IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 RCRev..No. 276 of 2005 & CO.NO.128/05 ------------------------ RCA.8/2004 of ADDL.DISTRICT COURT,KOTTAYAM RCOP.4/2002 of ADDL.M.C.,KOTTAYAM .................... PETITIONERS/RESPONDENTS/COUNTER PETITIONERS --------------------------------------------------------------- 1. MRS.NABEESA ABDUL KHADER, PADIUPURACKAL HOUSE, KEEZHUKUNNU, NATTASSERY KARA, MUTTAMBALAM VILLAGE, KOTTAYAM TALUK. 2. ABU SALI ABDUL KHADER @ SALI, S/O.ABDUL KHADER DO.DO. 3. NAZZAR, S/O.DO.DO. 4. SAJEEV, S/O.DO.DO. 5. ANITHA ABDUL KHADER, D/O.DO.DO. 6. JEBY ABDUL KHADER, D/O.DO.DO. 7. JAMEELA, D/O.DO.DO. 8. AZEENA, D/O.DO.DO.DO. 9. SABEENA, D/O.DO.DO. BY ADV. SRI.RAJEEV V.KURUP SMT.A.SREEKALA. RCR.NO.276/05 RESPONDENT(S): APPELLANT/RESPONDENTS 2, 8 10 & 11/ PETITIONER AND COUNTER PETITIONERS 2,8, 10 & 11 ------------------------------------------------------------- 1. SURESH KURIAN, S/O.JOSEPH KURIAN, KANDANCHIRA HOUSE, NATTASSERY KARA, MUTTAMBALAM VILLAGE, KOTTAYAM TALUK, REPRESENTED BY HIS MOTHER AND POWER OF ATTORNEY HOLDER, MRS. AMMINI KURIAN, OF DO.DO. 2. ABOOBACKER ABDUL KHADER, PADIPURACKAL HOUSE, KEEZHUKUNNU, NATTASSERY KARA, MUTTAMBALAM VILLAGE, KOTTAYAM TALUK. 3. SELI, D/O.ABDUL KAHDER, DO.DO. 4. BEAKUTTY, OF DO.DO. ADV. SMT.DEEPTHY.S.NATH SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.P.C.ABRAHAM SRI.ABRAHAM GEORGE JACOB THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 17/02/2009 ALONG WITH CO NO. 128 OF 2005, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. - - - - - - - - - - - - - - - - - - - - - R.C.R.No.276 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of February, 2009 ORDER Pius.C.Kuriakose, J. The respondents in RCP.No.4/2002 on the files of Rent Control Court, Kottayam, who were respondents in RCA .No. 8/2004 of the Rent Control Appellate Authority, Kottayam, are the revision petitioners. They are aggrieved by the finding entered by the rent control appellate authority in reversal of the finding of the rent control court that their denial of title of the landlord/respondents is not bonafide. 2. The rent control petition was instituted by the respondents invoking the grounds of arrears of rent (Section 11(2)(b)) and bonafide need for own occupation (Section 11(3)) of the Kerala Buildings (Lease and Rent Control)Act 1965. The rent control petition was sought to be maintained by the respondents on their averment that the petition schedule building was let out to the RCR.No.276/05 2 husband of the first revision petitioner, one Sri.Abdul Khadar in 1980 on a monthly rent of Rs.75/- and that upon the demise of the above said Abdul Khadar, revision petitioners being his wife and children are continuing in possession as tenants. The contention of the revision petitioners was one of total denial of the rental arrangement pleaded by the respondent/ landlord. According to them Sri. Abdul Khadar had come into possession of the petition schedule building way back in 1959, on the strength of an agreement for sale executed by one Padipurackal Chackochan @ Jacob on the terms of which Abdul Khadar was liable to pay total sale consideration of Rs. 1200/- against which Rs. 1000/- was readily paid. With reference to the document of title relied on by the respondent/landlord, the contention raised by the revision petitioners was that conveyances were executed in favour of the predecessor of the respondent/landlord experimentally and that the predecessor of the respondent never obtained possession on the basis of those conveyances. It was further contended that the revision petitioners have perfected title over the petition schedule building by adverse possession for more than 12 years in denial of the apparent title RCR.No.276/05 3 obtained by the predecessor of the landlord and that the title if any obtained by the predecessor of the landlord has been lost to him by prescription. It is accordingly contended that the revision petitioners are in possession and enjoyment of the petition schedule building as full owners. 3. Though on the terms of the objections filed by the revision petitioners there was warrant for formulating a preliminary question in terms of second proviso to Section 11(1), the learned rent control court did not formulate any such preliminary question. Instead, the rent control petition was enquired into and at trial documents Exts.A1 to A52 were produced and witnesses PWs 1 to 3 were examined on the side of the respondent landlord and documents Exts. B1 to B9 were produced and witness- CPW1 was examined on the side of the revision petitioners. The rent control court on conclusion of evidence formulated the following issues: “1) Whether the denial of the title of the petitioner by counter petitioner has been made bonafide ? RCR.No.276/05 4 2) Whether the petition for eviction is allowable under Section 11(b) and 11(3) of the Kerala Building (Lease and Rent Control) Act ? 3) Reliefs and costs.” 4. The rent control court held under issue No.1 that the case involves a bonafide denial of the title and hence dismissed the rent control petition relegating the parties to approach a competent civil court. The rent control appellate authority relying mainly on the judgment of this court in Charuletha v. Manju (2004(1)KLT 290) noticed that the instant one, was a case where the tenant had not admitted his status in relation to the building to be that of a tenant and held that such persons who do not admit their status in the building to be that of tenants are not entitled to raise a plea of denial of title, the bonafides of which is liable to be enquired into by the rent control court or the appellate authority. Accordingly the finding of the rent control court that the case involves a bonafide denial of the title was set aside and the rent control petition was remitted back to the rent control court RCR.No.276/05 5 for taking a decision on merits on the basis of the evidence already on record. 5. We have heard the submissions of Smt.A.Sreekala and Sri.Rajeev.V.Kurup, learned counsel for the revision petitioners and those of Sri.Abraham George Jacob, learned counsel for the respondent. Learned counsel for the revision petitioners would draw our attention to the judgment of the Full Bench of this court in Parthakumar v. Ajith Viswanathan (2006(2) KLT 250 (F.B.) wherein overruling the judgment of this court in Charulatha v. Manju (2004(1)KLT 290), it is held that in order that a party is permitted to deny the title of the landlord in terms of the second proviso to Section 11(1) of the Rent Control Act, it is not necessary that he admits his status to be that of a tenant. It is sufficient that the party is arrayed by the landlord as his tenant. Learned counsel further argued that the enquiry which is contemplated in terms of the second proviso to Section 11(1) is only a prima facie enquiry and the rent control court being a tribunal of limited jurisdiction is not competent to decide complicated questions of title over the property. In the instant case the pleaded case of the landlord that the tenant was RCR.No.276/05 6 inducted into the building in 1980 has fallen into the ground since PW1, the present owner and PW2, the mother and predecessor in interest of PW1 conceded before the court that Sri.Abdul Khadar, the husband of the first revision petitioner, was in possession of the building in 1959 itself and not since 1980. The admission of PWs 1 and 2 before the rent control court itself will suffice to hold that the revision petitioners' version regarding their jural status over the building is more probable than the landlord's version according to the learned counsel. Our attention was drawn by the learned counsel to documents Exts.B1 to B2 (c) and also to Exts. B3 to B9 and the learned counsel submitted that these documents will establish to the very hilt that Sri.Abdul Khadar and along with him the revision petitioners were in residential occupation of the petition schedule building atleast from 1962 onwards. This evidence according to the learned counsel was more than sufficient to hold prima facie that the denial of the landlord's title made by the revision petitioners is bonafide. 6. The submissions of the learned counsel for the petitioners were resisted by Sri.Abraham George Jacob, learned counsel for the RCR.No.276/05 7 respondents. The learned counsel drew our attention to the judgment of this court in Aboobacker v. Girija ( 1995(1) KLT 553) and submitted that in order that the jurisdiction of the rent control court stands ousted, it is necessary that the court is satisfied that there are strong or atleast substantial grounds or sufficient materials in support of the plea of denial of title and the chances of that plea being upheld by the civil court are fairly on the higher side. Learned counsel drew our attention to Exts.A1 to A4 and argued that the propriety title of the respondent over rent control petition schedule building is irrefutable. Learned counsel also drew our attention to Exts.A9 to A15 which are all certified copies of property tax assessment registers maintained by the Kottayam Municipality in respect of the petition schedule building during the period from 01/04/1965 to 01/04/2002. Learned counsel argued that Exts.A9 to A15 enjoy presumptions as to the correctness of the entries therein in view of Section 26 of the Rent Control Act. Learned counsel referred to Section 53A of the Transfer of Property Act and submitted that the revision petitioners do not have a case that the agreement for sale executed by Sri.Jacob on the strength of which late Abdul Khadar RCR.No.276/05 8 came into possession is an agreement in writing. Therefore, according to the learned counsel, the plea of having obtained possession pursuant to an agreement for sale conferring the equity against eviction under Section 53A of the Transfer of Property Act is impossible to be countenanced. 7. The learned counsel for the respondent referred to the judgments of the Supreme Court in Achal Reddy v. Ramakrishna Reddiar and others (1994(4)Supreme Court Cases 706) and in Mohanlal (Deceased) through his LRs. Kachru and others (1996(1) Supreme Court Cases 639) and submitted that the possession which a person claims on the strength of an agreement for sale under Section 53A of the Transfer of Property Act 1882 can never be adverse to the title of the real owner. Such possession can only be permissive and subservient to the title of the real owner. In the instant case there is no pleading at all by the revision petitioners in their statement of objections as to when their possession became adverse to the real owner. Prescription of title by adverse possession is a matter to be pleaded specifically and substantiated. In the absence of any sufficient pleadings, RCR.No.276/05 9 any amount of evidence to substantiate the plea will not be of avail. The evidence adduced by the revision petitioners also is not sufficient to support a finding that the revision petitioners had prescribed a title by adverse possession. Learned counsel submitted that even if the parties are relegated to the civil court, the chances of the revision petitioners plea which is one of having perfected title by adverse possession being upheld are very very remote. 8. We have considered the rival submissions addressed at the Bar. In view of the judgment of the Supreme Court in Parthakumar v. Ajith Viswanathan (2006(2)KLT 250(F.B.), the view of the rent control appellate authority based on the judgment of the Division Bench in Charulatha V. Manju (2004(1)KLT 290) that the revision petitioners are not entitled to deny the title of the landlord has to be held to be erroneous. But the question is whether the revision petitioners' denial of the title claimed by the landlord in this case is bonafide. That question, we are of the view, can be decided only in the negative. 9. The essential controversy between the parties in this case is regarding the jural status of the revision petitioners in the petition RCR.No.276/05 10 schedule building. The landlord's version is that the status of the revision petitioners is that of tenants being legal heirs of the deceased tenant Abdul Khader. It will be noticed immediately that the landlord's case that Sri.Abdul Khadar was inducted into the building as a tenant only in 1980 stands dis-proved by the evidence on record. The evidence on record will establish that Sri.Abdul Khadar was in possession of the schedule building from 1959 itself. But the argument before us is that from the very commencement of his occupation, the status of Sri.Abdul Khadar succeeded by the present revision petitioners was only that of building tenant. As against the above case of the landlords, the revision petitioners case is that Sri.Abdul Khadar and them came to have possession of the building initially on the basis of an agreement for sale executed favour by one Jacob, a possessory mortgagee of the premises. This case pleaded for claiming the equity statutorily conferred on certain persons in possession in terms of Section 53 A of the Transfer of Property Act cannot be accepted at all in the absence of any written agreement for sale. The tenants do not have a case that the agreement for sale allegedly executed in favour of Sri.Adbul Khadar was in writing. RCR.No.276/05 11 The agreements contemplated by Section 53A are agreements in writing. 10. Now the further case of the revision petitioners that they have perfected title for themselves by adverse possession for over more than 12 years in denial of the title of the landlord's predecessors and the landlord there after will be considered. The ratio emerging from the judgment of the Supreme Court in Achal Reddy v. Ramakrishna Reddiar and others (1994(4)Supreme Court Cases 706) and in Mohanlal (Deceased) through his LRs. Kachru and others (1996(1) Supreme Court Cases 639) is that possession by a person who claims to have been put in possession under an agreement for sale cannot be adverse to that of the title holder, but can only be permissive and subservient to the title holder. Of course, nature of the possession which to begin with was permissive can later turn to be adverse. Learned counsel for the petitioners would submit that the possession which to begin with was permissive and pursuant to the agreement for sale, became adverse on the date of Ext.A3 when in repudiation and denial of Addul Khadar's rights under agreement for sale , the title was purported to be conveyed in favour of the father of the present landlord. It is in RCR.No.276/05 12 paragraph 6 of the statement of objections filed to the rent control petition only that the revision petitioners raise their plea of having perfected title by adverse possession. Though on a reading of paragraph 6 of the objections, it would appear that necessary pleadings to constitute a plea of acquisition of title by adverse possession and limitation have been incorporated, in the teeth of the tenant's contention that initial entry into the building was on the strength of an agreement for sale, it has to be considered whether there is any pleading raised by the revision petitioners regarding transformation of the nature of possession. 11. We do not find any pleading raised by the revision petitioners regarding the transformation of the nature of the possession. Instead, what we find on a conjoint reading of the above paragraph and the earlier paragraphs in the objection is that the possession which is claimed by the revision petitioners is possession in continuation of the possession claimed on the strength of an agreement for sale alleged to have been executed by Sri.Padippurackal Chakochan. In Aboobacker v. Girija (1995(1) KLT 555), a Division Bench of this court approving RCR.No.276/05 13 the view taken in Joseph v. Thomas (1987 (2)KLT 1029) has very clearly held that just because the respondent in the rent control petition denies the title of the landlord in a very serious and specific manner, the jurisdiction of the rent control court will not stand ousted. There the Lordships have held as follows: “ The court whose jurisdiction stands ousted must have the satisfaction that there are strong or atleast substantial grounds or sufficient materials in support of the plea of the petitioner and the chances of the plea being upheld by the civil court must be fairly on the higher side. What is required in this case at the relevant stage is to satisfy the Rent Control Court that denial of the landlord's title is bona fide. This has to be done by the tenant who makes the denial, either by producing material or by focusing on admitted or reliable circumstances. Even though the stage for adducing evidence is yet to begin the tenant cannot escape from satisfying the court that his denial is based on materials.” 12. The rent control court's jurisdiction to deal with applications RCR.No.276/05 14 for eviction under Section 11 of Act 2 of 1965 in respect of buildings situated in areas to which the Act apply unless exempted under Section 25 thereof, is exclusive. The ouster of jurisdiction of such an exclusive court is not to be lightly inferred. We are in complete agreement with the view expressed by the Division Bench in Aboobacker v. Girija ( 1995(1)KLT 553) and we will guage the bonafides of the denial of the landlord's title made by the revision petitioners in this case by the parameters indicated in Aboobacker v. Girija ( 1995(1)KLT 553). 13. The “title” of the landlord about which the rent control court is essentially concerned under Section 11(1) second proviso is what is referred to by certain learned authors as “ landlordism”or the entitlement of the landlord to receive rent from the tenant. In the statutory definitions given to the terms landlord and tenant under Section 2(3) and 2(6) respectively, the thrust is on the payment and receipt of rent. We shall try to resolve the dispute in this case regarding the jural status of the respondents in the RCP analysing the available evidence through that perspective. As already indicated the case of the respondent in the RCP regarding the date of entry into the building is to be accepted as RCR.No.276/05 15 correct. But the crux question is whether the landlords' case that their juristical status is that of tenants-persons liable to pay rent to them is incorrect. On scanning the evidence we do not find any cogent material to support the version of the respondents that they are owners without any liability to pay rent. Interestingly they are tracing their claim to Sri.Jacob who was concededly a mortgagee only and it is not contended at all, that by foreclosure or otherwise the mortgage became irredeemable. But on the landlord's side we notice documents A9 to A15. 14. Section 26 of Act 2 of 1965 reads as follows : “ Executive authorities of local bodies to furnish certified extracts from property tax or house tax assessment books:- The executive authority of a Municipal Council or Township Committee or Panchayat or the Revenue Officer of a Corporation shall, on application made in this behalf and on payment of such fee as may, from time to time, be fixed by the Government, by notification in the Gazette, grant to the applicant a certified copy of the extract from the RCR.No.276/05 16 property tax or house tax assessment book of the Municipal Council or Township committee or Panchayat or Corporation, as the case may be, showing the rental value of the building or buildings in respect of which application has been made, relating to the period specified in the application. Such certified copy shall be received as evidence of the facts stated therein in proceedings under this Act.” 15. Exts.A9 to A15 are certified copies issued by the Kottayam Municipality and are certainly documents of the nature envisaged by Section 26. As will be seen from the statutory language, it is a very strong presumption which is aroused by Ext.A9 to A15 regarding the correctness of the entries recorded therein. Exts.A9 to A15 invariably state that the petitioner is the owner of the building and that the respondent is the “occupier/tenant” only. Ext.A11 which pertains to the period 1975 to 1980 very clearly states that respondent's occupation is on rental ( ). No serious challenge is made against Exts.A9 to A15 and particularly Ext.A11 during trial. The burden was very very heavy on the part of the respondent to dislodge the very strong presumption RCR.No.276/05 17 aroused by Exts.A9 to A15 and particularly Ext.A11. We find that the Municipal authorities are not even cited for cross examination by the respondent which means that the rent control court and the appellate authority and even this revisional court becomes bound to accept Ext.A11 and hold that the juristical status of the respondents is only that of tenants. This apart, what is the defence that is going to be taken by the respondents before the civil court ? The defence necessarily has to be consistent with their present defence. We do not think that the respondents have any chance of succeeding on defence of title by adverse possession since even the initial possession based on an oral agreement for sale will be difficult to establish, and any possession in continuance of such a possession will be presumed to be permissive/under the title holder. In short we hold that the chances of the respondent succeeding before the civil court are far from bright. The result is that in modification of the judgment of the rent control appellate authority, we hold that the denial of the revision petitioners' title made by the respondents is not bonafide. The rent control court is directed to take a decision on merits in the rent control RCR.No.276/05 18 petition. The rent control court will grant one opportunity each to the parties to adduce further evidence in substantiation of their rival contentions in the rent control petition and will decide the rent control petition on the merits of the various grounds raised in the rent control petition on the basis of the evidence already on record and the evidence which comes to be adduced further. If any application is filed by either of the parties for recalling any witness already examined for further examination, such applications will be allowed by the rent control court. The rent control court will expedite matters and ensure that the rent control petition is finally decided at the earliest and at any rate by 30th June 2009. PIUS.C.KURIAKOSE JUDGE C.K.ABDUL REHIM JUDGE sv. RCR.No.276/05 19