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1985 DIGILAW 268 (KER)

IBRAYAN v. BALAN

1985-08-14

FATHIMA BEEVI, K.K.NARENDRAN

body1985
Judgment :- 1. A learned judge of this Court before whom this Second Appeal came up for hearing, referred the Appeal to a Bench. The order of reference reads: The question involved in this Second Appeal is as to whether it is necessary for a landlord to prove any of the grounds mentioned in S.11 of the Kerala Buildings (Lease and Rent Control) Act in a suit for eviction filed on the bash of the second proviso to sub-S. (1) S.11 of the Act, even in cases where the denial of title by the tenant involves forfeiture of the lease within the meaning of clause (g) of S.111 of the Transfer of Property Act. The decision of this Court in Appukkuttan v. Vasu,1978 K. L. T. 776 does not deal with this aspect of the case. I therefore refer the second appeal for decision by a Division Bench." 2. The short facts of the case shorn of unnecessary details are: One K.P. Krishnan Nair and 8 others filed a petition for eviction under S.11 (2), (3) and (4) of the Kerala Buildings (Lease and Rent Control) Act 2 of 1965 against one Ibrayan and 8 others, the appellants in this second appeal, the persons in possession of the plaint schedule building as tenants In the written objections filed before the Rent Control Court the appellants-tenants denied the title of the first petitioner in the petition for eviction K.P. Krishnan Nair and contended that the building belonged to one Narayanan Nair. The Rent Control Court found that the denial of title as bonafide and directed the petitioners to file a suit for eviction before the civil court. 3. Accordingly the suit for eviction was filed before the Munsiff Court, Kuthuparamba. Though the plaintiffs filed the suit before the civil court in view of the second proviso to S.11 (1) of the Kerala Buildings (Lease and Rent Control) Act, 2 of 1965, the suit filed was one for eviction on the strength of title. The trial court gave the following findings: The lease of the building as alleged in the plaint is not true. The first plaintiff has title to the plaint schedule building. The trial court gave the following findings: The lease of the building as alleged in the plaint is not true. The first plaintiff has title to the plaint schedule building. When the fact as to who is the landlord of the building is in dispute it cannot be said that there exists any landlord tenant relationship either between PW1 and DW1 or between plaintiffs 2 to 9 and Dw 1. If there is no landlord tenant relationship between the persons who claim ownership of the building and the person in occupation, the person who is the owner is entitled to seek eviction on the strength of his title and for that the grounds mentioned in the Rent Control Act need not be proved. Hence the defendants are liable to be evicted from the building. Accordingly the trial court granted a decree for eviction. 4. The appellants-tenants challenged the judgment and the decree of the trial court in appeal before the District Court, Tellichery. Pending the appeal Krishnan Nair, the first plaintiff in the suit passed away and his legal representatives were impleaded as supplemental respondents. The lower appellate court confirmed the judgment and decree of the trial court holding that when the first plaintiff has title to the building he is entitled to recover possession and in that case the grounds for eviction under the Kerala Buildings (Lease and Rent Control) Act 2 of 1965 need not be proved. 5. It is the above judgment and decree of the lower appellate court that are challenged by the appellants-tenants in this Second Appeal. The learned counsel for the appellants contended that the appellants can be evicted from the building only if one or more of the grounds enumerated in S.11 of the Kerala Act 2 of 1965 are alleged and proved in the case even if the civil court was to try and dispose of the case. According to the learned counsel a tenant of a building to which the provisions of Act 2 of 1965 apply can be evicted only if one of the grounds for eviction mentioned in S.11 of Act 2 of 1965 has been established in the case and as that has not been done, the judgment and decree for eviction will have to be set aside. 6. 6. The second proviso to S.11(1) of the Kerala Buildings (Lease and Rent Control) Act 2 of 1965 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 or 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 court finds that such denial dees not involve forfeiture of the lease or that the claim is unfounded." The Supreme Court has held in Pawada Venkateswara v. C.V. Ramana, A.I.R.1976 S.C.869 that the Andhra Pradesh Buildings (Lease and Rent Control) Act 15 of 1960 which provides a procedure for eviction of tenants is a self-contained statute and the provisions of S.100 of the Transfer of Property Act, 1882 cannot be invoked. Following the above decision of the Supreme Court a Full Bench of this Court has held in Lalitha v. Ayisumma, 1977 K.L.T.587 that the Kerala Buildings (Lease and Rent Control) Act 2 of 1965 is a complete Code in itself. Such a conclusion is inevitable because of the long title and the preamble of the Kerala Act 2 of 1965. Over and above this, the non obstinate clause which forms the opening words of S.11(1) also insists that a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act.' In the normal course the civil court has no jurisdiction to entertain a suit for eviction of a tenant of a building to which Act 2 of 1965 applies, because that is a matter within the exclusive jurisdiction of the Rent Control Court constituted under the Act. Only under the second proviso to S.11(1) of the Act the civil court gets jurisdiction to try and decide a case for eviction of a tenant from a building to which the provisions of Act 2 of 1965 apply. But in that case the clear interdiction in the proviso that 'such court may pass a decree for eviction on any of the grounds mentioned in this Section' cannot be given the goby by the civil court. But in that case the clear interdiction in the proviso that 'such court may pass a decree for eviction on any of the grounds mentioned in this Section' cannot be given the goby by the civil court. So no question of granting an eviction on the strength of the title of the plaintiff-owner of the building arises as long as the tenant is a person inducted by the owner or somebody on his behalf on a rental arrangement. Such a person occupying a building on payment of rent cannot be thrown out on the lame excuse that there is no relationship of landlord and tenant with him and the actual owner. The position may be different if the occupant is a rank trespasser. In this ease the appellants were inducted as tenants by the persons who were in possession of the building on behalf of the owner who was then serving in the army. In view of the fact that the Rent Control legislation is a complete code in itself S.111(g) of the Transfer of Property Act cannot be invoked to turn the tables on the appellants tenants because there will be no forfeiture of the lease to make the tenant liable to be thrown out as he can take shelter under the Kerala Act 2 of 1965. In the above view we take, the judgment and decree of the lower appellate court confirming the judgment and decree of the trial court will have to be set aside. But there is no reason to disturb the findings regarding title and that the first defendant is the person in occupation of the building. Subject to the above we set aside the judgment and decree of the lower appellate court and remand the case to the trial court to try and dispose of the case in the light of what has been said in this judgment. The court fee paid on the memorandum of second appeal will be refunded to the counsel for the appellants. The trial court should dispose of the case within six months of the receipt of the records from this court. There will be no order as to costs. The case will stand posted before the trial court on 10-9-1985.