Kerala High Court

Nilavarnneesa vs Muhammed Mansoor on 31 May, 2022

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
         THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                              &
          THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
   TUESDAY, THE 31ST DAY OF MAY 2022 / 10TH JYAISHTA, 1944
                   R.C.REV. NO. 83 OF 2020
AGAINST THE JUDGMENT DATED 19.12.2019 IN R.C.A.NO.18 OF 2019
   OF THE RENT CONTROL APPELLATE AUTHORITY (III ADDITIONAL
 DISTRICT JUDGE), PALAKKAD AND THE ORDER DATED 22.07.2019 IN
   R.C.P.NO.8 OF 2015 OF THE RENT CONTROL COURT (MUNSIFF),
                           CHITTUR
REVISION PETITIONER/:

          NILAVARNNEESA
          AGED 39 YEARS, D/O AALIKUTTY, PALLIKOODAM HOUSE,
          5/368, ESALA, VATTARAM, PUDUNAGARAM VILLAGE,
          CHITTUR TALUK, PALAKKAD DISTRICT.
          BY ADVS.
          K.N.ABHILASH
          SRI.SUNIL NAIR PALAKKAT
          SRI.M.A.AHAMMAD SAHEER
          SRI.P.B.MUHAMMED AJEESH
          SRI.T.R.ANIL VENUGOPAL
          SRI.A.K.PRIYA


RESPONDENTS:

   1    MUHAMMED MANSOOR
        AGED 75 YEARS, S/O ABDUL MAJEED, PUDUNAGARAM
        VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT,PIN-678
        101.
   2    MALIHA BEEBI,
        AGED 73 YEARS, D/O ABDULMAJEED, PUDUNAGARAM VILLAGE,
        CHITTUR TALUK, PALAKKAD DISTRICT,PIN-678 101.
   3    MUMTHAJ BEEGAM,
        AGED 69 YEARS, D/O ABDUL MAJEED, PUDUNAGARAM
        VILLAGE,CHITTUR TALUK,PALAKKAD DISTRICT,PIN-678 101.
   4    SHAMSAD,
        AGED 67 YEARS, S/O ABDUL MAJEED, PUDUNAGARAM
        VILLAGE,CHITTUR TALUK,PALAKKAD DISTRICT,
        PIN-678 101.
                                  2

R.C.Rev.No.83 of 2020

    5      NASRUDHEEN,
           AGED 65 YEARS, W/O ABDUL MAJEED, PUDUNAGARAM VILLAGE,
           CHITTUR TALUK, PALAKKAD DISTRICT,PIN-678 101.
    6      MUHAMMED MUKTHAR,
           AGED 63 YEARS, S/O ABDUL MAJEED, PUDUNAGARAM VILLAGE,
           CHITTUR TALUK, PALAKKAD DISTRICT,PIN-678 101.
    7      HUMAYOON KABEER,
           AGED 56 YEARS, S/O ABDUL MAJEED, PUDUNAGARAM VILLAGE,
           CHITTUR TALUK, PALAKKAD DISTRICT,PIN-678 101.
    8      HAMSA,
           AGED 66 YEARS, S/O ALI MUHAMMED, PALLIKOODAM HOUSE,
           5/368, ESALA VATTARAM, PUDUNAGARAM VILLAGE, CHITTUR
           TALUK, PALAKKAD DISTRICT,PIN-678 101.
    9      SHAMSUDHEEN,
           AGED 55 YEARS, S/O ABDUL KHADER, PALLIKOODAM HOUSE,
           5/368,ESALA VATTARAM,PUDUNAGARAM VILLAGE, CHITTUR
           TALUK, PALAKKAD DISTRICT,PIN-678 101.
    10     SHAMSEENA,
           AGED 28 YEARS, D/O SHAMSUDHEEN, PALLIKOODAM HOUSE,
           5/368,ESALA VATTARAM,PUDUNAGARAM VILLAGE, CHITTUR
           TALUK, PALAKKAD DISTRICT,PIN-678 101.
    11     SHANI,
           AGED 25 YEARS, D/O SHAMSUDHEEN, PALLIKOODAM HOUSE,
           5/368,ESALA VATTARAM,PUDUNAGARAM VILLAGE, CHITTUR
           TALUK, PALAKKAD DISTRICT,PIN-678 101.
    12     SANOOP,
           AGED 21 YEARS, S/O SHAMSUDHEEN, PALLIKOODAM HOUSE,
           5/368,ESALA VATTARAM,PUDUNAGARAM VILLAGE, CHITTUR
           TALUK, PALAKKAD DISTRICT,PIN-678 101.
             BY ADVS.
             SRI.RAJESH SIVARAMANKUTTY
             SRI.K.B.ARUNKUMAR
             SMT.A.PREMAKUMARI


         THIS RENT CONTROL REVISION HAVING COME UP FOR FINAL
HEARING ON 23.05.2022, THE COURT ON 31.05.2022 DELIVERED
THE FOLLOWING:
                                     3

R.C.Rev.No.83 of 2020

                                 ORDER

Ajithkumar, J.

The 2nd respondent in R.C.P.No.8 of 2015 of the Rent Control

Court (Munsiff), Chittoor, is the revision petitioner. She along with

respondent Nos 8 to 12 were the respondents in the R.C.P.

Respondents 1 to 7 are the landlords and they filed the R.C.P.

seeking eviction under Sections 11(2)(b) and 11(3) of the Kerala

Buildings (Lease and Rent Control) Act, 1965. The Rent Control

Court as per order dated 22.07.2019 found that the contention

raised by the petitioner herein denying title of respondents 1 to 7 to

the petition schedule building was not bonafide. Challenging the

said order, the petitioner has filed R.C.A.No.18 of 2019 under

Section 18(1)(b) of the Act. The appeal was dismissed as per

judgment dated 19.12.2019. Challenging the said judgment and

order, the petitioner is before this Court with this Revision under

Section 20 of the Act.

2. On 06.06.2020, this Revision was admitted. On

30.03.2021, this Court stayed the proceedings in R.C.P.No.8 of

2015 till 21.05.2021. The order was extended later and is in force.

3. Heard the learned counsel appearing for the petitioner

and also the learned counsel appearing for the respondents Nos.1

R.C.Rev.No.83 of 2020

to 7.

4. Respondents 1 to 7 along with Smt.Ummalimma filed

R.C.P.No.8 of 2015 seeking eviction of the petitioner and her co-

tenants under Section 11(2)(b) and 11(3) of the Act. Their claim

was that the petition schedule building, originally belonged to

Smt.Sulekha Beevi and on her death, it devolved upon her brother

Sri.Abdul Majeed. He also died. Thereby the petition schedule

building devolved upon respondents 1 to 7 and Smt.Ummalimma,

who is now no more.

5. The petitioner alone filed counter statement. She raised

a contention that respondents 1 to 7 did not have title to the

petition schedule building. It is her contention that the petition

schedule building is a Wakf property and therefore respondents 1 to

7 have no right or authority to seek eviction and any such petition

could be filed only before the Wakf Board.

6. In the light of the said contention, the Rent Control

Court considered the plea of denial of title as provided in the

second proviso to Section 11(1) of the Act. PW1 and RW1 were

examined. Exts.A1 to A13, C1 and X1 series were marked. After

hearing both sides, the Rent Control Court held that the plea of the

petitioner denying title of the landlord was without any basis. When

R.C.Rev.No.83 of 2020

the said order was challenged, the Appellate Authority considered

the matter in detail. Evidence on record was re-appreciated in the

light of the contentions raised by either side. The Appellate

Authority concurred with the findings of the Rent Control Court.

Both the authorities below found that in the light of the admission

by the petitioner in the written statement she filed in O.S.No.594 of

2008 of the Munsiff's Court, Chittoor, a copy of which is Ext.X1(b)

and also the findings of the Munsiff's Court in the judgment in that

suit, a copy of which is Ext.A2, the plea of the petitioner has no

legs to stand. Lack of any material to deduce even an assumption

even that the petition schedule building was made a Wakf was also

taken note of.

7. The learned counsel appearing for the petitioner would

submit that the admission made by the petitioner was only to the

extent of admitting the title of Smt.Sulekha Beevi and that does not

mean that respondent Nos 1 to 7 have ever obtained title to the

building. It is urged that absolutely no document to show that

respondent Nos 1 to 7 are the legal representatives of Smt.Sulekha

Beevi has been produced. It is further contended that the oral

testimony of RW1 together with the name of the property,

"Pallikoodam Veedu" probabilised that it is a Wakf property, but

R.C.Rev.No.83 of 2020

both the authorities below went totally wrong in finding that the

denial of title was not bona fide. It is also his stand that the law on

the point was wrongly applied and the burden of proof was

uncharitably cast on the petitioner.

8. Per contra, the learned counsel appearing for the

respondents 1 to 7 would submit that the findings in Ext.A2

judgment in O.S.No.594 of 2008, to which the petitioner and also

other co-tenants are the parties, have become final. It was

specifically held by the Munsiff's Court that the petitioner and other

legal representatives of the original tenant Sri.Hamza are the

tenants and also respondents 1 to 7 are the landlords. It is further

contended that except the assertion that the petition schedule

building and the land appurtenant thereto are Wakf properties,

absolutely no evidence in that respect has been produced and in

the light of the findings in Ext.A2 judgment, the oral testimony of

RW1 cannot be given any importance, especially when the question

is one of title. In the said circumstances the findings of the courts

below are said to be devoid of any infirmity.

9. In this proceedings also, the petitioner admits title of

Smt.Sulekha Beevi to the petition schedule building. Her contention

is that Smt.Sulekha Beevi created a Wakf and therefore

R.C.Rev.No.83 of 2020

respondents 1 to 7 are not entitled to claim any title or right. Two

aspects are involved in it; if a Wakf was created, there must be

record in regard to the same, and in the light of the contention that

she has been holding the property under the Madrassa, that can

only be as a tenant and she is obliged to prove that fact, there

must be documents with the Madrassa including for payment of

rent. No such document is brought on record. So, what remains is

only the oral version of RW1, the petitioner. Oral testimony cannot

be the evidence to prove or disprove title to an immovable

property. Therefore, the evidence let in by the petitioner is totally

insufficient to show even prima facie that title to the petition

schedule building is now vested with the Wakf.

10. In Ext.X1(b) there is unequivocal admission that the

petition schedule building originally belonged to Smt.Sulekha Beevi.

There is also admission that the petitioner and other legal

representatives of Sri.Hamza had been holding the property as

tenants. In Ext.A2 judgment, the learned Munsiff entered a definite

finding that the defendants therein, one among whom is the

petitioner, were holding the property as tenants and the

respondents 1 to 7 herein were the landlords. Of course,

respondents 1 to 7 did not produce any document to show that

R.C.Rev.No.83 of 2020

they are the heirs of Smt.Sulekha Beevi. PW1, the 3 rd respondent

deposed regarding the relationship between respondents 1 to 7

with Smt.Sulekha Beevi. Their definite claim is that on the death of

Smt.Sulekha Beevi, the property devolved upon her brother

Sri.Abdul Majeed and respondents 1 to 7 are his heirs. Of course,

documents to prove such relationships must be available and the

respondents are at fault insofar as the non-production of such

documents is concerned. But in the light of definite findings in

Ext.A2 judgment, non-production of the documents cannot be a

reason to reject their case altogether.

11. The learned counsel appearing for the petitioner invited

our attention to the decision in Mariamma and another v.

Chinnamma John @ Chinnamma and others [2015 (2) KLT

521] and contended that the tenant does not have the burden to

prove lack of title of the landlord as in the case of a civil suit in order

to sustain a plea under the second proviso to Section 11(1) of the

Act. In the said decision, a division Bench of this Court held that,-

"14. Bona fides of denial of title for the purpose of the Rent Act does not, necessarily, mean that the person denying the title has to prove the contrary. A prima facie case of bona fide denial of title should be strong enough to dissuade a summary court from proceeding to further adjudicate on rival issues as to title; thereby meaning, the issues relating to title in whatever form of feature that is projected."

R.C.Rev.No.83 of 2020

12. Going by the said principle also, the tenant is obliged to

show prima facie that the landlord lacks title. In this case, the

admission in Ext.X1(b) and the findings of Ext.A2 judgment, which

has become final, are not explained away by the petitioner. No

material whatsoever has been produced to show that at any point

of time, the petition schedule building was a Wakf property. It was

taking into account all the said facts the courts below concluded

that the plea of the petitioner regarding denial of the title was not a

bona fide one. This Court in exercise of the powers under Section

20 of the Act cannot re-appreciate the evidence and reach an

independent finding unless it is shown that the findings of the