V. Purushothaman v. Isidore Joseph and V. X. Tresa

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN THURSDAY, THE 11TH DAY OF AUGUST 2016/20TH SRAVANA, 1938 RCRev..No. 249 of 2016 () ----------------------------------RCA 87/2012 of ADDL.DISTRICT COURT V, ERNAKULAM. RCP 73/2011 of RENT CONTROL COURT, ERNAKULAM. REVISION PETITIONER(S)APPELLANT/RESPONDENT : --------------------------------------------------------------------------- V. PURUSHOTHAMAN, S/O. VELU, AGED 56 YEARS, STATE BANK OF TRAVANCORE EMPLOYEE (NOW HEAD CASHIER, STATE BANK OF TRAVANCORE OVERSEAS BRANCH, PALARIVATTOM, KOCHI-682 025), KOLANGATTU HOUSE, VANDIPERIYAR P.O., VALLAKADAVU DESOM, MANJUMALA VILLAGE, PEERMEDU TALUK, IDUKKI DISTRICT, NOW RESIDING AT A4 FLAT, 2ND FLOOR, UNITY APARTMENTS, NUMBERED AS CC NO.36/972-C, NEAR LISSIE HOSPITAL JUNCTION, KALOOR, KOCHI-682 018. BY ADVS.SRI.B.ASHOK SHENOY SRI.P.N.RAJAGOPALAN NAIR ## RESPONDENT(S)/RESPONDENTS/PETITIONER : --------------------------------------------------------------- 1. ISIDORE JOSEPH, SON OF JOSEPH, AGED 58 YEARS, S/O. JOSEPH, LIC EMPLOYEE (EX-SERVICEMAN), RESIDING AT CHERIYAPARAMBIL HOUSE, PALLATH ROAD, THAMMANAM, KOCHI-682 032. 2. V.X.TRESA, W/O. ISIDORE JOSEPH, AGED 54 YEARS, STATE BANK OF TRAVANCORE EMPLOYEE, RESIDING AT CHERIYAPARAMBIL HOUSE, PALLATH ROAD, THAMMANAM, KOCHI-682 032. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 11-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## K. SURENDRA MOHAN & ANU SIVARAMAN, JJ. - - - - - - - - - - - - - - - - - R.C.R. No. 249 of 2016 - - - - - - - - - - - - - - - - - Dated this the 11[th] day of August, 2016. ## ORDER ## Surendra Mohan, J. The tenant is in revision challenging an order of eviction granted by the Rent Control Court, Ernakulam in R.C.P. No. 73 of 2011, confirmed by the Rent Control Appellate Authority, Ernakulam in R.C.A. No. 87 of 2012. 2. The respondents, husband and wife, own the premises scheduled to the Rent Control Petition, which is a residential apartment in an apartment complex situate in the heart of Cochin City. The parties are referred to herein as landlords and tenant, for convenience. 3. Originally, the tenant was the owner of the apartment. As per Ext.A1 sale deed, the landlords alleged that they had purchased the apartment from him, thereafter, he had continued in occupation thereof as a tenant paying rent. R.C.R.249/2016. 2 It was contended that though the rent was initially Rs.4,000/-, it was agreed that there would be an annual increase in the rent by 10%. The rent was being paid by the tenant in accordance with the said stipulation, for some time. Thereafter, according to the landlords, he defaulted payment of the rent. Though notice was issued demanding payment of the defaulted rent, the same was not paid. Therefore, it was alleged that, he was liable to be evicted under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act' for short). In addition, the landlords sought eviction of the tenant under Section 11(3) of the Act, for the bona fide occupation of their daughter and son-in-law. According to them, the son-in-law was employed at Kakkanad. He is a person hailing from Pala with no house of his own at Cochin. The house was suitable for his residence, therefore, they needed the building for the occupation of their daughter and son-in-law. R.C.R.249/2016. 3 4. The Rent Control Petition was resisted by the tenant contending that there was no landlord - tenant relationship between the parties. According to the tenant, he had borrowed an amount of Rs.7,50,000/- from the landlords. The alleged sale deed was executed as security for the said loan transaction, on the understanding that the property would be reconveyed to him once the loan amount was repaid. Since the transaction was essentially a loan, there was no stipulation for payment of rent. Therefore, no rent was also paid. For the above reasons, it was contended that the Rent Control Petition itself was not maintainable. Apart from the above, the tenant contended that he belonged to a Scheduled Tribe, namely, 'Kayal Araya' community. Therefore, Ext. A1 sale deed was hit by the prohibition contained under the Kerala Scheduled Tribes ( Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, Act 31 of 1975. Therefore, it was contended that, the sale deed Ext.A1 was invalid. R.C.R.249/2016. 4 5. The parties went to trial on the above pleadings. The evidence in the case consists of Exts.A1 to A6 documents on the side of the landlords and the oral testimonies of PWs 1 to 4. The tenant examined himself as RW1, but, produced no documentary evidence. 6. The Rent Control Court considered the respective contentions of the parties in the light of the evidence on record and came to the conclusion that the ground under Section 11(2)(b) of the Act had not been established. There was no evidence regarding the rate of rent that was agreed upon by the parties. Therefore, eviction was declined on the said ground. However, the Rent Control Court found that the landlord had succeeded in establishing the ground under Section 11(3) of the Act. According to the Rent Control Court, the denial of title by the tenant also was without bona fides and therefore, the said contention was also rejected. With respect to the contention that there was restriction regarding transfer of immovable property belonging to the tenant in view R.C.R.249/2016. 5 of the provisions of Act 31 of 1975, it was found that there was no evidence to substantiate the status of the tenant as the member of a Scheduled Tribe. Accordingly, the Rent Control Petition was allowed and an order of eviction was granted under Section 11(3) of the Act. 7. The tenant carried the matter in appeal before the Rent Control Appellate Authority. The Appellate Authority reappreciated the evidence on record and has confirmed the order of the Rent Control Court. The tenant is aggrieved by the judgment of the Appellate Authority. 8. According to Ashok B. Shenoy, who appears for the tenant, both the Authorities below have failed to take note of the fact that, the Rent Control Court had no jurisdiction to entertain the petition since there was a bona fide denial of the title of the landlord. It is pointed out by the learned counsel that, both the tenant as well as the landlord are Bank employees and family friends. Ext.A1 was not intended to be acted upon, but was executed only as security for a loan R.C.R.249/2016. 6 transaction. In view of the contention that was put forward, according to the counsel, a plausible case was there on the side of the tenant, that could be adjudicated only by a Civil Court. Therefore, it is contended that the Rent Control Court ought to have declined jurisdiction under Section 11(1) of the Act. It is further pointed out that, the respondent being a member of a Scheduled Tribe, was entitled to the benefit of the provisions of Act 31 of 1975, that restricted transfer of lands belonging to such people. 9. With respect to the bona fide need that was put forward, the counsel takes strong objection to the fact that the Rent Control Petition contains no specific pleading that the daughter and son-in-law were dependent on the landlord. Reliance is placed on the decision in Koyilerian Janaki v. Rent Controller (Munsiff), Cannanore ((2000) 9 SCC 406) to contend that the factum of dependency is one that should be specifically pleaded and proved by a landlord seeking eviction under Section 11(3) of the Act. The counsel also places R.C.R.249/2016. 7 reliance on the decision of this Court in Mariamma v. Chinnamma John (2015 (2) KHC 226) to contend that the bona fides in relation to denial of title that is required to be considered by the Rent Control Court and the Appellate Authority is in a manner relatable to the definition of 'landlord' contained in the Act. In view of the above, it is contended that the judgment of the Appellate Authority requires to be interfered with in Revision. 10. Heard. In the first place, we notice that the landlords claimed title on the basis of Ext.A1 which is a registered Sale Deed, No. 2880/2005 of the Ernakulam Sub Registry. Both the authorities below have gone into the recitals contained in Ext.A1 to find that the same is a pucca sale deed under which, the title in respect of the property has been acquired by the landlords herein. Nothing has been brought to our notice, to justify a conclusion that there is any infirmity in the said finding. It is true that the tenant has a contention on the basis of an alleged loan transaction between R.C.R.249/2016. 8 the parties. It is contended that, an amount of Rs.7,50,000/had been borrowed by the tenant and that the document Ext.A1 was executed as security for the said transaction. However, there is absolutely no evidence or material to support the said contention. On the contrary, the landlords have produced Ext.A6 which is a copy of an agreement for sale that had preceded Ext.A1. Ext.A6 only supports the contention of the landlords that, Ext.A1 was a sale deed and that, they had acquired title in respect of the premises as per the said document. We find that the authorities below were justified in concluding that Ext.A1 was a valid sale deed and that the landlords had acquired title in respect of the property. 11. Since no appeal was filed by the landlords against rejection of their prayer for eviction under Section 11 (2)(b) of the Act, the said finding has become final. However, counsel for the petitioner has vehemently attacked the findings of the authorities below on the ground under Section 11(3) of the Act. As already noticed above, placing reliance on R.C.R.249/2016. 9 the decision of the Apex Court in Koyilerian Janaki's case (supra), it is contended that it was incumbent on the landlord to have specifically pleaded and proved the factum of dependency of the daughter and son-in law on them. We notice that the above aspect has also been considered by both the authorities below, in detail. It is worth noticing that, according to the landlord, their daughter is married to a native of Pala, who is working at Kakkanad, in the suburbs of Kochi City. He has no house of his own in the City and therefore, requires the scheduled premises for their residence. It is implicit in the above averments that the daughter and son-in-law were dependent on the landlords for the purpose of their residence. The need put forward for the residence of the daughter and son-in-law is only legitimate and has been rightly accepted by the authorities below. The son-in-law has been examined as PW2. He has deposed to the need as well as to his dependency on the landlords for his residence. He has also stated that the building is suitable for his residence. R.C.R.249/2016. 10 Except for the residential house at Pala, he has stated that, he has no house of his own. He and his wife are both employed at the Info Park at Kakkanad. He is a Software Engineer by profession. The Rent Control Court has noticed that there is no serious challenge to the above facts, in cross-examination. Taking into account all the above factors, the Rent Control Court has therefore come to the conclusion that the daughter and son-in-law are dependent on the landlords for their residence. The said finding has been confirmed by the Appellate Authority also. We find no infirmity in the said finding. 12. It is contended by the counsel for the tenant that both the authorities below have failed to consider properly, the contention that was advanced on the basis of Act 31 of 1975. We do not find any substance in the said contention for the reason that both the authorities below have found that the tenant had not produced any document to evidence his caste status. According to the counsel for the R.C.R.249/2016. 11 tenant, after the close of the evidence, though he had filed a petition seeking permission to produce his SSLC Book, the petition was not allowed. However, we do not find any material to support the above contention. The said attempt also does not appear to have been pursued before the authorities below. Therefore, we are not satisfied that anything turns on the said aspect. The fact remains that there is absolutely no evidence to substantiate the contention on the basis of Act 31 of 1975. After having executed Ext.A1 document, which is a proper and registered sale deed, the contention now advanced that the same was only a sham document not intended to be acted upon, that the same was only intended to be security for a loan transaction etc are contentions that have no factual basis, going by the records in the case. Therefore, the finding of the authorities below that the denial of title was bereft of bona fides is fully justified. In view of the above, the decision in Mariamma (supra) on which reliance has been placed by the counsel for R.C.R.249/2016. 12 the tenant, has no application to the facts of this case. No illegality, impropriety or irregularity warranting an interference with the judgment of the Appellate Authority has been pointed out to us. For the above reasons, the Rent Control Revision is liable to be missed. The same is accordingly dismissed. K. SURENDRA MOHAN JUDGE ANU SIVARAMAN JUDGE sb