Kerala High Court
P.M. Francis vs P.M. Joseph on 11 February, 2011
Bench: Pius C.Kuriakose, N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev..No. 83 of 2008(G)
1. P.M. FRANCIS, S/O. MICHAEL,
... Petitioner
2. AUGUSTHY CHACKO, S/O. AUGUSTHY,
Vs
1. P.M. JOSEPH,
... Respondent
For Petitioner :SRI.N.SUBRAMANIAM
For Respondent :SRI.K.C.CHARLES
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice N.K.BALAKRISHNAN
Dated :11/02/2011
O R D E R
PIUS C. KURIAKOSE &
N.K.BALAKRISHNAN, JJ.
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R.C.R. No.83 of 2008
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Dated this the 11th day of February 2011
O R D E R
Pius C. Kuriakose, J.
The petitioners in R.C.O.P.No.2/2000 on the file of the Rent Control Court, Thodupuzha are the revision petitioners. They are challenging the judgment of the Appellate Authority confirming the order of the Rent control court finding that the case involves a bonafide denial of the landlord's title by alleged tenant and relegating to the landlord to a competent civil court. The landlord sought to maintain the RCP on the basis of a rental arrangement in 1989 between the parties. One of the defences of the tenant was the denial of an existing landlord-tenant relationship. The specific defence was that tenant is in R.C.R. No.83 of 2008 -: 2 :- possession pursuant to an oral agreement for sale of the building. There was a further defence that due to long possession adverse to the interest of the real owner, title if any which the petitioners in the RCP were having, was lost to them and that the tenants have prescribed a title for themselves. The tenants filed I.A.No.898/2001 seeking an order that the bonafides of the denial of title be taken up as a preliminary issue and decided. The above I.A. was dismissed by the Rent Control Court by a non speaking order. Later, the tenant filed subsequent I.A.No.968/2003 seeking the very same relief ie; preliminary question be raised regarding the bonafides of the denial of title. It was considering this I.A. that the learned Rent Control Court held that the denial of title is bonafide. One of the contentions which the landlord raised in this I.A. was that the I.A. is not maintainable in view of the order passed in the previous I.A. The landlords approached this Court by filing W.P.(C)No.32804/2003 challenging the above order of R.C.R. No.83 of 2008 -: 3 :- the Rent Control Court. It was urged before this Court that the contention that the subsequent I.A. is not maintainable was not considered by the Rent Control Court. This Court accordingly set aside the order passed by the Rent Control Court and directed the Rent Control Court "to reconsider the preliminary question afresh after hearing both sides. It is open to the parties to raise their respective contentions on the basis of the objection already filed." It is pursuant to the above order of this Court that the order was passed by the Rent Control Court which was confirmed by the Appellate Authority by the impugned judgment. The Rent Control Court noticed that the landlord had not produced even a scrap of paper to show the existence of a landlord- tenant relationship between the parties. That Court also noticed on the contrary, Ext.B2, (corresponding to Ext.A11) an extract of property tax assessment register pertaining to the building covering periods entered to 1989 were produced by the alleged tenant and that those documents R.C.R. No.83 of 2008 -: 4 :- revealed that the alleged tenant was in possession of the building prior to 1989. It was accordingly that the Rent Control Court concluded that the case involves bonafide denial of landlord's title ie; existence of landlord-tenant relationship. The Rent Control Appellate Authority has also endorsed the findings of the Rent Control Court.
2. Sri.M.S.Narayanan, the learned counsel for the revision petitioner argued that the defence of the tenant that he is entitled to the equity under Section 53A of the T.P.Act cannot be sustained as admittedly the agreement for sale is an oral one. He further submitted that the further defence of acquisition of title by adverse possession and limitation, is also not possible as on the tenant own showing he is in possession pursuant to an oral agreement between him and petitioners in the RCP. In other words, he is admitting the title of the landlord. The argument of Mr.Narayanan regarding the defence set up by the alleged tenant with reference to Section 53A of the T.P.Act as well R.C.R. No.83 of 2008 -: 5 :- as the plea of prescription of title was very strong. But the question is whether there exists landlord-tenant relationship between the parties. The Rent Control court as well as the Appellate Authority have concurrently found that the landlord has not produced even a single document which will support the case that the building was let out in 1989. Those courts have also found that Ext.B2 as well as Ext.A11
(a), property tax assessment register will very strongly support the alleged tenant's case that he was in possession of the building even prior to 1989. Mr.Narayanan addressed before us that the landlord will be able to prove before the Rent Control Court that there exists landlord- tenant relationship. He sought for opportunity, we would have been inclined to afford opportunity to the landlord for producing documentary evidence regarding the relationship between the landlord and tenant. But we are told that the petitioners have ceased to have any interest in the subject matter of proceedings. Hence the RCR will stand R.C.R. No.83 of 2008 -: 6 :- dismissed. This order will not stand in the way of the petitioners in I.A.No.1628/2008 from initiating appropriate proceedings for getting possession of the building from the respondent.
PIUS C. KURIAKOSE, JUDGE.
N.K.BALAKRISHNAN, JUDGE.
Jvt