Chacko Kuruvila vs C.T.S. Chanthakadaru Kottayam and Others

Dr. T. Kochu Thommen J.

plaintiff in O.S No. 4 of 1976 is the petitioner. He challenges the order of the learned Munsiff in I.A. No. 1215 of 1980 allowing the prayer of the defendants that the question of tenancy raised by them in terms of Section 106 of the Kerala Land Reforms Act, 1963 should be referred to the Land Tribunal u/s 125 (3) of that Act. The case of the plaintiff is that he is the owner of a building in Kottayam which was the subject matter of proceedings for eviction in R.C.O.P. No. 108 of 1978 against the first defendant in the present suit which was a registered firm. That petition was allowed and it became final. When the plaintiff look steps for recovery, defendants 2 and 3 raised obstructions in terms of Rule 97 of Order XXI of the Code of Civil Procedure. The obstruction petitions were dismissed and they are now pending in appeal before the District Court, Kottayam. These defendants stated that they were tenants of the site and were therefore entitled to fixity of tenure in terms of Section 106 of the K.L.R. Act. That is a question with which I am not concerned in the present proceeding. K.C. John, appearing for the petitioner, contends that a claim u/s 106 is not germaine to the present suit which is one for money by way of compensation for the use and occupation of the building subsequent to the order of the Rent Control Court. Decrees had been obtained by the plaintiff in two earlier suits against the present defendants for compensation in respect of this building for use and occupation thereof subsequent to 1970. These decrees became final and in respect of one decree the amount had been realised. In none of those two suits had the defendant, raised any contention on the basis of Section 106. In the present suit also, such a contention had not been taken until the matter went back to the Munsiff''s Court upon remand by the Appellate Court. It was contended by the defendants in their appeal that the building in question had been constructed by them and the plaintiff was not therefore its owner. That was the matter which was directed to be considered upon remand. Counsel further submits that the case of the plaintiff has all along been that the land in question had been let out to one Kadutha. Kadutha constructed a building on that land. Subsequently Kadutha surrendered the land and the building on the expiry of the lease. The plaintiff thus became the full owner in possession of the building. It was subsequently that the first defendant-firm was put into possession of the building and it is that firm against which the plaintiff obtained an order for eviction. The contention of the defendants is that they are not bound by the order against the firm. That contention is raised in their obstruction petitions which are now pending in appeal before the District Court. The present suit is solely for money and the question of tenancy does not arise.

Appearing for the respondents-defendants. Sri Narayanan Poti submits that the defendants are entitled to raise the question of tenancy at any stage and when such a question is raised the matter has to be referred to the Tribunal in terms of Section 125 (3). The question raised by the tenants relates to their right for proper determination of the rent in terms of subsection (1A) of Section 106. Their case is that the land which had been leased out to the firm of which they were partners was constructed upon by them. The building in question is what they had constructed. The land was leased to the firm for commercial or industrial purposes. They are therefore entitled to the protection of Section 106 because the question which now arises in the suit concerns their liability to pay rent and that is a matter directly arising under sub-section (1A). Section 125 (3) is accordingly attracted. The present suit is for money. The claim of the plaintiff is for compensation arising from unauthorised occupation of the building by the defendants subsequent to the order of eviction made by the Rent Control Court. The only question which arises in the suit is as regards the liability of the defendants to pay compensation as claimed. No question of fixity of tenure guaranteed u/s 106 arises for consideration in this suit. Whether the defendants are entitled to fixity of tenure as claimed by them in their obstruction petitions is a matter yet to be finally decided, but, that question does not arise in the present suit. The right under subsection (IA) of Section 106 is a subsidiary and consequential right arising as result of the determination of the question under sub-section (1). Where in a case under sub-section (1) a person has successfully, established his right not to be evicted, a concomitant obligation is fastened on him to pay the rent under the contract of tenancy. This rent is, at the instance of the lessor or the lessee, liable to be varied every twelve years as provided under subsection (1A) Sub-section (1A) has no legs to stand on independently of subsection (1). Where no question under sub-section (1) arises, no question under sub-section (1A) can arise. In the present suit the defendants do not claim any right under sub-section (1). Whatever may be the final outcome of their obstruction petitions pending before the District Court, the present suit must be decided independently of that claim. It may be that, if the plaintiff were to succeed in his suit, the execution of the decree could depend upon the final outcome of the obstruction proceedings. I do not however wish to say anything final on this point. That is a matter which might arise in the future. All that I now say is that the order under challenge is unsustainable, It is accordingly set aside. The Civil Revision Petition is allowed with costs.