Kerala High Court

Kizhakkayil Hamza Haji vs Puthiyaparambath Ammed Haji on 4 April, 2024

Author: Anil K.Narendran

Bench: Anil K.Narendran

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

         THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

                              &

             THE HONOURABLE MR. JUSTICE G.GIRISH

  THURSDAY, THE 4TH DAY OF APRIL 2024 / 15TH CHAITHRA, 1946

                    RCREV. NO. 263 OF 2023

AGAINST THE JUDGMENT DATED 29.07.2023 IN RCA NO.1 OF 2023 OF
DISTRICT COURT & SESIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL,
KALPETTA ARISING OUT OF THE ORDER DATED 15.11.2022 IN RCP NO.21
OF 2019 OF RENT CONTROL COURT, KALPETTA

REVISION PETITIONER/APPELLANT/RESPONDENT:
        KIZHAKKAYIL HAMZA HAJI
        AGED 60 YEARS
        S/O.ANDRU HAJI, KIZHAKKAYIL HOUSE, KANIYAMBETTA
        VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT., PIN - 673122


        BY ADVS.
        RAJESH VIJAYAN
        SIKHA S.NAIR


RESPONDENTS/RESPONDENTS/PETITIONERS:
  1     PUTHIYAPARAMBATH AMMED HAJI
        AGED 56 YEARS
        S/O.POKKER, THUNERI AMSOM, MUDAVANTHERI DESOM, VADAKARA
        TALUK, KOZHIKODE., PIN - 673505


  2     CHECHAKANDY RABIYATH
        AGED 45 YEARS
        S/O.ABDULLA, CHECHAKANDY HOUSE, EDACHERI AMSOM & DESOM,
        VADAKARA TALUK, KOZHIKODE., PIN - 673502


  3     PERUVANKUNNINTAVIDA POKKER
        AGED 51 YEARS
        S/O.MAMMU, PERUVAMKANDY HOUSE, IYYANGODE AMSOM AND
        DESOM, VADAKARA, KOZHIKODE., PIN - 673504
                                   2
R.C.(Rev) No. 263 of 2023

   4        PERUVANKUNNINTAVIDA MAMI
            AGED 65 YEARS
            W/O.KUNJABDULLA HAJI, PERUVANKUNNINTAVIDA HOUSE,
            IYYANGODE AMSOM AND DESOM, VADAKARA, KOZHIKODE., PIN -
            673504


   5        PERUVANKUNNINTAVIDA RABIYA
            W/O.AZEEZ, PERUVANKUNNINTAVIDA HOUSE, IYYANGODE AMSOM
            AND DESOM, VADAKARA, KOZHIKODE., PIN - 673504


   6        NADUVILATH KUNJABDULLA HAJI
            S/O.SOOPY HAJI, NADUVILATH HOUSE, KUMMANCODE AMSOM AND
            DESOM, VADAKARA TALUK, KOZHIKODE., PIN - 673504


   7        NADUVILATH ALEEMA
            W/O.KUNJABDULLA HAJI, NADUVILATH HOUSE, KUMMANCODE
            AMSOM AND DESOM, VADAKARA TALUK, KOZHIKODE., PIN -
            673504


            BY ADVS.
            Arun Kumar P
            BALAGOPALAN P.(K/89/1988)
            ZUBAIR PULIKKOOL(K/1214/1995)


     THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION
ON 29.02.2024, THE COURT ON 04.04.2024 DELIVERED THE FOLLOWING:
                                        3
R.C.(Rev) No. 263 of 2023

                                  ORDER

G. Girish, J.

The tenant is the revision petitioner. He challenged the

maintainability of R.C.P.No.21 of 2019 of the Rent Control Court,

Kalpetta, and denied the title of the landlord, on the basis of a

contention that his wife has got right over a fractional share of the

leasehold premises. The challenge in the above regard was repelled

by the Rent Control Court and Appellate Authority. It is thus that

the petitioner is here before this Court with this revision petition.

2. The respondents-landlords sought eviction of the

petitioner-tenant from the petition schedule building consisting of 22

rooms on the ground of arrears of rent and bona fide need for own

occupation envisaged under Sections 11(2)(b) and 11(3) of the

Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the

Act'). The rental arrangement is said to have commenced on the

basis of a rent kaichit executed by the tenant in favour of the

landlords on 28.06.2017. The landlords alleged that the tenant

committed default in the payment of rent from 01.01.2019 onwards.

They also stated that the petition schedule building, in its entirety,

is required for them for the purpose of commencement of

supermarket business. The tenant resisted the rent control

proceedings mainly on the ground of maintainability. According to

the tenant, his wife, at first, assigned 10 rooms in the ground floor

of the petition schedule building to the respondents-landlords. The

remaining 12 rooms in the ground floor and the entire first and

second floors are claimed to have been constructed by the

petitioner-tenant and his wife. Thereafter, the petitioner's wife is

said to have assigned 6.25 shares each in that building to the

respondents 1 and 6 respectively. Thus the petitioner would contend

that his wife is having 87.5% share in the 12 rooms forming part of

the petition schedule building. The tenant stoutly denied the

execution of rent deed on 28.06.2017 as claimed by the landlords.

On the basis of the above challenge raised by the petitioner-tenant,

the Rent Control Court considered the preliminary point of denial of

title of the landlords and passed the impugned order against the

tenant on 15.11.2022. The Appellate Authority, in R.C.A.No.1 of

2023 filed by the tenant, confirmed the finding of the Rent Control

Court in the above regard and dismissed the appeal. Challenging the

above concurrent findings of the Rent Control Court and the

Appellate Authority in the matter of maintainability of this rent

control proceedings, and the sustainability of the plea of denial of

title of the landlord, the tenant has filed this revision under Section

20 of the Act.

3. Heard the learned counsel for the revision petitioner and

the learned counsel for the respondents.

4. The point to be decided is whether the concurrent

findings of the Rent Control Court and the Appellate Authority on the

plea of denial of title of the landlord, and the matter of

maintainability of this rent control proceedings, are liable to be

interfered in this revision.

5. The rent kachit relied on by the respondents-landlords,

the copy of which was marked as Ext.A1 before the Rent Control

Court, was said to have been impounded and sent to the District

Collector, due to deficiency of payment of stamp duty. For the above

reason, the Rent Control Appellate Authority has refrained from

relying on Ext.A1 document relating to the rental arrangement

between the landlords and tenant. However, it could be seen from

the records that the Rent Control Court as well as the Appellate

Authority have placed reliance upon the other evidence adduced by

the landlords before the Rent Control Court through the documents

marked as Exts.A2 to A13, and arrived at a finding regarding the

rental arrangement between the petitioner and respondents.

6. Coming to the issue regarding the denial of title of the

landlords over the petition schedule building, it has to be stated that

the actual challenge raised by the tenant is not one denying the title

of the landlord, but a claim that his wife is also having right of

ownership over a fractional share of the petition schedule building.

While admitting the right of ownership of the landlords, over 10

rooms in the ground floor and 12.5% share over the remaining

rooms, the tenant would contend that his wife has got right of

ownership over the 87.5% share of the 12 rooms which form part of

the ground floor, first floor and the second floor. On the basis of the

above contention, the petitioner-tenant would dispute the landlord-

tenant relationship between the respondents and the petitioner.

7. The challenge of the petitioner-tenant in the above regard

has been rightly repelled by the Rent Control Court and the Appellate

Authority on the basis of the documents brought on record by the

landlords before the Rent Control Court. Among the above

documents, Ext.A2 is the copy of a sale deed dated 29.10.2008, as

per which nine shop rooms forming part of the petition schedule

building and one-half share of right of ownership over the remaining

portion of the building and appurtenant land, has been transferred

by petitioner's wife to respondents 2, 3 and two others. Thereafter,

on 08.07.2009, the petitioner's wife executed a sale deed

transferring her ¼ share out of the one-half share retained over the

petition schedule building and appurtenant land to respondents 6

and 7. The copy of the above sale deed is seen marked before the

Rent Control Court as Ext.A3. Subsequently, on 25.11.2009, the

petitioner's wife is seen to have executed a sale deed in favour of

respondents 4 and 5, as per which ½ share out of the ¼ share

retained by her (1/8 share in total) in the petition schedule building,

has been transferred to the aforesaid respondents. The copy of the

above sale deed has been marked as Ext.A4 before the Rent Control

Court. Out of the remaining 1/8 share (12.5%), which the

petitioner's wife held over the petition schedule building and

appurtenant land, she transferred 1/16 share (6.25%) to the 1st

respondent by virtue of the sale deed dated 18.03.2017, the copy of

which is marked as Ext.A5 before the Rent Control Court. Thus, after

the execution of Exts.A2 to A5 sale deeds, the right which remained

for the petitioner's wife over the petition schedule building and

appurtenant land was only 1/16 share (6.25%). However, it could

be seen that the above right of the petitioner's wife over 6.25%

share of the building portion and appurtenant land was sold to the

6th respondent by virtue of a sale deed dated 17.03.2017, the copy

of which was marked before the Rent Control Court as Ext.A6. Thus,

it is apparent from the recitals in the above documents marked as

Exts.A2 to A6 that the contention of the petitioner-tenant about the

right of ownership of his wife over 87.5% share of 12 rooms forming

part of the ground floor, first floor and second floor of the petition

schedule building, is devoid of merit. The trial court and the

Appellate Authority are seen to have rightly appreciated the

evidence in the above regard and rejected the claim of the

petitioner-tenant about the right of ownership of his wife over a

fractional share of the petition schedule building and appurtenant

land.

8. As regards the standard of proof required in the

adjudication of the bona fides of challenge of the tenant against the

title of the landlord, it is well-settled that what the Rent Control Court

is expected to look into is whether the materials brought on record

would be prima facie indicative of the success of the tenant in a civil

suit duly instituted before the competent court on the basis of such

a plea.

9. The scope of enquiry that is contemplated under Section

11(1) of the Act has been dealt with elaborately in the Division Bench

decision of this Court in Retheesh Chandran A. R. v. Sarojini

Amma [ILR 2011(1) Ker 193]. It has been held in the aforesaid

decision that the chances of success of the tenant in a civil suit is

one of the tests for determining whether the plea of the tenant was

bona fide or merely intended to protract the matters. Paragraph 17

of the aforesaid decision which elucidates the scope of enquiry under

Section 11(1) of the Act and the mode of proof required to prima

facie establish the denial of landlord's title, is extracted hereunder:

"17. Apart from the above, the nature of the enquiry that is stipulated by the second proviso to Section 11(1) of the Act requires the Rent Control Court to enter a definite finding as to whether the denial of title of the landlord by the tenant was bona fide or not. The scope of the enquiry that is contemplated has been considered by this Court in various decisions. It has been held that the chances of success of the tenant in a civil suit is one of the tests for determining whether the plea of the tenant was bona fide or merely intended to protract matters. In Aboobacker v. Girija [1995 (1) KLT 553], Dhinakar, J. speaking for a Division Bench of this Court has summarised the position in the following passage:

"5. In Joseph v. Thomas, [1987 (2) KLT 1029] a Single Judge of this Court while dealing with proviso to Section 11(1) held as follows:

"The enquiry conducted by the Rent Control Court is expected to be only in a summary manner. It is for the said reason 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. A bare statement denying the title is not sufficient to attract the proviso. As per the said proviso, power is given to the Rent Control Court to decide about its own jurisdiction when a tenant denies landlord's title. Such power can be discerned from the words "the Rent Control

Court shall decide whether the denial or claim is bona fide." Thus, Rent Control Court has jurisdiction to decide whether the denial of title is bona fide. Further exercise of Rent Control Court's jurisdiction depends upon the result of the exercise of its initial jurisdiction. "Bona fide" (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 "bona fide when used in relation to jurisdictional permutations, has a 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 bona fide, 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 atleast 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 bona fide."

We too are of the view that the Court whose jurisdiction stands ousted must have the satisfaction that there are strong or atleast substantial grounds or sufficient materials in support of the plea of the petitioner and the chances of the plea being upheld by the Civil Court must be fairly on the higher side. In this case we see no such substantial grounds or sufficient materials in support of the plea of the petitioner." (emphasis supplied)

10. In the case on hand, notwithstanding the serious

challenge raised by the tenant against the maintainability of the rent

control proceedings, and the title of the landlords, there is absolutely

no evidence adduced by the tenant before the Rent Control Court in

support of the above plea. On the other hand, the evidence adduced

by the respondents-landlords through Exts.A2 to A6 would dispel the

contention of the tenant regarding the right of his wife over fractional

share of the petition schedule building. When viewed in the above

perspective, it can only be held that the challenge raised by the

tenant in the above regard is totally baseless.

11. Having regard to the discussions aforesaid, the

conclusion is irresistible that there is absolutely no scope for any