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Jayan Pisharody vs T.S.Rajagopalan on 14 February, 2019

‘CR’
IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE P.UBAID

THURSDAY, THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940

RCRev..No.215 of 2016

JUDGMENT IN RCA 29/2013 of ADDL.RENT CONTROL APPELLATE
AUTHORITY-I, THIRUVANANTHAPURAM DATED 12-04-2016

ORDER IN RCP 38/2012 of RENT CONTROL COURT, THIRUVANANTHAPURAM
DATED 30-08-2013
—————-

REVISION PETITIONERS/APPELLANTS/COUNTER-PETITIONERS :-

1 JAYAN PISHARODY, S/O.R.V.PISHARODY,
TC 26/1983, SPENCER GARDENS, STATUE,
THIRUVANANTHAPURAM – 695 001.

2 HARI PISHARODY, S/O.R.V.PISHARODY,
TC 26/1983, SPENCER GARDENS, STATUE,
THIRUVANANTHAPURAM – 695 001.

BY ADVS.SRI.TOM K.THOMAS
SRI.T.KRISHNANUNNI (SR.)

RESPONDENT/RESPONDENT/PETITIONER :-

T.S.RAJAGOPALAN,
DESCRIBED IN THE RCP AS SON OF SUBBALEKSHMI AMMAL,
TC 27/1445, MADURA BHAVAN, PULIMOOD,
THIRUVANANTHAPURAM – 695 001.

BY ADV. SRI.G.S.REGHUNATH

THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
13.11.2018, ALONG WITH RCRev..210/2016, THE COURT ON 14.2.2019
PASSED THE FOLLOWING:

RCRev..Nos.210/2016
215/2016
-: 2 :-

‘CR’

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE P.UBAID

THURSDAY, THE 14TH DAY OF FEBRUARY 2019 / 25TH MAGHA, 1940

RCRev..No.210 of 2016

JUDGMENT IN RCA 32/2013 of ADDL.RENT CONTROL APPELLATE
AUTHORITY-I, THIRUVANANTHAPURAM DATED 12-04-2016

ORDER IN RCP 38/2012 of RENT CONTROL COURT, THIRUVANANTHAPURAM
DATED 30-08-2013

————–

REVISION PETITIONER/RESPONDENTS/COUNTER PETITIONERS :-

1 JAYAN PISHARODY, SON OF R.V.PISHARODY,
TC 26/1983, SPENCER GARDENS, STATUE,
THIRUVANANTHAPURAM – 695 001.

2 HARI PISHARODY, SON OF R.V.PISHARODY,
TC 26/1983, SPENCER GARDENS, STATUE,
THIRUVANANTHAPURAM – 695 001.

BY ADVS.SRI.TOM K.THOMAS
SRI.T.KRISHNANUNNI (SR.)

RESPONDENT/APPELLANT/PETITIONER :-

T.S. RAJAGOPALAN
DESCRIBED IN THE RCP AS SON OF SUBBALEKSHMI AMMAL,
TC 27/1445, MADURA BHAVAN, PULIMOOD,
THIRUVANANTHAPURAM – 695 001.

BY ADV. SRI.G.S.REGHUNATH

THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON
13.11.2018, ALONG WITH RCRev..215/2016, THE COURT ON 14.2.2019
PASSED THE FOLLOWING:

RCRev..Nos.210/2016
215/2016
-: 3 :-

‘CR’

COMMON ORDER

In view of the divergent findings of the two

learned Judges of a Division Bench in these two

revision petitions brought under Section 20 of the

Kerala Building (Lease Rent Control) Act, 1965

(hereinafter referred to as ‘the Act’ for short), the

matter was referred to me for opinion and decision.

2. The revision petitioners in these two

revisions are the tenants, and the common respondent

in these revision petitions is the landlord. The

revision petitioners are the legal heirs of the

original tenant R.V.Pisharadi, and the landlord

claims right under the original owner (landlady)

Subhalekshmi Ammal as her adopted son. The landlord

filed R.C.P.No.38/2012 before the Rent Control Court,

Thiruvananthapuram (the Additional Munsiff Court for

the trial of cases under the Act) claiming eviction

under Sections 11(2)(b) and 11(3) of the Act. His

case is that, the petition schedule building was let

out to the original tenant R.V.Pisharadi by the
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-: 4 :-

original owner Subhalekshmi Ammal years back on a

monthly rent of `3,000/-, and the petitioner used to

collect rent from the said R.V.Pisharadi, and after

his death from the legal heirs, for and on behalf of

his mother Subhalekshmi Ammal, and even after the

death of Subhalekshmi Ammal in February, 2004, he

continued to collect rent from the tenants. His

petition alleges that the tenants have kept the rent

in arrear since January, 2006, and in spite of

statutory notice, the tenants did not care to make

payment of the rent, or to vacate the building. The

further case of the petitioner is that the house

building, wherein, he now resides is more than a

century old, that it is in a dilapidated condition,

that it is unsafe to continue therein any more, and

that the petitioner wants to shift to the petition

schedule building. Thus, he made a claim for

eviction in the trial court under Sections 11(2)(b)

and 11(3) of the Act.

3. The tenants entered appearance in the trial

court, and resisted the claim for eviction on the
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-: 5 :-

contention that there has not been any landlord-

tenant relationship either between their predecessor

R.V.Pisharadi and deceased Subhalekshmi Ammal, or

between them and the present petitioner, who claims

eviction. Their case is that their predecessor

R.V.Pisharadi was in fact permitted to occupy the

petition schedule building by the owner Subbalekshmi

Ammal on a consideration of the friendship and

relationship between them, and accordingly, their

predecessor R.V.Pisharadi made some repairs and

modifications of his own, and started residing there

with his family. After his death, they have also

been continuing there without any objection or

obstruction from anybody. Thus, they contended that

as there is no landlord-tenant relationship, or that

the building was never entrusted on rent, they are

not liable to pay rent, and so, they are not liable

for eviction under Section 11(2)(b) of the Act. As

regards the claim of the petitioner under Section

11(3) of the Act, their contention is that, the bona

fide need raised by the petitioner is only a ruse for
RCRev..Nos.210/2016
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-: 6 :-

eviction, that the house building now being occupied

by him is safe and sufficient, and that he has no

necessity at all to shift to any other building. If

at all he wants to shift his residence, he has

another building in his possession. Even while

resisting the claim for eviction on factual aspects,

the tenants raised an important contention that the

petitioner has no right to claim eviction as the

landlord because, he has no title over the petition

schedule building, he has no right to claim under

the original owner Subhalekshmi Ammal, and that he

has nothing to do with the petition schedule building

either as the owner of the building, or as landlord.

Thus, the tenants disputed the title of the landlord

to claim eviction.

4. The trial court formulated the points for

decision, and proceeded for trial. Instead of

deciding the issue of denial of title made by the

respondents as a preliminary issue, the Rent Control

Court straight away proceeded to record evidence, and

ventured to decide the issue of denial of title on
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-: 7 :-

merits as part of the full fledged trial. Both the

parties adduced oral and documentary evidence in the

trial court. Though the landlord did not

specifically explain his right to claim eviction in

the petition filed by him or even in the affidavit

filed by him in lieu of examination in chief, he

divulged the real fact that he claims as an adopted

son of the original owner Subhalekshmi Ammal, only

when his right and status was disputed during cross

examination by the learned counsel for the tenants.

When asked whether he has anything to prove his title

as the adopted son of the original owner Subhalekshmi

Ammal, he answered that he has a deed of adoption in

his possession. However, it was not produced at the

right stage. He produced it in the trial court at

the late stage. It appears that it was not allowed

to be proved. However, strangely it was considered

and discussed by the trial court for taking decision.

On an appreciation of the evidence adduced by both

sides, the trial court found on the the plea of

denial of title, that it is not bona fide, and on
RCRev..Nos.210/2016
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-: 8 :-

facts, the trial court found partly in favour of the

landlord, and partly in favour of the tenants. The

finding of the trial court is that, the respondents

(tenants) have kept the rent in arrear as alleged in

the petition, they have not discharged the rent

despite statutory notice, and so, they are liable for

eviction under Section 11(2)(b) of the Act. As

regards the bona fide need alleged by the landlord,

the trial court found against him. Thus, the trial

court allowed the rent control petition in part,

disallowing the prayer for eviction under Section

11(3) of the Act, but allowing eviction under Section

11(2)(b) of the Act.

5. Aggrieved by the order disallowing eviction

under Section 11(3) of the Act, the landlord filed

appeal before the appellate authority (District

Court, Thiruvananthapuram) as R.C.A. No.32/2013.

Aggrieved by the order of eviction under Section

11(2)(b) of the Act, the tenants filed appeal as

R.C.A. No.29/2013. The two appeals were heard and

decided by the Appellate Authority (learned 1st
RCRev..Nos.210/2016
215/2016
-: 9 :-

Additional District Judge, Thiruvananthapuram) by a

common judgment dated 12.4.2016. On a re-

appreciation of the entire materials, the Appellate

Authority found that the order of eviction under

Section 11(2)(b) of the Act is liable to be

confirmed, and that the landlord is entitled to get

an order of eviction under Section 11(3) of the Act

also. Accordingly, the Appellate Authority allowed

R.C.A.No.32/2013 directing the tenants to vacate the

petition schedule building under Section 11(3) of the

Act, and dismissed R.C.A.No.29/2013 confirming the

order of eviction passed by the trial court under

Section 11(2)(b) of the Act. Aggrieved by the two

orders, the tenants have come up in revision before

this Court. The landlord and the tenants are being

referred to as the petitioner and the respondents,

respectively, in these proceedings.

6. One of the learned Judges of the Division

Bench found fully in favour of the landlord, and on

the issue regarding denial of title, the learned

Judge found that the denial made by the tenants is
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-: 10 :-

not bona fide at all. On the other hand, the other

learned Judge of the Division Bench found fully in

favour of the tenants on the issue of denial of

title, that the denial is quite bona fide, and that

the petitioner’s legal right to claim eviction as the

adopted son of the original owner is a matter to be

decided by the civil court. In view of the two

dissenting judgments, the matter was referred to me

for opinion as a third Judge, by the Hon’ble Chief

Justice.

7. Much was argued by both sides on the factual

aspects, and also on the issue of denial of title

made by the tenants. As regards the claim under

Section 11(2)(b) of the Act, there is concurrent

finding of the trial court and the appellate court,

whereas, under Section 11(3) of the Act, the

findings of the trial court and the appellate court

are divergent. Before proceeding to decide the main

issue, let me see what is the scope of the revisional

power of the High Court under Section 20 of the Act.

In a batch of petitions involving the scope of
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revisional jurisdiction of the High Court under some

rent control legislations including the Act of

Kerala, a constitution Bench of the Hon’ble Supreme

Court held in Hindustan Petroleum Corporation Ltd. v.

Dilbahar Singh [2014 (4) KLT 182 (SC)] that generally

the scope of the powers of the High Court in revision

is only to examine, and find out whether the findings

of the authorities below are in accordance with the

law, or whether the findings suffer from any

illegality or error of law. The Hon’ble Supreme

Court explained that the findings on facts made by

the Rent Control Court, and the appellate authority

will be subject to scrutiny and examination by the

High Court in revision only in cases, where such

findings are arrived at without consideration of the

material evidence, or when the court has misread the

material evidence, or has committed some gross

illegality resulting in prejudice and miscarriage of

justice to any of the parties. The Hon’ble Supreme

Court held that the revisional power of the High

Court is not as wide as appellate power in exercise
RCRev..Nos.210/2016
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-: 12 :-

of which the appellate authority can reappraise or

reassess the evidence, or come to a different or

contrary finding, reversing the finding of the trial

court. Keeping in mind the limits and limitations in

the matter of revisional jurisdiction, let me go to

the material aspects involved in this case.

8. On hearing both sides, and on a perusal of

the entire materials, I find that there is no scope

for a re-evaluation or re-assessment of the factual

aspects of the claims made under Sections 11(2)(b) or

11(3) of the Act. Though the trial court disallowed

eviction under Section 11(3) of the Act, the

Appellate Authority granted eviction on the ground of

bona fide need. The said claim is not seen seriously

challenged by the tenants, except by raising a

contention that the petitioner has another building

in his possession. Under Section 11(2)(b) of the

Act, the findings are concurrent, and so, much

discussion need not be made on that issue. However,

I will examine whether there is anything erroneous or

contrary to law in the findings on facts made by the
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-: 13 :-

courts below as regards the two grounds of eviction.

Before that, let me decide whether the denial of

title made by the tenants is bona fide.

9. Of course, it is true that the trial court

committed an error, that instead of deciding the

question of denial of title as to whether it is bona

fide or not, as a preliminary point before proceeding

for trial, the Rent Control Court found it not

necessary, and ventured to take decision on the issue

on merits after a full trial. It is quite

unfortunate that neither the landlord nor the tenants

requested the trial court to decide the said issue as

a preliminary issue before proceeding to record

evidence on facts. Any way, on a consideration of

the various aspects, the trial court found that the

denial of title made by the tenants is not bona fide.

This is confirmed by the appellate authority.

10. It is an admitted fact that the petition

schedule building originally belonged to one

Subhalekshmi Ammal, and the case of the landlord is

that the building was let out to one R.V.Pisharadi
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-: 14 :-

years back on a monthly rent of `3,000/-. The present

tenants are the legal heirs of R.V.Pisharadi. Though

not revealed or exposed in the petition explicitly as

to how the petitioner would claim eviction as

landlord, he divulged his right and status at a late

stage, that his claim is as the adopted son of

Subhalekshmi Ammal. Though the deed of adoption on

which he relies was not produced in court at the

right stage, the petitioner produced the deed at a

belated stage, but it was not admitted in evidence.

However, the petitioner gave evidence on the issue

of adoption, and he also referred to the deed of

adoption produced by him. In appeal, this deed of

adoption in original was marked as Ext.A11. The

judgment of the appellate authority shows that the

marking of this document was not seriously opposed by

the tenants, or that the appellate authority admitted

this document in evidence, in view of the fact that

the petitioner has adduced evidence in the trial

court on this aspect, and the respondents have also

cross examined him thoroughly on this aspect.
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11. It was submitted by the learned Senior

Counsel for the revision petitioners that no value

can be attached to Ext.A11 deed of adoption in view

of Section 16 of the Hindu Adoptions and Maintenance

Act, 1956. This provision contains a presumption in

favour of adoption in a case where the deed of

adoption is registered under the law, and it is

signed by the person giving and the person taking a

child in adoption. Of course, it is true that

Ext.A11 does not fully satisfy the requirements of

Section 16, and so, the petitioner cannot avail the

benefit of the presumption under Section 16 of the

Hindu Adoptions and Maintenance Act. Even when the

document cannot claim the benefit of presumption

under Section 16, a person, who claims title on the

basis of adoption can very well prove the fact of

adoption otherwise. The requirements of a valid

adoption are prescribed under Section 6 of the Hindu

Adoptions and Maintenance Act. If those requirements

are proved, or if the fact of adoption is proved by

satisfactory evidence, including the observance of
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the necessary rituals and ceremonies, the court can

accept the case of adoption, whether the deed of

adoption will get the protection of presumption under

Section 16 of the Hindu Adoptions and Maintenance Act

or not. Any way, that is not the issue here.

Whether the Ext.A11 deed of adoption is legally valid

or not cannot be considered and decided in these

proceedings. That is an issue to be decided by the

competent civil court when the title of the landlord

is challenged by anybody before the competent civil

court. The issue here is not whether the petitioner

is the adopted son of Subbalekshmi Ammal, but whether

he can claim eviction under the law as a landlord.

The status as owner of the building is different from

the status claimed as a “landlord” under the

provisions of the Act.

12. Section 11(1) of the Act provides that,

“notwithstanding anything to the contrary
contained in any other law or contract a tenant
shall not be evicted, whether in execution of a
decree or otherwise, except in accordance with the
provisions of this Act”.

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The 2nd proviso to Section 11(1) of the Act provides

as follows :

“provided further that where the tenant denies the
title of the landlord or claims right of permanent
tenancy, the Rent Control Court shall decide
whether the denial or claim is bona fide, and if
it records a finding to that effect, the landlord
shall be entitled to sue for eviction of the
tenant in a Civil Court, and such Court may pass a
decree for eviction on any of the grounds
mentioned in this section, notwithstanding that
the Court finds that such denial does not involve
forfeiture of the lease or that the claim is
unfounded.”

13. The law under the 2nd proviso to Section 11(1)

of the Act is quite clear that when the tenant in a

proceeding for eviction brought under Section 11 of

the Act has raised a plea denying the title of the

landlord, the Rent Control Court cannot proceed to

decide the claim on merits before deciding whether

the denial of title made by the tenant is bona fide.

In a proceeding for eviction under Section 11 of the

Act, the petitioner can claim eviction either as the

owner of the building, or as an agent, or legal

representative of the owner, or as the person
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entitled to receive rent from the tenant. When the

matter comes to the right to claim eviction, the

question is whether the person, who claims eviction

would satisfy the definition of landlord under

Section 2(3) of the Act. The definition of landlord

under Section 2(3) of the Act is as follows :

“landlord includes the person who is receiving or
is entitled to receive the rent of a building,
whether on his own account or on behalf of another
or on behalf of himself and others or as an agent,
trustee, executor, administrator, receiver or
guardian or who would so receive the rent or be
entitled to receive the rent, if the building were
let to a tenant.”

Thus, we have a very wide definition of landlord in

our Rent Control Act. Even a person other than the

true owner of a building can claim eviction, if he

satisfies the definition of landlord under any of the

categories mentioned in Section 2(3) of the Act. The

definition under Section 2 begins with the words

“unless the context otherwise requires”.

14. The learned Senior Counsel for the revision

petitioners submitted that the term, ‘landlord’

cannot be interpreted in all cases as meant under
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Section 2(3) of the Act because if the context

requires otherwise, or if the court finds the

necessity of an interpretation otherwise, a person

who can merely claim eviction as ‘landlord’ as

defined under the law cannot claim eviction under

Section 11(3) of the Act. He submitted that in a

case where the interpretation of the term ‘landlord’

requires that the landlord must be the owner of the

building, only the actual owner can claim eviction

under Section 11(3) of the Act. The learned counsel

cited two decisions of the Hon’ble Supreme Court on

this point. One is a 1981 decision in M.M.Quasim v.

Manohar Lal Sharma ors. [AIR 1981 SC 1113], and the

other is a 2015 decision in Dr.Ambica Prasad v.

Mohammad Aslam another [AIR 2015 SC 2459]. The

dictum laid down in M.M.Quasim’s case was followed

later in Dr.Ambica Prasad’s case also. In

M.M.Quasim’s case, the Supreme Court considered the

scope of the definition of ‘landlord’ under the Bihar

Building (Lease, Rent and Eviction) Control Act, 1947

(Bihar Act), and in Dr.Ambica Prasad’s case, the
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Hon’ble Supreme Court considered the definition of

‘landlord’ under the Assam Urban Areas Rent Control

Act, 1972 (Assam Act). The definition of ‘landlord’

under our Act is somewhat in pari meteria with the

definition of ‘landlord’ in the Bihar Act and the

Assam Act. In the above decisions, the Hon’ble

Supreme Court held that on a right interpretation the

term ‘landlord’ in the given context must mean the

‘owner of the building’. In those cases, the claim

for eviction was made by the petitioner on the ground

of bona fide need. The question is whether the

dictum laid down in those decisions can be applied to

the facts of this case.

15. On the other hand, the learned counsel for

the landlord would rely on a Full Bench decision of

this Court in Parthakumar v. Ajith Viswanathan [2006

(2) KLT 250]. The learned counsel submitted that the

‘title’ meant under the 2nd proviso to Section 11(1)

of the Act is not the proprietary title, but only the

title to claim eviction as a landlord. The learned

counsel also submitted that if the claimant satisfies
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the definition of ‘landlord’ under Section 2(3) of

the Act, he can very well claim eviction, and if he

can claim eviction as a landlord, or if his right to

claim eviction as landlord is found by the trial

court, the denial of title made by the claimant is of

no consequence, and such denial cannot be found to be

bona fide.

16. Of course, it is settled that when denial of

title is made by a tenant, the Rent Control Court

will have to decide whether the claim is bona fide,

and the court can proceed further and record evidence

only if the court finds otherwise that the denial is

not bona fide. It is very clear from the proviso

that the purpose of law is not to entertain any sort

of denial of title made with the object of delaying

the proceedings or stifling the landlord’s legitimate

right to claim eviction. The denial of title meant

under the proviso need not always be the denial of

proprietary title. It can only be denial of the

right of the claimant to claim eviction as a

‘landlord’. In view of the opening words of Section
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2, the term ‘landlord’ can be interpreted as defined

under Section 2(3) of the Act, only if the context

does not require otherwise. The learned Senior

Counsel for the tenants submitted that in this case,

the context requires an interpretation otherwise

because an order under Section 11(3) of the Act can

be obtained only by the true owner of the building.

Of course, in this case, the claim of eviction made

by the petitioner is not merely as the person having

right to receive rent. He claims eviction under the

original owner Subhalekshmi Ammal. His claim is not

merely that he is entitled to receive rent. Though

he did not state or expose in his pleadings that he

is the adopted son of Subhalekshmi Ammal, he advanced

such a plea at a later stage, and he also produced a

deed of adoption. Whether the deed of adoption is

legal or acceptable, or whether the adoption

projected by the petitioner is true and valid cannot

be decided by this Court. Any way, it is a fact that

the petitioner’s claim is not merely as a person

entitled to receive rent, but he claims under the
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original owner Subhalekshmi Ammal. If the court

finds anything in support of the claim made by the

petitioner that he can represent the estate, the

court will have to find that the denial of title made

by the tenants is not bona fide. Whether the

petitioner has proprietary title, or whether he can

claim title as the adopted son of Subhalekshmi Ammal

must be left to be decided by the competent civil

court.

17. The facts in M.M.Quasim’s case and in

Dr.Ambica Prasad’s case cited supra cannot be said to

be exactly identical to the facts of this case. The

claim of right as a landlord made by the petitioner

in this case cannot be said to be like the claim made

in those cases. In M.M.Quasim’s case and in Dr.Ambica

Prasad’s case, the issue decided by the Hon’ble

Supreme Court was whether the claim of right as a

landlord can be accepted when the landlord has

actually lost the right as owner, or where the

landlord seeks eviction on the ground of bona fide

need as an agent or rent collector. That is not the
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position in this case. In this case, the petitioner

seeks eviction on the claim that he has the right to

represent the estate on the death of the original

owner Subhalekshmi Ammal. His claim is not merely

that he has a right to collect rent from the tenants.

18. Right to claim eviction must be different

from the right to get the relief claimed. The right

to claim eviction depends upon the status of the

person who claims eviction. If a person claims

eviction, the Court will have to look into his status

as to how he can claim eviction, or in what capacity

or right he claims eviction. In deciding a person’s

right to claim eviction, the Court’s consideration

cannot at all be the right to get the relief claimed.

The Court can only consider whether the status or

right claimed by the petitioner can be accepted in

law, or whether he has such a status or right to

claim eviction. But when we come to the other aspect

of right to get the relief claimed, the Court will

have to look into the evidence and materials, and

decide whether the relief can be granted to the
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claimant on the basis of the evidence and materials

adduced before the Court. In this case, the Court’s

concern can never be whether the petitioner is

entitled to get the relief claimed. In deciding the

bona fide of the denial of title made by the tenants,

the Court’s concern must be whether the petitioner

has the right to claim eviction, either as the true

owner, or as a landlord as defined under Section 2(3)

of the Act, or as a legal representative of the

original owner.

19. In Parthakumar’s case, two important issues

came up for consideration before the Full Bench. One

is whether a denial of title can be made by a tenant

who does not admit the landlord-tenant relationship,

and the other issue is whether the denial of title

meant under the 2nd proviso to Section 11(1) of the

Act is denial of proprietary title, or only denial of

right to claim eviction as landlord as defined under

Section 2(3) of the Act. In Paragraph 18, the Full

Bench held thus;

“18. …….. The landlord claiming eviction
must have title to evict. If he has no title to
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evict and such a contention is raised, the
jurisdiction to decide that dispute rightly vests
in civil courts following exhaustive procedure and
not in the Special Tribunals constituted to decide
a limited category of disputes following summary
procedure. Therefore, where existence of landlord

– tenant relationship, i.e., title of the landlord
to claim eviction against the person proceeded
against, is itself seriously disputed, certainly
the Special Tribunals must take their hands off
the dispute and leave the parties to resolve their
disputes before the regular civil courts
constituted. The Tribunals following summary
procedures cannot usurp the powers and
jurisdiction of the civil courts to decide such
disputes regarding title. Such substantial
disputes regarding title are uplands and out of
bounds for the statutory special tribunals. That
is the zone or area where the civil court must
entertain jurisdiction.”

Thus as decided by the Full Bench, once the court

finds that the denial of title made by the tenant is

bona fide, the Rent Control Court will lose its

jurisdiction to decide the question of eviction, and

the parties will have to be referred to the competent

Civil Court. The jurisdiction of the Rent Control

Court is only to decide whether the petitioner is

entitled to get an order of eviction on any of the
RCRev..Nos.210/2016
215/2016
-: 27 :-

grounds as a “landlord”, and not whether the

petitioner has the legal right and status to claim

eviction. That will have to be decided by the

competent Civil Court. In this case, if it is found

that the denial of title made by the tenants is bona

fide, the petitioner will have to go to the competent

Civil Court for eviction, or else, the issue can be

decided here itself as to whether the petitioner is

entitled to get the relief claimed as landlord. If

the Court finds ultimately that the petitioner can

claim eviction as a landlord as defined under the

law, or as a legal representative of the original

owner; either as adopted son or otherwise, the Court

can proceed further and decide whether the order of

eviction was rightly granted by the courts below.

20. As regards the necessity of a proviso to

Section 11(1) of the Act, and also the nature and the

scope of the decision making process in a case where

title is denied, the Full Bench in Parthakumar’s case

held thus in Paragraph 25 of the judgment.

“25. Having said so, the legislature was
alertly cognizant of the possibility of the
RCRev..Nos.210/2016
215/2016
-: 28 :-

tenant (the person proceeded against as
tenant) raising frivolous disputes regarding
the title of the landlord and raising claim
for permanent tenancy only for the purpose of
denying the landlords the advantage of the
expeditious and inexpensive procedure for
eviction prescribed u/s.11. In every case
where eviction is claimed, the recalcitrant
tenants may raise a frivolous non-serious
contention of denial of title or raise a claim
for permanent tenancy. Unless safeguards were
provided, the mere raising of the contention
would have deprived the landlord of the
advantage of expeditious and inexpensive
procedure to claim eviction on specified
grounds guaranteed to him u/s.11 of the Act.
The legislature did not want that to happen.
It was therefore stipulated that it is only a
bona fide denial of title or a bona fide claim
for permanent tenancy which alone would oblige
the landlord to claim eviction before the
civil court. Otherwise, his right to claim
eviction before the Special Tribunal can be
frustrated by the mere raising of such plea.

This right of the landlord had to be
preserved. Otherwise, abuse of the provisions
may result, it was perceived by the
legislature.”
21. On a consideration of the various aspects

including the earlier pronouncements on the point,

the Full Bench of this Court in Parthakumar’s case
RCRev..Nos.210/2016
215/2016
-: 29 :-

held that the denial of title meant under the 2nd

proviso to Section 11(1) of the Act cannot be denial

of proprietary title. The denial meant under the

proviso must be denial of the right to claim eviction

as a landlord, and such right can be in any of the

different capacities. The question for consideration

is as to how or in what capacity the person claims

eviction. If the person claims eviction as the true

owner, denial of title meant under the proviso must

be denial of proprietary title. If the person claims

eviction as a person having right to receive rent, or

as an agent of the true owner, the denial of title

must be denial of such right to claim as an agent or

the right to receive rent on behalf of the true

owner. If the claim made by the claimant is as a

legal representative of the original owner, the

denial of title meant under the proviso must be

denial of the claimant’s status as a legal

representative. It is quite clear from the position

settled by the Full Bench of this Court in

Parthakumar’s case that to decide whether the denial
RCRev..Nos.210/2016
215/2016
-: 30 :-

of title made by the tenants is bona fide or not, the

Court has to look into the nature of the claim made

by the petitioner. As found by the Full Bench in

Parthakumar’s case, there can be so many instances

where some mala fide denial of title is made by the

tenants, or some sort of mischievous or malicious

denial of title is made by the tenants with the

object of stifling the judicial process or delaying

the process of eviction. The Court will have to

identify such situations. Only in genuine cases of

denial of title, the Court can refer the claimant to

a Civil Court. If the Court has reason to find or

believe that the tenant has denied the title of

landlord with some ulterior object or without any

element of bona fide in it, or with the object of

delaying the process of eviction, or denying the

legitimate claim of the claimant somehow or other,

the Court will have to find that the denial made by

the tenant is not bona fide at all. In the process

of taking decision whether the denial of title made

by the tenants is bona fide or not, the Court will
RCRev..Nos.210/2016
215/2016
-: 31 :-

have to consider the genuineness or the fallacy of

the claim or dispute made by the tenants also.

22. It is pertinent to note that the respondents

would not admit their status as tenants. When the

petitioner claims tenancy between Subhalekshmi Ammal

and R.V.Pisharadi, the respondents would contend that

it was only a permissive occupation. It does not

appeal to reason that a huge building was given to a

person unconditionally, or that a person was allowed

to occupy a building unconditionally, years back, and

he or his legal heirs could continue there for

decades without making payment of any rent to

anybody. It is here the fallacy of the claim made by

the tenants exposes itself. Though they would contend

that there was no tenant-landlord relationship

between R.V.Pisharadi and the original owner, the

respondents would practically admit the Ext.A3 series

rent vouchers showing payment of rent to the

petitioner. PW2 and PW3 have supported the

petitioner that they have been paying rent to the

petitioner for a building let out to them, and it is
RCRev..Nos.210/2016
215/2016
-: 32 :-

an admitted fact that the said building originally

belonged to Subhalekshmi Ammal. Thus, it is a fact

proved by the evidence of PW2 and PW3 that another

building that originally belonged to Subhalekshmi

Ammal is now in their possession as tenants, they

have accepted the petitioner as the landlord or the

owner of the building, as the adopted son of

Subhalekshmi Ammal, and that they have been paying

rent to him. The evidence given by PW2 and PW3

stands not discredited. It is pertinent to note that

when examined in court, RW1 did not say anything

about the Ext.A3 series vouchers or the payment of

rent proved by these documents. He has no case at

all before the Court that these are false documents

or created documents. Nothing was said about these

documents by RW1 before the Court. Thus, the

respondents would practically admit the payment of

rent, though the landlord-tenant relationship is

denied by them in the statement of objection.

23. It is true that the legality of the Ext.A11

deed of adoption, or the legality and acceptability
RCRev..Nos.210/2016
215/2016
-: 33 :-

of the case of adoption projected by the petitioner

will have to be decided by the competent Civil Court

when anybody interested in the property challenges

the right of the petitioner or the title of the

petitioner before a Civil Court. In this proceeding

the Court’s concern is only whether the petitioner

has some right to claim eviction in any capacity.

Proprietary title or such related issues cannot be

the subject matter of consideration in a proceeding

under the Rent Control Act. If the Court finds

reason to believe that the petitioner has some right

to claim eviction as a landlord in any of the

acceptable capacities, the Court will have to

entertain the claim of eviction, and the Court will

have to decide the right to get the relief claimed

also.

24. It is true that in Parthakumar’s case, this

Court has held that even without admitting the

landlord-tenant relationship, the so called tenant

can deny the title of the landlord. It is impossible

to believe that the predecessor-in-interest of the
RCRev..Nos.210/2016
215/2016
-: 34 :-

tenants was simply allowed to occupy a huge building

at the heart of the Trivandrum city without any rent.

Anyway, as held by the courts below, payment of rent

by the tenants, including the deceased tenant

R.V.Pisharadi, stands proved by the evidence of the

petitioner. It is pertinent to note that when

examined as a witness, the 1st respondent did not say

anything about the Ext.A3 series vouchers, and he did

not deny or dispute the case of the petitioner

regarding payment of rent. Once payment of rent is

proved or admitted, the court will have to accept the

petitioner as a landlord having the right to receive

rent. In this case, the status claimed by him is not

merely as that of a person having the right to

receive rent. In view of the position settled by

this Court in Parthakumar’s case, the denial of title

made by the revision petitioners cannot be found to

be genuine or bona fide. It is settled that denial

of title under the 2nd proviso to Section 11(1) of the

Act need not be denial of proprietary title. The

denial meant therein is denial of the title claimed
RCRev..Nos.210/2016
215/2016
-: 35 :-

by the person who seeks eviction. The case of the

tenants is that, their predecessor was simply

permitted by Subhalekshmi Ammal to occupy the

building, and that thereafter, their predecessor had

made some modifications and repairs. RW1 has no

direct knowledge about such an entrustment or

permission, and he does not know what all repairs and

modifications were made by his predecessor. There is

nothing to show that deceased R.V.Pisharadi had made

any such repair or modification. On the other hand,

what is proved, as found by both the courts below, is

that it was in fact a rental arrangement, and that

rent had already been paid to Subhalekshmi Ammal, and

also to the petitioner after her death. In the above

circumstances, the only finding possible on the

denial of title made by the tenants is that it cannot

be bona fide at all.

25. On factual aspects, much discussion is not

required in this case because, the scope of

interference is very limited. On the claim under

Section 11(2) of the Act, there is the concurrent
RCRev..Nos.210/2016
215/2016
-: 36 :-

findings of the two authorities. Decision on the

claim under Section 11(2)(b) of the Act was correctly

made by the two courts, and there is nothing

erroneous in that finding for interference in

revision.

26. Except a casual denial in the statement of

objection of the respondents that the petitioner has

another building in his possession, there is nothing

in the evidence of RW1 disputing the claim made by

the petitioner under Section 11(3) of the Act. It is

pertinent to note that in the affidavit filed by RW1

in lieu of examination in chief, there is nothing on

the claim made by the petitioner under Section 11(3)

of the Act, and the whole evidence given by him is

confined to the plea of denial of title. Though the

trial court found against the petitioner, the

appellate authority found, on a reappraisal of

evidence, in favour of the landlord under Section

11(3) of the Act that he requires the building for

his own purposes. The tenants have been continuing

in the premises for years, and have also kept the
RCRev..Nos.210/2016
215/2016
-: 37 :-

rent in arrear since January, 2006. There is

nothing to show that the petitioner has any other

convenient building for shifting his residence. As

regards the present condition of the house building

now being occupied by the petitioner, his evidence is

satisfactory, and this stands not controverted or

challenged by the tenants in evidence. Regarding the

suitability of the building as a residential

building, the tenants have no dispute. On an

examination of the finding made by the appellate

authority on the basis of the evidence, I find that

the finding under Section 11(3) is not an erroneous

finding because the claim under Section 11(3) of the

Act is not seen seriously challenged or disputed

during trial by the tenants. I find that order of

eviction was rightly granted by the appellate

authority under Section 11(3) of the Act, and I find

nothing erroneous therein for interference in

revision.

27. As discussed and answered in the foregoing

paragraphs, I find that the denial of title made by
RCRev..Nos.210/2016
215/2016
-: 38 :-

the tenants is not bona fide, and that the petitioner

has proved his right to get relief under Sections

11(2) and 11(3) of the Act. Thus, the two revision

petitions brought by the tenants are liable to be

dismissed.

Sd/-

P.UBAID
JUDGE

Order of the court.

(a) The legal issue is answered, that the
denial of title made by the respondents
(tenants) is not bona fide.

(b) The order of eviction concurrently
granted by the two courts below under
Section 11(2)(b) of the Act is confirmed.

(c) The order of eviction granted by the
appellate authority under Section 11(3)
of the Act is confirmed.

(d) Consequently, the RCR Nos.210/2016 and
215/2016 will stand dismissed.

(e) In the particular facts and circumstances
of the case, the parties will bear their
respective costs throughout.

Sd/-

P.UBAID
JUDGE
//TRUE COPY//
P.A. TO JUDGE
Jvt/rkj/ds/4.1.2019

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