IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA MONDAY, THE21T DAY OF OCTOBER201329TH ASWINA, 1935 RCRev..No. 344 of 2011 ( ) --------------------------- RCA.NO. 18/2008 OF I ADDL.DISTRICT COURT & RENT CONTROL APPELLATE AUTHORITY,ERNAKULAM RCP.NO. 119/2006 OF III ADDL.MUNSIFF & RENT CONTROL COURT, ERNAKULAM --------------------------------------------- RENT CONTROL REVISION PETITIONERS: -------------------------------------------------------------------- 1. JOSEPH @ SUNNY,AGED55 S/O.LATE UNNITTEN SKARIA, CHALLUVELIL HOUSE, OPP. P.W.D. REST HOUSE, TRIPUNITHURA P.O., PIN-682 301.
2. GRACY, D/O.LATE UNNITTEN SKARIA, CHALLUVELIL HOUSE, DO. DO.
3. C.S.MANI, AGED52YEARS, S/O.LATE UNNITTEN SKARIA, CHALLUVELIL HOUSE, OPP. P.W.D. REST HOUSE, TRIPUNITHURA P.O., PIN-682 301.
4. C.S.JOSEPH @ VIJAYAN, AGED49 S/O.LATE UNNITTEN SKARIA, D/O. D/O.
5. JOY C.SCARIA, AGED45YEARS, S/O.LATE UNNITTEN SKARIA6 C.S.THOMAS, S/O.LATE UNNITTEN SKARIA,DO. DO.
7. SHEELA, AGED38W/O.CAUMA, CHALLUVELIL HOUSE, OPP. P.W.D. REST HOUSE, TRIPUNITHURA P.O., PIN-682 301.
8. MANU C.CAUMA, AGED15S/O.CAUMA, CHALLUVELIL HOUSE, OPP. P.W.D. REST HOUSE, TRIPUNITHURA P.O., PIN-682 301(MINOR) REP. BY MOTHER & NATURAL GUARDIAN, SHEELA, W/O.CAUMA.
9. SINU C.CAUMA, AGED11 S/O.CAUMA, CHALLUVELIL HOUSE, OPP. P.W.D. REST HOUSE, TRIPUNITHURA P.O., PIN-682 301 (MINOR) REP. BY MOTHER & NATURAL GUARDIAN, SHEELA, W/O.CAUMA. BY ADVS.SRI.VARGHESE C.KURIAKOSE SRI.ADEEP ANWAR SMT.THANKOM.G SMT.RENJINI RAJENDRAN sts 2/- -2- R.C.R.NO.344/2011 RESPONDENT(S): ---------------------------- 1. RENNY THOMAS K., AGED35YEARS, S/O.LATE K.P.THOMAS, THEKKEKKARA KANJIRAKKOT HOUSE, HILL PALACE P.O., TRIPUNITHURA.
2. REGY C.SKARIA, AGED44 S/O.UNNITTEN SCARIA, WORKING WITH SHIPPING & TRADING, P.O.BOX NO.12815, RASAL KHAIMA, UAE. R1 BY ADV. SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.JUSTINE JACOB BY SRI.S.SREEKUMAR (SENIOR ADVOCATE) CAVEATOR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON2709-2013, THE COURT ON2110-2013 PASSED THE FOLLOWING: sts T.R.RAMACHANDRAN NAIR & B. KEMAL PASHA, JJ.
- - - - - - - - - - - - - - - - - - - - - - - - - - R.C.R. No. 344 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - DATEDTHIS THE21T DAYOF OCTOBER, 2013
ORDERRamachandran Nair, J.
The revision petitioners are the respondents in a petition for eviction filed by the first respondent herein who is the landlord of the building. Eviction is sought under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease & Rent Control) Act. The petitioners disputed the landlord-tenant relationship and the Rent Control Court upheld the contentions and found that the denial of title of the first respondent as landlord is bonafide. In appeal, the Appellate Authority reversed the same which is under challenge in this revision petition.
2. The basic facts leading to the controversies raised by the parties are the following: In the petition for eviction, the first respondent has averred that the property is having an extent of 13 cents in Sy. Nos.114/1 and 100/15 of Thekkumbhagam Village and the building bears door No.23/1 of Thripunithura Municipality. The first respondent's father late Shri K.P. Thomas obtained the same as per document No.28/1958 of Thripunithura RCR No.344/2013 -2- Sub Registry. The late father of the petitioners herein, Shri Unnithan Skaria had taken the petition schedule building for rent from the father of the first respondent. He was an employee under the father of the first respondent. The first respondent traces his title to a registered will executed as document No.176/1998 by his father. As per the will, the land and the building have been bequeathed to him. His father, Shri K.P. Thomas died on 6.11.1998. It was claimed that the petitioners attorned to the first respondent thereafter and paid rent till October, 2003. Shri Unnithan Skaria died on 27.2.2006.
3. The bonafide need pleaded is to conduct a business in Computer in the building in question. He is a postgraduate diploma holder in Computer Application and is a bachelor. Even though he is employed, the salary is insufficient to have a happy and decent married life. The building is situated in a very important commercial centre of the Municipality and is ideal to conduct a business and he is not having any other building for the said purpose.
4. The petitioners herein, in their objections, raised the following contentions: The late father of the first respondent, Shri K.P. Thomas was RCR No.344/2013 -3- never the owner of the building, and the building was actually constructed by late Shri Unnithan Skaria. At no point of time there was any landlord tenant relationship between them. During his lifetime Shri Unnithan Skaria was holding the property as its owner. Therefore, the alleged tenancy claimed is not sustainable.
5. It was further contended that though the title over the land stood in the name of Shri K.P.Thomas, it was lost on account of open, peaceable acts of right of possession by late Shri Unnithan Skaria. from 1959 onwards. In 1979 there was an attempt to dispossess late Shri Unnithan Skaria which was resisted by him. Therefore, after 1980 he was possessing the land also with clear hostile possession and the right, title and interest of late Shri K.P. Thomas has been lost by adverse possession and limitation and the adverse possession of late Shri Unnithan Skaria has been crystallised into title by perfection of possession. Therefore, the petitioners herein are the owners of the building. It was further pointed out that at no point of time they had paid any rent to late Shri K.P. Thomas or to the first respondent and no scrap of paper is available for that. The bonafide need pleaded by the first respondent was also contested by the petitioners herein, RCR No.344/2013 -4- in para 10 of the statement of objections.
6. The first respondent was examined as P.W.1 and fifth petitioner herein was examined as R.W.1. Both sides have produced various documents in support of their contentions.
7. Before us, learned counsel for the petitioners, Shri Varghese C. Kuriakose mainly contended that the Appellate Authority has totally erred in finding against the petitioners and in reversing the well reasoned order passed by the Rent Control Court. It is submitted that the dispute regarding title raised by the petitioners is a bonafide one. Learned counsel further submitted that at least from 1979 onwards it can be seen that the possession is with a hostile animus. It is in evidence that the property was brought to sale in a suit filed against late Shri K.P. Thomas and certain others and late Shri Unnithan Skaria had filed a claim petition therein. Ultimately, even though the execution petition was closed on payment of amount by late Shri K.P.Thomas to satisfy the decree in O.S. No.215/1972, the averments in the claim petition will support the plea raised by the petitioners herein. It is also submitted that he had raised kudikidappu right in the said claim petition. It is submitted by the learned counsel that Ext.A15 order in O.A. RCR No.344/2013 -5- No.460/1979 will show that late Shri Unnithan Skaria had raised a claim of kudikidappu before the Land Tribunal. Learned counsel further submitted that the extracts of the building tax assessment register relied upon by the first respondent cannot lead to a presumption of ownership. It is submitted that late Shri Unnithan Skaria had raised objection to the same and the documents of the year 1963 onwards in the erstwhile panchayat will support the plea by the petitioners that the building was constructed by late Shri Unnithan Skaria. But unfortunately, those records were not traceable. It is submitted that there is no scrap of paper to support the payment of rent by late Shri Unnithan Skaria or by the petitioners, either to late Shri K.P. Thomas or to the first respondent. In the absence of the same, there will not be any landlord tenant relationship. Learned counsel in this context, referred to the definition of 'landlord' and 'tenant' under the Act. It is also submitted that the Appellate Authority, even though has relied upon the principles stated by a Division Bench of this Court in Nabeesa Abdul Khader and others v. Suresh Kurian and others (2009 (2) KHC64= 2009 (1) KLT1020 by relying upon Section 26 of the Act, the reasoning therein with regard to the evidentiary value of building tax assessment RCR No.344/2013 -6- registers cannot be supported. Such documents could only be taken into consideration for the purpose of fixing fair rent under Section 5 of the Act. Learned counsel therefore submitted that after 1979 the animus was hostile and therefore the petitioners have perfected their title by adverse possession and limitation. This aspect can be considered only by the civil court and not by the Rent Control Court. In support of his contentions, learned counsel referred at length to the oral and documentary evidence and also relied upon various decisions of the Apex Court and this Court.
8. Heavy reliance was placed on Exts.B4 and B5 in support of the contention that late Shri Unnithan Skaria had filed an application before the local authority after noticing the change in the assessment made in favour of late Shri K.P. Thomas and to transfer the same in his name. It is submitted that even though I.A. No.46/2011 was filed before the Appellate Authority to direct the Secretary of the Municipality to produce the original assessment register from 1960-1963, that application was wrongly dismissed along with I.A. No.6541/2010 wherein the prayer was to accept the photo copy of the assessment register pertaining to the schedule building, maintained by the erstwhile Thripunithura Municipality during the RCR No.344/2013 -7- above period. It is further submitted by the learned counsel for the petitioners that it is well settled by the decisions of the Apex Court that the entries in the revenue records will not confer title.
9. Learned counsel for the petitioners also submitted that before this Court the petitioners have filed I.A. No.2251/2013 to produce certain documents. It is submitted that the proceedings in KLRG5971973 will show that late Shri K.P. Thomas had filed an application for shifting of kudikidappu in which a report was called for by the Assistant Collector and in the said proceedings late Shri K.P. Thomas represented that with effect from 1956 the building in Nadama Village is occupied by his partner and he has already transferred the same in the name of his partner in 1973. It is therefore submitted that the reference therein is to the very same building, the contention otherwise cannot be accepted.
10. Learned Senior Counsel appearing for the first respondent, Shri S. Sreekumar submitted that the contentions raised by the petitioners were rightly rejected by the Appellate Authority. According to him, the property was purchased by late Shri K.P. Thomas in the year 1958 and the pleas raised by the petitioners that late Shri Unnithan Skaria constructed the RCR No.344/2013 -8- building in 1959, is not supported by any evidence. It is in evidence that late Shri Unnithan Skaria was an employee under late Shri K.P. Thomas, which factor also assumes importance.
11. The records produced by the first respondent will include the tax receipts, ownership certificates, building tax receipts and certified copy of the building tax assessment register, copy of the order in O.A. No.460/1979 viz. Exts.A15 and A17 to A21 which will clearly show that the ownership of the property and the building was with late Shri K.P. Thomas and after the will came into effect, it is with the first respondent. It is submitted that the filing of the claim petition Ext.A18 by the late father of the petitioners, has no special importance since he has only set up a case of kudikidappu therein. The execution petition itself was closed after late Shri K.P. Thomas who was one of the defendants in the suit along with other partners, cleared the debt and the decree was satisfied. There was no final adjudication on the claim application. It is submitted that the copy of the order in O.A. No.460/1979, Ext.A15 will show that the application for kudikidappu was never pursued and it was dismissed for non prosecution. No appeal was filed also. The very claim of kudikidappu will go against RCR No.344/2013 -9- the case of adverse possession and limitation. It will indicate only a case of permissive occupation and in such cases the plea of adverse possession has no real legs to stand and therefore the denial of title is not a bonafide one.
12. Our attention was also invited to the oral evidence of R.W.1. It is submitted that it is a false plea on the part of the petitioners that in 1979 late Shri K.P. Thomas attempted to forcibly evict the petitioners' father. R.W.1 has stated nothing about any case filed by them to resist the said attempt, allegedly to dispossess them. Therefore, the plea of adverse possession claimed from 1980 onwards is not at all sustainable. It is submitted that in the absence of any evidence to show at least prima facie that late Shri Unnithan Skaria had constructed the building, the petitioners herein are not entitled to succeed in their plea regarding the same. It is submitted that the dictum laid down in Nabeesa Abdul Khader's case (2009 (2) KHC64 is clearly applicable to the facts of this case and the Appellate Authority was right in relying upon the same and the documents produced by the first respondent.
13. Going by the deposition of P.W.1, the building was given on rent in 1959, even though there is no document for the same and it was an oral RCR No.344/2013 -10- lease. According to him, rent was being paid from time to time and there was a default in 1977 for a period of one month which was cleared and rent was paid upto October 2003. His late father was a partner of a firm in which the father of the petitioners herein was an employee. The assessment of the building was in the name of his father from inception. At the time when the property was brought to sale in execution proceedings in another suit, his father cleared the decree debt by paying it in instalments. There was a case in 1979 with regard to the kudikidappu right claimed by late father of the petitioners. It is stated that even though such a kudikidappu right was claimed, rent was being paid from time to time. He has stated that even though water connection and electricity connection were availed by late Shri Unnithan Skaria, no action was taken by his late father against Shri Unnithan Skaria. According to him, periodical maintenance was being done to the building including painting work and removal of broken tiles and one Jose, Panachiyil House, Thiruvankulam was engaged for the same. He is also taking yield from the coconut trees standing there. He has denied the suggestion that in 1979 his late father had made an attempt to take possession of the property. RCR No.344/2013 -11- 14. In the chief affidavit R.W.1 claimed that the building was constructed by his late father, Shri Unnithan Skaria. He has referred to the claim statement filed in O.S. No.215/1972 as I.A. No.199/1978 and Ext.B1 is the sale proclamation in that case. Ext.B2 is the copy of the application, O.A.460/1979 for purchase of kudikidappu right and Ext.B3 is the replication filed by his late father in the said application. According to him, Ext.B5 refers to an objection filed by his late father in the Municipality and Ext.B4 is the notice received in that regard from the Municipality. The plea is that from 1980 onwards they are in open and peaceful possession adverse to the late father of the first respondent.
15. In the cross examination, R.W.1 admitted that his late father was an employee under the late father of the first respondent and he could not definitely say the period during which he was employed there. He has denied the payment of rent upto October 2003. According to him, the assessment was in the name of his late father upto 1978 and documents could be traced out. He has stated that he is ignorant about the change of assessment and ownership in favour of the first respondent after the death of late Shri K.P. Thomas. With regard to the application for kudikidappu RCR No.344/2013 -12- filed as O.A. No.460/1979 and its fate, he stated that he does not know about the same. He was asked a specific question as to the reason for stating in the objection filed by him, that in 1979 there was an attempt to evict his father from the building and the answer is "I do not know". Lower down he has stated that in 1979 there was a case filed by late father of the first respondent, but he does not remember the number. He has also admitted the filing of the claim statement in O.S.No.215/1972.
16. Now we will come to the discussion of the evidence and the findings rendered by the Appellate Authority. After referring to Exts.A3 and A4 tax receipts for payment of tax by the first respondent, Ext.A5 ownership certificate issued by the Municipality in favour of the first respondent, Ext.A7 which shows the transfer of registry of the building in favour of the first respondent with effect from 3.7.2006, Ext.A8 series property tax receipts which stood in the name of the first respondent, Ext.A9 extract of the building tax assessment register maintained by Thripunithura Municipality for the period from 1968 to 1973, Ext.A10, extract of building tax assessment register for the period from 1979-1983 which showed that the name of late Shri Unnithan Skaria has been entered in the assessment RCR No.344/2013 -13- register as tenant of the building, Ext.A11, copy of extract of the building tax assessment register for the period 1992-1995 which shows that the tenant is Shri Unnithan Skaria and Ext.A12, copy of extract of building tax assessment register for the period starting from 1995 which shows that the first respondent is the owner and the tenant is Shri Unnithan Skaria, it was found that these documents will show that the owner of the building is the first respondent herein and the tenant was late Shri Unnithan Skaria. The contest by the petitioners herein that the entries in the assessment register are not correct, has been rejected by stating that no contra evidence has been produced. It was further observed that these documents are certified copies issued by the Municipality which have been issued on the basis of the records maintained in the Municipality. The Appellate Authority then concluded - in the light of the decision of this Court in Nabeesa Abdulkhader's case (2009 (2) KHC64 wherein it was held that there is a strong presumption regarding the correctness of the entries recorded in the Municipality, - that the burden is very heavy on the part of the petitioners herein to dislodge the very strong presumption.
17. Another finding rendered by the Appellate Authority is that there RCR No.344/2013 -14- is no evidence to show that late Shri Unnithan Skaria had constructed the building. It was also observed that even though the petitioners have produced Exts.B4 and B5 to show that the Municipality had issued certain notices to late Shri Unnithan Skaria, that too in a petition filed by him to change the assessment in his name from that of late Shri K.P.Thomas, there is nothing to show that the assessment has been changed at any point of time in favour of late Shri Unnithan Skaria. The Appellate Authority accepted the case of the first respondent that he has been doing maintenance to the building, in the absence of any evidence on the part of the petitioners to show that they have been doing the maintenance. It was thus held that in the light of the voluminous evidence in favour of the first respondent, there is strong evidence in favour of him to prove his title and therefore the status of the petitioners is only that of tenants.
18. These findings have been rendered reversing the view taken by the Rent Control Court. The Rent Control Court decided in favour of the petitioners herein on the basis of their plea that at least from 1979 onwards the father of the petitioners was exercising a right hostile to the title of late Shri K.P. Thomas. It was also observed that for payment of rent no actual RCR No.344/2013 -15- evidence has been produced by the first respondent herein.
19. The reliance placed by the Appellate Authority on the judgment of this Court in Nabeesa Abdulkhader's case (2009 (2) KHC64, is attacked by the learned counsel for the petitioners Shri Varghese C. Kuriakose by contending that the Division Bench erred in holding therein, after referring to Section 26 of the Act, that a very strong presumption is aroused in favour of the landlord as to the correctness of the entries in the certified copies produced in that case from the Municipality. After referring to Section 5 of the Act providing for fixation of fair rent wherein the property tax assessment could be a relevant material, learned counsel submitted that Sections 26 and 5 of the Act will have to be read together and it is only for the purpose of Section 5, these certified extracts from property tax or house tax assessment could be relied upon.
20. The Division Bench in Nabeesa Abdulkhader's case (2009 (2) KHC64, after referring to Section 26 in para 14, took the view in para 15 as follows: "As will be seen from the statutory language, it is a very strong presumption which is aroused by Ext.A9 to A15 regarding the RCR No.344/2013 -16- correctness of the entries recorded therein." Section 26 of the Act provides that "Executive authorities of local bodies can issue certified copy of extracts from property tax or house tax assessment books on application by the party and that the certified copy shall be received as evidence of the facts stated therein in proceedings under the Act." It cannot be said that these extracts can be relied upon only in connection with a proceedings under Section 5 and therefore we reject the said contention. What is provided is a mode of proof of the entires. Learned counsel contended that the relevant provisions of the Evidence Act would not help to draw a presumption. But herein, we will be justified in observing that the Division Bench, in the light of the strong evidence in that case, made the observation in para 15 quoted above which is the similar position herein also. As against the documents produced by the first respondent from the Municipality, no contra evidence to destroy its evidentiary value has been adduced by the petitioners. The authorities of the Municipality have not been subjected to cross examination also. Even though it is submitted that Exts.B4 and B5 will show that a complaint was raised by late Shri Unnithan Skaria, it is evident that that was never pursued RCR No.344/2013 -17- and there was no change of name with regard to the registry and the assessment of the building in his name. Therefore, in a case of this nature wherein the question is whether the tenants' plea is bonafide or not, the same could be accepted.
21. As far as the requirement under Section 11(1) of the Act is concerned, the Division Bench considered a similar plea in Nabeesa Abdulkhader's case (2009 (2) KHC64. With regard to the prescription of title by adverse possession, the Division Bench has observed in para 7 as follows: "Prescription of title by adverse possession is a matter to be pleaded specifically and substantiated. In the absence of any sufficient pleadings, any amount of evidence to substantiate the plea will not be of avail. The evidence adduced by the revision petitioners also is not sufficient to support a finding that the revision petitioners had prescribed a title by adverse possession. Learned counsel submitted that even if the parties are relegated to the civil court, the chances of the revision petitioners plea which is one of having perfected title by adverse possession being upheld are very very remote." In paragraphs 11 and 12, the legal position in this regard has been discussed RCR No.344/2013 -18- in detail and we extract the same below: "11. We do not find any pleading raised by the revision petitioners regarding the transformation of the nature of the possession. Instead, what we find on a conjoint reading of the above paragraph and the earlier paragraphs in the objection is that the possession which is claimed by the revision petitioners is possession in continuation of the possession claimed on the strength of an agreement for sale alleged to have been executed by Sri.Padippurackal Chakochan. In Aboobacker v. Girija (1995 (1) KLT553, a Division Bench of this court approving the view taken in Joseph v. Thomas (1987 (2) KLT1029 has very clearly held that just because the respondent in the Rent Control Petition denies the title of the landlord in a very serious and specific manner, the jurisdiction of the Rent Control Court will not stand ousted. There the Lordships have held as follows: " The court whose jurisdiction stands ousted must have the satisfaction that there are strong or atleast substantial grounds or sufficient materials in support of the plea of the petitioner and the chances of the plea being upheld by the civil court must be fairly on the higher side. What is required in this case at the relevant stage is to satisfy the Rent Control Court that denial of the landlord's title is RCR No.344/2013 -19- bona fide. This has to be done by the tenant who makes the denial, either by producing material or by focusing on admitted or reliable circumstances. Even though the stage for adducing evidence is yet to begin the tenant cannot escape from satisfying the court that his denial is based on materials." 12. The Rent Control Court's jurisdiction to deal with applications for eviction under S.11 of Act 2 of 1965 in respect of buildings situated in areas to which the Act apply unless exempted under S.25 thereof, is exclusive. The ouster of jurisdiction of such an exclusive court is not to be lightly inferred. We are in complete agreement with the view expressed by the Division Bench in Aboobacker v. Girija (1995 (1) KLT553 and we will guage the bona fides of the denial of the landlord's title made by the revision petitioners in this case by the parameters indicated in Aboobacker v. Girija (1995 (1) KLT553." 22. Therefore, going by the decision of this Court referred to above, it can be seen that just because the respondent in the Rent Control Petition denies the title of the landlord in a very serious and specific manner, the jurisdiction of the Rent Control Court will not be ousted. The tenant will RCR No.344/2013 -20- have to satisfy the Rent Control Court that the denial of the landlord's title is bonafide and this has to be done by the tenant who makes the denial, either by producing material or by focussing on admitted or reliable circumstances. The Division Bench has further held as follows in para 15: "We do not think that the respondents have any chance of succeeding on defence of title by adverse possession since even the initial possession based on an oral agreement for sale will be difficult to establish, and any possession in continuance of such a possession will be presumed to be permissive/under the title holder. In short we hold that the chances of the respondent succeeding before the Civil Curt are far from bright." 23. Learned counsel for the petitioners relied upon a decision of the Apex Court in Bhogadikannababu and others v. Vuggina Pydamma and others (2006 KHC829, in the context of applicability of principle of estoppel under Section 116 of the Evidence Act. Learned counsel further submitted that in S.L.P.No.10971/2009 filed against the judgment in Nabeesa Abdhukhader's case (2009 (2) KHC64, the Apex Court has passed the following order: "The special leave petition is dismissed. RCR No.344/2013 -21- However, we make it clear that the Rent Control Court will not be influenced by the observations made by the High Court while passing the final orders." It is submitted that in the light of this clarification, the judgment cannot be relied upon. As rightly pointed out by the learned Senior Counsel, Shri S. Sreekumar, the order passed in the Special Leave Petition only clarifies that the Rent Control Court will not be influenced by the observations made by this Court. The findings on the legal aspects have not been eschewed.
24. Learned counsel for the petitioners further relied upon a decision of the Apex Court in Tulshiram Sahadu Suryawanshi and another v. State of Maharashtra (2012 KHC4573= (2012) 10 SCC373 wherein, with regard to the drawing of presumption under Section 114 of the Evidence Act it was held in para 19 as follows: "It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a precise of reasoning and reaches a logical conclusion as the most probable position. The above position is strengthened in view of S.114 of the Evidence Act, 1872. It empowers the Court to presume RCR No.344/2013 -22- the existence of any fact which it thinks likely to have happened. In that process , the Courts shall have regard to the common course of natural events, human conduct etc. in addition to the facts of the case................" The decision of the Apex Court in Balwant Singh and another v. Daulat Singh (dead) by Lrs. and others (1997 KHC1032= (1997) 7 SCC137 is relied upon to point out that the entries in revenue records do not convey or extinguish any title.
25. As far as the requirement under Section 11(1) of the Act is concerned, a Full Bench of this Court in Bharathi and others v. Vinod S (2007 (4) KHC873= 2008 (1) KLT93 has considered the necessary requirements for relegating a matter to the civil court. The Full Bench was examining the question whether there is any conflict in respect of the law declared in the decisions reported in Parthakumar v. Ajith Viswanathan (2006 KHC520 and Narayan Murti v. Thankamma Sebastian (2005 (3) KLT102. In para 3, after referring to both the decisions, the legal position was noted by the Full Bench as follows: "Merely by raising such a contention, the matter need not be relegated to the Civil Court. The Rent Control Court is entitled RCR No.344/2013 -23- and bound to decide the question whether alleged contention regarding denial of title consequent to absence of landlord tenant relationship and claim of permanent tenancy is bona fide or not For finding out bona fide of the claim, Rent Control Court only need look into the materials placed before it." 26. The entire pleas raised by the petitioners herein centre round the plea of adverse possession. Learned Senior Counsel appearing for the respondents, Shri S. Sreekumar relied upon a decision of this Court in Dayananda Pai v. Madhava Mallia (1988 (1) KLT294 to contend that the petitioners' contentions with regard to adverse possession cannot be considered in the light of the fact that they are estopped from raising the said contention since in the earlier proceedings before the Land Tribunal as well as in the civil court as reflected from Exts.A15 and A18, the only plea is one of kudikidappu. In the said decision, in para 4 it has been held as follows: "The person against whom a landlord files an application under the Rent Control Act must be a tenant as defined in the Act. If he is not a tenant, the application is not maintainable and the Rent Control Court has no jurisdiction to deal with such application. So when a landlord files an application before the Rent Control Court RCR No.344/2013 -24- against any person describing him as a tenant, it is for that person to raise the plea that be is not a tenant as defined in the Act, but is only a kudikidappukaran. If such person does not raise such a plea, he thereby submits himself to the jurisdiction of the Rent Control Court by impliedly admitting his status as a tenant. He cannot, in a subsequent proceedings raise a plea that he is not a tenant, but is only a kudikidappukaran, because of the rule of estoppel. The petitioner is precluded from contending that he is a kudikidappukaran in view of his conscious omission to raise such a plea in the earlier rent control proceeding. Hence the question does not "arise" and therefore, there is no obligation to make a reference under S.125(3) of the Land Reforms Act." 27. We will examine the question whether the petitioners' contention can be said to be bonafide, to satisfy the requirement under Section 11(1) of the Act. In the objection to the petition, they have contended in para 3 that "in the year 1979 there was an attempt on the part of the late Shri K.P. Thomas to dispossess late Shri Unnithan Skaria and the same was resisted and therefore after 1980 late Shri Unnithan Skaria was possessing the land also with a clear hostile possession to the paper title of late Shri K.P. Thomas. It is now more than 26 years, since the hostile possession is RCR No.344/2013 -25- enjoyed by late Shri Unnithan Skaria and after him, by the respondents." The events occurred in 1979, as is clear from the documents, are two fold: (i) The order passed in the application for purchase of kudikidappu, produced as Ext.A15, in O.A. No.460/1979; and (ii) A claim petition was also filed as E.A. No.870/1979 in E.P. No.199/1978. The common contention raised is one of kudikidappu right. Under the Kerala Land Reforms Act, going by Section 2(25), 'kudikidappukaran' will be a person permitted by the land owner to occupy a portion of land, for the purpose of erecting a homestead. Therefore, what is contemplated is permissive occupation and the contention that late Shri Unnithan Skaria was having kudikidappu right will only go to show that he was having permissive occupation and not an occupation hostile to the title of the land owner. The title remains with the land owner and the kudikidappukaran is entitled to purchase ten cents of land in a panchayat and five cents in a Municipality. Even though R.W.1 was specifically asked about any case filed in 1979 by late Shri K.P. Thomas to evict them, he could not give any details and it is evident that no such case was filed. To the specific question in the cross examination as to the reason for stating in the counter statement that in 1979 RCR No.344/2013 -26- there was an attempt on the part of the landlords' father to evict the late father of the petitioners, he answered that he does not know. Lower down he was asked as to what had happened in 1979. According to him, a case was filed in 1979, but he does not know the details of the same or even the number of the same. Then he explained that in 1978 there was an attachment against the schedule building. He further explained that a claim petition was filed in O.S. No.215/1972. He was asked whether the said petition has been rejected, but he answered that he does not know. Therefore, evidently the period mentioned to claim that possession has become adverse, is important, i.e. from the year 1979 onwards. What has occurred in 1979 is only the filing of the claim petition as well as filing of the application for purchase of kudikidappu by Shri Unnithan Skaria. In both these cases, the common contention is that he has kudikidappu right. It is not a plea of adverse possession and perfection of title. There are no sufficient pleadings in the objection filed by the petitioners before the Rent Control Court to show as to how the plea of kudikidappu has matured into one of adverse possession. What we find is that the situation is the same as considered by this Court in Nabeesa Abdulkhader's case (2009 (2) KHC RCR No.344/2013 -27- 64) with regard to the plea of adverse possession. Therein, while considering the plea of adverse possession, the Division Bench in para 11 found that the plea regarding the transformation of the nature of the possession is insufficient. How the plea of kudikidappu right claimed in the earlier proceedings has transformed into a plea of adverse possession, is not explained in the counter statement and we have already adverted to the evidence of R.W.1 which is totally insufficient.
28. Coupled with the same, the late father of the petitioners and later the petitioners have not pursued any application in the municipality with regard to the objection regarding entries in the assessment register and payment of tax by late Shri K.P. Thomas and by the first respondent, etc. Therefore, regarding that also no sufficient materials are before the court except Exts.B4 and B5 which merely refer to a petition. It is evident that the same was never pursued by late Shri Unnithan Skaria. The documents produced before this Court along with I.A. No.2251/2013 is a statement recording the proceedings in KLRG5971973 on the files of Assistant Collector, Fort Cochi, for the period from 31.1.1974 to 10.7.1974 and what is relied upon by the learned counsel is the proceedings recorded on RCR No.344/2013 -28- 10.7.1974 to the effect that the applicant stated that the building allegedly owned by him in Nadama Village, though owned by him, has been occupied since 1956 by one of his partners. Learned counsel for the petitioners submitted that the reference therein is about the building herein.
29. Shri S. Sreekumar, learned Senior Counsel for the first respondent submitted that the year mentioned in the statement recorded on 10.7.1974, viz. 1956 is significant. Herein, the father of the first respondent became the owner of the building only in 1958. Therefore, prima facie the reference therein has nothing to do with the case of the petitioners and will not help the petitioners to advance the plea of limitation. Thus, it can be seen that the plea raised by the tenants herein do not satisfy the requirements laid down by this Court in Aboobacker v. Girija (1995 (1) KLT553 wherein it has been held that "just because the respondent in the rent control petition denies the title of the landlord, the jurisdiction of the Rent Control Court will not stand ousted. The Rent Control Court is required to satisfy that the denial of the landlord's title is bonafide and this has to be done by the tenant who makes the denial, either by producing material or by focusing on admitted or reliable RCR No.344/2013 -29- circumstances." These tests have not been satisfied here.
30. In that view of the matter, we are of the view that the findings rendered by the Appellate Authority cannot be said to be perverse. We have examined the pleadings and evidence in detail, in the light of the vehement arguments raised by the learned counsel for the petitioners and by the learned Senior Counsel for the first respondent on the merits of the findings. In the light of the above, we confirm the judgment of the Appellate Authority and dismiss the revision petition. No costs. (T.R.RAMACHANDRAN NAIR, JUDGE) (B. KEMAL PASHA, JUDGE) kav/