IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 7TH JULY 2008 / 16TH ASHADHA 1930 RCRev..No. 141 of 2008() ------------------------ RCA.112/2004 RENT CONTROL APPELLATE AUTHORITY, THALASSERY RCP.26/1999 of RENT CONTROL COURT, PAYYANNUR .................... APPELLANT/1ST RESPONDENT IN R.C.P: --------------------------------------------------- A.CHANDRASEKHARA PRABHU, S/O.ACHUTHA PRABHU, VELLUR AMSOM, KANDOTH DESOM, PERAMBRA, KANNUR DISTRICT. BY ADV. SRI.K.DIVAKARAN NAIR RESPONDENTS: RESPONDENTS/PETITIONER & 2ND RESPONDENT IN R.C.P.: --------------------------------------------------------------- 1. VADAKKE PARAMMAL KUNHIMOIDEEN, S/O.ADAM HAJI, RESIDING AT VELLUR AMSOM, KANDOTH DESOM, KANNUR DISTRICT. 2. THATTAN PARAMMAL BALAN, S/O.KUMARAN, VELLOOR AMSOM AND DESOM, ALINKUZHI, NOW RESIDING AT NEAR I.B.P. PUMP, KANDOTH DESOM AND AMSOM, PAYYANUR P.O., KANNUR DT. BY ADV. SRI.K.MOHANAKANNAN THIS RENT CONTROL REVISION HAVING HAVING COME UP FOR ADMISSION ALONG WITH CAVEAT O.P.NO.258/08 ON 07/07/2008, THE COURT ON 7/7/2008 PASSED THE FOLLOWING: P.R.RAMAN & T.R.RAMACHANDRAN NAIR,JJ. ------------------------------- R.C.R.NO.141 OF 2008 & CAVEAT O.P.NO.258 OF 2008 -------------------------------- Dated this the 7th day of July, 2008 O R D E R Raman,J. This revision arises out of a common judgment dated 11/1/2008 in RCA.Nos.112 & 114 /2004 rendered by the Rent Control Appellate Authority. R.C.A.No.112/04 was filed by the petitioner herein and R.C.A.No.114/04 was filed by the 2nd respondent herein. Both these appeals were preferred challenging the order of the Rent Controller in R.C.P.No.26/99. The Rent Control Appellate Authority dismissed both these appeals. Aggrieved thereby this revision is preferred. 2. The Rent Control Petition was filed by Vadakke Parammal Kunhimoideen in the capacity as the landlord seeking eviction of the respondent (Chandrasekhara Prabhu) alleged to be the tenant of the building under Sections 11(2), 11)(3), 11(4)(i) and 11(4(iv) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The petition -2- R.C.R.No.141//2008 schedule building and the property in which it situates were obtained by the Rent Control Petitioner in EP.64/95 in O.S.197/77 of the Sub Court, Thalassery. He obtained delivery of possession of the petition schedule property as per order in E.P.60/97 of the Sub Court, Payyannur. The lst respondent (petitioner herein) took the petition schedule building on lease from the prior owner, Cheriya Muhammed Kunhi Haji, on a monthly rent of Rs.100/- as per kachit in 1967. Petitioner after purchase in court auction obtained title over the plaint schedule building, and a notice was issued to the lst respondent intimating the change of ownership of the building and demanding the arrears of rent, from February, 1997. The lst respondent sent a reply, but according to the petitioner, on untenable grounds. The 2nd respondent in the rent control petition is conducting an Automobile workshop in a portion of the petition schedule building. It is alleged that the lst respondent sublet a portion of the building in favour of the 2nd respondent, for which he has no -3- R.C.R.No.141//2008 right. Due to the negligent use of the building by the respondents, damages also had been caused to the petition schedule room. The value of utility of the building has been diminished due to the negligent acts. Petitioner requires the petition schedule building bona fide for the occupation of his grandson, Aboobacker Siddique, for the purpose of conducting a wholesale business in Aluminium. Aboobacker Siddique is depending on the petitioner. He has got necessary experience and ability to conduct the business. Neither the petitioner nor Aboobacker has got any other vacant room in their possession for the purpose of conducting the said business. The 2nd respondent was to cause the notice to be returned without receiving the same. The lst respondent in his reply denied the averments. Since they did not surrender the building, eviction was sought for. 3. The lst respondent in his counter statement stated that the petition is not maintainable in law, that there is no landlord- tenant relationship between the lst respondent and the petitioner, -4- R.C.R.No.141//2008 that the petitioner is not the owner of the petition schedule building and that the title of the petitioner over the petition schedule building was denied. It was contended that the petition schedule building originally belonged to Cheria Muhammed Kuhi Haji. One room was taken by the lst respondent on lease on 23/12/1967 and subsequently the other two rooms. While the tenant was in possession of the plaint schedule building, the original owner executed a sale deed in his favour and by virtue of the said document, the title of the original owner vested on the lst respondent. The eviction sought for under Sections 11(2), 11) (3), 11(4)(i) and 11(4)(iv) is not sustainable since the petitioner is not having any title over the petition schedule building. The bona fide requirement as alleged is denied and contended that it is only a ruse for eviction. The 2nd respondent is only a partner in the business conducted by the lst respondent and he was inducted as a partner with the consent of the original owner. 4. The 2nd respondent filed a counter statement contending -5- R.C.R.No.141//2008 that he is not aware of the proceedings in O.S.197/77, E.P.64/95 and E.P.60/97 of the Sub Court, Payyannur, as he was not a party to those proceedings. Therefore, the acquisition of the title by the petitioner over the petition schedule building is not known to him. He denied the ownership of the petition schedule building. It is stated that the 2nd respondent was running the business as a proprietory concern and the lst respondent accepted rent from the 2nd respondent in his capacity as the owner of the building. Thus, according to him, respondents 1 and 2 have landlord- tenant relationship. The workshop is conducted by the respondent as a reputed garage. The petitioner was aware of conducting the workshop by the 2nd respondent. There is acquiescence on the part of the petitioner and he is estopped from raising a contention that the 2nd respondent is a sub-tenant. The 2nd respondent is the legal and proper tenant of the petition building and the change of ownership of the building will not affect his tenancy right. The bona fide need alleged is also -6- R.C.R.No.141//2008 denied. 5. Since the title of the petitioner over the petition schedule building was denied by the respondents, that issue was considered as a preliminary point by the Rent Control Court as per its order dated 10/10/2001. The Rent Control Court found that the denial of title by the respondents was not bona fide and thus the court decided to proceed with the petition to consider the other issues. There was an appeal as R.C.A.142/2001 from the said order. The appellate Authority, Tellicherry confirmed the finding as per judgment dated 25/2/2003 and thus the finding that there is no bona fide dispute of title became final and hence do not arise for any further consideration. Subsequent to the finding of the court below regarding the bona fides of the title, the lst respondent filed an additional counter statement raising an additional plea that he is depending for his livelihood on the income derived from the business conducted in the petition schedule building and that there are no other suitable buildings -7- R.C.R.No.141//2008 available in the locality for carrying on the said business. During the trial stage, on reporting no instruction by the counsel for the 2nd respondent, he was set ex parte. Thus, the contesting parties thereafter are only the petitioner and the lst respondent. 6. The petitioner gave evidence as PW-1. PW-2 was also examined and Exts.A1 to A10 were marked on the side of the petitioner. The lst respondent gave evidence as RW-1 and Exts.B1 to B6 were marked on the side of the respondent. The court below framed necessary issues for trial. The Rent Control Court found that there is subsisting landlord-tenant relationship between the petitioner and the lst respondent. It also found that tenant has committed default in payment of rent and ordered eviction under Section 11(2) (b) of the Act. The Rent Control Court also found that the landlord bona fide requires the building as alleged in the rent control petition. It also found that Aboobacker Siddique is depending on the petitioner for his livelihood as well as for the purpose of the building. It also -8- R.C.R.No.141//2008 found that the said Aboobacker Siddique has got ability and financial capacity for starting the business and his experience in the said business are not under any successful challenge. It found that the lst respondent has not proved availability of a protection under the lst proviso to Section 11(3) of the Act. Regarding the 2nd proviso it was found that the lst respondent has not discharged his burden to prove as to what is his income derived from the business conducted in the petition schedule building and there were no documents produced before the court to prove the said income. As a matter of fact, whether he is getting any income from the petition schedule building or not itself is not proved. Thus, there is no evidence adduced by him to show that he is depending for his livelihood mainly on the income derived form the business conducted in the petition schedule building and failed to discharge the burden cast on him. Regarding second limb of 2nd proviso on the availability of a building in the locality, it was found that the lst respondent did -9- R.C.R.No.141//2008 not even disclose before the court as to what is the basis of which he had made a contention that there are no other buildings available in the locality. Mode of enquiry conducted by him for other suitable rooms is not disclosed before the court. Thus, he failed to prove the 2nd limb of 2nd proviso as well. In the result, the eviction was ordered under Section 11(3) of the Act as well. 7. Regarding the grounds of sublease, it was found that there is no acquiescence on the part of the petitioner to consent for subletting the building. On an analysis of the evidence it was found that the lst respondent has sublet the building to the 2nd respondent in contravention to the terms of the kachit. The contention regarding the partnership raised by the lst respondent was not proved. The delay in seeking eviction was caused due to long pending litigation. Ext.A3 was found to be sufficient notice as required by law seeking eviction under Section 11(4(i) of the Act. Since the lst respondent failed to terminate the sublease within the statutory period of 30 days after receipt of -10- R.C.R.No.141//2008 notice, it was found that the petitioner has proved the ground for eviction under Section 11(4)(i) of the Act as well. In the absence of any proper plea, the eviction sought under Section 11(4)(iv) of the Act was found against. Even by treating the ground under Section 11(4)(iv) as a mistake, 11(4)(ii) for paucity of pleading and for want of evidence, it was found that the petitioner is not entitled for eviction under Section 11(4)(ii) of the Act. In the result, the petition was allowed on the ground urged under Section 11(2), 11(3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act. The Appellate Authority re-appreciated the evidence on record and after such exercise it found that there are no merit in the two appeals and dismissed the same. The correctness of the findings by the authorities below are therefore canvassed in this revision. 8. The learned counsel Sri Divakaran Nair appearing on behalf of the petitioner confined the submission to the following points: -11- R.C.R.No.141//2008 (1) According to him, the observations made in the order dated 24/10/1998 in C.R.P.No.1178/1998 reserving the right of the revision petitioner herein that he is free to take all contentions including the contention that title has not passed over to the decree holder was not properly appreciated by the court below. (2) There is a bona fide dispute regarding the title and the Rent Control Court has no jurisdiction to proceed with the rent control petition and only the civil court can adjudicate the title dispute. He placed reliance on the decision of the Full Bench of this Court in Parthakumar v. Ajith Viswanathan ( 2006 (2) KLT 250 (FB)). (3) He also contended that a decree to be in the proper form should be one executed by an original landlord as well as the subsequent transferee, namely, the petitioner and he placed reliance on the decision of the Supreme Court in Durga Prasad and another v. Deep Chand and others (AIR 1954 SC 75) in -12- R.C.R.No.141//2008 support thereof. We shall now proceed to consider the points urged. 9. When the matter came up for admission, the contesting respondents filed a caveat and therefore we had the benefit of hearing to both sides. 10. The petition schedule building originally belonged to one Akkalath Cheriya Muhammed Kunhi Haji. He entered into an agreement for sale with Vadakke Parammal Kunhimoideen, the lst respondent in this revision and the petitioner on the rent control petition. The revision petitioner herein was a tenant under the original landlord Akkalath Cheriya Muhammad Kunhi Haji. Violating the agreement for sale, the original landlord sold the property to the revision petitioner herein. A specific performance suit was instituted by the lst respondent herein as plaintiff in which the revision petitioner as well as the 2nd respondent herein were arrayed as defendants. A specific contention was raised by the petitioner herein (2nd defendant) that -13- R.C.R.No.141//2008 he has got title to the property by virtue of the sale in his favour from the original landlord, the lst defendant. He also pleaded tenancy right over the portion of the plaint schedule item. Eventually, a decree for specific performance was passed after rejecting those contentions. But there was a finding that the petitioner herein had a tenancy right over a portion of the plaint schedule property and the building thereon and therefore is entitled to continue in possession as a tenant. Sale deed was also executed as per the decree by the original landlord, the lst defendant in favour of the plaintiff, the lst respondent herein. Thereafter, execution petition was filed for taking delivery of possession of the property by filing E.P.No.60/1997. The execution court ordered symbolic delivery of possession. Challenging the same the revision petitioner herein preferred C.R.P.No.1178/98. This Court by order dated 24th October, 1998 disposed of the CRP holding that the execution court has only ordered symbolic delivery of possession. As such the revision -14- R.C.R.No.141//2008 petitioner's rights are not affected. A specific contention was raised by the revision petitioner herein that the execution of the sale deed pursuant to the decree is not proper and that the 2nd defendant is not a party to the sale deed. But this Court did not go into these aspects observing that only symbolic delivery of possession is ordered and hence the right of the petitioner is not affected and in case the proceedings are taken to dispossess the petitioner, then he is free to take such contention including the contention that title has not passed over to the decree holder. 11. According to the revision petitioner, the lst respondent herein is not the owner of the property. The Appellate Authority has dealt with this aspect of the matter in detail. On 16/1/1997 the Sub Court executed a sale deed in favour of the lst respondent herein. Ext.A1 is the said sale deed produced in this case. It was on that basis that the lst respondent claimed title over the property and filed the present RCP for eviction. There was a suit O.S.No.197/77 for specific performance instituted by the lst -15- R.C.R.No.141//2008 respondent herein before the Sub Court, Thalassery. Originally, the trial court granted an alternative relief. There was an appeal (A.S.No.50/84) before the District Court. The Appellate Court reversed the decree and granted a decree for specific performance of the contract itself. Thereafter, second appeal was preferred before this Court as S.A.No.238/87 and this Court confirmed the judgment of the Appellate Court. Thus, a decree for specific performance was obtained by the lst respondent in which petitioner herein was a party. The specific contention of the revision petitioner in the said suit is that he is a bona fide purchaser under the original landlord and prayed that the specific performance suit be dismissed and contended that the lst respondent herein (plaintiff) is not entitled for the specific performance. It was repelling those contentions that ultimately a decree was passed after entering a finding against the petitioner herein. The decree became final. It was thereafter that execution proceedings were initiated by the decree holder (lst respondent -16- R.C.R.No.141//2008 herein) and obtained a symbolic delivery of the property. Revision petitioner herein no doubt was a tenant under the original landlord and therefore he should be evicted physically only in accordance with the provisions of the Act. As he is entitled to all the right as a tenant, a symbolic delivery alone could be ordered. As respect to the title is concerned, the decree in the specific performance suit became final and sale deed was executed in favour of the plaintiff, the lst respondent herein. It may be noticed in this connection that the main thrust of the argument of the revision petitioner is based on the observation in the order in C.R.P.No.1178/98 as is referred to earlier. Therefore both the Rent Control Court as well as the Appellate Authority had gone into these questions. It referred to the entire proceedings culminating in S.A.No.238/1987 and that the specific performance decree became final by the judgment of this Court in the said second appeal. It was also noticed that in the suit O.S.No.197/1977 there was conflicting view with respect to -17- R.C.R.No.141//2008 the title between the original owner, the Rent Control Petitioner and also the revision petitioner herein and it was finally decided in the second appeal by Ext.A9 judgment that the petitioner in this revision was not entitled to any right over the property as a bona fide purchaser without notice and thus became final. It was thereafter that Ext.A1 sale deed was executed by the court in favour of the rent control petitioner, the lst respondent herein and any claim of the revision petitioner before us under the original owner stood annulled and with respect to the tenanted premises is concerned, it is the rent control petitioner, the lst respondent, who is found to be the landlord. Even though the revision petitioner contended that sale deed was executed by the original owner in his favour while continuing as a tenant, thus he became the owner of the property and the same was rejected by a; considered judgment. The observation contained in the order in C.R.P.No.1178/1998 in no way affect the legal position thus enunciated. There was an observation enabling the petitioner -18- R.C.R.No.141//2008 herein to raise the contention regarding the dispute of title. It does not mean that the Rent Control Court has no jurisdiction in the matter. It at best enables the petitioner to raise his contention. Whether there was a bona fide title dispute was therefore considered by the Rent Control Court as well as the Appellate Authority. Thus, it is not a case where the Authorities below did not consider the contention of the revision petitioner in that regard. It considered the background of the case in the earlier proceedings, the specific performance suit, and ultimately a decree was passed by the appellate court and confirmed in second appeal by this Court and subsequently the delivery was also taken symbolically in execution. It is also noticed that a sale deed was executed by the court in favour of the rent control petitioner. Therefore, it is not open to the petitioner herein to say that he is a bona fide purchaser. That is a contention raised and rejected. Therefore, the dispute that the rent control petitioner has no title is not a bona fide dispute of title to be referred to the civil court -19- R.C.R.No.141//2008 and the civil court has already decided this case in the specific performance suit, that the contention was gone into and finality has been reached. It may also be said in this connection that by order dated 10th October, 2001 the Rent Control Court considered the issue as a preliminary point as to whether the denial of title by the petitioner herein is bona fide and it was found, after an elaborate consideration of the matter, that denial of title by the petitioner herein is not bona fide. The revision Petitioner herein preferred an appeal as R.C.A.No.142/001. The Appellate Authority by judgment dated 25/2/2003 affirmed the order of the Rent Control Court and the finding that there is no bona fide dispute of title became final as there was no further proceedings in this regard. Therefore, at an earlier stage of the same proceeding, a decision was already rendered holding that there is no bona fide dispute of title as raised by the revision petitioner herein. Therefore, the petitioner is not entitled to re-agitate the same question at the subsequent stage of the proceedings. This -20- R.C.R.No.141//2008 position has been amply made clear in the decision of the Apex Court in Rajendran v. Mohammed Kunhi 2002 (3) KLT 461 (SC) wherein the Apex Court held, after referring to the provisions contained in Section 105 of the Code of Civil Procedure, that the aforesaid provision deals with an order of remand and provides that notwithstanding the provisions of sub- section (1) where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness. It was also held that what is sought to be re-agitated is not really the order of remand but the order deciding a germane issue which was allowed to become final at an earlier stage of the same suit. The principles of res judicata applies as between two stages in the same litigation so that if an issue has been decided at an earlier stage against a party, it cannot be allowed to be re-agitated by him at a subsequent stage in the same suit or proceedings. The said decision was also one arising under the Building Lease and -21- R.C.R.No.141//2008 (Rent Control) Act. Therefore, we have no hesitation to hold that the finding of the Rent Controller as affirmed by the Appellate Authority that there is no bona fide dispute of title to be referred to the civil court, is correct. 12. The contention placing reliance on the decision in Durga Prasad and another v. Deep Chand and others (AIR 1954 S.C.75) in no way help the petitioner to re-agitate the question already decided. In the said decision the Apex Court held that in a suit for specific performance by prior purchaser against his vendor and subsequent purchaser the proper form of decree is to direct specific performance of the contract between the vendor and the prior transferee and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the prior transferee. The Apex Court made note of the fact that the practice of the Courts in India has not been uniform and three distinct lines of thought emerge and according to one point of view, the proper form of decree is to -22- R.C.R.No.141//2008 declare the subsequent purchase void as against the prior transferee and direct conveyance by the vendor alone and the second view considers that both vendor and vendee should join, while a third would limit execution of the conveyance to the subsequent purchaser alone. 13. The mere fact that the petitioner has not joined to execute the sale deed does not affect the title conveyed to the rent control petitioner by Ext.A1 pursuant to the decree passed, which became final. The mere fact that it is executed in the form as suggested does not affect the title as such in favour of the rent control petitioner. At any rate, that is not a ground to say that there is any bona fide dispute of title