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1985 DIGILAW 264 (KER)

ROBERT WELRESS v. MAMMU

1985-08-10

PAREED PILLAY

body1985
Judgment :- 1. Revision petitioner in CRP. 299/1981 is the tenant against whom the respondent-landlord filed O.P. (R.C) 135/76 before the Rent Controller, Kozhikode-II claiming eviction of the building on the ground of arrears of rent and bonafide requirement After the death of the revision petitioner, additional revision petitioners 2 to 8 were impleaded. Revision petitioner in CRP. 475/1981 is the tenant against whom the respondent-landlord filed O.P. (R C.) 134/76 before the Rent Controller, Kozhikode-II under S.11 (2) and 11 (3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. 2. The petitioner in the Rent Control Petitions contended that the buildings which belonged to Mammu Haji was leased to the tenants, that on the death of Mammu Haji his father Moidu became the owner and that on his death he became the sole owner of the buildings. The tenants alleged that Moidu had agreed to sell the property for a total consideration of Rs. 6,000/- and had received Rs. 1,000/- as advance and issued receipts accordingly. According to them, it was agreed that the properties would be sold within six months from 30-7-1974. It is further contended by them that Moidu died on 10-12-1975 and therefore the sale deed could not be executed. They assert that there is no landlord-tenant relationship between them and the applicant and hence the petitions are not maintainable. Claim of the landlord that he is the son of Moidu is also refuted by the tenants. The tenants also disputed the claim of the landlord under S.11(3) of the Act. 3. The Rent Controller held that the agreements set up by the tenants are true and the landlord is not entitled to claim eviction. Appeals filed by the landlord before the Rent Control Authority were also dismissed confirming the order of the Rent Controller. The landlord filed rent control revisions before the District Court, Kozhikode. District Judge held that as there is denial of title of the landlord by the revision petitioner it is for the civil court to decide the question and the Rent Controller cannot decide it in the rent control proceedings under the Act and dismissed the revision petitions. 4. Learned counsel for the revision petitioners contended that really there is no denial of title by the tenants and therefore the Rent Controller's finding cannot be assailed. 4. Learned counsel for the revision petitioners contended that really there is no denial of title by the tenants and therefore the Rent Controller's finding cannot be assailed. 1n the counter statement the tenants contended that the applicant is not the son of Moidu and at any rate in view of the agreement to sell the properties and after having received part consideration there is no landlord-tenant relationship between the parties and hence the petitions are not maintainable. 5. The question that has to be considered is as to whether the tenants denied. the title of the landlord. Though in the counter statement the revision petitioners contended that the respondent is not the son of Moidu they gave a goby to it at the time of evidence. But they were adamant in their stand that they entered into agreements to purchase the properties from the predecessor of the respondent, that part payment of the sale consideration was paid and that there exists no landlord-tenant relationship between them. As the tenants have definitely taken the stand that they have agreed to purchase the properties from the respondent's predecessor as per the agreements and as there is no landlord-tenant relationship between them it is futile to contend that they have not denied title of the landlord. 6. Validity of the agreements set up by the tenants cannot be gone into by the rent control court. Rent Controller cannot obviously take a decision on the basis of the agreements Preamble to Kerala Buildings (Lease and Rent Control) Act, 1965 makes it abundantly clear that the Act is intended only to regulate the leasing of the buildings and to control the rent of such buildings in the State of Kerala. 7. It has been held in AIR. Rent Controller cannot obviously take a decision on the basis of the agreements Preamble to Kerala Buildings (Lease and Rent Control) Act, 1965 makes it abundantly clear that the Act is intended only to regulate the leasing of the buildings and to control the rent of such buildings in the State of Kerala. 7. It has been held in AIR. 1974 Mysore 46 (Rukamoddia v. Basawwa) as follows: "Where on an application for eviction of a tenant under S.21(1) of the Act the tenant disputed the title of the landlord to the premises in question and set up his own title as owner under a prior agreement to sell from the predecessor of the landlord by invoking the aid of S.53-A of the Transfer of Property Act, it was held that the dispute relating to the title of the landlord involved complicated questions of law and as such it was in the interest of justice that the question should be settled in a properly instituted suit and not in a summary proceeding." Counsel relying on the above decision submitted that the Rent Controller as well as the Appellate Authority having found that the dispute with regard to the title is bonafide ought to have only recorded a finding to that effect to enable the landlord to sue for eviction in the civil court As the dispute relating to the title of the landlord involved questions of law it is only fair and proper that the issues involved are settled in a properly instituted suit. Validity of the agreements set up by the revision petitioners cannot be decided by the Rent Controller. 8. Validity of the agreements set up by the revision petitioners cannot be decided by the Rent Controller. 8. Second proviso to S.11 (1) reads: "Provided further that where the tenant denies the title of the landlord or claims rights of permanent tenancy, the Rent Control Court shall decide whether the denial of claim is bonafide 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." Merely because a tenant stated in his counter statement that the landlord has no title the Rent Control Court does not cease to have jurisdiction to enquire into the matter and should not hasten to dismiss the petition. The proviso makes it clear that the Rent Controller has to enquire and decide whether the denial of title has been made bonafide. When it records a finding to that effect, the Rent Controller ceases to have jurisdiction to make any further probe into the matter. 1n other words. Rent Controller need not consider the pros and cons of the grounds alleged in the petition. 1n a case where the Rent Controller finds that the denial of title is bonafide the landlord shall be entitled to sue for eviction of the tenant in a civil court. Rent Controller cannot outright dismiss the petition without at least observing that the landlord shall be entitled to sue for eviction of the tenant in a civil court. In this case, tenants have asserted that the rent control petitions are not maintainable, that the landlord is not the heir of deceased Moidu, that they have no liability to pay any rent to the landlord, that Moidu had agreed to assign the properties for Rs. 6,000/-, that Rs. 1,000/-was paid as advance and that after the agreement they do not have any status as tenants. In AIR. 6,000/-, that Rs. 1,000/-was paid as advance and that after the agreement they do not have any status as tenants. In AIR. 1973 Andhra Pradesh 1 (Changanlal v. Naraingh Pershad) the Andhra Pradesh High Court held that Rent Controller before whom a petition is filed would get jurisdiction to deal with the matter only when there is landlord-tenant relationship between the parties and therefore the question of relationship between landlord and tenant is a jurisdictional fact and that before any valid order can be passed by the Rent Controller that jurisdictional fact must exist. Thus, the position is clear that Rent Controller gets jurisdiction to deal with the matter only when landlord-tenant relationship between the parties is admitted. 9. The learned District Judge has lightly held that the Rent Controller as well as the Appellate Authority need only have found that the tenants' contention is bona fide and that the finding of the courts below beyond that limit is without jurisdiction. There is no merit in the revision petitions and hence both the petitions are dismissed. There is no order as to costs. Dismissed.