G.Vidhyadharan vs P.Krishnamma

P.B.Suresh Kumar, J.

The review petitioner was the respondent in a proceedings for eviction instituted under the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act). Though the Rent Control Court dismissed the eviction petition, the Appellate Authority reversed the decision of the Rent Control Court and ordered eviction of the respondent in appeal, and this court affirmed the decision of the Appellate Authority, in terms of the order sought to be reviewed. The petitioner seeks review of the said decision of this court in this proceedings. Parties are referred to hereafter, as they appear in the eviction petition for convenience, as done in the order sought to be reviewed also.

The subject-matter of the eviction petition is the shop room portion at the southern end of building bearing T.C.No.25/1522. It is stated by the petitioners in the eviction petition that the said building and the land on which it is put up, belonged to the grandmother of the petitioners, Valliammal; that the subject room was taken on lease by the respondent from Valliammal on 02.09.1985 for the purpose of running a workshop; that Valliammal settled 1.25 cents of property and the building bearing T.C.No.25/1522 in favour of the mother of the petitioners and the petitioners purchased the same from their mother. It is also stated by the petitioners in the eviction petition that the respondent had earlier attempted to alter the nature of the tenanted premises; that Valliammal, in the circumstances, instituted a suit against the respondent as O.S.No.679 of 1986 before the Munsiff Court, Thiruvananthapuram and the same was decreed restraining the respondent from altering the nature of the tenanted premises. It is also stated by the petitioners in the eviction petition that on acquiring title to the building, they permitted the respondent to continue occupying the tenanted premises, although he did not execute any rent deed in their favour. It is also stated by the petitioners that the second petitioner who was deserted by her husband and who had no avocation, intended to start a bakery business in the tenanted premises. It is on the aforesaid basis that the petitioners sought eviction of the respondent under Sections 11(2)(b) and 11(3) of the Act.

The respondent filed objections to the eviction petition. He admitted the tenancy arrangement between him and Valliammal as pleaded by the petitioners in the eviction petition. He, however, contended that the premises covered by the tenancy arrangement aforesaid has been surrendered by him after the decree in O.S.No.679 of 1986 and that he is not occupying any portion of the building bearing T.C.No.25/1522. It was also contended by him that the room which he is occupying at present is the room bearing T.C.No.25/1524. According to him, the said room is not one held by Valliammal and that therefore, there is no landlord-tenant relationship between him and the petitioners in respect of the same.

The  Rent  Control  Court  dismissed  the  eviction petition holding that the petitioners could not establish that the respondent is occupying any portion of the building bearing T.C.No.25/1522 owned by them. However, in appeal, the Appellate Authority reversed the finding of the Rent Control Court and held that the premises occupied by the respondent is part of the building bearing T.C.No.25/1522 owned by the petitioners; that it was in respect of the said premises that the respondent had entered into the tenancy arrangement with Valliammal and that the respondent cannot, therefore, be heard to contend that there is no landlord-tenant relationship between him and the petitioners. Consequently, the Appellate Authority accepted the case set out by the petitioners that the rent of the premises is in arrears since 01.07.2006 as pleaded by the petitioners. It was also found by the Appellate Authority that the need set out by the petitioners for eviction is bona fide and that the respondent is not entitled to the benefit of the second proviso to Section 11(3) of the Act. On the said basis, the Appellate Authority ordered eviction of the respondent under Sections 11(2)(b) and 11(3) of the Act.

As seen from the order sought to be reviewed, the learned counsel for the respondent did not raise any arguments against the finding rendered by the Appellate Authority that the need set out by the petitioners in the eviction petition is bona fide and against the finding that the respondent is not entitled to the benefit of the second proviso to Section 11(3) of the Act. Instead, the learned counsel for the respondent contended on facts that it is a case where the petitioners have miserably failed to establish that there exists a landlord-tenant relationship between the parties in respect of the premises which is presently occupied by the respondent.

Even though it was observed by this court that the question whether the petitioners have established a landlord-tenant relationship between the parties in respect of the subject matter of the proceedings, being a pure question of fact, the finding rendered by the Appellate Authority on the same cannot be interfered with by this court in a revision petition under Section 20 of the Act, unless the same is erroneous or perverse. Even though it was found by this court that the finding on the said question rendered by the Appellate Authority cannot be said to be erroneous or perverse, this court proceeded to consider the said question on merits also, in our anxiety to ensure the correctness of the said factual finding and found that there is no illegality, irregularity or impropriety in the finding rendered by the Appellate Authority in this regard. It is on that basis that this court affirmed the decision of the Appellate Authority. As noted, the petitioner seeks review of the said decision of this court.

Heard the learned counsel for the petitioner/review petitioner.

Paragraphs 11 and 12 of the order sought to be reviewed dealing with the contention raised by the respondent that the premises from which he is sought to be evicted is not part of TC No.25/1522 and that there is no landlord-tenant relationship between the parties in respect of the said premises, read thus :

There is no dispute to the fact that building bearing T.C.No.25/1522 is one assessed by the local authority in the name of the petitioners. Ext.X1 is the extract of the relevant page of the Property Tax Assessment List in respect of the said building. As per Ext.X1, the said building consists of three rooms and a kitchen. The respondent does not claim any right in respect of the said building. Going by the description in the schedule to the eviction petition, the subject matter of the eviction petition is a shop room portion at the southern end of building bearing T.C.No.25/1522. The respondent admits that the room occupied by him is on the south of the building bearing T.C.No.25/1522 occupied by the petitioners. But, according to him, the same is not part of the building bearing T.C.No.25/1522 and it is a separate building bearing T.C.No.25/1524. PW3 is the Revenue Inspector attached to the local authority. PW3 has categorically stated that building bearing T.C.No.25/1524 is one assessed in the name of one Samuel Abraham and the same is a two storeyed building consisting of 10 rooms in the neighborhood of the building bearing T.C.No.25/1522. In the light of the evidence tendered by PW3, the stand taken by the respondent that the premises occupied by him is one bearing T.C.No.25/1524 cannot be accepted.

The respondent has no case in the objections that the shop room presently occupied by him belongs to him. In cross examination, though he took the stand that the said building belongs to three persons namely Janakiamma, Subadrakuttiamma and Parukuttiamma, he conceded that there is no document indicating as to how he obtained possession of the same from the aforesaid persons. Be that as it may, it has come on record that the respondent has earlier filed a suit as O.S.No.1153 of 2014 against the petitioners seeking a decree declaring his title over the room presently occupied by him. Ext.A10 is the plaint in the said suit. Ext.A10 suit is instituted on the premise that the respondent has perfected title to the room by adverse possession and limitation. In other words, in Ext.A10 suit, he concedes the title of the petitioners over the building which is presently occupied by him. Needless to say, the stand taken by the respondent that the room presently occupied by him is not part of building bearing T.C.No.25/1522, cannot be accepted. The question remaining to be considered is as to whether there is landlord-tenant relationship in respect of the said premises between the parties. As noted, the respondent admits in his objections that he was a tenant in respect of a portion of the building bearing T.C.No.25/1522. Ext.A1 is the agreement executed by the respondent in favour of Valliammal in this regard. In cross examination, he admitted that the tenancy arrangement was in respect of the shop room portion of the building at its southern end. Even though it was pleaded by him that he surrendered the premises covered by the said agreement after the decree in O.S.No.679 of 1986, the same has not been established by him. In the circumstances, the only inference possible is that the premises presently occupied by the respondent is the premises covered by Ext.A1 agreement. If that be so, as rightly found by the Appellate Authority, the respondent who admits the rental arrangement with the predecessor of the petitioners cannot be heard to contend that there is no landlord-tenant relationship between him and the petitioners. It is seen that it is on the aforesaid premise that the Appellate Authority reversed the decision of the Rent Control Court and held that the denial of title of the petitioners by the respondent is not bona fide. We do not find any illegality, irregularity or impropriety in the decision of the Appellate Authority warranting interference in exercise of the power of this Court under Section 20 of the Act. It is all the more so since the finding rendered by the Appellate Authority in this regard is on a pure question of fact based on appreciation of evidence which cannot be interfered with by this Court in exercise of the power under Section 20, unless the same is erroneous or perverse. As observed, the finding rendered by the Appellate Authority cannot be said to be perverse or erroneous on any ground whatsoever.

The following are the grounds raised in the review petition :

“a) The impugned judgment requires review in the interest of justice, since the impugned judgment has been passed without considering the material facts on record and hence the same is an error apparent on the face of the records and facts itself.

b) This Hon'ble Court ought to have taken into consideration primarily the landlord-tenant relationship. The same has not been proved by the respondents before any of the Courts including this Hon'ble Court when the onus is upon them to prove the allegations and the possession of the property and moreover they have to specifically prove the property, which is owned by them, to be evicted by the tenant. The rental agreement produced by them are only secondary evidence which is not supported by any other rebuttable evidence or contentions. The respondents herein did not produce the original rental deed nor the receipt of the payment of rent and thereby had failed to prove the landlord-tenant relationship. The specific case of the petitioner from the first instance itself was that the petitioner is not holding any property belonging to the respondents and the same was not given due weightage.

c) In order to attract section 11(2)(b), prima facie the respondent herein has to prove the landlord-tenant relationship and also the title over the shop room possessed by the petitioner herein. Even when the title over the property is denied by the petitioner herein, it is the burden upon the landlord to produce sufficient evidence to prove the existence of landlord-tenant relationship, which in the instant case is not proved. The deed produced by the respondents herein was of the year 1985 which was made between the grandmother of the respondents and the petitioner herein. Even though it is alleged in the petition that they purchased the property in 2003 they have not proved the existence of the rental agreement between the respondents and the petitioner herein. Also there is an allegation that the respondents herein was trying to make a rental agreement with the petitioner and the petitioner was evading from 2006 itself. It is very curious to find that even assuming the same to be true, the petition was filed only in the year of 2013. These all facts were not given due consideration for the proper adjudication of the matter and thereby the impugned judgment is against the principles of law.

d) The possession of the alleged building by the respondents have not been proved by the respondents without appreciating the said fact the petitioner cannot be considered as a tenant in this case and moreover the respondent have no right over the petitioner to seek for evicting of the petitioner from a property which is not in their possession.

e) This Hon'ble Court did not taken into consideration the observations made by the Advocate Commissioner in the instant case. The advocate commissioner specifically had reported that the plaint schedule property had 4 shops that belonged to the respondents and that the property numbered TC 25/1524 was a shop that stood apart from the plaint schedule rooms. This fact was overlooked by this Hon'ble Court as well as the lower appellate Court.

f) The contention alleged by the respondents herein while filing the revision petition itself was that they are the owners of 4 shops, which was not corrected even in their amended petition also. Hence the same is an admitted fact. It has been evidenced from the commission report also that the respondents are in possession of the plaint schedule property and the property which the petitioner herein possess lies different from the plaint schedule property. These evidences were overlooked while passing the impugned judgment, which were the crucial evidences. There was not even any evidence other than their contentions in the petition to prove their case.

g) The payment of professional tax by the petitioner in the above said address as evidenced by Exhibit.B1 was never been considered. Even assuming for the argument the fact that the respondents' predecessor had secured Patta for only 2 cents of property from the Land Tribunal but they are holding 2.50 cents of property is uphold, the property said to be occupied by the petitioner as T.C 25/1524 is a small extent of property excluding the above extent of property which can be evidenced from the commission report also. These particular and specific facts which ought to have given due consideration where not been considered while passing the impugned judgment. Hence the same is liable to be reviewed with real appreciation of facts for the proper adjudication of the matter.”

As explicit from the grounds raised in the review petition as extracted above, the essence of the grounds is that the petitioners have not established a landlord-tenant relationship in respect of the subject premises and that the finding rendered by this court on the said aspect is incorrect, inasmuch as some of the materials on record have not been adverted to by this court while rendering the said finding. By raising the grounds aforesaid, according to us, the respondent is seeking a rehearing of the revision petition, which is not permissible in law. Be that as it may, as already noticed, being a revision petition instituted under Section 20 of Act, it was not obligatory for this court to consider the contention of the respondent that the petitioners have not established a landlord-tenant relationship between the parties in respect of the subject premises. The jurisdiction of this court was only to examine whether there is any illegality, irregularity or impropriety in the finding rendered on the said aspect by the Appellate Authority. Viewing the matter in the said perspective, we are of the view that the review petition is an abuse of the process of the court. If review petitions of this nature are entertained, there would be no finality to any decision. We do not find any error, much less any error apparent on the face of the record in the order sought to be reviewed, warranting exercise of the review jurisdiction of this court. The review petition is accordingly, dismissed.