THANKAMONY AMMA & ORS.versusOMANA AMMA N. & ORS.

                          [2019] 10 S.C.R. 125                             125


                 THANKAMONY AMMA & ORS.                                    A
                                   v.
                    OMANA AMMA N. & ORS.
                   (Civil Appeal No. 6147 of 2019)
                          AUGUST 13, 2019                                  B
      [UDAY UMESH LALIT AND VINEET SARAN, JJ.]
       Kerala Buildings (Lease and Rent Control) Act, 1965: s.20 –
Revision – The predecessor of the respondents was conducting the
management of the theatre on the piece of land owned by his father-
                                                                           C
in-law – On the death of father-in-law (original owner), son of
original owner (pre-decessor of the appellants) raised a claim that
he was entitled to the rights and interest in the said theatre by virtue
of a will executed by his father – Predecessor of the respondents
initiated proceedings before Land Tribunal on the ground that he
was cultivating tenant and as such entitled to protection under Kerala     D
Land Reform Act, 1963 which ground was rejected and it was held
that the rent property belonged to the son of the original owner – In
1982, pre-decessor of the respondents died and respondents
succeeded to his interest – In 2009, appellant filed eviction suit
against respondents on the ground of non-payment of rent – Rent
                                                                           E
Control Court allowed eviction petition relying upon the order
passed by Land Tribunal – Appellate authority upheld the order of
Rent Control Court – Respondents filed revision before High Court
under s.20 of Rent Control Act, 1965 – High Court allowed the
revision petition holding that there was no material to arrive at a
finding that there was any landlord-tenant relationship between the        F
parties – On appeal, held: It is a matter of record that in proceedings
initiated before the Land Tribunal, predecessor of the respondents
had taken plea that he was a tenant in respect of the suit property –
While rejecting the said plea, the Land Tribunal had relied upon
the accounts maintained by original owner in his own hand-writing
                                                                           G
which showed that his son-in-law was only a manager – Revisional
Court cannot have jurisdiction to re-appreciate the evidence and
substitute its own finding upsetting the finding arrived at by the
appellate authority – The findings rendered by the courts below
were well supported by evidence on record and could not even be
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                                  125
126            SUPREME COURT REPORTS                     [2019] 10 S.C.R.


A     said to be perverse in any way – High Court could not have re-
      appreciated the evidence and the concurrent findings rendered by
      the courts below ought not to have been interfered with by the High
      Court while exercising revisional jurisdiction – Impugned order is
      set aside and decree of eviction is restored – Kerala Land Reforms
      Act, 1963 – Rent Control and Eviction – Jurisdiction – Revision.
B
            Rukmini Amma Saradamma v. Kallyani Sulochana and
            others (1993) 1 SCC 499 : [1992] 3 Suppl. SCR 579 ;
            Ubaiba v. Damodaran (1999) 5 SCC 645 ; Hindustan
            Petroleum Corporation Limited v. Dilbahar Singh (2014)
            9 SCC 78 ; Kalyani Sulochana v. Saradamma (1991)
C           SCC OnLine Ker 213 : (1991) 2 KLJ 105 - relied on.
                            Case Law Reference
      [1992] 3 Suppl. SCR 579        relied on.             Para 10
      (1999) 5 SCC 645               relied on.             Para 11
D
      (2014) 9 SCC 78                relied on.             Para 12
      (1991) 2 KLJ 105               relied on.             Para 12
            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6147
      of 2019.
E           From the Judgment and Order dated 09.08.2018 by the High Court
      of Kerala at Ernakulam in R.C.R. No. 172 of 2017.
            Kaleeswaram Raj, Ms. Maitreyi S. Hegde, Romsha Raj, Nishe
      Rajen Shonker, Advs. for the Appellants.

F          P. B. Suresh, Vipin Nair, Karthik Jayashankar, Advs. for the
      Respondents.
            The Judgment of the Court was delivered by
            UDAY UMESH LALIT, J.
            1. This appeal challenges the final judgment and order dated
G
      09.08.2018 passed by the High Court of Kerala in RCR No.172 of 2017.
            2. One Sankara Kurup, owner of a piece of land admeasuring 27
      cents erected a Theatre named “Manorama Theatre” thereon (“suit
      Property”, for short). The management of the Theatre was being
      conducted by his son-in-law named Kumara Kurup (predecessor of the
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THANKAMONY AMMA & ORS. v. OMANA AMMA N. & ORS.                                 127
            [UDAY UMESH LALIT, J.]

respondents herein). After the death of Sankara Kurup, a claim was             A
raised by his son Viswanatha Kurup that he was entitled to the rights
and interests in said Theatre by virtue of a Will executed by his father.
      Soon thereafter, proceedings were initiated by Kumara Kurup
before the Land Tribunal Alappuzha being OA No.3233 of 1975
submitting, inter alia that he was a cultivating tenant and as such entitled   B
to protection under the Kerala Land Reforms Act, 1963. Viswanatha
Kurup was arrayed as respondent in the proceedings. The application
preferred by Kumara Kurup was rejected by the Land Tribunal,
Alappuzha on 17.03.1976. The finding rendered by the Land Tribunal
was to the following effect:-
                                                                               C
       “The oral evidence adduced by respondent shows that the
      scheduled property and cinema theatre belongs to the respondent’s
      father and after his death the property passed to him. Ext.B1
      accounts maintained in the hand-writing of the father of the
      respondent shows that the applicant is only the manager of the
      cinema theatre in the property. I therefore find that the application    D
      is 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 (Vesting
      and Assignment) Rules, 1970.”
       3. Kumara Kurup died in the year 1982 and the respondents
succeeded to his interest. In the year 2009, the appellants herein filed       E
Rent 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 had
stopped paying rent and the suit property was required for personal
requirement of the appellants. The respondents denied the title of the         F
appellants. By its order dated 08.04.2014 the Rent Control Court allowed
the eviction petition. The order passed by the Land Tribunal (Ext A5 in
Rent Control proceedings) was relied upon and it was observed:-
      “Admittedly the scheduled building is situating in 27 cents of
      property comprised in Sy. No.147/9 B of Mararikkulam South               G
      Village and the Land Tribunal found that the property and cinema
      theatre absolutely belongs to the predecessor of Narayana Kuruppu
      Viswanadha Kuruppu. It is admitted by the respondents 5 to 7
      that Narayana Kuruppu Viswanadha Kuruppu is the only legal
      heir of Sankara Kuruppu. From Ext. A5, it can be seen that the
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128            SUPREME COURT REPORTS                           [2019] 10 S.C.R.


A           title of Sankara Kuruppu and his son Viswanadha Kuruppu over
            the property and building was admitted by Kumara Kuruppu and
            he filed O.A. No.3233/75 for getting assignment of the property
            in his favour from the Land Tribunal. So it can be seen that the
            predecessor of respondents 5 to 7. Sri Kumara Kuruppu admitted
            the title of Viswanadha Kuruppu and finding in O.A. No.3233/75
B
            is binding on the respondents 5 to 7. Apart from that there is
            absolutely no pleadings with respect to right of respondents 5 to 7
            or their predecessors over the plaint scheduled property. Hence
            I find that the denial of title raised in the objection by the
            respondents 5 to 7 is not bona fide.”
C            4. The Rent Control Court also accepted the plea that the appellants
      bona fide required the suit property for conducting Cinema Theatre.
      The operative direction issued in the order dated 05.04.2014 was as
      under:
            “An order or eviction is passed under Section 11(3) of the Kerala
D           Buildings (Lease and Rent Control) Act directing the respondents
            to put the petitioners in possession of the petition scheduled building
            within one month from today.”
            5. The respondent being aggrieved, filed Rent Control Appeal
      No.17 of 2014 before the Rent Control Appellate Authority, Alappuzha,
E     which by its order dated 21.02.2017 dismissed said appeal. While
      dismissing the appeal, it was stated:-
            “So Exbt.A8 would cut the very root of the case advanced by the
            respondents. Firstly Exbt.A8 would show that the said Sankara
            Kurup has constructed the Cinema Theatre and he was keeping
F           books of accounts showing it. Secondly the said Kumara Kurup
            was only a manager of the theatre. Thirdly the said Kumara
            Kurup has accepted the said Viswanatha Kurup as his landlord.
            So the respondents who are claiming under the said Kumara Kurup
            can’t claim any more right over the scheduled property.”
G           6. The respondents carried the matter further by filing Rent Control
      Revision No.172 of 2017 in the High Court under Section 20 of the
      Kerala Buildings (Lease and Rent Control) Act, 1965 (“the Act” for
      short) which came to be allowed vide judgment and order dated
      09.08.2018 presently under appeal. The High Court found that there
      was no material to arrive at a finding that there was any landlord-tenant
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THANKAMONY AMMA & ORS. v. OMANA AMMA N. & ORS.                                  129
            [UDAY UMESH LALIT, J.]

relationship between the parties. The conclusion of the High Court was          A
as under:
      “Having gone through the respective contentions urged by the
      parties, it is rather clear that there is no material to arrive at a
      conclusion that there was a landlord-tenant relationship between
      the parties. Of course, what stands in the way of revision                B
      petitioners is the finding by the Land Tribunal when a claim for
      tenancy was made. But it could be seen that the claim for tenancy
      was 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 the
      theatre. That is not the situation as far as the property is concerned.   C
      The property consists of 27 cents of land and a theatre building.
      The theatre was constructed well before the Kerala Land Reforms
      Act coming into force. There is substantial material to indicate
      that the theatre was being run by the revision petitioners and their
      predecessor. But there is no material to indicate that it was on a        D
      tenancy arrangement. In the absence of any material to arrive at
      a conclusion that there was landlord-tenant relationship, the Rent
      Control Court has no jurisdiction to entertain the petition for
      eviction.”
       7. In this appeal, we heard Mr. Kaleeswaram Raj, learned                 E
Advocate for the appellants and Mr. P.B. Suresh, learned Advocate for
the respondents.
      8. It is a matter of record that in proceedings initiated before the
Land Tribunal, Kumara Kurup (predecessor of the respondents) had
taken the plea that he was a tenant in respect of the suit property. The        F
proceedings were filed against Viswanatha Kurup (predecessor of the
appellants). While rejecting the plea taken by Kumara Kurup, the Land
Tribunal relied upon the accounts maintained by Sankara Kurup in his
own hand writing which showed that Kumara Kurup was only a manager.
The plea of agricultural tenancy was rejected.
                                                                                G
       9. In the present proceedings accounts maintained by Sankara
Kurup, namely Ext.A8 were produced on record. Considering the entirety
of the circumstances and the fact that Kumara Kurup had accepted
Viswanatha Kurup to be his landlord, the matter was decided in favour
of the appellants by both the courts below.
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130               SUPREME COURT REPORTS                         [2019] 10 S.C.R.


A           10. The scope of revisional powers under Section 20 of the Act
      came up for consideration in Rukmini Amma Saradamma v. Kallyani
      Sulochana and others1. While considering whether the High Court
      could have reappreciated entire evidence, it was laid down:
               “20. We are afraid this approach of the High Court is wrong.
B              Even the wider language of Section 20 of the Act cannot enable
               the High Court to act as a first or a second court of appeal.
               Otherwise the distinction between appellate and revisional
               jurisdiction will get obliterated. Hence, the High Court was not
               right in re-appreciating the entire evidence both oral or documentary
               in the light of the Commissioner’s report (Exts. C-1 and C-2
C              mahazar). In our considered view, the High Court had travelled
               far beyond the revisional jurisdiction. Even by the presence of the
               word “propriety” it cannot mean that there could be a re-
               appreciation of evidence. Of course, the revisional court can come
               to a different conclusion but not on a re-appreciation of evidence;
D              on the contrary, by confining itself to legality, regularity and
               propriety of the order impugned before it. Therefore, we are unable
               to agree with the reasoning of the High Court with reference to
               the exercise of revisional jurisdiction.”
             11. In Ubaiba v. Damodaran2 exercise of revisional power was
E     considered in the context of an issue whether the relationship of landlord-
      tenant existed or not. It was urged that whether such relationship existed
      would be a jurisdictional fact. This Court dealt with the matter as under:-
               “3. Mr K. Sukumaran, the learned Senior Counsel appearing for
               the appellant contended that however wide the jurisdiction of the
F              revisional court under the Act in question may be, but it cannot
               have jurisdiction to reappreciate the evidence and substitute its
               own finding upsetting the finding arrived at by the appellate
               authority and therefore the impugned order of the High Court is
               unsustainable in law. In support of this contention reliance has
               been placed on a decision of this Court in the case of Rukmini
G              Amma Saradamma v. Kallyani Sulochana 1 whereunder the
               selfsame provision of the Kerala Act was under consideration.
               This Court after noticing the word “propriety” used in Section 20
               came to the conclusion that the approach of the High Court was
      1
          (1993) 1 SCC 499
      2
H         (1999) 5 SCC 645
THANKAMONY AMMA & ORS. v. OMANA AMMA N. & ORS.                                   131
            [UDAY UMESH LALIT, J.]

         totally wrong and even the wider language of Section 20 of the          A
         Act cannot enable the High Court to act as a first or a second
         court of appeal. Otherwise the distinction between appellate and
         revisional jurisdiction will get obliterated. The Court also further
         observed “even by the presence of the word ‘propriety’ it cannot
         mean that there could be any reappreciation of evidence”. The
                                                                                 B
         learned counsel for the respondent on the other hand contended
         that the aforesaid decision will have no application to the case in
         hand where the dispute involved relates to a jurisdictional fact
         and according to the learned counsel where the dispute is in relation
         to a jurisdictional fact there should not be any fetter on the power
         of the revisional court even to reappreciate the evidence and come      C
         to its own conclusion. On being asked to support the aforesaid
         proposition no authority could be placed though on first principle
         learned counsel for the respondent argued as aforesaid. Having
         examined the rival submission and having gone through the decision
         of this Court referred to earlier we are of the considered opinion
                                                                                 D
         that though the revisional power under the Rent Act may be wider
         than Section 115 of the Code of Civil Procedure it cannot be
         equated even with the second appellate power conferred on the
         civil court under the Code of Civil Procedure. Notwithstanding
         the use of the expression “propriety” in Section 20, the revisional
         court therefore will not be entitled to reappreciate the evidence       E
         and substitute its own conclusion in place of the conclusion of the
         appellate authority. On examining the impugned judgment of the
         High Court in the light of the aforesaid ratio of this Court it is
         crystal clear that the High Court exceeded its jurisdiction by
         reappreciating the evidence and in coming to the conclusion that
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         the relationship of landlord-tenant did not exist. In the
         circumstances, the impugned revisional order of the High Court is
         wholly unsustainable and we set aside the same and the order of
         the appellate authority is affirmed.
      12. A Constitution Bench of this Court considered the revisional
powers of the High Court under Rent Acts operating in different States           G
in Hindustan Petroleum Corporation Limited v. Dilbahar Singh3.
The decision in Rukmini Amma Saradamma v. Kallyani Sulochana
and others1 was again referred to in para 16. In para 38 it was observed:
3
    (2014) 9 SCC 78
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132                SUPREME COURT REPORTS                           [2019] 10 S.C.R.


A              “38. Rukmini1 holds, and in our view, rightly that even the wider
               language of Section 20 of the Kerala Rent Control Act does not
               enable 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 Bench
               in Rukmini1 that the word “propriety” does not confer power upon
               the High Court to reappreciate evidence to come to a different
B
               conclusion but its consideration of evidence is confined to find out
               legality, regularity and propriety of the order impugned4 before it.
               We approve the view of this Court in Rukmini1.”
            13. Considering the instant matter in the backdrop of law laid
      down by this Court it must be stated that the findings rendered by the
C     courts below were well supported by evidence on record and could not
      even be said to be perverse in any way. The High Court could not have
      re-appreciated the evidence and the concurrent findings rendered by
      the courts below ought not to have been interfered with by the High
      Court while exercising revisional jurisdiction.
D            14. We, therefore, allow this appeal, set aside the judgment and
      order dated 09.08.2018 passed by the High Court and restore the Decree
      for eviction as passed by the Rent Control Court and confirmed by the
      Rent Control Appellate Authority, Alappuzha. No order as to costs.

E
      Devika Gujral                                                     Appeal allowed.




F




G




      4
H         Kalyani Sulochana v. Saradamma, 1991 SCC OnLine Ker 213 : (1991) 2 KLJ 105