V. Assainkutty Haji and others v. K.P. Rajalakshmiamma and Ramgopal

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **THURSDAY, THE 18TH DAY OF OCTOBER 2012/26TH ASWINA 1934** ## **RCRev..No. 135 of 2012 (E)** **-------------------------------------[AGAINST THE JUDGMENT DTD. 13/02/2012 IN R.C.A. NO.113/2011 OF THE RENT CONTROL APPELLATE AUTHORITY/ III ADDITIONAL DISTRICT JUDGE, KOZHIKODE IN R.C.P.NO.8/2008 OF THE RENT CONTROL COURT/ PRINCIPAL MUNSIFF-I, KOZHIKODE DTD. 22/09/2011]** **..................** ## **PETITIONER/APPELLANTS/RESPONDENTS:** **---------------------------------------------------------------** ## **1. V.ASSAINKUTTY HAJI,** - **S/O POCKER HAJI, VAZHIPOKKIL HOUSE, PATHIMANGALAM, P.O.KUNNAMANGALAM, KUNNAMANGALAM AM SOM, DESOM, KOZHIKODE TALUK.** **2. K. ABDURAHIMAN HAJI, S/O HUSSAIN HAJI, KUZHIYIL HOUSE, P.O.KODIYATHUR, KODIYATHUR AMSOM, DESOM, KOZHIKODE TALUK.** **3. MOYIN HAJI @ MOINKUTTY, S/O AVVATHOTTATHIL MOIDEEN HAJI, AVVATHOTTATHIL HOUSE, P.O. KUNNAMANGALAM, KUNNAMANGALAM AMSOM, DESOM, KOZHIKODE TALUK.** ## **4. KOYA,** - **S/O MOIDEEN,AVVATHOTTATHIL HOUSE, P.O. KUNNAMANGALAM, KUNNAMANGALAM AMSOM, DESOM, KOZHIKODE TALUK.** **5. MUSTHAFA, S/O MOIDEEN HAJI, AVVATHOTTATHIL HOUSE, P.O. KUNNAMANGALAM, KUNNAMANGALAM AMSOM, DESOM, KOZHIKODE TALUK.** ## **6. MOHAMMED,** - **S/O MOIDEEN HAJI, AVVATHOTTATHIL HOUSE, P.O. KUNNAMANGALAM, KUNNAMANGALAM AMSOM, DESOM, KOZHIKODE TALUK.** **R.C.R.NO.135/2012-E:** ## **7. SIDDIQUE, S/O MOIDEEN HAJI, AVVATHOTTATHIL HOUSE, P.O. KUNNAMANGALAM, KUNNAMANGALAM AMSOM, DESOM, KOZHIKODE TALUK.** **8. RASHEEDA, D/O MOIDEEN HAJI, AVVATHOTTATHIL HOUSE, P.O. KUNNAMANGALAM, KUNNAMANGALAM AMSOM, DESOM, KOZHIKODE TALUK.** **9. PATHEYI, D/O MOIDEEN HAJI, AVVATHOTTATHIL HOUSE, P.O. KUNNAMANGALAM, KUNNAMANGALAM AMSOM, DESOM, KOZHIKODE TALUK.** ## **10. NAFEESA, D/O MOIDEEN HAJI, AVVATHOTTATHIL HOUSE, P.O. KUNNAMANGALAM, KUNNAMANGALAM AMSOM, DESOM, KOZHIKODE TALUK.** ## **11. AMINA, D/O MOIDEEN HAJI, AVVATHOTTATHIL HOUSE, P.O. KUNNAMANGALAM, KUNNAMANGALAM AMSOM, DESOM, KOZHIKODE TALUK.** ## **12. SAINABA, D/O MOIDEEN HAJI, AVVATHOTTATHIL HOUSE, P.O. KUNNAMANGALAM, KUNNAMANGALAM AMSOM, DESOM, KOZHIKODE TALUK.** ## **13. SARA,** - **D/O MOIDEEN HAJI, AVVATHOTTATHIL HOUSE, P.O. KUNNAMANGALAM, KUNNAMANGALAM AMSOM, DESOM, KOZHIKODE TALUK.** **14. RUKHIYA, D/O. MOIDEEN HAJI, AVVATHOTTATHIL HOUSE, P.O. KUNNAMANGALAM, KUNNAMANGALAM AMSOM, DESOM, KOZHIKODE TALUK.** ## **15. AYISHAKUTTY, W/O MOIDEEN HAJI, AVVATHOTTATHIL HOUSE, P.O. KUNNAMANGALAM, KUNNAMANGALAM AMSOM, DESOM, KOZHIKODE TALUK.** ## **16. A.P. MOIDEEN, S/O PUTHALATH IMBICHIMAMMI, PUTHALATH HOUSE, P.O. KUNNAMANGALAM, KOZHIKODE TALUK.** ## **17. A.P. ABDURAHIMAN, S/O PUTHALATH IMBICHIMAMMI, PUTHALATH HOUSE, P.O. KUNNAMANGALAM, KOZHIKODE TALUK.** **R.C.R.NO.135/2012-E:** ## **18. KHADEEJA HAJUMMA,** - **W/O KOYASSAN HAJI, VATAMPARAKKAL HOUSE, P.O. KUNNAMANGALAM, KOZHIKODE TALUK.** ## **19. SUBAIR,** - **S/O KOYASSAN HAJI, VATAMPARAKKAL HOUSE, P.O. KUNNAMANGALAM, KOZHIKODE TALUK.** ## **20. JAFAR,** - **S/O KOYASSAN HAJI, VATAMPARAKKAL HOUSE, P.O. KUNNAMANGALAM, KOZHIKODE TALUK.** ## **21. ABIDA,** - **D/O KOYASSAN HAJI, VATAMPARAKKAL HOUSE, P.O. KUNNAMANGALAM, KOZHIKODE TALUK.** ## **22. MOLI,** - **D/O KOYASSAN HAJI, VATAMPARAKKAL HOUSE, P.O. KUNNAMANGALAM, KOZHIKODE TALUK.** ## **23. A.P.BEEBI** - **D/O.IMBICHIMAMMI, PUTHALATH HOUSE, P.O.KUNNAMANGALAM, KOZHIKODE TALUK.** ## **24. A.P.KADEESA,** - **D/O.IMBICHIMAMMI, PUTHALATH HOUSE, P.O.KUNNAMANGALAM, KOZHIKODE TALUK.** ## **25. A.P.MOHAMMED,** - **S/O.IMBICHIMAMMI, PUTHALATH HOUSE, P.O.KUNNAMANGALAM, KOZHIKODE TALUK.** ## **26. A.P.MUJEEB** - **S/O.IMBICHIMAMMI, PUTHALATH HOUSE, P.O.KUNNAMANGALAM, KOZHIKODE TALUK.** ## **27. P.KOYASSAN,** - **S/O.PUTHALATH MOIDEEN, PUTHALATH HOUSE, P.O.KUNNAMANGALAM, KOZHIKODE TALUK.** ## **28. P.MAMMU,** - **S/O.PUTHALATH MOIDEEN, PUTHALATH HOUSE, P.O.KUNNAMANGALAM, KOZHIKODE TALUK.** ## **29. P.USSAIN,** - **S/O.PUTHALATH MOIDEEN, PUTHALATH HOUSE, P.O.KUNNAMANGALAM, KOZHIKODE TALUK.** **30. P.ALEEMA,** - **D/O.PUTHALATH MOIDEEN, PUTHALATH HOUSE, P.O.KUNNAMANGALAM, KOZHIKODE TALUK.** **R.C.R.NO.135/2012-E:** ## **31. P.SUBAIDA,** - **D/O.PUTHALATH MOIDEEN, PUTHALATH HOUSE, P.O.KUNNAMANGALAM, KOZHIKODE TALUK.** **32. P.AMINA, D/O.PUTHALATH MOIDEEN, PUTHALATH HOUSE, P.O.KUNNAMANGALAM, KOZHIKODE TALUK.** ## **33. P.RASIYA,** - **D/O.PUTHALATH MOIDEEN, PUTHALATH HOUSE, P.O.KUNNAMANGALAM, KOZHIKODE TALUK.** ## **34. P.FAISALA,** - **D/O.PUTHALATH MOIDEEN, PUTHALATH HOUSE, P.O.KUNNAMANGALAM, KOZHIKODE TALUK.** **P.PATHU, W/O.PUTHALATH MOIDEEN, PUTHALATH HOUSE, P.O.KUNNAMANGALAM,** **KOZHIKODE TALUK. (DIED. 16 TO 34 ARE LEGAL HEIRS)** ## **35. FATHIMA,** - **W/O.KADER, AMBALAPARAMBIL HOUSE, CHOOLAMVAYAL.P.O, KUNNAMANGALAM, KOZHIKODE TALUK.** ## **36. KADEEJA,** - **D/O.AMBALAPARAMBIL KADER, OTTAPOKKUVAYAL, MADRASSA BAZAR, P.O.KODUVALLY.** ## **37. MARIYA,** - **D/O.AMBALAPARAMBIL KADER, PALAKKAL HOUSE,MURIYANAL, P.O.KUNNAMANGALAM, KOZHIKODE TALUK.** **38. AMINA, D/O.AMBALAPARAMBIL KADER, PALAKKAL HOUSE,MURIYANAL, P.O.KUNNAMANGALAM, KOZHIKODE TALUK.** **39. SARA, D/O.AMBALAPARAMBIL KADER, PALAKKAL HOUSE,MURIYANAL, P.O.KUNNAMANGALAM, KOZHIKODE TALUK.** **40. JAMEELA, D/O.AMBALAPARAMBIL KADER, PALAKKAL HOUSE,MURIYANAL, P.O.KUNNAMANGALAM, KOZHIKODE TALUK.** **41. SHEREEFA, D/O.AMBALAPARAMBIL KADER, VELLACHALIL HOUSE, P.O.MADAVOOR, MADAVOOR AMDOM, DESOM, KOZHIKODE TALUK.** **R.C.R.NO.135/2012-E:** ## **42. SOUDA,** **D/O.AMBALAPARAMBIL KADER, VELLAPILAKKIL HOUSE, CHEROOPA.P.O., MAVOOR, MAVOOR AMSOM, CHEROOPA DESOM, KOZHIKODE TALUK.** **BY SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE, ADVS. SRI.SAJU.S.A, SMT.P.A.SHEEJA, SMT.MEENA.A, SRI.K.C.KIRAN.** ## **RESPONDENTS/RESPONDENTS/PETITIONERS:** **--------------------------------------------------------------------** **1. K.P.RAJALAKSHMIAMMA, D/O.KALLIANIKUTTYAMMA, THANIYIL HOUSE, KACHERY AMSOM, DESOM, P.O.ERANHIPALAM, KOZHIKODE TALUK-673 006.** **2. RAMGOPAL, S/O.K.P.RAJALAKSHMIAMMA, THANIYIL HOUSE, KACHERY AMSOM, DESOM, P.O.ERANHIPALAM, KOZHIKODE TALUK-673 006.** **R1 BY ADVS. SRI.V.V.SURENDRAN ( CAVEATOR), SRI. P.A. HARISH.** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 12-06-2012, THE COURT ON 18/10/2012 PASSED THE FOLLOWING:** **Prv.** **C.R.** ## **PIUS C.KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ** ## **---------------------------------------------** ## **RCR No.135 of 2012** **---------------------------------------------** ## **Dated this the 18[th] day of October, 2012** ## **ORDER** ## **Ramakrishna Pillai, J** Whether the finding on the preliminary point regarding denial of title set up by the tenant, which has attained finality would operate as res judicata in raising the plea of want of jurisdiction? Whether any transformation in the jural relationship between the landlord and the tenant has taken place on account of the basis of an agreement for sale in respect of the tenanted premises? These are the two crucial questions which arise for consideration in this revision petition filed by the tenants, who were sought to be evicted by the respondents from the tenanted premises under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (hereinafter referred to as the 'Act' for short). 2. Before answering the above, it is useful to have a glance at the relevant facts in brief. 3. The tenanted premises consist of a shed and an office RCR No.135 of 2012 2 room attached to it, where an industrial concern by name 'Friends Auto Service', engaged in repairing, servicing and rebuilding of heavy motor vehicles, is run by the petitioner. The premises originally belonged to the first respondent and her brother Chandrasekharan Nair, who is no more. After the death of Chandrasekharan Nair his rights devolved on the second respondent as per a Will executed by the deceased. The case of the respondents is that the petition schedule premises was entrusted to the petitioners 1 and 2, late Moideen Haji (predecessor-in-interest of petitioners 3 to 15), late Imbichi Mammy (predecessor-in-interest of petitioners 16 to 26) and late Khader (predecessor-in-interest of petitioners 27 to 43) in the year 1985 by the above said Chandrasekharan Nair and the first respondent on a monthly rent of `1,000/-. A sum of `5,000/- was paid as advance. Rent is in arrears from January 1991. Demand for arrears did not evoke any positive response. It was also alleged that the wife of the second respondent, who is depending upon the respondents, bona fide needs the petition schedule building to start a business in advertisement as no other suitable building is available in her possession. 4. The tenants resisted the application. They contended that RCR No.135 of 2012 3 there is no landlord-tenant relationship between the petitioners and the respondents. Their specific case was that the original entrustment was that of vacant land and the structures therein were constructed by them. Hence, according to them, it was a lease coming under the purview of Section 106 of the Kerala land Reforms Act. In addition to that, they contended that there was an agreement to sell between the landlords and the tenants in the year 1990 and thereafter, the petitioners are not holding the property as tenants, but their possession is pursuant to the said agreement. Thus, according to them, after the agreement, there is no landlord-tenant relationship. They would further contend that the rent fell in arrears on account of the agreement. The alleged need was also disputed and was branded as a ruse for eviction. 5. The learned Rent Controller, who raised proper points for consideration, heard the point on denial of title first, under the second proviso to Section 11(1) of the Act. The point having been found against the petitioners, the matter was taken in appeal before the Rent Control Appellate Authority, who confirmed the finding. Thereafter, at the trial, PW1 was examined and Exts.A1 to A6 and B1 to B13 were marked. After considering the evidence, the learned Rent Control Court ordered eviction as prayed for RCR No.135 of 2012 4 under Sections 11(2)(b) and 11(3). The matter was taken in appeal before the Rent Control Appellate Authority but without success. Thus, the petitioners have come up in revision before this Court under Section 20 of the Act. 6. We have heard the learned Senior Counsel appearing for the revision petitioners and the learned counsel for the respondents. Records including the impugned judgment as well as the order of the Rent Controller were perused. 7. The learned senior counsel for the petitioners would submit that both the courts below erred in exercising the jurisdiction under the Act, in spite of the definite contention taken by the petitioners that the petition schedule property is not a building as defined under Section 2(1) of the Act and there is no landlord/tenant relationship between the petitioners and the respondents. In the light of the bona fide denial of title, the Rent Control Court ought not have entertained the application for eviction and the same ought not have been confirmed by the Appellate Court by the impugned judgment, so submitted the learned senior counsel. As pointed out earlier, the question regarding denial of title set up by the revision petitioner was heard as a preliminary point by the Rent Control Court and it was RCR No.135 of 2012 5 answered against the petitioners. The said order has attained finality in RCA No.116 of 2009. According to the learned senior counsel, in spite of the said finding, the petitioners/tenants are entitled to challenge the jurisdiction of the Rent Control Court as there was no landlord-tenant relationship after an agreement for sale executed by the landlords in favour of the petitioners. Relying on a series of decisions, the learned senior counsel was trying to convince us that findings on question of jurisdiction will not operate as res judicata. There cannot be any quarrel against the proposition that a question of jurisdiction of the court or of procedure or a pure question of law unrelated to the right of the parties to a previous suit is not res judicata in the subsequent suit. The reason is that a question relating to the jurisdiction of a court cannot be deemed to have been finally determined by an erroneous decision of the court. If by an erroneous interpretation of the statute, the court holds that it has no jurisdiction the question would not operate as res judicata. If an authority is required, we have the decision of the Apex Court in **Mathura Prasad Sarjoo Jaiswal and others** v **Dossibai N. B.Jeejeebhoy** (AIR 1971 SC 2355). It is relevant to note that the finding entered into by the learned Rent Controller on the preliminary point is not a question RCR No.135 of 2012 6 relating to the jurisdiction. The second proviso to section 11(1) of the Act mandates that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court 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 civil court and such court may pass a decree for eviction on any of the grounds mentioned in Section 11 of the Act. Once it is found that the denial of title set up by the tenant is bonafide, the matter will go outside the realm of the Rent Control Court. The statutory inhibition regarding jurisdiction will operate only after such a finding. By answering the preliminary point, the learned Rent Controller has recorded a finding to the effect that the denial or claim set up by the petitioners was not bona fide. It was not a finding on the question of jurisdiction. Thus, the courts below were perfectly justified in not re-agitating the said question once again as it had attained finality. However, we are of the definite view that the same will not stand in the way of the petitioner in raising the ground of want of jurisdiction. 8. The further arguments raised by the learned senior counsel for the petitioners proceed as follows: a) The tenancy right which the appellant had prior to 16[th] RCR No.135 of 2012 7 November 1990, i.e., from the date of execution of Ext.B7 by which the respondents had agreed to sell the tenanted premises to the petitioners, merged with the rights of the petitioners as the agreement holders and therefore, the application for eviction cannot lie. The Rent Control Court, under such circumstances, had no jurisdiction to go into the question; it was argued. b) The petitioners were always ready and willing to perform their part of the contract and was entitled to the benefit of Section 53A of the Transfer of Property Act, 1882. c) The subject matter of the lease was not the building, but the land only and hence the petitioners are entitled to fixity of tenure under Section 106(2) of the Kerala Land Reforms Act, 1963. (d) The need alleged by the respondents is not bona fide and it is only a ruse for eviction. 9. Now we will visit these arguments, one by one. 10. The definite case of the petitioners is that the nonpayment of rent after December 1990 is on account of change of jural relationship between the parties after the execution of Ext.B7 agreement for the sale of the tenanted premises. Ext.B7 is dated 16.11.1990. The respondents would admit the execution of Ext.B7 agreement. The material question to be answered is whether the RCR No.135 of 2012 8 relationship of landlord and tenant came to an end by the execution of Ext.B7. Section 2(3) of the Act defines 'Landlord' as follows: “Landlord” includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant.” Section 2(6) of the Act defines Tenant' as under:, “Tenant” means any person by whom or on whose account rent is payable for a building and includes:- (i) the heir or heirs of a deceased tenant, and (ii) a person continuing in possession after the termination of the tenancy in his favour, but does not include a Kudikidappukaran as defined in the Kerala Land Reforms Act, 1963 (Kerala Act of 1964), or a person placed in occupation of a building by its tenant, or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter-house or of rents for shops has been framed out or leased by a Municipal Council, Municipal Corporation, Township Committee or Panchayath;” 11. The jural relationship between two persons could be created through agreement and similarly could be changed through agreement; subject to the limitations under the law. The learned senior counsel for the petitioners relying on the decision of the Apex Court in **R.Kanthimathi** v **Beatrice Xavier** ((2000) 9 RCR No.135 of 2012 9 SCC 339) would argue that where the respondent/landlord decided to sell the tenanted premises to the petitioners and the petitioners agreed to act in terms of the agreement, they by their positive act changed their relationship to that of seller and purchaser. The question raised in that case for consideration of the Apex Court was “Whether on the execution of agreement of sale by the landlord with the tenant and landlord having received substantial portion of the sale consideration, the relationship of landlord-tenant inter se between them ceases and fresh rights and obligations flow under this agreement?” (emphasis supplied) 12. It was an appeal by the tenant who received a decree of eviction by the order of the trial court, confirmed by the appellate authority and finally affirmed by the High Court. The landlord filed the suit for eviction of the tenant under the provisions of the Tamil Nadu Building Lease and Rent Control Act, 1960 on the ground of willful default to pay rent. Her case was that the tenant paid rent regularly up to March 1997, but thereafter there was no regular payment. However, on request of the tenant she agreed to sell the premises to the tenant for a total consideration of `25,000/- and executed the agreement on 4.5.1997 receiving a RCR No.135 of 2012 10 substantial portion of the consideration, i.e. `20,000/- on the date of the agreement and the balance remained to be paid on the date of the execution of the sale deed. The relevant portion of the sale deed is extracted in the judgment which reads as follows: “I, the aforesaid, Mrs.Beatrice Xavier hereby agree out of my own free will, to sell, convey and transfer the property to you Mrs.R.Kanthimathi, wife of Mr.S.Ramaswami, 435 Trichy Road, Coimbatore for a mutually agreed sale consideration of Rs.25,000/-. I shall be proceeding to Coimbatore and shall execute the sale deed and present the same for admission and registration before the registration authority, accepting and acknowledge payment of the balance of consideration of Rs.5000 (Rupees Five thousand only) at the time of registration and shall complete the transaction of sale and conveyance as the property demised has already been surrendered to your possession.” 13. Making special reference to the words “already been surrendered”, the Apex Court observed that the same has to be construed in the background of the landlady having received a major portion of the sale consideration. What was remained to be performed under the agreement was only the execution of the sale deed after receiving the balance sale consideration of `5000/-. 14. Another decision relied on by the learned counsel for the petitioners is **Arjunlal Bhatt Mall Gothani and others** v **Girish Chandra Dutta and another** (1973) 2 Supreme Court RCR No.135 of 2012 11 Cases 197) **.** In that case, by an agreement between the appellants and the respondent, the respondent/landlady agreed to sell whole property to the appellants/tenants for a certain sum to be paid to him by instalments. Clause-5 of the agreement provided as follows: “That in case of default of any instalment, this agreement for sale shall stand cancelled and if the purchasers fail to pay the defaulted instalments within one month's notice, the payments made shall stand forfeited and the purchasers shall make over possession of the land and houses shown in schedule to the vendor”. 15. As a result of this agreement, all the proceedings against the appellants were withdrawn, but the appellants having failed to pay even the first instalment, the respondent filed suit for possession of property. The Apex Court held that the rights and liabilities of the parties have to be worked out on the basis of the agreement especially because of the absence of any provision for payment of rent till the whole purchase money was paid. 16. In both the cases referred to above, the agreement entered into between the landlord and the tenant manifested the intention of the parties to put them in the position of the proposed seller and buyer. In **Kanthilal's case** , a substantial portion of the RCR No.135 of 2012 12 sale consideration was paid and possession was handed over on the basis of the said agreement. In **Arjunlal's case** , a clause in the agreement made it clear that the agreement would stand cancelled in the event of failure to pay instalments and the tenant should make over possession to the landlord. In other words, by the agreement both the parties stood transformed as proposed seller and buyer. What could be discerned from the aforesaid two decisions is that the change of jural relationship between the landlord and the tenant during the subsistence of tenancy shall take place only if the parties intended for such a transformation. What is most relevant is the intention of the parties. In both the cases, the evidence abundantly tend to indicate that the landlord and tenant had such an intention. 17. In the instant case, there was no surrender of possession on the basis of Ext.B7. What was proposed to be sold was 25.75 cents of land where the petition schedule building is housed. The sale consideration was fixed at `12,000/- per cent which comes to `3,09,000/- for the entire extent. Out of that only a sum of `50,000/- was paid as advance. The positive assertion of the respondents/landlords that the rent was due only from January 1991 was not at all denied by the petitioners in their objections. RCR No.135 of 2012 13 The fact that the petitioners have paid rent subsequent to the execution of Ext.B7 would indicate that the parties never intended to put an end to the landlord-tenant relationship. Evidently and admittedly too the sale has not come through and Ext.B7 agreement has become time barred. The landlord-tenant relationship stood eclipsed while Ext.B7 agreement was alive. As soon as it became unenforceable, the parties stood relegated to their original position as landlord and tenant. 18. For arriving at the aforesaid conclusion, we draw support from the decision in **P.Veerappa** v **M.A.Mohammed Amanulla** (1996(1) SCC 415). In that case, when an application for eviction under Section 21 of the Karnataka Rent Control Act, 1961 was filed, the appellant raised a preliminary objection that his tenancy rights had got merged in his right as an agreement holder and he was in possession of the suit premises as an agreement holder and not as a tenant. The appellant sought for a decision by the civil court in that behalf. The court negatived it and it was affirmed by the High Court. In the appeal by special leave, the Apex Court found that there was no force in the contention raised by the appellant, taking note of a subsequent compromise entered into between the parties where it was RCR No.135 of 2012 14 recognised that the appellant was to pay arrears of rent till the date of compromise. That was reckoned as a recognition of the reversion which included the pre-existing rights of tenant up to the date of compromise by the appellant. Thus, it was held that the appellants' pre-existing rights as tenants stood revived and the appellants and respondents were bound by the relationship of landlord and tenant. 19. We also had the profit of noticing the decision in **Pramod Kumar Jaiswal and others** v **Bibi Husn Bano and others** (AIR 2005 SC 2857) where it was held by the Apex Court that a plain and grammatical interpretation of Section 111(d) of the Transfer of Property Act leaves no room for doubt that unless the interests of the lessee and that of the lessor in the whole of the property leased, become vested at the same time in one person in the same right, a determination of the lease cannot take place. Going by the definition of the tenant in Section 2(6) of the Act, the tenant includes a person continuing in possession after the termination of the tenancy in his favour. 20. Viewed in that profile, we are of the definite view that the relationship between the respondents and the petitioners in this case continues to be that of a landlord and tenant. RCR No.135 of 2012 15 21. The contention taken by the petitioners that they were always ready and willing to perform their part and was entitled to the benefit of Section 63A of the Transfer of Property Act, 1882 does not inspire confidence, as evidently the sale has not come through on account of the failure on the part of the petitioners to pay the balance amount and to get the sale deed executed in their name. There is nothing on record to show that the petitioners have done some act in furtherance of the contract, as envisaged by Section 53A of the Transfer of Property Act. 22. The argument that the subject matter of the lease was not the building, but was the land also looses its very leg to stand upon in the light of Ext.B1 agreement which would clearly indicate that the subject matter of the lease was the shed and office room made mention of in the schedule to the original petition. Section 106(2) of the Kerala Land Reforms Act would come into play only if the subject matter of the tenancy is the land and not the building. 23. Coming to the grounds for eviction, it was concurrently found by the courts below that rent was in arrears since January 1991 and the need set up by the respondents was bonafide. Allegedly, the wife of the second respondent wants to start a RCR No.135 of 2012 16 business in the tenanted premises after evicting the petitioners. The petitioners cannot non-suit the respondents under the first proviso to Section 11(3) as the respondents are not having any vacant room or building in their possession for the proposed business. It has come out in evidence that the son of the second respondent is studying in 10[th] standard and because of the increase in the family expenditure as well as the education expenses of his son, some contribution from the side of his wife has become necessary. We are not prepared to hold that the need alleged by the respondents is not bonafide. Both the courts have found that the tenanted premises is suitable for starting a business. It is trite that the burden is on the tenant to prove both limbs of the second proviso to section 11(3) to non-suit the landlord. There is absolute failure on the part of the petitioners to plead and prove that they are entitled to the protection under both limbs of the second proviso to section 11(3). In the quick survey made by us over the entire evidence on record, though we are not expected to re-appreciate the entire evidence, in exercise of the revisional powers under Section 20 of the Act, we notice that both the courts below have appreciated the evidence in the correct perspective and have arrived at the correct conclusion which does RCR No.135 of 2012 17 not call for interference by this Court under Section 20 of the Act. 24. In the result, the revision fails and accordingly dismissed. No order as to costs. 25. However, we are of the view that the revision petitioners be given time to surrender the tenanted premises, as they will have to find an alternate space to shift the workshop hoarded in the premises. Taking into account all relevant circumstances, we grant to the revision petitioners time up to 31.1.2013 to give vacant possession of the tenanted premises subject to following conditions: 1) The revision petitioners shall file Affidavit within one month from today before the Execution Court or the Rent Control Court, as the case may be, undertaking to surrender vacant possession of the tenanted premises peacefully to the respondents/landlords on or before 31/1/2013. 2) The revision petitioners shall remit the entire arrears as on today before the execution court or Rent Control Court as the case may be within three months from today with notice to the respondents. 3) The revision petitioners shall pay charges RCR No.135 of 2012 18 towards use and occupation of the building at the current rent rate from today till they give vacant possession of the tenanted premises to the respondents. 4) The execution proceedings, if any, pending before the Execution Court shall be kept in abeyance till 31/1/2013. We make it clear that the revision petitioners will get the benefit of time as above, only if, they file the Affidavit in time, honour the undertaking contained therein and discharge the entire arrears of rent as on date. ## **Sd/- PIUS C.KURIAKOSE, JUDGE** ## **sd/- A.V.RAMAKRISHNA PILLAI, JUDGE** **css/ true copy** ## **P.S.TO JUDGE**