IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 RCRev..No.132 of 2009 (A) ------------------------------ RCA.36/2004 of ADDL. RENT CONTROL APPELLATE AUTHORITY-II, TRIVANDRUM RCP.43/2003 of RENT CONTROL COURT,TRIVANDRUM .................... PETITIONERS/APPELLANTS/COUNTER PETITIONERS 2 & 3 -------------------------------------------------------------- 1. ABUSALI, S/O. LATE SHAHUL HAMEED, P.P. 2/148, VALSALAYAM, EDAKKODU, NEMOM.P.O, PRAVACHAMBALAM, THIRUVANANTHAPURAM. 2. V. SURENDRAN, M/S. RADHA DISTRIBUTOR, WEIGH AND MEASURES QUIPMENTS, ANKALA AMMAN COIL STREET, CHALAI, THIRUVANANTHAPURAM. BY ADV. SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW RESPONDENT(S): RESPONDENTS/PETITIONER & 1ST COUNTER PETITIONER ------------------------------------------------------------------------------------ 1. MOHAMMED ABDUL KHADER, S/O. HAJIA MOHAMMED HANEEFA, TC 9/2016, SHALINI KURUPS LANE, SASTHAMANGALAM, THIRUVANANTHAPURAM. 2. S. HABEER, S/O. LATE SHAHUL HAMEED, THOTTUMKARA VEEDU, KARICHARA, PALLIPURAM, THIRUVANANTHAPURAM. ADV. SRI.P.GOPALAKRISHNAN NAIR FOR R1 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 30/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & P. Q. BARKATH ALI, JJ. ------------------------------------------------ R. C. R. No.132 of 2009 ------------------------------------------------ Dated this the 30th day of July, 2009 ORDER Pius C. Kuriakose, J The tenants are challenging in this revision petition the orders of eviction concurrently passed against them by the Rent Control Court and the Appellate Authority on the grounds of Sub Section 2 of Section 11 (arrears of rent) and clause 4 of Sub Section 4 of Section 11 (re-construction). Even though, the landlord sought for eviction on the ground of subletting also, that ground no longer survives in these proceedings. 2. The contentions which were prominently and seriously raised by the revision petitioners in answer to the eviction petition filed by the respondents was R. C. R. No.132 of 2009 -2- that they denied title of the landlords bona fide. It was contended that they have by long and uninterrupted possession in open denial of the real owner's title prescribed a title for themselves by adverse possession and limitation. The allegation regarding arrears of rent was denied as a sequel of their contention that there is no landlord-tenant relationship between them and the petitioner in the RCP. The bona fides of the need for requirement of re-construction was also denied in the statement of objection filed by the revision petitioners. But when we scan the statement of objections filed by the revision petitioners, it is seen that they have given more thrust to their contention that the landlord does not have title and that it is they who are having present title due to adverse possession and limitation. The R. C. R. No.132 of 2009 -3- evidence adduced at the stage of trial before the Rent Control Court consisted of Exts.A1 to A20 and oral testimonies of PWs.1 to 5 on the side of the landlords. On the side of the revision petitioners/tenants the same consisted of Exts.B1 to B6 and the testimony of CPW1 and CPW2. The Advocate Commissioner's Report and plan were respectively marked as Exts.C1 and C1(a). The Rent Control Court on an appreciation of the evidence in the case formulated the requisite points including the first point as to whether the denial of title raised by the tenant is bona fide ? The Rent Control Court did not consider the first point as a preliminary point. Instead that point was considered after trial along with the other points and answering the first point, it was held that the denial of title is not bona fide. It was also held that there is landlord- R. C. R. No.132 of 2009 -4- tenant relationship between the parties and that the Rent Control Petition is maintainable. In the light of that finding the case of the landlord in the context of the ground of arrears of rent was accepted by the Rent Control Court and it was found that rent is in arrears at the rate of Rs.35/- from 2002 onwards. 3. Coming to the ground of requirement of re- construction, it was found on the basis of the Commissioner's Report and the oral evidence of PW1 and PW2 that the building is old fashioned and dilapidated and hence, its condition warrants re- construction. It was also found that the landlord is in possession of a valid building plan and permit authorising to carry out re-construction not only of the petition schedule building, but also of building having Door No.38/1930 in which the petitioner/landlord is R. C. R. No.132 of 2009 -5- carrying on business in vessels. The landlords version that he is possessed of financial ability for carrying out the re-construction was also accepted by the Rent Control Court since it was found that there was no challenge regarding that version in cross examination. Accordingly, the Rent Control Court ordered eviction on the grounds of arrears of rent as well as re- construction. The Rent Control Appellate Authority would concur all the conclusions of the Rent Control Court and confirmed the order of eviction. 4. We have heard the submissions of Sri.K.S.Hariharaputhran, the learned counsel for the revision petitioners and Sri.P.Gopalakrishnan Nair, learned counsel for the respondent. After hearing the learned counsel for some time, we directed the learned counsel for the landlord to make available for R. C. R. No.132 of 2009 -6- our perusal the certified copies of the Property Tax Assessment Register pertaining to the petition schedule building and building having Door No.38/2400 which according to the tenant, is the correct door number of the building. Accordingly, the certified copies have been made available and we marked those certified copies as Exts.C3 and C4 respectively. 5. It was very extensive submissions which were addressed before us by Sri.Hariharaputhran, the learned counsel for the tenants. Counsel took us to Exts.A1 to A20 and Exts.B1 to B6 and it was argued that those documents do not reveal that title over the petition schedule building having Door No.38/2015 has been conveyed to the petitioner in the RCP. When attention was drawn to the situation that in all R. C. R. No.132 of 2009 -7- probability the petition schedule building is also situated on the land covered by Exts.A1 and A2, the learned counsel would remind us of the maxim Quicquid inaedificatur solo solo cedit and submit that the law in India is that the ownership of the building existing on a particular piece of land need not necessarily belong to the owner of land. Ownership of land can belong to one person and ownership of the building can be obtained separately from the land on which it stands and can be a subject matter of a separate transfer. Counsel relied on the decision of this Court in Chellappan Nadar v. Krishnan Nair (1963 KLT 750). The counsel argued that the petition schedule building as well as the building having Door No.38/1930 in which the landlord is admittedly carrying on business are two separate buildings. R. C. R. No.132 of 2009 -8- Counsel submitted on the basis of the Commissioner's Report that there is a gap of 15 metres between the two buildings. As regards Exts.C3 and C4 marked by us, the learned counsel submitted that it is for the first time that these documents are relied on by this Court and the revision petitioner should be given opportunity to dislodge the presumptions enjoyed by these documents by citing and cross examining the Municipal Secretaries. Counsel requested that the case be remanded to the Appellate Authority itself for this purpose. 6. Sri.Hariharaputhran further argued that since all the parties and even the court were concerned with the question of denial of title, it did not become possible for the tenant to adduce evidence specifically on the merits of the RCP. Prejudice has been caused to R. C. R. No.132 of 2009 -9- the revision petitioners because of the consideration of all points together by the Rent Control Court. Counsel sought for a remand for this reason also. Counsel would read over to us the portions of the Commissioner's Report also in support of his arguments. 7. The submissions of Sri.K.S.Hariharaputhran, the learned counsel for the revision petitioners were stiffly resisted by Sri.P.Gopalakrishnan Nair, the learned counsel for the landlord. Sri.Gopalakrishnan Nair would submit on the basis of Ext.C4 that the contention of the revision petitioner that the correct door number of the building is not 2015 and 2400 is the correct door number is incorrect. According to the counsel, 2400 is a door number of a building which belonging to Velmurukan. But this building is occupied R. C. R. No.132 of 2009 -10- not by the petitioner but by one Ayyappa brothers. It is for the petitioner who are in occupation of the petition schedule building to move against them and he placed strong reliance on Ext.C3 for this purpose. No prejudice has been occasioned to the revision petitioners on account of the consolidation of all the three points by the Rent Control Court and the Appellate Authority. Statement of objection filed by the tenant was read over to us by Sri.Gopalakrishnan Nair. Sri.Gopalakrishnan Nair submitted that any order passed under Section 11(4)(iv) will be subject to the tenants right of re-induction. The tenants need not have any apprehension that reconstruction will not be carried on by the landlord. It will be on the interest of the landlord only, the re-construction carried out early. Landlord will be willing to re-induct the tenants R. C. R. No.132 of 2009 -11- into portion of the re-constructed building more or less equal in area to the area presently enjoyed by them subject to the liability to pay reasonable rent. The physical condition of the building is conceded as deplorable by the tenant who contends that his father came into possession of this building in 1947. Commissioner's Report also supports the finding of the Rent Control Court regarding the condition of the building. The financial ability was only feebly disputed in the statement of objection. The version of the landlord regarding the financial ability is not challenged. There is no warrant for interference within the contours of this Court's jurisdiction under Section 20. 8. We have anxiously considered the rival submissions addressed at the Bar. Despite the findings R. C. R. No.132 of 2009 -12- being concurrent, we have made a survey of the evidence to the extent necessary for appreciating the arguments. When a contention of denial of the landlord's title in answer to a petition for eviction under any of the provisions of the Rent Control Act is raised, the enquiry to be conducted by the Rent Control Court is whether the denial is bona fide. It is trite by now that unless on the materials placed on record, the Rent Control Court is able to say that the tenant has got a fair chance of success, in the event of the matter being relegated to the Civil Court, it cannot be said that the denial is bona fide. Section 26 of the Rent Control Act provides that the Property Tax Assessment Register maintained by local authorities in respect of assessment of properties should be accepted as evidence of the facts recorded therein. R. C. R. No.132 of 2009 -13- Exts.C3 and C4 are documents enjoying the presumptions under Section 26. Ext.C3 is clearly to the effect that the petitioner in the RCP is the owner of the building and the status of the revision petitioners is that of tenants or occupiers. Ext.C3 clearly shows that the revision petitioners who claim to have obtained title by adverse possession and limitation is not the owner. We have examined the pleadings raised by the revision petitioner. All his pleadings are to the effect that he has prescribed a title by adverse possession. According to us, the pleadings are unsatisfactory. He does not say as against which landlord or which real owner he has prescribed title/ he was holding possession with a hostile animus/and as against which owner he has prescribed title by adverse possession. In fact, the contention of the R. C. R. No.132 of 2009 -14- revision petitioners that they are the owners of the petition schedule building is pursued mainly on the reason that Exts.A1 and A2 did not reveal the existence of two buildings, but reveals the existence of only one building. On a careful perusal of the Commissioner's Report, we are convinced that though there is a gap between the two buildings and that there is no roof for this gap, these two buildings are actually connected by a cement flooring. Thus, we are inclined to accept the case of the landlord that Exts.A1 and A2 takes in not only the land but also the petition schedule building as well as the building in which the landlord is presently carrying on business. 9. In this jurisdiction under Section 20, we are not expected ordinarily to reappraise the evidence and substitute our conclusions for the conclusions of fact R. C. R. No.132 of 2009 -15- arrived at by the courts below. We are of the view that the conclusions arrived at by the Rent Control Court and approved by the Appellate Authority are founded on evidence including circumstantial evidence. We do not find any illegality, irregularity or impropriety warranting invocation of this Court's jurisdiction under Section 20. 10. As his last request, Sri.Hariharaputhran sought for one year's time to vacate the premises. We are not inclined to grant so much time since there is stiff resistance from the part of Sri.Gopalakrishnan Nair. Sri.Gopalakrishnan Nair is not agreeable to the grant of more than two months' time. However, having taken into account the circumstances attending on this case, we grant the petitioner time till 28/02/10. Under the above circumstances, even as we R. C. R. No.132 of 2009 -16- dismiss the RCR, we direct the execution court to adjourn delivery to 01/03/10 on the following conditions:- 1) Revision petitioners shall file an affidavit within three weeks from today before the execution court undertaking to peacefully surrender the possession of the petition schedule building to the respondent/landlord on or before 28/02/2010. It shall also be undertaken through the affidavit that they will discharge entire arrears of rent as on date as found by the Rent Control Court at the same rate and continue to pay occupational charges at the same rent rates till such time as they surrender the petition schedule building. The revision petitioners will get the benefit of time granted under this order only if the above conditions are fulfiled. We also make it clear that the R. C. R. No.132 of 2009 -17- respondent shall carry out the reconstruction within six months of getting possession. It is needless to mention that once the reconstruction is completed, the respondent will be bound to re-induct the tenants into the reconstructed building so that the revision petitioners are able to occupy area more or less equal to the area presently occupied by them subject to liability to pay reasonable rent. 11. This RCR is thus, disposed of. No costs. PIUS C. KURIAKOSE JUDGE P. Q. BARKATH ALI JUDGE kns/-