for identifying the portion of the room bearing number VII/440 purchased by him by. No purpose would be served by remanding the matter because the RCC does not have the power to fix the boundary or decide disputes relating to the same. As held in **Partha Kumar** ( _Supra_ ) the Special Tribunals are constituted only to resolve the limited disputes relating to eviction falling under S.11 of the Act. Existence of landlord-tenant relationship between the contestants is _sine qua non_ for S.11(2) to 11(8) to operate and for the Special Tribunals to have jurisdiction. Only when the landlord-tenant relationship in respect of the building exists, does and can the Special Tribunal have jurisdiction to consider a claim for eviction. That is not the case here. No relief can be granted in this proceeding as the identity of neither the tenanted premises nor the rent that is due to the petitioner has been made clear. That being the position, we find that the petitioner is not entitled to the reliefs prayed for and therefore, the order of the RCC granting eviction under Section 11(2)(b) is reversed and the finding of the RCAA that eviction cannot be ordered under Section 11(2)(b) is confirmed, though for different reasons. In the result, the Rent Control Revision is dismissed. The Cross 19 **R.C.R.No.331 of 2015 & Cross Objn. No.52/2016** Objection is closed. Interlocutory applications, if any pending, shall stand closed. Sd/- **P.B.SURESH KUMAR JUDGE** Sd/- **C.S.SUDHA JUDGE** ami/