RCREV No. 11 of 2008 · Kerala High Court

RCR 11/08-: 2 :-said notice demanded payment of arrears of rent and also calledupon the tenant to vacate the premises, so as to enable him tostart an automobile business.

The petitioner-tenant filed objections to the Rent ControlPetition, disputing the entitlement of the land lord to institute thepetition for eviction. The petitioner-tenant contended inter aliathat the sale deed executed by the former land lord Basheer tothe respondent herein, who is none other than the son of Basheer's brother, is a sham document and that the sale deedwas executed with a view to get over the agreement entered intoby Basheer with him on 20.11.2003 for the sale of the petitionschedule shop room. The petitioner-tenant further contendedthat he has instituted O.S.No.276 of 2004 in the Sub Court, Kollam against respondent-land lord and the said Basheer forspecific performance of the said agreement for sale and that thesale deed in favour of the respondent-land lord is one collusivelybrought about by the land lord and the said Basheer. The tenantfurther contended in his objection that the rent is not in arrearsand that there is no land lord - tenant relationship between himand the respondent herein. RCR 11/08-: 3 :-

After filing objections to the Rent Control Petition, thepetitioner - tenant filed I.A.No.1953 of 2005 seeking anadjudication of the issue regarding denial of title as a preliminaryissue. In the said application, he reiterated the contentions inthe objections filed by him to the Rent Control Petition andassailed the sale by Basheer, the original land lord to therespondent herein. Shorn of details, the contention of the tenantwas that the sale deed executed by Basheer in favour of therespondent-land lord is sham and nominal and has not come intoeffect and that it was executed with a view to over reach theagreement entered into by the said Basheer with him on20.11.2003 to sell the petition schedule shop room to him.

The respondent - land lord resisted I.A.No.1953 of 2005and contended inter alia that he purchased the petition scheduleshop room from the previous owner, Basheer as per sale deeddated 15.12.2003, that he had, prior to the said sale deed, entered into an agreement for sale in respect of the petitionschedule shop room and other rooms with the said Basheer andhis mother Kadeeja as early as on 21.5.2001 and that thequestion whether the sale deed in his favour is sham or not is RCR 11/08-: 4 :-one to be adjudicated upon by a competent civil court.

By order passed on 31.7.2006, the Rent Control Courtdismissed I.A.No.1953 of 2005 holding that the denial of the landlord's title by the petitioner - tenant is not bonafide. The RentControl Court noticed that the agreement for sale in favour of thetenant will not confer any title to the property on him and thatthe tenant has only made an evasive denial of the title byquestioning the document in favour of the land lord. Thepetitioner - tenant challenged the order passed by the RentControl Court in I.A.No.1953 of 2005 in R.C.P.No.3 of 2005 inR.C.A.No.40 of 2006 on the file of the Rent Control AppellateAuthority, Kollam. By judgment delivered on 30.11.2007, the Rent Control Appellate Authority dismissed the appeal and upheldthe order passed by the Rent Control Court. The order passed bythe Rent Control Court in I.A.No.1953 of 2005 in R.C.P.No.3 of2005 and the judgment of the Rent Control Appellate Authority inR.C.A.No.40 of 2006 affirming it are under challenge in thisrevision petition filed under Section 20 of the Act.6. We heard Shri.K.Subashchandra Bose, the learnedcounsel appearing for the petitioner. He submitted that the RCR 11/08-: 5 :-respondent had entered into an agreement with the tenant on20.11.2003 for sale of the petition schedule shop room for a sumof Rs.4.50 lakhs, that it was to overcome the said agreement forsale that a sham document was executed by Basheer, the landlord in favour of the respondent herein on 15.12.2003 assigningthe petition schedule shop room and other rooms for a muchlower consideration of Rs.2 lakhs. The learned counsel submittedthat the petitioner - tenant has instituted O.S.No.276 of 2004 inthe Sub Court, Kollam as early as on 4.8.2004 seeking specificperformance of the agreement dated 20.11.2003 and that the Rent Control Petition was filed on 5.4.2005 after the respondentand the said Basheer, who were defendants in the suit filed theirjoint written statement therein. The learned counsel for thepetitioner further submitted that title to the property vests in Basheer and that the alleged sale deed by Basheer in favour ofthe respondent herein on 15.12.2003 is sham and nominal andhas not taken effect.

We have perused the Rent Control Petition, theobjections filed by the tenent therein, I.A.No.1953 of 2005 filedby the tenant in R.C.P.No.3 of 2005, the plaint in O.S.No.276 of RCR 11/08-: 6 :-2004 and the written statement therein jointly filed by therespondent herein and his vendor Basheer. We have alsoconsidered the submissions made at the Bar by the learnedcounsel for the petitioner.

The Rent Control Court and the Appellate Authority haveelaborately considered the case set out by the petitioner - tenant, especially his contention that the respondent does not have titleto the property and that even if there was any document in thatregard, it is a collusive and sham transaction. The Rent ControlCourt and the Appellate Authority have also considered thecontention of the tenant that Basheer, the owner of the shoproom has entered into an agreement for sale with him in respectof the petition schedule shop room on 21.11.2003 and therefore, the respondent had no right to seek eviction as he was not theland lord of the petition schedule shop room.

It is common case that Basheer had executed anassignment deed on 15.12.2003 conveying the petition scheduleshop room to the respondent - land lord. It is also not in disputethat the respondent - land lord had informed the petitioner -tenant by notice dated 19.7.2004 that he had obtained RCR 11/08-: 7 :-assignment of the petition schedule shop room from Basheer. The alleged agreement by Basheer with the petitioner for sale ofthe petition schedule shop room is one entered into on20.11.2003. Basheer and the respondent herein have, in thejoint written statement filed by them in O.S.No.276 of 2004,disputed the genuineness of the agreement dated 20.11.2003said to have been executed by Basheer in favour of thepetitioner.

The main point raised by the petitioner - tenant in the Rent Control Court and before the Appellate Authority is that thedocument of sale in favour of the respondent is sham andnominal and has not come into effect and is one intended todefeat the rights of the tenant flowing from the agreement dated20.11.2003 alleged to have been executed by Basheer, the landlord in his favour. This is disputed by the respondent, who relieson a registered assignment deed dated 15.12.2003 in his favour. The petitioner does not dispute the fact that he is a tenant of thepetition schedule shop room. The only point raised by him is thatthe sale deed by Basheer in favour of the respondent-land lord issham and was not intended to be acted upon. He has also RCR 11/08-: 8 :-instituted a suit, O.S.No.276 of 2004 in the Sub Court, Kollamseeking specific performance of the agreement dated 20.11.2003said to have been executed by Basheer in his favour for sale ofthe petition schedule shop room.

A Full Bench of this court has in Parthakumar v. AjithViswanathan - 2006(2) K.L.T. 250 held that the jurisdiction ofthe Rent Control Court when it is called upon to decide the issueregarding denial of title pleaded by the tenant is bonafide or notdoes not extend to an adjudication of the validity of the landlord's title. The Full Bench has, in the said decision, held thatthe Rent Control Court cannot proceed to decide the superior titleof the land lord and that its jurisdiction is only to decide whetherthe denial of title is bonafide or not, in the sense that thedetermination can only be of the question whether the tenant'sdispute regarding the land lord - tenant relationship, is bonafideor not.

The plea of the petitioner tenant that the document ofsale in favour of the respondent is sham and collusive, cannot beadjudicated upon without a proper trial. It is not within theprovince of the Rent Control Court to adjudicate upon the said RCR 11/08-: 9 :-dispute as held by a Full Bench of this Court in the decisionreferred to above. Further, the agreement of sale said to havebeen executed by Basheer in favour of the tenant on 20.11.2003would not confer title to the shop room on the tenant. By the Registration and Other Related Laws (Amendment) Act, 2001(Act 48 of 2001), which came into force on 24.9.2001, Section 17of the Registration Act, 1908 and Section 53A of the Transfer of Property Act, 1882 were amended. Section 17(1A) of the Registration Act, 1908 as introduced by Central Act 48 of 2001stipulates that the documents containing contracts to transfer forconsideration, any immovable property for the purpose of Section53A of the Transfer of Property Act, 1882 shall be registered ifthey have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001 andif such documents are not registered on or after suchcommencement, then, they shall have no effect for the purposesof Section 53A of the Transfer of Property Act, 1882.

We are therefore of the considered opinion that theorder passed by the Rent Control Court in I.A.No.1953 of 2005 inR.C.P.No.3 of 2005 and the judgment of the Appellate Authorityin R.C.A.No.40 of 2006 affirming it do not suffer from anyinfirmity, illegality or irregularity. We accordingly hold that no RCR 11/08-: 11 :-grounds have been made out to interfere with the orders passedby the authorities below. Accordingly, the revision petition failsand it is dismissed inlimine.K.Balakrishnan Nair, Judge.P.N.Ravindran, Judge.ess 17/1