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1992 DIGILAW 94 (KER)

Nafeesu v. Hajrabi

1992-03-06

RAJASEKHARAN

body1992
Judgment :- The appellants are defendants 1, 3 and 4 in O.S.No. 310 of 1979 on the file of the Munsiff s Court, Cannanore. 2. The predecessors in title of respondents 1 to 12 in this Second Appeal filed R.C.P.85 of 1978 seeking eviction of the appellants under the provisions of the Rent Control Act, Act 2 of 1965 on the grounds inter alia of arrears of rent and waste falling under S.11(2)(b) and S.11(4)(2) of the Act. The appellants herein disputed the title of the petitioners then' in and also denied the rental arrangement set up." The rental arrangement set up is under Ext. A7, a purported rent deed dated 28-12-1966. By Ext. A15 order dated 24-1-1979, the Rent Control Court found that the denial of title was bona fide and so referred the petitioners to seek their remedy in a civil court. It was accordingly, that O.S.310 of 1979 was filed seeking recovery on the strength of title and also for damages for waste and use and occupation. 3. The trial court, by judgment dated 21-12-1982 found that the plaintiffs have title to the building. On issues 1 and 2 it was held that Ext. A7 rent deed has not been proved and so, the alleged rental arrangement and tenancy was found against. On the question of adverse possession the court held that the plaintiffs have not lost their title by adverse possession and limitation. On issue No. 6 the court held that the plaintiffs were not able to prove that the defendants are liable to be evicted on any of the grounds available under the Rent Control Act. For that reason the suit was dismissed. 4. In appeal, A.S.47 of 1983 before the II Addl. District Judge, Thalasserry the dismissal of the suit was reversed and the plaintiffs were granted a decree for recovery of the building on the strength of title with damages for use and occupation at the rate of Rs. 20/-per month from 8-2-1978 onwards till the date of the suit and thereafter at the rate of Rs. 60/- per month till recovery of possession or for three years whichever is earlier. It was also found that the defendants have committed waste in the building and damages with respect to that was assessed toRs.1,000/-. Aggrieved by that judgment and decree, the defendants have come up in appeal. 5. 60/- per month till recovery of possession or for three years whichever is earlier. It was also found that the defendants have committed waste in the building and damages with respect to that was assessed toRs.1,000/-. Aggrieved by that judgment and decree, the defendants have come up in appeal. 5. According to the learned counsel for the appellants, under the second proviso to S.11(1) of Act 2 of 1965 it is imperative that the plaintiff should prove one of the grounds mentioned in S.11 for getting eviction. S.11(1) of the Act reads as follows: "Not with standing anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act." We are not concerned with the first proviso and the second proviso reads: "Provided further 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 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." 6. No doubt, there was a finding by the Rent Control Court that the denial of title was bonafide and it was accordingly the petitioners therein were referred to a civil court. It was pursuant to that the suit has been instituted. 7. A civil court gets jurisdiction to entertain a suit only if the owner of the building first approaches the Rent Control Court and the Rent Control Court has entered a finding that there is a bona fide denial of title or claim of permanent tenancy. The question that falls for consideration is whether in such a case even if there is no admitted tenancy or proved tenancy the owner of the building is to establish a ground mentioned in S.11 for getting recovery of the building. The question that falls for consideration is whether in such a case even if there is no admitted tenancy or proved tenancy the owner of the building is to establish a ground mentioned in S.11 for getting recovery of the building. According to the learned counsel for the appellants since the plaintiffs have set up a lease of the building and approached the Rent Control Court for eviction the failure to prove the lease is of no consequence and in spite of that the plaintiffs are to prove one of the grounds mentioned in S.11 for getting recovery of the building. The argument cannot be accepted. 8. The Rent Control Act is intended to regulate the leasing of buildings and to control the rent of such buildings in the State of Kerala. (Seethe preamble of the act). The provisions of the Act apply only when there is landlord and tenant relationship between the parties. S.11(1) which deals with eviction of tenants says: "Notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted" The second proviso to S.11(1) which provides for the suit also emphasises that:- "landlords shall be entitled to sue for eviction of the tenant in a Civil Court and such Court may pass a decree for eviction" So, it is evident from the plain reading of the section and the scheme of the statute that the second proviso to S.11(1) applies only when eviction of a tenant is sought for. The tenant is defined in the Act as: ""tenant" means any person by whom or on whose account rent is payable for a building and includes". 9. In the case at hand, the appellants herein denied the tenancy evidenced by Ext. A7 and disputed the payment of rent at any point of time. They were setting up an independent title having obtained by an oral sale of the building long prior toExt,A7. Even though Ext. A7 was sought to be pressed into service, the plaintiffs miserably failed in proving the rental arrangement. In fact, either in the Rent Control Court or in the Trial Court no serious attempt-was made to prove the tenancy evidenced by Ext.A7. That has been noticed by the courts below and there is a definite concurrent finding by both the courts that there is no landlord-tenant relationship between the parties. 10. In fact, either in the Rent Control Court or in the Trial Court no serious attempt-was made to prove the tenancy evidenced by Ext.A7. That has been noticed by the courts below and there is a definite concurrent finding by both the courts that there is no landlord-tenant relationship between the parties. 10. Then the question is whether in such circumstances it could be insisted that in a suit falling under Second proviso to S.11(1) the plaintiff is to prove any one or more of the grounds for eviction available under S.11 of Act 2 of 1965. The answer must be in the negative. 11. The learned counsel for the appellants has referred to various decisions mmely, Appukuttan v. Vasu (1978 KLT 776), Ibrayan v. Balan (1985 KLT 896), Mis. East India Corporation Ltd. v. Shree Meenakshi Mills Ltd. (AIR 1991 SC 1094), Sushil Kumar Mehta v. 'Gobind Ram Bohra (1990 (1) SCC 193) and Isabella Johnson v. M.A. Susai (1991 (1) SCC 494) to canvass the position that one of the grounds mentioned in S.11 of the Rent Control Act has to be established for getting recovery of the building or eviction.All these cases referred to were cases where the tenancy was admitted or proved. The case at hand is one where a tenancy was unsuccessfully set up which was denied. It is also denied that at any point of time rent was paid. So, there is no landlord-tenant relationship between the parties and in such circumstances, it is not incumbent upon the plaintiff, who sues for recovery on the strength of title, to prove in addition to title any of the grounds for eviction available under S.11 of Act 2 of 1965. 12. In Kumaran Nair v. Mariyappan Filial (1967 KLT 1077) the question of recovery from a tenant of the mortgagee came up for consideration when the mortgagor was being redeemed and possession 'recovered. There, the mortgagee's tenant of a building contended that he is not liable to be dispossessed and he can only be dispossessed by recourse to the provisions of the Rent Control Act. That contention was repelled and this court held that: "S.11(1) contemplates only the eviction of a tenant by his landlord and has had no application where there is no relationship of landlord and tenant between the person evicting and the one sought to be evicted." 13. That contention was repelled and this court held that: "S.11(1) contemplates only the eviction of a tenant by his landlord and has had no application where there is no relationship of landlord and tenant between the person evicting and the one sought to be evicted." 13. The protection afforded from indiscriminate eviction is to the tenant and not to anybody else who is in occupation of the building. Here, the defendants have set up independent title and totally denied the landlord-tenant relationship. The courts below concurrently held that there is no rental arrangement between the parties. The suit is one based on title for possession. Even though the plaintiffs first approached the Rent Control Court for eviction on the plea of rental arrangement and in spite of the fact that the suit was instituted under the second proviso to S.11(1) of the Rent Control Act, when there is no admitted tenancy or proved tenancy the owner of the building need not prove any ground for eviction mentioned in S.11 of Act 2 of 1965 for getting recovery of the building. So the finding of the first appellate court that the plaintiff is entitled to get recovery on the strength of title irrespective of the fact that the plaintiffs have not proved any ground for eviction under S.11 of Act 2 of 1965 has only to be upheld. 14. In the written statement filed by the defendants in the suit there is a specific plea that even if the plaintiffs had title that was lost by adverse possession and limitation. According to the defendants, they came into possession of the building pursuant to an oral sale and they are continuing that possession with hostile animus against the whole world. An issue was raised on that point and the trial court, on the evidence available, has held that the defendants have not lost title by adverse possession and limitation. The first appellate court agreed with that and according to the first appellate court, the ; possession of the defendants is permissive. That court has adverted to the title in favour of the plaintiff, the payment of tax for the building and the absence of any evidence on the side of the defendants to show their adverse possession. 15. The first appellate court agreed with that and according to the first appellate court, the ; possession of the defendants is permissive. That court has adverted to the title in favour of the plaintiff, the payment of tax for the building and the absence of any evidence on the side of the defendants to show their adverse possession. 15. According to the learned counsel for the appellants, when the defendants, are admitted to be in possession from 1966 onwards, under a lease arrangement and when that lease arrangement fails, it must be presumed that the possession of the defendants was adverse and when the suit was instituted after the lapse of the statutory period, the defendants must be held to have perfected title by adverse possession and (imitation. This argument forgets the fact that DW.1 the sole witness on the side of the defendants has totally given a go-bye to the plea of adverse possession and has categorically admitted in her evidence that the possession was only permissive. She, in chief examination, says that the building was being occupied even from the time of her maternal grand mother, that her husband died some thirty years ago, that even after the death of the husband she continued to live in the building that she was permitted to 16. Koyakunhi is the predecessor in title of the plaintiffs. As against this categorical admission that the defendants were in occupation of the building with the permission of the predecessor in title of the first plaintiff and also with the permission of the first plaintiff it is idle for the learned counsel to contend title there is a case of prescription of title by adverse possession. In the circumstances, the plea of adverse possession and limitation and the resistance of recover)' of possession on that basis also cannot be sustained. The judgment and decree of the first appellate court is only to be confirmed in the light of the above discussion and findings. The second appeal fails and is dismissed, but in the circumstances, without costs.