IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 19TH OCTOBER 2010 / 27TH ASWINA 1932 RCRev..No. 304 of 2010 --------------------------- RCA.14/2004 of RENT CONTROL APPELLATE AUTHORITY [ADDL. DISTRICT JUDGE (AD HOC-I)], KASARAGOD RCP.1/2000 of PRL.MUNSIFF, KASARAGOD .................... REVISION PETITIONER/APPELLANT/IST RESPONDENT ----------------------------------------------------------- K.P.BALLAKURAYA, S/O.VENKATRAMANA BALLAKURAYA, RESIDING AT BONGLE HITHLU, KASARAGOD VILLAGE, KASARAGOD TALUK, P.O.KASARAGOD. BY ADV. SRI.K.G.GOURI SANKAR RAI RESPONDENT(S): RESPONDENTS 1 TO 12/PETITIONERS & RESPONDENTS 2&3 ---------------------------------------------------------------- 1. SMT.K.BHAGIRATHI G.SHENOY 2. K.VISHWANATHA SHENOY 3. K.PUNDALIKA SHENOY 4. SMT.M.SHANTHERI ALIAS ASHA BHAT 5. SMT.K.GANGA ALIAS DEEPA HEGDE 6. SMT.K.SHAMBHAVI ALIAS SHALILNI KAMATH 7. K.LAXMINARAYANA SHENOY 8. K.NANDABALA SHENOY RCR.304/10 -2- 9. K.RAMAKRISHNA SHENOY 10. SMT.K.MEERA ALIAS PUSHPA SHANBHOGUE 11. K.RAMANATH SHENOY 12. K.SURESH SHENOY [NO.1 IS THE WODOW AND NOS.2 TO 12 ARE CHILDREN OF LATE K. GOKULDAS SHENOY. ALL ARE RESIDING AT 'SRINIVASA' SHANTHI NAGAR, KARANDAKKAD, KASARAGD KASBA VILLAGE, KASARAGOD TALUK P.O., KASARAGOD] 13. THE DEPUTY SUPERINTENDENT OF INTELLIGENCE BEREAU, DOOR NO.KMC.II-81, SHANTHI NAGAR, KARANDAKKAD, KASARAGOD, P.O.KASARAGOD. 14. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA, NEW DELHI. THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 19/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P. S. GOPINATHAN, JJ. ------------------------------------------------ R. C. R. No.304 of 2010 ------------------------------------------------ Dated this the 19th day of October, 2010 ORDER Pius C. Kuriakose, J The revision petitioner who was the first respondent in RCP.1/00 on the files of the Rent Control Court, Kasaragod challenges in this revision the order of eviction concurrently passed against him on the grounds of bona fide need for own occupation and subletting. Going by the averments in the Rent Control Petition as well as the statement of particulars filed under Section 27 of Act 2 of 1965 read with Rule 12 of the Statutory Rules the status of the first respondent has been asserted by the landlord to be that of tenant. The R. C. R. No.304 of 2010 -2- allegation of the landlord is that the status of respondent numbers 2 and 3 in the Rent Control Petition (respondents 13 and 14) are that of sub lessees. The revision petitioner, the first respondent contended that he is not a tenant as envisaged by sub Section 1 of Section 11 and hence, a Rent Control Petition to evict him is not maintainable. He disputed the bona fides of the need projected and also the liability to suffer order of eviction on the ground of subletting under Section 11(3). It was also contended that the Rent Control Petition is bad for non-joinder of a necessary party - the tenant. The Rent Control Petition went for trial and the evidence consisted of Exts.A1 to A15, B1 to B12 and the oral R. C. R. No.304 of 2010 -3- evidence of PW1, one of the landlords and that of RW1, the revision petitioner himself. The learned Rent Control Court on appreciating the evidence came to the conclusion that the petitioner who is admittedly assignee from a tenant by a registered instrument Ext.A2 comes within the sweep of the definition given to the term “tenant” in Act 2 of 1965. In that view of the matter the Rent Control Court held that the Rent Control Petition is maintainable. On the basis of the evidence adduced by parties it was held that both the grounds stood established. Accordingly, order of eviction was passed on both the grounds. 2. The revision petitioner filed Rent Control Appeal No.14/04 against the order of the Rent R. C. R. No.304 of 2010 -4- Control Court. The question as to whether the RCP is maintainable was considered as a preliminary issue by the Rent Control Appellate Authority. The Appellate Authority would answer that question in favour of the landlord. The revision petitioner challenged the above finding of the Appellate Authority by filing CRP.915/03. This Court dismissed the CRP, however, giving an opportunity to the revision petitioner to challenge the finding regarding maintainability of the Rent Control Petition at the time of final disposal of the appeal. The Appellate Authority finally disposed of the above RCA by passing an order of remand to the Rent Control Court for the purpose of deciding whether the Rent Control Petition to the extent it R. C. R. No.304 of 2010 -5- is filed against the revision petitioner who is not a direct tenant under the landlord is maintainable. That remand order was challenged before this Court by the landlord who filed RCR.17/06. The above RCR was disposed of by a Division Bench in which one among us PCK(J) was member. The above disposal was mostly on a consensus between the parties. It was submitted on behalf of the revision petitioner (the revision petitioner herein) that he will not have any objection in the Appellate Authority itself deciding all the issues which arose for determination in the appeal and it was requested that the Appellate Authority be directed to decide the appeal on the basis of the entire evidence on record including additional R. C. R. No.304 of 2010 -6- documents Exts.B13, B14 and B15 produced by the landlord before the Appellate Authority. It was also requested that the revision petitioner be permitted to produce copy of a judgment in O.S.77/07 recently delivered by the local sub Court as an item of evidence. On behalf of the landlord it was submitted that the course suggested by the revision petitioner can be accepted on condition that issues which have become final should not be allowed to be re- opened. Accordingly the Rent Control Court's judgment remanding the RCP to the Rent Control Court was set aside and the Appellate Authority itself was directed to decide RCA 14/04 on the basis of evidence already on record in the RCP and R. C. R. No.304 of 2010 -7- additional evidence Exts.B13, 14 and 15 and also the copy of the judgment in O.S.77/07 to be produced before the Appellate Authority. The Appellate Authority was also directed to decide on the merits of the eviction grounds urged in the RCP. It was clarified that the Appellate Authority has been enabled to decide only those issues which legally arose in the appeal for decision and not any issue which has been settled finally. A time frame of three months was set to the Appellate Authority for deciding the appeal. Pursuant to the above remand order, the appellant/revision petitioner produced three more additional documents. Exts.B16 was copy of the judgment in O.S.77/07 of the Sub Court, R. C. R. No.304 of 2010 -8- Kasaragod. Ext.B17 was copy of the judgment in A.S.88/06 of the District Court, Kasaragod and Ext.B18 was copy of the judgment in A.S.162/08 of the District Court, Kasaragod. These three documents will show that a suit filed by the respondent/landlord claiming damages for use and occupation of the building was dismissed by the Sub Court and that the above dismissal was confirmed in appeal by the District Court. These documents will further show that another suit filed by the landlord was dismissed on a finding that the building which was subject matter of that suit was not constructed by the plaintiff and that the above decree has become final at the hands of the Appellate Court. The learned Appellate Authority R. C. R. No.304 of 2010 -9- under the impugned judgment has found that the status of the parties to the Rent Control Petition as landlord and building tenant has attained finality in view of the judgment of the Supreme Court. After finding so, the learned Appellate Authority would on a re-appraisal of the evidence come to the conclusion that the orders of eviction passed by the Rent Control Court under Sections 11(3) and 11(4)(i) have been passed on a correct appreciation of the evidence on record. It was also noticed in this connection that the bona fides of the need as deposed by PW1 was not even seriously challenged in cross examination. It was noticed in the context of Section 11(4)(i) that the lease executed by the first respondent in the RCP R. C. R. No.304 of 2010 -10- in favour of the second respondent was not in dispute. Taking the view that it was obvious that the above lease which was clearly an under lease was without the knowledge and consent of the landlords. The learned Appellate Authority would endorse the order of eviction passed under Section 11(4)(i) also. Resultantly the RCA was dismissed with costs. 3. In this revision under Section 20 various grounds have been raised assailing the judgment of the Appellate Authority and strenuous and extensive submissions were addressed before us by Sri.Gowri Shankar Rai, the learned counsel for the revision petitioner in support of all those grounds. Maximum thrust was given by Sri.Gowri R. C. R. No.304 of 2010 -11- Shankar Rai in his submissions to the ground that the revision petitioner's status on the petition schedule building is not that of a tenant as defined by Act 2 of 1965 and therefore the Rent Control Petition for eviction filed against the revision petitioner on the premise that the revision petitioner is a tenant is not maintainable at all. The learned counsel argued that documents Exts.B1 to B18 in general and Exts.B1, B2, B3, B11, B12 and B13 in particular would show that the status of the revision petitioner is not that of a building tenant. Relying on the judgment of the Supreme Court in Biswanath Prasad v. Dwarka Prasad (AIR 1974 SC Page 117) Sri.Rai argued that in view of the admissions of the petitioners R. C. R. No.304 of 2010 -12- and their predecessors, the petitioners in the RCP are not entitled to contend that the revision petitioner is a tenant as defined under Act 2 of 1965. The learned counsel complained that the Appellate Authority did not rely on relevant decisions which was cited on behalf of the revision petitioner instead relied on inapposite decisions for supporting the impugned judgment. According to the learned counsel, it has been admitted by the landlord that the revision petitioner is not a tenant but is only a person in unauthorised occupation. Suits were also filed. The suits O.S. Nos.77/07 and 90/04 filed by the landlord will also show that reliefs have been claimed by the landlord on the premise that the revision R. C. R. No.304 of 2010 -13- petitioner is a person in unauthorised occupation. The learned counsel would challenge the finding of the learned Appellate Authority that the status of the parties has been settled finally by the Supreme Court in Civil Appeal No.9156/96. It has not been so settled. According to the learned counsel, the issue which was finally decided by the Supreme Court was only the question of tenancy over the land and not tenancy over the building. Appreciation of the evidence by the statutory authorities was not at all proper. Learned counsel submitted that the order of the Rent Control Court and the Judgment of the Appellate Authority are vitiated by jurisdictional errors. The landlord is approbating and R. C. R. No.304 of 2010 -14- reprobating by contending in one breath that the revision petitioner is a tenant and in another breath that the revision petitioner is an unauthorised occupant. Landlord is estopped from doing so. Sri.Rai relied on a catena of decisions in support of the various propositions advanced by him such as the judgment of the Supreme Court in Laxmidas Morarji v. Behrose Darab Madan [2009(10) SCC 425]; the judgment of this Court in Subbiah Pillai v. Gopala Pillai [1964 KLJ (108)]; Kumaran Nair v. Mariappan Pillai (1967 KLT 1077); A. V. Kammath v. Chandran (1989(1) KLT 473); George v. State of Kerala (1989(1) KLT 481); the judgment of the Supreme Court in Shakuntala v. Hem Chand (AIR 1987 SCC 1823); R. C. R. No.304 of 2010 -15- Lonankutty v. Thomman (AIR 1976 SC 1645) and judgment of this Court in Kurichiyan Chandu v. Kunjuraman Nambiar (1989(2) KLT 763). 4. We have very anxiously considered the fervent submissions of Sri.Gowri Shankar Rai who did not leave any stone unturned in his endeavour to persuade us to entertain this revision. As indicated, the most important question which arises for decision is the question as to whether the jural status of the revision petitioner over the building which is subject matter of the rent control proceedings has been settled by the decisions of the Apex Court and whether the same warrants interference in revision. It will be noticed immediately that the pleadings raised by the R. C. R. No.304 of 2010 -16- parties have been narrated correctly by the learned Rent Control Court in paragraphs 2 to 4 of its order dated 31/01/04 and there is also no dispute that the summarisation of facts made by the learned Appellate Authority in paragraphs 2 to 6 of its judgment is not correct. We therefore, do not want to dwell on the fact in detail as the learned counsel for the revision petitioner in his submissions was seriously concerned with the question as to what is the status of the revision petitioner and whether the revision petitioner will qualify as a tenant liable to be proceeded against under Section 11 of Act 2 of 1965. We enquired of Mr.Rai as to what prejudice has been occasioned to his client by the landlord proceeding against R. C. R. No.304 of 2010 -17- him under Section 11 of Act 2 of 1965 and also as to what according to him is the remedy available to the landlord for evicting the revision petitioner as the propriety title of the landlord over the property is not in dispute. Sri.Rai's answer was only that existence of a landlord-tenant relationship between the parties is a sine-qua-non for maintaining an eviction petition under Section 21 and since such a relationship does not exist in this case, the remedy available in law is only to file a regular suit for eviction before competent civil court. 5. We shall straight away proceed to answer the question whether there is any infirmity with the finding of the statutory authorities that the R. C. R. No.304 of 2010 -18- revision petitioner is a tenant and it has been so found by the Supreme Court. It was not disputed before us that the building which is subject matter of the present Rent Control Proceedings is not the residential building which existed on the property which is covered by the judgment of the Supreme Court in K.Bhagirathi G. Shenoy v. K.P.Ballakuraya (1999(2) KLT 195 (SC). It is also not disputed that Sri.K.P.Ballakuraya, party to the above case is none other than the revision petitioner herein. The property which was subject matter of the case decided by the Supreme Court was 1.6 acres of land together with a pucca residential building situated thereon originally let out to one Somappa Naik the assignor of the R. C. R. No.304 of 2010 -19- revision petitioner. The lease in favour of the above Somappa Naik was renewed by fresh lease deed dated 28/07/51 which is the document marked as Ext.A1 in the case. The entirety of the rights of Sri.Somappa Naik under Ext.A1 was assigned to the present revision petitioner in 1968 by registered assignment deed which is the document marked as Ext.A2 in the case. The proceedings which culminated in the judgment of the Supreme Court was initiated by the revision petitioner, a practising Advocate of Kasaragod District Court Bar who moved the Land Tribunal, Kasaragod as per Section 72(b) of the Kerala Land Reforms Act claiming that he is a cultivating tenant of the disputed property. The specific R. C. R. No.304 of 2010 -20- defence of the landlord to the claim of cultivating tenancy set up by the revision petitioner was that the lease covered by Ext.A1 which should control Ext.A2, is a lease of the building and that the landed area was not an independent agricultural holding as claimed but at best was only land appurtenant to the building. The Supreme Court has in its judgment made a threadbare analysis of Ext.A1 lease deed and held inter alia as follows:- “A reading of the lease deed from the above angles indicates that there was no idea for the lessor to create a right to enjoy the land independent of the building but only to take usufruct of the trees standing thereon while residing in the building. The area of the land alone cannot be a determinative factor. It was common practice in olden days for residential buildings to have sprawling areas as a adjuncts to such buildings. That practice could well have been followed by the parties in the lease R. C. R. No.304 of 2010 -21- deed which is subject matter of the case. For the aforesaid reasons we take the view that the lease was of building with the landed area meant as appurtenant thereto. Its corollary is that the lease is exempted from Chapter II of the Act and the consequence is that respondent cannot claim any right under S. 72B of the Act.” 6. The argument of Sri.Gowri Shankar Rai that the building which is subject matter of the present Rent Control Petition was not subject matter of the proceedings before the Supreme Court and that the Supreme Court has decided only that the revision petitioner is not a cultivating tenant of the land and has never decided that the revision petitioner is a building tenant cannot have anything more than superficial attractiveness. The question considered by the Supreme Court inter alia was whether Ext.A1 creates a lease of land or R. C. R. No.304 of 2010 -22- that of the residential building situated therein. Answering that question the Supreme Court held that Ext.A1 does not create a lease of land but creates only a lease of building. Under Ext.A2 assignment deed what has been assigned to the revision petitioner is only the leasehold right which the revision petitioner's lessee under Ext.A1 was enjoying. The argument that Ext.A2 takes in a small building which is not covered by Ext.A1 does not appeal to us. At best, the above building is only a small appurtenant structure which was virtually part to the main residential building itself. In the teeth of Exts.A1 and A2 and the judgment of the Supreme Court it is futile for the revision petitioner to contend that his status over R. C. R. No.304 of 2010 -23- the building which is subject matter of the present Rent Control Petition is not that of a building tenant. 7. We are not impressed either by the submission of Sri.Gowri Shankar Rai that the landlord having averred in the present Rent Control Petition and elsewhere that the status of the revision petitioner is that of an unauthorised occupant the present Rent Control Petition is not maintainable in law. True Section 11 mandates the existence of a landlord-tenant relationship between the parties to a Rent Control Petition for maintaining the petition. A careful scrutiny of the pleadings will show that it is conceding the existence of such a relationship that the Rent R. C. R. No.304 of 2010 -24- Control Court has been moved seeking eviction of the revision petitioner. The Rent Control Petition in this case is instituted in early 2000. The proceedings continued as RCA.13/01 before the Appellate Authority and thereafter as CRP.915/03 before this Court. It was pursuant to the order of this Court in CRP.915/03 that the Rent Control Court conducted enquiry in the RCP and finally order of eviction on the ground under Section 11 (3) and 11(4)(i) was passed by the Rent Control Court as early as on 31/01/04. Against that order the revision petitioner filed RCA.14/04 and it is during the pendency of that RCA that the landlords filed O.S.90/04 and it was three years thereafter that the landlord filed O.S.77/07. The R. C. R. No.304 of 2010 -25- learned Rent Control Appellate Authority has held that those suits cannot have a bearing while deciding the issue of maintainability in the present RCP which is already pending. The so called admission made by the landlord in those suits that the status of the revision petitioner is that of unauthorised occupant in our opinion can only be without prejudice to the present proceedings which are already pending and at any rate cannot have bearing on the judgment of the Supreme Court in K.Bhagirathi G. Shenoy v. K.P.Ballakuraya (1999(2) KLT 195 (SC) which is admittedly binding on the revision petitioner. 8. In deference to the apparent seriousness with which Sri.Gowri Shankar Rai argued before R. C. R. No.304 of 2010 -26- us that the revision petitioner is not a tenant which we are now proceeding to consider that argument. The definition of the word “tenant” given under Section 2(6) is as follows:- “Tenant” means any person by whom or on whose account rent is payable for a building and includes:- (i) the heir or heirs of a deceased tenant, and (ii) a person continuing in possession after the termination of the tenancy in his favour, but does not include a Kudikidappukaran as defined in the Kerala Land Reforms Act, 1963 (Kerala Act 1 of 1964), or a person placed in occupation of a building by its tenant, or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter house or of rents for shops has been farmed out or leased by a Municipal Council, Municipal Corporation, Township Committee or Panchayat.” 9. The argument of Sri.Gowri Shankar Rai was that the revision petitioner is a person placed R. C. R. No.304 of 2010 -27- in occupation by the tenant Somappa Naik. According to him, the tenant of the building is Somappa Naik and is no more. As Sri.Somappa Naik or his legal heirs are not arrayed as parties in the RCP, the RCP is bad for non-joinder of necessary parties also. We cannot accept the above argument of Sri.Gowri Shankar Rai. It is stated that Sri.Somappa Naik is no longer in possession of the petition schedule building and that it is the revision petitioner alone who is in possession of the petition schedule building. Ext.A1 lease deed and Ext.A2 assignment of lease are admitted documents. They were documents relied on by both sides in the proceedings before the Supreme Court also. A reading of Ext.A2 will R. C. R. No.304 of 2010 -28- show that the entirety of the rights of the lessee under Ext.A1 has been assigned to the revision petitioner for value. The status of the revision petitioner is that of an assignee from the tenant, presently in absolute possession of the subject matter of lease. The assignee from the lessee has a status higher than that of an under lessee. Even an under lessee or sub-tenant is conferred a status as a tenant by the statute. The explanation to sub Section 3 of Section 2 which defines the term landlord provides that a tenant who sublets shall be deemed to be a landlord within the meaning of the word “sub tenant”. This means that if a tenant who is governed under Act 2 of 1965 wants to evict his sub tenant he will have to R. C. R. No.304 of 2010 -29- take recourse to the proceedings under Section 11 of Act 2 of 1965. It is clear to our mind that assignee from a lessee in absolute possession is not a person put up in occupation by the tenant. Possession and occupation have different connotations in jurisprudence. Mere occupant will not have jurisprudential possession whereas Ext.A2 here shows that the revision petitioner has been put in possession. He concedes also that he is in possession. The various decisions cited at the Bar cannot have any application to the peculiar facts and circumstance which obtains in this case. We are in agreement with the learned Appellate Authority that the status of the revision petitioner has