IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 RCRev..No. 409 of 2005() ------------------------ RCA.184/2004 of ADDL.DISTRICT COURT, KOZHIKODE RCP.19/1988 of MUNSIFF COURT, VADAKARA .................... REVN.PETITIONERS/APPELLANTS/RESPONDENTS 2 TO 4. ------------------------------------------------------------------- 1. AMMALU AMA, W/O.LATE KUNHIKELU NAMBIAR, KOTTAPPALLY AMSOM,VADAKARA TALUK. 2. E.BALAKRISHNAN, S/O.LATE KUNHIKELU NAMBIAR, VADAKARA AMSOM, VADAKARA TALUK. 3. VASATAKUMARI, D/O.KUNHIRAMAN, MEETHALE KADAYATHOTTATHIL, VADAKARA AMSOM, VATAKARA TALUK. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENT/RESPONDENT/PETITIONER ----------------------------------------------- T.K.PADMAKSHI, AGED 72 YERAS, D/O.KUNHIRAMAN, MEETHALE KADAYATHOTTATHIL, VADAKARA AMSOM, VADAKARA TALUK. ADV. SRI.S.V.BALAKRISHNA IYER(CAVETOR) SRI.K.JAYAKUMAR FOR R1 SRI.R.SURAJ KUMAR FOR R1 SMT.GEETHA P.MENON FOR R1 SMT.V.DEEPA FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17/06/2009, THE COURT ON 27/08/2009 PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R.No.409 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of August, 2009 ORDER Barkath Ali, J. In this rent control revision under Section 20 of the Kerala Buildings ( Lease and Rent Control) Act 1965 the defeated tenants challenge the concurrent findings entered by the Rent Control Court and the Appellate Authority that the denial of title put forward by them is not a bonafide one. 2. The revision respondent/landlady filed R.C.P.No.19/1988 before the Rent Control Court (Munsiff), Vadakara seeking eviction under Section 11(2) and 11(3) of the Act on the allegation that rent is in arrears from June 1973 onwards and that the elder son of landlady bonafide requires the petition schedule building for conducting hotel business. Originally the petition schedule building belonged to one Ibrahim who rented out to one Kunhikelu Nambiar under a kychit - Ext.A1 dated September 25, 1958 on a rent of Rs. 100/- per month. Ibrahim sold the building to RCR.No.409/2005 2 one Matha by sale deed - Ext.A2 dated May 6, 1959. Matha gifted the property to her son Krishnan by Ext.A3 dated February 15, 1967 . Krishnan died in 1968. Landlady is the wife of deceased Krishnan. The revision petitioners/tenants are the wife and children of deceased Kunhikelu Nambiar, the original tenant. 3. The revision petitioners/tenants claimed permanent tenancy over the petition schedule building and the land. According to them, the building was let out by Ibrahim to Kunhikelu Nambiar by kychit - Ext.A1 dated September 25, 1958, that the building and the land were leased out to Kunhikelu Nambiar as evidenced by Ext.B2, certified copy of receipt dated February 6 1959 and that as permitted by the said Ibrahim, the tenant constructed a building therein and is conducting a hotel and lodge therein, that the bonafide need put forward by the landlord is not genuine and the respondents have permanent tenancy over the property. 4. The Rent Control Court by order dated November 17, 1992 dismissed the petition holding that the tenants have fixity of tenure in respect of the petition schedule land and building. The RCR.No.409/2005 3 Appellate Authority in R.C.A.No.38/1993 filed by the landlady modified the order of the Rent Control Court to the effect that the landlady can move civil court for appropriate relief. The landlady challenged the said judgment before this court in C.R.P.No.314/1997 and this court by order dated 2nd July, 2004 allowed the revision and remanded the matter back to the Rent Control Court for fresh disposal after allowing the parties to amend the pleadings. 5. Initially Ext.A1 to Ext.A11 were produced by the landlady and Exts.B1 to B13 were marked on the side of the tenants. After remand, Exts.A12 to A14 were produced by the landlady and Exts.B14 to B64 were marked on the side of the tenants. Ext.C1 to C5 were also marked. The lower court on an appreciation of evidence found that the right of permanent tenancy claimed by the tenants is not a bonafide one which is confirmed by the Appellate Authority. Now the tenants have come up in revision. 6. The main question which arises for consideration is whether the concurrent findings of both the court below that the permanent tenancy claimed by the tenants is not bonafide can be RCR.No.409/2005 4 sustained. 7. The learned counsel for the revision petitioners/tenants argued that though in Ext.B1 only the building is mentioned, Ext.B2 takes in land also and that therefore tenants have fixity of tenure over the petition schedule building. This is disputed by the learned counsel for the revision respondent/landlady. Ext.B1 is a receipt issued by Kunhikelu Nambiar to Ibrahim dated September 25, 1958 by which Kunhikelu Nambiar took on lease the petition schedule building on a rent of Rs. 100/- per month for a period of six years. Ext.B1 shows that it is a lease of building alone. Ext.B2 is another certified copy of another receipt dated February 6, 1959. Ext.B2 is disputed by the landlady. It is seen from Ext.B2 that tenant is permitted to construct building in the property . Permission is also granted to the tenant to erect structures and to use the same for a period of 12 years. Under Ext.B2, the tenant was allowed to cut and remove two coconut trees standing in the properties for the purpose of construction of the building. Ext.B2 receipt is seen mentioned in subsequent receipts Exts.B5 and B12, B13, and Exts.B30 to 34 and RCR.No.409/2005 5 in Ext.B16 which is a kuzhikanam deed executed by Kunjahammed Haji to Ibrahim on 06/02/1959. Ext.B2 does not disclose a lease of the land, but only a permission to put up structures which the tenant has to surrender after 12 years. 8. The revision petitioners/tenants relied mainly on Exts.B17, B18 and Exts.B13, B19 , the copies of plaint, written statement and judgment in O.S.No.128/1979 in support of their claim of permanent tenancy under Section 106 of Kerala Land Reforms Act. It was a suit for permanent injunction restraining the tenant from cutting and removing two silk cotton trees standing in the properties. The suit was decreed, but in appeal the suit was dismissed holding that the tenant has tenancy rights over the vacant space available. Ext.B21 is the copy of the said judgment. But this court in a common order in C.R.P.No.314/1997 and S.A.No.773/1992 set aside the judgment of the Appellate court and remanded the Rent Control Petition to lower court for fresh disposal. Therefore Exts.B17, B18 and B19 do not help the tenants to show that they have permanent tenancy over the petition schedule RCR.No.409/2005 6 property. 9. It was next contended by the revision petitioners that the landlady filed O.S.No.41/88 before the Munsiff Court, Vadakara for recovery of possession of the property on the strength of the title that it was dismissed by judgment dated October 26, 1990 as evidenced by Ext.B9, the certified copy of the judgment and that therefore it has to be found that tenants have permanent tenancy rights over the property. We are unable to agree . It is seen from Ext.B9 that the suit was dismissed on the basis of the findings in Ext.B21, the judgment in Appeal A.S.No.105/1982 dated 6th March 1985. That being so, the findings in Ext.B9 cannot be taken into account in considering the plea of permanent tenancy put up by the tenant. 10. Thus the claim of the revision petitioners is entirely based on Ext.B2 receipt. As stated earlier, it only shows a permission to put up structures in the petition schedule property. A tenant can claim the benefit of Section 106 of Kerala Land Reforms Act only if the lease was of land alone and the lease was for commercial purpose before May 20, 1967. A lessee cannot claim RCR.No.409/2005 7 protection under Section 106 of the KLR Act even if he put up a building there as held in Jacob v. Joseph ( 1987 (1) KLT SN 16) . The Apex Court has held in Chandy Varghese v. Abdul Khader ( 2003(3) KLT 553 S.C.) that a person cannot claim tenancy rights under Section 106 of KLR act if the lease is that of land and building. That being so, the revision petitioners cannot claim permanent tenancy in respect of the petition schedule property on the basis of Ext.B2 receipt. 11. We have gone through the order of the Rent Control Court and the judgment of the Appellate Authority. We are of the view that both the courts below were justified in holding that the claim of permanent tenancy put up by the revision petitioners is not bonafide. We find no reason to interfere with the said findings of the Rent Control Court and the Appellate Authority . We find no illegality, irregularity or impropriety in the order of the Rent Control Court and the Appellate Authority to invoke the revisional jurisdiction of this court under Section 20 of the Act. That being so, the RCR has to be dismissed. RCR.No.409/2005 8 In the result, this revision petition is dismissed. The RCP is of the year 1988, the Rent Control Court shall dispose of the RCP as early as possible , but not later then six months from the date of receipt of a copy of this order. PIUS C.KURIAKOSE JUDGE P.Q.BARKATH ALI JUDGE sv. RCR.No.409/2005 9