IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 11TH NOVEMBER 2009 / 20TH KARTHIKA 1931 RCRev..No. 297 of 2008() ------------------------ RCA.20/2005 OF RENT CONTROL APPELLATE AUTHORITY, TRIVANDRUM RCP.32/2004 OF RENT CONTROL COURT, TRIVANDRUM .................... REVISION PETITIONERS/APPELLANTS/COUNTER PETITIONERS -------------------------------------------------------------------- 1. MOHAMMED MUSTHAFA, S/O. LATE PEERU MOAHAMMED, AGED 62 YEARS, RESIDING AT T.C. NO. 14/2092, PALAYAM, THIRUVANANTHAPURAM. 2. AYSHA BEEVI, D/O. LATE PEERU MOHAMMED, AGED 41 YEARS, RESIDING AT C.C. NO. 14/2092, PALAYAM, THIRUVANANTHAPURAM. 3. BADARUDDIN BABU, S/O.LATE PEERU MOHAMMED, AGED 44 YEARS, RES. AT T.C. NO.14/2092, PALAYAM, THIRUVANANTHAPURAM. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT(S): --------------- 1. P.P. AJITH, S/O. P.P. PURUSHITHAMAN, HINDU, AGED 39 YEARS, RES. AT T.C. 14/2054, PALAYAM, THIRUVANANTHAPURAM. 2. PR. ANITHA, D/O PURUSHITHAMAN HINDU, AGED 39 YEARS, RES. AT T.C. 14/2054, PALAYAM, THIRUVANANTHAPURAM. ADV. SRI.M.R.ANANDAKUTTAN FOR R1 & R2 SMT.M.HEMALATHA FOR R1 & R2 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 11/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON IA. 2729 OF 2008 DISMISSED SD/- PIUS C.KURIAKOSE, JUDGE. 11-11-09 SD/- K.SURENDRA MOHAN, JUDGE. (TRUE COPY) PS TO JUDGE. PIUS C.KURIAKOSE & K.SURENDRA MOHAN, JJ. ----------------------------------------------------------- R.C.R NO: 297 OF 2008 ---------------------------------------------------------- Dated this the 11th November, 2009. O R D E R PIUS C.KURIAKOSE, J. Under challenge in this revision filed by the tenants under Section 20 of Act 2 of 1965 is order of eviction concurrently passed by the Rent Control Court and the Rent Control Appellate Authority on the ground under Clause (iv) of sub-section 4 of Section 11. The parties will be referred to as landlords and tenants for sake of convenience. 2. The case of the landlords was that the petition schedule building which is situated very close to the Palayam Junction within the area of Tthiruvananthapuram City Corporation belonged originally to one Sri. William Samuel Rasalam and that the above said Rasalam leased out the building to one Sri. Peer Mohammed who was predecessor-in-interest of the revision petitioners in the year 1954 on a monthly rental of Rs.20/- (Rupees twenty RCR. No. 297/08 - 2 - only) and that upon demise of Sri. Peer Mohammed rental arrangement was renewed and one Sri. Mohammed Ghani, the eldest son of Sri. Peer Mohammed came to occupy the building as a tenant. The further case is that on 1978 Sri. Mohammed Ghani vacated the premises and thereupon the first revision petitioner, another son of Sri. Peer Mohammed approached Smt. Mercy Rasalam, W/o. Sri. William Samuel Rasalam who let out the building to him on a revised monthly rent of Rs.50/- (Rupees fifty only). According to the landlords, they have come to be in absolute ownership of the petition schedule building by virtue of Ext.A5 document of sale and on coming to know about Ext.A5 the tenants filed Original Suit No: 306/2004 before the Munsiff's Court, Thiruvananthapuram seeking injunction against forcible eviction. According to the landlords, the building is a very old one and is in such a condition as requiring reconstruction. They have the wherewithal that is to carry RCR. No. 297/08 - 3 - out the reconstruction and they have been issued with the requisite plan and permit by the Thiruvananthapuram Corporation. They are ready to re-induct the tenants into a portion of the new building for reconstruction subject to their liability to pay fair rent. 3. The tenants resisted the RCP contending that there is no landlord-tenant relationship whatsoever between them and the petitioner in the RCP or the predecessor-in-interest of the petitioners. According to them, late Peer Muhammed was working as a driver in Messrs. Marakkar Motors at Thiruvananthapuram during the middle of 1946. While so, in 1947 an agreement for purchase of the petition schedule building as well as 10 cents of land surrounding the same from Sri. Rasalam for a total consideration of Rs.5,000/- (Rupees five thousand only) was entered into between them. Sri.Rasalam received a sum of Rs.1000/- as advance sale consideration during the month of March 1947 RCR. No. 297/08 - 4 - and agreed to execute sale deed within two months. Even though Sri. Peer Mohammed approached Sri.Rasalam with the balance consideration on several occasions, no sale deed was executed. Therefore Sri. Peer Mohammed forcibly trespassed into the building and set up residence therein. The building was thus in the occupation of Sri. Peer Mohammed from 1947 onwards in derogation of the title and possession of Sri. Rasalam, openly, as of right and without any obstruction. Thus Sri. Peer Mohammed perfected title over the building by adverse possession and limitation. The present rent control petition is filed by the petitioners in collusion with son of late Rasalam. It was contended that the document Ext.A4 under which the landlords obtained title is a sham transaction. 4. Evidence at trial before the Rent Control Court consisted of Exts.A1 to A20, B1 to B7, C1 commission report and X1. The oral evidence consisted of testimonies of RCR. No. 297/08 - 5 - PWs.1 to 3 and CPWs. 1 to 3. Ext.A5 was the sale deed under which the petitioners in the RCP came to have title. Ext.A1 was certified copy of the revenue extract pertaining to the property. A2 was the subsidiary document of title. A3, A4, A6 and A7 were tax receipts. Exts. A9 and A10 were respectively the building permit and approved plan issued by the Thiruvananthapuram Corporation. A11 to A16 were certified copies of the property tax assessment registers pertaining to the building in question maintained by the Thiruvananthapuram Corporation. Ext.B4 was copy of plaint in O.S. 306 of 2004 filed by the tenants and B5 is copy of the interim order of injunction issued in Ext.B4 suit. The Rent Control Court instead of formulating a point as envisaged by proviso to sub-section (1) of Section 11, i.e., whether denial of title by the tenant is bona fide? formulated point No.1 as to whether there is landlord tenant relationship between the petitioner and the counter RCR. No. 297/08 - 6 - petitioner in the RCP? That court also formulated point as to whether the requirement of reconstruction projected by the landlords is bona fide? On appreciating the evidence including the circumstances, the Rent Control Court would come to the conclusion that there is landlord tenant relationship between the parties to the RCP and that the denial of the landlords' title by the respondents in the RCP is not bona fide. Coming to point No.1, the Rent Control Court found on the basis of Ext.C1 commission report that the building is situated at Palayam within the area of Thiruvananthapuram Corporation and that the social and physical condition of the building is such that the building warrants reconstruction. It was also found that the landlords have the financial capacity to carry out the reconstruction and also that they have been issued with a valid plan and licence by the Thiruvananthapuram Corporation. Accordingly, it was held that the need for RCR. No. 297/08 - 7 - reconstruction raised under clause (iv) of sub-section (4) of Section 11 is bona fide and accordingly ordered eviction under clause (iv) of subsection (4) of Section 11. The Appellate Authority considering the appeal preferred by the respondent tenant, reappraised the entire evidence and concurred with all the conclusions of the Rent Control Court. Accordingly, the appeal was dismissed. It is challenging the above decisions that the rent control revision petition has been filed. 5. We have heard the submissions of Sri.T.R.Ravi, learned counsel for the revision petitioners and those of Sri. M.R. Anandakuttan, learned counsel for the respondents who had lodged a caveat on their behalf. Very extensive submissions were addressed by Mr.T.R. Ravi on the basis of the various grounds raised in the memorandum of revision. Mr.Ravi argued that the finding of the authorities below that there is landlord tenant relationship between the parties to RCR. No. 297/08 - 8 - the RCP is erroneous. According to him, it is relying on the oral evidence of PW3 and the entries in the property tax assessment registers that the authorities below concluded that there is landlord tenant relationship between the parties. He submitted that PW3 was a cousin of late William Samuel Rasalam. He is not competent to speak regarding the existence of a landlord tenant relationship between the parties. PW3 has at any rate not given any direct evidence regarding existence of landlord tenant relationship between the predecessor of petitioners in the RCP and the respondents in the RCP. Entries in property tax assessment register are made only for the purpose of property tax assessment and not made with reference to lease arrangement between the parties. The learned counsel argued that it is inconceivable that the building in question would have been taken on lease way back in 1954 on a monthly rental of Rs.20/-. The possession of the petitioners RCR. No. 297/08 - 9 - started way back in 1947 long before the commencement of the alleged tenancy. Sri.William Samuel Rasalam died long ago and till in the year 2004 when the petitioners in the RCP claims to have obtained title by virtue of Ext.A5 the revision petitioners and their predecessors in interest were in unquestioned possession over the property. 6. Resisting all the submissions of Mr.Ravi, Sri.M.R. Anandakuttan would support the judgment of the Rent Control Court and Appellate Authority on the reasons stated by that authority and by the Rent Control Court. According to Mr.Anandakuttan, the case of the revision petitioners that they trespassed into the petition schedule building in 1947 at a time when Sri. William Samuel Rasalam, the admitted owner then, was residing in another building 'Auburn' very close to the subject building and that Sri. William Samuel Rasalam did not raise any protest and acquiesced at forcible occupation by the petitioners and their predecessor RCR. No. 297/08 - 10 - till he left for Australia was an implicitly impossible case. The building is situated very near to Palayam Market a most important area in Thiruvananthapuram, highlighted the learned counsel. Reminding us of the contours of our revisional jurisdiction under Section 20 of Act 2 of 1965 Mr.Anandakuttan submitted that the finding concurrently entered by the Rent Control Court and the Appellate Authority that there is landlord tenant relationship between the parties and that an eviction ground under clause (iv) of sub-section (4) of Section 11 is made out is founded on legal evidence available on record. There is no warrant for interfering with those findings. 7. We have very anxiously considered the rival submissions addressed at the Bar. We have scanned the pleadings and made a quick survey of the evidence on record to the extent necessary for appreciating the submissions addressed before us by the learned counsel. RCR. No. 297/08 - 11 - The judgment of a Division Bench of This Court in Aboobacker v. Girija, 1995(1) KLT 553 lays down the considerations to be applied for deciding whether the jurisdiction of the Rent Control Court is ousted in the light of a contention by the tenant that he denies the title of the landlord. The Division Bench held that in order that it is held that the denial of title by the tenant is bona fide and the jurisdiction of the Rent Control Court is ousted, that court must be satisfied on the basis of the materials placed on record that upon the parties being relegated to the civil court the tenant who disputes the title of the landlord has a fairly strong case for success before the civil court. Title in the context of proceedings under the Rent Control Act does not mean paramount or proprietory title. The same only means landlord's entitlement to receive rent from the tenant or the existence of a landlord tenant relationship between the petitioner in the RCP and the respondent in the RCP. RCR. No. 297/08 - 12 - Here in the instant case the rental arrangement set up by the landlords between the original landlords and the predecessor in interest of the present tenants is an oral arrangement of 1954. As against that, the contention raised by the respondents is that, in 1947 there was an agreement for sale and purchase of the petition schedule building between their predecessor and the predecessor in interest of the original landlords under which the petition schedule building was agreed to be sold to their predecessor for a total sale consideration of Rs.5000/- out of which their predecessor had readily paid a sum of Rs.1000/-. Not even a scrap of paper is produced by the revision petitioners to prove the existence of any such agreement for sale. The pleaded case is that when the then owner late Rasalam refused to execute sale deed Sri. Peer Mohammed the predecessor in interest of the revision petitioners trespassed into the building in 1947 and that ever since then, the RCR. No. 297/08 - 13 - building was being possessed in derogation of the title and possession of the real owner and that the revision petitioners predecessor and after him the revision petitioners prescribed title by adverse possession and limitation. But CPW1 in his evidence would say that till 1962 his predecessor was requesting late Rasalam for execution of sale deed in his favour. If that be so, the case of adverse possession with animus hostile to the real owner's title has to fall down and if at all hostile animus was concerned, the same could be only after 1962. 8. It may be true that the property tax assessment registers Exts.A11 to A16 pertaining to the subject building covering different periods of assessment do not by themselves prove the existence of any landlord tenant relationship between the parties to the RCP or between their predecessors. But Exts.A11 to A15 are documents as envisaged by Section 26 of Act 2 of 1965. In terms of that RCR. No. 297/08 - 14 - section such documents have to be accepted as proof of the facts recorded therein. A conjoint scrutiny of these documents will show that the predecessor in interest of the revision petitioners came to occupy the building for the first time only in 1954. Thus the case that he trespassed into the building in 1947 and set up residence therein in open denial of real owner's title necessarily has to fall down. It is true that PW3 does not give direct evidence regarding the existence of any landlord tenant relationship in respect of the petition schedule building between the parties or their predecessors in interest. At the same time, the credibility of PW3 is not seen questioned by the revision petitioners during cross examination. In fact, it is in evidence that on coming to know that PW3 was cited as a witness, the revision petitioners even approached PW3 requesting that PW3 may depose as to the truth before the Court. Interestingly, it is not even suggested to PW3 that he is RCR. No. 297/08 - 15 - stating falsehood for advancing the case of the landlords who are assignees of his cousins. The evidence of PW3 is to the effect that as authorised by the owners, his cousins who were away in Australia, he went over to the compound where the petition schedule building is situated for plucking coconuts and that he had not been told by his cousin who is dead and gone that the occupation of the revision petitioners and their predecessors in the building was in their capacity as tenants. 9. When one explores into the realm of probabilities it is very difficult to believe the case that in 1947 the revision petitioners predecessors forcibly trespassed into the petition schedule building and set up residence therein. In 1947 the alleged period of trespass Thiruvananthapuram was the capital city of the erstwhile princely State of Travancore. Palayam the area where the building is situated was at that time and is even now one of the most important areas of RCR. No. 297/08 - 16 - that city. The allegation is that Sri. Rasalam was resisting the request by Sri.Peer Mohammed to execute a sale deed in his favour on the basis of an agreement which was entered into between them. It is difficult to believe that Sri. Peer Mohammed set up residence in the building forcibly and Sri. Rasalam very meekly acquiesced at the same without lodging any protest or complaint. Applying the principles laid down by the Division Bench in Aboobacker v. Girija, 1995(1) KLT 553 we are of the view that if the parties are relegated to the civil court it will be very difficult if not impossible for the revision petitioners to succeed in their plea that they have obtained title over the building by adverse possession and limitation. Barring oral evidence there is no tangible evidence for holding that the possession which the revision petitioners predecessor and thereafter the revision petitioners were enjoying over the property since 1954 has been adverse to the interest of the real RCR. No. 297/08 - 17 - owners. The probabilities in our opinion are more than that the possession was as tenants under the real owners. We therefore don't find any infirmity , illegality or impropriety in the decision concurrently rendered by the Rent Control Court and the Appellate Authority that the denial of the landlord's title by the revision petitioners is not bona fide and that the relationship that exists between the parties is that of tenants and landlords. 10. As for the eviction order passed concurrently under clause (iv) of sub-section (4) of Section 11 we notice that all the statutory pre-requisites for passing such an order of eviction are satisfied in this case. The commissioner has reported that the condition of the building is such that the same needs reconstruction. The building is situated in one of the most import areas, commercially and otherwise of Thiruvananthapuram, the capital city of the State. The financial capacity of the landlords is not in RCR. No. 297/08 - 18 - dispute. The profitability of the proposal from the landlords point of view is also not in dispute. The landlords have been issued with a valid plan and permit by the Thiruvananthapuram Corporation. The landlords have undertaken in evidence to re-induct the tenant into a portion of the new building subject to their liability to pay fair rent. Thus all the statutory pre-requisites are established by evidence. The authorities below were perfectly justified in ordering eviction . After all, in a way order of eviction passed under Section 11(4)(iv) is only a temporary affair for the tenants. They will be re-inducted into the new building subject to their liability to pay fair rent. 11. The result is that RCR fails and stands dismissed. However, considering the fact that the petitioners have been in residential occupation of the building for quite a long period of time, we are inclined to grant time till 31.3.2010 subject to the following conditions. RCR. No. 297/08 - 19 - The first revision petitioner representing himself and the other revision petitioners shall file an affidavit before the Rent Control Court or the execution court as the case may be, undertaking to give peaceful surrender of the petition schedule building to the respondents on or before 31-3- 2010. The respondents are directed to carry out the reconstruction within a period of one year of their getting possession of the building and upon the building being completed they shall allot area more or less equal to the area of the petition schedule building to the revision petitioners subject to their liability to pay fair rent for the building. PIUS C. KURIAKOSE, JUDGE K. SURENDRA MOHAN, JUDGE jj/ksv