The
Kerala Buildings (Lease and Rent Control) Act, 1965 - Section 11 (1) - The authorities under the Act are not supposed to decide the title in dispute between the parties since law does not extend its jurisdiction to adjudging the title of parties to the alleged tenanted premises. Such a function to decide title is exclusively confined by law to civil courts. The authority of the functionaries under the Act is only to ascertain whether denial of title in the proceedings is bonafide or not.
If the finding entered as required by 2nd proviso to Section 11(1) of the Act accepts denial as a bonafide contention, the eviction of the occupant then could be pursued only in a civil court. Pursuit of eviction proceedings in the Rent Control Court after the finding under the 2nd proviso to Section 11 (1) of the Act could be justified only if the said finding ended up in holding that the denial was without bonafides. In testing the bonafides of the contention denying title, the function of the authorities under the Act is only to check up whether such a plea was raised in good faith and with honesty and proceed accordingly. In that process, we however, do not think, it is necessary for the Rent Control Court to make sure that the plea denying title is one which should essentially be upheld by the civil court in the proceedings instituted before it.
Land Reforms Act, 1963 (Kerala) - A purchase certificate issued under the provisions of Kerala Land Reforms Act, 1963 without giving notice to the land owner or the intermediaries as the case may be, is not legally valid and binding on them.
1. Whether the findings entered into by the Rent Control Appellate Authority that the denial of title was bonafide is legal and proper and is supported by evidence and law.
2. Whether landlords established the grounds of eviction could arise only if the first question is answered in favour of the revision petitioner.
IN THE HIGH COURT OF KERALA AT
ERNAKULAM
A.HARIPRASAD & T.V.ANILKUMAR,
JJ.
RCR 234 of 2015
Dated this the 4th day of June 2019
AGAINST THE ORDER/JUDGMENT IN RCA
68/2007 of ADDITIONAL DISTRICT COURT, THRISSUR AGAINST THE ORDER/JUDGMENT IN
RCP 39/2002 of MUNSIFF COURT,CHAVAKKAD
Baby v. Babu P. Pappachan
REVISION
PETITIONER/IST RESPONDENT IN RCA/PETITIONER IN RCP: BY ADVS. SRI.MATHEWS
K.UTHUPPACHAN SRI.TERRY V.JAMES
RESPONDENTS/APPELLANTS
AND RESPONDENTS IN RCA AND RESPONDENTS IN RCP :- BY ADVS. SRI.K.P.SREEKUMAR SRI.BINU
MATHEW SRI.NOBY THOMAS CYRIAC
O R D E R
T.V.
ANILKUMAR, J.
The
Revision Petition under Section 20 of the Kerala Buildings (Lease and Rent
Control) Act, 1965 (for short “the Act”) was filed by the first petitioner in RCP
No.39/2002 before the Rent Control Court, Chavakkad. He along with second
petitioner in the Rent Control Petition claimed eviction of the legal heirs of
original tenant Kakku and their assignees on the grounds of arrears of rent and
subletting invoking Sections 11(2)(b) and 11(4)(i) of the Act respectively.
2. The Rent Control court ordered eviction on both grounds as
per order dated 24.07.2007 after finding that denial of title taken by the
contesting respondents before it was not at all bonafide. Respondent No.17 in RCP No.39/2002 who
set up a rival title claiming to be the sole owner and occupant of the tenanted
premises and also denying the title of the petitioners, alone challenged the
order of the Rent Control Court in RCA No.68 of 2007 before the learned Rent
Control Appellate Authority. The Appellate Authority set aside the order of the
Rent Control Court after holding that denial of title was bonafide and remedy
available to the eviction petitioners was to sue for eviction in a civil suit. RCA
No.68 of 2007 was allowed by the Rent Control Appellate Authority and RCP No.39
of 2002 was consequently dismissed.
3. Being aggrieved, the sole co-landlord who has come up challenging
the impugned order of the Rent Control Appellate Authority in this revision, is
the first petitioner in the eviction petition. The original second petitioner
who is also a co-landlord had already passed away during the pendency of RCA
No.68 of 2007 and his legal representatives were timely impleaded in the appeal.
Those legal heirs are respondents 27 to 30 in this revision and obviously, this
revision proceeds for their benefit since the revision is filed on the grounds
common to them also.
4.
The contesting respondents in this revision are 1 and 2. They were respondent
Nos. 17 and 1 respectively in RCP No.39/2002. In fact, the second
respondent-Martha in this revision is one of the legal heirs of deceased Kakku
and she had not chosen to contest the eviction petition except to remain
ex-parte before the Rent Control Court.
5. Essential facts required for disposal of this revision petition
are briefly described below.
6. The tenanted building exclusively belonged to one Kunjaram
and she was the undisputed owner of the premises. She died issueless in the
month of August 1964 and this too is an undisputed fact. After her death, her
legal heirs brought O.S.No.325 of 1972 before the Munsiff's Court, Chavakkad
for partition of her assets including the tenanted premises and preliminary and
final decrees were passed in the suit. The purported tenant-Kakku was not made
a party to the partition suit. The brother of Kunjaram, Shri.Kurian purchased
the property inclusive of tenanted building in the court auction held in the
final decree proceedings since the court found the property incapable of
physical division and distribution among the sharers.
7. Shri.Kurian thus became the owner and after his death, his
son-Chinnan who is the second petitioner in the eviction petition and his
mother-Kunjayi were impleaded as the legal heirs of the deceased in
E.P.45/1987. In the execution proceedings, the legal heirs took symbolic
possession of tenanted building and premises on 21.03.1987 subject to the
continuance of occupancy right of Kakku over tenanted building. Shri.Kurain's
wife sold her undivided half share in the property as per Ext.A2 sale deed
dated 02.09.1989 to the first petitioner in the eviction petition. That is how
the petitioners in RCP No.39 of 2002 claim to have become the co-owners of the
tenanted premises. In other words Smt.Kunjaram, the predecessor-in-interest of
the eviction petitioners ceased to be the owner of the property after
21.03.1987 when the property was taken symbolic delivery in execution proceedings
by legal heirs of Shri.Kurian. These facts were proved by Exhibit A7, A8
judgments in O.S.No.325 of 1972, Ext.A9 Commission Report, Ext.A1 report of the
Amin prepared in E.P.No.45/1987 and also Ext.A2 sale deed taken in the name of
the first petitioner in RCP 39/2002. Devolution of rights of Kunjaram on the
eviction petitioners was disputed by the contesting respondents in the eviction
proceeding on the premise that their predecessor, Kakku was a Kudikidappukkaran
and he purchased Kunjaram's rights under Ext.B1 purchase certificate dated 14.12.1988
issued from Land Tribunal, Chavakkad in O.A.No.1/1988.
8. The allegation in the eviction petition is that Kunjaram during
her life time let out the tenanted building to Kakku on a monthly rent of
Rs.15/- in the year 1962. After death of Kakku, his legal heirs who are
respondents 1 to 9 in RCP No.39/2002 kept the rent in arrears. After second
petitioner in the eviction petition and his mother Kunjaram became absolute
owners of the property since 21.03.1987, they were entitled to get arrears of
rent from legal heirs of Kakku on his death and obtain order of eviction on the
ground of arrears of rent under Section 11(2)(b) of the Act. Respondents 10 to 12
are said to be the sub-lessees inducted into the building at different points
of time. Likewise, respondent Nos.17 to 19 are also said to be assignees of the
premises inducted into the building without the consent of the landlords.
9. The specific case is that while Kakku who accepted lease had
also undertaken to refrain from subletting or transferring the premises to
anyone without consent of the landlord. But in violation of the clause
prohibiting sub-tenancy, the legal heirs sublet the premises to the strangers.
Thus alleging both grounds of arrears of rent and subletting, the eviction
petitioners filed RCP No.39/2002 after sending statutory notice demanding payment
of arrears and also notice terminating sub lease as per proviso to Section
11(4)(i) of the Act.
10. Respondent No.13 in the rent control petition is the legal representative
of the 6th respondent
who died during the pendency of the petition. Respondents 14 to 16 in the
eviction petition are similarly legal representatives of 7th respondent
who too died during the pendency of the petition.
11. The major contestants before the Rent Control Court were R7
and R17 even though respondent Nos.10 to 12 also filed formal counter
statements. After death of the 7th respondent, his contentions were
pursued by respondent Nos.14 to 16 before the Rent Control Court as his legal
representatives. Respondent Nos.10 to 12 did not claim any interest in the
tenant premises as if they were not necessary parties. The contentions of
respondents 7 and 17 are identical though they had chosen to submit separate pleadings
in the court below.
12. According to these two respondents, their predecessor Shri.Kakku
was not a building tenant at all and therefore no landlord-tenant relationship
existed between her and Smt.Kunjaram despite the fact that Kakku had accepted
Smt.Kunjaram as the undisputed jenmi of the property. Their case is that after
death of Kunjaram who was issueless, her husband-Chakkunni acting as administrator
of her assets put Kakku in possession of building and surrounding land under an
oral lease on a monthly rent of 12 'Ana'. While being in possession of the property
under oral lease, Shri.Kakku claimed to be a 'kudikidappukaran' within the
meaning of Section 2(25) of Kerala Land Reforms Act, 1963 in O.A No.1/1988
before the Land Tribunal Chavakkad and obtained Ext.B1 certificate dated 14.12.1980
for 61/4 cents
purchasing the landlord's rights. Shri.Kakku thus became absolute owner of the premises
since 14.12.1998. He then transferred 61/4
cents of property to his son, the 7th respondent
in the eviction petition under Ext.B3 gift deed dated 21.02.1989. The donee
thereafter sold his rights over 41/4
cents which included the tenanted
building also, to Respondent No.17, the appellant in RCA 68 of 2007 as per
Ext.B2 sale deed dated 28.04.1998. He is indisputably in actual occupation of
the building and had paid the building taxes also claiming to be the owner.
Remaining 2 cents with which we are unconcerned here, were also later parted by
7th respondent
to respondent No.19 who is said to be in present possession of the same.
13. In short, the main contention advanced by respondent No.17
is that after Shri.Kakku, the predecessor having purchased landlord's right as
'kudikidappukkaran' under Ext.B1 Purchase certificate dated 14.12.1988 and
having sold part of it to him, became the absolute owner of the property. The
petitioners in eviction petition have consequently no title to the property
much less right to seek eviction as landlords within the meaning of Section
2(3) of the Act.
14. Rent control court examined the rival contentions of the parties
in the light of the evidence on record and came to a finding that the denial of
title taken by the contesting 17th respondent was not bonafide. It further
examined the question as to whether arrears of rent and subletting giving rise
to grounds for eviction under Sections 11(2)(b) and 11(4)(i) were made out and
on proof of both grounds, it held that the eviction petitioners were entitled
to an order of eviction. It examined the eviction petitioners as PWs 1 and 2
and wife of the deceased 7th respondent as RW1 and 17th respondent
as RW2. On the side of the original petitioners, Exts.A1 to A15 were marked and
on the side of respondents Exts.B1 to B5 were marked.
15. But in appeal preferred by respondent No.17 challenging the
order of eviction passed by the Rent Control Court, the Rent Control Appellate
Authority in RCA 68 of 2007 held that the contention denying the title claimed
by the eviction petitioners was bonafide and therefore without having the
obligation to decide the other issues related to grounds of eviction under
Section 11(2)(b) and Section 11(4)(i), it dismissed RCP No.39/2002 referring
the petitioners to civil court for seeking eviction, invoking second proviso to
Section 11(1) of the Act.
16. Challenging the said decision of the Rent Control Appellate
Authority dismissing the rent control petition, this revision has been filed
before this court invoking Section 20 of the Act.
17. The major question arising for consideration is whether the
findings entered into by the Rent Control Appellate Authority that the denial
of title was bonafide is legal and proper and is supported by evidence and law.
The other question as to whether landlords established the grounds of eviction
could arise only if the first question is answered in favour of the revision
petitioner.
18. The authorities under the Act are not supposed to decide the
title in dispute between the parties since law does not extend its jurisdiction
to adjudging the title of parties to the alleged tenanted premises. Such a
function to decide title is exclusively confined by law to civil courts. The
authority of the functionaries under the Act is only to ascertain whether denial
of title in the proceedings is bonafide or not. If the finding entered as
required by 2nd proviso to Section 11(1) of the Act
accepts denial as a bonafide contention, the eviction of the occupant then
could be pursued only in a civil court. Pursuit of eviction proceedings in the
Rent Control Court after the finding under the 2nd
proviso to Section 11 (1) of the Act
could be justified only if the said finding ended up in holding that the denial
was without bonafides. In testing the bonafides of the contention denying
title, the function of the authorities under the Act is only to check up
whether such a plea was raised in good faith and with honesty and proceed
accordingly. In that process, we however, do not think, it is necessary for the
Rent Control Court to make sure that the plea denying title is one which should
essentially be upheld by the civil court in the proceedings instituted before
it.
19. The eviction petitioners traced title to the tenanted building
through their predecessor, Sri.Kurian who purchased Smt. Kunjaram's property in
court auction in O.S.No.325/1972. They seek to establish their joint rights in
the building as landlords placing reliance on a few documents which Kurian
obtained in his name in court proceedings in O.S. No.325/1972 such as Amin's report
in the names of Kurian's legal heirs etc. and finally Ext. A2 sale deed in the
name of revision petitioner taken from the wife of Kurian. First respondent in
the revision petition does not dispute Kunjaram as the original Jenmi of the
alleged tenanted premises. He traces rival title through his predecessor Kakku
and his son claiming that after Kakku having purchased Kudikidappu right in O.A.1/1988
from the Land Tribunal, Chavakkad under Ext.B1, the eviction petitioners were
left with no rights in the property at all. In
short, the question that arises is whether the plea setting up rival title in
first respondent in the revision is bonafide.
20. Ext.B1 purchase certificate proves that rights of Kunjaram
over 61/4 cents
of land were purchased by Kakku as on 14.12.1988. Kunjaram was not alive on the
date of institution of O.A 1/1988 before the Land Tribunal, Chavakkad and it is
an admitted fact that she died issueless. Her husband Chakkunni had also passed
away before orders granting purchase in O.A.1/1988 were issued by the Land
Tribunal. Ext.B1 certificate shows that Land Tribunal decided the 'kudikidappu'
right and allowed purchase of land in O.A.No.1/1988 only after issue of notice
to the land owners as required by law. The persons notified of the OA proceeding
are the children of Chakkunni born to his first wife as proved by the
testimonies of RW1 and RW2. The first respondent in the revision petition
purchased 4¼ cents of land with building from Kakku's son under Ext.B2 sale
deed dated 28.4.1988 and it is on the basis of this document, he claims title
to the alleged tenanted premises.
21. Looking at Ext.B1 purchase certificate and also the conduct
of Kakku and subsequent assignments made by him right from 14.12.1988 ie, the
date of issue of purchase certificate, there is every ground to assume that
denial of title pleaded by him is bonafide. The learned counsel for the
revision petitioner submitted that Ext.B1 purchase certificate is not legally
valid and binding on the eviction petitioners since issue of purchase
certificate was without notice to the legal heirs of Kurian who had already
become absolute owners of the property since 21.3.1987 after symbolic delivery
of the property was taken by them as proved by Ext.A1 report prepared by Amin
in E.P 45/1987 on the files of the Munsiff Court, Chavakkad.
22. Law is very clear from the principles evolved in the decisions
cited at the Bar, viz., Sree
Karikad Devaswom v. Wandoor Jupiter Chits (P) Ltd., [1980 KHC 111], State of Kerala v. Alexander [1993 KHC 168], Mohammed Koya v. Bihikoya [2004 KHC 812], that a purchase certificate issued
under the provisions of Kerala Land Reforms Act, 1963 without giving notice to
the land owner or the intermediaries as the case may be, is not legally valid
and binding on them. Strictly speaking, applying the above legal principles to
the facts set out in our case, the argument advanced by the learned counsel for
the revision petitioner cannot be brushed aside because the real landlords
interested in the property as well as entitled to notice prior to issue of
purchase certificate, were the legal heirs of deceased Kurian who had already become
the owners of the tenanted premises even prior to the institution of O.A.1/1988
before the Land Tribunal, Chavakkad.
23. The learned counsel for the first respondent, however, sought
to sustain the validity of purchase certificate on the premise that notices to
children of Chakkunni were enough to bind the estate of Kunjaram since he was
administering the assets of Kunjaram as her administrator appointed by the
District Court, Thrissur as per the letters of Administration in LA 3/1964. It
is a fact that Kunjaram's husband was appointed as the Administrator in O.S.
325/1972 and he represented her interests in litigations against her. It was
argued that after his death and the during the currency of O.A 1/1988, his
children rightly stepped into his shoes and represented Kunjaram's legal
interests in the assets as if letters of administration in the name of
Chakkunni still survived. A reference was made in this respect to Section 312
of the Indian Succession Act, 1925 to substantiate the argument that his legal
heirs were competent to represent estate of Kunjaram as survivors of the administrator.
In substance, the essence of the argument is that Ext.B1 purchase certificate
is legally valid and binding upon the eviction petitioners and their
predecessor, Kurian in as much as notices issued to children of Chakkunni as
his survivors, were sufficient to represent the alleged legal interests of
Kunjaram in the OA proceedings before the Land Tribunal, Chavakkad. We do not think
it legal and proper to go into the legal interpretation and intricacies placed
on Section 312 of the Indian Succession Act since it is not germane for
consideration in a proceeding for eviction before a Rent Control Court where
the question relating to validity of title is absolutely irrelevant.
24. Even assuming that Ext.B1 purchase certificate is not valid
and binding on eviction petitioners in the absence of due notice to the legal
heirs of deceased Kurian, we do not consider the said question to be worthy of
being taken up as relevant and essential for adjudication in an eviction
proceedings before the Rent Control Court since it impinges on the validity of
title in dispute arising between the parties. The authorities under the Rent Control
Act are not supposed to examine the questions relating to validity of title
except as to the bonafides of the denial. 'Bonafides' means mental state of a
person negativing fraud or dishonesty. It is no synonym for negligence or want
of care. Whether Ext.B1 certificate was brought into existence through means of
fraud collusion etc., is absolutely a matter arising in a civil suit where alone
the validity of title can be said to be open for consideration.
25. The contention of the first respondent herein denying title
appears to be bonafide from the over all conduct of the eviction petitioners
and their predecessors. The length of possession of property purchased as
'kudikidappu' had crossed 12 years since 14.12.1988 ie the date of Ext.B1 and
eviction petition was instituted only in 2002. No explanation is forthcoming
for the inaction on the part of the persons claiming to be the landlords as to their
failure to initiate legal steps for eviction all these years. There is no
reliable and trustworthy material also on record to prove that Shri.Kakku was
inducted in the property as building tenant or there existed any landlord
tenant relationship between their successorsin- interest. What is pleaded and
sought to be proved through PW1 and PW2 was existence of an oral rental
arrangement with Kakku. Except the interested versions of these witnesses which
were duly rebutted by RWs 1 and 2, no independent evidence establishing landlord
tenant relationship was brought forth. The circumstances as well as conduct of
the parties also do not give rise to any inference that landlord tenant
relationship ever existed between parties at any point of time.
26. In our view, the learned Rent Control Authority rightly found
that denial of title was bonafide and the appropriate remedy of the revision
petitioner and legal heirs of 2nd eviction petitioner was to sue for
eviction of the occupants only in a civil court. We are satisfied that no
landlord tenant relationship existed between Kunjaram and Kakku nor between
their successors in interest. The revision petitioner failed to establish the
limited right required to seek eviction of first respondent from the building
in question. We are satisfied that the impugned order of Rent Control Appellate
Authority dated 22.11.2014 dismissing RCP 39/02 of Rent Control Court,
Chavakkad does not require any interference. It does not suffer from any illegality,
irregularity or impropriety. The order of the Rent Control Appellate Authority
in RCA 68/2007 only requires only to be confirmed.
In
the result, revision fails and it is accordingly dismissed. It is made clear
that nothing in this order shall prejudice the Civil Court nor preclude it from
arriving at its own independent findings on the question of title in case the
revision petitioner takes recourse to a civil suit.
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