Kerala High Court
Parukutty vs Sarasamma on 5 April, 2002
Equivalent citations: 2002 A I H C 2908, (2002) 1 KER LJ 649, (2002) 2 KER LT 259, (2002) 2 RENCR 61
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan
ORDER K.S. Radhakrishnan, J.
1. Landlady is the revision petitioner in CRP No. 1162 of 1993 and the tenant is the revision petitioner in CRP No. 768 of 1994. Both the revisions arise out of RCP No. 7 of 1981 of Rent Control Court, Trivandrum.
2. Petition for eviction was filed under Sections 11(2)(b) and 11(4)(iv) of Act 2 of 1965. Both the Rent Control Court as well as the Appellate Authority ordered eviction under Section 11(2)(b). The Appellate Authority directed the tenant to pay arrears of rent with interest and costs and get the order vacated under Section 11(2)(c). The Rent Control Court allowed eviction under Section 11(4)(iv). On appeal by the tenant it was reversed. Aggrieved by that order landlord has preferred CRP No. 1162 of 1993.
3. Before the Rent Control Court tenant pleaded kudikidappu rights. Same was referred to Land Tribunal, Trivandrum under Section 125(3) of the Kerala Land Reforms Act. Claim of kudikidappu was negatived by the Land Tribunal. The order of the Tribunal was accepted by the Rent Control Court and it was confirmed by the Appellate Authority. Aggrieved by that order tenant has preferred CRP No. 768 of 1994. Since common questions arise for consideration in both the revision petitions, we are disposing of the same by a common order.
4. We will refer to the parties according to their status in the Rent Control Petition. We are in this case primarily concerned with the findings on Section 11(4)(iv) as well as the question whether tenant is entitled to claim kudikidappu right under the Kerala Land Reforms Act. Both the Rent Control Court as well as the Appellate Authority on the basis of Ext. C1 commission report and on the basis of the oral evidence of PW1 and CPW1 concurrently found that scheduled building is an old and dilapidated thatched building and the condition of the building is such that it requires reconstruction. Capacity of the petitioner to reconstruct the building was also not disputed. It was also found that Exts. A1 to A4 would establish that petitioner has obtained necessary plan and licence required for reconstruction of the building. In short, Rent Control Court as well as the Appellate Authority on the basis of the oral and documentary evidence came to the conclusion that the building requires reconstruction. We find no reason to disturb the said finding. However, the Appellate Authority interfered with the findings of the Rent Control Court and held that even though the building requires reconstruction, the claim of the landlady for reconstruction was found not bonafide and negatived the contention under Section 11(4)(iv) of the Act.
5. Petition schedule building is the eastern portion of T.C. 17/1192 and western portion of the same building was occupied by the tenant Kunji Parvathy. R.C.P.No.6/77 was filed for evicting the tenant Kunji Parvathy and eviction was ordered. Simultaneously landlady had also filed R.C.P. No. 7/81 so as to evict the tenant in these proceedings, who is in occupation of the eastern portion of T.C. 17/1192. The tenant contended that there is no bonafides in the claim for eviction under Section 11(4)(iv). It is pointed out that the attempt of the landlady is to sell the property after evicting the tenant. Referring tenant. Referring to the oral evidence of PW1, tenant submitted that landlady had admitted that 20 cents out of 1 Acre and 7 cents was subsequently sold after the decision in the Rent Control Petition. Tenant also produced Exts. B1 to B5 documents to establish that the attempt of the landlady is to sell the property. Reference was also made to Ext. B2 agreement of sale whereby landlady has agreed to sell one acre and 7 cents of land in favour of one Chandrasekharan Nair. Since sale did not materialise Chandrasekharan Nair had filed O.S. No. 140 of 1990 claiming return of advance consideration. Counsel for the tenant pointed out that the above facts would indicate that the attempt of the landlady was to sell away the property. Consequently there is no bonafide in the plea for eviction under Section 11(4)(iv).
6. Landlady took up a contention that she had not sold away the entire property. It is pointed out that Ext. B2 agreement would indicate that the idea of the landlord was to sell away one acre and seven cents excluding the five cents wherein the petition schedule building is situate. Appellate Authority did not accept this contention and took the view that a reading of Ext. B2 would establish that the property was agreed to be sold is 87 cents obtained by the landlady as per Will executed by her mother and 20 cents purchased under a document. The Appellate Authority concluded that there is nothing in Ext. B2 to support the case of the landlady that the petition schedule property was excluded from the property agreed to be sold. The Appellate Authority concluded that if the requirement of the landlady was to reconstruct the building she would not have agreed to sell the property subsequent to the decision of the Rent Control Petition. The Appellate Authority therefore held that there is no bonafide in the plea under Section 11(4)(iv).
7. We find it difficult to accept the finding of the Appellate Authority. We have indicated both the Rent Control Court and the Appellate Authority have concurrently found that the building requires reconstruction. Landlady has taken up the plea that she wanted to sell the property excluding the 5 cents in which the tenanted premises is situate. Further it was stated that the agreement did not materialise and the prospective purchaser filed suit for return of money. We are of the view mere fact that landlady tried to sell away the property pending rent control proceedings does not mean lack of bona fides. Purchasers may be aware of the pendency of the rent control proceedings. In a case where it is established that the building requires reconstruction there is nothing illegal in selling the property if the landlord so wishes. We may remember this is a case where eviction was sought for under Sections 11(3) and 11(4)(iv). We are not prepared to say the mere fact that landlady had negotiated for sale of the property does not mean that there is no bonafides in the plea for eviction. Therefore the finding of the Appellate Authority that the attempt of the landlady was to sell away the property to defeat the claim of the tenant under Section 11(4)(iv) cannot be sustained. The order of the Appellate Authority rejecting the claim under Section 11 (4)(iv) is therefore set aside.
8. The next question to be considered is whether the plea raised by the tenant for kudikidappu right is justified. Reference was made to the order of the Land Tribunal rejecting the plea which was confirmed by the Rent Control Court as well as the Appellate Authority. We have indicated two tenants were occupying the tenanted building, building No. 17/1192. Western portion of the same was occupied by another tenant Kunji Parvathy and the landlady filed R.C.R No. 6 of 1981 for evicting the tenant and Ext. All order of eviction was passed. Tenant in this case is in occupation of the eastern portion of the same building bearing door No. 17/1192. Both the tenants claimed kudikidapu rights in respect of the portion of the same building which were in their occupation. The claim raised by both of them were referred to the Land Tribunal, Thiruvananthapuram under Section 125(3) of the Kerala Land Reforms Act as O.A. Nos. 783 and 782 of 1981 respectively. Both the applications were dismissed by the Land Tribunal after having found that both of them are occupying the building bearing door No. TC 17/1192. We find no infirmity in the order of the Land Tribunal which was confirmed by the Rent Control Court as well as the Appellate Authority, Tenants in this case are not entitled to claim kudikidappu right. Facts reveal that tenant in RCP No. 6 of 1981 as well as the tenant in these proceedings are occupying building 17/1192 which is a single building. Eastern portion of the same is occupied by the tenant in R.C.P. No. 6/81 and the western portion of the building is occupied by the tenant in this case. In the instant case kudikidappu right has been claimed by both the tenants in respect of the portion of the room in occupation of the same building. Such a right in respect of the same building cannot be entertained. This point has directly come up for consideration in Ittiathi Kunjan v. Lekshmikutty Amma (1968 KLT 888) as well as in Muhammad v. Imbichibi (1974 KLT 738) wherein the Full Bench after examining the scope of the various provisions of the Land Reforms Act held as follows:
"It would be proper to understand "hut" as meaning a "dwelling house" complete in itself and not a place which is merely a part of a larger structure which can be used for residential purposes. Such a meaning would also accord with the popular meaning of the word "hut". "Hut" is normally understood as a very small house complete in itself and low in cost. Nobody would refer to a flat or part of a street house even if complete in itself in that it provides necessary facilities for being used as a dwelling place, as a "hut"."
9. We are of the view principle abovementioned is squarely applicable to the facts of this case as well. Consequently we are of the view Land Tribunal and the Rent Control Court as well as the Appellate Authority are justified in rejecting the claim for kudikidappu right. In such circumstances we are inclined to allow CRP No. 1162 of 1993 and order eviction under Section 11(4)(iv) of the Act. Needless to say, tenant is entitled to all statutory benefits available after reconstruction. In view of the aforementioned finding, CRP No. 768 of 1994 will stand dismissed.