R.C.R. No. 594 of 2005. Case: Johnson Kanadan Vs Patel Saw Mill and Ors.. High Court of Kerala (India)
| Case Number | R.C.R. No. 594 of 2005 |
| Counsel | For Appellant: Bechu Kurian Thomas, Adv. and For Respondents: Shyam and Bobby Mathew Koothattukulam, Advs. |
| Judges | K. Balakrishnan Nair and T.R. Ramachandran Nair, JJ. |
| Issue | Kerala Buildings (Lease and Rent Control) Act, 1965 - Sections 2(1), 11(2), 11(3), 11(4); Indian Easements Act - Section 52; Transfer of Property Act - Sections 105, 108 |
| Judgement Date | November 02, 2007 |
| Court | High Court of Kerala (India) |
Order:
T.R. Ramachandran Nair, J.
-
This revision petition is filed at the instance of the landlord. The proceedings arose under the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'). Eviction is sought under Sections 11(2), 11(3) and 11(4)(iii) of the Act of a building along with the appurtenant land having an extent of 16 1/2 cents.
-
Both the Courts found that the lease is not in respect of the building and actually it is in respect of the land with the building therein. In the light of the same, it was held that the eviction petition is not maintainable. As regards the grounds set up by the landlord for seeking eviction, the Rent Control Court found that the landlord did not press the ground under Section 11(2)(b) and that the ground under Section 11(3) of the Act has not been established, but he has been successful in establishing the ground under Section 11(4)(iii) of the Act (that the tenant has obtained other buildings in the locality).
-
The appellate Court found that the landlord is entitled to evict the tenant on the grounds envisaged under Sections 11(3) and 11(4)(iii) of the Act. In view of the finding that the petition is not maintainable, the dismissal of the eviction petition was upheld by the appellate authority also. It may also be noticed that initially the rent control Court dismissed the petition as not maintainable, as the tenancy was found not in respect of the building. This was set aside by the appellate authority and the matter was remanded for fresh consideration. The present orders have been passed after remand.
-
The short facts leading to the eviction petition are the following: The building and the land in question belonged to the Petitioner's deceased father. According to the Petitioner, the building was let out to M/s. Patel Saw Mills, a partnership firm to provide residential accommodation to those partners who were in charge of conducting Patel Saw Mill. The total extent of the land is 56 cents. The father had executed a settlement deed in favour of the Petitioner reserving life interest to collect rent for himself till his death and thereafter to his wife who is the mother of the Petitioner, till her death. This settlement deed was executed subject to the above right of the partners. The father died in December 1985 and the mother died in September 1998. It is also averred in the eviction petition that the father had informed the managing partner that he had settled the petition schedule building in favour of the Petitioner, that he had allotted different portions of the compound in which the saw mill was functioning, in favour of other sons. It is specifically pleaded in the eviction petition that the rental arrangement in respect of the petition schedule building is confined to the building alone and the land appurtenant to the building has nothing to do with the conduct of the saw mill. As regards the arrears of rent, the plea was that the rent was in arrears at the rate of Rs. 500 per month from 29-5-1999. It was also averred that the tenants had acquired properties for the purpose of conduct of the saw mill.
-
The above contentions of the landlord were opposed by the tenants. They mainly contended that the tenancy arrangement is not in respect of the building, that the lease was in respect of 56 cents of land with a residential building therein. The original lease deed was executed on 25-2-1956 between the Petitioners father and the first Respondent which was being renewed from time to time. They contended that after the death of the Petitioner's father, the Petitioner's elder brother Shri Tom Joseph was managing the properties. No rental arrangement was made or agreement was executed with respect to the petition schedule building and there was no apportionment of the rent also. It is their case that the entire property even now lies as one block and the rent that is being paid and received is with respect to the whole property. The 16 1/2 cents of land mentioned as appurtenant land in the petition schedule is also part and parcel of the entire property used by the tenants for their business. They also denied acquisition of property or buildings for their business. Exts. A-1 to A-12 were originally marked and P.Ws. 1 to 3 were examined on the side of the Petitioner. After remand, Exts. A-13 to A-22 were marked on the side of the Petitioner and P.W. 4 was examined. On the side of the Respondents, D.W. 1 was examined and Exts. B-1 to B-3 were originally marked in evidence and after remand, Exts. B-4 to B-6 were marked.
-
A reading of the orders passed by the authorities below shows that a definite finding has been entered that the lease deeds Exts. A-13 and A-14 clearly show that the transaction will never spell out lease of a building with appurtenant land as envisaged under Section 2(1) of the Act.
-
Learned Counsel for the Petitioner contended that the lease arrangement in question which was being renewed from time to time culminating in Exts. A-13 and A-14, is only in respect of building with the appurtenant land. The predominant intention is to create a lease in respect of the building and licence in respect of the whole land. Going by the petition schedule, it is a lease of the building and the 16 1/2 cents forms the appurtenant land. Learned Counsel relied upon various decisions of the Apex Court and of this Court, reported in Associated Hotels of India Ltd. v. R.N. Kapoor A.I.R. 1959 S.C. 1262, Qudrat Ullah v. Municipal Board, Bareilly A.I.R. 1974 S.C. 396, K. Bhagirath G. Shenoy and Ors. v. K.P. Ballakuraya and Anr. (1999) 4 S.C.C. 135, Paranchu Ouseph v. Pakku Kunjathu 1951 K.L.T. 44, Sorab Alias S.P. Kavina v. Viswanatha Menon 1974 K.L.T. 606 and Mar Appraem Kuri Co. Ltd. v. Dix 2004 (1) K.L.T. 678, in support of his contentions. Learned Counsel also invited our attention to the other oral and documentary evidence to contend that actually the arrangement was only a licence in respect of the entire 56 cents of land and the building was specifically let out for residential purpose. It is therefore contended that the view taken by the authorities below that the document evidences a transaction by way of lease of the land with the building, is not correct. Learned Counsel appearing for the tenants supported the...
To continue reading
Request your trial