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2024 DIGILAW 89 (KER)

Palattutharayil Nabeesu, W/o. Chekkutty @ Kuttippa v. Chembra Radhakrishnan Nair S/o. Narayanan Nair

2024-01-22

ANIL K.NARENDRAN, G.GIRISH

body2024
ORDER : G. Girish, J. The tenant in R.C.P No.37 of 2012 of Rent Control Court, Ponnani has filed this revision against the concurrent verdicts of the said court and the Rent Control Appellate Authority (Additional District Judge-III), Manjeri, directing the eviction of the tenant from the petition scheduled building, on the ground of arrears of rent envisaged under Section 11(2)(b) and bona fide need of the landlord envisaged under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (for short ‘the Act’) 2. The petition scheduled building is said to have been leased out to the revision petitioner on 11.02.2012, for a monthly rent of Rs.3,000/-. The respondent would contend that the petitioner committed default of payment of rent from May, 2012 onwards. According to the respondent, he is presently residing at his wife’s house, and hence, he bona fidely requires the petition scheduled building for his own occupation. It is stated by the respondent that the revision petitioner did not care to make payment of the arrears of rent and to vacate the leasehold premises despite receipt of notice sent by the petitioner. With the above contentions, the respondent had approached the learned Rent Controller for the eviction of the revision petitioner from the petition scheduled building on the grounds envisaged under Sections 11(2)(b) and 11(3) of the Act. 3. The revision petitioner, on appearance before the Rent Controller, denied the landlord-tenant relationship with the respondent and put forward a contention that the property inclusive of the petition scheduled building originally belonged to her and her children and that the said property happened to be registered in the name of a person, by name, Shanmughan, as security, while availing a loan of Rs.10 lakhs from the said person. The abovesaid Shanmughan is alleged to have obtained several signed stamp papers from the revision petitioner at the time of the above loan transaction. Thus, it is alleged that the present proceedings towards the eviction of the revision petitioner, were initiated by the respondent in collusion with the abovesaid Shanmughan. 4. In the trial, before the Rent Control Court, the Power of Attorney Holder of the respondent was examined as PW1 and one witness as PW2. Exts.A1 to A14 were marked as documents on the part of the respondent. 4. In the trial, before the Rent Control Court, the Power of Attorney Holder of the respondent was examined as PW1 and one witness as PW2. Exts.A1 to A14 were marked as documents on the part of the respondent. The revision petitioner and her son were examined as RW1 and RW2 respectively and Exts.B1 and B2 were marked as documents on their part. The learned Rent Controller formulated the first point, as to whether there is landlord-tenant relationship between the revision petitioner and the respondent, and arrived at an affirmative finding on the basis of the evidence on record. Thereafter, the other aspects relating to arrears of rent and the bona fide need projected by the respondent were considered, and it was held that the revision petitioner is liable to be evicted from the petition scheduled building, on the ground of arrears or rent and bona fide need of the landlord, envisaged under Sections 11(2)(b) and 11(3) of the Act. 5. Though the revision petitioner preferred appeal before the Rent Control Appellate Authority (Additional District Judge-III), Manjeri, the learned Appellate Authority declined to interfere with the findings of the Rent Controller, and instead, upheld the verdict directing eviction of the revision petitioner under Sections 11(2)(b) and 11(3) of the Act. 6. Aggrieved by the above concurrent findings of the Rent Control Court and the Appellate Authority, the revision petitioner is here before this Court. 7. The issue to be resolved in this revision is whether the denial of title of the respondent, put forward by the revision petitioner, is bona fide, and whether there is any scope for interference upon the concurrent verdicts of the Rent Controller and the Appellate Authority, directing the eviction of the revision petitioner from the leasehold premises, on the ground of arrears of rent and bona fide need of the landlord. 8. Heard the learned counsel for the revision petitioner today, when the matter came up for admission. 9. As far as the present revision is concerned, the challenge put forward by the revision petitioner is confined to the denial of title of the landlord, which she had raised right from the inception of the proceedings before the Rent Controller. 8. Heard the learned counsel for the revision petitioner today, when the matter came up for admission. 9. As far as the present revision is concerned, the challenge put forward by the revision petitioner is confined to the denial of title of the landlord, which she had raised right from the inception of the proceedings before the Rent Controller. There is absolutely no other contentions set forth in this revision, in connection with the matters related to the question of arrears of rent or the bona fide need of the landlord to have possession of the leasehold premises. The learned counsel for the revision petitioner would submit that the issues relating to arrears of rent and bona fide need of the landlord no longer arise in this case, since the revision petitioner had denied the landlord-tenant relationship with the respondent, and asserted her stand that she is the title holder of the petition scheduled building. 10. Inspite of the fact that the revision petitioner has come forward with a challenge denying the title of the respondent over the leasehold premises, she could not adduce any evidence before the learned Rent Controller to prima facie establish that there was substance in the above contentions. The photocopies of her ration card and electoral ID card which are marked as Exts.B1 and B2 are the only documents produced by the revision petitioner before the Rent Controller in support of her plea assailing the title of the respondent. The authorities below have rightly held that neither the above documents nor the oral testimonies of the revision petitioner and one witness as RW1 and RW2 respectively, are capable of bringing out the basic minimum requirements to substantiate her contention that she is the title holder in possession of the property inclusive of the petition schedule building. On the other hand, the respondent is seen to have produced his title deed, prior title deeds, receipts showing the remittance of land tax and building tax in his name and also certain certificates issued from the local authority concerned which are supportive of his plea of title over the petition schedule building and appurtenant land. The learned Rent Controller as well as the Appellate Authority are seen to have rightly appreciated the normal presumptions which would arise out of the above records, and upheld the right of ownership of the respondent over the leasehold premises. 11. The learned Rent Controller as well as the Appellate Authority are seen to have rightly appreciated the normal presumptions which would arise out of the above records, and upheld the right of ownership of the respondent over the leasehold premises. 11. It is pertinent to note that the revision petitioner did not even care to send a reply notice to Ext.A9, a lawyer’s notice issued by the respondent, asserting her contentions that the petition schedule building along with the land in which it is situated, were assigned in favour of a person by name Shanmukhan, the vendor who sold the said property to the respondent herein, as security for the amount borrowed from that person as loan, and that there was an understanding between them to reconvey the property to the revision petitioner as and when the loan liability is cleared. The learned Appellate Authority has rightly observed that the revision petitioner would have sent such a reply to Ext.A9, lawyer’s notice if there were any bona fides in her contention that the assignment of the petition schedule building and appurtenant land in favour of the person by name Shanmukhan, the prior title holder of that property, was only an adhoc arrangement towards furnishing security for the loan availed by the revision petitioner from that person. 12. The scope of enquiry that is contemplated under Section 11(1) of the Act has been dealt with elaborately in the Division Bench decision of this Court in Retheesh Chandran A. R. v. Sarojini Amma [2010 KHC 1064]. It has been held in the aforesaid decision that the chances of success of the tenant in a civil suit is one of the tests for determining whether the plea of the tenant was bona fide or merely intended to protract the matters. Paragraph 17 of the aforesaid decision which elucidates the scope of enquiry under Section 11(1) of the Act and the mode of proof required to prima facie establish the denial of landlord’s title, is extracted hereunder : “17. Apart from the above, the nature of the enquiry that is stipulated by the second proviso to S.11(1) of the Act requires the Rent Control Court to enter a definite finding as to whether the denial of title of the landlord by the tenant was bona fide or not. Apart from the above, the nature of the enquiry that is stipulated by the second proviso to S.11(1) of the Act requires the Rent Control Court to enter a definite finding as to whether the denial of title of the landlord by the tenant was bona fide or not. The scope of the enquiry that is contemplated has been considered by this Court in various decisions. It has been held that the chances of success of the tenant in a civil suit is one of the tests for determining whether the plea of the tenant was bona fide or merely intended to protract matters. In Aboobacker v. Girija, 1995 KHC 100 : 1995 (1) KLT 553 : 1995 (1) KLJ 212 : ILR 1995 (1) Ker. 789 : AIR 1995 Ker. 221 , Dhinakar, J. speaking for a Division Bench of this Court has summarised the position in the following passage: "5. In Joseph v. Thomas, 1987 (2) KLT 1029 a Single Judge of this Court while dealing with proviso to S.11(1) held as follows: "The enquiry conducted by the Rent Control Court is expected to be only in a summary manner. It is for the said reason that the legislature wanted such vexed and intricate questions of title to be determined by the Civil Court in the regular manner. But no tenant should be allowed to compel a landlord to resort to civil suit just because the tenant denied the title of the landlord. A bare statement denying the title is not sufficient to attract the proviso. As per the said proviso, power is given to the Rent Control Court to decide about its own jurisdiction when a tenant denies landlord's title. Such power can be discerned from the words "the Rent Control Court shall decide whether the denial or claim is bona fide." Thus, Rent Control Court has jurisdiction to decide whether the denial of title is bona fide. Further exercise of Rent Control Court's jurisdiction depends upon the result of the exercise of its initial jurisdiction. "Bona fide" (or good faith) is a familiar term in legal parlance. Honesty, of course is one of the attributes of good faith, but that is not enough. In certain contexts that which is done with due care and attention is said to have been done in good faith. "Bona fide" (or good faith) is a familiar term in legal parlance. Honesty, of course is one of the attributes of good faith, but that is not enough. In certain contexts that which is done with due care and attention is said to have been done in good faith. But the word "bona fide when used in relation to jurisdictional permutations, has a wider import and a higher degree than the other two attributes. The aspect of bona fides in the context in which it is mentioned in the proviso may be referable to the state of mind of the tenant. But when a Court has to come to a finding regarding such state of mind, there must be objective satisfaction for Court that the tenant had that state of mind. The Court, whose jurisdiction stands ousted on a finding that a certain plea or assertion made by a party is bona fide, must be in a position to hold that the plea is based on a very fair and reasonable supposition. In holding so, the Court must have the satisfaction that there are strong or atleast substantial grounds or sufficient materials in support of the plea. The Court must be in a position to say that the chances of the plea being upheld by the Civil Court are fairly on the higher side. Then alone the Rent Control Court is justified in finding that the denial of landlord's title is bona fide." We too are of the view that the Court whose jurisdiction stands ousted must have the satisfaction that there are strong or atleast substantial grounds or sufficient materials in support of the plea of the petitioner and the chances of the plea being upheld by the Civil Court must be fairly on the higher side. In this case we see no such substantial grounds or sufficient materials in support of the plea of the petitioner." (emphasis supplied) 13. In this case we see no such substantial grounds or sufficient materials in support of the plea of the petitioner." (emphasis supplied) 13. As far as the present case is concerned, it is not possible to say that the evidence adduced by the revision petitioner before the Rent Control Court through the oral testimonies of herself and one witness as RW1 and RW2, and the documents marked as Exts.B1 and B2, were capable of outweighing the ordinary presumptions which would emanate from the title documents and other records brought on evidence by the respondent as Exts.A1 to A14, in addition to the oral evidence adduced by himself and one witness as PW1 and PW2 in support of the right of ownership claimed by him over the petition schedule building. 14. Even in a case where the tenant had put forward a plea of title on the basis of a contract for sale of the property inclusive of the leasehold premises, it has been held by a Division Bench of this Court in Safeena Salim v. P.A. Subair [ 2014 (4) KHC 671 ] that merely because a tenant in possession obtains a contract of sale, it is not possible to conclude that it would alter the rights and characteristics of the parties, and nor could the court assume such possession of the tenant as one under part performance of contract of sale. Paragraph 3 of the aforesaid order of this Court is extracted as follows : “3. The trump card plea of the tenants is that they had a contract of sale in their favour and, therefore, the landlord's right does not continue to be what it was as between the landlord and the tenants. It is submitted that, as of now, the suit for specific performance of that contract of sale is pending trial. Suffice it for us to say, that it is trite law that a contract of sale does not create any interest in immovable property. Nor does a decree or order under the Specific Relief Act directing specific performance of a contract of sale by itself amount to create an interest in immovable property either by way of charge or otherwise. Suffice it for us to say, that it is trite law that a contract of sale does not create any interest in immovable property. Nor does a decree or order under the Specific Relief Act directing specific performance of a contract of sale by itself amount to create an interest in immovable property either by way of charge or otherwise. It is trite law that even such a decree or order has to undergo the process of execution or enforcement through the competent Court, resulting in transfer of property, either voluntarily or by intervention of Court. It is only then that the transferee under the contract of sale can claim that the said contract has got transformed into a real right in the property. This is the law. That being so, we are unable to conceive that merely because a tenant in possession obtains a contract of sale, there could be any transmutation of the rights and the characteristics of parties for a Court to assume that the possession of a building tenant under Act 2 of 1965 should be treated as one who has been put to be in continuing possession in part performance of the contract of sale. We do not see that the Hon'ble Supreme Court of India, in R. Kanthimathi and Another v. Beatrice Xavier, 2000 KHC 1503 : 2000 (9) SCC 339 : AIR 2003 SC 4149 , has stated to the contrary because, on facts of that case, the entire consideration was paid, and, that decision cannot be applied as a precedent in law on the facts of this case as that decision was rendered on the peculiar facts of that case. The plea of the revision petitioners, therefore, fails.” 15. Having regard to the settled position of law as laid down in the aforesaid decisions of this Court, it is not possible to attribute any credence to the plea of denial of title of landlord set forth by the revision petitioner on the basis of her contention that the transfer of the property inclusive of the leasehold premises in favour of the vendor of the landlord, was only an adhoc arrangement as security for the loan availed by her from that person, and hence no valid title in respect of the said property could be conveyed by that person to the respondent herein through the execution of Ext.A2 sale deed. Needless to say that the judgment of the Rent Control Appellate Authority which is under challenge in this proceedings, is not at all perverse or patently illegal, and there is absolutely no scope for interference with the concurrent findings of the Rent Controller and the Appellate Authority that the denial of title of the landlord is not bona fide, and hence the revision petitioner is liable to be evicted on the grounds envisaged under Section 11(2)(b) and Section 11(3) of the said Act. 16. In such circumstances, this Rent Control Revision is dismissed declining interference on the impugned judgment of the Rent Control Appellate Authority and also the order of the Rent Control Court; however by granting five months' time to the petitioners-tenant, to surrender vacant possession of the petition schedule building to the respondent-landlord, subject to the following conditions : (i) The respondent-tenant in the Rent Control Petition shall file an affidavit before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, expressing an unconditional undertaking that she will surrender vacant possession of the petition schedule building to the petitioner-landlord within five months from the date of this order and that, she shall not induct third parties into possession of the petition schedule building. (ii) The respondent-tenant in the Rent Control Petition shall deposit the entire arrears of rent as on date, if any, before the Rent Control Court or the Execution Court, as the case may be, within two weeks from the date of receipt of a certified copy of this order, and shall continue to pay rent for every succeeding months, without any default; (iii) Needless to say, in the event of the respondent-tenant in the Rent Control Petition failing to comply with any one of the conditions stated above, the time limit granted by this order to surrender vacant possession of the petition schedule building will stand cancelled automatically and the petitioner-landlord will be at liberty to proceed with the execution of the order of eviction.