IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 SA.No. 784 of 1996(B) ------------------------------- AS.20/1988 of SUB COURT,KOTTARAKKARA OS.213/1986 of MUNSIFF COURT, KOTTARAKKARA .................... RESPONDENTS/APPELLANT: (S)/ HEIRS OF DECEASED DEFENDANT. ------------------------------------------ 1. OMANA AMMA JANAKI AMMA- INDIRA-MANDIRAM, PADINJATTINKARA, KOTTARAKARA FROM POONGOTTUVILA PUTHEN VEEDU, THETTIYOTTU. 2. JANAKI AMMA, SANTHAMMA OF DO. DO. 3. MADHAVAN NAIR, BALAKRISHNAN NAIR OF DO. DO. 4. MADHAVAN NAIR, VASUDEVAN NAIR OF DO. DO. 5. MADHAVAN NAIR, RADHAKRISHNAN NAIR OF DO. DO. 6. JANAKI AMMA, INDIRADEVI AMMA OF DO. DO. 7. MADHAVAN NAIR, VIJAYAN NAIR OF DO. DO. 8. MADHAVAN NAIR, VISWANATHAN NAIR OF DO. DO. BY ADVS.MR.C.V.VASUDEVAN MR.K.G.DEVARAJAN RESPONDENT(S): ------------------------- THE SADANAMDAPURAM AVADHOOTHASARAM, A HINDU- RELIGIOUS MUTT, SITUATED AT SADANANDAPURAM, VETTIKKARVALA VILLAGE, KOTTARAKARA TALUK, REP.BY ITS MAHANT PREMANADA BHARATHI, SANYASINI RESIDING IN AVADHOOTHASRAMAN, SADANANDAPURAM (DIED). S.A.NO.784/1996 ADDL. R2 IS IMPLEADED. 2. THE SADANANDAPURAM AVADHOOTHASARAM, A HINDU RELIGIOUS MUTT, SITUATED AT SADANANDAPURAM, VETTIKKARA VALA VILLAGE, KOTTARAKARA TALUK, REP.BY ITS MAHANT SANKARANANTH SWAMI SANYASI RESIDING IN AVODHOOTHASARAMAN, SADDANANDAPURAM. ADDL. R2 IS IMPLEADED AS PER ORDER DT. 24.8.98 ON CMP. NO.890/98. BY MR.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE MR.P.GOPAL THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.1646/1996 IN SA. NO.784/1996 DISMISSED 13/07/2009 SD/- P.S.GOPINATHAN, JUDGE TRUE COPY P.A. TO JUDGE TSS P.S.GOPINATHAN, J. == = = = = = = = = = = = = = = = = = SA.No.784 of 1996. = = = == = = = = = = = = = = = = = = Dated this the 13th day of July, 2009. J U D G M EN T The appellants are the legal heirs of the defendant in OS.No.213 of 1996 on the file of the Munsiff, Kottarakkara. The respondent herein instituted the above suit against against the predecessor of the appellants seeking a decree for eviction with arrears of rent with a pleading that the plaint schedule property was let out to the predecessor of the appellants by virtue of Ext.A1 rent deed dated 6.2.1951 for a monthly rent of Rs.20/- for a period of one year and that even after the expiry of the period of the lease, the deceased defendant was holding over as a tenant. The respondent while so, filed a petition as RCP.No.1/1979 before the Rent Controller, Kottarakkara seeking an order of eviction under section 11 of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as the 'Act'). That petition was dismissed. Against that, an appeal as BRCAS.No.4/1980 was preferred. That appeal was also dismissed. Thereupon a revision petition was filed before the District Court as RCRP.No.1/1981 which was SA.No.784 of 1996. -: 2 :- also dismissed. Assailing that order CRP.No.608/1982 was filed before this Court. While so, Ext.A9 notification was issued by the Government whereby the building owned by the respondent was exempted from the purview of the 'Act'. Thereupon the respondent sought permission of this Court to withdraw the revision petition with a plea that the revision petition had become infructuous. Accordingly, that revision petition was disposed off. Thereafter Ext.B1 notice dated 12.5.1986 was issued to the original defendant terminating the tenancy and calling upon him to surrender vacant possession of the shop room. But, the building was not surrendered. Whereas Ext.A3 reply with untenable contentions were caused. It was also contended by the first respondent that the rent in respect of the plaint schedule building was kept in arrears from 1.4.1986. With these pleadings, the suit was instituted. 2. The deceased defendant filed a written statement contending that the notification mentioned in the plaint is as a result of a fraud and it is void and that the transaction in between the first respondent and the first defendant is prior to the notification and so the notification is not binding upon the plaint schedule property and that it is incorrect to say that the civil revision petition before this Court has become infructuous and that in view SA.No.784 of 1996. -: 3 :- of the order in RCP 1/79, the suit is barred by resjudicata and that the tenancy was not properly terminated and that the notice is not a valid one and that the defendant was not liable to be evicted and that since the first respondent refused to accept the rent and it has become arrears and prayed for dismissal of the suit. 3. After raising the issues, parties were sent for trial. On the side of the respondents, the manager of the respondent was examined as Pw1 and Exts.A1 to A9 were marked. The deceased defendant did not adduce any oral evidence. The notice caused by the respondent was marked as Ext.B1. The trial court on appraisal of the evidence arrived at a finding that by virtue of Ext.A9 notification the plaint schedule property is exempted from the purview of the 'Act' and that the tenancy was properly terminated and that there is arrears of rent and that defendant is liable to be evicted. Consequently, the suit was decreed. 4. Assailing the judgment and decree, an appeal as AS.No.20 of 1988 was preferred. The learned Subordinate Judge, Kottarakkara by judgment and decree dated 25.11.1995 concurred with the trial court and the appeal was dismissed. Against the concurrent findings of the courts below, this second appeal was preferred. SA.No.784 of 1996. -: 4 :- 5. The following are the substantial questions of law raised in the appeal memorandum. A. Does Ext.A1 rent deed and its terms survive after the shop room was taken possession by the official receiver appointed in OS.No.62/1962 on the file of the District Court, Kollam. B. Can the plaintiff treat the defendant as a holding over tenant after the official receiver from 20.10.1963 to 1.10.1970. Can the plaintiff reply on Ext.A1 after receiver's possession. C. Is the suit hit by operation of S.106 of the Transfer of Property Act. D. Is the tenancy validly terminated. E. Is Ext.B1 notice legal and valid. F. Has not the plaintiff made the defendant a defaulter in payment of rent by refusing to accept the rent sent by money order. On whom the burden lies. G. Are the decisions rendered by the rent control court made mention in the judgment operate as resjudicata for a relief of recovery of possession of the shop room. H. Is Ext.A9 notification bonafide or in public interest or passed to get over the adverse decisions rendered by the rent control court. I. Did not the courts below err in not considering the case of the defendant in a true perspective. 6. Having gone through the pleadings, evidence and hearing the SA.No.784 of 1996. -: 5 :- learned counsel on either side, I find that the deceased defendant, the predecessor of the appellants was a tenant under the respondent by virtue of Ext.A1 lease deed. Though the plaint schedule property was taken possession by the official receiver in OS.No.61/1962, the nature of the transaction between the respondent and the deceased defendant was not disturbed. More than that, the official receiver surrendered the plaint schedule property back to the respondent. There is nothing to show that taking up of possession by the official receiver any way infringed with any of the rights of the respondent or that it had enured to any additional right to the tenant. So irrespective of taking up of possession of the plaint schedule property by the receiver, the deceased defendant continued to hold on as a tenant under Ext.A1 lease deed. Grounds No.A and B are relating to the taking up of possession by the receiver. So, no question of law is involved as regards the taking up possession of the plaint schedule property by the receiver so as to be adjudicated in this second appeal. 7. Grounds No.C, D and E are relate to the question of termination of tenancy. Going through Ext.B1 it is seen that the intention of the respondents is specific and expressed in black and white and there is demand to surrender possession of the plaint schedule property. Due time SA.No.784 of 1996. -: 6 :- was given for surrender. The defendant did not care to adduce any evidence to show that the tenancy was not properly terminated. Ext.B1 notice is dated 12.5.1986. The suit was filed on 30.6.1986. The courts below had gone through the notice and arrived a conclusion that Ext.B1 is a valid notice terminating the tenancy. In the appeal memorandum, though it is vaguely stated that Ext.B1 is invalid as it didn't satisfy the conditions in Section 106 of the Transfer of Property Act, there is no whisper as to which condition was violated or for what reason it is invalid. So the said plea is a hollow one and deserves no consideration. The learned counsel for the appellant could not point out any reason to conclude that the tenancy was not properly terminated or that there is any defect in Ext.B1. The finding of the courts below regarding the termination of tenancy is a question of fact and no question of law is involved especially in the absence of any material to conclude that Ext.B1 notice in any way defective. Hence these grounds are found against the appellants. 8. Ground No.F is relating to the arrears of rent. It is submitted by the learned counsel for the appellant that the rent happened to be in arrears because of the refusal by the respondent and now that was cleared. 9. Ground No.G urged is that the order in RCP.1/79 would SA.No.784 of 1996. -: 7 :- operate as resjudicata. It is admitted that while Ext.A9 notification was issued, the rent control proceedings were not finalised. Pending civil revision petition before this Court, Ext.A9 notification exempting the plaint schedule property from the purview of the Kerala Buildings (Lease and Rent Control) Act was issued. It is thereupon the respondents preferred the above suit before the lower court. So the rent control proceedings had not come to a finality so as to enable the appellant to contend that the suit was in any way barred by resjudicata. Adding to that, the main object of the 'Act' is to regulate the leasing of buildings and to control the rent of such buildings. It also provides procedures for eviction of the buildings that comes within its purview. Any order passed under that 'Act' would ceased to operate, for any purpose other than to show that there was such proceedings, once the building is exempted from its purview by notification issued in exercise of the powers conferred under Sec.1(3) of that 'Act'. An order dismissing petition for eviction under Sec.11 of the 'Act' would not operate as resjudicata, in a suit for eviction instituted after exempting the building from the purview of the 'Act'. 10. Though it is alleged that Ext.A9 was issued as a result of fraud and hence void, no evidence was adduced to show that there was any fraud SA.No.784 of 1996. -: 8 :- in issuing Ext.A9 or any way void. All the questions of law urged by the appellant lack substance. The appeal is devoid of merit. Accordingly it is dismissed. No costs. P.S.GOPINATHAN, JUDGE. Kvs/- SA.No.784 of 1996. -: 9 :- P.S.GOPINATHAN, J. ================== SA.No.784 of 1996. ================== JUDGMENT 13th July, 2009.