IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 RCRev..No. 190 of 2008() --------------------------------- RCA.42/2003 of II ADDL. RENT CONTROL APPELLATE AUTHORITY, KOLLAM RCOP.34/1999 of ADDL.RENT CONTROLLER, KOLLAM .................... REVISION PETITIONERS/ 1ST AND 2ND RESPONDENTS/ 1ST AND 2ND RESPONDENTS: --------------------------------------------------------------------------------- 1. M/S A.S. KRISHNASWAMY REDDIYAR, A FIRM REGISTERED UNDER THE INDIAN PARTNERSHIP ACT AND ENGAGED AS GENERAL MERCHANTS, MUKKADA BAZAR, KOLLAM. 2. A.S.K. NARAYANAN, S/O LATE A.S. KRISHNASWAMY REDDIYAR, PARTNER OF M/S A.S. KRISHNASWAMY REDDIYAR, A FIRM REGISTERED UNDER THE INDIAN PARTNERHIP ACT, AND ENGAGED AS GENERAL MERCHANTS, MUKKADA BAZAR, KOLLAM. BY ADVOCATE MR. R.SATISH KUMAR RESPONDENTS/ APPELLANT & 3RD RESPONDENT/ PETITIONER & 3RD RESPONDENT ------------------------------------------------------------------------------------------------ 1. N.KRISHNAN, AGED 42 YEARS, S/O V. NARAYANAN REDDIYAR, DEVI NILYAM, THAMARAKULAM, KOLLAM., 2. REMA MURALI, AGED 41 YEARS, W/O LATE A.S.K. MURALI, A.S.K. BHAVAN, PLALITHOTTAM, KOLLAM. BY ADVOCATES MR.V.V.RAJA FOR R1 MR.M.T.SURESHKUMAR FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 03/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & M.C.HARI RANI, JJ - - - - - - - - - - - - - - - - - - - R.C.R.No. 190 of 2008 - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of February, 2008. O R D E R PIUS C. KURIAKOSE, J The tenants, aggrieved by the order of Rent Control Appellate Authority interfering with the findings of the Rent Control Court that their denial of the landlords title is bonafide, are the petitioners in this revision petition filed under Section 20 of Act 2 of 1965. The petition schedule building forms part of a two storied godown building situated in 10 cents of property, of which 6 cents of property and a portion of the building including the present petition schedule building has been purchased by the landlord. Eviction was sought by landlord on the ground of arrears of rent and bonafide need for own occupation. The tenants filed objection raising various contentions including the contention of non-joinder and mis-joinder of parties. The tenants denied the title of the landlord and they claimed title for themselves by adverse possession and limitation. Rent Control Court formulated seven points for consideration including the one regarding the bonafides of the contention of the tenants regarding the denial of the title. R.C.R.No. 190 of 2008 -2- On the side of the landlord, evidence consisted of oral testimony of PW1 and Exts.A1 to A14. On the side of the tenant, the same consisted of testimony of DW1 and documents, Exts.B1 to B24. The Rent Control Court on considering the evidence found that the denial of the title by tenant is bonafide and dismissed the RCP relegating the landlord to the Civil Court for working out his remedy. The appellate authority on re-appreciation of the evidence referred to the judgment of the Madrass High Court in K.Brahmayya v. K.B.Sundaramma [AIR 1948 Madras-225] and held that non payment of rent for 12 years is not a reason to conclude that the right of the landlord has been extinguished by adverse possession and limitation. It was noticed that the tenants did not have a case that their predecessor in interest of A.S.Krishnaswamy Reddiyar, the original tenant has surrendered the possession of the building to the landlord. It was accordingly held that the tenants are not entitled to contend that the tenancy had been determined so that Article 67 of the Limitation Act will come into play. In this context, the learned District Judge referred to the judgment of the Karnataka Court in Rajaram v. Basawwa [1975(1) Karnataka L.J.100]. Relying on the judgment of this R.C.R.No. 190 of 2008 -3- court in Sadanandan v. Pradeepan [2001 (2) KLT 913] and the judgment in Ahammed v. Krishnalal [2005(3)KLT 1004], the learned appellate authority found that no period of limitation is prescribed by the Rent Control Act to file an application under Section 11 for eviction and that it cannot be held that there is any limitation for filing an application for eviction on any of the provisions of the Act except in the matter of filing an appeal or execution petition. Considerable reliance was placed by the learned District judge on the judgment of the Division Bench in Joseph v. Thomas [1987 (2) KLT-1029] and noticed that a bare assertion in the statement of objection raised by the tenant that he denies the title of the landlord will not be sufficient and that the Rent Control Court is to arrive at the conclusion as to whether the denial is bonafide on the basis of the materials which are placed before that court. On analysing the evidence which was available before the court, the appellate authority came to the conclusion that from the objections filed by the tenants and from the oral evidence and the documents available on record, it was crystal clear that the denial of title of the landlord by the tenant is not bonafide. Accordingly, that court set aside the finding of the Rent Control Court regarding the bonafide of the denial of title, and R.C.R.No. 190 of 2008 -4- allowing the appeal, remanded the RCP to the Rent Control Court for considering the claim for eviction on its merits. 2. Strenuous arguments were addressed before us by Sri. R. Sathish Kumar, learned counsel for the petitioner, tenant and also by Sri. Raja Vijayaraghavan, learned counsel for the respondent, landlord. Mr. Sathish Kumar would assail the decision of the Rent Control Appellate Authority on the various grounds raised in the memorandum of revision. The counsel submitted that from the averments in paragraph 2 of the Rent Control Petition itself, it is clear that by issuing Ext.A11 notice, the landlord has terminated the tenancy. The counsel submitted that Ext.B10 suit will show that the original tenant, Krishnaswamy Reddiyar had filed the suit against his landlord to the knowledge of the present landlord and his predecessor which would show that Sri. A.S.Krishnaswamy Reddiyar had asserted title over the building even at that time. The counsel referred to Ext.B19 RC(OP) filed by the A.S.Krishnaswamy Reddiyar and contended that B19 will show that A.S.Krishnaswamy Reddiyar was using the godown as landlord and was asserting landlord ship over the godown. The counsel submitted that even after the various litigations initiated by Sri. Krishnaswamy Reddiyar asserting his ownership over the R.C.R.No. 190 of 2008 -5- building, the original landlord never took any steps for evicting Sri. Krishnaswamy Reddiyar. Rather the original landlord completely abandoned the petition schedule godown. The counsel submitted that upon completion of 12 years, Limitation Act came into play and by virtue of Section 27 and Articles 65 and 67 of that Act, the present tenant has prescribed title by adverse possession. The counsel submitted that the view expressed by the appellate authority in the context of the determination of tenancy is wrong. The counsel submitted further that suit for declaration of title filed by the tenant is pending before the Sub Court Kollam in O.S. No. 299/2002, which according to the counsel, will show that the denial of title presently raised was quite bonafide. Mr. Satheesh Kumar would fortify his submissions on the basis of the judgment of the Supreme Court in Kamakshi Builders v. Ambedkar Educational Society and others [2007 (12) SCC 27], the judgment of the Full bench of this Court in Parthakumar v. Ajith Viswanathan [2006(2)KLT 250 (FB), the judgment of this Court in Sunny v. Amaruddin [2004(1) KLT SN Case No.83 page 63] and the judgment of the Supreme Court in P.T. Munichikkanna Reddy and Others v. Revamma and Others [2007 (6) SCC 59. R.C.R.No. 190 of 2008 -6- He also relied down the judgment of R. Bhaskaran J in Devaki Pillai v. Gouri Amma [2003(1) KLT 421]. 3. All the submissions of Mr. Satish Kumar were stiffly and effectively resisted by Sri. Raja Vijayaraghavan. The learned counsel placed reliance on the judgment of the Division Bench of this Court in Ahammed v. Krishnalal [2005(3) KLT 1004] in support of the proposition and that the Rent Control Act does not prescribe any period of limitation for making application for eviction under Section 11 of the Act. The learned counsel relied on the judgment of the another Division Bench in Sadanandan v. Pradeepan [2001 (2) KLT 953] and for the same proposition. Mr. Raja Vijayaraghavan also relied on the judgment of the Division Bench in Tresa v. Joseph [2005(4) KLT 435] in support of the proposition that the Rent Control Act supersedes the general law of tenancy in the matter of holding over. The learned counsel relied also on the judgment of the Supreme Court in Abdul Rahman v. Prasony Bai and Another [2003(1)SCC 488] to argue that it is not open to the tenant to raise the plea of adverse possession against his landlord. 4. We have very anxiously considered the rival submissions R.C.R.No. 190 of 2008 -7- addressed at the bar in the light of the relevant statutory provisions and judicial precedents cited at the bar. We have also considered the recent judgment of the Division Bench of this Court to which one of us (myself) is also a party - Govindan v. P.A.Rasheed [2009(1) KHC 587]. The judgment of the Division Bench of this Court in Aboobacker v. Girija [1995(1)KLT 553] is one of the leading cases pertaining to the scope of the enquiry into the 2nd proviso under Section 11(1). It has been held therein that before holding that its jurisdiction stands ousted under the 2nd proviso to Section 11(1) the Rent Control Court should be satisfied that there are strong or at least substantial grounds or sufficient materials in support of the plea and that the chance of the plea being upheld by the Civil Court is fairly on the higher side. Gauging the bonafides of the revision petitioners', denial of the landlords title in this case by those parameters, it will be extremely difficult to say that the chances of the revision petitioners succeeding before the Civil Court are bright in the suit which the landlord will be obliged to file before that court in the event of the tenant's denial of landlord's title being found to be bonafide. As noticed by the Rent Control Court, while it is contended in the objections that Sri. A.S. Krishnaswamy Reddiyar the predecessor of R.C.R.No. 190 of 2008 -8- the tenant was having title and that they are the inheritors of that title, it is also admitted that Sri. Krishnaswamy Reddiyar had taken the petition schedule building along with other building on lease from Smt. S. Lakshmi Amma. It is also contended that the above lease was of a permanent nature and A.S. Krishnaswamy Reddiyar had sublet portions of the tenanted premises to various persons from 1961 onwards. It is also clear from the objection that respondents case is that their predecessor Krishnaswamy Reddiyar was in possession of the building right from 1951 and from 1961 onwards he was dealing with the building which he had been taken on lease as though the same was his own building and subletting it and receiving rent from his sub tenants. Ext.A1 is the rent deed executed by the predecessor in interest of the tenant on 1.6.1967 which prescribes a period of one year. Ext.A1 cuts at the root of the tenants' case that tenants' predecessor in interest was dealing with the building as his own. In the teeth of Ext.A1, assertion in the objection that the title of Thulasi Bai, was extinguished by 1973 due to adverse possession and limitation is ex facie baseless. The contention of the tenant is that if Krishnaswamy Reddiyar has paid rent only up to 1960, cannot be accepted in the teeth of Ext.A1 petition dated 1.6.1967. DW1 had categorically admitted that he R.C.R.No. 190 of 2008 -9- had no knowledge as to whether the tenancy right conferred under Ext.A1 has been surrendered. Documents relied on by the tenants to support the claim of adverse possession are certified copies of the proceedings initiated by them against their subtenants. But in cross examination, the tenants admit that Krishnaswamy Reddiyar hold the building only as a tenant. To the specific question in cross examination, whether Krishnaswamy Reddiyar possesses the building only as a tenant the answer of DW1 is ignorance. Krishnaswamy Reddiyar died only in 1993. None of the documents produced on the side of the respondent will reveal that Krishnaswamy Reddiyar asserted any hostile title against his landlord. If that be so, his legal representatives are not entitled to claim any independent right over the petition schedule building. In short we are also of the opinion that the revision petitioners have practically no chance of succeeding before the civil court. The result of the above discussion is that the RCR will stand dismissed. In the circumstances, the parties are directed to suffer their costs. The request of Raja Vijayaraghavan not withstanding we are not inclined to interfere with the permission granted by the appellate authority to both sides to adduce evidence. But since the parties are permitted to adduce evidence touching the merits of R.C.R.No. 190 of 2008 -10- the claim in the RCP, we direct the Rent Control Court to afford only one opportunity to each of the parties to adduce further evidence. Rent Control Court will thereafter post the case for hearing and dispose of the RCP finally at the earliest, and at any rate, within 30 days of receipt of a copy of this judgment. PIUS C. KURIAKOSE, JUDGE M.C.HARI RANI, JUDGE rhs