IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 25TH NOVEMBER 2010 / 4TH AGRAHAYANA 1932 SA.No. 2 of 1997(A) ------------------------ AS.7/1993 of SUB COURT, QUILANDY OS.122/1989 of MUNI-MAGI.COURT, PERAMBARA .................... APPELLANT(S)2ND PLAIANTIFF/1ST RESPONDENT ----------------------------------------------------------- CHANDRIKA AMMA, CHANGAROTH KUNNUMMEL MEETHALE VEETTIL, KAITHERIMADATHIL VEETTIL, RAYAROTH, KALLO9DE AMSOM, QUILANDY TALUK. BY ADVS. SRI.V.V.ASOKAN SRI.K.I.MAYANKUTTY MATHER RESPONDENT(S)/1ST DEFENDANT & PLAINTIFFS 3 TO 10/ APPELLANT & RESPONDENTS 2 TO 9 -------------------------------------------------------------------- *1. KARIMBANAKANDY KANNAN, S/O.KANARAN, KALLODE AMSOM AND DESOM, PERAMBRA P.O. (DIED) 2. MEENAKSHI AMMA, MANNATHARIKANDIYIL, CHANGAROTH AMSOM, AVDUKA DESOM, QUILANDY. 3. VIMALA, CHANGAROTH AMSOM AND DESOM, QUILANDY. 4. KRISHNADAS, DO. DO. 5. USHA, DO. DO. 6. LALITHA, DO. DO. 7. SURENDRAN, DO. DO. 8. REMA, DO. DO. 9. REENA, DO. DO. svs/ ..........2/-.... ...2... SA.No. 2 of 1997(A) ** ADDL. R10 TO R17 IMPLEADED 10. CHIRUTHA, W/O.KARIMPANAKANDI KANNAN, KARIMPANAKANDI HOUSE,THACHARATHKANDI NAGAKALI, TEMPLE ROAD, KALLODE, P.O.PERAMBRA - 673 525,KOZHIKODE 11. KUNHIRAMAN,S/O.KARIMPANAKANDI KANNAN, KARIMPANAKANDI HOUSE,THACHARATHKANDI NAGAKALI, TEMPLE ROAD, KALLODE, P.O.PERAMBRA - 673 525,KOZHIKODE 12. BALAKRISHNAN, S/O.KARIMPANAKANDI KANNAN, KARIMPANAKANDI HOUSE,THACHARATHKANDI NAGAKALI, TEMPLE ROAD, KALLODE, P.O.PERAMBRA - 673 525,KOZHIKODE 13. NARAYANAN,S/O.KARIMPANAKANDI KANNAN, KARIMPANAKANDI HOUSE,THACHARATHKANDI NAGAKALI, TEMPLE ROAD, KALLODE, P.O.PERAMBRA - 673 525,KOZHIKODE 14. SANKARAN,S/O.KARIMPANAKANDI KANNAN, KARIMPANAKANDI HOUSE,THACHARATHKANDI NAGAKALI, TEMPLE ROAD, KALLODE, P.O.PERAMBRA - 673 525,KOZHIKODE 15. SHANTHA,D/O.KARIMPANAKANDI KANNAN, KARIMPANAKANDI HOUSE,THACHARATHKANDI NAGAKALI, TEMPLE ROAD, KALLODE, P.O.PERAMBRA - 673 525,KOZHIKODE 16. RADHA, D/O.KARIMPANAKANDI KANNAN, KARIMPANAKANDI HOUSE,THACHARATHKANDI NAGAKALI, TEMPLE ROAD, KALLODE, P.O.PERAMBRA - 673 525,KOZHIKODE 17. GEETHA,D/O.KARIMPANAKANDI KANNAN, KARIMPANAKANDI HOUSE,THACHARATHKANDI NAGAKALI, TEMPLE ROAD, KALLODE, P.O.PERAMBRA - 673 525,KOZHIKODE *** ADDL. RESPONDENTS 10 TO 17 ARE IMPLEADED AS THE LR'S OF DECEASED 1ST RESPONDENT AS PER THE ORDER DATED 26/05/2010 IN I.A. NO. 2273/2009. R2 TO R9 BY ADV.SRI.BEPIN VIJAYAN R10 TO 17 BY ADVS.SRI.R.PARTHASARATHY SRI.C.JAYACHANDRAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ P.BHAVADASAN, J. ------------------------------------- SA No.2 of 1997-A ------------------------------------- Dated 25th November 2010 Judgment The plaintiff, who was successful before the trial court, but was non-suited by the lower appellate court, is the appellant before this court. 2. The suit was one for recovery of possession, on the strength of title. It appears that there was an earlier rent control proceedings between the parties. In the rent control petition, the respondent/defendant took up a contention that the land had been taken by him on lease and that he had put up the building. For reasons best known to the appellants, faced with that contention, they chose to withdraw those proceedings. Thereafter, they instituted the present suit. 3. In the present suit, the respondent/defendant contended that he was a tenant falling within the ambit of Act 2 of 1965 and therefore, a suit for eviction is not SA 2/97 2 maintainable. 4. The trial court accepted the plea of the plaintiffs that the defendant cannot be heard to say that he was the tenant of the building and that he cannot go behind the earlier contention that he had taken the land on lease and had put up the building. The trial court, therefore, decreed the suit. 5. The respondent took up the matter in appeal. The appellate court found that in the light of Ext.A1 dated 15.06.1984, a kaichit was said to have been executed by the defendant in favour of the plaintiffs, the status of the defendant is that of a tenant of the building. It is true that the lower appellate court observed that the defendant was in fact estopped from raising a contention contrary to the earlier plea, but in view of the execution of Ext.A1 deed relied on by the plaintiffs, it was held that the relationship between the parties is that of a landlord and a tenant. The lower appellate court was of the opinion that since there was no finding by the rent control court under S.11(1) of SA 2/97 3 Act 2 of 1965 in relation to any dispute regarding title, no relief could be granted to the plaintiffs and the plaintiffs will have to approach the rent control court. Holding so, the appeal was allowed and the suit was dismissed. The said findings are assailed in this appeal. 6. The following questions of law are seen formulated in this second appeal : a) Having regard to the stand taken by the defendant in RCP 6/87 that he is the owner of the building in the suit property, the same having been constructed by himself and consequently, the Rent Control Court has no jurisdiction to entertain the proceedings, is not the defendant estopped from pleading otherwise in the present suit that the Rent Control Court alone has jurisdiction and that the civil court has no jurisdiction at all ? b) Has not the plaintiff chosen not to press the RCP 6/87 only in view of the stand so taken by the defendant ? Has not the plaintiff acting on such stand altered his position to her disadvantage ? c) Can the 1st defendant now permitted to change his stand to the prejudice of the plaintiff ? Can he be permitted to SA 2/97 4 approbate and reprobate ? d) Has not the civil court in any view, jurisdiction to entertain the suit and pass a decree for possession ? e) Was the lower appellate court justified in dismissing the claim for arrears of rent in the absence of any definite evidence to prove any discharge ? f) Was the lower appellate court justified under the circumstances in setting aside the judgment and decree of the trial court ?” 7. The learned counsel for the appellant pointed out that the lower appellate court was not justified in reversing the findings of the trial court, denying recovery of possession of the property by the plaintiff. In the rent control proceedings, the tenant had contended that he had taken the land on lease and that he had put up the building. It was in that context that the Rent Control OP came to be not pressed and happened to be dismissed. Having said so, according to the learned counsel for the appellant, the defendant cannot now be heard to say that he is a tenant of the building. Therefore, according to the learned SA 2/97 5 counsel for the appellant, there is no justification for the lower appellate court to reverse the findings of the trial court. 8. Per contra, the learned counsel for the respondents pointed out that in the rent control proceedings, no contention was taken up by the tenant, disputing the title of the landlord. He did not take up a contention that the rent control petition is not maintainable and that he is not a building tenant. It is admitted that there was a contention that he had taken up the land on lease and put up a building but there was no finding by the rent control court that it was so. The rent control proceeding happened to be dismissed at the behest of the plaintiff and there was no finding in the rent control petition that he was the lessee of the land, the building was put up by him and so, Act 2 of 1965 is not applicable. 9. Before this court, the appellant stands by Ext.A1 document dated 15.06.1984. That is admittedly a kaichit executed by the defendant in favour of the SA 2/97 6 appellant. There is nothing in Ext.A1 to indicate that the land was leased out. In fact, the tenant also does not dispute that document. It was that document which persuaded the court below to hold that there was landlord- tenant relationship between the parties. A reading of Ext.A1 leaves one in no doubt that the relationship between the parties is nothing but that of a landlord and tenant. Merely because the tenant had taken a contention in the rent control petition that the land was taken on lease by him and that he had put up a building therein, that was not a ground for the appellant herein to have withdrawn the Rent Control OP. No decision was rendered as such regarding the status of the parties in that proceedings. 10. Whatever that be, in the present suit, the lower appellate court has found that the respondent is a tenant of the appellant and that eviction can be allowed only through rent control proceedings. 11. Going by the provisions of Act 2 of 1965, eviction can be sought only on grounds enumerated SA 2/97 7 therein. In such cases, suits for eviction are not maintainable. The lower appellate court is therefore, fully justified in allowing the appeal and dismissing the suit by observing that the remedy of the plaintiffs is to approach the rent control court. 12. Upholding the finding of the lower appellate court that the relationship between the parties is that of a landlord and a tenant and reserving the liberty of the appellant to approach the rent control court for appropriate reliefs, this appeal stand dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE sta SA 2/97 8