Kerala High Court
Jayan Pisharody vs T.S.Rajagopalan on 14 February, 2019
Author: P.Ubaid
Bench: P.Ubaid
'CR'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.UBAID
THURSDAY, THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940
RCRev..No.215 of 2016
JUDGMENT IN RCA 29/2013 of ADDL.RENT CONTROL APPELLATE
AUTHORITY-I, THIRUVANANTHAPURAM DATED 12-04-2016
ORDER IN RCP 38/2012 of RENT CONTROL COURT, THIRUVANANTHAPURAM
DATED 30-08-2013
----------------
REVISION PETITIONERS/APPELLANTS/COUNTER-PETITIONERS :-
1 JAYAN PISHARODY, S/O.R.V.PISHARODY,
TC 26/1983, SPENCER GARDENS, STATUE,
THIRUVANANTHAPURAM - 695 001.
2 HARI PISHARODY, S/O.R.V.PISHARODY,
TC 26/1983, SPENCER GARDENS, STATUE,
THIRUVANANTHAPURAM - 695 001.
BY ADVS.SRI.TOM K.THOMAS
SRI.T.KRISHNANUNNI (SR.)
RESPONDENT/RESPONDENT/PETITIONER :-
T.S.RAJAGOPALAN,
DESCRIBED IN THE RCP AS SON OF SUBBALEKSHMI AMMAL,
TC 27/1445, MADURA BHAVAN, PULIMOOD,
THIRUVANANTHAPURAM - 695 001.
BY ADV. SRI.G.S.REGHUNATH
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
13.11.2018, ALONG WITH RCRev..210/2016, THE COURT ON 14.2.2019
PASSED THE FOLLOWING:
RCRev..Nos.210/2016 &
215/2016
-: 2 :-
'CR'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.UBAID
THURSDAY, THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940
RCRev..No.210 of 2016
JUDGMENT IN RCA 32/2013 of ADDL.RENT CONTROL APPELLATE
AUTHORITY-I, THIRUVANANTHAPURAM DATED 12-04-2016
ORDER IN RCP 38/2012 of RENT CONTROL COURT, THIRUVANANTHAPURAM
DATED 30-08-2013
--------------
REVISION PETITIONER/RESPONDENTS/COUNTER PETITIONERS :-
1 JAYAN PISHARODY, SON OF R.V.PISHARODY,
TC 26/1983, SPENCER GARDENS, STATUE,
THIRUVANANTHAPURAM - 695 001.
2 HARI PISHARODY, SON OF R.V.PISHARODY,
TC 26/1983, SPENCER GARDENS, STATUE,
THIRUVANANTHAPURAM - 695 001.
BY ADVS.SRI.TOM K.THOMAS
SRI.T.KRISHNANUNNI (SR.)
RESPONDENT/APPELLANT/PETITIONER :-
T.S. RAJAGOPALAN
DESCRIBED IN THE RCP AS SON OF SUBBALEKSHMI AMMAL,
TC 27/1445, MADURA BHAVAN, PULIMOOD,
THIRUVANANTHAPURAM - 695 001.
BY ADV. SRI.G.S.REGHUNATH
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
13.11.2018, ALONG WITH RCRev..215/2016, THE COURT ON 14.2.2019
PASSED THE FOLLOWING:
RCRev..Nos.210/2016 &
215/2016
-: 3 :-
'CR'
COMMON ORDER
In view of the divergent findings of the two learned Judges of a Division Bench in these two revision petitions brought under Section 20 of the Kerala Building (Lease & Rent Control) Act, 1965 (hereinafter referred to as 'the Act' for short), the matter was referred to me for opinion and decision.
2. The revision petitioners in these two revisions are the tenants, and the common respondent in these revision petitions is the landlord. The revision petitioners are the legal heirs of the original tenant R.V.Pisharadi, and the landlord claims right under the original owner (landlady) Subhalekshmi Ammal as her adopted son. The landlord filed R.C.P.No.38/2012 before the Rent Control Court, Thiruvananthapuram (the Additional Munsiff Court for the trial of cases under the Act) claiming eviction under Sections 11(2)(b) and 11(3) of the Act. His case is that, the petition schedule building was let out to the original tenant R.V.Pisharadi by the RCRev..Nos.210/2016 & 215/2016 -: 4 :- original owner Subhalekshmi Ammal years back on a monthly rent of `3,000/-, and the petitioner used to collect rent from the said R.V.Pisharadi, and after his death from the legal heirs, for and on behalf of his mother Subhalekshmi Ammal, and even after the death of Subhalekshmi Ammal in February, 2004, he continued to collect rent from the tenants. His petition alleges that the tenants have kept the rent in arrear since January, 2006, and in spite of statutory notice, the tenants did not care to make payment of the rent, or to vacate the building. The further case of the petitioner is that the house building, wherein, he now resides is more than a century old, that it is in a dilapidated condition, that it is unsafe to continue therein any more, and that the petitioner wants to shift to the petition schedule building. Thus, he made a claim for eviction in the trial court under Sections 11(2)(b) and 11(3) of the Act.
3. The tenants entered appearance in the trial court, and resisted the claim for eviction on the RCRev..Nos.210/2016 & 215/2016 -: 5 :- contention that there has not been any landlord- tenant relationship either between their predecessor R.V.Pisharadi and deceased Subhalekshmi Ammal, or between them and the present petitioner, who claims eviction. Their case is that their predecessor R.V.Pisharadi was in fact permitted to occupy the petition schedule building by the owner Subbalekshmi Ammal on a consideration of the friendship and relationship between them, and accordingly, their predecessor R.V.Pisharadi made some repairs and modifications of his own, and started residing there with his family. After his death, they have also been continuing there without any objection or obstruction from anybody. Thus, they contended that as there is no landlord-tenant relationship, or that the building was never entrusted on rent, they are not liable to pay rent, and so, they are not liable for eviction under Section 11(2)(b) of the Act. As regards the claim of the petitioner under Section 11(3) of the Act, their contention is that, the bona fide need raised by the petitioner is only a ruse for RCRev..Nos.210/2016 & 215/2016 -: 6 :- eviction, that the house building now being occupied by him is safe and sufficient, and that he has no necessity at all to shift to any other building. If at all he wants to shift his residence, he has another building in his possession. Even while resisting the claim for eviction on factual aspects, the tenants raised an important contention that the petitioner has no right to claim eviction as the landlord because, he has no title over the petition schedule building, he has no right to claim under the original owner Subhalekshmi Ammal, and that he has nothing to do with the petition schedule building either as the owner of the building, or as landlord. Thus, the tenants disputed the title of the landlord to claim eviction.
4. The trial court formulated the points for decision, and proceeded for trial. Instead of deciding the issue of denial of title made by the respondents as a preliminary issue, the Rent Control Court straight away proceeded to record evidence, and ventured to decide the issue of denial of title on RCRev..Nos.210/2016 & 215/2016 -: 7 :- merits as part of the full fledged trial. Both the parties adduced oral and documentary evidence in the trial court. Though the landlord did not specifically explain his right to claim eviction in the petition filed by him or even in the affidavit filed by him in lieu of examination in chief, he divulged the real fact that he claims as an adopted son of the original owner Subhalekshmi Ammal, only when his right and status was disputed during cross examination by the learned counsel for the tenants. When asked whether he has anything to prove his title as the adopted son of the original owner Subhalekshmi Ammal, he answered that he has a deed of adoption in his possession. However, it was not produced at the right stage. He produced it in the trial court at the late stage. It appears that it was not allowed to be proved. However, strangely it was considered and discussed by the trial court for taking decision. On an appreciation of the evidence adduced by both sides, the trial court found on the the plea of denial of title, that it is not bona fide, and on RCRev..Nos.210/2016 & 215/2016 -: 8 :- facts, the trial court found partly in favour of the landlord, and partly in favour of the tenants. The finding of the trial court is that, the respondents (tenants) have kept the rent in arrear as alleged in the petition, they have not discharged the rent despite statutory notice, and so, they are liable for eviction under Section 11(2)(b) of the Act. As regards the bona fide need alleged by the landlord, the trial court found against him. Thus, the trial court allowed the rent control petition in part, disallowing the prayer for eviction under Section 11(3) of the Act, but allowing eviction under Section 11(2)(b) of the Act.
5. Aggrieved by the order disallowing eviction under Section 11(3) of the Act, the landlord filed appeal before the appellate authority (District Court, Thiruvananthapuram) as R.C.A. No.32/2013. Aggrieved by the order of eviction under Section 11(2)(b) of the Act, the tenants filed appeal as R.C.A. No.29/2013. The two appeals were heard and decided by the Appellate Authority (learned 1st RCRev..Nos.210/2016 & 215/2016 -: 9 :- Additional District Judge, Thiruvananthapuram) by a common judgment dated 12.4.2016. On a re- appreciation of the entire materials, the Appellate Authority found that the order of eviction under Section 11(2)(b) of the Act is liable to be confirmed, and that the landlord is entitled to get an order of eviction under Section 11(3) of the Act also. Accordingly, the Appellate Authority allowed R.C.A.No.32/2013 directing the tenants to vacate the petition schedule building under Section 11(3) of the Act, and dismissed R.C.A.No.29/2013 confirming the order of eviction passed by the trial court under Section 11(2)(b) of the Act. Aggrieved by the two orders, the tenants have come up in revision before this Court. The landlord and the tenants are being referred to as the petitioner and the respondents, respectively, in these proceedings.
6. One of the learned Judges of the Division Bench found fully in favour of the landlord, and on the issue regarding denial of title, the learned Judge found that the denial made by the tenants is RCRev..Nos.210/2016 & 215/2016 -: 10 :- not bona fide at all. On the other hand, the other learned Judge of the Division Bench found fully in favour of the tenants on the issue of denial of title, that the denial is quite bona fide, and that the petitioner's legal right to claim eviction as the adopted son of the original owner is a matter to be decided by the civil court. In view of the two dissenting judgments, the matter was referred to me for opinion as a third Judge, by the Hon'ble Chief Justice.
7. Much was argued by both sides on the factual aspects, and also on the issue of denial of title made by the tenants. As regards the claim under Section 11(2)(b) of the Act, there is concurrent finding of the trial court and the appellate court, whereas, under Section 11(3) of the Act, the findings of the trial court and the appellate court are divergent. Before proceeding to decide the main issue, let me see what is the scope of the revisional power of the High Court under Section 20 of the Act. In a batch of petitions involving the scope of RCRev..Nos.210/2016 & 215/2016 -: 11 :- revisional jurisdiction of the High Court under some rent control legislations including the Act of Kerala, a constitution Bench of the Hon'ble Supreme Court held in Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh [2014 (4) KLT 182 (SC)] that generally the scope of the powers of the High Court in revision is only to examine, and find out whether the findings of the authorities below are in accordance with the law, or whether the findings suffer from any illegality or error of law. The Hon'ble Supreme Court explained that the findings on facts made by the Rent Control Court, and the appellate authority will be subject to scrutiny and examination by the High Court in revision only in cases, where such findings are arrived at without consideration of the material evidence, or when the court has misread the material evidence, or has committed some gross illegality resulting in prejudice and miscarriage of justice to any of the parties. The Hon'ble Supreme Court held that the revisional power of the High Court is not as wide as appellate power in exercise RCRev..Nos.210/2016 & 215/2016 -: 12 :- of which the appellate authority can reappraise or reassess the evidence, or come to a different or contrary finding, reversing the finding of the trial court. Keeping in mind the limits and limitations in the matter of revisional jurisdiction, let me go to the material aspects involved in this case.
8. On hearing both sides, and on a perusal of the entire materials, I find that there is no scope for a re-evaluation or re-assessment of the factual aspects of the claims made under Sections 11(2)(b) or 11(3) of the Act. Though the trial court disallowed eviction under Section 11(3) of the Act, the Appellate Authority granted eviction on the ground of bona fide need. The said claim is not seen seriously challenged by the tenants, except by raising a contention that the petitioner has another building in his possession. Under Section 11(2)(b) of the Act, the findings are concurrent, and so, much discussion need not be made on that issue. However, I will examine whether there is anything erroneous or contrary to law in the findings on facts made by the RCRev..Nos.210/2016 & 215/2016 -: 13 :- courts below as regards the two grounds of eviction. Before that, let me decide whether the denial of title made by the tenants is bona fide.
9. Of course, it is true that the trial court committed an error, that instead of deciding the question of denial of title as to whether it is bona fide or not, as a preliminary point before proceeding for trial, the Rent Control Court found it not necessary, and ventured to take decision on the issue on merits after a full trial. It is quite unfortunate that neither the landlord nor the tenants requested the trial court to decide the said issue as a preliminary issue before proceeding to record evidence on facts. Any way, on a consideration of the various aspects, the trial court found that the denial of title made by the tenants is not bona fide. This is confirmed by the appellate authority.
10. It is an admitted fact that the petition schedule building originally belonged to one Subhalekshmi Ammal, and the case of the landlord is that the building was let out to one R.V.Pisharadi RCRev..Nos.210/2016 & 215/2016 -: 14 :- years back on a monthly rent of `3,000/-. The present tenants are the legal heirs of R.V.Pisharadi. Though not revealed or exposed in the petition explicitly as to how the petitioner would claim eviction as landlord, he divulged his right and status at a late stage, that his claim is as the adopted son of Subhalekshmi Ammal. Though the deed of adoption on which he relies was not produced in court at the right stage, the petitioner produced the deed at a belated stage, but it was not admitted in evidence. However, the petitioner gave evidence on the issue of adoption, and he also referred to the deed of adoption produced by him. In appeal, this deed of adoption in original was marked as Ext.A11. The judgment of the appellate authority shows that the marking of this document was not seriously opposed by the tenants, or that the appellate authority admitted this document in evidence, in view of the fact that the petitioner has adduced evidence in the trial court on this aspect, and the respondents have also cross examined him thoroughly on this aspect. RCRev..Nos.210/2016 & 215/2016 -: 15 :-
11. It was submitted by the learned Senior Counsel for the revision petitioners that no value can be attached to Ext.A11 deed of adoption in view of Section 16 of the Hindu Adoptions and Maintenance Act, 1956. This provision contains a presumption in favour of adoption in a case where the deed of adoption is registered under the law, and it is signed by the person giving and the person taking a child in adoption. Of course, it is true that Ext.A11 does not fully satisfy the requirements of Section 16, and so, the petitioner cannot avail the benefit of the presumption under Section 16 of the Hindu Adoptions and Maintenance Act. Even when the document cannot claim the benefit of presumption under Section 16, a person, who claims title on the basis of adoption can very well prove the fact of adoption otherwise. The requirements of a valid adoption are prescribed under Section 6 of the Hindu Adoptions and Maintenance Act. If those requirements are proved, or if the fact of adoption is proved by satisfactory evidence, including the observance of RCRev..Nos.210/2016 & 215/2016 -: 16 :- the necessary rituals and ceremonies, the court can accept the case of adoption, whether the deed of adoption will get the protection of presumption under Section 16 of the Hindu Adoptions and Maintenance Act or not. Any way, that is not the issue here. Whether the Ext.A11 deed of adoption is legally valid or not cannot be considered and decided in these proceedings. That is an issue to be decided by the competent civil court when the title of the landlord is challenged by anybody before the competent civil court. The issue here is not whether the petitioner is the adopted son of Subbalekshmi Ammal, but whether he can claim eviction under the law as a landlord. The status as owner of the building is different from the status claimed as a "landlord" under the provisions of the Act.
12. Section 11(1) of the Act provides that, "notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act".
RCRev..Nos.210/2016 & 215/2016 -: 17 :- The 2nd proviso to Section 11(1) of the Act provides as follows :
"provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court shall decide whether the denial or claim is bona fide, and if it records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court, and such Court may pass a decree for eviction on any of the grounds mentioned in this section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded."
13. The law under the 2nd proviso to Section 11(1) of the Act is quite clear that when the tenant in a proceeding for eviction brought under Section 11 of the Act has raised a plea denying the title of the landlord, the Rent Control Court cannot proceed to decide the claim on merits before deciding whether the denial of title made by the tenant is bona fide. In a proceeding for eviction under Section 11 of the Act, the petitioner can claim eviction either as the owner of the building, or as an agent, or legal representative of the owner, or as the person RCRev..Nos.210/2016 & 215/2016 -: 18 :- entitled to receive rent from the tenant. When the matter comes to the right to claim eviction, the question is whether the person, who claims eviction would satisfy the definition of landlord under Section 2(3) of the Act. The definition of landlord under Section 2(3) of the Act is as follows :
"landlord includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant."
Thus, we have a very wide definition of landlord in our Rent Control Act. Even a person other than the true owner of a building can claim eviction, if he satisfies the definition of landlord under any of the categories mentioned in Section 2(3) of the Act. The definition under Section 2 begins with the words "unless the context otherwise requires".
14. The learned Senior Counsel for the revision petitioners submitted that the term, 'landlord' cannot be interpreted in all cases as meant under RCRev..Nos.210/2016 & 215/2016 -: 19 :- Section 2(3) of the Act because if the context requires otherwise, or if the court finds the necessity of an interpretation otherwise, a person who can merely claim eviction as 'landlord' as defined under the law cannot claim eviction under Section 11(3) of the Act. He submitted that in a case where the interpretation of the term 'landlord' requires that the landlord must be the owner of the building, only the actual owner can claim eviction under Section 11(3) of the Act. The learned counsel cited two decisions of the Hon'ble Supreme Court on this point. One is a 1981 decision in M.M.Quasim v. Manohar Lal Sharma & ors. [AIR 1981 SC 1113], and the other is a 2015 decision in Dr.Ambica Prasad v. Mohammad Aslam & another [AIR 2015 SC 2459]. The dictum laid down in M.M.Quasim's case was followed later in Dr.Ambica Prasad's case also. In M.M.Quasim's case, the Supreme Court considered the scope of the definition of 'landlord' under the Bihar Building (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act), and in Dr.Ambica Prasad's case, the RCRev..Nos.210/2016 & 215/2016 -: 20 :- Hon'ble Supreme Court considered the definition of 'landlord' under the Assam Urban Areas Rent Control Act, 1972 (Assam Act). The definition of 'landlord' under our Act is somewhat in pari meteria with the definition of 'landlord' in the Bihar Act and the Assam Act. In the above decisions, the Hon'ble Supreme Court held that on a right interpretation the term 'landlord' in the given context must mean the 'owner of the building'. In those cases, the claim for eviction was made by the petitioner on the ground of bona fide need. The question is whether the dictum laid down in those decisions can be applied to the facts of this case.
15. On the other hand, the learned counsel for the landlord would rely on a Full Bench decision of this Court in Parthakumar v. Ajith Viswanathan [2006 (2) KLT 250]. The learned counsel submitted that the 'title' meant under the 2nd proviso to Section 11(1) of the Act is not the proprietary title, but only the title to claim eviction as a landlord. The learned counsel also submitted that if the claimant satisfies RCRev..Nos.210/2016 & 215/2016 -: 21 :- the definition of 'landlord' under Section 2(3) of the Act, he can very well claim eviction, and if he can claim eviction as a landlord, or if his right to claim eviction as landlord is found by the trial court, the denial of title made by the claimant is of no consequence, and such denial cannot be found to be bona fide.
16. Of course, it is settled that when denial of title is made by a tenant, the Rent Control Court will have to decide whether the claim is bona fide, and the court can proceed further and record evidence only if the court finds otherwise that the denial is not bona fide. It is very clear from the proviso that the purpose of law is not to entertain any sort of denial of title made with the object of delaying the proceedings or stifling the landlord's legitimate right to claim eviction. The denial of title meant under the proviso need not always be the denial of proprietary title. It can only be denial of the right of the claimant to claim eviction as a 'landlord'. In view of the opening words of Section RCRev..Nos.210/2016 & 215/2016 -: 22 :- 2, the term 'landlord' can be interpreted as defined under Section 2(3) of the Act, only if the context does not require otherwise. The learned Senior Counsel for the tenants submitted that in this case, the context requires an interpretation otherwise because an order under Section 11(3) of the Act can be obtained only by the true owner of the building. Of course, in this case, the claim of eviction made by the petitioner is not merely as the person having right to receive rent. He claims eviction under the original owner Subhalekshmi Ammal. His claim is not merely that he is entitled to receive rent. Though he did not state or expose in his pleadings that he is the adopted son of Subhalekshmi Ammal, he advanced such a plea at a later stage, and he also produced a deed of adoption. Whether the deed of adoption is legal or acceptable, or whether the adoption projected by the petitioner is true and valid cannot be decided by this Court. Any way, it is a fact that the petitioner's claim is not merely as a person entitled to receive rent, but he claims under the RCRev..Nos.210/2016 & 215/2016 -: 23 :- original owner Subhalekshmi Ammal. If the court finds anything in support of the claim made by the petitioner that he can represent the estate, the court will have to find that the denial of title made by the tenants is not bona fide. Whether the petitioner has proprietary title, or whether he can claim title as the adopted son of Subhalekshmi Ammal must be left to be decided by the competent civil court.
17. The facts in M.M.Quasim's case and in Dr.Ambica Prasad's case cited supra cannot be said to be exactly identical to the facts of this case. The claim of right as a landlord made by the petitioner in this case cannot be said to be like the claim made in those cases. In M.M.Quasim's case and in Dr.Ambica Prasad's case, the issue decided by the Hon'ble Supreme Court was whether the claim of right as a landlord can be accepted when the landlord has actually lost the right as owner, or where the landlord seeks eviction on the ground of bona fide need as an agent or rent collector. That is not the RCRev..Nos.210/2016 & 215/2016 -: 24 :- position in this case. In this case, the petitioner seeks eviction on the claim that he has the right to represent the estate on the death of the original owner Subhalekshmi Ammal. His claim is not merely that he has a right to collect rent from the tenants.
18. Right to claim eviction must be different from the right to get the relief claimed. The right to claim eviction depends upon the status of the person who claims eviction. If a person claims eviction, the Court will have to look into his status as to how he can claim eviction, or in what capacity or right he claims eviction. In deciding a person's right to claim eviction, the Court's consideration cannot at all be the right to get the relief claimed. The Court can only consider whether the status or right claimed by the petitioner can be accepted in law, or whether he has such a status or right to claim eviction. But when we come to the other aspect of right to get the relief claimed, the Court will have to look into the evidence and materials, and decide whether the relief can be granted to the RCRev..Nos.210/2016 & 215/2016 -: 25 :- claimant on the basis of the evidence and materials adduced before the Court. In this case, the Court's concern can never be whether the petitioner is entitled to get the relief claimed. In deciding the bona fide of the denial of title made by the tenants, the Court's concern must be whether the petitioner has the right to claim eviction, either as the true owner, or as a landlord as defined under Section 2(3) of the Act, or as a legal representative of the original owner.
19. In Parthakumar's case, two important issues came up for consideration before the Full Bench. One is whether a denial of title can be made by a tenant who does not admit the landlord-tenant relationship, and the other issue is whether the denial of title meant under the 2nd proviso to Section 11(1) of the Act is denial of proprietary title, or only denial of right to claim eviction as landlord as defined under Section 2(3) of the Act. In Paragraph 18, the Full Bench held thus;
"18. ........ The landlord claiming eviction must have title to evict. If he has no title to RCRev..Nos.210/2016 & 215/2016 -: 26 :- evict and such a contention is raised, the jurisdiction to decide that dispute rightly vests in civil courts following exhaustive procedure and not in the Special Tribunals constituted to decide a limited category of disputes following summary procedure. Therefore, where existence of landlord
- tenant relationship, i.e., title of the landlord to claim eviction against the person proceeded against, is itself seriously disputed, certainly the Special Tribunals must take their hands off the dispute and leave the parties to resolve their disputes before the regular civil courts constituted. The Tribunals following summary procedures cannot usurp the powers and jurisdiction of the civil courts to decide such disputes regarding title. Such substantial disputes regarding title are uplands and out of bounds for the statutory special tribunals. That is the zone or area where the civil court must entertain jurisdiction."
Thus as decided by the Full Bench, once the court finds that the denial of title made by the tenant is bona fide, the Rent Control Court will lose its jurisdiction to decide the question of eviction, and the parties will have to be referred to the competent Civil Court. The jurisdiction of the Rent Control Court is only to decide whether the petitioner is entitled to get an order of eviction on any of the RCRev..Nos.210/2016 & 215/2016 -: 27 :- grounds as a "landlord", and not whether the petitioner has the legal right and status to claim eviction. That will have to be decided by the competent Civil Court. In this case, if it is found that the denial of title made by the tenants is bona fide, the petitioner will have to go to the competent Civil Court for eviction, or else, the issue can be decided here itself as to whether the petitioner is entitled to get the relief claimed as landlord. If the Court finds ultimately that the petitioner can claim eviction as a landlord as defined under the law, or as a legal representative of the original owner; either as adopted son or otherwise, the Court can proceed further and decide whether the order of eviction was rightly granted by the courts below.
20. As regards the necessity of a proviso to Section 11(1) of the Act, and also the nature and the scope of the decision making process in a case where title is denied, the Full Bench in Parthakumar's case held thus in Paragraph 25 of the judgment.
"25. Having said so, the legislature was alertly cognizant of the possibility of the RCRev..Nos.210/2016 & 215/2016 -: 28 :- tenant (the person proceeded against as tenant) raising frivolous disputes regarding the title of the landlord and raising claim for permanent tenancy only for the purpose of denying the landlords the advantage of the expeditious and inexpensive procedure for eviction prescribed u/s.11. In every case where eviction is claimed, the recalcitrant tenants may raise a frivolous non-serious contention of denial of title or raise a claim for permanent tenancy. Unless safeguards were provided, the mere raising of the contention would have deprived the landlord of the advantage of expeditious and inexpensive procedure to claim eviction on specified grounds guaranteed to him u/s.11 of the Act. The legislature did not want that to happen. It was therefore stipulated that it is only a bona fide denial of title or a bona fide claim for permanent tenancy which alone would oblige the landlord to claim eviction before the civil court. Otherwise, his right to claim eviction before the Special Tribunal can be frustrated by the mere raising of such plea.
This right of the landlord had to be
preserved. Otherwise, abuse of the provisions
may result, it was perceived by the
legislature."
21. On a consideration of the various aspects
including the earlier pronouncements on the point, the Full Bench of this Court in Parthakumar's case RCRev..Nos.210/2016 & 215/2016 -: 29 :- held that the denial of title meant under the 2nd proviso to Section 11(1) of the Act cannot be denial of proprietary title. The denial meant under the proviso must be denial of the right to claim eviction as a landlord, and such right can be in any of the different capacities. The question for consideration is as to how or in what capacity the person claims eviction. If the person claims eviction as the true owner, denial of title meant under the proviso must be denial of proprietary title. If the person claims eviction as a person having right to receive rent, or as an agent of the true owner, the denial of title must be denial of such right to claim as an agent or the right to receive rent on behalf of the true owner. If the claim made by the claimant is as a legal representative of the original owner, the denial of title meant under the proviso must be denial of the claimant's status as a legal representative. It is quite clear from the position settled by the Full Bench of this Court in Parthakumar's case that to decide whether the denial RCRev..Nos.210/2016 & 215/2016 -: 30 :- of title made by the tenants is bona fide or not, the Court has to look into the nature of the claim made by the petitioner. As found by the Full Bench in Parthakumar's case, there can be so many instances where some mala fide denial of title is made by the tenants, or some sort of mischievous or malicious denial of title is made by the tenants with the object of stifling the judicial process or delaying the process of eviction. The Court will have to identify such situations. Only in genuine cases of denial of title, the Court can refer the claimant to a Civil Court. If the Court has reason to find or believe that the tenant has denied the title of landlord with some ulterior object or without any element of bona fide in it, or with the object of delaying the process of eviction, or denying the legitimate claim of the claimant somehow or other, the Court will have to find that the denial made by the tenant is not bona fide at all. In the process of taking decision whether the denial of title made by the tenants is bona fide or not, the Court will RCRev..Nos.210/2016 & 215/2016 -: 31 :- have to consider the genuineness or the fallacy of the claim or dispute made by the tenants also.
22. It is pertinent to note that the respondents would not admit their status as tenants. When the petitioner claims tenancy between Subhalekshmi Ammal and R.V.Pisharadi, the respondents would contend that it was only a permissive occupation. It does not appeal to reason that a huge building was given to a person unconditionally, or that a person was allowed to occupy a building unconditionally, years back, and he or his legal heirs could continue there for decades without making payment of any rent to anybody. It is here the fallacy of the claim made by the tenants exposes itself. Though they would contend that there was no tenant-landlord relationship between R.V.Pisharadi and the original owner, the respondents would practically admit the Ext.A3 series rent vouchers showing payment of rent to the petitioner. PW2 and PW3 have supported the petitioner that they have been paying rent to the petitioner for a building let out to them, and it is RCRev..Nos.210/2016 & 215/2016 -: 32 :- an admitted fact that the said building originally belonged to Subhalekshmi Ammal. Thus, it is a fact proved by the evidence of PW2 and PW3 that another building that originally belonged to Subhalekshmi Ammal is now in their possession as tenants, they have accepted the petitioner as the landlord or the owner of the building, as the adopted son of Subhalekshmi Ammal, and that they have been paying rent to him. The evidence given by PW2 and PW3 stands not discredited. It is pertinent to note that when examined in court, RW1 did not say anything about the Ext.A3 series vouchers or the payment of rent proved by these documents. He has no case at all before the Court that these are false documents or created documents. Nothing was said about these documents by RW1 before the Court. Thus, the respondents would practically admit the payment of rent, though the landlord-tenant relationship is denied by them in the statement of objection.
23. It is true that the legality of the Ext.A11 deed of adoption, or the legality and acceptability RCRev..Nos.210/2016 & 215/2016 -: 33 :- of the case of adoption projected by the petitioner will have to be decided by the competent Civil Court when anybody interested in the property challenges the right of the petitioner or the title of the petitioner before a Civil Court. In this proceeding the Court's concern is only whether the petitioner has some right to claim eviction in any capacity. Proprietary title or such related issues cannot be the subject matter of consideration in a proceeding under the Rent Control Act. If the Court finds reason to believe that the petitioner has some right to claim eviction as a landlord in any of the acceptable capacities, the Court will have to entertain the claim of eviction, and the Court will have to decide the right to get the relief claimed also.
24. It is true that in Parthakumar's case, this Court has held that even without admitting the landlord-tenant relationship, the so called tenant can deny the title of the landlord. It is impossible to believe that the predecessor-in-interest of the RCRev..Nos.210/2016 & 215/2016 -: 34 :- tenants was simply allowed to occupy a huge building at the heart of the Trivandrum city without any rent. Anyway, as held by the courts below, payment of rent by the tenants, including the deceased tenant R.V.Pisharadi, stands proved by the evidence of the petitioner. It is pertinent to note that when examined as a witness, the 1st respondent did not say anything about the Ext.A3 series vouchers, and he did not deny or dispute the case of the petitioner regarding payment of rent. Once payment of rent is proved or admitted, the court will have to accept the petitioner as a landlord having the right to receive rent. In this case, the status claimed by him is not merely as that of a person having the right to receive rent. In view of the position settled by this Court in Parthakumar's case, the denial of title made by the revision petitioners cannot be found to be genuine or bona fide. It is settled that denial of title under the 2nd proviso to Section 11(1) of the Act need not be denial of proprietary title. The denial meant therein is denial of the title claimed RCRev..Nos.210/2016 & 215/2016 -: 35 :- by the person who seeks eviction. The case of the tenants is that, their predecessor was simply permitted by Subhalekshmi Ammal to occupy the building, and that thereafter, their predecessor had made some modifications and repairs. RW1 has no direct knowledge about such an entrustment or permission, and he does not know what all repairs and modifications were made by his predecessor. There is nothing to show that deceased R.V.Pisharadi had made any such repair or modification. On the other hand, what is proved, as found by both the courts below, is that it was in fact a rental arrangement, and that rent had already been paid to Subhalekshmi Ammal, and also to the petitioner after her death. In the above circumstances, the only finding possible on the denial of title made by the tenants is that it cannot be bona fide at all.
25. On factual aspects, much discussion is not required in this case because, the scope of interference is very limited. On the claim under Section 11(2) of the Act, there is the concurrent RCRev..Nos.210/2016 & 215/2016 -: 36 :- findings of the two authorities. Decision on the claim under Section 11(2)(b) of the Act was correctly made by the two courts, and there is nothing erroneous in that finding for interference in revision.
26. Except a casual denial in the statement of objection of the respondents that the petitioner has another building in his possession, there is nothing in the evidence of RW1 disputing the claim made by the petitioner under Section 11(3) of the Act. It is pertinent to note that in the affidavit filed by RW1 in lieu of examination in chief, there is nothing on the claim made by the petitioner under Section 11(3) of the Act, and the whole evidence given by him is confined to the plea of denial of title. Though the trial court found against the petitioner, the appellate authority found, on a reappraisal of evidence, in favour of the landlord under Section 11(3) of the Act that he requires the building for his own purposes. The tenants have been continuing in the premises for years, and have also kept the RCRev..Nos.210/2016 & 215/2016 -: 37 :- rent in arrear since January, 2006. There is nothing to show that the petitioner has any other convenient building for shifting his residence. As regards the present condition of the house building now being occupied by the petitioner, his evidence is satisfactory, and this stands not controverted or challenged by the tenants in evidence. Regarding the suitability of the building as a residential building, the tenants have no dispute. On an examination of the finding made by the appellate authority on the basis of the evidence, I find that the finding under Section 11(3) is not an erroneous finding because the claim under Section 11(3) of the Act is not seen seriously challenged or disputed during trial by the tenants. I find that order of eviction was rightly granted by the appellate authority under Section 11(3) of the Act, and I find nothing erroneous therein for interference in revision.
27. As discussed and answered in the foregoing paragraphs, I find that the denial of title made by RCRev..Nos.210/2016 & 215/2016 -: 38 :- the tenants is not bona fide, and that the petitioner has proved his right to get relief under Sections 11(2) and 11(3) of the Act. Thus, the two revision petitions brought by the tenants are liable to be dismissed.
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P.UBAID JUDGE Order of the court.
(a) The legal issue is answered, that the denial of title made by the respondents (tenants) is not bona fide.
(b) The order of eviction concurrently granted by the two courts below under Section 11(2)(b) of the Act is confirmed.
(c) The order of eviction granted by the appellate authority under Section 11(3) of the Act is confirmed.
(d) Consequently, the RCR Nos.210/2016 and
215/2016 will stand dismissed.
(e) In the particular facts and circumstances of the case, the parties will bear their respective costs throughout.
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P.UBAID JUDGE //TRUE COPY// P.A. TO JUDGE Jvt/rkj/ds/4.1.2019