Unni @ Renjilal v. Boves Mammen

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 7TH DAY OF APRIL 2017/17TH CHAITHRA, 1939** **RCRev..No. 12 of 2017 (D) -------------------------** **AGAINST THE JUDGMENT IN RCA.11/2016 of DISTRICT COURT, PATHANAMTHITTA DATED 17-11-2016 AGAINST THE ORDER IN IA 1161/2014 IN RCP 4/2009 OF MUNSIFF COURT, ADOOR.** **REVISION PETITIONER/APPELLANT/PETITIONER/2ND RESPONDENT: --------------------------------------------------------** **UNNI @ RENJILAL, S/O.THANKAPPAN, AGED 38 YEARS, VAZHAVILAKKADAYIL HOUSE, MARKET JUNCTION, PANNIVIZHA MURI, ADOOR VILLAGE.** **BY ADVS.SRI.K.S.HARIHARAPUTHRAN SRI.M.D.SASIKUMAR SRI.GEORGE MATHEW SRI.A.G.SUNILKUMAR SRI.DIPU JAMES** ## **RESPONDENT/RESPONDENT/RESPONDENT/PETITIONER:** **--------------------------------------------** **BOVES MAMMEN, S/O.LATE K.K.MAMMEN, AGED 64 YEARS, KOCHUKALEECKAL VEEDU, PANNIVIZHA MURI, ADOOR VILLAGE-689 543.** **BY ADVS. SRI.A.C.EAPEN SRI.ROSHEN.D.ALEXANDER SMT.TINA ALEX THOMAS** **THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 07-04-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OKB** “CR” K.HARILAL & RAJA VIJAYARAGHAVAN V., JJ. --------------------------R.C.R. No.12 of 2017 --------------------------Dated this the 7[th] day of April, 2017 ## O R D E R ## Harilal, J. The revision petitioner is the tenant against whom the respondent landlord filed R.C.P.No.4/2009 seeking an order of eviction under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (for short “the Act”). For the sake of convenience, the parties are referred to as landlord and tenant. 2. According to the tenant, he is entitled to get protection under the right of 'kudiyirippu' as provided under the Land Reforms Act. So, during the pendency of the Rent Control Petition, the tenant filed I.A.No.1161/2014 for referring the matter to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act for the purpose of adjudicating a 'kudiyirippu right' over the petition schedule building. The landlord resisted the said application for reference under Section 125(3) of the said Act contending that the present plea of 'kudiyirippu' right is inconsistent with his earlier plea of permanent tenancy, which was found against him in the earlier round of litigation. 3. After considering the rival pleas the Rent Control Court RCR.12/17-D -2- dismissed the petition on a finding that there is no bona fides in the plea of 'kudiyirippu' right. Feeling aggrieved, though the tenant preferred an appeal before the Appellate Authority. After considering the materials on record, the Appellate Authority also confirmed the findings of the Rent Control Court and dismissed the appeal. This Revision is filed challenging the concurrent findings that there is no bona fides in the claim of 'kudiyirippu' and thereby the said claim is not liable to be referred to the Land Tribunal under Section 125(3) of the Land Reforms Act. 4. Heard the learned counsel for the revision petitioner and the learned counsel appearing for the respondent. 5. The learned counsel appearing for the tenant contended that the court below went wrong by finding that the plea of 'kudiyirippu' was not raised in the objection filed by the petitioner to the Rent Control Petition. It is also contended that the plea of kudiyirippu would not go in conflict with the earlier contention of permanent tenancy under Section 106 of the Land Reforms Act and he is entitled to raise inconsistent pleas. Therefore, the Rent Control Court ought to have referred the matter to the Land Tribunal under Section 125(3) RCR.12/17-D -3- of the Land Reforms Act. 6. On the other hand, the learned counsel appearing for the landlord produced the order passed by this Court in R.C.R.No.15/2014 filed by the tenant challenging rejection of his earlier plea of permanent tenancy under Section 106 of the Land Reforms Act. The learned counsel drew our attention to paragraph 5 of the said order and pointed out that in the earlier round of litigation under Section 11(1) of the Act the tenant contended that there is no landlord-tenant relationship between the petitioner and the respondent. Even though there was a lease deed, it was contended that the lease deed was not admissible in evidence and it was not acted upon by him. The rival pleas raised earlier and present are mutually destructive and opposing, the learned counsel argued. 7. It is trite law settled by the decision reported in **Thomas Antony v. Varkey** [2000 (1) KLT 12] that Rent Control Court is not obliged to refer a plea raised under the Kerala Land Reforms Act to the Land Tribunal, if there is no bona fides in the said plea, and it is obligatory on the part of the Rent Control Court to consider whether there is any bona fides in the plea raised under the Kerala Land Reforms Act. In RCR.12/17-D -4- the light of the aforesaid decision, the Rent Control Court is justified in embarking upon a preliminary enquiry on the question of bona fides of the plea of 'kudiyirippu right'. 8. Going by the order passed by the Appellate Authority, it is seen that the Appellate Authority found that there is no bona fides in the plea of kudiyirippu mainly on the reason that in the earlier round of litigation under Section 11(1) of the Act, the tenant raised a contention that there is no landlord-tenant relationship between the petitioner and the respondent and he is entitled to get the protection and privilege of permanent tenancy under Section 106 of the Land Reforms Act. But, in the instant case, he has raised a claim of kudiyirippu and unless the residential building is on a leasehold, the claim of kudiyirippu is not sustainable. In view of the definition of 'kudiyirippu' right contemplated under Section 2(26) and 2(17) of the Kerala Land Reforms Act, the court below has considered the question whether the ingredients constituting the right of 'kudiyirippu', are present in the instant case and answered negatively. 9. Let us examine the legality and correctness of the above findings. According to the definition, 'kudiyirippu' RCR.12/17-D -5- means a holding or part of a holding consisting of the site of any residential building, the site or sites of other buildings appurtenant thereto, such other lands as are necessary for the convenient enjoyment of such residential building and easements attached thereto, but does not include a kudikidappu within the meaning of the Land Reforms Act. Further, according to Section 2(17) of the Kerala Land Reforms Act, “holding” means a parcel or parcels of land held under a single transaction by a tenant from a landlord and shall include any portion of a holding as above defined which the landlord and tenant have agreed or bound to treat as a separate holding. Thus, the definition of 'holding' makes it more clear that there cannot be a 'kudiyirippu' unless there is a landlord-tenant relationship and a leasehold right thereunder. 10. On a combined reading of the definitions of 'Kudiyirippu' and 'Holding' in the Land Reforms Act, it can be held that the 'kudiyirippu' is the site of any residential building with appurtenant land in a lease hold and unless the residential building is on a leasehold, it cannot be a kudiyirippu, within the meaning of the Act and in order to RCR.12/17-D -6- attract kudiyirippu right there must be landlord-tenant relationship. Hence we find that the court below is justified in finding that there is no bonafides in the claim of kudiyirippu and it is intended to protract the matter only. 11. The learned counsel for the tenant contended that even if the pleas are inconsistent, the tenant is entitled to raise such inconsistent pleas and merely on the reason that earlier he had denied the landlord-tenant relationship he cannot be precluded from raising a plea of 'kudiyirippu' right in the same proceedings. The learned counsel strenuously argued to substantiate the said point. 12. We are unable to accept the said contention in view of the legal position settled by the Supreme Court in **Vimal Chand Ghevarchand Jain and others v. Ramakant Eknath** **Jadoo** [(2009) 5 SCC 713]. In this decision, the Apex Court held that the pleadings of the parties, it is trite, are required to be read as a whole. Defendants although are entitled to raise alternative and inconsistent claims; but should not be permitted to raise pleas which are mutually destructive of each other. 13. When applying the above proposition to the instant RCR.12/17-D -7- case, we find that the plea of 'permanent tenancy' raised under Section 106 of the Land Reforms Act in the earlier round of litigation and the present plea of 'kudikidappu right' in the second round of the same proceedings are mutually destructive and opposing and it would point lack of bona fides. We have no doubt in our mind that these pleas are being raised one by one as preliminary issues to protract the proceedings. Hence the Rent Control Court is directed to dispose the Rent Control Petition within a period of five months from today. There is no illegality or impropriety in any of the findings concurrently arrived at, by the courts below. Consequently, this Revision is dismissed. Sd/- K.HARILAL, Judge. Sd/- RAJA VIJAYARAGHAVAN V., Judge. okb/iap.