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 9TH AUGUST 2011 / 18TH SRAVANA 1933 RCRev..No. 106 of 2003() ------------------------------- RCA.40/2001 of DISTRICT & SESSIONS COURT,KOZHIKODE RCP.97/1996 of PRL. MUNSIFF AND RENT CONTROL COURT, KOZHIKODE-II .................... REVISION PETITIONER/APPELLANT/RESPONDENT ----------------------------------------------------------- K.RANGASWAMY, RESIDING AT 19/1542, MANKUZHI PARAMBA, KATTUKUNI LANE, CHALAPURAM, KASABA AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S):RESPONDENTS/PETITIONERS ------------------------------------------------------- S. KANNAMMA, D/O.K. RANGASWAMY 'VASANTH', KATTUKUNI LANE, KASABA AMSOM AND DESOM, KOZHIKODE TALUK ADV. SRI.T.R.HARIKUMAR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 09/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs R.C.R.NO.106/2003 APPENDIX PETITIONER'S ANNEXURES: ANNEXURE A:COPY OF THE JUDGMENT IN O.S. NO.650/1994 ON THE FILE OF THE ADDL. MUNSIFF OF KOZHIKODE - II, DATED 17/01/2000 ANNEXURE B:COPY OF THE APPEAL MEMORANDUM FILED BY THE REVISION PETITIONER BEFORE THE RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE DATED 22/03/2001. RESPONDENT'S ANNEXURES: NIL /TRUE COPY/ P.A. TO JUDGE. svs PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------------- R.C.R. No.106 of 2003 ------------------------------- Dated this the 9th day of August, 2011. O R D E R PIUS.C.KURIAKOSE, J. Under challenge in this revision filed by the tenant is the judgment of the Rent Control court appellate authority, confirming the order of eviction passed by the Rent Control court under Sub Section 3 of Section 11 of the Buildings (Lease and Rent) Control Act, 1965 (hereinafter referred to as Act). The need projected by the landlady accepted concurrently by the two statutory authorities was that the landlady's husband is presently working in Indian High Commission at London and he wants to come down to Calicut and put up a residential building after demolishing the petition schedule building and other portions of the larger edifice. In fact the landlady instituted four R.C.Ps. including the present one, in respect of different portions of the larger edifice. It is not disputed that the tenants in occupation of other portions, which are the subject matter of R.C.Ps., have 2 R.C.R. No.106 of 2003 vacated. In the R.C.R. the one ground which is prominently raised and urged before us by Sri.P.V.Kunhikrishnan, learned counsel for the revision petitioner is that the Civil court in O.S.No.650 of 1994 (Munsiff's Court, Kozhikode) entered a specific finding that there is no landlord-tenant relationship between the parties and that the status of the revision petitioner and nature of the occupation is that of a permissive occupant. Sri.Kunhikrishnan, learned counsel for the revision petitioner argued that an application was filed before the Rent Control court for calling for the entire records pertaining to the above original suit. The above application was allowed also. The records were brought down to the Rent Control court. Nevertheless, the Rent Control court did not bother to look into that records. Sri.Kunhikrishnan submitted further that, before the appellate authority also the ground which was most prominently urged was the same ground. Alongwith the appeal memorandum, a copy of the judgment in the above original suit was produced. The appellate authority did not look into the above referred judgment at all. The judgment of 3 R.C.R. No.106 of 2003 the appellate authority, in so far as it has not even looked into a very crucial item of evidence which could have affected the right of the landlady to get eviction and the liability of the tenant to be evicted, is not only irregular and improper but is an illegal one as envisaged by Section 20 of the Act. The counsel requested that this Court may atleast set aside the judgment of the appellate authority and remit the RCA to the appellate authority, directing the appellate authority to consider the implications of the above judgment and pass a revised judgment. 2. The submissions of Sri.Kunhikrishnan were resisted by Sri.T.R.Harikumar. Sri.Harikumar would read over to us the statement of objections which were filed by the tenant. He would also read over to us the testimony which was given by the tenant as RW5. According to him, in the statement of objections several inconsistent pleas were raised by the tenant and any conscientious court could not come to a conclusion that the so called denial of the landlady's title made by the tenant was a bonafide one. Sri.Harikumar submitted that at 4 R.C.R. No.106 of 2003 any rate it was admitted by RW5 that, at the time of giving evidence before the Rent Control court that the stand taken by him then was that of being a building tenant. It is this aspect which has been high-lighted by the appellate authority in its judgment and there is no infirmity about the appellate authorities judgment warranting interference under Section 20. 3. We have considered the rival submissions addressed at the Bar. On the basis of the arguments addressed by Sri.Kunhikrishnan before us, we have gone through the rent control revision petition and the statement of objections. We have also gone through the entirety of RW5's testimony. We have scanned the impugned judgment of the appellate authority and the order of the rent control court. 4. We remind ourselves of the limits of our jurisdiction under Section 20. Our primary concern in this present jurisdiction is to decide whether the judgment of the appellate authority is vitiated by illegalities, irregularities and improprieties as envisaged by Sub Section 2 Section 20 of the 5 R.C.R. No.106 of 2003 Act. It is true that a competent civil court, in a suit to which the petitioner and the respondents are parties, has entered a finding that there is no landlord-tenant relationship between the parties and that the jurisprudencial status of the revision petitioner is that of a permissive occupant. But we notice that the above judgment is delivered long after the parties were before the rent control court and long after the revision petitioner resisted the RCP by filing objections. We have carefully gone through the statement of objections. We have no hesitation to say that the above statement of objections will not inspire faith in the mind of any court which is scrutinising the pleadings. We find that, through the statement and the objections, the revision petitioner has denied the proprietary title claimed by the landlady. Through the same statement of objection, the revision petitioner has set up title in himself by prescription. It is well known that a plea of acquisition of title by prescription and adverse possession, pre-supposes tacit admission regarding the title was in favour of the adversary. A further scrutiny of the statement of the objections will 6 R.C.R. No.106 of 2003 certainly show that, existence of the landlady-tenant relationship has been denied. But in that context, the contention seen specifically raised is that the gift deed relied on by the landlady is a sham document that the purposes are oblique and that the nature of the occupation of the revision petitioner is permissive. Lastly and interestingly it is seen that, the tenant has raised contention that he is entitled to fixity of tenure or immunity from eviction. As already indicated, all these contentions are raised before the Rent Control court. 5. When a plea of denial of title is raised before the Rent Control court, the court is expected to hold an enquiry in terms of the proviso to Sub Section 1 of Section 11 of the Act and that enquiry will be limited to the question that, whether the plea is bonafide. The judgment of a Division Bench of this Court in Aboobacker Vs. Girija (1995(1) KLT 553) is a leading light on the procedure to be adopted by a Rent Control court when a pleading of denial of title is raised by a tenant against whom an order of eviction under the provisions 7 R.C.R. No.106 of 2003 of the Rent Control Act is sought for. The Division Bench has very clearly held in that decision as follows :- “The court whose jurisdiction stand ousted in terms of Sub Section 1 of Section 11 must have a satisfaction that there are strong or atleast substantial grounds or sufficient materials in support of the plea and the chances of the plea being up held by the civil court must be fairly higher side.” 6. It is clear to our mind that in the nature of the mutually inconsistent and destructive pleas raised by the revision petitioner before the Rent control court, the chances of the revision petitioner succeeding before the civil court had the issue of the denial of title been referred to the civil court were very remote. True there is, as already stated, a finding entered by the civil court that there is no landlady-tenant relationship between the parties, which has attained finality in the sense that the respondent did not challenge the same. But the respondent in our opinion had her own reason. Even before the civil court entered the above finding, the parties were before the Rent Control court. So the above finding is in a way a post litem finding. Its probative value can not be 8 R.C.R. No.106 of 2003 more than that of post litem finding or document. The issue as to whether the denial of title raised by the tenant is bonafide, is not specifically considered by the appellate authority. But we find that the Rent Control court has considered the same seriously and has rightly found that the plea is not bonafide. It is that finding which is confirmed by the appellate authority. According to us, the above finding does not suffer from infirmities of the nature envisaged by Section 20. 7. Coming to the issue whether there is any warrant for interference with the concurrent finding entered by the statutory authorities that, the need projected by the landlady is bonafide, we notice that the petition schedule building and the other portions of the larger building occupied by the tenant in the other three R.C.Ps. is the only building belonging to landlady. The landlady has given inspiring evidence before the Rent Control court to the effect that her husband who is presently working in Indian High Commission, London, wants to come down to Kozhikode so that he can live with her in the 9 R.C.R. No.106 of 2003 building to be constructed. The landlady's husband is a Law Graduate and we do not find any infirmity in the statutory authorities having accepted the case of the landlady that, her husband intends to reside in the new building and practise Law in the courts at Kozhikode. In short, the finding under Sub Section 3 of Section 11 of the Act concurrently arrived by the statutory authorities does not suffer from any illegality, irregularity or impropriety. 8. We notice another aspect of the matter. The condition of the plaint schedule building appears to be dangerous. Certain photographs were placed before us by Sri.Harikumar. The photographs will reveal that the other portions of the larger building (the portion which were the subject matter of R.C.P.Nos.132 of 1994, 133 of 1994 and 134 of 1994 which were tried alongwith the present R.C.P.) have collapsed completely due to old age and other reasons. We have reason to think that, continued residence of the revision petitioner in this building may not be safe. In short, we do not find warrant for interference. The R.C.R. stands dismissed. 10 R.C.R. No.106 of 2003 9. Post on 22.8.2011 for exploring the possibility of a settlement between the parties. The petitioner or his son as well as the respondent or her son will be present in this Court at 10.15 a.m. on that day. PIUS.C.KURIAKOSE, JUDGE C.K.ABDUL REHIM, JUDGE ami/