THANKAMONY AMMA & ORS. versus OMANA AMMA N. & ORS. on 13 August 2019

1. This appeal challenges the final judgment and order datedG09.08.2018 passed by the High Court of Kerala in RCR No.172 of 2017.

2. One Sankara Kurup, owner of a piece of land admeasuring 27cents erected a Theatre named “Manorama Theatre” thereon (“suitProperty”, for short). The management of the Theatre was beingconducted by his son-in-law named Kumara Kurup (predecessor of theH

respondents herein). After the death of Sankara Kurup, a claim wasraised by his son Viswanatha Kurup that he was entitled to the rightsand interests in said Theatre by virtue of a Will executed by his father.

Soon thereafter, proceedings were initiated by Kumara Kurupbefore the Land Tribunal Alappuzha being OA No.3233 of 1975submitting, inter alia that he was a cultivating tenant and as such entitledto protection under the Kerala Land Reforms Act, 1963. ViswanathaKurup was arrayed as respondent in the proceedings. The applicationpreferred by Kumara Kurup was rejected by the Land Tribunal,Alappuzha on 17.03.1976. The finding rendered by the Land Tribunalwas to the following effect:- “The oral evidence adduced by respondent shows that thescheduled property and cinema theatre belongs to the respondent’sfather and after his death the property passed to him. Ext.B1accounts maintained in the hand-writing of the father of therespondent shows that the applicant is only the manager of thecinema theatre in the property. I therefore find that the applicationis not bona fide and it is not maintainable. In the result this O.A.dismissed under Rule 9.1 (a) of the Kerala Land Reforms (Vestingand Assignment) Rules, 1970.”

3. Kumara Kurup died in the year 1982 and the respondentssucceeded to his interest. In the year 2009, the appellants herein filedRent Control Petition No.5 of 2009 before the Rent Control Court,Alappuzha, seeking eviction of the respondents from the suit property.It was submitted that the respondents who were initially paying rent hadstopped paying rent and the suit property was required for personalrequirement of the appellants. The respondents denied the title of theappellants. By its order dated 08.04.2014 the Rent Control Court allowedthe eviction petition. The order passed by the Land Tribunal (Ext A5 inRent Control proceedings) was relied upon and it was observed:- “Admittedly the scheduled building is situating in 27 cents ofproperty comprised in Sy. No.147/9 B of Mararikkulam SouthVillage and the Land Tribunal found that the property and cinematheatre absolutely belongs to the predecessor of Narayana KuruppuViswanadha Kuruppu. It is admitted by the respondents 5 to 7that Narayana Kuruppu Viswanadha Kuruppu is the only legalheir of Sankara Kuruppu. From Ext. A5, it can be seen that the A

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Atitle of Sankara Kuruppu and his son Viswanadha Kuruppu overthe property and building was admitted by Kumara Kuruppu andhe filed O.A. No.3233/75 for getting assignment of the propertyin his favour from the Land Tribunal. So it can be seen that thepredecessor of respondents 5 to 7. Sri Kumara Kuruppu admittedthe title of Viswanadha Kuruppu and finding in O.A. No.3233/75Bis binding on the respondents 5 to 7. Apart from that there isabsolutely no pleadings with respect to right of respondents 5 to 7or their predecessors over the plaint scheduled property. HenceI find that the denial of title raised in the objection by therespondents 5 to 7 is not bona fide.”

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4. The Rent Control Court also accepted the plea that the appellantsbona fide required the suit property for conducting Cinema Theatre.The operative direction issued in the order dated 05.04.2014 was asunder:

“An order or eviction is passed under Section 11(3) of the KeralaDBuildings (Lease and Rent Control) Act directing the respondentsto put the petitioners in possession of the petition scheduled buildingwithin one month from today.”

5. The respondent being aggrieved, filed Rent Control AppealNo.17 of 2014 before the Rent Control Appellate Authority, Alappuzha,Ewhich by its order dated 21.02.2017 dismissed said appeal. Whiledismissing the appeal, it was stated:-

“So Exbt.A8 would cut the very root of the case advanced by therespondents. Firstly Exbt.A8 would show that the said SankaraKurup has constructed the Cinema Theatre and he was keepingFbooks of accounts showing it. Secondly the said Kumara Kurupwas only a manager of the theatre. Thirdly the said KumaraKurup has accepted the said Viswanatha Kurup as his landlord.So the respondents who are claiming under the said Kumara Kurupcan’t claim any more right over the scheduled property.”

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G6. The respondents carried the matter further by filing Rent ControlRevision No.172 of 2017 in the High Court under Section 20 of theKerala Buildings (Lease and Rent Control) Act, 1965 (“the Act” forshort) which came to be allowed vide judgment and order dated09.08.2018 presently under appeal. The High Court found that therewas no material to arrive at a finding that there was any landlord-tenantH

relationship between the parties. The conclusion of the High Court wasas under:

“Having gone through the respective contentions urged by theparties, it is rather clear that there is no material to arrive at aconclusion that there was a landlord-tenant relationship betweenthe parties. Of course, what stands in the way of revisionpetitioners is the finding by the Land Tribunal when a claim fortenancy was made. But it could be seen that the claim for tenancywas on the allegation that the petitioner was a cultivating tenant.Apparently the claim was not genuine and was not maintainable.That apart the finding is that the claimant was the Manager of thetheatre. That is not the situation as far as the property is concerned.The property consists of 27 cents of land and a theatre building.The theatre was constructed well before the Kerala Land ReformsAct coming into force. There is substantial material to indicatethat the theatre was being run by the revision petitioners and theirpredecessor. But there is no material to indicate that it was on atenancy arrangement. In the absence of any material to arrive ata conclusion that there was landlord-tenant relationship, the RentControl Court has no jurisdiction to entertain the petition foreviction.”

7. In this appeal, we heard Mr. Kaleeswaram Raj, learnedAdvocate for the appellants and Mr. P.B. Suresh, learned Advocate forthe respondents.

8. It is a matter of record that in proceedings initiated before theLand Tribunal, Kumara Kurup (predecessor of the respondents) hadtaken the plea that he was a tenant in respect of the suit property. Theproceedings were filed against Viswanatha Kurup (predecessor of theappellants). While rejecting the plea taken by Kumara Kurup, the LandTribunal relied upon the accounts maintained by Sankara Kurup in hisown hand writing which showed that Kumara Kurup was only a manager.The plea of agricultural tenancy was rejected.

9. In the present proceedings accounts maintained by SankaraKurup, namely Ext.A8 were produced on record. Considering the entiretyof the circumstances and the fact that Kumara Kurup had acceptedViswanatha Kurup to be his landlord, the matter was decided in favourof the appellants by both the courts below.

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130SUPREME COURT REPORTS

A10. The scope of revisional powers under Section 20 of the Actcame up for consideration in Rukmini Amma Saradamma v. KallyaniSulochana and others[1]. While considering whether the High Courtcould have reappreciated entire evidence, it was laid down:

“20. We are afraid this approach of the High Court is wrong.BEven the wider language of Section 20 of the Act cannot enablethe High Court to act as a first or a second court of appeal.Otherwise the distinction between appellate and revisionaljurisdiction will get obliterated. Hence, the High Court was notright in re-appreciating the entire evidence both oral or documentaryin the light of the Commissioner’s report (Exts. C-1 and C-2Cmahazar). In our considered view, the High Court had travelledfar beyond the revisional jurisdiction. Even by the presence of theword “propriety” it cannot mean that there could be a re-appreciation of evidence. Of course, the revisional court can cometo a different conclusion but not on a re-appreciation of evidence;Don the contrary, by confining itself to legality, regularity andpropriety of the order impugned before it. Therefore, we are unableto agree with the reasoning of the High Court with reference tothe exercise of revisional jurisdiction.”

11. In Ubaiba v. Damodaran[2] exercise of revisional power wasEconsidered in the context of an issue whether the relationship of landlord-tenant existed or not. It was urged that whether such relationship existedwould be a jurisdictional fact. This Court dealt with the matter as under:- “3. Mr K. Sukumaran, the learned Senior Counsel appearing forthe appellant contended that however wide the jurisdiction of theFrevisional court under the Act in question may be, but it cannothave jurisdiction to reappreciate the evidence and substitute itsown finding upsetting the finding arrived at by the appellateauthority and therefore the impugned order of the High Court isunsustainable in law. In support of this contention reliance hasbeen placed on a decision of this Court in the case of RukminiGAmma Saradamma v. Kallyani Sulochana[1] whereunder theselfsame provision of the Kerala Act was under consideration.This Court after noticing the word “propriety” used in Section 20came to the conclusion that the approach of the High Court was 1 (1993) 1 SCC 499H2 (1999) 5 SCC 645

1 (1993) 1 SCC 499H2 (1999) 5 SCC 645

totally wrong and even the wider language of Section 20 of theAct cannot enable the High Court to act as a first or a secondcourt of appeal. Otherwise the distinction between appellate andrevisional jurisdiction will get obliterated. The Court also furtherobserved “even by the presence of the word ‘propriety’ it cannotmean that there could be any reappreciation of evidence”. Thelearned counsel for the respondent on the other hand contendedthat the aforesaid decision will have no application to the case inhand where the dispute involved relates to a jurisdictional factand according to the learned counsel where the dispute is in relationto a jurisdictional fact there should not be any fetter on the powerof the revisional court even to reappreciate the evidence and cometo its own conclusion. On being asked to support the aforesaidproposition no authority could be placed though on first principlelearned counsel for the respondent argued as aforesaid. Havingexamined the rival submission and having gone through the decisionof this Court referred to earlier we are of the considered opinionthat though the revisional power under the Rent Act may be widerthan Section 115 of the Code of Civil Procedure it cannot beequated even with the second appellate power conferred on thecivil court under the Code of Civil Procedure. Notwithstandingthe use of the expression “propriety” in Section 20, the revisionalcourt therefore will not be entitled to reappreciate the evidenceand substitute its own conclusion in place of the conclusion of theappellate authority. On examining the impugned judgment of theHigh Court in the light of the aforesaid ratio of this Court it iscrystal clear that the High Court exceeded its jurisdiction byreappreciating the evidence and in coming to the conclusion thatthe relationship of landlord-tenant did not exist. In thecircumstances, the impugned revisional order of the High Court iswholly unsustainable and we set aside the same and the order ofthe appellate authority is affirmed.

12. A Constitution Bench of this Court considered the revisionalpowers of the High Court under Rent Acts operating in different Statesin Hindustan Petroleum Corporation Limited v. Dilbahar Singh[3].The decision in Rukmini Amma Saradamma v. Kallyani Sulochanaand others[1] was again referred to in para 16. In para 38 it was observed:

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A“38. Rukmini[1] holds, and in our view, rightly that even the widerlanguage of Section 20 of the Kerala Rent Control Act does notenable the High Court to act as a first or a second court of appeal.We are in full agreement with the view of the three-Judge Benchin Rukmini[1] that the word “propriety” does not confer power uponthe High Court to reappreciate evidence to come to a differentBconclusion but its consideration of evidence is confined to find outlegality, regularity and propriety of the order impugned[4] before it.We approve the view of this Court in Rukmini[1].”

13. Considering the instant matter in the backdrop of law laiddown by this Court it must be stated that the findings rendered by theCcourts below were well supported by evidence on record and could noteven be said to be perverse in any way. The High Court could not havere-appreciated the evidence and the concurrent findings rendered bythe courts below ought not to have been interfered with by the HighCourt while exercising revisional jurisdiction.

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14. We, therefore, allow this appeal, set aside the judgment andorder dated 09.08.2018 passed by the High Court and restore the Decreefor eviction as passed by the Rent Control Court and confirmed by theRent Control Appellate Authority, Alappuzha. No order as to costs.

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Devika Gujral

Appeal allowed.

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