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2003 DIGILAW 752 (KER)

Shanmugham v. Madhavan

2003-12-08

K.S.RADHAKRISHNAN, PIUS C.KURIAKOSE

body2003
Judgment :- K.S. Radhakrishnan, J. Can a sub-tenant turned landlord defeat the rights of a tenant under the Kerala Rent Act by purchasing the landlord's rights is the interesting question that has come up for consideration in this case. 2. Petition Schedule building bearing door No.37/69-2 of Cochin Corporation originally belonged to one Thottakkattu Bhanumathi Amma. She let out the building to one Madhavan who sub-leased the same to one Shanmughan for conducting a hair cutting saloon by name Indian Hair Cutting Saloon at Cannon Shed Road, Ernakulam. Petitioner before Rent Control Court the tenant sought eviction of the respondent subtenant under S.11(2)(b) and 11(3) of Act 2 of 1965. According to him rent from 1.1.1977 is defaulted and a sum of Rs.11,400/- is due as arrears of rent and an amount of Rs. 1,200/- is also due by way of interest at the rate of 6%. He also needs the building for starting a stationary business. A notice dated 2.7.84 was issued demanding arrears of rent and also for surrendering the building for own occupation. Subtenant resisted the petition denying title of the petitioner and stated that schedule building belongs to Thottakkattu Bhanumathi Amma. Further it was also stated that the tenant is only a deemed landlord and hence not entitled to seek eviction under the Act. Further it was also stated there is no arrears of rent and the need urged by the petitioneris not genuine. Subtenant also stated that his family is depending on the income obtained from the hair cutting saloon and if he is evicted he would not be able to get suitable building for the conduct of his business. 3. Rent Control Petition 114 of 1984 was originally allowed by the Rent Control Court on 31.1.1986 on both the grounds urged. Matter was taken up in appeal as RCA 70 of 1986. The order was confirmed. Subtenant respondent took up the matter before Revisional Authority and the Revisional Court remanded the matter on 16.6.1992 setting aside the finding of the Appellate Authority as well as that of the Rent Control Court. Before remand tenant was examined as PW-1. Exts.A1 and A2 documents were marked. Subtenant was examined as RW-1 and B1 to B5 were produced. After remand no further evidence was adduced by the tenant. RWs. 3 and 4 were examined on the side of the subtenant. Before remand tenant was examined as PW-1. Exts.A1 and A2 documents were marked. Subtenant was examined as RW-1 and B1 to B5 were produced. After remand no further evidence was adduced by the tenant. RWs. 3 and 4 were examined on the side of the subtenant. Rent Control Court after considering oral and documentary evidence found there is no arrears of rent. Rent Control Court however, ordered eviction under S. 11(3) of the Act holding that the need urged by the tenant is bonafide and that the subtenant is not entitled to get the benefit of second proviso to S.11(3). Subtenant was directed to put the tenant in possession. Subsequent then took up the matter in appeal as RCA 50 of 1993. Appellate Authority confirmed the findings of the Rent Control Court and dismissed the appeal, against which this revision has been preferred by the subtenant. 4. Counsel appearing for the revision petitioner sub-tenant submitted that the tenant is not entitled to get eviction since he is only a "deemed landlord" and therefore would not come within the definition of landlord under S.2(3) of Act 2 of 1965. Counsel also placed reliance on the decision of the Apex Court in Quasim v. Manoharlal Sarma & Ors., AIR 1981 SC 11 and contended that for 'the purposes of eviction under S.11(3) the landlord has to be the owner and only the owner can claim as of right and to the exclusion of everyone, the right to occupy the tenanted premises. 5. The revision petitioner subtenant has filed a petition, I.A.2271/03 before this Court to take note of the subsequent events. Along with the said petition he has produced a document No.4714 of 1996 of SRO, Ernakulam, stating that he has purchased the landlord's rights and consequently he became the full owner of the schedule premises and appurtenant land. The said fact was intimated to the tenant vide his letter dated 10.7.1997 to which the tenant replied by registered letter dated 29.7.1997 stating that he is unaware of such transaction and that the same is created with fraudulent intention to defeat his tenancy right describing that the document is a sham document. Assuming that such a document has been executed that would not take away the rights of the tenant as such under the Kerala Rent Act. Assuming that such a document has been executed that would not take away the rights of the tenant as such under the Kerala Rent Act. Counsel appearing for the tenant also submitted that the subtenant is bound to transfer possession to him on the basis of the orders passed by the Kerala Rent Court which was confirmed by the Appellate Authority since he has established the bonafide need under S.11(3). Counsel submitted assuming that the subtenant has subsequently purchased landlord's right that would not extinguish his rights under the Kerala Rent Act. 6. In order to answer the question posed in the earlier part of the. judgment it is necessary to refer some of the provisions of the Kerala Rent Act. Kerala Rent Act provided for the regulation of the letting of buildings, the prevention of unreasonable eviction of tenants from buildings and for the control of rents in respect thereof. Rent Control Act is a self contained statute and the rights and liabilities of the landlord and tenant are to be governed by its provisions and not by the provisions of the Transfer of Property Act or any other law. The expression "landlord" has been defined under S.2(3) of the Act which reads as follows: "landlord" includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administration, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant. Explanation:- "A tenant who sub-lets shall be deemed to be a landlord within the meaning of this Act in relation to the sub-tenant". S.11(16) stipulates that notwithstanding anything contained in S.11 no person who is receiving or is entitled to receive the rent of a building merely as an agent of the landlord shall, except with the previous written consent of the landlord be entitled to apply for the eviction of a tenant. S.11(16) if read along with the definitions clause would indicate that an agent of the landlord is entitled to apply for eviction of a tenant only with the previous written consent of the landlord. S.11(16) if read along with the definitions clause would indicate that an agent of the landlord is entitled to apply for eviction of a tenant only with the previous written consent of the landlord. As far as this case is concerned petitioner tenant would fall under the explanation to S.2(3) which says that a tenant who sublets shall be deemed to be a landlord within the meaning of this Act in relation to the subtenant. In other words, so far as subtenant is concerned tenant is the landlord and comes under S.2(3) of the Act. The decision cited by the counsel (supra) is on a different facts situation. That case arose under the Bihar Buildings (Lease and Rent and Eviction Control) Act where the provisions relating to eviction are not similar to those available in Act 2 of 1965. The definition clause S.2(3) takes in within its fold a subtenant also by a deeming provision. 7. S.11(1) stipulates that notwithstanding 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 the Rent Act. The expression "notwithstanding anything to the contrary contained in any other law or contract" is to be noted. A conjoint reading of the above mentioned statutory provisions with explanation to S.2(3) would show that the tenant in relation to a subtenant is the landlord and subtenant is the tenant. Further, in spite of the tenancy having come to an end under the provisions of the Transfer of Property Act or by the terms of contract, the tenant does not cease to be a tenant and continues to hold that status unless and until he is evicted under the provisions of the Rent Act. The mere fact that the subtenant has become the landlord by purchasing the landlord's rights through a sale deed the rights of the tenant qua the landlord (sub tenant) would not cease unless and until he is evicted in accordance with the provisions of the Rent Act. The expression "notwithstanding anything to the contrary contained in any other law or contract" would show even if a valid sale deed has been executed between the original landlord and subtenant that would not extinguish the rights of the tenant under the Rent Act. The expression "notwithstanding anything to the contrary contained in any other law or contract" would show even if a valid sale deed has been executed between the original landlord and subtenant that would not extinguish the rights of the tenant under the Rent Act. The above legal position is fortified by the two decisions of the Apex Court in Sandal Jain v. Avtar Singh, (1985) 2 SCC 332 and Vishnu Deo v. Balkishan, (2002) 2 SCC 50. In Sandal Jain's case was a case coming under the provisions of East Punjab Rent Restrictions Act, 1949. In that case the appellant before the Apex Court took on lease a plot of land including a shed from the original owner. During his possession of the entire demised premises as tenant, he inducted the respondent as a licensee of the suit shed for one year. After expiry of the licence period, the appellant revoked the licence and then filed a suit for mandatory injunction directing the respondent to vacate the premises. The trial Court dismissed the suit but the first appellate Court allowed the appeal and decreed the suit directing the respondent to deliver possession of the shed to the appellant. Subsequent to the decision in the first appeal the respondent purchased the entire property from the original owner. In Second Appeal before the High Court the respondent produced the sale deed as an additional evidence and contended that in view of that sale, it was not open to the appellant to contend that the respondent in whom the title to the property had come to be vested after the date of the suit, was liable to be ejected on the revocation of the licence granted to him by the appellant. The Apex Court reversing the decision of the High Court held as follows: "The respondent was a licensee, and he must be deemed to be always a licensee. It is not open to him during the subsistence of the licence or in the suit for recovery of possession of the property instituted after the revocation of the licence to set up title to the property in himself or anyone else. It is not open to him during the subsistence of the licence or in the suit for recovery of possession of the property instituted after the revocation of the licence to set up title to the property in himself or anyone else. It is his plain duty to surrender possession of the property as a licensee and seek his remedy separately in case he has acquired title to the property from the licensor or from someone else lawfully claiming under him, in which case there would be clear merger. The respondent has not surrendered possession- of the property to the appellant even after the termination of the licence and the institution of the suit. The appellant is, therefore, entitled to recover possession of the property". In Vishnu Deo's case (supra) the Apex Court was dealing with the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. In that case one Balkishan took a shop on rent from a third party trust. Later Balkishan sublet the shop to one Vasudev on a monthly rent of Rs.150/-. Vasudev fell into arrears of rent. Balkishan filed a suit for recovery of arrears of rent as well as for eviction under S.13(1)(a) of the Act. Later the principal landlord Trust filed a suit for eviction against Balkishan, the tenant for unlawful subletting. At that stage Vasudev, subtenant raised two disputes (i) that the rent being charged by Balkishan was in excess of the standard rent, and (ii) that within two days of the eviction suit being filed by the Trust, he had entered into a direct tenancy agreement with it and that with effect from that date the respondent had no further right to recover rent and to seek his eviction. After referring to various provisions of the Act the Apex Court held as follows: "We have already stated that the respondent's tenancy in the suit premises will not come to an end unless and until a decree for eviction on one of the grounds available under the Rajasthan Act has been passed against him and termination of his tenancy upheld by a judicial verdict. Till then he would remain a tenant of the Trust. Mere institution of a suit for eviction by the Trust, the owner of the property, against the respondent does not bring the tenancy of the respondent to an end. Till then he would remain a tenant of the Trust. Mere institution of a suit for eviction by the Trust, the owner of the property, against the respondent does not bring the tenancy of the respondent to an end. The respondent cannot be said to have been evicted by title paramour. It cannot be said that the respondent-tenant does not have any defence nor can be lawfully resist the suit filed by the owner Trust. The plain and simple legal position which flows is that the appellant must discharge his statutory obligation to put his landlord, that is, the respondent in possession of the premises in view of the latter's entitlement to hold the tenancy premises until his own right comes to an end and the respondent must discharge his statutory obligation to put his own landlord, that is, the Trust, in possession of the tenancy premises on his entitlement to hold the tenancy premises coming to an end". Counsel appearing for the revision petitioner subtenant placing reliance on the decision of the Apex Court in Nalakath Sainuddin v. Koorikadan Sulaiman, 2002 (2) KLJ 382 contended that since the subtenant had purchased the entire property from the original owner the subtenancy stood terminated by principle of merger and he became the owner of the entire premises. Omne Majus Continent in Se Minus (the greater contains the less) and In Presentia Majoris Cessat Potentia Minous (In presence of the greater the power of the inferior ceases) are well known maxims. The expression "merger" at law, is defined to be where a greater estate and a less coincide and meet in one and the same person, in one and the same right, without any intermediate estate, the less estate is immediately annihilated, or, in the law phrase, is said to be merged, that is, sunk or drowned- in the greater. There is no quarrel regarding those propositions. In fact clause (d) of S.111 of Transfer of Property Act says a lease of immovable property determines in case the interest of the lessee and the lessor in the whole of the property vested at the same time in one person when a leasehold and a reversion coincide there is a merger of lesser estate on the greater. In fact clause (d) of S.111 of Transfer of Property Act says a lease of immovable property determines in case the interest of the lessee and the lessor in the whole of the property vested at the same time in one person when a leasehold and a reversion coincide there is a merger of lesser estate on the greater. But the question is whether the mere purchase of the landlord's rights by subtenant the rights of the tenant qua his original landlord or sublessee turned landlord would stand extinguished de hors the provisions of the Rent Control Act. In our view it will not. Apex Court in Vasudev's case after referring to earlier decision of the Apex Court in D.Satyanarayana v. P.Jagadish, (1987) 4 SCC 424 held as follows: "In the case before us the plea of eviction by paramour title is not available to the appellant for three reasons: firstly, it cannot be said that the Trust is armed with a legal process for eviction which cannot be lawfully resisted by the respondent-tenant or to which he has no defence; favour of the Trust voluntary and not under compulsion; and thirdly, it cannot be said that the Trust has such good and present title against the respondent-tenant so as to hold the appellant liable to be evicted against his will. As already stated, and even at the risk of repetition, it has to be emphasised that, in view of the respondent-tenant's relationship with the Trust being one governed by the provisions of the rent control law, his title as tenant (and hence as landlord as against the appellant sub-tenant) will not come to an end unless and until the suit for eviction filed by the Trust against the respondent is decreed and the decree has achieved finality." The mere fact that subtenant had purchased the landlord's right and became the landlord qua the tenant will not extinguish the rights of the tenant under the Rent Control Act and the tenant continue to be a statutory tenant. If the tenant is armed with an order of Rent Control Court as against the subtenant he is entitled to get that order executed since the tenant is the landlord as per explanation to S.2(3) of the Act and the landlord and tenant relationship exists between them, so also the rights and obligations under the Rent Control Act and cannot be extinguished, otherwise than the provisions of the Rent Control Act, a tenant for that matter a sub-tenant is estopped from denying the title of his landlord. Consequently unless and until he is evicted by the present owner sublessee through provisions of Rent Control Act he is deemed to be the landlord vis-a-vis the sub-tenant under the Rent Act. We are also in agreement with the Rent Control Court and Appellate Authority that the need urged by the respondent is genuine and bonafide. There is nothing to show that he has any other avocation. Sublessee is also not entitled to get the benefit of second proviso under S.11(3). We find no illegality, irregularity or impropriety in the order passed by the Rent Control Court and Appellate Authority to be interfered in our revisional jurisdiction. 8. Revision lacks merits and the same is dismissed. However, in the facts and circumstances of the case we are inclined to give time upto 31.1.2004 to the subtenant to vacate the premises provided he files an undertaking before Rent Control Court within one month that he would vacate the premises within the aforesaid time and that he would pay arrears of rent if any and also future rent. This order however would not prejudice the sub-tenant to mo.ve the Rent Control Court for an order of eviction as against the tenant in accordance with law.