(2014) 382 KLW 882 

IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH 

THURSDAY, THE 16TH DAY OF OCTOBER 2014/24TH ASWINA, 1936 

RCRev..No. 70 of 2014

AGAINST THE ORDER/JUDGMENT IN RCA 38/2012 OF RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE), KASARAGOD DATED 18-01-2014 AGAINST THE ORDER/JUDGMENT IN RCP 16/2012 OF THE RENT CONTROLLER/PRINCIPAL MUNSIFF, KASARAGOD DATED 19-10-2012 

REVISION PETITIONER(S)/APPELLANT IN R.C.A./RESPONDENT IN R.C.P.

MARIYAM

BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.) SRI.P.B.KRISHNAN SRI.N.AJITH SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN 

RESPONDENT(S)/RESPONDENT IN R.C.A./PETITIONER IN R.C.P.

A.VIJAYARAJAN

R1 BY ADV. SRI.SURESH KUMAR KODOTH

O R D E R 

Thottathil B.Radhakrishnan, J.

1. Heard the learned senior counsel for the revision petitioner/tenant and the learned counsel for the respondent/landlord.

2.This revision under 

Section 20 of Act 2 of 1965 

is against concurrent findings holding that the landlord bona fide needs the building for personal use to commence an activity in soda manufacturing. The tenant is not entitled to raise any plea under the second proviso to Section 11(3), since it is, primarily, a residential building and the tenant has no case that she was conducting any business there. The fundamental plea of the tenant before the courts below was built on what was projected as bona fide denial of the title of the landlord. That stands concurrently found against the tenant. 

3. The learned senior counsel for the revision petitioner argued, inter alia, that Ext.A1, which is relied on by the landlord as the title deed, is a sham one and it was never intended to take effect though it was executed by the person now arrayed as the tenant. It is further pointed out that the execution of Ext.A11 (rent deed) nearly two days after Ext.A1 is also shrouded in suspicion. He, therefore, argued that Exts.A1 and A11 can be impeached in collateral proceedings and thereby a challenge can be validly raised to the title held out by the landlord. It is thus argued that there is a bona fide denial of title and in that event, the parties should have been relegated to the civil court and the Rent Control Court does not have jurisdiction to decide on the issue of title.

4. Per contra, the learned counsel appearing for the landlord argued that the courts below have concurrently found that there is no bona fides in the so-called denial of title, and there is really no denial of title inasmuch as existence of Ext.A1 is not disputed, and there cannot be any plea in variance of the contents of that document, the execution of which is admitted. He also argued that there is no ground to hold that the transaction was not acted upon. It is, pointedly, argued that Ext.A12 (Ext.A8) judgment and decree have been, rightly, found by the courts below to operate as estoppel by judgment on the plea of the tenant. That decree is in a suit instituted by the tenant against eviction pleading that Ext.A1 sale deed has not been taken effect and it is not a sale deed at all. That suit was ultimately dismissed as "not pressed". That suit was one for cancellation of Ext.A1. That being so, in law, the tenant had obtained a judgment against her on merits on that issue. That is the effect of "not pressing" that suit. When a suit is dismissed as "not pressed", the inevitable inference is that the plaintiff offers that the issues arising in the suit as raised may be decided against that party and in favour of the opponent. 

See for support Muhammed Master v. Abu Haji [1981 KLT 578].

5. Ext.A1 is a registered document. It is, on its face, a sale deed. Its execution is not disputed. Ext.A11 rent deed is executed by the tenant two days after she executed Ext.A1 sale deed in favour of the person, who is now the landlord. Until the institution of the suit, which led to Ext.A12 judgment and decree in 2009, she had never challenged Ext.A1 document for nearly a decade. With this, she also obtained a judgment against her interest by "not pressing" the suit filed by her, the legal effect of which is as noted above. That position notwithstanding, when the execution and registration of Ext.A1 are admitted, that carries with it, the statutory support as to presumptions of those solemn acts, including official acts, in connection with registration of the document. The due execution and registration of that deed having been satisfactorily established, there is no material to recognise any collateral impeachment thereof, that too, in proceedings under Act 2 of 1965, to project a case of bona fide denial of the title of the landlord. The plea of the revision petitioner in this regard, therefore, fails.

6. The courts below have concurrently found that the landlord bona fide needs the building for own occupation. We have examined the evidence in that regard. The version of the landlord as PW1 corroborated by documentary evidence on record clinchingly holds the issues in favour of the landlord. The only contra evidence by the tenant is her deposition as RW1. We see no ground to interfere on that ground either. 

7. For the aforesaid reasons, this rent control revision fails. 

In the result,