Kerala High Court
K.V.Narayanan Murti vs Thankamma Sebastian on 19 May, 2005
Author: K.T.Sankaran
Bench: K.T.Sankaran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RCRev No. 48 of 2005
1. K.V.NARAYANAN MURTI, AGED 75 YEARS,
... Petitioner
Vs
1. THANKAMMA SEBASTIAN,
... Respondent
For Petitioner :SRI.K.SUDHAKARAN (PALAKKAD)
For Respondent :SRI.S.SREEKUMAR
The Hon'ble MR. Justice R.BHASKARAN
The Hon'ble MR. Justice K.T.SANKARAN
Dated : 19/05/2005
O R D E R
R.BHASKARAN & K.T.SANKARAN, JJ.@@ j
-----------------------------------@@ j @@ j R.C.R. No. 48 of 2005@@ j
-----------------------------------@@ j @@ j Dated this the day of May 2005@@ j @@ j O R D E R@@ j Sankaran J ((HDR 0 RCR.NO.48 OF 2005 :: # ::@@ j )) .HE 1 .SP 2 .........L.......T.......T.......T.......T.......T.......T......J The question of law involved in this Revision is whether the contention of the respondent in this Rent Control Revision that he has entered into an agreement for sale of the petition schedule building with the erstwhile landlord could be termed as a denial of title of the landlord coming within the meaning of the second proviso to Section 11 (1) of the Kerala Buildings (Lease and Rent Control) Act. The further question is whether the respondent in the Rent Control Petition who admittedly attorned to the landlord and agreed to pay revised rate of rent after the landlord purchased the building, could set up a case that the tenant is a mortgagee in possession and whether it would amount to denial of title of the landlord, under the second proviso to Section 11(1) of the Act.
2. The facts in brief are the following: The respondent in this Rent Control Revision filed R.C.P.No.98 of 2003, on the file of the Rent Control Court, Ernakulam against the petitioner herein under Section 11(3) of the Act. The landlady/respondent herein (hereinafter referred to as `the landlord') stated in the Rent Control Petition thus: "The respondent is the tenant of a residential building, bearing No.41/695 (59/1003) of Cochin Corporation, which is more particularly described in the schedule hereunder. The respondent took the building for residential purpose on a monthly rent of Rs.550/- and the respondent is residing therein with family." It is not mentioned in the Rent Control Petition, during which period the lease was granted. It is also not stated as to who granted the lease. The 'landlord' contended that she is residing along with her son Thomas at Changanacherry. The 'landlord' has no other building of her own except the petition schedule building. She bona fide needs the petition schedule building for her own residence. Thomas does not have any job or employment. He intends to conduct chitty business in the petition schedule building for eking out his livelihood. Thomas is depending on the landlord for his need to occupy the building for conducting business. Thomas is married and has three children. On 3.6.2003, Ext.A2 lawyer notice was issued by the landlord to the tenant. The tenant issued Ext.A3 reply notice dated 28.6.2003. The landlord contended in the Rent Control Petition that the allegations made in the reply notice are untrue. She denied all the material allegations made in the reply notice.
3. In the counter statement filed by the tenant, he contended, inter alia, as follows: The tenant was residing in `Eastland Enclave' in Stadium Road, belonging to one Dr.Urmese. In 1968, P.A.Francis, who then constructed the petition schedule building, requested the tenant to shift to the petition schedule building with family. P.A.Francis was a close friend of the tenant. P.A.Francis borrowed a sum of Rs.50,000/- from the tenant on condition that the latter could occupy the petition schedule building by way of security for the loan amount. No interest was charged or paid on the loan amount. No rent was being paid to P.A.Francis. That arrangement continued till the husband of the tenant purchased the petition schedule building. Possession of the building was handed over by P.A.Francis to the tenant on a definite understanding that he need surrender the building only on payment of the amount borrowed. Joseph Devassy Kadavil, husband of the landlord purchased the property with the full knowledge of the agreement between P.A.Francis and the tenant. The tenant has spent about Rs.6 lakhs for repairs and maintenance of the petition schedule building and it was done with the knowledge of the landlord. The landlord is liable to reimburse the said amount to the tenant. The bona fide need alleged in the Rent Control Petition was denied by the tenant. The tenant informed the landlord that the former is interested in purchasing the property and he offered Rs.15 lakhs, but the landlord was not willing to sell the property for that amount and demanded Rs.40 lakhs and thereafter Rs.45 lakhs. The intention of the landlord is to get vacant possession of the building and to sell the same.
4. To deal with the contentions raised by the tenant in the above revision, it is apposite to extract some of the averments in the objection filed by the tenant. The tenant stated in the objection at various places thus: "Immediately after the purchase of the building the petitioner started demanding increase in rent. Though the respondent was agreeable for a reasonable increase, the petitioner would want increase at least by ten times. For this, the respondent was not agreeable. Thereafter, from 1981 onwards the petitioner has been insisting to either purchase the property or increase the rent." "The petitioner was aware of the huge sum expended by the respondent for maintenance and improvement of the property and the terms and the amounts owed to this respondent by the erstwhile owner. Considering these circumstances, the petitioner offered to sell the property to this respondent, in the year 1993." "There was a contract of sale of the said property to the respondent." "As regards the averments in paragraph 1 of the Petition, it is submitted that the initial monthly payment for the petition schedule building was Rs.500/, which was increased to Rs.550/- as demanded by the petitioner. The respondent was also willing for a reasonable increase in rent." "It is respectfully submitted that considering the amount due from the erstwhile owner and the huge sum expended on the improvement and maintenance of the property and offer made by the petitioner to sell the property to the respondent, this respondent is ready and willing to purchase the property at a reasonable price. This respondent craves the indulgence of the Tribunal in settling the matter out of Court through mediation and conciliation." Before the Rent Control Court, PWs.1 to 4 were examined and Exts.A1 to A9 were marked on the side of the landlord, P.Ws 1 and 2 being the 'landlord' and her son Thomas respectively. The tenant was examined as R.W 1 and Exts.B1 to B6 were marked on the side of the tenant. The Commissioner's report and valuation statements were marked as Exts.C1 and C1(a).
5. The Rent Control Court allowed the Rent Control Petition under Section 11(3) of the Act. Before the Rent Control Court point No.3 raised was as follows:
"Whether the respondent's argument denying landlordtenant relationship is sustainable?" This point was considered by the Rent Control Court in detail and held against the landlord holding that the Rent Control Petition is perfectly maintainable before the Rent Control Court. The claim under Section 11(3) was also considered in great detail by the Rent Control Court and held that the bona fide need put forward by the landlord is established. On appeal by the tenant as R.C.A.No.80 of 2004 before the Rent Control Appellate Authority, Ernakulam, the findings of the Rent Control Court were confirmed. Point No.1 raised before the Appellate Authority was: "whether the appellant is a mortgagee in possession of the petition schedule building?" Answering this question, the Appellate Authority found that the tenant is not a mortgagee in possession of the petition schedule building. The prayer for amending the counter statement as prayed for in I.A.No.2857 of 2004 was also dismissed by the Appellate Authority. The claim of bona fide need was considered by the Appellate Authority in the light of the pleadings and evidence in the case and held that the bona fide need is established.
6. Before this Court, Sri.K.Sudhakaran, learned counsel for the tenant-revision petitioner, contended that the Rent Control Petition is not maintainable, since there is a bona fide denial of the title of the landlord. The Rent Control Court should have dealt with the question of denial of title under the second proviso to Section 11(1) of the Act and upheld the contentions raised by the tenant and relegated the parties to a civil suit, contends the counsel. According to the counsel for the Revision Petitioner, the revision petitioner is a mortgagee in possession and a Rent Control Petition is not maintainable to evict him. The counsel further contended that there was an agreement to sell the property to the tenant and on that ground also the Rent Control Petition is not maintainable. The counsel for the petitioner cited the following decisions: AIR 1989 SC 553; AIR 1993 SC 1712; 1985 KLT 1121, AIR 2003 SC 4152; (2004) 6 SCC 140' (1999) 6 SCC 222 AND 2002 (2) KLT 129. Sri.S.Sreekumar, learned counsel for the respondent, disputed the propositions put forward by the counsel for the petitioner and contended that both the authorities below decided the case correctly and there is no ground to interfere under Section 20 of the Kerala Buildings (Lease and Rent Control) Act. The counsel for the respondent- landlord pointed out that the landlord-tenant relationship is admitted, payment of rent is admitted, increase in the rate of rent is admitted and therefore, the revision petitioner/ tenant is not entitled to put forward any of the contentions referred to above. He also referred to the documentary and oral evidence in the case and submitted that the landlord-tenant relationship is clearly established in the case.
7. The evidence in the case would disclose the following facts: The original owner P.A.Francis was an advocate. The tenant is also an advocate. The tenant was employed in M/s.General Electronic Company. He retired from service in 1988. Thereafter, he is practicing as an advocate. He has five children, of whom one daughter and son are in U.S.A. and another daughter is in Mumbai. His another son is employed in Germany. Another son of the tenant is an Advocate practicing in the High Court of Kerala and his wife is also an Advocate practicing in the High Court. The petition schedule building is by the side of Krishnaswamy Road in Ernakulam City and is situated hardly 100 metres away from Chittoor Road. There are five rooms in the ground floor and three rooms in the upstair of the petition schedule building. There are three bedrooms in the petition schedule building and all of them are bath attached.
8. The tenant stated in evidence thus:
To a specific question, whether the tenant is prepared to vacate the petition schedule building if Rs.50,000/alleged to have been lent to Francis is paid, the tenant answered that it is a question to be examined considering his rights under law.
9. It is relevant to note here that in Ext.A3 reply notice, the tenant stated thus: "On the request of Sri.P.A.Francis and assurance that repayment of the loan will be made, my client attorned to your client and agreed to pay the monthly rent of Rs.500/- which was later enhanced to Rs.550/-. My client offered to enhance the rent to Rs.750/- but your client declined the offer. The amount advanced way back in 1968 remains unpaid, nor any interest has been paid so far. My client says that he has every right to be in possession of the property unless and until the amount advanced along with interest has been paid. Even then my client has been regularly paying the rent to your client." In Ext.A7 letter issued by the tenant to the landlord on 18.12.2001, it is stated that the former is residing in the building for the last 35 years on payment of rent. In Ext.A8 letter dated 8.8.2000 sent by the tenant to the landlord, it is admitted that Rs.550/- is being paid as the rent. It is stated in Ext.A8 that the tenant was prepared to increase the rent from Rs.550/- to Rs.750/and that the rent could be enhanced after the expiry of five years.
10. The tenant in his chief examination (proof of affidavit) has stated thus:
.................L.......T.......T.......T.......T.......J .SP 1 "The possession of the building was handed over to me on 1st September 1968 with the definite understanding that the possession of the building need be surrendered only if the amount borrowed by him is returned to me with up to date interest. Thus, it is an anomalous mortgage wherein I am the mortgagee equating my status to that of a landlord. Thus, it is respectfully submitted that the petitioner has no title over the petition schedule building hence I bona fide deny the title of the landlord.
Since there is no landlord-tenant relationship between me and the petitioner, it is respectfully submitted that this Hon'ble Court may be pleased to refer the parties to adjudicate the relationship between the parties by a civil court..."
........L........T........T.......T.......T.......T.......T......J .SP 2
11. Such a contention was not put forward in the objection filed by the tenant. On the other hand, a fair reading of the objection would disclose that the title of the landlord is admitted. The contention put forward by the landlord that there is no landlord-tenant relationship is also belied by the pleadings, Exts.A3 notice and Exta.A7 and A8 letters, sent by the tenant to the landlord. The contention of denial of title was put forward only at the fag end of the trial. The landlord was put to much prejudice by raising such a contention at the trial stage without raising it in the objection filed by the tenant. Such a belated contention which is quite contrary to the stand taken by the landlord in his objection cannot be allowed to be raised. We have emphasized the importance of pleadings in Rent Control Petitions, in Mohammed Sageer V. Prakash Thomas 2005 (1) K.L.T.400 = I.L.R. 2005 (1) Kerala 839. The Appellate Authority was perfectly justified in dismissing I.A.No.2857 of 2004 for amending the counter statement filed by the tenant.
12. There is no case for the tenant that the alleged mortgage transaction was made in writing. A mortgage for a sum of more than Rs. 100/- can be created only by a registered document, in view of Section 17 of the Registration Act, 1908. As held by the Appellate Authority, there is no evidence in the case to prove that the tenant had advanced a sum of Rs. 50,000/- to the erstwhile owner in the manner contended by the tenant and that the liability is subsisting. Even assuming the case put forward by the tenant that he is a mortgagee is true, he having attorned to the landlord and agreed to pay the rent to the landlord, it cannot be said that the title of the landlord is denied. Even if there is a mortgage, the mortgagee is not entitled to deny the title of the landlord, so long as the landlord is receiving rent from the tenant. To say that a person is a mortgagee in possession, he has to admit the title of the mortgagor. The title of the mortgagor, viz. P.A.Francis, is not disputed by the tenant. He also does not dispute the title of the landlord which was derived from Sri.P.A.Francis as per Ext.A1. Payment of rent is admitted by the tenant. Therefore, the contention of the tenant that he is a mortgagee in possession and that there is an anomalous mortgage in existence does not constitute a denial of title of the landlord within the meaning of the second proviso to Section 11(1) of the Act since the rental arrangement is admitted. To claim that a person is a mortgagee, the mortgage must have been validly created. There being no registered mortgage deed, the tenant is not entitled to contend that he is an anomalous mortgagee.
13. On the question whether there was agreement to sell the property to the tenant, there is no acceptable evidence in the case to hold that there was such an agreement. It is not stated what was the consideration agreed to be paid. The counter statement filed by the tenant would clearly indicate that the consideration was not fixed or agreed upon. The authorities below, in our view, rightly rejected the contention of the tenant in this regard.
14. The further question is when the tenant raises a contention that there was an agreement between the landlord and the tenant to sell the building to the tenant, whether it would constitute denial of title of the landlord within the meaning of Section 11 (1) of the Act. When the landlord-tenant relationship is admitted or proved, the question whether there was an agreement to sell the building to the tenant becomes irrelevant. An agreement to sell does not invest any title in the tenant; nor does it divest the title of the landlord. The title would pass to the proposed transferee only on execution of the sale deed. The agreement to sell by itself would not terminate the landlord- tenant relationship. Even if a suit for specific performance filed by the tenant-transferee is pending, that by itself would not be a ground to oust the jurisdiction of the Rent Control Court. So long as the tenant has not shed his character as a tenant, he cannot take shelter under the agreement for sale and contend that the Rent Control Court has no jurisdiction. Of course, in a case where Section 53 A of the Transfer of Property Act applies, the position may be different. Section 53 A provides that in a case coming under that Section, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract. Even in such a case, mere continuance of possession is not enough to take away the landlordtenant relationship. If the tenant is in possession in his capacity as the tenant and not in part performance of the contract, Section 53 A would not apply. The Rent Control Court in such a case would be perfectly justified in considering the question whether the landlord- tenant relationship continues to exist. In the present case, it is admitted that rent is being regularly paid to the landlord. Therefore, the possession of the tenant could not be attributed to one gained as per the agreement to sell.
15. In Dr. N.P.Tripathi V. Dayamanti Devi and@@ EEEEEEEEEEEEEEEEEE EEEEEEEEEEEEEEEEEE another (A.I.R. 1988 Patna 123), a Division Bench took@@ EEEEEEE the view that a suit for eviction filed under the Bihar Buildings (Lease, Rent and Eviction) Control Act is not liable to be stayed under Section 10 of the Code of Civil Procedure till the disposal of the suit for specific performance of the agreement to sell filed by the tenant. It was held thus: " So far the suit for specific performance of the contract is concerned it has got nothing to do with the question with regard to the relationship of landlord and tenant between the parties or even with regard to the ownership claimed under the deed of agreement of specific performance of contract for sale. Merely filing a suit for specific performance of contract does not confer or is founded upon a fact that a title has accrued in the property in question under the deed of agreement or contract for sale." That was a case where even the benefit of Section 53 A T.P.Act was claimed.
16. The learned counsel for the tenant placed reliance on S.B.Abdul Azeez (by Lrs.) V. Maniyappa Setty@@ EEEEEEEEEEEEEEEEEEEEEEEEE EEEEEEEEEEEEEEE and another (A.I.R. 1989 S.C. 553) and Narpatchand A.@@ EEEEEEEEEEE EEEEEEEEEEEEEEE Bhandari V. Shantilal Moolshankar Jani and another@@ EEEEEEEE EEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEE (A.I.R. 1993 S.C. 1712) and contended that a morgagee in possession is in the position of the landlord and therefore a Rent Control Petition at the instance of the original landlord would not lie. The question decided in the above cases is whether a usufructuary mortgagee is entitled to maintain a Rent Control Petition for eviction of the tenant. These decisions have no application at all to the facts of the present case.
17. The learned counsel for the tenant relied on a single sentence in S.R.Radhakrishnan and others V.@@ EEEEEEEEEEEEEEEEEEEEEEEEEEEEEE Neelamegam : A.I.R. 2003 S.C. 4152, which reads:@@ EEEEEEEEEE "Further it is settled law that one does not become tenant by mere payment of rent even if that be so." The Supreme Court was dealing with the question whether defendants 2 and 3, who claimed to have rights in the tenanted premises (and whose claims were rejected), could claim the protection of Section 9 of the Tamil Nadu City Tenants Protection Act. Section 9 of that Act enabled the tenant who is entitled to compensation under Section 3 to seek for an order that the landlord shall be directed to sell the property to the tenant for a price to be fixed by the Court. In that context, the Supreme Court rejected the claim of defendants 2 and 3 holding that mere non payment of rent would not enable them to get the benefit of Section 9. The above quoted sentence in the decision cannot be relied on out of context.
18. Relying on Virendranath v. Mohd. Jamil and@@ EEEEEEEEEEEE EEEEEEEEEEEEEEEE others : (2004) 6 S.C.C. 140, the learned counsel for@@ EEEEEE the tenant contended that even in a case where the mortgage deed is not registered, evidence could be admitted for the collateral purpose of ascertaining the nature of possession. He contended that the facts and circumstances of the present case would disclose a mortgagor- mortgagee relationship between the assignor of the landlord and the tenant and therefore, the Rent Control Court could not decide the case in view of the bar under the 2nd proviso to Section 11 (1) of the Act. The decision relied on by the counsel does not apply to the facts of the case. The Supreme Court was dealing with a case where the mortgagee set up adverse possession and claimed a right to declare him as sirdar in accordance with Section 210 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950. In that context, the Supreme Court held even if the mortgage deed is not registered, evidence could be admitted for the collateral purpose of ascertaining the nature of possession of the claimant. It was held that the claimant's possession having commenced as a mortgagee, the nature of his possession would continue to be as a mortgagee unless there is evidence to show that, at any point of time, he asserted his adverse title, by repudiating his possession as mortgagee and continued in adverse possession for the prescribed period of more than 12 years to the knowledge of the mortgagor. This decision of the Supreme Court cannot be applied to the facts of the case on hand.
19. The learned counsel for the revision petitioner relied on the decision in Robert Welress V.@@ EEEEEEEEEEEEEE Mammu (1985 K.L.T. 1121), and contended when an agreement@@ EEEEE for sale is set up by the respondent in the Rent Control Petition, it would amount to denial of title. In the case on hand, the counter statement of the tenant does not disclose an agreement for sale. What is stated is that there was offer and counter offer between the parties. In the decision in 1985 K.L.T. 1121, the tenants had denied the rental arrangement and the landlord tenant relationship; they also contended that there was an agreement for sale with the predecessor in title of the landlord and part of the consideration was paid evidenced by a receipt. The Rent Control Court and the Appellate Authority held that the agreement for sale was true. The Revisional court held that only the civil court could arrive at such a finding. This court upheld the decision of the Revisional Court and held thus: "Merely because a tenant stated in his counter statement that the landlord has no title the Rent Control Court does not cease to have jurisdiction to enquire into the matter and should not hasten to dismiss the petition. The proviso makes it clear that the Rent Controller has to enquire and decide whether the denial of title has been made bonafide. When it records a finding to that effect, the Rent Controller ceases to have jurisdiction to make any further probe into the matter." We agree with this proposition laid down in Rober Welress's case. However, it was further held in that decision, thus : "Validity of agreements set up by the tenants cannot be gone into by the rent control court. .. Thus, the position is clear that Rent Controller gets jurisdiction to deal with the matter only when landlordtenant relationship between the parties is admitted." With respect, we find it difficult to agree with this proposition. In Robert Welress's case, the decision reported in A.I.R. 1974 Mysore 46 : Rukamoddia Vs. Basawwa was relied on, wherein the tenant had set up an agreement for sale from the predecessor of the landlord and claimed the protection of Section 53 A of the Transfer of Property Act. In the decision of the Mysore High Court, it was held: "It is, therefore, clear that the consistent view taken by this Court is that a Court functioning under the Act is competent to decide even disputes relating to the title of the landlord provided that such disputes are not complicated. Whether such a dispute in a particular case is or is not complicated, of course, depends on the facts and circumstances available in each case. If the Munsiff holds that it is not a complicated dispute and proceeds to decide it, it is on appeal open to the District Judge to consider that aspect and either agree or disagree with the view of the Munsiff, relating to the dispute about title of the landlord. Finally it is open to the High Court acting under Section 50 of the Act to consider whether the approach of the two courts below in regard to this aspect of the matter is acceptable or not. In view of the fact that its decision would be final and will operate as res judicata and also cannot be called in question in any suit or proceeding in any court of law, the Court, functioning under the Act, has to carefully conscientiously apply its mind to find out whether the dispute relating to title of the landlord, in a given case, is complicated or not. It has to exercise its judicial discretion bearing in mind the consequences that would flow from its decision on such a dispute."
20. In A.V.G.P.Chettiar & Sons and others V. T.Palanisamy Gounder (2002)5 S.C.C. 337, the Supreme Court dealing with a case under the Tamilnadu Buildings (Lease and Rent Control) Act, held thus: "Under the second proviso to Section 10 (1) if the Controller decides that the tenant's denial of the title of the landlord or the claim to permanent tenancy is bonafide, then the landlord is entitled to sue for eviction of the tenant in a civil court which would have the jurisdiction to pass a decree for eviction on any of the grounds mentioned in Sections 10,14,15 and 16 of the Act, notwithstanding that the court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded. It is clear from the language of this proviso, that the Rent Controller has only to decide whether there is a bona fide dispute as to the landlord's title and has no jurisdiction to decide the issue of title himself. That would be within the exclusive jurisdiction of the civil court." The decision in J.J.Lal (P) Ltd. V. M.R. Murali (2002) 3 S.C.C. 98 was relied on in A.V.G.P.Chettiar's case.
21. In Vasudevan Namboodiri V. Omana Amma 1982 K.L.T. Short Notes 58, this court held that in order to attract the 2nd proviso to Section 11 (1), a plea coming under the said proviso must arise for consideration. It is not enough if the tenant makes a bare statement denying the title of the landlord without anything more.
22. In Joseph Vs. Thomas 1987 (2) K.L.T. 1029, referring to the second proviso to Section 11 (1) of the Act, it was held as follows: " The proviso is meant for a jurisdictional purpose. Intricate or vexed questions relating to title cannot normally be left to be decided by tribunals which are created for limited purposes. So the enquiry conducted by the Rent Control Court is expected to be only in a summary manner. It is for the said reasons that the legislature wanted such vexed and intricate questions of title to be determined by the civil court in the regular manner. But no tenant should be allowed to compel a landlord to resort to civil suit just because the tenant denied the title of the landlord. "Bonafide" (or good faith) is a familiar term in legal parlance. Honesty, of course is one of the attributes of good faith, but that is not enough. In certain contexts that which is done with due care and attention is said to have been done in good faith. But the word "bonafide" when used in relation to jurisdictional permutations, has wider import and a higher degree than the other two attributes. The aspect of bona fides in the context in which it is mentioned in the proviso may be referable to the state of mind of the tenant. But when a court has to come to a finding regarding such state of mind, there must be objective satisfaction for court that the tenant had that state of mind. The court, whose jurisdiction stands ousted on a finding that a certain plea or assertion made by a party is bonafie, must be in a position to hold that the plea is based on a very fair and reasonable supposition. In holding so, the court must have the satisfaction that there are strong or at least substantial grounds or sufficient materials in support of the plea. The court must be in a position to say that the chances of the plea being upheld by the civil court are fairly on the higher side. Then alone the Rent Control Court is justified in finding that the denial of landlord's title is bonafide." This single bench decision was referred to and followed by the Division Bench in Aboobacker V. Girija 1995 (1) K.L.T. 553.
23. In Hajira Umma V. Razak 1991 (2) K.L.T. 700, the tenant in the Rent Control Petition contended that she is in possession of the building as per an agreement for sale entered into between herself and the landlord and claimed the benefits of Section 53 A of the Transfer of Property Act. The landlord admitted the agreement for sale but contended that the tenant committed breach of the contract for sale. According to the landlord, it was during the continuance of the tenancy, the agreement for sale was executed. The Rent Control Petition was dismissed holding that the denial of title is bonafide. Thereafter, the landlord filed a suit for recovery of possession of the building. The trial court decreed the suit and it was confirmed in Appeal. The appellate court held that the defendant was not entitled to the benefits of the provisions of the Rent Control Act, as she had waived that right. It was also held that Section 53-A of the Transfer of Property Act has no application as the tenant committed breach of the agreement. Allowing the Second Appeal, this court held thus: "However, it is important to note that even though Ext. B1 agreement was entered into between the parties, the plaintiff has no case that the tenancy in favour of the defendant had come to an end. The plaintiff issued a notice terminating the tenancy and after the termination of the tenancy the defendant continued as a statutory tenant. A person remaining in occupation of the premises let out to him after the determination or expiry of the period of tenancy is, commonly though in law not accurately, called a statutory tenant. He cannot be turned out as he is entitled to the protection of the statute Going by the decisions aforesaid, it is clear that the civil court has no jurisdiction to consider the question of eviction, so long as the defendant continued as a statutory tenant. It is also not possible to hold that the defendant waived her right by stating that she has been in possession of the building by virtue of Ext. B1 agreement. It is not correct to say that after the execution of Ext. B1 agreement the possession of the building by the defendant as a tenant transformed into possession as per Ext. B1 agreement."
24. In S.Thankappan V. P.Padmavathy (1999) 7 S.C.C. 474, the Supreme Court, while considering the contention whether the Rent Control Court [Under the Tamilnadu Buildings (Lease and Rent Control Act)] could decide the question of title, held thus: Learned counsel referred to the case in LIC of India V. India Automobiles & Co. (1990) 4 S.C.C. 286 to contend that the question of title cannot be gone into these proceedings. There is no dispute on this proposition neither is it disputed by the learned counsel for the respondent nor has this question of title been decided in these proceedings. It is only when a tenant denies title of the landlord, the court has to scrutinise the evidence and come to the conclusion prima facie, whether the denial of title is bona fide or not. It is in this context of course the court has to go into the evidence to test the veracity of this denial of title. Thus, any finding in this regard could not be a finding on the question of title.What has to be considered in a case of denial of title by a tenant is whether there still exists any relationship of landlord and tenant inter se as in the present case between Respondent 1 and the appellant. In other words by such denial of title does the liability to pay this rent to such landlord cease ? Is mere denial of title sufficient not to tender rent to such landlord or at what stage such liability ceases ? These are all considerations in the context of testing the defence of a tenant in not tendering the rent to such landlord."
25. In Charulatha V. Manju 2004 (1) K.L.T. 290, this court considered the scope and ambit of the second proviso to Section 11 (1) of the Act. It was held: "What exactly is the concept of title in the context of S. 11 (1) of the Rent Control Act? Is it proprietary title or title as landlord which going by the statutory definition of that term only means entitlement to receive rent ? Our survey of various decisions rendered by different High Courts under the relevant provisions of the Rent Control statutes in currency in the States of Andhra Pradesh, Bihar, Goa, Orissa, Pondicherry, Rajasthan, Tamilnadu, Uttar Pradesh and Tripura and our own statute and the Commentaries of R.C.Kochatta, R.D.Agarwall and M/s R.Mathrubhutham and R.Sreenivasan clearly indicate that essentially what is contemplated is not proprietary title but only title as landlord in which alone a tenant should ordinarily be concerned. We also share same view."
26. In Charulatha's case, the full text of the decision in Ibrahim V. Trees Poulose, reported in 2003 (2) K.L.T. S.N Page 50 Case No. 64 was considered. In Ibrahim's case, this court took the view, thus: "It is true that in his reply the tenant had stated that there was no landlord-tenant relationship between the parties. In our view, the denial of landlordtenant relationship is different from denial of the title of the landlord. Unless the respondent in the R.C.P. denied the title of the petitioner as landlord the second proviso to S. 11 (1) will not be attracted." Referring to Ibrahim's case, it was held in Charulatha's case, thus : " We do not mean to say that proprietary title is absolutely irrelevant in all cases coming under S.11 (1). Proprietary title can assume relevancy in a given case where a person who admits that he is a tenant under somebody else contends that the petitioner in the R.C.P. cannot be the landlord for want of proprietary title.
27. It is relevant to note here that the second proviso to Section 11 (1) of the Kerala Buildings (Lease and Rent Control) act is similarly worded as the second proviso to Section 10 of the Tamilnadu Act. But, under the Tamilnadu Act, another distinct ground for eviction on the ground of denial of title is provided under Section 10 (2) (vii), which reads as follows: " (2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that hehalf. If the Controller after giving the tenant a reasonable opportunity of showing cause against the application is satisfied- . (vii) that the tenant has denied the title of the landlord or claimed a right of permanent tenancy and that such denial or claim was not bona fide, the Controller shall make an order directing the tenant to put the landlord in possession of the building and if the Controller is not so satisfied, he shall make an order rejecting the application." Such a provision is absent in the Kerala statute. In J.J.Lal (P) Ltd. Case, the Supreme Court was considered the scope and ambit of Section 10 (2) (vii) as well.
28. When there is no landlord- tenant relationship between the parties, the Rent Control Court has no jurisdiction to pass an order in favour of the petitioner in the petition. The Kerala Buildings (Lease and Rent Control) Act is an Act to regulate the leasing of buildings and to control the rent of such buildings in the State of Kerala. Sub Section (1) of Section 11 provides that a tenant shall not be evicted except in accordance with the provisions of the Act. Sub Section (2) of Section 11 mandates that a landlord who seeks to evict his tenant shall apply to the Rent Control Court for a direction in that behalf. Sub Sections (3) to (8) of the Act make provision for initiating proceedings against the tenant under distinct grounds. Sub Section (15) of Section 11 provides that where an application made under sub sections (2), (3), (4), (5), (7) or (8) for evicting a tenant has been rejected by the Rent Control Court, the tenancy shall, subject to the provisions of the Act, be deemed to continue on the same terms and conditions as before. Therefore, if there is no lease, there is no question of the Rent Control Court exercising jurisdiction. When the title of the landlord is denied, the Rent Control Court has to consider the question whether the denial of title is bonafide or not. The decision of that question does not really involve a final and binding decision on the question of title. However, it has to be decided whether there is landlordtenant relationship between the parties. In deciding that question, incidentally, the question whether the landlord has title may arise in some cases. Several types of contentions may arise in different cases. Each case has to be decided on its merits and in the facts and circumstances of that case. A straight jacket formula cannot be evolved taking into account all contingencies that may emerge in different cases. For example, a person having no title and having not granted any lease may file a Rent Control Petition and seek the summary remedy against the respondent therein, who may be a tenant of somebody else. The respondent in such a case would definitely contend that the petitioner has no title and the title vests in a third party. In considering the question whether the denial of title is bonafide and in deciding the question whether there is landlord- tenant relationship, incidentally, the question whether the petitioner has title may also arise. Even after holding that the denial of title is not bonafide, at the later stage of the case, the Rent Control Court may find that there is no landlord- tenant relationship between the parties.
29. To our mind, the second proviso to Section 11 (1) of the Act is a provision intended to prevent unscrupulous litigants from seeking eviction of persons who are not their tenants and to prevent unscrupulous tenants from protracting the Rent Control proceedings by making false claim of denial of title of the landlord. Or else, an unscrupulous litigant may resort to Rent Control proceeding instead of instituting a civil suit to get recovery of possession of the building and property from a person who is not his tenant. Likewise, an unscrupulous tenant may protract the Rent Control proceedings by raising a false plea of denial of title of the landlord. It is to be borne in mind that a lease could be an oral lease and in several cases, the landlords may not even issue rent receipts. Suppose a person falsely claims that he is the landlord and files a Rent Control Petition against the person in possession of the building under the real title holder. And suppose there is no document evidencing creation of lease or any other document evidencing payment of rent. If the Rent Control Court could not even incidentally examine the question of title of the petitioner in such a Rent Control Petition, the decision would have to be rested on doubtful and scanty materials and data. Let us take the other side of the picture. A tenant who wants to protract the Rent Control proceedings and delay eviction may raise a false contention that the landlord has no title. The Rent Control court would consider whether the denial of title is bonafide and record a finding. If the Rent Control court finds that the denial of title is not bonafide, the Rent Control court can proceed with the final trial and dispose of the case. It cannot be held that the Rent Control Court has no jurisdiction to consider the respective contentions of the parties as to the question of title to arrive at a finding as to whether the denial of title is bonafide.
30. An argument is possible that even after the Rent Control Court holds that the denial of title or claim of permanent tenancy is bonafide, the civil court at the subsequent stage could hold that such denial does not involve forfeiture of the lease or that the claim is unfounded, as evident from the second proviso itself. Therefore, it is also possible to argue that the enquiry contemplated before the Rent Control Court should not be aimed at deciding the question of title. As stated above, the Rent Control Court is not expected to decide the question of title once for all, but in deciding whether the denial of title is bonafide, the Rent Control Court is not powerless in considering the question of title. There is distinction between denial of title and the claim for permanent tenancy. In the former, the denial may lead to denial of landlordtenant relationship, while in the latter it is not so. Therefore, to our mind, the scope and magnitude of the enquiry into the bonafides of denial of title and that of the claim of permanent tenancy need not be the same.
31. What is contemplated by the second proviso to Section 11(1) is the denial of the title of the landlord. The expression `title' is not defined in the Act. A mortgagee cannot claim paramount title and his title is only derivative. When the paramount title is admitted and derivative title is set up by the tenant, it does not constitute the denial of title, when the landlord- tenant relationship is admitted. The tenant having admitted attornment and payment of rent to the landlord, even assuming that the tenant is a mortgagee in possession, he cannot contend that a Rent Control Petition against him is not maintainable. Such a contention would not amount to a denial of title within the meaning of the second proviso to Section 11 (1) of the Act. The Rent Control Court is competent and has jurisdiction to decide the question whether there is a subsisting landlord-tenant relationship between the parties. All ancillary questions to arrive at a just decision on that issue, evidently comes within the jurisdiction of the Rent Control Court.
32. For the foregoing reasons, we hold that the Rent Control Court and the Appellate Authority were justified in rejecting the contention of the Revision Petitioner that there was an agreement for sale and that the Revision Petitioner is a mortgagee. On the facts of the case, as held by the authorities below, these claims are not established. On the questions of law, we hold that these contentions raised by the Revision Petitioner do not constitute denial of title of the landlord within the meaning of the second proviso to Section 11 (1) of the Act.
33. On the question of bonafide need under Section 11 (3) of the Act, the authorities below concurrently held on facts that the need urged is bonafide. We have carefully examined the pleadings and evidence on this aspect of the case. We do not find any justification to interfere with these concurrent findings of facts. The decisions cited by the counsel for the Revision Petitioner [(1999) 6 S.C.C.222 and 2002 (2) K.L.T. 129 have no application to the facts of the present case. The facts narrated above and the documentary evidence in the case would show that the contentions put forward by the Revision Petitionertenant lack bonafides. We, therefore, dismiss the Rent Control Revision, however, without costs.
34. However, taking into account the facts and circumstances of the case, three months' time is granted to the Revision Petitioner to vacate the building, on condition that he shall file an undertaking before the Rent Control Court within a period of one month undertaking to vacate the building within the aforesaid period of three months and also pay the arrears of rent within one month and continue to pay the rent till he vacates the building.