Baby vs Babu P.Pappachan

T.V.Anilkumar, J

The Revision Petition under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short “the Actâ€) 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.

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.

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.

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.

Essential facts required for disposal of this revision petition are briefly described below.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 successors-in-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.

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.