KUNHIBI P P Vs. SHERIN P V

JUDGEMENT

(1.) Does a composite lease of building and land come within the purview of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, "Act 2 of 1965")? That is one of the substantial questions of law I am called upon to decide in this appeal. Short facts, frills and embroideries excluded and necessary for decision of this appeal are: A small building with measurement of 10 x 8 ft. (80 Sq. ft.) described as office building and vacant land measuring 35 x 75 ft. (2625 Sq.ft.) on which it is situate and belonging to the predecessor-in-interest of appellants was let out to the respondent as per Ext. A-1, Kaichit dated 4-2-1971 for three months for a monthly rent of Rs.500 for running a petrol pump. The tenancy continued on the same terms and conditions stated in Ext.A-1 even after expiry of the said period. Respondent filed RCP No.97 of 1972 in the Rent Control Court against appellants for fixation of fair rent. Appellants filed O.S.No.3 8 of 1975 in the Civil Court for realisation of rent arrears. Respondent contended that his liability is only to pay the fair rent. O.S.No.38 of 1975 was decreed. RCP No.97 of 1972 was dismissed holding that as it is a lease of land and not building and hence the Rent Control Court had no jurisdiction to fix fair rent. The appeal and revision arising therefrom also ended in dismissal. The unrelenting respondent, at a time when a second revision (from the order of District Judge in revision under Section 20 of Act 2 of 1965) was maintainable in this Court under Section 115 of the Code of Civil Procedure (for short "the Code") filed CRP No.23 82 of 1979. He also challenged judgment and decree in O.S.No.38 of 1975 in this Court in A.S.No.182 of 1978. While so, parties thought it fit to bury their disputes and entered into a settlement. As per that settlement respondent agreed to pay rent at the contract rate and both parties agreed to withdraw their respective lis. Based on that settlement this Court by Ext.A-17, order dated 17-1-1980 disposed of A.S.No.182 of 1978 and CRP No.2362 of 1979. The undertaking of respondent to withdraw RCP No.97 of 1972 was recorded. Appellants were permitted to withdraw O.S.No.38 of 1975. Things went well for sometime. Respondent was running the petrol pump in the tenanted premises using the small building as office. In 1985 appellants terminated the tenancy and filed O.S.No.213 of 1985 for recovery of possession of the tenanted premises with rent arrears. Anticipating the possible contention of respondent, appellants pleaded that claim of respondent for protection of Act 2 of 1965 is barred by res judicata in view of the decision in RCP No.97 of 1972. Respondent shot back contending that he is a tenant entitled to the protection of Act 2 of 1965, eviction can be ordered only as per provisions of the said Act and hence the suit for recovery of possession is not maintainable. He claimed that as the previous disputes were resolved by settlement and the respective lis were withdrawn the decision in RCP No.97 of 1972 cannot operate as res judicata. Trial Court accepted the plea of respondent and held that respondent is entitled to the protection of Act 2 of 1965. Trial Court gave the appellants a respite-a decree for recovery of rent arrears as they claimed. First Appellate Court has confirmed decision of the Trial Court and dismissed the appeal. Hence this second appeal at the instance of appellants/plaintiffs. Apart from the applicability of Act 2 of 1965 to a composite lease of building and land the following substantial questions also are framed for a decision.

(2.) Sri M. C. Sen, learned Senior Advocate appearing for appellants raised the following arguments: Ext. A-l, kaichit dated 4-2-1971 is not a lease of "building" together with the land appurtenant to it as described in section 2(1) of Act 2 of 1965. Instead, it is a lease of land over which a small structure, when compared to the extent of land negligible in extent also stood and hence the lease cannot come within the purview of Act 2 of 1965. Construction given by the courts below to Ext. A-1 is erroneous. Even if Ext. A-1 is taken as a composite lease of building and land, it could not come within the purview of Act 2 of 1965 in the facts and circumstances of the case considering the dominant intention of the parties as could be revealed from Ext.A-l. Reliance is placed on the decisions in Nanu Nair v. Krishnan Nair, 1957 KERLT 256, Thressia v. Saraswathi Amma, 1960 KERLJ 258 and Tata Oil Mills Co. Ltd. v. Abraham Mathew, 1985 KERLT 116. According to the learned Senior Advocate decision of the Supreme Court in Suryakumar Govindjee v. Krishnammal and ors., 1987 1 KERLT 53 relied on by the courts below has no application to the facts of the case. At any rate plea of respondent that the lease as per Ext. A-1 attracted application of Act 2 of 1965 and hence the civil court has no jurisdiction is barred by res judicata in view of the decision in RCR No. 97 of 1972. Learned Senior Advocate would contend that this Court had no jurisdiction under section 115 of the Code to entertain a second revision against Ext. A-13, order of learned District Judge in revision under section 20 of Act 2 of 1965, this Court could not have entertained CRP. No. 2362 of 1979 and hence could not also have accepted settlement reached between the parties. Ext.A-17, order passed by this Court inA.S.No.182 of 1978 and CRP. No. 2362 of 1979, hence, to the extent it concerned CRP. No. 2362 of 1979 has no legal effect and cannot affect finality of Ext. A-13, order of the learned District Judge in revision. Hence Ext. A-13, order operated as res judicata against the respondent. At any rate finding in Ext. A-13 that the lease as per Ext. A-1 is not of a building as defined in section 2(1) of the Act operated as res judicata. Learned Senior Advocate has placed reliance on the decisions in Aundal Ammal v. Sadasivan Pillai, 1988 1 KERLT 386 and M/s Jetha Bai & sons v. Sunderdas Rathenai, 1968 KERLT 583.

(3.) Sri Rajendran, learned counsel for respondent would content that Ext. A-1, kaichit creates a lease of building and land which is absolutely necessary for beneficial enjoyment of the respondent considering the purpose of lease and hence it attracted application of Act 2 of 1965 as rightly found by the courts below on a correct interpretation of Ext. A-1. According to the learned counsel various clauses in Ext. A-1 eloquently indicate that parties to it gave prominence to the building while entering into the lease arrangement. Learned counsel argues that in view of the decision in Suryakumar's case (supra) conclusion inescapable is that civil court has no jurisdiction to entertain a suit for eviction of respondent. Learned counsel also argues that at the time this Court entertained and disposed of CRP. No. 2362 of 1979 the law as decided by the Full Bench of this Court in Ouseph Vareed v. Mary, 1987 1 KERLT 345 was that a second revision under section 115 of the Code was maintainable from the order of the District Judge in revision under Section 20 of Act 2 of 1965. Hence there was no jurisdictional error in this Court accepting the settlement and disposing of RCP. No. 97 of 1979 as per Ext. A-17 order. As such there is no final decision in RCP. No. 97 of 1972 attracting bar of res judicata.