Mariyappanassari v. Amaravathy Ammal — 1994 DIGILAW 474 (KER)

JUDGMENT P. K. Balasubramanyan, J. 1. The defendant in a suit for recovery of a building with arrears of rent is the appellant in this Second Appeal. The plaintiff - respondent purchased the plaint schedule building and the shed attached to it under Ext. A1 dt. 12-7- 1971. At the time of the said purchase the defendant was already in occupation of the building and the shed as a tenant. According to the plaintiff on 12-10-1971 the defendant agreed to pay rent at the rate of Rs.24/- per month. Alleging that subsequent to 31-3-1972 the defendant has kept the rent in arrears and that the building requires reconstruction a notice was sent by the plaintiff to the defendant calling upon him to surrender. The defendant sent a reply denying the rental arrangement set up by the plaintiff. In short the defendant denied the tenancy set up by the plaintiff. The plaintiff therefore filed the present suit for declaration of his title and possession over the plaint schedule property and for recovery of the building and the shed situated therein with arrears of rent on the strength of the letting and in the alternative on the strength of title. The defendant resisted the suit contending that the suit is not maintainable, that the plaintiff has no title to the suit property, that there is no relationship of landlord and tenant between the plaintiff and the defendant in respect of the building and the shed, that the defendant has a kudiyiruppu right over the property protected by the Land Reforms Act, that the suit could not be entertained by the civil court since the building in question is one coming within the purview of the Kerala buildings (Lease and Rent Control) Act, hereinafter called the Rent Control Act, that the description of the plaint schedule building is misleading, that the defendant had never paid any rent to the plaintiff, that the plaintiff had not obtained title over the building, that the sale deed relied upon by the plaintiff in so far as it relates to the building and the shed in the occupation of the defendant was void, that the defendant was not liable to be evicted. 2. The Trial Court referred the issue of kudiyiruppu and kudikidappu to the Land Tribunal under S.125(3) of the Kerala Land Reforms Act. 2. The Trial Court referred the issue of kudiyiruppu and kudikidappu to the Land Tribunal under S.125(3) of the Kerala Land Reforms Act. The land Tribunal returned a finding to the effect that the defendant was not the holder of a kudiyiruppu and hence was not entitled to fixity of tenure under the Kerala Land Reforms Act. It also found that the defendant was not a kudikidappukaran. The Trial Court accepted those findings. On a consideration of the relevant materials, the Trial Court held that the plaintiff has title to the plaint schedule property, that the tenancy set up by the plaintiff has not been proved, that there was no bar of jurisdiction in the civil court to grant a decree to the plaintiff on his title but the actual recovery alone ought to be under the provisions of the Rent Control Act, that the plaintiff was entitled to compensation for use and occupation, that since the shed was not specifically scheduled to the plaint, the plaintiff was not entitled to any relief in respect of that shed and that the plaintiff is entitled to a decree on the following terms : -- "The plaintiff's title over the plaint schedule building M.C. 122 is hereby declared. The plaintiff is allowed to recover plaint schedule building M.C. 122 from the defendant subject to the provisions of the Kerala Buildings (Lease and Rent Control) Act. The plaintiff is allowed to recover Rs. 252/- as damages till date of suit and future damages at the rate of 84/- per year from the defendant". The plaintiff and the defendant both went up in appeal. The defendant challenging the decree on title granted to the plaintiff and the plaintiff challenging the denial of the decree in respect of the shed. The lower appellate court found that the Land Tribunal was right in holding that the defendant was not entitled V to fixity of tenure or to rights as a kudikidappukaran under the Kerala Land Reforms Act, that the Trial Court was right in holding that the plaintiff had title to the building and the shed, that the defendant was in permissive occupation of the building, that the plaintiff had obtained title to the property under Ext. A1 and that the Trial Court was right in granting a decree to the plaintiff for recovery of possession on the strength of the plaintiffs title. A1 and that the Trial Court was right in granting a decree to the plaintiff for recovery of possession on the strength of the plaintiffs title. It also held that the plaintiff was entitled to a decree regarding the shed as well and consequently modified the decree of the Trial Court by granting the plaintiff in addition to the decree already granted by the Trial Court a decree for recovery of the shed. It is this decree that is challenged before me by the defendant. 3. Though it is contended before me that the finding of the Land Tribunal as affirmed by the lower appellate court that the defendant is not entitled to protection under the Kerala Land Reforms Act, is not correct, I am not satisfied that any grounds are made out to interfere with the finding now rendered. The Land Tribunal has considered the relevant materials to come to the conclusion that the defendant has not established any entrustment of land to him but that he had gone into possession of the building and the shed under the original owner Raman Pillai. This finding is supported by the evidence on record and this finding has been rightly affirmed by the lower appellate court. On the materials available I am satisfied that the said finding is correct and calls for no interference in this Second Appeal. The finding of the Land Tribunal and the lower appellate court that the defendant is not a kudikidappukaran is also equally correct. In fact there was no attempt to even challenge that finding before me. 4. The further contention that the finding by the courts below that the plaintiff has not established his title over the plaint schedule property including the building and the shed is not sustainable on the materials in the case, cannot also be accepted. The title to the property, the building and the shed originally vested with Raman Pillai. The defendant's case is also that he went into possession under Raman Pillai. The plaintiff has obtained the rights that Raman Pillai had under Ext. A1. Thus the title to the property including the building and the shed stood transferred to the plaintiff. The finding on title rendered by the courts below therefore is correct and does not call for any interference. 5. The plaintiff has obtained the rights that Raman Pillai had under Ext. A1. Thus the title to the property including the building and the shed stood transferred to the plaintiff. The finding on title rendered by the courts below therefore is correct and does not call for any interference. 5. The main question argued by the learned counsel for the appellant defendant is that the plaintiff having come to court on a plea that the defendant was a tenant of the building and the courts having found that the building is situate in an area to which the Rent Control Act is extended, there is no jurisdiction in the civil court to entertain the suit or to grant a decree to the plaintiff declaring his title and finding his entitlement to recover on the strength of that title. It is argued that unless the plaintiff approaches the Rent Control Court and gets an order in terms of the proviso to S.11(1) of the Act, he could not maintain a suit in the civil court on the strength of his title. The decision reported in East India Corporation Ltd. v. Shree Meenakshi Mills Ltd. ( 1991 (3) SCC 230 ) is relied on in support of this contention. 6. In East India Corporation's case, the owner of a building had filed a suit for recovery of possession of the building with arrears of rent against the East India Corporation. The rent was Rs. 900/- per month and as a result of S.30(ii) of the Tamilnadu Buildings (Lease and Rent Control) Act the building did not come within the purview of that Act, the monthly rent having exceeded Rs. 400/-. It is in that context that the owner of the building filed the suit for recovery of possession after terminating the tenancy. The defendant denied the existence of the relationship of landlord and tenant between the parties and raised the contention that the defendant was a cosharer or coowner with the plaintiff. All the courts upto the High Court found that the defendant was a tenant of the building under the plaintiff and the plaintiff was entitled to recover possession of the building in the suit along with arrears of rent. The defendant had filed appeal before the Supreme Court challenging the decree. All the courts upto the High Court found that the defendant was a tenant of the building under the plaintiff and the plaintiff was entitled to recover possession of the building in the suit along with arrears of rent. The defendant had filed appeal before the Supreme Court challenging the decree. Meanwhile the Supreme Court had struck down S.30(ii) in the decision reported in Rathan Ariya v. State of Tamilnadu ( 1986 (3) SCC 385 ) as being violative of Art.14 of the Constitution of India. The result was that the building in question also came within the purview of the Tamilnadu Rent Control Act. In the appeal before the Supreme Court it appears to have been argued that in view of the invalidating of S.30(ii) of the Act the suit by the plaintiff for eviction of the defendant on the ground that the defendant was a tenant who had questioned the title of the landlord and had defaulted payment of rent cannot be maintained at the first instance without having recourse to the authorities constituted by the Rent Control Act. Referring to the second proviso to S.10(1) of the Tamilnadu Rent Control Act, which is more or less on identical terms with the second proviso to S.11(1) of the Kerala Rent Control Act and on a construction of S.10(1) of the Act the Supreme Court held that a suit by the landlord for eviction of a tenant in the civil court was impliedly barred especially in view of the fact that the Rent Control Act was a self contained Code. The Supreme Court observed that the jurisdiction of the civil court can be invoked only where the Rent Controller comes to a decision and records a finding that the denial or claim by the tenant as referred to in the second proviso to S.11(1) of the Act is bona fide. According to the learned counsel for the appellant since S.11(1) of the Kerala Rent Control Act is also more or less identical with S.10(1) of the Tamilnadu Act, the present suit must also be held to be not maintainable unless and until the plaintiff had first approached the Rent Control Court and the Rent Control Court had recorded a finding that the denial of title of the plaintiff by the defendant was bona fide. 7. 7. It is to be noticed that this court has taken the consistent view right from the decision reported in Kajaria and Company v. Vimalabhai ( 1967 KLT 575 ) followed by the decision reported in Vidyadharan v. Narayana Pillai ( 1973 KLT 203 ) and various other decisions that the jurisdiction of the civil court to pass a decree is not barred either expressly or by necessary implication by S.11(1) of the Rent Control Act. But this court struck a different note in the decision reported in Narayanan v. Ratnamma ( 1987 (2) KLT 473 ) without reference to the earlier decisions of this court taking the view that a decree cannot be made for eviction of a tenant after the coming into force of the Rent Control Act otherwise than as provided in that Act. This court further observed that the non obstante clause in S.11 of the Act prohibits; not only the execution of a final decree made on the grounds not permitted under the Act but also the passing of such a decree. But a Division bench of this Court in the decision reported in Gowrikutty Amma v. Kesavan ( 1988 (1) KLT 649 ) overruled the above decision and held that S.11(1) of the Act does not oust the jurisdiction of the civil court to pass a decree for eviction. The only prohibition is that such a decree could be executed only in accordance with the provisions of the Act. The Division bench noticed that even in the year 1988 the Rent Control Act had not been made applicable to the entire State and if the Act were to be repealed the decree could be executed. The Division bench referred to the earlier decisions on that question and confirmed the view taken in Kajaria's case. The contention of the learned counsel for the appellant is that the Division bench decision referred to above cannot be said to be laying down the correct law in the light of the decision in East India Corporation Ltd. case. 8. Before proceeding to discuss that question it is necessary to consider the scope of the present suit. The property on which the building and the shed stood and the building and the shed originally belonged to one Raman Pillai. Raman Pillai put the defendant in possession of the building and the shed as a tenant. 8. Before proceeding to discuss that question it is necessary to consider the scope of the present suit. The property on which the building and the shed stood and the building and the shed originally belonged to one Raman Pillai. Raman Pillai put the defendant in possession of the building and the shed as a tenant. When Raman Pillai died the property devolved on his legal representatives. The legal representatives of Raman Pillai divided the properties left behind by Raman Pillai under document No. 503 of 1970. 9.3 cents of land with the structures standing thereon was allotted to one Raghavan Pillai and Sivasankaran Pillai. The rights of Sivasankaran Pillai were transferred to one Vasanthalakshmi Amma. Subsequently Raghavan Pillai and Vasanthalakshmi Amma together transferred the 9.3 cents of land with the buildings thereon including the building and the shed in the possession of the defendant to the plaintiff under Ext. A1 sale deed. On acquisition of this title the plaintiff issued a notice to the defendant stating that subsequent to the purchase by the plaintiff of the rights over the property, the defendant had taken the building and the shed on rent, that he had not paid the rent and that therefore the tenancy was being terminated and the plaintiff was entitled to recover possession of the building and the shed. A reply Ext. A3 was sent oh behalf of the plaintiff over the plaint schedule property and contending that the building and the shed were constructed by the defendant and belonged to him, that he was a kudikidappukaran and that the plaintiff had no right to recover possession of the property. It is in the context of this reply notice that the plaintiff filed the suit O. S. 641 of 1977 not only for recovery of the building and the shed with arrears of rent but also for a declaration of his title and possession over the entire property covered by the assignment deed Ext. A1 in his favour. The entire property acquired under Ext. A1 was scheduled to the plaint. It is in that suit that the defendant questioned the title of the plaintiff over the property included in Ext. A1 and raised a contention that he is a kudiyiruppukaran entitled to fixity of tenure there by implying that he was a lessee of the land and alternatively that he is a kudikidappukaran. A1 was scheduled to the plaint. It is in that suit that the defendant questioned the title of the plaintiff over the property included in Ext. A1 and raised a contention that he is a kudiyiruppukaran entitled to fixity of tenure there by implying that he was a lessee of the land and alternatively that he is a kudikidappukaran. Obviously a suit for declaration of title to the property purchased under Ext. A1 in so far as it takes in the right conveyed thereunder cannot be entertained by the Rent Control Court. When the title under the purchase Ext. A1 is denied by the defendant, the assignee can only get his title established in a civil court. In my view S.11(1) of the Rent Control Act by no stretch of imagination can be said to bar such a suit. The property purchased under Ext. A1 excluding the building and the shed could not be recovered possession of by the plaintiff by approaching the concerned Rent Control Court. In my view therefore the maintainability of the present suit cannot in any way be affected by S.11(1) of the Rent Control Act in so far as it relates to the relief of declaration of title and possession of the properties comprised in Ext. A1 assignment deed. 9. There is also another aspect. In the suit the defendant raised a contention that he is a kudikidappukaran. A reference to the definition of a tenant in S.2(6) of the Rent Control Act shows that a tenant does not include a kudikidappukaran. In such a situation it cannot be postulated even before the said issue is adjudicated by a competent Land Tribunal in terms of S.125 of the Kerala Land Reforms Act that the Rent Control Act would be applicable to a particular building. No doubt by virtue of S.125(8) of the Kerala Land Reforms Act even if such a question arises before a Rent Control Court the same can also be referred to the Land Tribunal. But that does not mean that a civil court cannot in a properly constituted suit direct the adjudication of that question by resorting to S.125(3) of the Kerala Land Reforms Act. Only if it is found that the defendant is not a kudikidappukaran the question of applicability of the Rent Control Act would arise. But that does not mean that a civil court cannot in a properly constituted suit direct the adjudication of that question by resorting to S.125(3) of the Kerala Land Reforms Act. Only if it is found that the defendant is not a kudikidappukaran the question of applicability of the Rent Control Act would arise. In other words only if the plea of kudikidappu is found against could the defendant be said to be a tenant within the meaning of the Rent Control Act. In such a situation also it cannot be said that there is an implied bar in S.11(1) of the Rent Control Act to the maintainability of a suit like the present one. There is no case that there is an express bar of the jurisdiction of the civil court under S.11(1) of the Rent Control Act. 10. A reference to the decision of this court in Ibrayan v. Balan ( 1985 KLT 896 ) would show that the bar under S.11(1) is attracted only in a case where the subject matter of the suit is a building as defined in the Rent Control Act and not in a case where title to the land and a claim of fixity under the Kerala Land Reforms Act are involved. If in a given case the claim is only as regards a building on the basis that the same had been let out to a tenant and the Rent Control Act applies to the area in question, the ratio of the decision in East India Corporation Ltd. and that in Ibrayan's case would be attracted. 11. As noticed by me in the case on hand the plaintiff has sued for declaration of his title and possession over the properties acquired by him under Ext. A1. In addition he also has sought recovery of possession of the building and the shed on the ground that they are the subject matter of a letting in favour of the defendant and on the alternate ground of his title to the said building and the shed. The courts below have now found that the plaintiff has acquired valid title to the property covered by Ext. A1 and was in possession of the same except as regards the building (really a part of the building) and the shed lying, to its rear. The courts below have now found that the plaintiff has acquired valid title to the property covered by Ext. A1 and was in possession of the same except as regards the building (really a part of the building) and the shed lying, to its rear. Taking note of the relevant pleadings in that behalf the courts below have held that for recovery of the building and the shed in the possession of the defendant the plaintiff has to approach the Rent Control Court. This in my view is consistent with the requirements of S.11(1) of the Act. What has now been found is that though the plaintiff has title to the property including the building and the shed, no decree for recovery of possession of the building and the shed could be granted to the plaintiff and he has to seek his remedy in regard to the building and the shed by approaching the concerned authority under the Rent Control Act. In the light of my finding earlier that the principle of the decision in East India Corporation's case and Ibrayan's case cannot have application to a suit which involves title to land as well, I find that there is no substance in the challenge raised by counsel for the appellant that the suit before the civil court is impliedly barred. I have therefore no hesitation in overruling the contention raised by the appellant. In the result, I confirm the judgement and decree of the lower appellate court and dismiss this Second Appeal without costs.