Kerala High Court
Jayanandhan.N vs Sulochana (Died) on 6 June, 2024
Author: Amit Rawal
Bench: Amit Rawal
RCRev.80/21
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 6TH DAY OF JUNE 2024 / 16TH JYAISHTA, 1946
RCREV. NO. 80 OF 2021
AGAINST THE ORDER/JUDGMENT DATED 27.02.2021 IN RCA NO.134 OF
2018 OF ADDITIONAL DISTRICT COURT- V, KOZHIKODE / RENT CONTROL
APPELLATE AUTHORITY ARISING OUT OF THE ORDER/JUDGMENT DATED
31.10.2018 IN RCP NO.65 OF 2011 OF PRINCIPAL MUNSIFF
COURT-II/RENT CONTROL COURT, KOZHIKODE.
REVISION PETITIONER/APPELLANT/4TH RESPONDENT:
JAYANANDHAN.N
AGED 69 YEARS
S/O.SANKARAN, NEDUVIL CHALIL HOUSE, KARANTHUR,
KOZHIKODE DISTRICT.
BY ADVS.
K.M.SATHYANATHA MENON
SMT.KAVERY S THAMPI
RESPONDENTS/RESPONDENTS 1-4/PETITIONER & RESPONDENTS 1-3:
*1 SULOCHANA (DIED)
AGED 78 YEARS, D/O.K.P.CHERIYAKKAN,
KILICHAMPARAMBIL, KUNNAMANGALAM P.O., KOZHIKODE
DISTRICT, PIN-673 570.
*2 A.K.SUJITH, AGED 42 YEARS, S/O.KUMULLAM KUZHIYIL
SUJANAPAL, MANAKKOTH HOUSE, POOVATTUPARAMBA P.O.,
KOZHIKODE DISTRICT, PIN-673 008.
*3 CHITRALEKHA,
AGED 80 YEARS, S/O.KUMULLAM KUZHIYIL SUJANAPAL,
MANAKKOTH HOUSE, POOVATTUPARAMBA P.O., KOZHIKODE
DISTRICT, PIN-673 008.
4 JAYAPRAKASHAN,
AGED 50 YEARS, S/O.SANKARAN, IYYARAMBIL MUKKOM
ROAD, KUNNAMANGALAM P.O., KOZHIKODE DISTRICT, PIN-
673 570.
**5 ADDL.R5.GANGADHARAN, AGED 90 YEARS
H/O K.P. SULOCHANA,RESIDING AT MANNADATH HOUSE,
NADUVATTOM, BAYPORE,KOZHIKODE-673015. REPRESENTED
BY POWER OF ATTORNEY HOLDER SAJEENDRAN K.P. AGED 65
RCRev.80/21
2
YEARS, S/O CHERIYAKKAN ,RESIDING AT ZUWASA,
KUNNAMANGALAM, KOZHIKODE-673571.
**6 ADDL.R6.ANILKUMAR, AGED 60 YEARS
S/O K.P. SULOCHANA,RESIDING AT MANNADATH HOUSE,
NADUVATTOM, BAYPORE,KOZHIKODE-673015, REPRESENTED
BY POWER OF ATTORNEY HOLDER SAJEENDRAN K.P., AGED
65 YEARS, S/O CHERIYAKKAN ,RESIDING AT ZUWASA,
KUNNAMANGALAM,KOZHIKODE-673571.
**7 ADDL.R7.SHINIL, AGED 47 YEARS
S/O K.P. SULOCHANA,RESIDING AT MANNADATH HOUSE,
NADUVATTOM, BAYPORE,KOZHIKODE-673015, REPRESENTED
BY POWER OF ATTORNEY HOLDER SAJEENDRAN K.P. AGED 65
YEARS, S/O CHERIYAKKAN ,RESIDING AT ZUWASA,
KUNNAMANGALAM, KOZHIKODE-673571.
**8 ADDL.R8.PRABITHA, AGED 62 YEARS
D/O K.P. SULOCHANA,RESIDING AT MANNADATH
HOUSE,NADUVATTOM, BAYPORE,KOZHIKODE-673015.
REPRESENTED BY POWER OF ATTORNEY HOLDER SAJEENDRAN
K.P. AGED 65 YEARS, S/O CHERIYAKKAN ,RESIDING AT
ZUWASA, KUNNAMANGALAM,KOZHIKODE-673571.
**9 ADDL.R9.BHAVITHA, AGED 50 YEARS
D/O K.P. SULOCHANA, RESIDING AT MANNADATH
HOUSE,NADUVATTOM, BAYPORE,KOZHIKODE-673015,
REPRESENTED BY POWER OF ATTORNEY HOLDER SAJEENDRAN
K.P. AGED 65 YEARS, S/O CHERIYAKKAN ,RESIDING AT
ZUWASA, KUNNAMANGALAM,KOZHIKODE-673571.
* THE NAMES AND ADDRESSES OF R1 TO R3 ARE CORRECTED AND
SUBSTITUTED AS FOLLOWS:
(1) SULOCHANA K.P. (DIED), AGED 78 YEARS,
D/O.K.P.CHERIYAKKAN, KILICHAM PRAMBIL,
OPPOSITE KUNNAMANGALAM POST OFFICE,
KUNNAMANGALAM (PO), KOZHIKODE, PIN - 673 571.
(2) A.K.SUJITH, AGED 42 YEARS, S/O.LATE K.SUJANAPAL,
NEDUVICHALIL HOUSE, KARANDUR (PO), KANRANDUR DESOM,
KUNNAMANGALAM AMSOM, KOZHIKODE, PIN - 673 571.
(3) CHITRALEKHA, W/O.LATE K.SUJANAPAL, NEDUVICHALIL HOUSE,
KARANDUR (PO), KANRANDUR DESOM, KUNNAMANGALAM AMSOM,
KOZHIKODE, PIN - 673 571.
AS PER ORDER DATED 2.9.2021 IN MEMO DATED 25.8.21 IN RCR
RCRev.80/21
3
NO.80/21.
**(LEGAL HEIRS OF DECEASED R1 ARE IMPLEADED AS ADDITIONAL
RESPONDENTS 5 TO 9 AS PER ORDER DATED 15.11.2022 IN
I.A.NO.2/2022)
BY ADVS.
V.V.SURENDRAN
P.A.HARISH
ANUSREE.C
THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
06.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RCRev.80/21
4
AMIT RAWAL & EASWARAN S., JJ.
------------------------------------
Rent Control Rev.No.80 of 2021
-------------------------------------
Dated this the 6th day of June, 2024
ORDER
Easwaran S., J.
The rent control revision arises from the order of the Rent
Control Appellate Authority in R.C.A No.134/2018 confirming the
order of the Rent Control Court in R.C.P No.65/2011.
2. The revision petitioner is the alleged sub tenant of the
original tenant. The facts, in brief, for disposal of the present
revision are as follows:
The landlord filed an application under Sections 11(2)(b)
and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act,
1965. According to the petitioner/landlord, the residential building
specified in the petition schedule property was entrusted to the 1 st
respondent in the rent control petition on 17.8.2006 orally for a
monthly rent of Rs.800/- (Rupees eight hundred only) and accepting
Rs.5,000/- (Rupees five thousand only) as advance amount. The
entrustment was endorsed in the diary of the landlord's brother on
17.8.2006. However, the 1st respondent in the rent control petition
transferred the possession of the building to the 3 rd respondent (4th
respondent herein) without consent. The 3 rd respondent (4th
respondent herein) did not surrender the vacant possession of the
building. However, the petitioner/landlord was informed that the 4 th
respondent (revision petitioner) had applied for purchase of
kudikidappu right before the Land Tribunal. Hence, an application
under Sections 11(2)(b) and 11(4)(i) of the Kerala Buildings (Lease
and Rent Control) Act, 1965 was filed.
3. Respondents 1 and 2 in the rent control petition were set
ex parte by the Rent Control Court. The 3 rd and 4th respondents in
the rent control petition contested the case. According to
respondents 3 and 4, they were residing in the house since 1957
and that the 4th respondent/revision petitioner had applied for
kudikidappu right as per O.A.No.18/2009 on the file of the Land
Tribunal, Kozhikode. In view of the above contentions, the matter
was referred to the Land Tribunal under Section 125 of the Kerala
Land Reforms Act, 1963 and the Land Tribunal submitted a finding
on 12.4.2017 in RC No.2/2013 on the file of the Land Tribunal,
Kozhikkode, that the 4th respondent is not a kudikidappukaran as
defined under Section 2(25) of the Kerala Land Reforms Act, 1963.
Accordingly, O.A.No.18/2019 was dismissed.
4. On the side of the petitioner/landlord, PW1, her brother,
was examined and Exts.A1 to A5 were marked. The 4 th respondent
was examined as RW1 and Exts.B2 to B5 were marked on his side.
5. The Rent Controller on appreciation of evidence on record
framed the following issues:
"(1) Whether petitioner is entitled to the eviction under
Section 11(2)(b) of the Act?
(2) Whether the petitioner is entitled to the eviction on the
ground of sub lease under Section 11(4)(i) of the Act?
(3) What is the order and costs?"
6. The contention of respondents 3 and 4 therein that they
are having kudikidappu right was rejected, and accordingly, eviction
was ordered under Sections 11(2)(b) and 11(4)(i) of the Kerala
Buildings (Lease and Rent Control) Act, 1965.
7. Aggrieved by the same, the 4th respondent therein filed
RCA No.134/2018 contending that he is not a sub-tenant and that
he is entitled to have fixity of tenure on the basis of his kudikidappu
right in terms of the provisions contained under the Kerala Land
Reforms Act, 1963.
8. On an analysis of the pleadings on record, the appellate
authority found that none of the documents would help the case of
the 4th respondent to substantiate the claim of entrustment of the
property by the landlord or her father as alleged by him. The claim
of kudikidappu was also rejected by the appellate authority and,
accordingly, it was found that the 4th respondent (revision petitioner)
being a sub tenant was not entitled to maintain the appeal. It is
impugning these concurrent findings of facts both by the Rent
Control Court as well as by the appellate authority, the appellant/4th
respondent/sub-tenant has come up in this revision petition. During
the pendency of this revision petition, the 1 st respondent/landlord
died and her legal heirs are impleaded as additional respondents 5
to 9 in the revision petition.
9. We have heard Sri.K.M.Sathyanatha Menon, learned
counsel appearing for the revision petitioner/appellant and
Sri.V.V.Surendran, learned counsel appearing for additional
respondents/landlord.
10. Sri.Sathyanatha Menon, learned counsel appearing for
the revision petitioner, would contend that his client had
independently filed an application under Section 80B of the Kerala
Land Reforms Act, 1963 for conferring him the right of
kudikidappukaran, and though the same was dismissed, is pending
before the appellate authority. He would also further invite attention
of this Court to the order passed on 13.1.2023, wherein the learned
Government Pleader was directed to ascertain the status of the
appeal filed before the appellate authority constituted under the
provisions of the Kerala Land Reforms Act, 1963. Therefore, it is
contended that unless and until the said appeal is disposed of, the
revision petition cannot be considered by this Court.
11. On the other hand, Sri.V.V.Surendran, learned counsel
appearing for the additional respondents/landlord would contend
that the act of the sub tenant in moving an independent application
under Section 80 of the Kerala Land Reforms Act, 1963 cannot be
appreciated. According to the learned counsel, when a reference is
made by the civil court or the rent controller under Section 125(3) of
the Kerala Land Reforms Act, 1963 and in such reference the claim
is found against the same is required to be accepted. It is further
pointed out that for claiming a benefit under Section 80B, the
persons' entitlement has to be found in accordance with procedure
prescribed under Section 80. Then only an application under Section
80 of the Kerala Land Reforms Act could be maintained. He placed
reliance on the judgment of the Hon'ble Supreme Court in Madhavi
Amma & Others v. S.Prasannakumari & Others [(2013) 4 SCC
77]. He further pointed out that even assuming that independently
an application under Section 80B of the Kerala Land Reforms Act,
1963 was found to be maintainable, even then, the appeal which is
stated to have been filed as AA /58/17 was dismissed on 7.11.2023.
12. We have considered the rival submissions raised across
the bar.
13. On an analysis of the findings recorded by the Rent
Controller as well as by the Appellate Authority and also on perusal
of the evidence on record, we are of the definite view that the orders
passed by the authorities concurrently finding that the revision
petitioner is a sub tenant, do not call for any interference in exercise
of the revisional jurisdiction under Section 20 of the Kerala Buildings
(Lease and Rent Control) Act, 1965.
14. The scope of revisional power under Section 20 is now
well settled. In a revision under Section 20, the High Court cannot
re-appreciate the evidence on record and arrive at a different
conclusion altogether. Unless the evidence on record is perverse or
the findings are rendered on the basis of no evidence at all, then
only in exceptional circumstances, the High Court can exercise its
revisional jurisdiction under Section 20 of the Kerala Buildings
(Lease and Rent Control) Act, 1965. Therefore, we have no
hesitation to reject the contention raised by the learned counsel for
the revision petitioner/appellant/4th respondent that the revision
petitioner was not a sub tenant and therefore, the eviction under
Sections 11(2)(b) and 11(4)(i) of the Kerala Buildings (Lease and
Rent Control) Act, 1965 could not have been passed by the Rent
Controller.
15. Now, going to the question as to whether the revision
petitioner/4th respondent can claim the right of kudikidappukaran in
terms of the provisions contained under the Kerala Land Reforms
Act, 1963, it has to be noted that the application of the revision
petitioner under Section 80B of the Kerala Land Reforms Act was not
in pursuance to the order passed on reference under Section 125(3)
of the Kerala Land Reforms Act.
16. On a contrary, the revision petitioner had approached the
Land Tribunal by way of an independent application under Section
80B of the Kerala Land Reforms Act, 1963, despite the finding
against him in a reference under Section 125(3). It is based on this
finding that the Rent Controller proceeded to allow the Rent Control
Petition and order eviction under Section 11(2)(b) read with Section
11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965.
Still further, the appeal which is now stated to have been filed as
AA/58/17 also is dismissed by order dated 7.11.2023 as stated by
the learned counsel appearing for the landlord.
Therefore, on an analysis of the materials on record, we are of
the view that the revision petitioner had not made out a case for
interference in exercise of the revisional jurisdiction under Section
20 of the Kerala Buildings (Lease and Rent Control) Act, 1965.
There is no jurisdictional error in the orders passed by the court
below warranting interference in exercise of revisional powers under
Section 20 of the Act and accordingly, the revision petition fails and
the same is accordingly dismissed. No order as to costs.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
EASWARAN S.
JUDGE
jg
