NARAYAN MURTI Vs. THANKAMMA SEBASTIAN

JUDGEMENT

(1.) The question of law involved in this Revision is whether the contention of the respondent in a Rent Control Petition that he has entered into an agreement for sale of the petition schedule building with the erstwhile landlord could be termed as a denial of title of the landlord coming within the meaning of the second proviso to Section 11(1) of the Kerala Buildings (Lease and Rent Control) Act. The further question is whether the respondent in the Rent Control Petition who admittedly attorned to the landlord and agreed to pay revised rate of rent after the landlord purchased the building, could set up a case that the tenant is a mortgagee in possession and whether it would amount to denial of title of the landlord, under the second proviso to Section 11(1) of the Act.

(2.) The facts in brief are the following: The respondent in this Rent Control Revision filed R.C.P.No. 98 of 2003, on the file of the Rent Control Court, Ernakulam against the petitioner herein under Section 11(3) of the Act. The landlady/respondent herein (hereinafter referred to as 'the landlord') stated in the Rent Control Petition thus: "The respondent is the tenant of a residential building, bearing No. 41/695 (59/1003) of Cochin Corporation, which is more particularly described in the schedule hereunder. The respondent took the building for residential purpose on a monthly rent of Rs. 550/-and the respondent is residing therein with family". It is not mentioned in the Rent Control Petition, during which period the lease was granted. It is also not stated as to who granted the lease. The 'landlord' contended that she is residing along with her son Thomas at Changanacherry. The 'landlord' has no other building of her own except the petition schedule building. She bona fide needs the petition schedule building for her own residence. Thomas does not have any job or employment. He intends to conduct chitty business in the petition schedule building for eking out his livelihood. Thomas is depending on the landlord for his need to occupy the building for conducting business. Thomas is married and has three children. On 3.6.2003, Ext.A2 lawyer notice was issued by the landlord to the tenant. The tenant issued Ext.A3 reply notice dated 28.6.2003. The landlord contended in the Rent Control Petition that the allegations made in the reply notice are untrue. She denied all the material allegations made in the reply notice.

(3.) In the counter statement filed by the tenant, he contended, inter alia, as follows: The tenant was residing in 'Eastland Enclave' in Stadium Road, belonging to one Dr. Urmese. In 1968, P.A.Francis, who then constructed the petition schedule building, requested the tenant to shift to the petition schedule building with family. P.A.Francis was a close friend of the tenant. P.A.Francis borrowed a sum of Rs. 50,000/ - from the tenant on condition that the latter could occupy the petition schedule building by way of security for the loan amount. No interest was charged or paid on the loan amount. No rent was being paid to P.A.Francis. That arrangement continued till the husband of the tenant purchased the petition schedule building. Possession of the building was handed over by P.A.Francis to the tenant on a definite understanding that he need surrender the building only on payment of the amount borrowed. Joseph Devassy Kadavil, husband of the landlord purchased the property with the full knowledge of the agreement between P.A. Francis and the tenant. The tenant has spent about Rs. 6 lakhs for repairs and maintenance of the petition schedule building and it was done with the knowledge of the landlord. The landlord is liable to reimburse the said amount to the tenant. The bona fide need alleged in the Rent Control Petition was denied by the tenant. The tenant informed the landlord that the former is interested in purchasing the property and he offered Rs. 15 lakhs, but the landlord was not willing to sell the property for that amount and demanded Rs. 40 lakhs and thereafter Rs. 45 lakhs. The intention of the landlord is to get vacant possession of the building and to sell the same.