Civil Appeal No.6147 of 2019 Thankamony Amma & Ors. vs. Omana Amman N. & Ors.

1 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6147 OF 2019

THANKAMONY AMMA & ORS.     …Appellants

VERSUS

OMANA AMMA N. & ORS.  …Respondents

J U D G M E N T

Uday Umesh Lalit, J.

1. This  appeal  challenges  the  final  judgment  and  order  dated

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 respondents herein).  After

the death of Sankara Kurup, a claim was 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.  

Civil Appeal No.6147 of 2019 Thankamony Amma & Ors. vs. Omana Amman N. & Ors.

2 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

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:-

“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 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 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 appellants.  By its

Civil Appeal No.6147 of 2019 Thankamony Amma & Ors. vs. Omana Amman N. & Ors.

3 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  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 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  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.”

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  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.”

Civil Appeal No.6147 of 2019 Thankamony Amma & Ors. vs. Omana Amman N. & Ors.

4

5. The respondent being aggrieved, filed Rent Control Appeal No.17

of 2014 before the Rent Control Appellate Authority, Alappuzha, 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  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.”

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  relationship  between  the

parties.  The conclusion of the High Court was 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 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

Civil Appeal No.6147 of 2019 Thankamony Amma & Ors. vs. Omana Amman N. & Ors.

5 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.   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  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 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 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.  

Civil Appeal No.6147 of 2019 Thankamony Amma & Ors. vs. Omana Amman N. & Ors.

6 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.   

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. 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 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;  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.”

1 (1993) 1 SCC 499

Civil Appeal No.6147 of 2019 Thankamony Amma & Ors. vs. Omana Amman N. & Ors.

7  11. In  Ubaiba v.  Damodaran2 exercise  of  revisional  power  was

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 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 Amma Saradamma v.  Kallyani  Sulochana1 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 totally wrong and 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. 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 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  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

2 (1999) 5 SCC 645

Civil Appeal No.6147 of 2019 Thankamony Amma & Ors. vs. Omana Amman N. & Ors.

8 this Court referred to earlier we are of the considered opinion 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  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  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 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:  

“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 conclusion but its consideration of evidence is confined to find out legality, regularity

3 (2014) 9 SCC 78

Civil Appeal No.6147 of 2019 Thankamony Amma & Ors. vs. Omana Amman N. & Ors.

9 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 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.

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.

……………………..J. [Uday Umesh Lalit]

……………………..J. [Vineet Saran]

New Delhi; August 13, 2019.

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