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2014 DIGILAW 762 (KER)

MARIAMMA v. CHINNAMMA JOHN @ CHINNAMMA

2014-09-29

BABU MATHEW P.JOSEPH, THOTTATHIL B.RADHAKRISHNAN

body2014
ORDER Thottathil B. Radhakrishnan, J. Heard the learned senior advocates appearing for the parties. 2. This revision under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, for short, the 'Rent Act', is against the judgment by which the Appellate Authority reversed an order of the Rent Control Court holding that the respondent in the rent control petition, who was sought to be evicted, had bona fide denied the title of the landlord. 3. For the sake of brevity, we refer to the persons arrayed as landlords as 'Lonappan', the deceased first among them. The respondents, arrayed as tenants, are hereinafter referred to as 'Varunni', their predecessor-in- interest. 4. Lonappan filed O.S.No.837 of 1997 against Varunni before the jurisdictional civil court for realisation of arrears of rent, subject to the law of limitation. Exts. B4 and B5 are, respectively, the copies of the plaint and written statement in that suit. In Ext.B5 written statement in that suit, Varunni challenged the title set up by Lonappan. Then, that suit was withdrawn. Thereafter, Lonappan instituted the rent control petition, from which the revision arises, in 1999, pleading that Varunni took the shop room in question on rent on 20-12-1969 and there was arrears of rent from 1973. 5. In opposition to the petition for eviction, Varunni's legal representatives denied the paramount title of Lonappan and also refuted the pleaded lease. They also pleaded that the property came into hands of Varunni as a lease from Edakunni Devaswom and that thereafter, as per Ext.B1, Varunni had settled his assets including this particular item; whereunder devolution took place on the strength of that settlement, and, following that, Varunni's legal representatives obtained certificate of purchase under the Kerala Land Reforms Act, 1963, 'KLR Act', for short. 6. Thus, the denial of title set up by the tenant was, jurisprudentially, two fold. Firstly, there was denial of the paramount title of the persons arrayed as landlords. Secondly, the title of those persons as landlords, qua the building lease, held out for the purpose of the application for eviction stood denied. 7. At trial, one of the sons of Lonappan deposed. PW2 was examined to prove Ext.A1, which is the so-called building lease document. Rebuttal evidence came through one of the sons of Varunni. 8. Secondly, the title of those persons as landlords, qua the building lease, held out for the purpose of the application for eviction stood denied. 7. At trial, one of the sons of Lonappan deposed. PW2 was examined to prove Ext.A1, which is the so-called building lease document. Rebuttal evidence came through one of the sons of Varunni. 8. Rent Control Court, holding that there is bona fide denial of landlords' title and, therefore, the matter falls within Section 11(1) of the Rent Act, relegated the parties to litigate before the competent civil court. 9. Lonappan's legal representatives carried the matter in an appeal under Section 18 of the Rent Act. The Appellate Authority held that Ext.B1 and Ext.B2 relied on by Varunni's legal representatives do not show that they had dealt with the building in question; and that there could not have been issuance of patta in 1995 under the KLR Act. It held that there is no denial of title, inasmuch as the rival title set up by Varunni's legal representatives was not established. Therefore, the Appellate Authority proceeded to consider Ext.A1, the alleged lease document (rent deed). It relied on the testimony of PW2 and held that Ext.A1 is proved. Accordingly, it upheld the existence of tenancy. Having found that there is no evidence, with Varunni's legal representatives, to plead and prove discharge of the rent due, an order of eviction, solely on the ground of arrears of rent under Section 11(2)(b) of the Rent Act was issued by the Appellate Authority. 10. Learned senior counsel appearing for Varunni's legal representatives argued that a simple examination by naked eye, would by itself show that Ext.A1 is not reliable. It is pointed out that Ext.A1 does not have any attestor. That position notwithstanding, a person's name is mentioned therein as the scribe. He has not signed the document. Yet, PW2 is projected as the person who wrote Ext.A1. His cross examination brought out that the said person had been involved in different establishments of Lonappan and his family which had different business establishments in Thrissur. Lonappan was an Advocate. That position notwithstanding, a person's name is mentioned therein as the scribe. He has not signed the document. Yet, PW2 is projected as the person who wrote Ext.A1. His cross examination brought out that the said person had been involved in different establishments of Lonappan and his family which had different business establishments in Thrissur. Lonappan was an Advocate. With all these situations, the learned senior counsel for Varunni's legal representatives argued that the abundant confidence which appears to have been reposed by the Appellate Authority on PW2 to upturn the verdict of the Rent Control Court is wholly misplaced and cannot be comprehended in this case on scales of justice, equity and good conscience in such adjudication. He further argued that antecedent title of the Devaswom and Varunni having been set up and the fact that a certificate of purchase under the KLR Act is projected do not by themselves shake the bona fide denial of Lonappan's title as the landlords. The mere setting of rival title does not denude the plea of bona fide denial of the title of a person as landlords, it is argued. It was also argued that the conduct of parties and circumstances of the case ought to have weighed by the Appellate Authority to draw available reasonable inferences, which necessarily are pointers against the case set up by Lonappan's legal representatives, while such circumstances go a long way in upholding the bona fides of the denial of title by Varunni's legal representatives. To buttress this argument, it is pointed out that though the plea is that rent is in arrears from 1973 pursuant to the rent deed of 1969 and that the rate of rent had been revised from time to time, and the arrear had grown up with added interest component, there is nothing to show that any action whatsoever was taken for recovery of such outstandings, before the institution of the suit in 1997; and even in that suit, when confronted with a challenge to title, Lonappan's legal representatives withdrew that suit and are trying to throw out Varunni's legal representatives under the cover of summary proceedings under the Rent Act. The circumstances and the conduct of parties go a long way to support Varunni's case, going by the submissions of the learned senior counsel appearing for his legal representatives. 11. The circumstances and the conduct of parties go a long way to support Varunni's case, going by the submissions of the learned senior counsel appearing for his legal representatives. 11. Learned senior counsel appearing for Lonappan's legal representatives argued that having set up a plea of leasehold right under the Devaswom, there is no shred of materials to show that Devaswom had granted any lease. According to him, Ext.B1 settlement by Varunni to his legal representatives is merely a self serving document without the junction of the so-called lessor; the Devaswom. The certificate of purchase under the KLR Act is pointed out as one that is wholly unacceptable, having regard to the fact that the law does not authorise the issuance of such a certificate at that point of time in 1995. He argued that having lost the rival title set up by Varunni's legal representatives, they ought not to but accept the title set up by the Lonappan's legal representatives. He supported the findings of the courts below that Ext.A1 rent deed had been proved through the testimony of PW2 and argued that therefore, no denial of title, much less a bona fide denial, has been established in accordance with the laws. He says that there is no ground to interfere with the impugned judgment by holding that there is any illegality, irregularity and impropriety in that decision and the consequential order for eviction under Section 11(2)(b) of the Rent Act is nothing but the unavoidable outcome of the findings of the Appellate Authority. 12. Lonappan's legal representatives held out the formation of a lease on 20-12-1969 and default in payment of rent from 1973. Ext.A1 is stated to be the rent deed. PW2 was cited to prove that document. PW1 had no role, even allegedly, in the making of Ext.A1. We have examined Ext.A1. It consists of four sheets. The first two are stamp papers which carry only the name and description of the parties. The other two sheets are essentially a printed form which discloses the terms of lease or licence; the blank portions are filled in to show the relevant particulars including the schedule describing the identity of the property. There is no witness to that document. One K.V.Francis is named as scribe. Even he has not signed the document. Signature is made to appear on all the four sheets. They are allegedly that of Varunni. There is no witness to that document. One K.V.Francis is named as scribe. Even he has not signed the document. Signature is made to appear on all the four sheets. They are allegedly that of Varunni. PW2 is not a document writer. He does not have a licence to do so. He deposed that he used to write agreement. It came out in his cross examination that he was intricately involved in the affairs of the business of Lonappan and his father etc. Going by his deposition, all that we see is that he has merely said that Ext.A1 was signed by Varunni. In the context of a case of the nature in hand, such testimony of a person who said that he had acted as scribe, but yet not signed the document, has to be scrutinized carefully; cautiously; and, with an approach that would rule out his testimony being suspicious when the normal accepted course of conduct in such documentation is not followed. The document in question does not contain the signature of the alleged lessor. Even if that need not be there, the document by a lessee, with no attestation is placed only by mentioning the name of a scribe; that too, without the signature of even that person. Judicial conscience does not appeal to us to merit and accept that document. 13. The aforenoted document of 1969 is seen challenged in the suit filed before the civil court by Lonappan. It was after filing written statement in that suit that the said suit was withdrawn. The fact that Varunni's legal representatives had set up a title to the property in question different from that which Lonappan's legal representatives were tracing does not by itself turn the table as against Varunni's legal representatives. The mere setting of a rival title does not discharge a litigant from proving his case. In an action of this nature, when there is a denial of title, what is to be examined is as to whether there is a denial of the title of the person who has instituted the rent control petition and the examination will be as to whether there is a denial of that person's title as landlord. Such an examination need not essentially go to find out as to whether there is a denial of the paramount title. The term 'tenant' is defined in the Rent Act. Such an examination need not essentially go to find out as to whether there is a denial of the paramount title. The term 'tenant' is defined in the Rent Act. The wide sweep in which that term necessarily stands, is pivotally, on the eligibility to collect rent. It is that eligibility, that is essentially challenged, because Ext.A1 stood challenged. The earlier suit for recovery of rent, which was opposed on issues as to title to recover, was withdrawn by Lonappan. 14. Bona fides of denial of title for the purpose of the Rent Act does not, necessarily, mean that the person denying the title has to prove the contrary. A prima facie case of bona fide denial of title should be strong enough to dissuade a summary court from proceeding to further adjudicate on rival issues as to title; thereby meaning, the issues relating to title in whatever form of feature that is projected. In this view of the matter, we see that the learned Appellate Authority had illegally and improperly reversed the finding on the proof of Ext.A1 to hold that there is bona fide denial of title and proceeded improperly on the basis of that finding to order the application for eviction. This, in our view, has resulted in over-stepping the jurisdiction under Section 18 read with Section 11(1) of the Rent Act. 15. The order of the Rent Control Court, on an independent examination, shows that a balanced approach was adopted in looking into the entire materials and then, leaving it ultimately, without any positive decision on the question of title, but only holding that there is a bona fide denial of title. We have, however, been called upon to say that what we have said above only because the Appellate Authority had ventured to uphold Ext.A1 relying on the testimony of PW2, which does not commend acceptance to this Court even in revisional jurisdiction under the Rent Act. 16. For the aforesaid reasons, this revision is entitled to succeed vacating the judgment of the Appellate Authority and restoring the decision of the Rent Control Court. In the result, this revision is allowed vacating the judgment of the Appellate Authority and restoring the decision of the Rent Control Court. No costs.