Sathianesan Punnose v. Robertson Titus — 1993 DIGILAW 400 (KER)

Judgment :- K.J. Joseph,J. This revision is against the judgment of the Rent Control Appellate Authority, Thiruvanathapuram in R.C.A. No. 4 of 1990 filed against the order of eviction passed by the Rent Control Court, Thiruvananthapuram in R.C.P.No.58 of 1981 under S.11 (2)(b) and 11 (4)(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965. 2. Before the Rent Controller. P.W.1 claims to be the owner of the (enanted premises under Ex(.A2 family partition deed dated 19-6-1975 executed between himself and his brother. PW2. Originally. the tenanted premises belonged to PW2 and others. The revision petitioner executed Ext.B9 patta kachit dated 7-12-1957 in favour ofPW2 wherein 5 cents of land specifically slated therein with the fencing and the gate were leased out to the revision petitioner on a monthly rent of Rs.12/- for conducting a timber business. Permission also was given to the revision petitioner to construct temporary sheds for the purpose of his timber business with an undertaking to remove the same at the time of surrender of the property on demand. Thereafter. it is a case of PWs.1 and 2 that the above lease agreement had been terminated on 16-9-1961 as is seen in the endorsement on Ext.B9 itself and Ext.A1 rent deed was executed by the revision petitioner in favour of PW2 on that date itself vi/. 16-9-1961. wherein the building and the land were given on lease to the revision petitioner for a monthly rent of Rs.25/-. But the revision petitioner has defaulted the rent from January. 1974 onwards. It is also the case of PW1 that the building is very old and in a dilapidated condition and he bona fide requires reconstruction of the said building and according to him. he has the ability to reconstruct the building in accordance with Ext.A5 plan and Ext. A7 building permit. As staled earlier. PW1 claims to be the owner of the tenanted premises on the strength of Exl.A2 partition deed and hence he filed a petition for eviction of the revision petitioner on the ground of arrears of rent under S.11(2)(b) of the Kerala Buildings (Lease & Rent Control) Act. 1965 and on the ground of reconstruction of the building under S.11(4) (iv) of the Act. 3. But. according to the revision petitioner. he is not a building tenant and there is no landlord-tenant relationship between himself and PW1. 1965 and on the ground of reconstruction of the building under S.11(4) (iv) of the Act. 3. But. according to the revision petitioner. he is not a building tenant and there is no landlord-tenant relationship between himself and PW1. The lease arrangement under Ext.B9 dated 7-12-1957 is still continuing and only land alone was leased out to him by PW2, the brother of the present landlord for commercial purpose and hence he is entitled to gel the benefit of S.106 of the Kerala Land Reforms Act. He also stated that there is no arrears of rent and the building did not bona fide require any reconstruction and the petition is filed only as a ruse to evict the revision petitioner from the tenanted premises. 4. Evidence was let in before the Rent Control Court wherein both oral and documentary evidence were adduced. Since the title of the landlord is disputed. the matter was referred to the Land Tribunal. Thiruvananthapuram to decide the claim of tenancy raised by the tenant and the claim of the tenant under S.106 of the Kerala Land Reforms Act. Before the Land Tribunal. Thiruvananthapuram, the case was numbered as O.A.No.51 of 1982 and the tenant was examined as PW1 who gave the evidence regarding the nature of the lease as well as the construction of the two sheds by him on the land. On the basis of the evidence adduced before the Land Tribunal. the Tribunal found that the tenant is not entitled to claim the benefit under S.106 of the Kerala Land Reforms Act. 5. Thereafter. evidence was adduced before the Rent Control Court. PW2, the former land owner also gave evidence corroborating the evidence of PW1, the present landlord. The tenant was examined as DW1 and both sides relied on a commission report obtained in O.S.No.1352 of 1978 between parties. After considering the entire evidence. Rent Controller ordered eviction under S.11(2) and 11(4)(iv) of the Act finding that the rent is in arrears and the building is very old and is in a dilapidated condition. The Rent Controller also found that the building situates in a commercial area of considerable importance and if the building is re-constructed ,landlord can use it very profitably. On the above evidence. the Rent Controller found that the landlord is entitled for eviction on the ground of construction also. 6. The Rent Controller also found that the building situates in a commercial area of considerable importance and if the building is re-constructed ,landlord can use it very profitably. On the above evidence. the Rent Controller found that the landlord is entitled for eviction on the ground of construction also. 6. The tenant had filed an appeal before the Appellate Authority as R.C.A.No.4/ 90.The appellate authority also found that the revision petitioner is a building tenant and the denial of the title of the landlord is without any bona fides. The claim of the tenant for protection under S.106 of the Kerala Land Reforms Act also was elaborately considered by the Appellate Authority and accepted the findings of the Rent Controller that tenant is not entitled to get protection under S.106 of the Kerala Land Reforms Act. The Appellate Authority also found that there is arrears of rent and the building requires reconstruction and hence confirmed the order of eviction passed by the Rent Controller. This revision is filed against the order passed by the Rent Control Appellate Authority. 7. The learned counsel appearing on behalf of revision petitioner has reiterated of the above contentions before us also and strenuously argued that the tenant is entitled to gel the protection under S.106 of the Kerala Land Reforms Act. According to the learned counsel. only land alone was given to him under Ext.B9 Pala kachit and the buildings were constructed by him in the leased premises for conducting a commercial activity. vi/.. timber business. The learned counsel also urged that even though there is an endorsement in Ext.B9 on 16-9-1961 terminating the above lease arrangement. as a matter of fact. there was no such termination. The learned counsel further argued that even if the original lease arrangement had been cancelled and Ext.A1 rent deed was executed on 16-9-196.1. the tenant is entitled to gel the benefit under S.106 of the Kerala Land Reforms Act as amended by Act 17 of 1972. He has also argued before us that the - tenant is entitled to get the benefit under 5.106(2) of the Kerala Land Reforms Act also and hence prayed for setting aside the order of eviction passed against the tenant by the statutory authorities under the provisions of the Kerala Buildings (Lease & Rent Control) Act. He has also questioned the correctness of the findings arrived at by the Rent Control Authorities. He has also questioned the correctness of the findings arrived at by the Rent Control Authorities. 8. The execution of Ext.B9 pala kachit is admitted by the revision petitioner/ tenant. He has also admitted the endorsement dated .16-9-1961 on Ext.B9 terminating the said lease arrangement. He has also admitted in his evidence before the Land Tribunal in O. A.No.51/82 referred to above that. the date of termination noted in Ext.B9 had been altered by him from 16-9-1961 to 16-9-1964. He has admitted the execution of Ext.A1 rent deed also is on 16-9-1961. Exl.A1 shows that the rental arrangement is in respect of the building and the land and not confined to the land alone. Based on the finding of the Land Tribunal. both the statutory authorities found that the revision petitioner is not entitled to gel the benefit under S.106 of the Kerala Land Reforms Act and on examining the question in detail. we see no reason or grounds to disagree with the said finding arrived at by both the statutory authorities. - 9. The benefit under s.106 of the Kerala Land Reforms Act as it stood before the amendment to the said section by Act 17 of 1972. is available to lessee only in case where on any land leased for commercial or industrial purpose. the lessee has constructed the buildings for such commercial or industrial purpose before 18th December. 1957. This Section has been amended on 2-11-1972 by Act 17 of 1972 subsequent to Ext.B9 lease. Therefore. the amendment to the above section has no application to consider the question whether the lessee is entitled to get the protection on the basis of the lease deed executed on 7-12-1957 evidenced by Exl.B9. 10. As stated earlier. the question of tenancy raised by the revision petitioner has been referred to the Land Tribunal. Thiruvananthapuram and the same is tried as O.A.No.51/1982 by the said Tribunal. The proceedings of the Tribunal is available in the records. In the above proceedings. the revision petitioner is examined as PW1 and he has clearly staled in his evidence before the Land Tribunal that he had executed Ext.B9 patta kachit on 7-12-1957 in favour of PW2 and in the land covered in Ext.B9, he had constructed two sheds. He has specifically admitted in his evidence in the chief examination itself. that those sheds were constructed in the year 1958. He has specifically admitted in his evidence in the chief examination itself. that those sheds were constructed in the year 1958. He has further stated that the Thirumala Panchayat had numbered only one shed as T.P.No.441 and thereafter. the Corporation of Thiruvananthapuram changed that number as T.C. 18/ 159. He has also staled that the rent deed dated 16-9-1961 executed by him in favour of PW2 is in respect of the buildings as well as for the land. Again the tenant was examined as DW1 in the Rent Control Petition before the Rent Controller. In his deposition before the Rent Control Court also he has specifically slated that he had completed the construction of the building in the year 1958. These facts would prove that the tenant had constructed the building in the land only in the year 1958 and not before the date specified under S.106 of the Kerala Land Reforms Act viz.18th December. 1957 as it stood before the amendment. The lessee who had constructed the building prior to 18th December 19-57 alone is entitled to gel the benefit under S.106 of the Kerala Land Reforms Act. Admittedly. the lessee had constructed the buildings only in the year 1958. As staled earlier S.106 of the Kerala Land Reforms Act is amended by Act 17 of 1972 which came into force only on 2-11-1972. Under the amended provision. if the lessee had constructed buildings for such industrial or commercial purpose before 20th May. 1967. he shall not be liable to be evicted from such land. But far before the above amendment has come into force. the lessee had surrendered his leasehold interest in the property as early as on 16-9-1961 as evidenced by the endorsement on Ext.B9 itself. The above endorsement is admitted by the tenant before the Land Tribunal as ell as before the Rent Control Court. The tenant had also admitted the execution of Ext. A1 rent deed on the same date viz. 16-9-1961 wherein the land and the buildings are rented out to the tenant on rental basis. This fact also has been admitted by the tenant in his evidence wherein he has staled as per Ex. A1. both the building and land were leased to him and not the land alone. In the light of the clear and unambiguous statements made by the tenant. This fact also has been admitted by the tenant in his evidence wherein he has staled as per Ex. A1. both the building and land were leased to him and not the land alone. In the light of the clear and unambiguous statements made by the tenant. both before the Land Tribunal as well as before the Rent Control Court. it is clear that what has been leased out to the tenant under Ext.A1 is the building and the land and not the land alone as wrongly contended by the tenant. Since a new tenancy is created on the strength of Ex. A1 rent deed. the tenant is not entitled to get the benefit of the amended provision of S.106 of the Kerala Land Reforms Act as per Act 17 of 1972. Therefore. the finding of the statutory authorities that the tenant is not entitled to get the benefit under S.106 of the Kerala Land Reforms Act is perfectly correct and does not call for any interference by this court in exercise of its revisional powers under S.20 of the Kerala Buildings (Lease & Rent Control) Act. 1965. 11. The next contention advanced by the revision petitioner that the tenant is entitled to gel the protection under S.106(2) of the Kerala Land Reforms Act also is devoid of. any merit. 5.106(2) of the Kerala Land Reforms Act gives a right for restoration of possession to a person who was dispossessed in execution of a decree or order passed by a court. Admittedly. there is no decree or order passed by any Court against the leant in this case and he was not dispossessed in execution of any such decree. ft is also pertinent to note that on the dale of surrender viz. 16-9-1961. he had cuckold Ex.l. A1 fresh rent deed in favour of the landlord. Therefore. there is no merit on the contentions raised by the learned counsel on behalf of the revision petitioner based on the provisions contained in S.106(2) of the Kerala Land Reforms Act. In the light of the evidence on record in the case. the principles laid down in the decisions cited by the learned counsel for the revision petition in Murlidhar v. State of t/.P.(AIR 1974 SC 1924). Roshan Lal v. Madan Lal (AIR 1975 SC 2130). Nai Babu v. Lala Ramnarayan (AIR 1978 SC 22). Gopinathan Nair v. Madhavan (ILR 1984 (1) 465). the principles laid down in the decisions cited by the learned counsel for the revision petition in Murlidhar v. State of t/.P.(AIR 1974 SC 1924). Roshan Lal v. Madan Lal (AIR 1975 SC 2130). Nai Babu v. Lala Ramnarayan (AIR 1978 SC 22). Gopinathan Nair v. Madhavan (ILR 1984 (1) 465). Subbayya Chelliyar v. Ayyappatt Filial (1989 (1) KLT 917) and P. Abdul Rahiman v. M.B. Abdulla Haji & others (1991 (1) KLJ 651) have no application on the facts and circumstances proved in the case. 11. Regarding the grounds on which the eviction was ordered by the statutory authorities. learned counsel for the revision petitioner did not advance any serious arguments before us. Both the statutory authorities found that the landlord has proved the grounds for eviction under S.11(2)(b) and S.11 (4)(iv) of the Act. Both sides relied on Ext. A4 commission report obtained in O.S.No.1352 of 1978 to prove their respective contentions. This report was produced before the Land Tribunal by the tenant himself. From the oral evidence of P.Ws.1 and 2 and Ext.A4 commission report. it is seen that the building is very old and is in a dilapidated condition. Both the fact finding authorities also found that the building is situated in a commercial area of considerable importance in the city of Thiruvananthapuram and if the building is reconstructed. the landlord can use it very profitably. They also found that the landlord has the ability to reconstruct the said building and is having the necessary plan and permit to make such a construction as required under S.11(4)(iv) of the Act. There is no illegality or irregularity or impropriety in the order of eviction passed by the statutory authorities and there is absolutely no legal or valid ground to exercise the revisional jurisdiction of this court under S.20 of the Kerala Buildings (Lease & Rent Control) Act in this case. We are also justified in coming to the above conclusion in the light of the recent pronouncement of the Supreme Court in the decision reported in Rukmini Amtna Saradamma v. Kalyani Suiochana and others (AIR 1993 SC 1616) wherein the scope of S.20 of the Kerala Buildings (Lease & Rent Control) Act. 1965 has been laid down by the Supreme Court. 12. Before parting with this case. 1965 has been laid down by the Supreme Court. 12. Before parting with this case. we would like to point out that it has come out in evidence that the tenant/revision petitioner has corrected the date of surrender of the original lease and the endorsement made on Ext.B9 Pattakachit from 1961 to 16-9-1964 and the tenant himself has produced the same before the Rent Control Court. obviously to get the benefit of the amended provision of S.106 of the Kerala Land Reforms Act. He has admitted this correction in his evidence given before the Land Tribunal in O.A.No.51/1982 referred to earlier. Production and using of such a false or fabricated document in a judicial proceeding before a court of law and praying for adjudication of the rights of the parties on the basis of such a document. prima facie. attracts the provisions contained in the Indian Penal Code. Learned counsel appearing for the revision petitioner has submitted before us that the said correction and production of such a document in the court is without any malafide intention and the revision petitioner is an old man of 80 years of age and hence this court should take a very lenient view in the matter. We are not at all satisfied with the explanation offered by the learned counsel appearing on behalf of the revision petitioner. But taking into consideration of the age revision petitioner we feel it is not expedient in the interest of justice to proceed against him in the matter at this distance of time except to State that the revision petitioner/ tenant is not entitled to any benefits in any proceedings on the basis or the above corrected date. Civil Revision Petition is devoid of any merit and the same is dismissed with costs to the respondent. We fix the advocate fee at Rs.1.500/-.