(2016) 453 KLW 431
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.N. Ravindran & K. Ramakrishnan, JJ.
R.C.R.No.453 of 2004
Dated this the 25th February, 2016
AGAINST THE ORDER/JUDGMENT IN RCA 28/2003 of RENT CONTROL APPELLATE AUTHORITY,KOTTAYAM AGAINST THE ORDER/JUDGMENT IN RCOP 26/2000 of ADDL.RENT CONTROL COURT,KOTTAYAM
REVISION PETITIONER(S)/APPELLANT/RESPONDENT
V.M.ANDREWS BY ADV. SRI.ABRAHAM GEORGE JACOB
RESPONDENT(S):RESPONDENTS/PETITIONERS
DAISY PUNNAN AND 4 OTHERS
O R D E R
K. Ramakrishnan, J.
The tenant in R.C.(OP) No.26 of 2000 on the file of the Rent Control Court, Kottayam is the revision petitioner herein. The petition was filed by the respondents herein for eviction of the petition schedule building from the possession of the revision petitioner on the ground of arrears of rent, sub lease and subsequent acquisition of building by the tenant, under
Sections 11(2)(b), 11(4)(i) and 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act, 1965,
hereinafter referred to as 'the Act' for short. The case of the landlord in the petition was that the petition schedule building was let out to the revision petitioner on a monthly rent of Rs.50/-. The rent of the building has been kept in arrears from August 1980. He had sub let the building to M/s. V.M. Joseph and V.M. Michael, contrary to the tenancy agreement and without consent and permission of the landlords. He has constructed a two storied building near the petition schedule building and he is conducting business in that building which is reasonably sufficient for his requirement. The landlords sent a notice dated 29.7.2000 intimating the arrears of rent and also sub lease and requesting to vacate the sub lease and pay the arrears of rent and surrender possession of the building. He sent a reply with false allegations. Since the tenant had not vacated the premises, the landlords filed the petition for eviction on the above grounds.
2. The revision petitioner who is the respondent before the rent control court entered appearance and filed counter statement admitting that he was a tenant of the building on a monthly rent of Rs.50/- and he was conducting business in it. While so, on 18.7.1980 the counter petitioner entered into an agreement for sale of the petition schedule building along with 4 cents of property in which the petition schedule building is situated, with the first petitioner's husband late J.M. Punnan @ Mani and his mother for a total consideration of Rs.26,000/- and he had paid Rs.5,000/- as advance on the date of agreement and subsequently on 26.12.1980, he paid Rs.7,500/- and on 18.1.1981 the entire sale consideration has been paid. Pursuant to the agreement for sale, he has been put in possession of the property and the building covered by the agreement for sale. But the sale deed could not be executed as Punnan died on 6.3.1981. There was another tenant by name Sukumaran and Punnan had agreed to execute the sale deed after evicting Sukumaran from the building. Subsequently, the counter petitioner filed O.S.No.432 of 1995 before the Sub Court, Kottayam for specific performance of the agreement for sale and the same was decided against him and he preferred an appeal before this court which is pending. The allegation that he had committed default in payment of rent is not correct. After the execution of the agreement for sale as per the understanding between the parties, rent has not been paid from January, 1981 and no rent was demanded as well. Further, there is no sub lease. They are brothers of the counter petitioner. Though he acquired another building for expanding his business and for his residence, part of the business in the petition schedule building was shifted to the new building and new business in cattle feed and vegetables was also started and he is conducting the same with the assistance of his brothers. So, there is no sub lease. So, he prayed for dismissal of the application for eviction.
3. The second petitioner before the rent control court was examined as PW1 and Exts.A1 to A5 were produced and marked on the side of the landlords. The counter petitioner was examined as CPW1 and Exts.B1 to B14 were produced and marked. After considering the evidence on record, the rent control court came to the conclusion that the denial of title is not bonafide. The mere execution of an agreement itself will not prevent the landlords from evicting the tenant under the Act and it will not amount to denial of title of the landlord. It was found that sub lease was not proved and denied eviction under section 11(4)(i) of the Act but allowed eviction under sections 11(2)(b) and 11(4)(iii) of the Act. Aggrieved by the same, the tenant filed R.C.A.No.28 of 2003 before the Rent Control Appellate Authority, Kottayam and the appellate authority dismissed the appeal confirming the order of eviction passed by the rent control court. Dissatisfied with the same, the present revision petition has been filed under section 20 of the Act.
4. Heard Shri Abraham George Jacob, learned counsel for the revision petitioner and Shri Bechu Kurian Thomas, learned senior counsel appearing for the respondents.
5. Learned counsel for the revision petitioner submitted that even if the suit for specific performance is barred by limitation, the right of the tenant to defend the eviction petition under
Section 53A of the Transfer of Property Act
is not barred. He had relied on the decisions reported in
Shrimant Shamrao Suryavanshi and another v. Pralhad Bhairoba Suryavanshi (Dead) by Lrs. and others (2002 KHC 1215)
and
Mahadeva and others v. Tanabai (2004 KHC 1004)
in support of his case. So, according to him, the landlords are not entitled to get eviction. He had also submitted that the courts below were not justified in ordering eviction under sections 11(2)(b) and 11(4)(iii) of the Act.
6. On the other hand, learned counsel for the respondents submitted that having filed a suit for specific performance and lost, the defence under section 53A of the Transfer of Property Act is not available to the tenant in the rent control proceedings. Further, the bar of limitation is applicable even in a case where he claims protection under section 53A of the Transfer of Property Act. Learned counsel relied on the decision reported in
Fatehji and Company and another v. L.M. Nagpal and others {(2015) 8 SCC 390}
in support of his case.
7. The fact that the building belongs to the predecessor of the respondents herein and the revision petitioner was put in possession of the building as a tenant earlier is not in dispute. The case of the tenant was that he is entitled to protection under section 53A of the Transfer of Property Act. It was an admitted fact that the tenant filed a suit for specific performance of the contract as O.S.No.432 of 1995 and that was dismissed on the ground of limitation and he filed A.S.No.417 of 2000 before this court and today we have considered that appeal and the same has been dismissed stating that the suit is barred by limitation, by a separate judgment.
8. Section 53A of the Transfer of Property Act reads as follows:-
“53A. Part performance.--
Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:-
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.”
9. It is settled law that merely because the tenant entered into an agreement for sale with the landlords is not a ground to be taken to refer the parties to civil court as the agreement to sell will not confer any title on the tenant and the relationship between them will continue as landlord and tenant. So, on that ground the jurisdiction of the rent control court is not taken away from considering the question under section 11 of the Act.
This was so held in the decisions reported in
Robert Welress v. Mammu (1985 KLT 1121)
and
Hajira Umma v. Razak (1991 (2) KLT 700)
by two single Benches of this court which we feel is correct in law. Further, in the decision reported in
Seeraj S.R v. Baburajan and others (2013 KHC 2748),
a Division Bench of this court has held that no tenant should be allowed to compel a landlord to resort to civil suit just because the tenant denied the title of the landlord and the enquiry conducted by the rent control court is expected to be only in a summary manner.
In the same decision this court has relied on the view of the Division Benches of this court in
Aboobacker v. Girija
(1995 (1) KLT 553)
and
Joseph v. Thomas (1987 (2) KLT 1029)
where it has been observed that “we too are of the view that the court whose jurisdiction stands ousted must have the satisfaction that there are strong or at least substantial grounds or sufficient materials in support of the plea of the petitioner.”
10. Further, in the decision reported in
Nabeesa Abdul Khader v. Suresh Kurian (2009 (1) KLT 1020),
another Division Bench of this court has held that “in order that agreements contemplated under section 53A of the Transfer of Property Act are agreements in writing and mere denial of title of landlord in a serious and specific manner, jurisdiction of civil court is not ousted and possession by a person who claims to have been put in possession under an agreement for sale cannot be adverse to that of title holder and title of landlord about which court is essentially concerned under section 11(1) 2nd proviso is the entitlement of landlord to receive rent from the tenant.
11. Further, in this case it was admitted by the parties that the suit for specific performance filed by the tenant was dismissed on the ground of limitation and the appeal filed by him as A.S.No.417 of 2000 was also dismissed by this court today by a separate judgment. It is true that in the decisions reported in
Shrimant Shamrao Suryavanshi and another v. Pralhad Bhairoba Suryavanshi (Dead) By Lrs. and others (2002 KHC 1215)
and
Mahadeva and others v. Tanabai (2004 KHC 1004)
it has been held that even if the claim for specific performance is barred by limitation, the defendant in a suit filed by the owner of the property for recovery of possession will maintain the defence under section 53A of the Transfer of Property Act. But in those two cases the transferee had not filed any suit for specific performance and obtained an adverse decree against him. In a case where a suit for specific performance was filed and it was dismissed, then he is not entitled to the protection under section 53A of the Transfer of Property Act for retaining his possession in a suit or proceedings initiated under the provisions of the Rent Control Act for eviction. Once the right to enforce the agreement has been lost to him by a decree of court, the supplementary right claimed by him under section 53A of the Transfer of Property Act on the basis of the agreement will not be available to him in a subsequent proceedings for eviction filed by the landlord.
12. Further, in this case the original or the certified copy of the agreement has not been produced so as to consider as to whether he has been put in possession of the property pursuant to the agreement or he continued to be in possession of the building by virtue of the agreement for sale entered into between the parties. Unless it is established by the tenant that he is in possession of the property or continued to be in possession virtue of the agreement, then he is not entitled to claim the protection under section 53A of the Transfer of Property Act. We have occasion to go through the agreement entered into between the parties while we were disposing of A.S.No.417 of 2000 as consented by the counsel for the parties and even in the agreement, there is no recital that either he was put in possession of the property by virtue of the agreement or his continuance in possession was acknowledged as part of the agreement for sale entered into between the parties. In such circumstances, it cannot be said that he is in possession of the property by virtue of the agreement in order to claim protection under section 53A of the Transfer of Property Act. So, under the circumstances, the contention raised by the learned counsel for the revision petitioner that the landlords are not entitled to maintain an action for eviction in view of the protection under section 53A of the Transfer of Property At, is unsustainable in law and the courts below were perfectly justified in coming to the conclusion that such a contention is not available to the tenant and rightly held that the petition is maintainable.
13. As regard arrears of rent is concerned, it is admitted by the tenant that after the execution of the agreement for sale no amount was paid. Even after disposal of the case also he had not paid any arrears of rent. So, under the circumstances, once the landlords had demanded the rent and the tenant had failed to pay the rent, then eviction will follow under section 11(2)(b) of the Act subject to the right of the tenant to get the order vacated under section 11(2)(c) of the Act. So, the order of eviction passed under section 11(2)(b) of the Act is perfectly justified.
14. As regards the other ground is concerned, it is conceded by the tenant when examined, that he had constructed a double story building and part of the business has been shifted to the said building. Though he had contended that subsequently acquired building is not sufficient to cater to the need or to conduct business that is being carried on in the petition schedule building, he had not taken out any commission to prove that the subsequently acquired building is not sufficient for his purpose. Once it is admitted by the tenant that he had come into possession of another building after taking possession of the petition schedule building, the burden is on the tenant to prove that that building is not sufficient for his purpose which has not been established in this case. So, under the circumstances, the courts below were perfectly justified in coming to the conclusion that the landlords are entitled to get eviction under section 11(4)(iii) of the Act and the concurrent findings on facts do not call for any interference.
15. In the result, the revision petition lacks merit and the same is liable to be dismissed. We do so. However, considering the circumstances of the case, we grant three months time from today to the revision petitioner/tenant to vacate the petition schedule premises on condition that he shall file an undertaking in the form of an affidavit before the rent control court or before the execution court if any execution petition is pending, within three weeks from today that he will vacate the premises within the time granted, i.e. on or before 25.5.2016 by this court without any objection and on further condition that he will deposit the arrears of rent, if any, and also continue to pay the rent at the rate agreed between the parties till he vacates the premises as directed by this court. He shall further undertake that he will not induct strangers in the petition schedule building or alienate or commit any act of waste therein. If the undertaking is not filed within that time, then the petitioner is not entitled to the benefit of extension of time to surrender the building as granted by this court.
The revision petition is dismissed with the above directions and observations.
( P.N. Ravindran, Judge)
(K. Ramakrishnan, Judge)
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