Thangal Kunju v. Anzar

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 RCRev..No. 11 of 2008() ----------------------RCA.40/2006 of DISTRICT COURT,KOLLAM IA 1953/2005 IN RCP.3/2005 of RENT CONTROL COURT, KARUNAGAPPALLY .................... REVISION PETITIONER/APPELLANT/PETITIONER --------------------------------------------------------- THANGAL KUNJU, S/O.MYTHEEN KUNJU, PROPRIETOR, SANTHA FOOT WEAR, PAYIKKUZHI MURI, PACHIRA VILLAGE FROM PUTHUMANGALAM, KRISHNAPURAM VILLAGE, KARTHIKAPPALLY TALUK, KOLLAM. BY ADV. SRI.K.SUBASH CHANDRA BOSE RESPONDENT: RESPONDENT/RESPONDENT ---------------------------------- ANZAR, S/O.NOOHUKANNU, ANZAR NIVAS, PAYIKKUZHI MURI, OACHIRA VILLAGE, KARUNAGAPPALLY, KOLLAM. THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 11/01/2008, THE COURT ON 6/2/2008 PASSED THE FOLLOWING: ## **K.Balakrishnan Nair & P.N.Ravindran, JJ. ======================== R.C.R.No.11 of 2008** ## **========================** ## **Dated this the 6th day of February, 2008.** ## **ORDER** ## **Ravindran,J.** The tenant in R.C.P. No.3 of 2005 on the file of the Rent Control Court, Karunagappally is the petitioner. The respondent is the land lord in the said proceedings. The land lord sought eviction of the petition schedule shop room under Sections 11(2) (b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as "the Act"). The respondent - land lord purchased the building of which the petition schedule shop room is a part, from its previous owner Basheer as per sale deed dated 15.12.2003. The land lord has, in the petition for eviction, alleged that the petition schedule shop room was let out by Basheer to the petitioner - tenant on 3.10.1989 on a monthly rent of Rs.500/-, that after he purchased the petition schedule shop room from Basheer, he had sent a notice dated 19.7.2004 to the tenant informing him of the said fact, that he had in the RCR 11/08 -: 2 :- said notice demanded payment of arrears of rent and also called upon the tenant to vacate the premises, so as to enable him to start an automobile business. 2. The petitioner-tenant filed objections to the Rent Control Petition, disputing the entitlement of the land lord to institute the petition for eviction. The petitioner-tenant contended inter alia that the sale deed executed by the former land lord Basheer to the respondent herein, who is none other than the son of Basheer's brother, is a sham document and that the sale deed was executed with a view to get over the agreement entered into by Basheer with him on 20.11.2003 for the sale of the petition schedule shop room. The petitioner-tenant further contended that he has instituted O.S.No.276 of 2004 in the Sub Court, Kollam against respondent-land lord and the said Basheer for specific performance of the said agreement for sale and that the sale deed in favour of the respondent-land lord is one collusively brought about by the land lord and the said Basheer. The tenant further contended in his objection that the rent is not in arrears and that there is no land lord - tenant relationship between him and the respondent herein. RCR 11/08 -: 3 :- 3. After filing objections to the Rent Control Petition, the petitioner - tenant filed I.A.No.1953 of 2005 seeking an adjudication of the issue regarding denial of title as a preliminary issue. In the said application, he reiterated the contentions in the objections filed by him to the Rent Control Petition and assailed the sale by Basheer, the original land lord to the respondent herein. Shorn of details, the contention of the tenant was that the sale deed executed by Basheer in favour of the respondent-land lord is sham and nominal and has not come into effect and that it was executed with a view to over reach the agreement entered into by the said Basheer with him on 20.11.2003 to sell the petition schedule shop room to him. 4. The respondent - land lord resisted I.A.No.1953 of 2005 and contended inter alia that he purchased the petition schedule shop room from the previous owner, Basheer as per sale deed dated 15.12.2003, that he had, prior to the said sale deed, entered into an agreement for sale in respect of the petition schedule shop room and other rooms with the said Basheer and his mother Kadeeja as early as on 21.5.2001 and that the question whether the sale deed in his favour is sham or not is RCR 11/08 -: 4 :- one to be adjudicated upon by a competent civil court. 5. By order passed on 31.7.2006, the Rent Control Court dismissed I.A.No.1953 of 2005 holding that the denial of the land lord's title by the petitioner - tenant is not bonafide. The Rent Control Court noticed that the agreement for sale in favour of the tenant will not confer any title to the property on him and that the tenant has only made an evasive denial of the title by questioning the document in favour of the land lord. The petitioner - tenant challenged the order passed by the Rent Control Court in I.A.No.1953 of 2005 in R.C.P.No.3 of 2005 in R.C.A.No.40 of 2006 on the file of the Rent Control Appellate Authority, Kollam. By judgment delivered on 30.11.2007, the Rent Control Appellate Authority dismissed the appeal and upheld the order passed by the Rent Control Court. The order passed by the Rent Control Court in I.A.No.1953 of 2005 in R.C.P.No.3 of 2005 and the judgment of the Rent Control Appellate Authority in R.C.A.No.40 of 2006 affirming it are under challenge in this revision petition filed under Section 20 of the Act. 6. We heard Shri.K.Subashchandra Bose, the learned counsel appearing for the petitioner. He submitted that the RCR 11/08 -: 5 :- respondent had entered into an agreement with the tenant on 20.11.2003 for sale of the petition schedule shop room for a sum of Rs.4.50 lakhs, that it was to overcome the said agreement for sale that a sham document was executed by Basheer, the land lord in favour of the respondent herein on 15.12.2003 assigning the petition schedule shop room and other rooms for a much lower consideration of Rs.2 lakhs. The learned counsel submitted that the petitioner - tenant has instituted O.S.No.276 of 2004 in the Sub Court, Kollam as early as on 4.8.2004 seeking specific performance of the agreement dated 20.11.2003 and that the Rent Control Petition was filed on 5.4.2005 after the respondent and the said Basheer, who were defendants in the suit filed their joint written statement therein. The learned counsel for the petitioner further submitted that title to the property vests in Basheer and that the alleged sale deed by Basheer in favour of the respondent herein on 15.12.2003 is sham and nominal and has not taken effect. 7. We have perused the Rent Control Petition, the objections filed by the tenent therein, I.A.No.1953 of 2005 filed by the tenant in R.C.P.No.3 of 2005, the plaint in O.S.No.276 of RCR 11/08 -: 6 :- 2004 and the written statement therein jointly filed by the respondent herein and his vendor Basheer. We have also considered the submissions made at the Bar by the learned counsel for the petitioner. 8. The Rent Control Court and the Appellate Authority have elaborately considered the case set out by the petitioner - tenant, especially his contention that the respondent does not have title to the property and that even if there was any document in that regard, it is a collusive and sham transaction. The Rent Control Court and the Appellate Authority have also considered the contention of the tenant that Basheer, the owner of the shop room has entered into an agreement for sale with him in respect of the petition schedule shop room on 21.11.2003 and therefore, the respondent had no right to seek eviction as he was not the land lord of the petition schedule shop room. 9. It is common case that Basheer had executed an assignment deed on 15.12.2003 conveying the petition schedule shop room to the respondent - land lord. It is also not in dispute that the respondent - land lord had informed the petitioner - tenant by notice dated 19.7.2004 that he had obtained RCR 11/08 -: 7 :- assignment of the petition schedule shop room from Basheer. The alleged agreement by Basheer with the petitioner for sale of the petition schedule shop room is one entered into on 20.11.2003. Basheer and the respondent herein have, in the joint written statement filed by them in O.S.No.276 of 2004, disputed the genuineness of the agreement dated 20.11.2003 said to have been executed by Basheer in favour of the petitioner. 10. The main point raised by the petitioner - tenant in the Rent Control Court and before the Appellate Authority is that the document of sale in favour of the respondent is sham and nominal and has not come into effect and is one intended to defeat the rights of the tenant flowing from the agreement dated 20.11.2003 alleged to have been executed by Basheer, the land lord in his favour. This is disputed by the respondent, who relies on a registered assignment deed dated 15.12.2003 in his favour. The petitioner does not dispute the fact that he is a tenant of the petition schedule shop room. The only point raised by him is that the sale deed by Basheer in favour of the respondent-land lord is sham and was not intended to be acted upon. He has also RCR 11/08 -: 8 :- instituted a suit, O.S.No.276 of 2004 in the Sub Court, Kollam seeking specific performance of the agreement dated 20.11.2003 said to have been executed by Basheer in his favour for sale of the petition schedule shop room. 11. A Full Bench of this court has in **Parthakumar** v. **Ajith Viswanathan** - 2006(2) K.L.T. 250 held that the jurisdiction of the Rent Control Court when it is called upon to decide the issue regarding denial of title pleaded by the tenant is bonafide or not does not extend to an adjudication of the validity of the land lord's title. The Full Bench has, in the said decision, held that the Rent Control Court cannot proceed to decide the superior title of the land lord and that its jurisdiction is only to decide whether the denial of title is bonafide or not, in the sense that the determination can only be of the question whether the tenant's dispute regarding the land lord - tenant relationship, is bonafide or not. 12. The plea of the petitioner tenant that the document of sale in favour of the respondent is sham and collusive, cannot be adjudicated upon without a proper trial. It is not within the province of the Rent Control Court to adjudicate upon the said RCR 11/08 -: 9 :- dispute as held by a Full Bench of this Court in the decision referred to above. Further, the agreement of sale said to have been executed by Basheer in favour of the tenant on 20.11.2003 would not confer title to the shop room on the tenant. By the Registration and Other Related Laws (Amendment) Act, 2001 (Act 48 of 2001), which came into force on 24.9.2001, Section 17 of the Registration Act, 1908 and Section 53A of the Transfer of Property Act, 1882 were amended. Section 17(1A) of the Registration Act, 1908 as introduced by Central Act 48 of 2001 stipulates that the documents containing contracts to transfer for consideration, any immovable property for the purpose of Section 53A of the Transfer of Property Act, 1882 shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of Section 53A of the Transfer of Property Act, 1882. After the amendment of Section 53A of the Transfer of Property Act, 1882, the benefit of Section 53A can be claimed only if the agreement to sell is in writing and is registered in terms of the provisions of RCR 11/08 -: 10 :- the Registration Act, 1908. The tenant has no case before us that the agreement between him and Basheer is a registered instrument. Hence, besides the fact that the agreement for sale by itself would not confer any title to the property, the agreement cannot also be relied on to claim the protection of Section 53A of the Transfer of Property Act, 1882. The mere fact that the sale deed executed by Basheer (who according to the tenant, is the land lord) in favour of the respondent - land lord is questioned by the tenant who has also instituted a suit for specific performance of the agreement alleged to have been executed in his favour by Basheer, cannot be said to be a bonafide denial of the land lord's title by him. If the contention of the petitioner tenant is accepted, it can lead to a situation where a transferee from the land lord will not be able to institute a petition for eviction of the tenant and to prosecute it in the Rent Control Court. 13. We are therefore of the considered opinion that the order passed by the Rent Control Court in I.A.No.1953 of 2005 in R.C.P.No.3 of 2005 and the judgment of the Appellate Authority in R.C.A.No.40 of 2006 affirming it do not suffer from any infirmity, illegality or irregularity. We accordingly hold that no RCR 11/08 -: 11 :- grounds have been made out to interfere with the orders passed by the authorities below. Accordingly, the revision petition fails and it is dismissed inlimine. K.Balakrishnan Nair, Judge. P.N.Ravindran, Judge. ess 17/1