IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 RCRev..No. 55 of 2008() ----------------------- RCA.10/2007 of II ADDL.DISTRICT COURT (II ADDL.RENT CONTROL APPELLATE AUTHORITY),TRIVANDRUM RCP.17/2005 of RENT CONTROL COURT, TRIVANDRUM .................... REVISION PETITIONER/APPELLANT/PETITIONER: ------------------------------------------------------------------------- A.R.RETHEESH CHANDRAN, ANANDHA BHAVAN, THIRUVALLAM VILLAGE, THIRUVALLAM, THIRUVANANTHAPURAM. BY ADV. SRI.V.S.BABU GIREESAN RESPONDENT(S): RESPONDENT/COUNTER PETITIONER: --------------------------------------------------------------------------------------- SAROJINI AMMA, T.C.64/06, VARAMBIL VEEDU, THIRUVALLAM VILLAGE, THIRUVALLAM, THIRUVANANTHAPURAM. BY ADV. SRI.K.B.PRADEEP THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 22/11/2010, THE COURT ON 02/12/2010 PASSED THE FOLLOWING: Kss 'CR' PIUS C. KURIAKOSE & K. SURENDRA MOHAN, JJ. ------------------------------------------------------------ R.C.R. NO: 55 OF 2008 ----------------------------------------------------------- Dated this the 2nd December, 2010. O R D E R Surendra Mohan, J. The landlord is in revision before us challenging the concurrent findings of the Rent Control Court as well as the Appellate Authority. The short facts of the case are the following. 2. The revision petitioner/landlord filed RCP 17/2005 before the Rent Control Court, Thiruvananthapuram, seeking eviction of the respondent/tenant under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as the 'Act' for short). The petition was resisted by the tenant disputing the title of the landlord. The tenant also contended in the alternative that the title, if any of the landlord, had been lost by adverse possession and limitation. In view of the fact that the title of the landlord itself was denied by the tenant, the Rent Control Court proceeded to consider whether the denial of title was bonafide. The Rent Control Court found that the denial of RCR 55/2008 2 title was bonafide and therefore relegated the landlord to the remedy of filing a civil suit. The order of Rent Control Court was challenged by the landlord before the Rent Control Appellate Authority, Thiruvananthapuram in RCA 10/2007. The Appellate Authority also concurred with the findings of the Rent Control Court and dismissed the appeal. Therefore, both the authorities below have found that the remedy of the landlord is by way of a civil suit, without entering any findings on the merits of his claim for eviction. The said findings are under challenge in this revision. 3. According to the counsel for the revision petitioner, the petition schedule building is situate in a Panchayat area to which the provisions of the Rent Control Act had not been made applicable. Therefore, for the purpose of getting vacant possession of the tenanted building, the revision petitioner had earlier filed O.S.719/98 before the Munsiff's Court, Thiruvananthapuram. The suit was filed seeking a decree for eviction of the respondent-tenant, for the recovery of arrears of rent and for a permanent prohibitory injunction. According to the revision petitioner, an extent of 3.200 cents of land with the residential building bearing No: T.P.I/63 belonged to him RCR 55/2008 3 absolutely, having obtained the same as per gift deed No: 2922 dated 28/12/1995. On the date of the gift deed itself, the tenant was informed of the change of ownership and she agreed to the landlord to pay rent at the rate of Rs.300/- per month. Though she paid rent up to June 1996, she defaulted the same thereafter. In spite of repeated demands, she omitted to pay the rent. In the above circumstances, there were some mediation talks consequent to which, the tenant agreed to pay the entire arrears of rent and to vacate the building by 31/12/1997. However, she did not abide by the terms of the said undertaking. Therefore, on 2/1/1998 a registered notice was issued to her terminating the tenancy and demanding vacant possession of the building together with the arrears of rent payable. However, the tenant refused to receive the notice. According to the landlord he needed the tenanted building for his own residence. The marriage of the landlord was to take place on 10/5/1998 and therefore, he wanted vacant possession of the building urgently. It was in the above circumstances that the suit was filed. The suit was contested by the respondent-tenant who was the sole defendant therein. RCR 55/2008 4 4. According to the respondent-tenant the suit was not maintainable for the reason that the landlord-plaintiff had suppressed material facts. The averment that the respondent was a tenant was stoutly denied. According to the respondent, she had no tenancy arrangement either with the plaintiff or with his predecessor-in-interest. She disputed the genuineness of the document of title of the plaintiff, a gift deed executed by one Parameswaran Pillai who was the owner of the property. According to her the document was created with the malafide intention of depriving her of the property. The respondent contended that, she was in possession and enjoyment of the property in continuation of the possession of her predecessor-in-interest who was having jenmom rights in respect of the same, obtained on the extinguishment of a mortgage. The respondent's case is that her grandmother Easwary Amma Parvathy Amma had acquired possession of the property pursuant to a mortgage as per deed No: 5573/1119 M.E. Thereafter, she was in possession and enjoyment of the property and the building till her death. After her death, her rights devolved upon her four daughters Janamma, Pachy Amma, Chellamma and Ponnamma. The respondent is the RCR 55/2008 5 daughter of Janamma. After the death of her grandmother, the respondent's mother Janamma was in possession and enjoyment of the property as a mortgagee. While so, the right of redemption of the mortagor was lost by the law of limitation and she became the absolute owner of the property and building. Though the property was sold as per sale deed No: 3810/54 in favour of the predecessor-in-interest of the revision petitioner with a direction therein to redeem the mortgage of 1119 M.E, the same was not redeemed. Nor was possession of the property acquired by the purchaser, pursuant to the same. According to the respondent though there is a statement in the gift deed executed in favour of the revision petitioner that possession was given to him, the said recital was absolutely without any basis. Therefore, the respondent contended that revision petitioner had obtained neither title nor possession in respect of the property of the building. Consequently, he had no right to claim recovery of possession of the building or the property. Therefore, she prayed for dismissal of the suit. 5. The Munsiff's Court, Thiruvananthapuram tried the suit on the above pleadings. Both parties adduced evidence, documentary RCR 55/2008 6 as well as oral. On the side of the plaintiff/landlord, exts.A1 to A16 documents were marked and P.Ws 1 to 3 were examined as witnesses. On the side of the tenant exts.B1 and B2 documents were marked and the tenant's son was examined as D.W.1. After an elaborate consideration of the rival contentions of the parties as well as the evidence on record, the Munsiff's Court, Thiruvananthapuram, decreed the suit. 6. The respondent-tenant challenged the judgment and decree of the Munsiff's Court, Thiruvananthapuram by filing A.S.68/2001 against the same before the I Additional Sub Court, Thiruvananthapuram. However, during the pendency of the appeal, the Thiruvallam Panchayat area where the tenanted house is situate, was included within the limits of the Thiruvananthapuram Corporation, thereby making the provisions of the Rent Control Act applicable to the building. When the appeal came up for hearing, a contention was raised on behalf of the tenant that the judgment and decree appealed against was a nullity for the reason that the provisions of the Rent Control Act had been made applicable to the area. The above contention of the tenant was accepted by the Appellate Court and the judgment RCR 55/2008 7 and decree of the Munsiff's Court, Thiruvananthapuram in O.S.719/98 was set aside. The revision petitioner-landlord was thus left with no alternative other than to file a petition for eviction under the Rent Control Act. It was in the above circumstances that RCP No: 17/2005 from which the present revision arises was filed before the Rent Control Court, Thiruvananthapuram. 7. As noticed above, the landlord sought eviction of the tenant on the grounds of arrears of rent as well as bonafide need for own occupation. Before the Rent Control Court, the respondent-tenant raised a plea of denial of title of the landlord. Therefore, as provided by Section 11(1) of the Act, the Rent Control Court first considered the question as to whether the denial of title was bonafide or not. The Court found that the denial of title was bonafide and on the above basis held that the Rent Control Petition could not be prosecuted and that the landlord would have to approach a Civil Court for necessary reliefs. Though the order of the Rent Control Court was challenged by the landlord in appeal, RCA 10/2007, the Rent Control Appellate Authority has dismissed his appeal confirming the order of the Rent Control RCR 55/2008 8 Court. Thus, the landlord is again directed to file a civil suit against the tenant for eviction. This revision is against the said proceedings. 8. According to Mr. V.S.Babu Gireesan who appears for the revision petitioner, the denial of title by the tenant in the present case was absolutely without any bonafides whatsoever. Ext.A1 is the title deed of the revision petitioner. He also relied on Ext.B2 partition deed and Ext.B3 deed by which the revision petitioner's predecessor-in-interest acquired title over the property. It is also pointed out by him that Ext.A17, the judgment in O.S.719/1998 having conclusively found in his favour on the question of title, the respondent may not be permitted to question the correctness thereof at this length of time. He vehemently contended that both the authorities below seriously went wrong in finding that the denial of title by the respondent-tenant was bonafide. According to him both the authorities below have failed to consider Ext.A17, the judgment in O.S.719/1998 of the Munsiff's Court and Ext.A20 judgment of the Appellate Court in A.S.68/2001, in the proper perspective. RCR 55/2008 9 9. The contentions of the counsel for the revision petitioner are opposed by Adv.Mr. K.B.Pradeep who appears for the tenant. According to the counsel, absolutely no reliance could be placed on Exts.A17 and A20 judgments for the reason that immediately on the provisions of the Rent Control Act being made applicable to the area, Ext.A17 judgment became a nullity, as rightly held by the Appellate Court. Consequently, Ext.A17 judgment has been set aside. Therefore, the findings and conclusions in the said judgment could not be relied upon for any purpose whatsoever. The tenant has a right to dispute the title of the landlord. The dispute that has been raised by the tenant is supported by the documents produced by her. Both the authorities below have on a consideration of the documents come to a conclusion that the denial of title was bonafide. Therefore, without establishing his title in a properly framed suit, the landlord cannot seek her eviction. For the above reasons, he prayed for the dismissal of the revision. 10. We have heard the respective counsel for the landlord and tenant. We have been taken through the records of the case RCR 55/2008 10 in detail. We have given our anxious consideration to the rival contentions raised before us. 11. According to the revision petitioner/landlord, the petition schedule house is occupied by the respondent as a tenant. After the execution of Ext.A1 gift deed in his favour by his uncle, the tenant was informed of the same and she agreed to pay rent at the rate of Rs.300/- per month to the landlord. Though rent was paid up to June 1996, she committed default in payment of the same, thereafter. According to the landlord, he bonafide required the building for his residence since he was about to get married and to settle down. On the very same pleadings, he had filed O.S.719/1998 before the Munsiff's Court, Thiruvananthapuram. The said suit was contested by the tenant, seriously disputing the title of the landlord. The suit was tried by the Court. Both parties adduced evidence, oral and documentary. After the close of evidence, the matter was heard. On a consideration of the the contentions of the parties, in the light of the evidence on record, the Court found that the landlord had title to the building. The said judgment that has been marked as Ext.A17 by the Rent Control Court has been produced along with this revision as RCR 55/2008 11 Annexure A1. Paragraphs 15,16, 17 and 18 in which the Court has considered the evidence on record and arrived at its conclusion are extracted hereunder for convenience:- “15. When the above documents are read together it could be seen that plaintiff's mother is Anandavally Amma, D/o. Parvathy Amma, D/o. Easwary Amma and they belong to Sivavilasom Veedu. Defendant's mother is Janamma, D/o. Kochu Parvathy Amma, D/o. Lekshmy Amma of Varampil Puthen Veedu. The contention of the plaintiff that he is a descendant of Easwary Amma Parvathy Amma of Sivavilasom Veedu is true whereas the contention of defendant that she is descendant of Easwary Amma Parvathy Amma is false. Both plaintiff and defendant hails from two different families and according to documents ancestors of plaintiff's family is Easwary Amma, Siva Vilasom whereas the ancestors of defendant's family is Lekshmy Amma, Varampil Puthen Veedu. 16. The mortgagee of plaint schedule property is Easwary Amma Parvathy Amma of Siva Vilasom Veedu who is grand mother of plaintiff. Even if the mortgage is not redeemed and redemption of mortgage is barred by limitation, the defendant or her mother will not get any right or title by virtue of that RCR 55/2008 12 since the mortgage is not in favour of any member of her family. Therefore the contention of the defendant that she got the property by devolution from her mother by virtue of limitation to mortgage of the year 1119 M.E is not sustainable. Defendant could not establish that she is having any legal right or title in the plaint schedule property. 17. Plaintiff received the plaint schedule property from his uncle Parameswaran Nair (PW2) by Ext.A1 gift deed (No.2723/95). Parameswaran Nair purchased it by Ext.B1 sale deed (No.3810/54) wherein it is stated that the property is mortgaged to Easwary Amma Parvathy Amma who is none other than mother of Parameswarn Nair and grandmother of plaintiff. In Ext.A1 document it is stated that PW2 is having complete jenmom right in the property, PW1 deposed that the mortgage was redeemed by PW2. But PW2 was not asked anything about the redemption and he has not stated anything about this. As already stated mortgagee is mother of the donor and grandmother of the donee. When a donor who purchased the property subject to mortgage in favour of his mother gifts that property to a donee who is grandson of the mortgagee and nephew of the donor stating that the donor is having complete right over the property the only reasonable inference is that either the mortgage is RCR 55/2008 13 redeemed or the mortgagee has released her rights in property in favour of the donor. Even if the mortgage is not redeemed, plaintiff's mother and Parameswaran Nair (PW2) will get right in the property as legal heir of mortgagee, Easwary Amma Parvathy Amma. Plaintiff will at least get the right of PW2 in the property devolved on him from Parvathy Amma. 18. Exts.A2 to A5 tax receipts, A6 possession Certificate, A7 and A8 ownership Certificate, A9 thandapper account and Ext.B2 assessment could not help the parties to establish their title since revenue records could not confer or take away title. Supreme Court held in Corporation of Bangalore city v. M.Papaich (AIR 1989 SC 1809) that revenue records are not documents of title. The evidence adduced in this case shows that plaintiff got right of ownership in the property by virtue of Ext.A1 gift deed. Issue is found in favour of plaintiff.” It is seen that the documents produced by the parties in the original suit as well as in the rent control proceedings are the same. We notice that it is relying on the very same documents that the tenant has disputed the title of the landlord before the Rent Control Court. On the basis of the findings extracted above, the Munsiff's Court decreed the suit. RCR 55/2008 14 12. The judgment and decree of the Munsiff's Court in O.S.719/1998 was challenged by the tenant in A.S.68/2001. The judgment of the Appellate Court marked as Ext.A20 by the Rent Control Court is produced in this revision as Annexure A2. The judgment of the Appellate Court shows that the issue regarding title has not been gone into at the Appellate Stage. It is clear from the Appellate judgment that the matter was argued by the parties on the merits. However, the Appellate Court has set aside the judgment of the trial court on the technical objection raised, without going into the merits. The relevant portion of the judgment in paragraph 10 thereof is extracted hereunder:- “Before this Court, both sides have filed argument notes in support of their respective stands. But when the case came up for final hearing, the learned counsel for the appellant has invited my attention to a legal aspect involved in the suit. According to him, originally the suit was filed before lower court on the basis of the provisions of transfer of property Act as the property situates within local limits of Thiruvallam Panchayat where the provisions of the B.R.C Act are not applicable. But during the pendency of this RCR 55/2008 15 appeal, the Thiruvallam Panchayat where the plaint schedule building is situated became part of Thiruvananthapuram City Corporation as per Notification No: G.O.(P)224/99/LSGD. According to the learned counsel, at present the said area would come within the Thiruvananthapuram City Corporation wherein the Kerala Buildings (Lease and Rent Control) Act is applicable. Accordingly the learned counsel has submitted before court that civil court has no jurisdiction to entertain the suit for eviction of a tenant and the decree passed by the civil court is not only executable but also liable to be set aside. The learned counsel has invited my attention to the decision of the Full Bench of our Hon'ble High Court reported in 1995 (1) KLJ 54 following the decision of the Hon'ble Supreme Court reported in 1990(1) SCC 193. I have gone through the entire records and analysed the evidence adduced by both sides. It is seen from the evidence that the plaint schedule building is situated within Thiruvallam Panchayat and at the time of filing of the suit the BRC Act has not been applicable there. Subsequently the said Panchayat was incorporated into the Thiruvananthapuram City Corporation as per the Notification of the Government. The provisions of Kerala Buildings RCR 55/2008 16 (Lease and Rent Control) Act are applicable to the City Corporation as per the Notification issued by the Government. If that be so, the civil court has no jurisdiction to pass a decree for eviction as there was a specific law for the same. Since appeal is continuation of the suit, I am of the view that civil court has no jurisdiction to deal with the subject matter in view of the amalgamation of the Thiruvallam Panchayat into the City Corporation.” 13. On the above reasoning, the Appellate Court found that the decree passed by the Lower Court was a nullity and set aside the same. It was thereafter that RCP 17/2005 was filed by the landlord as stated above. 14. We notice that the efforts of the landlord to obtain vacant possession of his house, commenced in the year 1998 when he filed the original suit before the Munsiff's Court, Thiruvananthapuram. More than twelve years have elapsed since then. The tenant had contested the original suit by adducing evidence both oral and documentary in support of her case. It was thereafter that the suit was decreed in favour of the landlord. Though the tenant had challenged the judgment and decree in appeal, she did not pursue the same thereafter or insist on a RCR 55/2008 17 decision on the merits. It was at the instance of the tenant that the Appellate Court was called upon to consider the technical point whether the decree was not a nullity in view of the notification extending the Rent Control Act to the area in which the disputed house is situate. Thereby, she voluntarily forfeited her opportunity to reagitate her contentions on the merits. The judgment of the Appellate Court clearly shows that the contention of the tenant was that the proceedings before the Civil Court was not maintainable and that she could be evicted only by initiating proceedings under the Rent Control Act. The same was accepted by the Appellate Court and the parties were relegated to their remedies under the Act. Consequently, the revision petitioner who had earlier filed a suit and obtained a decree for eviction is faced with a situation where he is driven from pillar to post. Initially, at the instance of the tenant his decree was set aside and he was directed to pursue his remedies under the Rent Control Act. But, when he filed the Rent Control Petition, the same is dismissed directing him to approach the Civil Court again. We find absolutely no justification to sustain the findings of the authorities below. RCR 55/2008 18 15. We notice from Annexure A1 judgment that the question regarding the title of the landlord has been gone into by the Civil Court. With reference to the documentary evidence adduced it has been found that the property had not been mortgaged to the predecessor-in-interest of the tenant at any time. On the contrary, the definite finding of the Munsiff's Court is that the property had been mortgaged to none other than the mother of the landlord himself. Since the property had at no time been mortgaged to the predecessor-in-interest of the tenant, there is no question of any right being acquired by her even if it is assumed that the mortgage had not been redeemed. Therefore, the occupation of the tenant can only be as a tenant, if not as a trespasser. It is clear from the conduct of the respondent that her only object in disputing the title of the landlord is to see that she somehow continues in possession of the premises indefinitely. It is trite that no person should be allowed to approbate and reprobate. After having got the appeal A.S.68/2001 dismissed, contending that only a Rent Control Petition was maintainable to evict her, she cannot be permitted to question the maintainability of the Rent Control proceedings. Her contention that she could be evicted RCR 55/2008 19 only by taking resort to the provisions of the Rent Control Act presupposes an admission regarding her status as a tenant. Therefore, she cannot be permitted to turn round and contend that she was not a tenant but the owner of the building. 16. In Kumaran Nair v. Damodaran Nair {1986 KLT 461}, a learned Single Judge of this Court has considered a similar question. In the said case the tenant had initially taken the benefit of the provisions of the Rent Control Act but later contended that he was a 'Kudikidappukaran' under the Kerala Land Reforms Act, 1964. It was contended that the provisions of the Land Reforms Act as well as the Rent Control Act recognised different rights of tenants and that it was open to a tenant to assert any of the rights under any one of the said statutes according to his choice, without the bar of estoppel foreclosing any of his rights. However, considering the scope of both the enactments, this Court found that the nature of the rights conferred by the two enactments were different and that, assertion of rights under one statute would become inconsistent with the nature of the rights under the other statute. Radhakrishna Menon, J, has after referring to various authorities,