K.C.P., K.C.V. and Co. vs N.V. Venkitakrishnan and Others

K.A. Mohamed Shafi, J.—These revision petitions are filed challenging the order dated 20th November 1993 passed by the Sub Court, Palakkad in E.P. No. 42/92 in O.S. No. 223/80. The 4th Respondent-4th Defendant in the E.P. is the revision Petitioner in C.R.P. No. 2296/93, the 5th Respondent in the E.P. is the revision Petitioner in C.R.P. No. 2302/93 and Respondents 3 and 4-Defendants 3 and 4 in the E.P. are the revision Petitioners in C.R.P. No. 2341. Since all the revision petitions are filed challenging the very same order passed by the lower Court, they are heard and disposed of by this common order.

The 1st Respondent in these revision petitions filed R.C.P. No. 12/79 for eviction of the petition schedule premises before the Rent Control Court, Palakkad against the revision Petitioner in C.R.P. No. 2226/93 which was a partnership firm constituted by one Velayudhan and Pazanimala as its partners. The lease of the property was to run a petrol outlet under their partnership. They contended that the Rent Control Court has no jurisdiction to entertain and try the petition for eviction since it is a lease of land or composite lease of land and building and they are entitled to permanent tenancy.

The Rent Control Court considered that issue as a preliminary issue since the 2nd proviso to Section 11(1) of the Kerala Act 2/1965 was attracted and by the order dated 21st August 1979 found that the lease involved in the case is not of building and therefore, the Rent Control Court has no jurisdiction to grant eviction and the remedy for the Petitioner is to file a suit for eviction in the civil Court. Accordingly the Rent Control Court dismissed the R.C.P.

Thereafter the landlord 1st Respondent filed O.S. No. 223/80 before the Sub Court, Palakkad for recovery of possession of the plaint schedule properties with arrears of rent and cost. Since the Defendants therein raised a plea of permanent tenancy by claiming commercial lease u/s 106 of the Kerala Land Reforms Act, the Sub Court referred the question of tenancy to the Land Tribunal for decision u/s 125(3) of the Kerala Act 1/64 as amended. The Land Tribunal by order dated 26th November 1982 found that the Defendants are not lessees u/s 106 of the K.L.R. Act. The Sub Court accepted the finding of the Land Tribunal and decreed the suit for recovery of possession with arrears of rent by the decree and judgment dated 28th February 1983.

Though the Defendants in the suit filed A.S. No. 397/83 before this Court challenging the decree and judgment passed by the Sub Court, this Court confirm the decree and judgment and dismissed the appeal directing the execution Court to ascertain the value of improvements effected by the Defendants and allowed delivery of possession to the Plaintiff only on the deposit of the value of improvements.

Though A.F.A. Nos. 178/91 and 39/92 were filed against the judgment of the Single Judge of this Court in A.S. No. 397/83, the Division Bench of this Court dismissed both chose appeals.

Thereafter the 1st Respondent filed the above E.P. before the Sub Court for the issue of a commission to estimate the value of improvements due to the Respondents in the E.P. and for delivery of possession of the property. The revision Petitioners herein and the other Respondents in the E.P. resisted the E.P. by contending inter alia that there is no executable decree in this case since the decree passed by the trial Court is not in terms of Section 11(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The execution Court negatived the contentions raised by the Respondents and directed the 1st Respondent-decree-holder to deposit the batta for the issue of a commission to estimate the value of improvements effected by the Respondents in the E.P. in the decree schedule property, stating that delivery of possession will be given to the decree-holder on deposit of the value of improvements so estimated by the Commissioner. That order is challenged by the revision Petitioners in these revision petitions.

The only proposition of law canvassed in these revision petitions is that in a suit eminating from the 2nd proviso to Section 11(1) of the Kerala Act 1965 the Civil Court can pass decree only on any of the grounds mentioned in Section 11 of the Act and the decree passed by the Civil Court in such suits without recourse to any of the grounds for eviction mentioned in Section 11 of the Act is a nullity being without jurisdiction. Section 11(1) of the Kerala Act 2/1965 read as follows:

Evicton of tenants.-(1) Notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise except in accordance with the provisions of this Act:

Provided that nothing contained in this section shall apply to a tenant whose landlord is the State Government or the Central Government or other public authority notified under this Act:

Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court shall decide whether the denial or claim is bona fide and if it records a finding to the effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and such Court may pass a decree for eviction on any of the grounds mentioned in this section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.

It is the common case that the 1st Respondent landlord filed R.C.P. 12/79 before the Rent Control Court, Palakkad for eviction of the revision Petitioner in C.R P. No. 2296/93 and Ors. under Sections 11(2) and 11(3) of Kerala Act 2/1965 and since the Respondents therein contended that the lease involved in the case is not in respect of a building as defined in the Kerala Act 2/1965 and it is in respect of land or composite lease of land and building, the Rent Control Court has no jurisdiction to entertain and try the petition, the Rent Control Court entered the finding that the lease involved in this case is not in respect of a building coming within the purview of the Kerala Act 2/1965 and the Rent Control Court has no jurisdiction to order eviction in that petition and the remedy of the landlord is to file a suit for eviction in the Civil Court, and dismissed the petition. In that R.C.P. the tenant has not disputed the landlord-tenant relationship but only contended that the lease being in respect of land or composite lease of land and building, the Rent Control Court has not jurisdiction to entertain and try the petition. The finding of the Rent Control Court in that R.C.P. 12/7 has become final as it was not challenged by any of the parties.

In the civil suit filed by the landlord before the trial Court fur recovery of possession with arrears of rent, the only contention raised by the tenant was that the lease involved in the case is a commercial lease coming within the ambit of Section 106 of the Kerala Land Reforms Act and therefore the landlord is not entitled to get eviction of the property. The finding of the Land Tribunal that the lease involved in the case does not come within the purview of Section 106 of the Land Reforms Act was accepted by the trial Court and a decree for recovery of possession with arrears of rent was passed by the trial Court.

Though the decree for eviction was confirmed by this Court in A.S. No. 397/83 and A.F.A. Nos. 178/91 and 32/92, the learned Senior Counsel Sri T.P. Kelu Nambiar appearing for the Petitioner in C.R.P. No. 2302/93 argued that a void and illegal decree passed by the trial Court is confirmed in the appeal and second appeal by this Court and irrespective of the confirmation of the decree in the appeal and second appeal the tenant is entitled to contend in the execution proceedings that the decree is not executable being nullity since the decree is not passed by the Civil Court on any of the grounds enumerated in Section 11 of Act 2/1965 inspite of the fact that the landlord had approached the Rent Control Court for eviction of the tenant under Sections 11(2) and 11(3) of the Act 2/1965.

In support of the contention that the decree for eviction passed by the Civil Court u/s 11(1) of Act 2/1965 should be on any of the grounds stipulated in Section 11 of the Act 2/1965, the learned senior Counsel relied upon the decision in Appukuttan v. Vasu 1978 KLT 776 wherein a Single Judge of this Court has observed as follows:

The law applicable for the purpose of establishing title is the general law and that for the purpose of eviction is the Rent Control Act, although the forum for establishing title, and grounds for eviction in cases of bona fide denial of title, is the civil Court. Once the title is established, eviction can follow only in terms of Section 111 of the Rent Act.

In support of the very same argument the learned senior Counsel relied upon the decision in M/s. East India Corporation Ltd. Vs. Shree Meenakshi Mills Ltd., wherein the Supreme Court has observed as follows:

What is stated in the second proviso to Section 10(1) is the sole circumstance in which the Civil Court is invested with jurisdiction in matter of eviction. But this jurisdiction cannot be invoked otherwise than as stipulated in the second proviso. This means that the condition precedent to the exercise of jurisdiction by a Civil Court is that the tenant should have denied the title of the landlord or claimed right of permanent tenancy and the Controller should, on such denial or claim by the tenant, reach a decision whether such denial or claim is bona fide. Upon such decision, tie Controller must record a finding to that effect. In that event, the landlord is entitled to sue for eviction of the tenant in a Civil Court-Where these conditions are satisfied, the Civil Court will have jurisdiction to pass a decree for eviction on any of the grounds mentioned in Section 10 or Section 14 to 16, notwithstanding that the Court has found that the tenant''s denial of the landlord''s title does not involve forfeiture of the lease, or, his claim of right of permanent tenancy is unfounded. Except to this limited extent, the jurisdiction of the Civil Court in matters of eviction of a tenant is completely barred and the jurisdiction in such matters is vested in the tribunals set up under the statute.

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Any suit instituted by the landlord for eviction of a tenant from a building falling within the ambit of the Act, otherwise than as stipulated by the section is, therefore, incompetent for lack of jurisdiction of the Court and any decree of the Court in such a suit is null and void and of no effect.

It is pertinent to note that in both the above decisions relied upon by the learned senior Counsel the landlord-tenant relationship was disputed by the tenant before the Rent Control Court and the Rent Control Court entered a finding that the denial of title of the landlord is bona fide and accordingly the landlord instituted a suit for eviction before the Civil Court. In this case the tenaht has not denied the title of the landlord but they have only contended that the lease being in respect of the land or composite lease of land and building does not come within the purview of the Act 2/1965 and therefore, the Rent Control Court has no jurisdiction to entertain and try the petition for eviction.

Section 2(1) of the Kerala Act 2/1965 defines building as follows:

Definitions.-In this Act, unless the context otherwise requires,-

(1) ''building'' means any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purposes and includes-

(a) the garden, grounds wells, tanks and structures, if any, appurtenant to such building, hut, or part of such building or hut, and let or to be let along with such building or hut;

(b) any furniture supplied by the landord for use in such building or hut or part of a building or hut;

(c) any fittings or machinery belonging to the landlord affixed to or installed in such building or part of such building, and intended to be used by the tenant for or in connection with the purpose for which such building or part of such, building is let or to be let, but does not include a room in a hotel or boarding house.

Therefore, from the above definition of building given in the Kerala Act 2/1965 it is clear that the provisions of the Act will apply to only buildings as defined in the Act which includes the building and the garden, ground, well, tank and structures, if any, appurtenant to such building. It is also clear from the contention put forward by the tenant that they never put forward a claim either in the R.C.P. 12/79 or in the above suit that the lease is in respect of the building coming within the ambit of Section 2(1) of the Kerala Act 2/1965, but they set up permanent tenancy u/s 106 of the Kerala Act 1/64 as amended by contending that the lease involved in this case is in respect of land or composite lease of land and building for commercial purpose.

From the provisions of Section 11(1) and the definition of ''building, given in Section 2(1) of the Kerala Act 2/65 it is clear that the claim of permanent tenancy referred to in the second proviso to Section 11(1) is in respect of a building as defined in Section 2(1) of the Act 2/65 and it is not in respect of the tenancy contemplated under the provisions ot the Land Reforms Act. Some of the povisions of Act 2/65 like Sections 11(11), 11(17) etc. prohibit eviction of tenants in possession of building. Therefore, by no stretch of imagination it can be contended that the revision Petitioners and other Respondents in the E.P. in this case have put forward a contention that they are entitled to permanent tenancy under the provisions of Kerala Act 2/65. By merely putting forward a contention that they are not tenants in respect of the building as contemplated under the provisions of the Kerala Act 2/65 and they are tenants as provided in Section 106 of the Kerala Act 1/64 as amended, since the lease in this case is in respect of land or land and building, they cannot now contend that the permanent tenancy set up by them is in respect of the building as contemplated u/s 2(1) of the Kerala Act 2/65. Under the circumstances, in the absence of any denial of title of the landlord and claim of permanent tenancy as provided in the second proviso to Section 11(1) of Act 2/65, the revision Petitioners and other Respondents in the E.P. cannot contend that since the above suit is originated from a petition for eviction under Sections 11(2) and 11(3) of Act 2/65 filed before the Rent Control Court, the decree for eviction passed by the Civil Court without recourse to any of the provisions for eviction u/s 11 of the Kerala Act 2/65 is a nullity being without jurisdiction is not sustainable.

The facts and circumstances of the cases reported in M/s. East India Corporation Ltd. Vs. Shree Meenakshi Mills Ltd., are entirely different from the facts and circumstances obtaining in this case, as clearly noted above and therefore, the contention of the revision Petitioners based on the dicta laid down in those decisions that the judgment and decree passed by the trial Court in this case are without jurisdiction, null and void and has no effect, is not sustainable.

The counsel for the 1st Respondent submitted that since the revision Petitioners and other Respondents in the E.P. have not raised any contention that the Civil Court has no jurisdiction to pass a decree in the suit, they cannot raise such a contention in the above execution proceedings. In support of this contention he relies upon the decision in Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman and Others, wherein the Supreme Court has observed as follows:

A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take decree according its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.

But the learned Senior Counsel for the revision Petitioner submitted that the principle of res judicata has no application to an erroneous decision on jurisdiction. According to him, the decree passed in this case by the Civil Court being without jurisdiction, the validity of the decree can be challenged in execution proceedings even if no contention regarding jurisdiction of the Court was raised in the suit. In support of his arguments he relies upon the decision in Isabella Johnson v. M.A. Susai (1991) 1 S.C.C. 7 wherein the Supreme Court has observed as follows:

In our opinion a Court which has no jurisdiction in law cannot be conferred with the jurisdiction by applying principles of res judicata. It is well settled that there can be no estoppel on a pure question of law and in this case the question of jurisdiction is a pure question of law.

The proposition of law that the question of jurisdiction being a pure question of law can be raised at any stage and there is no bar of res judicata or the principle of estoppel against raising pure question of law, cannot be disputed. That dictum is of no help to the revision Petitioners and the other Respondents in the E.P. in this case. In view of the fact that the revision Petitioners and other Respondents in the E.P. have not raised any contention in the R.C.P. 12/79 or in the above suit that the lease involved in this case is in respect of a building as defined in Section 2(1) of the Kerala Act and they have only set up tenancy u/s 106 of the Land Reforms Act, the contention of the revision Petitioners and the other Respondents in the E.P. that the Civil Court has no jurisdiction to pass a decree for eviction without recourse to any of the grounds for eviction mentioned in Section 11 of the Kerala Act 2/65, is not sustainable. Therefore, the above decision of the apex Court is of no help to them.

The counsel for the 1st Respondent contended that since the revision Petitioners and the other Respondents in the E.P. have not raised any contention that they are tenants as defined in the Kerala Act 2/65 since the lease in this case is in respect of a building as defined in Section 2(1) of Act 2/65, either in the R.C.P. or in the above suit, their contention in the above execution proceedings that they are tenants coming within the purview of the Kerala Act 2/65 is barfed by res judicata and by estoppel. In support of this contention the learned Counsel relied upon the decision in Sulochana Amma Vs. Narayanan Nair, wherein the Supreme Court has observed as follows:

Therefore, Section 11 is to be read in combination and harmony with explanation VIII. The result that would flow is that an order or an issue which had arisen directly and substantially between the parties or their privies and decided finally by a competent Court or tribunal, though of limited or special jurisdiction, which includes pecuniary jurisdiction, will operate as res judicata in a subsequent suit or proceeding, notwithstanding the fact that such Court of limited or special jurisdiction was not a competent Court to try the subsequent suit. The issue must directly and substantially arise in a later suit between the same parties or their privies.

In the decision in P.K. Vijayan Vs. Kamalakshi Amma and Others, the Supreme Court has observed as follows:

Admittedly, in the former proceedings before the Rent Controller, the claim was ejectment of the Appellant on the grounds envisaged in Section 11 of the Rent Control Act. The plea of entitlement u/s 106 of the Land Reforms Act was available to the Appellant in the eviction proceedings and if it would have been raised, the Rent Controller would have had no jurisdiction to proceed further but to refer the same to the Land Tribunal for decision u/s 125(3) of the Land Reforms Act.

However, the Appellant merely chose to deny the title of the landlords and did not raise the plea of Section 106 of the Land Reforms Act. The rule of ''might and ought'' envisaged in Explanation IV to Section 11, CPC squarely applies to the facts of the case and, therefore it is no longer open to the Appellant to plead that, Civil Court has no jurisdiction to decide the matter and it shall be required to be referred to the Land Tribunal.

That apart, in the proceedings u/s 72B the Appellant pleaded that it is a land govern by the provisions of the Land Reforms Act and that, therefore, he is entitled to the assignment of the right, title and interest therein. The Tribunal found that the lease being a commercial lease, the Appellant is not entitled to the assignment of the right, title and interest in the demised land which was not vested in the state u/s 72 since the lease was not of agricultural land, demised to the Appellant. In that view of the matter and the Appellant having decided only to avail the remedy of Section 72B and omitted to plead the remedy of Section 106, it is no longer open to him to contend that he is entitled to the benefit of Section 106 of the Land Reforms Act....

We have already seen that the Land Reforms Act is a beneficial legislation and has conferred certain benefits on the tenants. The tenant is expected to raise all the pleas available under the statute at the relevant time. It is a sheer abuse of the process of the Court to raise at each successive stages different pleas to protract the proceedings or to drive the party to multiplicity of proceedings. It would be fair and just that the parties to raise all available relevant pleas in the suits or the proceedings when the action is initiated and the omission thereof does constitute constructive res judicata to prevent raising of the same at a later point of time. Thereby it must be deemed that they are waived.

In this case as already noted the revision Petitioners and the other Respondents in the E.P. have only raised the contention in the suit that they are entitled to the benefits u/s 106 of the Land Reforms Act and they have not raised any contention that the Civil Court can pass a decree only in accordance with the provisions of Act 2/1965 since the tenancy involved in this case is in respect of a building coming within the ambit of Section 2(1) of the Kerala Act 2/1965 and therefore, eviction can be allowed only on any of the grounds enumerated in Section 11 of the Act 2/1965.

In view of the fact that the revision Petitioners arid other Respondents in the E.P. failed to raise the contention in the R.C.P. No. 12/79 and in the civil suit that the lease involved in this case is one coming within the ambit of the Kerala Act 2/1965 and a decree can be passed only in accordance with the provisions of Section 11 of that Act, they cannot contend at this stage that the decree passed by the Civil Court in the suit originated from a petition for eviction filed before the Rent Control Court under the provisions of Kerala Act 2/1965 without resorting to the provisions of Section 11 of the Kerala Act 2/1965 is null and void being without jurisdiction, since they are precluded from raising that contention by the principle of res judicata u/s 11 of the CPC and estoppel.

As already noted the judgment and decree passed by the trial Court are confirmed by this Court in A.S. No. 397/83 and A.F.A. Nos. 178/91 and 39/92 and the matter is already concluded. Therefore, the decided question cannot be reopened by the tenant by taking inconsistent and divergent contentions at different stages. In the decision in Amritlal N. Shah Vs. Alla Annapurnamma, a Division Bench of the Andhra Pradesh High Court observed as follows:

Before the Subordinate Judge, the Appellant herein argued that he was not a tenant within the meaning of the Act as the lease premises did not fall within the definition of a ''building''. Having taken up that position in the rent control proceedings, it is not open to the Appellant to turn round and contend that the lease relates to a ''building'' within the meaning of the Act and that the proceedings should be taken before the Rent Controller.

I am in respectful agreement with the above observation of the A.P. High Court.

Therefore, in view of the settled position of law that a litigant cannot approbate and reprobate or blow hot and cold in the same breath, the contention of revision Petitioners and other Respondents in the E.P. that they are tenants coming within the ambit of the Kerala Act 2/1965 and therefore, the decree passed by the Civil Court is null and void, is not sustainable since they are estopped from putting forward such a contention in the above execution proceedings.

The fact that the lease involved in this case is to conduct a petrol outlet in the property which consists of land and building, the dominant intention of the parties to the lease has to prevail. It is also clear from the description of the plaint schedule property that the property consists of buildings, improvements and land. Therefore, it cannot be contended that the lease is in respect of the building as defined in Section 2(1) of the Kerala Act 2/1965.

In the decision in Uttamchand Vs. S.M. Lalwani, the Supreme Court observed as follows:

What then was the dominant intention of the parties when they entered into the present transaction? We have already set out the material terms of the lease and it Seems to us plain that the dominant intention of the Appellant in accepting the lease from the Respondent was to use the building as a Dal Mill. It is true that the document purports to be a lease in respect of the Dal Mill building; but the said description is not decisive of the matter because even if the intention of the parties was to let out the Mill to the Appellant, the building would still have to be described as the Dal Mill building. It is not a case where the subject-matter of the lease is the building and along with the leased building incidentally passes the fixture of the machinery in regard to the Mill; in truth, it is the Mill which is the subject-matter of the lease, and it was because the Mill was intended to be let out that the building had inevitably to be let out along with the Mill.

Therefore, it is clear from the lease involved in this case that the dominant intention of the parties at the time of the lease was to lease out the building along with the land to run a petrol outlet and not to lease out the building as provided under the Kerala Act 2/1965 and that fact is clear from the claim value of improvements put forward by the revision Petitioners and other tenants in this case.

It is also pertinent to note that the parties cannot change the intrinsic character of the lease or bring about a change of the rights and obligations flowing therefrom by their pleadings. In the decision in Provash Chandra Dalui and Another Vs. Biswanath Banerjee and Another, the Supreme Court observed as follows:

In Smt. Shanti Devi Vs. Amal Kumar Banerjee, , it was held that parties could not by their pleadings alter the intrinsic character of the lease or bring about a change of the rights and obligations flowing therefrom. The Court would only look into the terms of the lease irrespective of the averments in the pleading. In the instant case as we have already held the lease to have been for twenty years, its character could not have been changed by the pleadings, if any, in the above cases. Nor could the Respondents be held to have waived their rights under the lease. We do not find any infirmity in the impugned High Court order on this count also.

Therefore in view of the fact that the lease involved in this case is in respect of the land and building, the revision Petitioners now cannot contend that the lease is in respect of a building as defined in section 2(1) of the Kerala Act 2/1965 by putting forward such a contention in the pleadings in the execution petition.

From my foregoing discussions it is clear that the contention of the revision Petitioners and the other Respondents in the E.P. that the decree passed by the lower Court in this case is null and void being without jurisdiction since the Civil Court has no jurisdiction to pass a decree except by resorting to the grounds enumerated in Section 11 of the Kerala Act 2/1965 in a suit eminated from a proceedings before the Rent Control Court filed for eviction under the provisions of the Kerala Act 2/1965, is not sustainable and therefore the lower Court has rightly negatived the contentions put foward by the revision Petitioners and the other Respondents in the E.P. in that behalf.

Hence the order passed by the execution Court impugned in the above revision petitions is confirmed arid the revision petitions are dismissed. The parties are directed to bear their respective costs in these revision petitions.