Denial of Title of the landlord
1. The second Proviso to section 11 (1) reads as:
Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court shall decide whether the denial or claim is bonafide and if it records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and such Court may pass a decree for eviction on any of the grounds mentioned in this section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.
The elementary rule must be observed that no one should profess to-understand any part of a statute or of any other document before he had read the whole of it. Until he has done so he is not entitled to say that it or any part of it is clear and unambiguous. We tend to ignore the last part of this proviso, we are tempted to end our reading the words “on any of the grounds mentioned in this section” the last part states the circumstances where the proviso applies.
The second Proviso to Sub section (1) of section 11 disjunctively sets out two circumstances where section 11 does not apply viz. (1) denial of title of the landlord without bonafides and (2) claim of permanent tenancy rights without bona fides. Consequently either denial of title or claim of permanent tenancy without bonafides will attract second proviso of S. 11 (1).
Tenant remaining in possession of the tenanted premises cannot challenge the legality of gift deed executed in favour of the landlord on the ground that there has not been a delivery of property. The tenant has only defacto possession, dejure possession is with the landlord. Denial of title by the tenant must be bonafide. Tenant cannot blow hot and cold after remaining in possession. Tenant cannot be heard to content that delivery has not been effected.
The plaintiff purchased a house from the vendor who induced tenant into the premises. On being appraised of the fact of purchase, the tenant not only failed to pay the rent to the purchaser plaintiff but also took a plea that he was a tenant of the third party with whom he had entered an agreement of sale. On a suit being founded by the landlord purchaser on the ground of denial of title it was held that such a plea of denial substantially and adversely affected the interest of the landlord.
A tenant is not permitted to deny title of his landlord even if the partition suit is pending with respect to the property nor can demand stay of eviction proceedings till title of his landlord in partition suit is decided. (See discussion in Estoppel)
In a suit based on title, the plaintiff can succeed only on proof of his title and mere destruction of the defendant’s title carries the plaintiff nowhere.
In order to constitute denial of title the tenant should deny the proprietary title of the landlord. Mere denial of landlord tenant relationship is not enough. To enable a person to raise a plea of denial of title warranting an enquiry under S 11 (1) regarding bonafides of the plea the person raising the plea must admit that his status in the building is that of a tenant even when he contends that petitioner in Rent Control Petition is not his landlord. Essentially what is contemplated is not proprietary title but title as landlord. The second proviso to Section 11(1) is available to any person who disputes his status as tenant. He need not admit that he is a tenant to avail benefit of the proviso. The second proviso must be available not only to the proved or admitted tenant but also to any person in possession who disputes the title of the landlord. The landlord has to prove his title and any of the grounds as per Rent Control Act in order to get an order of eviction where the tenant denies the title of the landlord.
One or more of the grounds of eviction under S.11 need not be proved by the landlord if the suit is falling under the second proviso to S.11(1).
To allow the revision petitioners to raise a contention based on the first proviso to S.11(3) at this belated stage will result in serious prejudice to the landlords. The contention which was prominently and seriously raised and pursued by the revision petitioners was the contention of denial of the landlords’ title to the building. It was the tumultuous contention that the building itself belong to the tenant which was raised and pursued by him. The tenants failed miserably in substantiating their contention. According to us, it will be most inequitable, having regard to R.11(8) of the Kerala Buildings (Lease and Rent Control) Rules which provides that the Rent Control Court and other authorities under the statute shall be governed by the principles of justice, equity and good conscience, to allow the tenant to raise such a contention at this stage.
2. Denial of title
The tenant who denies the title of the landlord is excluded from the purview of the Rent Control Act by virtue of second proviso to the section 11 (1). The jurisdiction transfers to the civil court for such disputes. Such civil court can evict the tenant if found that the denial amount to forfeiture of lease, if it founds that the denial does not amount to forfeiture of lease then the civil court is vested with powers of rent control court to decide the issue on any of the grounds mentioned in the section.
Denial of landlord’s title or disclaimer of tenancy by tenant is an act which is likely to affect adversely and substantially the interest of the landlord and hence is a ground for eviction of tenant.
The second proviso comes into play in two circumstances, (1) where the tenant denies the title of the landlord (2) when he claims permanent tenancy. Then the Rent Control Court shall decide whether the denial of title or claim of permanent tenancy is bona fide and if the Rent Control Court records a finding that the denial or claim is bonafide. The rent control court can only find whether the tenant bonafide denied the title of the landlord, the court has got no jurisdictional competence as to look into the validity of the claim. The Rent Control Court has jurisdictional competence to hold that the landlord has no title or that there is no landlord tenant relationship Then the landlord shall be entitled to sue for eviction of the tenant in a civil court. This is the only case where the civil court is vested with the power to adjudicate on rent control matters.
“Such civil court may pass a decree for eviction on any of the grounds mentioned in this section, notwithstanding that the court finds that such denial does not involve forfeiture of the lease.”
The civil court is required to conduct trial on any of the grounds under rent control Act is only when the denial does not involve forfeiture of the lease. It is not correct to say that the civil court can order eviction only on any of the grounds mentioned in this section irrespective of the finding whether the denial involves forfeiture of the lease or not. The scheme of the proviso to try the suit by a civil court is to determine the owner’s title and whether there is forfeiture. What is forfeiture can be seen in section 111 (g) 2 of Transfer of Property Act. If it were the intention of the legislature that the civil court can order eviction on any of the grounds mentioned in section 11 irrespective of whether there is forfeiture. The words would have been “notwithstanding that the court finds that such denial involve forfeiture of the lease” that is if the word ‘does not’ is not there then the meaning would have been that the civil court can pass order only on any of the grounds under Section 11 of the Act, in spite of the fact that the court finds that the denial involves forfeiture of the lease.
‘Every word in a statute to be given a meaning’. A construction which would leave without effect any part of the language of a statute will normally be rejected. Here the words “notwithstanding that the court finds that such denial does not involve forfeiture of the lease” is without any meaning or effect if it is said that the civil court can pass order of eviction only on any of the grounds mentioned in section 11 of The Kerala Buildings (Lease and Rent Control) Act, 1965. It is a well-settled principle of interpretation that words in a statute shall be given their natural, ordinary meaning, nothing should be added to them nor should any word be treated as otiose.
On the last part of the proviso there are two conditions under which the civil court may pass a decree for eviction on any of the grounds mentioned under section 11 of Kerala Buildings (Lease and Rent Control) Act. The first one is that ‘notwithstanding that the court finds that such denial does not involve forfeiture of the lease’. If there is no forfeiture, the civil court can pass eviction only on any of the grounds mentioned in section 11. If the Court finds that there is forfeiture of the lease the court can forthwith order eviction on forfeiture.
On the other hand if the court finds that there is no forfeiture of the lease due to some reason such as lessor not giving notice in writing of his intention to determine the lease or on ground that the tenant had not attributed the title in himself or in a third person, then the court need not send the case back to the Rent Control Court to consider the grounds for eviction. The civil court is vested with powers to pass a decree for eviction on any of the grounds mentioned in section 11 of the Act. The civil court is empowered to use the power of the Rent Control Court
If the denial does not involve forfeiture of the lease, either because all the ingredients are not present or because the denial is only Landlord tenant relationship and not the title, then the civil court may pass a decree for eviction on any of the grounds mentioned in this section. If the denial does involve forfeiture then the civil court can pass eviction of the tenant under forfeiture itself.
When the denial does not involve forfeiture of lease, the civil court can order eviction of the tenant only on any of the grounds of the Act. When there is forfeiture of lease then the civil court can pass order of eviction on forfeiture and need not revert to grounds under Rent Control Act.
The Rent Control Court on the basis of its finding that the tenant’s claim was not bonafide can pass an order of eviction.
In section 111 (g) 2 of the TP Act the words “has denied the title of the landlord” have not been used but the words used are “renounces his character as such by setting up a title in a third person or by claiming title in himself.” The term denial of title of landlord means renouncing the character of another as a landlord, whereas renouncing the character as a tenant, means that he is not a tenant of the plaintiff at all. It thus follows that denial of title of the landlord either results from the denial of relationship of landlord and tenant between the parties to suit or by setting up the tenancy relationship with a third person
Disclaimer under Section 111 (g) 2 of TP Act is a renunciation by lessee of his title as a tenant; the effect of disclaimer is to bring to an end the relationship of landlord and tenant, the cessation being by operation of law. Where the defendant claims to be a tenant not of the plaintiff but of a third person and paying rent to them even prior to suit, plea of disclaimer is established. In providing disclaimer as a ground for eviction of a tenant the provisions of S.111 (g) of the Transfer of Property Act have been given effect to in the second proviso. The principle of forfeiture on disclaimer is formed on the rule that a man cannot approbate and reprobate at the same time. Since the consequence of applying the rule is very serious, it must be held that denial has to be clear and in unequivocal terms. The first essential condition of ‘renunciation of title’ of the landlord must be a declaration by the tenant to the effect in unequivocal and unambiguous terms. Secondly the disclaimer of title of the landlord must be with the express object of repudiation of the tenancy.
Denying title of a landlord who is claiming to be the heir of the original landlord does not amount to denial of title of the landlord and he is not renouncing his character as such, because he is entitled, without incurring any legal consequence in that behalf, to call upon such a person to prove his title on devolution. The denial of the relationship of landlord and tenant by the tenant in his written statement in a suit for ejectment determines a tenancy, forthwith thus giving the right to the landlord to the possession of the leased property.
The tenant, by denying the title of the plaintiff who inducted her in the suit premises, and by setting up title in herself, has lost the protection accords to her by the Act. Hence she is liable to be evicted. The disclaimer or the repudiation of the title of the landlord must be clear and unequivocal and made to the knowledge of the landlord.
The moment the tenant sets up a title in a third person, he becomes liable to ejectment, as a result of the determination of the lease by forfeiture, on account of his renouncing his character as a lessee.
Mere demand by tenant to furnish copy of agreement that entitles transfer to recover rent from him does not amount to disclaimer of title. Where the title of real heir of the original Lessor is denied it certainly amounts to setting up of a title in somebody else because the property does not remain in vacuum. For effective disclaimer it is necessary that it must be in a judicial proceeding or other public record so as to work as forfeiture. Every denial of title is not a ground for eviction. It must be such which is likely to affect adversely and substantially the interest of the landlord To constitute denial of title as a ground for eviction there should be specific pleading and necessary facts have to be proved.
The principles of T.P. Act need not be brought into service in deciding case in Rent Control Act. It would result in inequality between a tenant who questions the landlord’s title while resisting eviction, and another who resists eviction without questioning the title. Both should be treated equally. Questioning the title and denying the title and claiming the title in the tenant himself are different.
The Rent Control Acts in India have borrowed or rather adopted or incorporated some conditions from the parent Act i.e. The Transfer of Property Act. 1882 and this ground is one of the illustrative of such borrowing.
The tenant was precluded from denying the title of the landlord on the general principle of estoppel between landlord and tenant. The principle in its basic foundation means no more than that law considers it unjust to allow a person to approbate and reprobate.
Disclaimer means renunciation by the party of his character as tenant either by setting up a title in another or by claiming in himself. In order to make either a verbal or written disclaimer sufficient, it must amount to a direct repudiation of the relation of the landlord and tenant or to a distinct claim hold possession of the estate upon a ground wholly inconsistent with that relation which by necessary implication is a repudiation of it.
The contention of denial of title put forward at the fag end of the trial cannot be allowed. Section 11 (1) of the Act is intended to prevent unscrupulous litigants from seeking eviction of persons who are not their tenants and to prevent unscrupulous tenants from protracting the Rent Control proceedings by making false claim of denial of title of the landlord. A tenant who wants to protract the Rent Control proceedings and delay eviction may raise a false contention that the landlord has no title. If rent control court finds that the denial is not bonafide the Rent Control Court can proceed with the final trial and dispose the case. It cannot be held that the Rent Control Court has no jurisdiction to consider the respective contentions as to the question of title. Overruled by 2006 (2) KLT 250 (FB)
It is trite that no person should be allowed to approbate and reprobate. Contending that only a Rent Control Petition was maintainable to evict the tenant, she cannot be permitted to question the maintainability of the Rent Control proceedings. Her contention that she could be evicted only by taking resort to the provisions of the Rent Control Act presupposes an admission regarding her status as a tenant. Therefore, she cannot be permitted to turn round and contend that she was not a tenant but the owner of the building. Dispute between two persons who claim to be owner of the building is to be deiced by civil court, in such proceedings the one who was the former tenant should not be given protection of the rent control Act. The courts should seriously take the last part of the proviso with the seriousness it deserves.
Landlord in a given case although may not be able to prove the relationship of landlord and tenant, but in the event he proves his general title, may obtain a decree on the basis thereof. It is also well settled that one such relationship is admitted or established, tenant would be estopped and precluded from challenging the title of the landlord and if he does so, under the general rule, make himself liable for eviction on that ground. It, therefore, logically follows that a finding of existence of relationship of landlord and tenant is a sine qua non for passing a decree for eviction against a tenant except in a case, as mentioned hereinbefore the plaintiff on payment of ad valorem Court fee may obtain a decree for eviction on the basis of his general title.
12. Difference between denial of title under second proviso to section 11 (1) and subsection 3 of section 10.
Where two rival landlords claim rent from the tenant in possession on the basis of alleged derivation of title and the tenant bonafidely entertaining doubt deposits the rent in Bank for a lawful landlord who may be so declared eventually by the court such act does not amount to denial of title. Mere demand by tenant to furnish copy of agreement that entitles transferee to recover rent from him does not amount to disclaimer of title.
3. Landlord Tenant Relationship
The Act is applicable only if there is the relationship of landlord and tenant. It cannot apply where the house is in occupation of a co-owner.
4. What is Bonafide Denial
The denial of the title or claim of right of permanent tenancy shall only exclude the tenant from the protection of the Rent Control Law when the denial or the claim is bonafide. Bonafide means, if the tenant asserts the denial of the title or claim of right of permanent tenancy knowingly in unequivocal and unambiguous terms. Then only such plea will operate as a criterion for excluding the tenant from the protection of rent control legislation. The denial must be clear and unequivocal. The Rent Controller need only to look whether the denial was bonafide or not, The Rent Controller has got no jurisdictional competence to look whether the denial was valid or not. The Rent Controller need only look whether the tenant had denied the title in unambiguous terms and knowing fully well what he is doing. Mere enquiry as to who is the landlord or landlord should be put to proof of his title will not amount to denial of title.
The existence of Landlord Tenant relationship is inevitable for Rent control court to exercise its jurisdiction. The tribunal cannot decide dispute regarding title. That is the area where the civil court must entertain jurisdiction. The Rent Control Court can decide whether the denial of title is bonafide or not. It is not expected to and does not have jurisdictional competence to enter a finding whether the denial of title is valid or not. Rent Control Court can proceed to exercise its jurisdiction after recording a finding that the denial is not bonafide. Only a civil court can decide question of title.
Nature of the enquiry that is stipulated by the second proviso to S.11(1) of the Act as to whether the denial of title of the landlord by the tenant was bona fide or not. It has been held that the chances of success of the tenant in a civil suit is one of the tests for determining whether the plea of the tenant was bona fide or merely intended to protract matters. In my opinion the nature of enquiry regarding the bonafide of denial at this stage is to the extent of, whether the tenant has denied the title of the landlord with ample knowledge that he is doing such denial. Where the tenant has denied the title of the landlord and claimed title in himself, the legal system has no duty to cast the rights of the tenant on such person. He is claiming to be the landlord. Rent Control Act is not casting upon him the protection available to a tenant. The matter is to be decided on the strength of title. The civil court should decide whether there is forfeiture of lease, if there is no forfeiture the court has got power to order eviction on any of the grounds mentioned in the rent control Act.
Rent Control Court is entitled and bound to decide the question whether the question of title is bonafide or not. For finding bonafides of the claim Rent Control Court need only look into the materials before it. When a plea of permanent tenancy or permanent immunity from eviction is raised by the alleged tenant facing eviction proceedings in the Rent Control Court, the Rent Control Court has the jurisdiction to decide whether the claim is bona fide. Rent Control Court should permit both sides to produce materials which will enable the Court to decide whether the claim of permanent tenancy or permanent immunity from eviction raised by the revision petitioner is a bona fide one.
Denial of landlord’s title or disclaimer of tenancy by tenant is an act which is likely to affect adversely and substantially the interest of the landlord and hence is a ground for eviction of tenant. To amount to such denial or disclaimer, as would entail forfeiture of tenancy rights and incur the liability to be evicted, the tenant should have renounced his character as tenant and in clear and unequivocal terms set up title of the landlord in himself or in a third party, A tenant bonafide calling upon the landlord to prove his ownership or putting the landlord to proof of his title so as to protect himself (i.e. the tenant) or to earn a protection made available to him by Rent Control Law but without disowning his character of possession over the tenancy premises as tenant cannot be said to have denied the title of landlord or disclaimed the tenancy.
Wherein a rent control proceedings, the tenant asserted that he was neither the tenant of the landlord, nor of anybody else, it was held to be assertion of his own title impliedly amounting to a disclaimer of title. Where a tenant alleged that the landlord was not alone the person entitled to sue but there are other persons who are the co-sharers in the property leased, it was taken to be, in effect, the assertion, that the person is not a lesser and it amounted to disclaimer of title. When a tenant denies the title of one of the co-landlord and pleads sole ownership in other co-landlord, such plea amounts to denial of title.
The Rent Control Court should permit both sides to produce materials which will enable the Court to decide whether the claim of permanent tenancy or permanent immunity from eviction raised by the revision petitioner is a bona fide one. If the result of the enquiry is that claim is a bona fide one, then only the Rent Control Court will be justified in relegating the parties to a Civil Court.
5. Jurisdiction of Civil Court
There was a bonafide dispute as to title raised by the tenant/appellants and, therefore, the rent controller did not have jurisdiction to hear and finally adjudicate upon the application filed by the landlord/respondent before it. However, this finding is limited to the issue of the rent controller’s jurisdiction and shall not preclude the respondent landlord from approaching a competent civil court for determination of the issue finally and no observations made in this judgment will prejudice the trial of this or any other issue that the respondent may raise on merits. All the matters can be re-agitated in the Civil Court. Final adjudication of the dispute has to be done by the Civil Court, notwithstanding the earlier findings regarding title to the property and landlord tenant relationship and arrears of rent.
It is for the landlord, to withdraw the proceeding before the rent control court and to proceed against the tenant under the general law, where the law says so. That course having not been adopted by the landlord the proceeding under the Rent Control Act was clearly not maintainable and was rightly dismissed by the trial court.
In a civil suit on the strength of title where the tenant denies the title of the landlord Rent Control Act has no application, especially when claimed at the execution stage.
6. Tenant and landlord are governed by provisions of Rent Control Act
A cardinal principle of statutory interpretation is that a provision in a statute must be read as a whole and not in isolation ignoring the other provisions of that statute — While dealing with a statutory instrument, one cannot be allowed to pick and choose.
Hence a tenant who is denying the title of the landlord or claims permanent tenancy can be evicted only in accordance with the grounds specified in the Act. The tenant gets the protection of the Act even though the forum is Civil Court. The tenant who gets the protection of the Act is also liable under the act under section 12 and his rent can be fixed under section 5.
7. Forfeiture of lease
Forfeiture of the lease is defined in section 111 (g) of Transfer of Properties Act and forfeiture by denial of title of landlord is mentioned in section 111subsection g (2). Section 111 deals with determination of lease by 8 modes mentioned in subsections ‘a’ to ‘h’. (Out of these eight subsections, subsection’ g’ is divided further into 3 subsections.) All these provisions are over run by Act 2 of 1965 except S.111 (g) 2 (which is incorporated in the second proviso to said section 11) S.111 (g) 2 of T.P. Act 1882 reads as follows:- “A lease of immovable property determines by forfeiture, that is to say in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself and the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease”.
To constitute forfeiture as per Transfer of Property Act there are three sine qua non prerequisites and they are:-
1. Denial of title of the landlord, and then
2. The tenant should set up a title in himself or in a third person, just denying the title of the landlord does not constitute forfeiture of lease. (When the tenant sets up a title in a third person, it is called ‘justerti’)
3. The lessor or his transferee must give a notice in writing to the lessee of his intention to determine lease.
In Kerala Buildings (Lease and Rent Control) Act 1965 this section of Transfer of Property Act is given effect to by the second proviso of section 11. The Act 2 of 1965 does not insist on the three prerequisites of section 111 (g) 2 of the T P Act. Here if the court finds that there is forfeiture i.e.. all the prerequisites under S. 111 (g) 2 of the Transfer of Property Act is complied with then the court can pass a decree for eviction on that ground itself. But if the court finds that such denial of title does not involve forfeiture of the lease due to lack of any of the prerequisites such court may pass a decree for eviction on any of the grounds mentioned in this section ie. S.11 of Kerala Buildings (Lease and Rent Control) Act even if the landlord is not able to prove the ground.
Section 111 of Transfer of property Act
111.Determination of lease
.- A lease of immoveable property determines—
(a) by efflux of the time limited thereby:
(b) where such time is limited conditionally on the happening of some event—by the happening of such event:
(c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event—by the happening of such event:
(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right:
(e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them:
(f) by implied surrender:
(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease:
(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.
Illustration to clause (f)
A lessee accepts from his lessor a new lease of the property leased, to take effect during the continuance of the existing lease. This is an implied surrender of the former lease, and such lease determines thereupon.
The civil court has to examine whether there is forfeiture of tenancy. If there is forfeiture the civil court can declare that the tenancy had determined. In order to constitute forfeiture, the tenant should renounce his character as tenant by setting up a title in a third person or by claiming title himself. Then the landlord gets a right to determine the lease, the landlord is at liberty to exercise that right or not. In order to exercise the option the landlord has to give notice in writing to the lessee of his intention to determine the lease and file civil suit for declaration of title and recovery of possession.
Findings in rent control proceedings regarding absence of tenancy arrangement, will not act as resjudicata in a suit for declaration of title and recovery of possession.
7. Denial of title and principle of adverse possession
The tenant’s right of adverse possession starts from the date of denial of his landlord’s title and matures on the completion of the statutory period.
Adverse possession must commence in wrong and must be maintained against right and maintained for the statutory period. Limitation begins to run when the possession of the tenant becomes adverse to that of the owner. Mere declaration is not enough.
Although possession of a tenant, however, full and complete, does not of itself operate as an ouster of the owner, the mere fact that a person enters as a tenant, does not preclude him from acquiring title against his landlord by adverse possession. It can operate as an ouster if he abandons the idea of holding as a tenant and sets up and asserts an exclusive right in himself. He must either give notice of his claim, or his possession should be accompanied by some overt act asserting an ownership of such an open, notorious and hostile character as not to be easily misunderstood. Limitation begins to run when the possession of the tenant becomes adverse to that of the owner, that is, when the acts of the tenant are of such a character as to show that he claims exclusive ownership and denies the rights of the owner. Mere declaration is not enough.
Denial of landlord’s title or disclaimer of tenancy by tenant is an act, which is likely to affect adversely and substantially the interest of the landlord and hence is a ground for eviction of tenant. To amount to such denial or disclaimer, as would entail forfeiture of tenancy rights and incur the liability to be evicted, the tenant should have renounced his character as tenant and in clear and unequivocal terms set up title of the landlord in himself or in a third party, A tenant bonafide calling upon the landlord to prove his ownership or putting the landlord to proof of his title so as to protect himself (i.e. the tenant) or to earn a protection made available to him by Rent Control Law but without disowning his character of possession over the tenancy premises as tenant cannot be said to have denied the title of landlord or disclaimed the tenancy.
In a Rent Control Petition the tenant defendant had setup an independent title and denied the landlord tenant relationship. So civil suit was filed for declaration of title and recovery of possession on the basis of title. In such suit the plaintiff need not prove any of the grounds for eviction available under section 11.
Section 5 of the Specific Relief Act 1963
5. Recovery of specific immovable property.-
A person entitled to the possession of specific immovable property may it in the manner provided by the Code of Civil Procedure, 1908 (5 of 1908).
In case of denial of title of the landlord the tenant should be treated as a trespasser and the landlord can claim mesne profit for the use of the building.
The tenant’s denial of title will mature into adverse possession after the twelfth year, if the landlord fails to file civil suit within twelve years he cannot evict the tenant, or if the civil court which try the suit did not find any ground to evict the tenant and is allowed to continue in the building. The adverse possession will mature into prescriptive right in twelve years.
8. Provisions as to notice in writing
The word used is “giving notice” imposes lighter duty on the lesser because ‘giving notice imposes lighter duty than ‘serving the notice’. Hence a letter by ordinary post will suffice.
A conduct of claiming title in himself on the part of the lessee does not ipso facto put an end to lease thus enabling the landlord to obtain possession. But it confers a right on the lessor, if he so elects, to determine the lease by a notice as required by Sec. 111 (h) of Transfer of Property Act.
The happening of any one of the events mentioned under Section 111 (g) would not ipso facto determine the lease. The landlord will have to express his intention to determine the lease in a notice in writing which should be served on the lessee, but this does not mean that the lessor must give two notices, one expressing his intention to determine the lease and the other actually determining the lease. The notice can be any of the following natures 1) notice to determine lease, 2) notice to quit 3) notice of intention to quit. The landlord’s termination of tenancy even without a written notice is good at law.
The provision regarding sending notice under The Transfer of Property Act has been amended by Act 3 of 2003 as follows.
106.Duration of certain leases in absence of written contract or local usage.- 1) In the absence of a contract or local law or usage to the contrary, a lease of immoveable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months’ notice; and a lease of immoveable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days’ notice.
2) Not withstanding anything contained in any other law for the time being in force the periods mentioned in subsection (1) shall commence from the date of receipt of notice.
3) A notice under subsection (1) shall not be deemed to be invalid merely because the period mentioned there falls short of the period specified under that subsection, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.
4) Every notice under subsection (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it, or be tendered or delivered personally to such party or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.
9. Estoppel
Though the rent control litigation being a summary procedure, the Indian Evidence Act and other relevant provisions of different laws governed the conditions with regard to admission and rejection of evidence . While considering the principle of estoppel the provisions of Rent Control Act follows section 116 of the Indian Evidence Act.
The Section 116 of the Evidence Act reads as follows:
Estoppel of tenant; and of licensee of person in possession- No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a tile to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given.
The estoppel contemplated in section 116 is restricted to the denial of title at the commencement of tenancy and by implication it follows that a tenant is not estopped from contending that the title of the lessor had since come to an end. So a tenant is not precluded from denying the derivative title of the person claiming through the landlord. Tenants was inducted by predecessor in interest of respondent and paying rent to respondent. This fact leads to the conclusion that relationship of landlord and tenant existed. Question as to whether respondent was absolute owner of the premises, is not relevant in considering the question whether there existed the jural relationship of landlord and tenant.
When the tenancy has been determined by eviction by title paramount no question of estoppel arises under Section 116 of the Evidence Act. The estoppel is equally applicable in cases of attornment also generally, the question of title to the leased out premises is irrelevant in a suit between landlord and tenant. Once it is found that there was a contractual relationship of landlord and tenant between the parties, Section 116 will bar the further enquiry as to the title at the instance of tenant or a person claiming through him. A tenant is not estopped from questioning the derivative title of a transferee of his landlord. The estoppel under Section 116 does not exclude the rule of general estoppel. Section 116 of the Evidence Act also prohibits the tenant from denying the title of the landlord due to estoppel. Derivative title of vendee landlord denied on ground that the vendor of the premises, to whom the tenant had atoned, had himself no title. Held, Denial not based on ground of any infirmity or defect in flow of title from the vendor, and that the act amounted to denial of landlord’s title.
A tenant who has been let into possession cannot deny his landlord’s title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord. It is also well settled that during the continuance of the tenancy, the tenant cannot acquire by prescription a permanent right of occupancy in derogation of the landlord’s title by mere assertion of such a right to the knowledge of the landlord.
10. Permanent Tenancy
The Second aspect of the proviso is applicable when the tenant claims right of permanent tenancy, then the Rent Control Court shall decide whether the claim of permanent tenancy is bonafide knowingly in unequivocal and unambiguous terms and if it records a finding that there is a bonafide clear claim, then the landlord shall be entitled to move the civil court for the eviction of the tenant, and such civil court may pass a decree for eviction on any of the grounds envisaged in this section if the court finds that the claim is unfounded. If the claim is well founded the tenants right becomes permanent.
Tenant claimed right of permanent tenancy. The Rent Control Court on the basis of its finding that the tenant’s claim was not bona fide can pass an order of eviction.
Jurisdiction to decide the claim for permanent tenancy is on the Rent Control Court.
Permanent tenancy can be claimed by a tenant only. Permanent tenancy means a permanent immunity from eviction or a tenancy which is to last forever till the subject matter exists. Investing of substantial amount by the tenant towards the improvement of the building of course with the consent of the landlord is a bar on the part of the landlord to evict the tenant unless and until the amount expended are paid back. The license become irrevocable license under section XXX of Easement Act.
When a tenant claims right of permanent tenancy, that tenant is thrown out of the purview of the Act by virtue of the proviso to S.11 as mentioned above. Section 11 starts with a non-obstante clause which makes the whole Act overriding all other contract or law, the scope of this section is very wide. The proviso to this wide section takes the tenant who claimed permanent tenancy from the purview of the Act itself not merely from the purview of the section, but from the purview of the Act. Hence the tenant gets no benefits under the Act.
It is seen that the appellant had the opportunity to raise the plea of the bona fide denial of title as well as the remedies of S. 72B and S. 106 of the Land Reforms Act. He chose to deny the title of the landlords setting up the plea that he constructed the buildings and that the lease was only of open land. However, the appellant chose to deny the title of the landlords and did not raise the plea of S. 106 of the Land Reforms Act. The rule of “might and ought” envisaged in Explanation IV to S.11, C.P.C. squarely applies to the facts of the case and, therefore, it is no longer open to the appellant to plead that, Civil Court has no jurisdiction to decide the matter and it shall be required to be referred to the Land Tribunal.
The civil court is vested with power to decide the provisions of Kerala Buildings (Lease and Rent Control) Act in this circumstance. This is to avoid shuttling of landlord between Rent Control Court and Civil Court and then to Rent Control Court. i.e.. At first the landlord filed a petition before the Rent Control Court, there the tenant put up a plea that he has got right of permanent tenancy, then the landlord has to file a civil suit in a competent civil court because the Rent Control Court is not competent to decide upon that matter, then if the civil court decide that there is permanent tenancy then the matter is settled, in favour of the tenant and he can not be evicted but if the court finds that there is no permanent tenancy and the civil court is not vested with the power to adjudicate the Rent Control matters then the landlord would have to file the petition in the Rent Control Court again. In order to avoid this inconvenience the legislature has wisely given the power to the Civil Court. The civil court is invested with jurisdiction in matters of eviction under any of the grounds mentioned in the Rent Control Act, under the second proviso to section 11 (1).
This denial of title or claim of right of permanent tenancy shall only operate as criteria for excluding the tenant from the rent legislation when the denial or the claim is bonafide. In other words if denial of title or claim of permanent tenancy is asserted and the tenant do so fully knowing the act he is doing, then only such plea will operate as a ground for eviction. Bonafide denying the title means denying title fully knowing that he is denying his landlord’s title. Whether the denial or claim is valid or not is not the point to be considered at this juncture further the denial or claim should be proved false and vexatious in the civil court. The civil court is invested with jurisdiction in matters of eviction under the second proviso to section 11 (1).
The right of the tenant under the Kerala Land Reforms Act and Kerala Buildings (Lease and Rent Control) Act are alternative rights. If a tenant avails of the right provided under one statute with full knowledge of the relevant facts, the right recognized under the other Act, must held to have been waived, and the tenant shall not be allowed to give up that stand and take a new stand. The tenant took contention that he was a cultivating tenant. The Land Tribunal rejected his plea. The tenant sought to amend his written statement by raising a claim of Kudikidappu. This amendment is not bonafide and is a belated one. Amendment cannot be allowed. Having elected to avail of the right conferred on the tenant under the Rent Control Act and got an order from the authorities constituted under that Act to the prejudice of the landlord, the petitioner shall not be permitted to give up that stand and take shelter under The Kerala Land Reforms Act and avail of the benefit of S. 75 thereof.
Tenant resisting eviction petition on the ground that he is a ‘kudikidappukaran’ entitled to protection under Land Reforms Act. Landlord contending that the building has 9 rooms and the value of the building is more than Rs.750. To calculate the value of the building in respect of which there is a ‘kudikidappu’ claim, the value of the additional construction made by the ‘kudikidappukaran’ is to be excluded. Tenant entitled to protection.
If the court finds that the claim of permanent tenancy is unfounded the outcome is that the tenant does not get a right of permanent tenancy and the tenant can be evicted by that civil court which decide the claim is empowered to consider the matter of grounds of eviction under Rent Control Act.
Denying the title of the landlord and claiming Kudikidappu or any such right of permanent tenancy will attract the impact of 2nd proviso of section 11. and thereby the tenant is disentitled to claim the benefits conferred to him by the Kerala Buildings (Lease and Rent Control) Act. This is based on the principle that “a man should not be allowed to approbate and reprobate in the same time.” Here the tenant renounces his character as such and consequently he cannot claim benefits of Rent Control Act which gives protection to tenants.
11. Court fees
In a suit filed under section 11 (1) second proviso the court fee is to be paid under section43 of the court fees and suit valuation Act, and not under section 30. A finding of existence of relationship of landlord and tenant is a sine qua non for passing a decree for eviction against a tenant the plaintiff on payment of ad valorem Court fee may obtain a decree for eviction on the basis of his general title.
12. Deposit of rent where there is dispute or doubt of right to receive rent.
Where the tenant has got genuine doubt or dispute as to the ownership or bonafide doubt as to the person who is entitled to receive the rent the building he is occupying, the tenant can protect his right under S. 10 (3).
Where two rival landlords claim rent from the tenant in possession on the basis of alleged derivation of title and the tenant bonafidely entertaining doubt deposits the rent in Bank for a lawful landlord who may be so declared eventually by the court such act does not amount to denial of title.
It is most important to mention that all those Acts, which prescribe the claim of permanent tenancy, would be a ground for eviction also make it abundantly clear that if the claim of the tenant to such a permanent tenancy is bonafide, it would not be a ground. This qualification to the ground was necessary for doing full justice to the tenants. Otherwise, every rightful claim for permanent tenancy would entail the eviction of the tenant. Thus the claim of permanent tenancy by the tenant would only operate as a ground when the claim is not bonafide and it is false, frivolous or vexatious and having no foundation.
All eviction petitions except suit under 11(1) are to be filed in the Rent Control Court. The civil suit under Section 11(1) second proviso can be filed in a civil court of competent jurisdiction, only after The Rent Control Court arrived at a finding that there exists a bonafide dispute as to title. The landlord cannot directly come to Civil Court claiming that his tenant had denied his title.
Rented Building Owners Association Kerala 
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