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2018 DIGILAW 695 (KER)

Prabhakaran v. M. A. Mammedkoya

2018-08-31

ANNIE JOHN, K.HARILAL

body2018
ORDER : K. Harilal, J. 1. This revision petition has been filed against the concurrent findings of the courts below, granting an order of eviction, under Section 11(3) of the Kerala Buildings(Lease and Rent Control) Act, 1965(hereinafter referred to as 'the Act'). The parties are referred to as in the Rent Control Petition. 2. According to the petitioners, the 2nd petitioner bona fide needs the vacant possession of the petition schedule building, to start a paint and hardware shop. They have no other buildings of their own in their possession to start the said business. But, several other vacant buildings are available in the locality, to shift the business of the respondent from the tenanted premises. The respondent is not mainly depending upon the income from the business carried on in the petition schedule building. On the above premises, the petitioners prayed for an order of eviction under Section 11(3) of the Act. 3. The respondent resisted the claim for eviction under Section 11(3) of the Act, contending that the need projected in the petition is not bona fide. Further, he contended that he is one of the co-owners of the petition schedule building and he became a co-owner by way of purchasing the undivided share of the 3rd petitioner, by virtue of the assignment deed No.2290/1986. He is taking steps to file a suit for partition of the petition schedule building, in view of the said assignment deed executed by the 3rd petitioner in his favour. He further contended that by virtue of the aforesaid sale deed executed by the 3rd petitioner in his favour, the landlord-tenant relationship has ceased to exist. Therefore, the present petition is not maintainable either in law or on facts. Hence, he prayed for the dismissal of the petition, mainly on the ground that the rent control petition itself is not maintainable. 4. On the aforesaid rival pleadings, both parties adduced evidence and after considering the evidence on record, the Rent Control Court found that the rent control petition is maintainable, as there is no denial of title or claim for permanent tenancy, as contemplated under Section 11(1) of the Act. 4. On the aforesaid rival pleadings, both parties adduced evidence and after considering the evidence on record, the Rent Control Court found that the rent control petition is maintainable, as there is no denial of title or claim for permanent tenancy, as contemplated under Section 11(1) of the Act. Further, it has been found that merely by the purchase of ¼th share of the petition schedule building, there would be no determination of lease and the status of the respondent as tenant would remain as such and continue to be as that of the tenant only. Further, the courts below granted an order of eviction under Section 11(3) of the Act, on a finding that the need projected in the petition is bona fide and the respondent is not entitled to get protection under the second proviso to Section 11(3) of the Act. 5. Heard the learned counsel for the revision petitioner/respondent and the learned counsel for the respondents/petitioners. 6. Though this revision petition has been filed on various grounds, the learned counsel for the respondent/tenant mainly focused his arguments against the findings of the courts below that the rent control petition is maintainable, as the respondent would remain and continue to be as tenant, despite the purchase of ¼th share of the tenanted premises from a co-owner and there is no denial of title or claim for permanent tenancy. 7. In view of the arguments at the Bar, the question to be considered in this revision petition is, whether a tenancy will come to an end or the landlord-tenant relationship will cease to exist, when the tenant purchases a fractional share of the tenanted premises from one of the coowners/landlords? 8. Going by the impugned judgment, it could be seen that the respondent has raised a contention that he has purchased ¼th share of the tenanted premises from the 3rd petitioner, by virtue of a sale deed and by the said purchase, the lease has become determined and after the said purchase, the respondent cannot be treated as a tenant. In other words, according to the respondent, his status as a tenant has ceased to exist by the purchase of ¼th share of the petition schedule building from the 3rd petitioner and thereafter, there is no landlord-tenant relationship and he also became one among the landlords, instead of the 3rd petitioner. In other words, according to the respondent, his status as a tenant has ceased to exist by the purchase of ¼th share of the petition schedule building from the 3rd petitioner and thereafter, there is no landlord-tenant relationship and he also became one among the landlords, instead of the 3rd petitioner. So also, after the said purchase, there is no landlord-tenant relationship between the petitioners and the respondent. 9. In the above context, the point to be considered is, what is the effect and impact of the purchase of a fractional share of the tenanted premises by the tenant from one of the co-owners? The aforesaid legal issue is centred around Section 111(d) of the Transfer of Property Act, 1882(hereinafter referred to as 'the T.P. Act'), which reads thus: “111. Determination of Lease.- A lease of immovable property determines: (a) by efflux of the time limited thereby; (b)where such time is limited conditionally on the happening of some event-by the happening of such event; (c)where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event- by the happening of such event; (d)in case the interest of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right;” [emphasis supplied] 10. Going by the said provision, it is seen that, as per clause (d) of Section 111 of the T.P. Act, a lease would get determined when the interest of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right. In the said provision, the term “whole of the property” assumes much significance and relevance. It follows that unless and until the whole of the tenanted premises is purchased by the tenant, there cannot be a determination of lease and he will continue as tenant till then. In other words, tenancy will not come to an end or landlord-tenant relationship will not cease to exist by the purchase of the fractional share of a co-owner only by the tenant. 11. In the instant case, admittedly, the respondent claims that he purchased the share of the 3 rd petitioner alone. But, there are seven landlords, as the property belongs to them jointly. 11. In the instant case, admittedly, the respondent claims that he purchased the share of the 3 rd petitioner alone. But, there are seven landlords, as the property belongs to them jointly. So, it cannot be said that whole of the property become vested at the same time in one person in the same right, as contemplated under clause (d) of Section 111 of the T.P. Act. To sum up, by virtue of Ext.B1 sale deed, the tenancy does not come to an end. Thus, at the time of filing of the rent control petition, the respondent was continuing as a tenant, despite the purchase of ¼th share of the tenanted premises from one of the co-owners. If that be so, the courts below are justified in finding that there is no bona fides in the denial of landlord-tenant relationship. 12. At this juncture, we further find that merely on the reason that the landlord-tenant relationship is denied, it cannot be held that the said denial would amount to denial of title, in view of the definition of 'landlord' and 'tenant' as contemplated under Sections 2(3) and 2(6) of the Act. According to the said definition, the paramount title of the building has no relevance or significance, while determining the status of the landlord. A person having no title over the property also can be a landlord, in view of Section 2(3) of the Act. Therefore, it can be safely concluded that the denial of landlord-tenant relationship does not amount to denial of title over the building. 13. In the above analysis, we find that there is no illegality or impropriety in the findings of the courts below that the rent control petition is maintainable, despite the purchase of ¼th share of the 3rd petitioner in the petition schedule building. No other legal issue has been raised in this revision. We do not find any illegality or impropriety in the findings of the courts below that the rent control petition is maintainable, despite the purchase of ¼th share of the 3rd petitioner in the petition schedule building. Thus, this revision petition fails. 14. The learned counsel for the revision petitioner sought for nine months time to vacate the tenanted premises. We do not find any illegality or impropriety in the findings of the courts below that the rent control petition is maintainable, despite the purchase of ¼th share of the 3rd petitioner in the petition schedule building. Thus, this revision petition fails. 14. The learned counsel for the revision petitioner sought for nine months time to vacate the tenanted premises. Having regard to the facts and circumstances of the case, the revision petitioner is given six months time from today to vacate the tenanted premises on the following conditions: (i) The respondent in the Rent Control Petition shall file an affidavit within a period of two weeks from the date of receipt of a copy of this order, expressing an unconditional undertaking that the petition schedule building will be vacated within six months, from today. (ii) The respondent/tenant shall deposit the entire arrear of rent, if any, in the Rent Control Court or Execution Court, as the case may be, within a period of two weeks from the date of receipt of a copy of this order and shall continue to pay rent without default. (iii) In the event of failure to comply any of the conditions stated above, the time granted to vacate the premises will stand automatically cancelled and the petitioners/landlords will be at liberty to proceed with the execution of the eviction order. The rent control revision is dismissed accordingly. All pending Interlocutory Applications will stand closed.