Research › Search › Judgment

Kerala High Court · body

2016 DIGILAW 367 (KER)

Asokan v. Geethamoni

2016-04-01

K.RAMAKRISHNAN, P.N.RAVINDRAN

body2016
ORDER : K. Ramakrishnan, J. The tenant in R.C.P. No. 12 of 2009 on the file of the Rent Control Court, Cherthala is the revision petitioner herein. The first respondent herein as landlord filed the above rent control petition for eviction on the ground of arrears of rent, bonafide need and sublease under sections 11(2)(b), 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter called "the Act" for short. The case of the landlady was that she purchased the petition schedule building and property on 23.2.2008. The revision petitioner herein was a tenant under the predecessor. On 29.9.2008, she issued a notice demanding vacant possession of the petition schedule building for her own occupation and also arrears of rent and sub-lease. Even after receipt of notice, he did not send any reply and did not surrender possession. So the landlady approached the rent control court with the above petition for eviction under sections 11(2)(b), 11(3) and 11(4)(i) of the Act. 2. The revision petitioner/alleged tenant filed objection denying the allegations in the petition. He had contended that there is no landlord/tenant relationship between the petitioner and the first respondent and the petition schedule building along with building No. CMC V/276 situate in the land owned by Mathur Devaswom was purchased by Sri. T.R. Thankappan from Sri. Gopalakrishna Panicker and was conducting hotel business therein. Infact, Gopalakrishna Panicker had taken the petition schedule property on ground rent basis and constructed structures therein for conducting hotel business. Sri. T.R. Thankappan purchased the said building from Sri.Gopalakrishna Panicker and when Sri. T.R. Thankappan was laid up, the appellant had taken charge of the hotel business from 1997 onwards and from that date onwards, he was conducting hotel business therein. The western portion of the building was removed as per the directions of the Cherthala Municipality and the remaining portion was reconstructed by the revision petitioner by spending his own money and he was a permanent tenant of the said building. The petitioner or his predecessor had no right over the building and he is not bound to pay rent. He had also contended that the need alleged is not bonafide and there was no sublease and he prayed for dismissal of the application. 3. The petitioner or his predecessor had no right over the building and he is not bound to pay rent. He had also contended that the need alleged is not bonafide and there was no sublease and he prayed for dismissal of the application. 3. Thereafter he prayed for hearing on the preliminary point as to whether the denial of title is bonafide and for that purpose Exts.A1 to A10 and Exts.B1 to B4 were marked. After considering the documentary evidence, the rent control court found that the denial of title is not bonafide. Aggrieved by the same, he filed R.C.A. No. 37 of 2011 before the Rent Control Appellate Authority, Alappuzha and the rent control appellate authority by the impugned judgment dismissed the appeal stating that denial is not bonafide. Aggrieved by the same, the present revision has been filed. 4. The first respondent entered appearance through learned counsel, Sri. T. Jayakrishnan. It is submitted by the learned counsel for the first respondent that the second respondent is no more and his legal representatives have not been impleaded as there is no necessity to implead the legal heirs as he has been impleaded only as a subtenant. The revision petitioner did not also implead the legal heirs in this proceedings as well. So there is no necessity to substitute the legal heirs of the second respondent in this proceedings. 5. Heard Sri. T. Krishnanunni, learned Senior Counsel appearing for the revision petitioner and Sri. T. Jayakrishnan, learned counsel appearing for the first respondent. 6. Learned Senior Counsel appearing for the revision petitioner submitted that the landlady has no right over the land in which the building was constructed and the land belongs to Mathur Devaswom and as such the petitioner or his predecessor cannot claim any right over the same. Further the portion of the building was constructed by the tenant by spending his money and as such, the landlord has no right over the same as the reconstruction was done after the Municipality has demolished the portion of the building and there was no landlord/tenant relationship between them. He also denied the execution of the lease deeds and so the courts below were not justified in coming to the conclusion that the denial is not bonafide. 7. He also denied the execution of the lease deeds and so the courts below were not justified in coming to the conclusion that the denial is not bonafide. 7. On the other hand, learned counsel for the first respondent submitted that two rent deeds were executed on different occasions and the execution of those documents were not disputed by the tenant in the earlier counter statement filed. By way of an amendment only this was incorporated denying the execution of the document and alleging that it was a fabricated document using blank signed paper obtained. So the paramount title in respect of the property is not a criteria for considering the question of filing an application to the rent control petition. Further even if the land belongs to somebody else, if the building was constructed with the permission of the original owner of the property, then the owner of the building can maintain an application for eviction. So the courts below were perfectly justified in coming to the conclusion that the denial is not bonafide. 8. It is an admitted fact that the land in which the petition schedule building situate stands not belonged to the landlord. The predecessor of the landlord had obtained the property from the original owner of the property and constructed the building and that right was purchased by the predecessor of the petitioner from whom she purchased the same. 9. It is settled law that in India even if the land belongs to somebody else and the building was constructed by another person there may be two owners in respect of the building and the property. If the building belongs to somebody else and it was given on lease to the tenant, then the tenant in possession will be deemed to be the tenant of the owner of the building and the owner of the building can maintain an action for eviction. So merely because a land belongs to somebody else is not a ground to come to the conclusion that the denial is bonafide. Further it is settled law that the paramount title is not a criteria for the purpose of considering the question of maintainability of a rent control petition in view of the Full Bench decision in Parthakumar v. Ajith Viswanathan [ 2006 (2) KLT 250 ]. 10. Further it is settled law that the paramount title is not a criteria for the purpose of considering the question of maintainability of a rent control petition in view of the Full Bench decision in Parthakumar v. Ajith Viswanathan [ 2006 (2) KLT 250 ]. 10. Exts.A1 and A2 are the two rent deeds executed by the tenants in respect of the building. In the original counter statement the execution of those documents were not denied. Only by way of an amendment later it was incorporated stating that it was fraudulently created even there the signature in the document has not been disputed. Further there is no document produced by the tenant to prove that he had acquired any permanent interest in the property and the present landlady has no right in the building as well. He had not produced any document to show that he had made the construction in the property as permitted by the landlady on certain conditions as well. In the case of denial of title, the court need not go into the details for the purpose of considering the question as there is denial of title as such, but the court need consider as to whether there is a prima facie evidence to show that the denial is bonafide or not for the purpose of considering the question whether the parties will have to be relegated to the civil court for considering the question. If the court is satisfied that on the basis of the evidence, the denial is not bonafide, then the court can reject the defence and proceed with the rent control proceedings. In this case, the paramount title is not a question to be considered by the rent control court. The fact that the land was taken by the predecessor-in-interest of the landlady and the building was constructed by her predecessor and that right was purchased by the petitioner is proved by the documents produced. Further merely because a preliminary decree has been passed in the suit filed by the family members of the original owner of the land is not a ground at this stage to come to the conclusion that the present petitioner has no right to file the application. Further merely because a preliminary decree has been passed in the suit filed by the family members of the original owner of the land is not a ground at this stage to come to the conclusion that the present petitioner has no right to file the application. Only at the final decree stage if the property was given to somebody else and even if that party is accepting the present person as the owner of the building, even then they can continue with the enjoyment of the building. So under the circumstances, the courts below were perfectly justified in coming to the conclusion that the denial of title made by the tenant is not bonafide and rightly held that the application is maintainable. We are making it clear that if on the basis of the evidence, it is found that there is no landlord/tenant relationship between the parties on the basis of evidence, the rent control court is at liberty to consider those aspects and take appropriate decision in the matter on the basis of evidence. Considering the fact that the rent control petition is filed in the year 2009, we feel it appropriate to direct the rent control court to expedite the disposal of the case as expeditiously as possible at any rate within four months from the date of receipt of this order. With the above direction and observation, this revision is dismissed.