Kerala High Court
Ulahannan vs George on 16 February, 2012
Bench: Pius C.Kuriakose, A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE
&
THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
THURSDAY, THE 16TH DAY OF FEBRUARY 2012/27TH MAGHA 1933
RCRev..No. 49 of 2012 (B)
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RCA.7/2009 of RENT CONTROL APPELLATE AUTHORITY, KOTTAYAM
OP.4/2008 of RENT CONTROL COURT, PALA
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REVISION PETITIONER(S)/APPELLANT/RESPONDENT:
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ULAHANNAN
S/O.KURIAN, AGED 52 YEARS,
KURUSUMOOTTIL (VALLOMTHADOM) HOUSE
KURAVILANGADU KARA AND VILLAGE, THOTTUVA
KURAVILANGADU.
BY ADV. SRI.P.C.HARIDAS
RESPONDENT(S)/RESPONDENT/PETITIONER:
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1 GEORGE
S/O.CHACKO, AGED 57 YEARS,
THATTARAPPARAYIL HOUSE, KALATHOOR KARA
KURAVILANGADU VILLAGE-686633
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON
16-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
PIUS C. KURIAKOSE &
A. V. RAMAKRISHNA PILLAI, JJ.
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R. C. R No.49 of 2012
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Dated this the 16th day of February, 2012
ORDER
Ramakrishna Pillai, J The tenant has come up in revision.
2. The respondent/landlord filed the Original Petition before the Rent Control Court seeking eviction of the revision petitioner under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act.
3. The respondent's case was that he purchased the petition schedule building as per Ext.A1 Deed from one Devasia and the revision petitioner is residing in the building on the basis of a rent agreement with the aforesaid Devasia. Due to arrears of rent the said Devasia asked the revision petitioner to quit. But instead of vacating the building the revision petitioner took the matter before the Munsiff's Court, Pala by filing O.S.350/99 for cancellation of the sale R. C. R No.49 of 2012 -2- deed (Ext.A3) pertaining to the petition schedule premises executed by the revision petitioner in favour of Devasia. The revision petitioner took the stand that Ext.A3 was executed only as a security and he continued to be in possession of the petition schedule premises. Allegedly the aforesaid suit was dismissed and though the matter was taken up in appeal before the Sub Court, Pala as AS.84/04 the same was also found against the revision petitioner. It was further alleged in the Original Petition that the respondent's sons who are working abroad are about to return and as they want accommodation, it is for the respondent to find a residence for his sons. So it was alleged that the petition schedule building is bona fide required for the residence of his sons.
4. The revision petitioner countered challenging the title of the respondent. It was contended that neither the respondent nor his predecessor in interest (Devasia) had obtained title to the petition schedule building. The stand taken by the revision petitioner was that though Ext.A3 was R. C. R No.49 of 2012 -3- executed the property was not conveyed and he continued to be in possession of the petition schedule premises. It was further contended that there was no landlord-tenant relationship between himself and Devasia.
5. The learned Rent Controller raised proper points for trial and permitted both sides to adduce evidence. After consideration of the evidence the learned Rent Controller ordered eviction under Section 11(8). The revision petitioner took the matter in appeal before the Rent Control Appellate Authority. The learned Rent Control Appellate Authority on a re-appraisal of the entire evidence confirmed the order of eviction under Section 11(8). This order is under challenge.
6. We have carefully gone through the impugned order. We have heard the learned counsel appearing for the revision petitioner.
7. The first argument advanced by the learned counsel for the revision petitioner was that the respondent herein is not having title to the petition schedule property and there is no landlord-tenant relationship between the revision R. C. R No.49 of 2012 -4- petitioner and the respondent. This contention was considered by both the courts below. Ext.A1 is the Sale Deed by which the respondent herein obtained title to the petition schedule premises. The executant of Ext.A1 is Devasia who purchased property from the revision petitioner under Ext.A3 Sale Deed. When the predecessor in interest of the respondent asked the revision petitioner to vacate the premises he filed an original suit before the Munsiff Court, Pala for cancellation of Ext.A3 Sale Deed and also for declaration that he is having title to the property. The case advanced in that suit was that the revision petitioner had borrowed some amount from Devasia and it was as a security for the amount advanced that the respondent happened to execute the original of Ext.A3 Sale Deed. The main contention of the revision petitioner is that in spite of the execution of Ext.A3 he continued to be in possession of the petition schedule premises. It is relevant to note that this issue has been elaborately considered by the Munsiff Court, Pala in O.S.350/99 and the case of the revision R. C. R No.49 of 2012 -5- petitioner was found against. Though appeal was filed as AS.84/04 before the Sub Court, Pala that also ended in dismissal as evidenced by Ext.A6 which is copy of the judgment. So the decision as to whether Ext.A3 was a out and out sale or not has been decided by a competent civil court. It is not within the province of enquiry of the Rent Controller or the Appellate Authority to consider the genuineness of the said finding. Hence, it was correctly held by both the courts below that the denial of title set up by the revision petitioner was not genuine. We see no reason to interfere with the said finding.
8. Regarding the second contention i.e. the challenge regarding the landlord-tenant relationship we have Ext.A4 which is the Rent Deed said to have been executed by the revision petitioner in the name of Devasia who is predecessor in interest of the respondent. The Rent Control Appellate Authority has found that Devasia who was the predecessor in interest of the respondent has taken the contention in O.S.350/99 that after the execution of Ext.A3 R. C. R No.49 of 2012 -6- Sale Deed the revision petitioner has executed a Rent Deed in his favour and it was on the basis of this Rent Deed that the revision petitioner is occupying the house. Ext.A4 Rent Deed was admitted in evidence in O.S.350/99 as Ext.B1. It is relevant to note that the revision petitioner had no case in O.S.350/99 that he had not executed Ext.A4 (Ext.B1 in O.S.350/99). So on a consideration of the entire evidence the learned Rent Controller as well as the learned Appellate Authority has come to the conclusion that Ext.A4 was genuine and there existed landlord-tenant relationship between the revision petitioner and the respondent. We see no justifiable reason to interfere with the said finding.
9. Another contention raised by the learned counsel for the revision petitioner was that the RCP itself is not maintainable as there was a prayer for injunction also. It is evident from the records that prayer was not considered by the trial court and no injunction was granted. The mere fact that an unsustainable prayer was incorporated in the RCP, will not vitiate the whole proceedings before the Rent R. C. R No.49 of 2012 -7- Control Court.
10. The case advanced by the respondent before both the courts below is that he wants the petition schedule premises for accommodating his two sons who are returning to the native place. It was stated in the affidavit that apart from the house in which he is now residing he has no other building for the residence of his sons. It is relevant to note that the revision petitioner has not given any evidence against the bona fide requirement set up by the respondent. The line of contentions taken by the revision petitioner throughout the proceedings would show that he was adhering to the stand that the respondent is not having title to the petition schedule premises and there is no landlord- tenant relationship between the appellant and the respondent. The basic contention that could have been taken has been sidelined by the respondent. He has not given any evidence against the bona fide requirement set up by the respondent. He has no case that the respondent has any other vacant building other than the petition schedule R. C. R No.49 of 2012 -8- premises. The applicability of the second proviso to Section 11(3) does not come into picture as admittedly the petition schedule premises is a residential building.
11. The Rent Control Court on consideration of the entire evidence in the correct perspective has arrived at correct conclusion. The Rent Control Appellate Authority on re-appraisal of the evidence has confirmed the order of the learned Rent Controller. We do not see any reason for interference as there is no illegality, irregularity or impropriety in the impugned order.
12. In the result, the revision fails and accordingly dismissed.
13. When our decision was made known to the learned counsel for the revision petitioner, he requested one year time to vacate the premises. We are of the view that we will not be justified in granting such a long time to the revision petitioner without hearing the respondent. Hence, issue urgent notice to the respondent by speed post for hearing on the question of the time that has to be granted to the R. C. R No.49 of 2012 -9- revision petitioner for vacating the premises.
Sd/-
PIUS C. KURIAKOSE JUDGE Sd/-
A. V. RAMAKRISHNA PILLAI JUDGE kns/-
//TRUE COPY// P.A. TO JUDGE