Thankachan vs V.Gireesh Kumar

Ajithkumar, J.

The respondent filed R.C.P. No.32 of 2019 before the Rent Control Court (Munsiff), Sulthanbathery for eviction of the petitioner-tenant under

Sections 11(2)(b), 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The petitioner filed a counter statement denying the

respondent's title to the petition schedule building and also the landlord-tenant relationship. He filed I.A.No.1 of 2020 in the R.C.P. seeking to decide

the maintainability of the Rent Control Petition. The respondent filed a counter statement. The Rent Control Court after hearing both sides, dismissed

I.A.No.1 of 2020 as per order dated 23.02.2021. Feeling aggrieved of the said order, the petitioner filed this Original Petition invoking the supervisory

jurisdiction of this Court under Article 227 of the Constitution of India.

The case of the respondent is that he purchased the landed property having an extent of 27.33 ares along with the petition schedule building by

virtue of Sale Deed No.749 of 2018. The petitioner was residing in the said building as a tenant on the basis of a lease agreement dated 15.10.2008.

He has been holding over the tenancy and the rate of rent is Rs.1,000/- per month. Rent since February 2018 has been in arrears. The petitioner sublet

the building to three persons, namely, Smt.Mary Sebastian, Sri.Babychan and Smt.Rany Mol and they are in occupation of a portion of the building.

The respondent requires the building for his residence. On the said grounds, eviction was sought.

The petitioner apart from denying the allegations and pleas about arrears of rent, subletting and respondent's need of the building for his own

occupation, set forth a contention that 27.33 ares of land along with the petition schedule building and its adjoining one acre of land originally belonged

to his father and document No.4710 of 2008 was happened to be executed by his father just as a security. He contended that he did not execute any

rent agreement, but it was fabricated by making use of blank signed stamp papers obtained from him. It is his contention that he happened to borrow

money from one Sri.Shibin and as security to the said loan, document No.4710 of 2008 was happened to be executed by his father. Its subsequent

conveyance deeds, including the one in favour of the respondent are sham documents. He never paid any rent to the respondent or anyone else. There

were criminal cases with regard to the transactions referred to above. On the said grounds, the petitioner challenged the maintainability of the R.C.P.

Setting forth those contentions, the petitioner had filed I.A.No.1 of 2020. In the counter statement filed by the respondent in I.A.No.1 of 2020, he

denied the allegations about validity of document No.4710 of 2008 in favour of Sri.Shibin and its subsequent conveyance deeds. He also reiterated that

the rent agreement was validly executed by the petitioner and there exists a landlord-tenant relationship.

The Rent Control Court, after considering Exts.A1 to A8 and B1 to B9(b) and also hearing both sides, dismissed I.A.No.1 of 2020. The Rent

Control Court found that title of the respondent was established from the documents, particularly, Exts.B2 to B8 produced before that court, and

therefore, the denial of respondent's title made by the petitioner was without any bonafides.

Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.

The point arises for consideration is whether the order of the Rent Control Court dated 23.02.2021 in I.A.No.1 of 2020 in R.C.P.No.32 of 2019

requires interference.

Building bearing door No.XIII/195 of Noolpuzha Panchayat (new number 16/146) is the subject matter in R.C.P.No.32 of 2019. Ext.P9 is a copy of

the rent control petition. Ext.P10 is the counter statement filed in that petition by the petitioner herein. It is beyond dispute that the said building

originally belonged to the father of the petitioner. The respondent traces his title to Ext.R1(a), sale deed No.4710 of 2008 dated 13.10.2008 executed

by the father of the petitioner in favour of one Shibin. Sri.Shibin has executed Ext.R1(b) sale deed No.1163/2017 on 17.03.2017 conveying the said

property in favour of Sri.Shajeer T.T. It was from the said Shajeer, the respondent had purchased the property having an extent of 27.33 ares,

wherein the petition schedule building is situated. The contention of the petitioner is that Ext.R1(a) was executed as a security document, when he had

to borrow money from Sri.Shibin at an exorbitant rate of interest. The petitioner accordingly contended that, at any point of time, the title to the petition

schedule building and the land, where it is situated, has been divested. He claims that despite execution of such documents, his father continued to be

the owner. When his father died the title devolved upon him, his mother and siblings. The learned counsel for the petitioner placing reliance on Exts.P1

to P6 contended that the rent control petition is not maintainable for two reasons, that (i) the respondent has no title to the petition schedule building

and (ii) there is no landlord-tenant relationship between the petitioner and the respondent. The learned Counsel would contend that the two points are

intertwined and required to be considered together.

The learned counsel appearing for the respondent would point out that Ext.R1(d) (Ext.B1 in the R.C.P.) is the rent agreement executed by the

petitioner and in the light of that and Exts.R1(a) to R1(c), the petitioner cannot raise a contention that he is not the tenant in the petition schedule

building. The learned counsel also would contend that execution of Ext.P1 was not specifically denied by the petitioner, and therefore, the order of the

Rent Control Court dismissing I. A.No.1 of 2020 is correct and no interference to it is warranted.

Section 11 of the Act deals with eviction of tenants. As per Section 11(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. As per the

first proviso to Section 11(1), 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. As per the second proviso to Section 11(1), 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

that 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. Therefore, whenever there is denial of title of the landlord, the Rent Control Court is obliged to decide that question and depending upon

the finding thereon, the court has to proceed further either directing the petitioner to approach the civil court or proceed to consider the grounds for

eviction on merits. There can be various circumstances in which the tenant may deny the landlord-tenant relationship. He may be a licensee or a

mortgagee or a trespasser or a partner and in such circumstances he may deny the landlord-tenant relationship.

This Court in Khadeeja and Others v. Haris Haji V. [2019 (3) KLT 693] held that mere denial of landlord-tenant relationship in all

circumstances would not oust jurisdiction of Rent Control Court. There are various circumstances in which the tenant may deny the landlord tenant

relationship. He may be a licensee or a mortgagee or a trespasser or a partner and in such circumstances he may deny the landlord tenant

relationship. The court held that the denial of landlord-tenant relationship would oust the rent control petition from the jurisdiction of the Rent Control

Court, if only the denial of the landlord tenant relationship arises out of denial of title or claim of permanent tenancy. In the absence of denial of title or

claim of permanent tenancy, the mere denial of landlord tenant relationship only would not, under any other circumstance, oust the rent control petition

from the jurisdiction of the rent control court and such rent control petition shall not be considered under the second proviso to Section 11(1) of the

Act. In short, denial of landlord tenant relationship that arises out of denial of title of the landlord or claim of permanent tenancy alone would fall under

Section 11(1) of the Act.

That view was followed in Satheesh Kumar and another v. K. Balasubramanian [2021 (2) KHC 483], but narrowed down the principle a bit. It

was held, “What is contemplated under Section 11(1) of the Rent Control Act is a ""bona fide denial of title or claim of right of permanent tenancy

and not a ""bona fide denial of landlord-tenant relationship"". Even if the landlord-tenant relationship is denied, same will not fall within Section 11(1)â€​.

The question was elaborately considered by a Full Bench of this Court in P.M. Parthakumar v. Ajith Viswanathan and others [2006 (2) KLT 250].

The Full Bench dilated the question and laid down the principle in the following words:

'18. The Legislature was conscious of the fact that there could be disputes as to whether there exists landlord-tenant relationship. A person who is proceeded against

as a tenant may have to raise a contention that there is no landlord-tenant relationship and that he is not a tenant. The landlord claiming eviction must have title to

evict. If he has no title to evict and such a contention is raised, the jurisdiction to decide that dispute rightly vests in civil courts following exhaustive procedure and

not in the Special Tribunals constituted to decide a limited category of disputes following summary procedure. Therefore where existence of landlord-tenant

relationship, i.e. title of the landlord to claim eviction against the person proceeded against, is itself seriously disputed, certainly the Special Tribunals must take their

hands off the dispute and leave the parties to resolve their disputes before the regular civil courts constituted. The Tribunals following summary procedures cannot

usurp the powers and jurisdiction of the civil courts to decide such disputes regarding title. Such substantial disputes regarding title are uplands and out of bounds

for the statutory special tribunals. That is the zone or area where the civil court must entertain jurisdiction. Therefore when certain categories of disputes arise

between the contestants about the very title of the landlord to claim eviction against the persons proceeded against under Section 11, such disputes must certainly

be decided by the regular civil courts.'

What then is the title of the landlord contemplated under the second proviso to Section 11 (1) of the Act. Title, it is trite, is the sum total or the bundle of rights in

respect of property. The paramount title of the landlord is absolutely irrelevant for the purpose of a claim under Section 11. His title as the landlord alone is relevant in

a dispute under Section 11 of the Act. Is he the landlord of the person proceeded against? If he is, he has the requisite title to sustain the claim for eviction under

Section 11. He may be only a mortgagee or a lessee who had leased/sub leased the building. A denial of paramount title is, in these circumstances, irrelevant if the

person proceeded against is the tenant and the person making the claim is the landlord. Proprietary title of the person claiming eviction is thus irrelevant and the

denial contemplated under Section 11(1) of the Act could never have been the denial of paramount or proprietary title. The denial of paramount title may in a given

case include the denial of title as landlord also. Such title as landlord alone is essential to sustain a claim for eviction under Section 11(1) of the Act. All that we intend

to take note is that the denial of paramount or proprietary title is irrelevant and that is not the precise denial of title contemplated under the second proviso to Section

11(1) of the Act. The denial of title as landlord alone is relevant. So wherever there is a denial of the right of the landlord to claim eviction on the ground that he is not

the landlord of the person proceeded against, such denial must certainly be reckoned as denial of title of the landlord as contemplated under Section 11(1) of the Act.

In short, we are of opinion that denial of landlord-tenant relationship between the claimant/landlord so called and the respondent/tenant so called is the denial of title

which alone is contemplated under the second proviso to Section 11(1). If there is admission of such title, the Rent Control Court certainly has jurisdiction to proceed.

If that is in dispute, second proviso to Section 11(1) comes into play. The Supreme Court referred to the distinction in the concept of ownership in a claim for eviction

under the Rent Control legislation in contradistinction to the same in a title suit in the following words in para 10 in Sheela and others v. Firm Prahlad Rai Prem

Prakash [(2002) 3 SCC 375] are refer to:

'10. ......... the concept of ownership in a landlord-tenant litigation governed by rent control law has to be distinguished from the one in a title suit. Ownership is a

relative term, the import whereof depends on the context in which it is used. In rent control legislation, the landlord can be said to be the owner if he is entitled in his

own legal right, as distinguished from for and on behalf of someone else, to evict the tenant and then to retain, control, hold and use the premises for himself. What

may suffice and hold good as proof of ownership in a landlord-tenant litigation probably may or may not be enough to successfully sustain a claim for ownership in a

title suit'.'

Therefore the principle flows from the second proviso to Section 11(1) of the Act is clear. That a denial of landlord-tenant relationship may not

oust the jurisdiction of the Rent Control Court from considering a rent control petition. But when the plea denial of the landlord-tenant relationship

arises out of denial of title or claim of permanent tenancy the position is different. If the two contentions are so interwoven that a decision on the title

of the landlord is mandatory to answer the question whether there exists a landlord-tenant relationship, the bar under the second proviso to Section

11(1) of the Act gets attracted. In the absence of denial of title or claim of permanent tenancy, the mere denial of landlord-tenant relationship would

not oust the jurisdiction of the rent control court from entertaining the rent control petition. In other words, denial of landlord-tenant relationship that

arises out of denial of title of the landlord or claim of permanent tenancy alone would fall under Section 11(1) of the Act. It follows that except where

there is real or constructive denial of title or claim of permanent tenancy resulting in cessation of jurisdiction, the Rent Control Court necessarily has to

consider on merits the question, whether there is any landlord-tenant relationship.

We hasten to add that in cases to which the second proviso to Section 11(1) of the Act applies and the Rent Control Court records a finding that

the denial or claim is bona fide, 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 the Section. On the other hand, in cases where the landlord-tenant relationship is denied which do not fall

within the parameters of Section 11(1) of the Act, the Rent Control Court should consider that question on its merits. In case the landlord proves

tenancy, the Rent Control Court will proceed to decide the claim for eviction. On the other hand, if the landlord fails to prove tenancy, the Rent

Control Court has to dismiss the RCP by finding that there is no landlord-tenant relationship. In such a case of dismissal, the landlord need not file a

suit for eviction within the meaning of the second proviso to S.11(1) of the Act; the landlord need only to file an ordinary civil suit with appropriate

relief, for getting possession.

Back to the case on hand, in Ext.P10, the counter statement filed in the rent control petition, the petitioner stated in paragraph No.7 that by making

use of the blank signed stamp paper and other papers the rent agreement, Ext.R1(d) was falsely created. In view of such a specific plea, it cannot be

said that execution of Ext.R1(d) was not denied. In that context, Ext.P6 assumes much importance. It is a copy of the complaint submitted by the

respondent before the Circle Inspector of Police, Sulthanbathery. The respondent does not deny submission of such a complaint. The allegations in the

said complaint is that the petition schedule building has been kept under lock and key by the respondent, but when he reached there on 11.05.2019, the

petitioner saw that it had been trespassed into and occupied by the respondent, after demolishing the lock. It was after submission of such a complaint,

Ext.P7 notice was sent to the petitioner asking to quit the petition schedule building describing him as the tenant in that building. Although the

respondent claims that the petitioner has been a tenant in the petition schedule building since execution of Ext.R1(d), which was on 15.10.2008, there

is absolutely nothing on record to show that the petitioner has ever paid rent either to Sri.Shibin or his successors in interest including the respondent.

Ext.R1(b) and R1(c) documents were executed subsequent to Ext.R1(d). Why the rental arrangement has not been stated in those documents, further

casts doubt on the plea of the respondent regarding the tenancy.

Exts.P1 to P6 would show that there has been dispute between the petitioner on the one side and the predecessors in interest of the respondent on

the other, regarding title to the petition schedule building and the appurtenant land. These documents further would show that there were so many

police complaints between them relating to that dispute. All the same, it is important to note that Ext. R1(a) is a sale deed executed by the father of

the petitioner and duly registered under the provisions of the Registration Act,1908. Its execution is not in dispute. When the parties accept the recitals

in a registered document, a party to it or his representative in interest is not entitled to adduce contrary extrinsic parole evidence. Under the provisions

of Section 91 the Indian Evidence Act, 1872 where the terms of a contract are reduced into the form of a document, as is required in the law, no

evidence can normally be adduced in proof of the terms of such contract, except the document itself. As per Section 92 of the Evidence Act, when

the terms of a contract are reduced into the form of a document, no evidence of any oral agreement or statement shall be admitted as between the

parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to or subtracting from its terms. But

the position may be different if the contention is that the document was never intended to be acted upon. Here the specific contention of the petitioner

is that Ext.R1(a) was executed just as a security document and it was not intended to be acted upon.

In George and another v. Annakutty and others [2017 (4) KLT 553], the facts were that the vendors did not rely upon the document nor did

attempt to prove a transaction at variance from the terms as incorporated therein, but it was their contention that the document in fact was a fictitious

one which was never intended to operate or to affect any interest in the immovable property. The Division Bench held,

'The bar imposed under Section 92 of the Indian Evidence Act which prohibits any party from adducing evidence varying the terms of a contract operates only when

the party to the document relies upon the document. Here, as noticed supra, it is the contention of the vendors that Ext.A1 is a nominal document not intended to

take effect and has not taken effect. A similar issue came up for consideration before the Apex Court in Smt. Gangabai v. Smt. Chhabubai [1982 KHC 228 : AIR 1982

SC 20 : 1982 KLT SN 1 : 1982 (1) SCC 4 : 1982 (1) SCR 1176 : 1982 Mah LJ 1], wherein the contention was that for availing a loan of Rs.2,000/- the borrower was

required to execute a nominal document of sale along with a rent note. The contention was that the document was never intended to be acted upon, that the

possession of the property continued with the borrower/executant. The Apex Court, referring to the decision of the Privy Council in Tyagaraja Mudaliyar v.

Vedathanni [AIR 1936 PC 70] held thus:

'The next contention on behalf of the appellant is that sub-section (1) of Section 92 of the Evidence Act bars the respondent from contending that there was no sale

and, it is submitted, the respondent should not have been permitted to lead parole evidence in support of the contention.

xxx xxx xxx

It is clear to us that the bar imposed by sub-section (1) of Section 92 applies only when a party seeks to rely upon the document embodying the terms of the

transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of

any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub-section is

not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the

document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was

intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an

agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties. Tyagaraja Mudaliyar v. Vedathanni [AIR

1936 PC 70]. The Trial Court was right in permitting the respondent to lead parol evidence in support of her plea that the sale deed dated January 7, 1953 was a sham

document and never intended to be acted upon.'

In view of the above legal principle the petitioner is able to adduce evidence including oral evidence in support of his contention that Ext.R1(a) is a

sham document and the respondent did not acquire title to the petition schedule building by virtue of Exts.R1(a), R1(b) and R1(c). Along with that

Ext.P1 can have relevance while considering the dispute. It is a copy of an agreement purported to have been executed by Sri Shibin, the buyer in

Ext.R1(a) agreeing to convey the property covered by that document in favour of either the petitioner or his representative.

What emerges from the above is that the denial of the respondent's title to the petition schedule building and consequently he has no right to claim

eviction under the provisions of Section 11 of the Act is a bonafide plea. The Rent Control Court failed to consider the materials on record in the

proper perspective and the findings in the impugned order went wrong. We are of the view that I.A.No.1 of 2020 in R.C.P.No.32 of 2019 ought to

have been allowed by the Rent Control Court.

In Radhey Shyam and another v. Chhabi Nath and others [(2015) 5 SCC 423], the Apex Court held that in exercise of supervisory jurisdiction

under Article 227 of the Constitution of India, the High Court may not only quash or set aside the impugned proceedings, judgment or order, but it may

also make such directions as the facts and circumstances of the case may warrant, may be, by way of guiding the inferior court or tribunal as to the

manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases, the High Court, while

exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or tribunal should

have made. Therefore it is well within the powers of this Court to pass appropriate orders regarding disposal of the I.A as well as RCP.

Accordingly, the Original Petition is allowed and the order dated 23.02.2021 in I.A.No.1 of 2020 in R.C.P.No.32 of 2019 of the Rent Control Court

(Munsiff), Sulthanbathery is set aside. R.C.P.No.32 of 2019 is dismissed as not maintainable in view of the second proviso to Section 11(1) of the Act.

The respondent is entitled to sue for eviction in the competent civil court.