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2017 DIGILAW 937 (KER)

Sreekumar v. Sarojini Amma

2017-06-23

B.KEMAL PASHA

body2017
JUDGMENT : 1. The first defendant in a suit for declaration of title and recovery of possession is the appellant herein. The 2nd defendant, who is the mother of the appellant, is travelling with the appellant. The respondent herein is the plaintiff in the suit, who is none other than the paternal aunt of the appellant. The subject matter of the suit is just one cent of property with a building situated therein. 2. According to the plaintiff, she derived title over the property through a gift deed of 1964 executed in her favour by her late father. Thereafter, the plaintiff along with her husband and son had to go to Malaysia and they continued there. It is the case of the plaintiff that she used to send money to the father of the first defendant for putting up a building in the plaint schedule property, and a building has been constructed in the said property. According to the plaintiff, the father of the first defendant obtained the building on lease from the plaintiff and continued as a lessee. When she returned to India, she wanted to start a business of her own in the plaint schedule property and therefore, she filed R.C.P. No.10/2001 before the Rent Control Court against the appellant, his father and M/s Malayala Manorama on the grounds under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act(for short, ‘the Act’). 3. The appellant and his father contended that they are not tenants in respect of the building and that the building was put up by them in the property. They have claimed prescriptive right over the property through adverse possession and limitation. Further, a claim was also raised to the effect that the plaintiff had agreed to execute a sale deed in respect of the property in favour of the appellant and his father as and when the plaintiff comes back from Malasia. Even though such an oral arrangement was there, the plaintiff has not cared to perform her part of the oral arrangement. The Rent Control Court considered the said matter as if it is a case wherein there is bonafide denial of title. By considering that it was a bonafide denial of title, the Rent Control Court dismissed the rent control petition under Section 11(1) of the Act. 4. The Rent Control Court considered the said matter as if it is a case wherein there is bonafide denial of title. By considering that it was a bonafide denial of title, the Rent Control Court dismissed the rent control petition under Section 11(1) of the Act. 4. Thereafter, the present suit was filed by the plaintiff for getting her title over the property declared and for recovery of possession of the plaint schedule property and the building from the defendants. Even in the written statement filed in the suit, the defendants have specifically claimed that they are not tenants in respect of the building; whereas, the building belongs to them. They have further contended that they have rented out a portion of the building to Malayala Manorama by styling themselves as the owner of that part of the building also. The trial court decreed the suit in terms of the plaint. On the dismissal of the RCP, Malayala Manorama vacated the building and thereafter defendants 1 and 2 have inducted the 3rd defendant Leji in the said portion of the building as a tenant under them. Aggrieved by the judgment and decree of the trial court in O.S.No.153/2008, defendants 1 and 2 preferred A.S.No.15/2014 before the Subordinate Judge’s Court, Thiruvalla. The lower appellate court also concurred with the findings entered by the trial court and dismissed the appeal. During the pendency of the appeal before the lower appellate court, the 2nd defendant, who is the mother of the first appellant died. There are no other legal heirs to be impleaded, since the appellant is the sole legal heir of his parents. 5. This Court has admitted this Second Appeal on the following substantial question of law: “Has the first appellate court committed illegality in directing eviction of the appellants in the absence of the finding that one of the grounds mentioned in Section 11 of the Kerala Buildings (Lease and Rent Control) Act has been proved.” 6. Heard the learned counsel for the appellant and the learned counsel for the 1st respondent. The 2nd respondent, who is the 3rd defendant, is not contesting. 7. Heard the learned counsel for the appellant and the learned counsel for the 1st respondent. The 2nd respondent, who is the 3rd defendant, is not contesting. 7. The learned counsel for the appellant has argued that the decisions rendered by both the courts below are not legally sustainable because of the fact that both the courts below have not considered any of the grounds mentioned under the Kerala Buildings (Lease and Rent Control) Act, to order eviction. According to the learned counsel for the appellant, when recovery of possession of the building has been sought for, the civil court ought to have entered a finding that the first respondent is entitled to have an order of eviction on any of the grounds mentioned under Section 11 of the Act. 8. Per contra, the learned counsel for the first respondent has pointed out that the said provision is applicable only in a case wherein a tenancy arrangement is there, and so long as the appellant continues to be a tenant. It has been pointed out that from the very beginning the appellant and his parents contended that they are not tenants of the building and there is no such tenancy arrangement at all. 9. In fact, the Rent Control Court ought not to have dismissed the RCP in this particular case under Section 11 of the Act. What is contemplated under Section 11(1) of the Act is “a bonafide denial of title or a claim for permanent tenancy”. What is contemplated under the said provision is not a “bonafide denial of landlord - tenant relationship”. Even if landlord tenant - relationship is denied, the same will not fall within the parameters of Section 11(1) of the Act. In case the landlord - tenant relationship is denied, the Rent Control Court should allow the RCP, in case the landlord proves tenancy. If not, the Rent Control Court has to dismiss the RCP by finding that there is no landlord - tenant relationship. In such a case of dismissal, the landlord need not file a suit for eviction or recovery of possession within the meaning of the second proviso to Section 11(1) of the Act; whereas, the landlord need only sue for a mere relief of mandatory injunction by treating the defendant as a mere trespasser or a licensee, as the case may be. 10. 10. Even though the learned counsel for the appellant has argued that adverse possession and limitation was claimed by the appellant in respect of the land in which the building is situated and that they have denied title as well as landlord - tenant relationship in respect of the building on the ground that the building was put by them by using their own funds, as per the laws in India, a person can forward a separate claim in respect of a building alone without the land or vice versa. 11. In this particular case, the first respondent had produced rent deeds before the Rent Control Court as well as in this suit. Those rent deeds were executed by the father of the appellant. At the same time, the father of the appellant has attempted to set up a case that the first respondent had promised to execute the sale deed in respect of the building and land in favour of the appellant for which stamp papers were purchased and signatures were obtained from the father of the appellant in it. According to the appellant, those blank stamp papers were made use of for cooking up the rent deeds. The said claim and the said contention attempted to be set up by the appellant are not at all believable. Both the courts below have rightly disbelieved those contentions. 12. Now, the next question to be considered is whether the civil court, in a case like the present one, should decide the claim of the plaintiff by having recourse to any of the grounds mentioned under Section 11 of the Kerala Buildings (Lease and Rent Control) Act? In this particular case, it is true that the plaintiff has pleaded that the building is required for her to start a medical shop with the assistance of her son or husband. Therefore, it can be noted that a ground under Section 11(3) has been set up by the plaintiff. At the same time, on going through the written statement filed by the first defendant and his mother, who is the 2nd defendant, it seems that the said ground raised by the plaintiff has not been denied at all in the written statement. At the same time, on going through the written statement filed by the first defendant and his mother, who is the 2nd defendant, it seems that the said ground raised by the plaintiff has not been denied at all in the written statement. On the contrary, they have denied the landlord -tenant relationship between the parties and stuck on to the claim that the building was put up by the father of the appellant and they are the owners in respect of the building. 13. Regarding the land in question, they have attempted to forward a claim of adverse possession and limitation. As found earlier, when the plaintiff could produce and prove the rent deeds executed by the father of the appellant in favour of the first respondent, the appellant is clearly estopped from challenging the title of the landlord in respect of the property in which the building is situated. Apart from that, the same militates against their claim of title over the building also. If, as a matter of fact, the building is one put up by the appellant or his father, and they are not tenants in respect of the building, the father of the appellant would not have executed the rent deeds in question. Even though, the rent deeds are challenged by the appellant, the signatures of his father in it are admitted. When signatures are admitted, the burden is on the appellant and his father to prove that those documents were not executed or intended to be executed as rent deeds. In the absence of any such proof from the part of the appellant and his father, the said documents are to be treated as rent deeds voluntarily executed by the father of the appellant in favour of the plaintiff. Matters being so, the appellant is estopped from forwarding the contention relating to adverse possession and limitation as well as forwarding a claim of title over the building. 14. Apart from all the above, another contention was also resorted to by the appellant to the effect that there was an arrangement between the father of the appellant and the plaintiff whereby the plaintiff had allegedly agreed to sell the plaint schedule property and the building to the appellant. When such a contention is also taken, the same militates against all the aforesaid claims attempted to be set up by the appellant. When such a contention is also taken, the same militates against all the aforesaid claims attempted to be set up by the appellant. When they were allegedly expecting a sale deed in respect of the property and building from the plaintiff, they cannot he heard to contend that they are the owners of the building or that the plaintiff has lost her rights over the property under Section 27 of the Limitation Act. 15. Apart from all the above, as rightly found by the lower appellate court, the appellant has not adduced any evidence to show that they have constructed the building by using their own funds. By the mere fact that the plaintiff has shown defendants 1 and 2 as successors in interest of the tenant, it cannot be said that the landlord should always prove the ground under Section 11(3) of the Act, in this case, to get a decree for recovery of possession within the meaning of the 2nd proviso to Section 11(1) of the Act. In this particular case, defendants 1 and 2 have specifically denied any tenancy arrangement and they have specifically contended that they have become owners of the building on the death of the father of the appellant and that the building was put up by the father of the appellant by making use of his own funds. Their claim is that they are the owners in respect of the building and they have further claimed that they have rented out a portion of the building to the 3rd defendant. The 2nd proviso to Section 11(1) says: “Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court shall decide whether the denial or claim is bona fide and if it records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and such Court may pass a decree for eviction on any of the grounds mentioned in this section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.” 16. Therefore, it is evident that only when a tenant denies title, or the tenant sets up claim of right of permanent tenancy, and in such case, when the Rent Control Court records a finding that such a claim is bona fide, the civil court has to consider any of the grounds under Section 11 of the Act for granting a decree for eviction. Here, according to defendants 1 and 2, they are not tenants and the they were never acted as tenants in respect of the building sought to be recovered. According to them, they have never attorned the plaintiff as their landlord. Therefore, this is not a case wherein a tenant has denied the title of the landlord; whereas, here is a case wherein defendants 1 and 2 have claimed independent title over the building, and have denied landlord - tenant relationship with the plaintiff. Therefore, the 2nd proviso to Section 11(1) of the Act has no application to this case. 17. From the discussions made above, it has to be concluded that this is a suit wherein the plaintiff has to prove her title over the property for getting her title declared. When the building is in the possession of the appellants as well as the 2nd respondent, the plaintiff has to seek recovery of the building or its eviction, to get the possession of the building. Both the courts below have concurrently found the entitlement of the plaintiff to the aforesaid reliefs. There is absolutely nothing to interfere with the concurrent findings entered by both the courts below in the matter. In fact, the substantial question of law raised in this appeal does not arise for consideration, because of the non applicability of the 2nd proviso to Section 11(1) of the Act in this case. 18. Even though the learned counsel for the first respondent has prayed for a decree for damages on account of unlawful occupation, what has been claimed in the plaint is merely mesne profits. No specific pleadings in respect of the then prevailing rate of rent are incorporated to claim such mesne profits. Over and above it, any court fee has not been paid for such a relief. At this stage, this Court cannot pass a decree for any such mesne profit for the period from the date of suit. 19. No specific pleadings in respect of the then prevailing rate of rent are incorporated to claim such mesne profits. Over and above it, any court fee has not been paid for such a relief. At this stage, this Court cannot pass a decree for any such mesne profit for the period from the date of suit. 19. At the same time, this Court is satisfied the building can fetch at least Rs.1,000/- per month as rent. It has been reported that the 2nd respondent is not presently occupying the building. The occupation of the appellant in the building is unlawful occupation. The appellant shall be liable to pay damages at the rate of Rs.1,000/- per month to the plaintiff for any such continued unlawful occupation for the period after one month from today. In the result, this Second Appeal is dismissed. The appellant is directed to surrender vacant possession of the building to the first respondent within one month from today. It is made clear that the appellant shall be liable to pay damages at the rate of Rs.1,000/- per month for such continued unlawful occupation of the building for the period after one month from today to the plaintiff. The cross objection is disposed of accordingly. In the nature of this appeal, the parties shall bear their respective costs. All the interlocutory applications in this appeal are closed.