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2012 DIGILAW 943 (KER)

B. M. Subraya Hegde v. Nalini Shenoy

2012-10-16

K.T.SANKARAN, M.L.JOSEPH FRANCIS

body2012
JUDGMENT K.T. Sankaran, J. 1. The respondent filed R.C.P.No.44 of 1989 on the file of the Rent Control Court, Kasaragod against the petitioners under Sections 11(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act. The Rent Control Court dismissed the R.C.P. by the order dated 23.10.2003. The landlord filed R.C.A.No.4 of 2004 on the file of the Rent Control Appellate Authority. The appeal was allowed as per the judgment dated 10.1.2011. The tenants filed R.C.R.No.126 of 2011 before the High Court. In the Rent Control Revision, the tenants raised a contention that the landlord had lands in excess of the ceiling limits under the Kerala Land Reforms Act and that she had surrendered the land in question to the Government. It was contended that the landlord has thus ceased to have any right, title or interest in the land and the building. The revisional court considered the said contention in R.C.R.No.126 of 2011 and it was held thus : "4. Sri. Kodoth Sreedharan, learned counsel appearing for the revision petitioner, contended that the land wherein the tenanted building is situated was subject matter of a ceiling case initiated against the landlord under the provisions of the Kerala Land Reforms Act and thWat the land in question along with the building was taken over by the state Government as excess land. Therefore, it is contended that the legal heirs of the original landlord ceased to have any interest in the land and on the building. Reference was made in this regard to a proceeding of the Taluk Land Board. But Sri.V.V.Ashokan, learned counsel appearing for the respondents/landlords submitted that it is not at all correct to say that the building was taken over by the Government as excess land, nor it has been surrendered. According to him, the order issued by the Taluk Land Board identifying the site as excess land was under challenge in a revision petition (CRP No.516/04) filed before this Court under Section 103 of the KLR Act and this Court had allowed the revision and set aside the order of the Taluk Land Board. It is further stated that the landlord was allowed to submit fresh option with respect to the lands to be surrendered as excess land. Sri.Kodoth Sreedharan is not in a position to dispute correctness of the above submission. It is further stated that the landlord was allowed to submit fresh option with respect to the lands to be surrendered as excess land. Sri.Kodoth Sreedharan is not in a position to dispute correctness of the above submission. Therefore, we are not inclined to entertain the revision petition on the ground that the landlords have lost rights or interest in the property and the building situated therein." 2. It is submitted that the tenants filed an unconditional undertaking to vacate the building, as directed by this Court in R.C.R.No.126 of 2011. However, they did not vacate as agreed by them in the undertaking. The landlord was therefore constrained to file E.P.No.113 of 2012 before the Munsiff's Court, Kasaragod. 3. In E.P.No.113 of 2012, the tenants raised a contention that the property in question along with the building was included in the ceiling case of the landlord and the Taluk Land Board took possession of the land in question on 15.1.2004. The tenants contended that the landlord surrendered the land to the Government after the order of eviction in R.C.P.No.44 of 1989. Due to the subsequent event, the landlord has lost her title to the petition schedule building and therefore, she is not entitled to execute the order of eviction. 4. The executing court considered the objection raised by the tenants and rejected the same as per the order dated 8th August, 2012, which is under challenge in the O.P. (R.C.). The court below held that the final order passed by the Taluk Land Board was challenged by the landlord in C.R.P.No.516 of 2004 and the case was remanded to the Taluk Land Board for fresh disposal. Thereafter, the Taluk Land Board has not finally disposed of the ceiling case. The court below also held that in R.C.R.No.126 of 2011, the High Court considered the same contention raised by the tenants and that contention was rejected. The contention raised by the tenants that the landlord lost her title was also found against by the executing court. 5. Sri.Kodoth Sreedharan, the learned counsel appearing for the petitioners/tenants contended that the decree is inexecutable and the executing court has no jurisdiction to execute the order passed by the Rent Control Court, since the landlord has lost her title. The contention raised by the tenants that the landlord lost her title was also found against by the executing court. 5. Sri.Kodoth Sreedharan, the learned counsel appearing for the petitioners/tenants contended that the decree is inexecutable and the executing court has no jurisdiction to execute the order passed by the Rent Control Court, since the landlord has lost her title. The learned counsel contended that the Government being the owner of the land, the landlord cannot get vacant possession of the building after evicting the tenants. It is submitted that as the landlord lost her title, there can be no Execution Petition and there can be no eviction. 6. It cannot be said that the title of the landlord vested in the Government in view of the pendency of ceiling proceedings under the Kerala Land Reforms Act. In a ceiling case, the title of the land owner will vest in the Government only after the Taluk Land Board passes a final order determining the extent and identity of the land to be surrendered. Only on the determination of the extent and other particulars of the lands, the ownership or possession or both of which is or are to be surrendered under Section 85, the ownership or possession or both, as the case may be of the land shall, subject to the provisions of the Act, vest in the Government free from all encumbrances, as provided under Section 86 of the Kerala Land Reforms Act. The pre-requisite for such vesting is a final order passed by the Taluk Land Board determining the extent and identity of the land to be surrendered under Section 85(5) of the Act. The final order passed by the Taluk Land Board in the present case was set aside by the High Court in revision and the case was remanded to the Taluk Land Board for fresh disposal. Since the matter is pending before the Taluk Land Board, it cannot be said that there is a final determination of the extent and identity of the land to be surrendered, so as to attract Section 86, the provision for vesting. The contention put forward by the tenants in this regard is, therefore, liable to be rejected. For the aforesaid reasons, we do not find any ground to interfere with the well considered order passed by the executing court. The O.P.(R.C.) is accordingly dismissed.