Dismissed

Vittala D.Prabhu v. Nalini Shenoy

Kerala HC12 Jun 2012OP (RC)/1785/2012

Case brief

AI extract

What is this about?

This Original Petition challenged the reopening of execution proceedings for eviction. The Court held that tenants could not raise the claim of being kudikidappukars for the first time in execution proceedings after failing to do so earlier. Consequently, the Original Petition was dismissed.

What did the court decide?

The Original Petition (RC) is dismissed, allowing the execution proceedings to continue.

Vittala D.Prabhu Vs Nalini Shenoy — Landlord and Tenant | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.T.SANKARAN &

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THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS

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TUESDAY, THE 12TH DAY OF JUNE 2012/22ND JYAISHTA 1934

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OP (RC).No. 1785 of 2012 (O)

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EP.230/2011 ON THE FILE OF THE MUNSIFF'S COURT, KASARAGOD OA.4/2012 ON THE FILE OF THE LAND TRIBUNAL, KASARGOD

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PETITIONERS :

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VITTALA D.PRABHU, AGED 60 YEARS

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S/O.LATE DEVADASA PRABHU

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R/AT RAMACHANDRA SHANBHOGUE'S COMPOUND POST MANJESHWAR, KASARAGOD DISTRICT.

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VAIKUNDA D.PRABHU, AGED 58 YEARS, S/O.LATE DEVADASA PRABHU,

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R/AT RAMACHANDRA SHANBHOGUE'S COMPOUND POST MANJESHWAR, KASARAGOD DISTRICT.

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KASTURI @X SHANTHA BALIGA , AGED 62 YEARS W/O.LATE KAMALAKSHA BALIGA R/AT.SHEDIGURI IN ASHOK NAGAR, MANGALORE D.K.DISTRICT, KARNATAKA STATE

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SARASWATHI PRABHU,, AGED 56 YEARS W/O.LATE PADMANABA PRABHU, R/A.C/O.HARIDAS PRABHU KOMALAS RESTAURANT, RAILWAY STATION ROAD KANNUR DISTRICT.

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GEETHA SHENOY, AGED 54 YEARS W/O.JAGADEESH SHENAI, R/A.SHANGHNIKETAN, MANGALORE, D.K.DIST, KARNATAKA STATE

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JAYANTHI PRABU, AGED 51 YEARS R/AT RAMACHANDRA SHANBHOGUE'S COMPOUND LOWER CAR STREET, MANJESHWAR, HOSBETTU VILLAGE POST MANJESHWAR,KASARAGOD DISTRICT.

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SANTHA PRABHU, AGED 49 YEARS R/AT RAMACHANDRA SHANBHOGUE'S COMPOUND LOWER CAR STREET, MANJESHWAR, HOSBETTU VILLAGE POST MANJESHWAR, KASARAGOD DISTRICT.

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BY ADV. SRI.KODOTH SREEDHARAN

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RESPONDENTS:

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NALINI SHENOY, AGED 69 YEARS, W/O.M.NARASIMHA SHENOY, R/AT LOWER CAR STREET HOSBETTU VILLAGE, POST MANJESHWAR, KASARAGOD DISTRICT.

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BY ADV. SRI.V.V.ASOKAN

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THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 12-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.

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---------------------------------------------------O.P.(RC) NO.1785 OF 2012 O

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---------------------------------------------------Dated this the 12^th day of June, 2012

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JUDGMENT

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K.T.Sankaran, J.

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The respondent filed R.C.P.No.6 of 2009 on the file of the Rent Control Court, Kasaragod, for eviction under Section 11(4)(iii) of the Kerala Buildings (Lease and Rent Control) Act against the petitioners. The Rent Control Petition was allowed on 17.12.2009. Though the tenants filed appeal, the Rent Control Appellate Authority dismissed the appeal. The tenants filed R.C.R.No.258 of 2011 before this Court. The Revision was disposed of by this Court on 4.7.2011, granting nine months' time from 1.8.2011 to the tenants to vacate the building. The nine months' period expired on 30.4.2012. As per the order passed by the High Court, the tenants filed an unconditional undertaking before the executing court to vacate the building within the period fixed by the High Court.

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O.P.(RC) NO.1785 OF 2012 O

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:: 2 ::

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On the basis of the order passed by the High Court, the executing court closed the Execution Petition, taking into account the undertaking made by the tenants. However, the tenants did not vacate the building within the time granted by the High Court. The respondent/landlord was constrained to file E.A.No.105 of 2012 to reopen the execution proceedings. The tenants raised objections. The executing court overruled the objections and reopened the Execution Petition. The executing court also ordered delivery of the building.

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One of the contentions raised by the tenants before the executing court was that they filed O.A.No.4 of 2012 before the Land Tribunal, Kasaragod under Section 80B of the Kerala Land Reforms Act and till the application is disposed of, the execution proceedings are liable to be kept in abeyance. The learned counsel for the respondent/landlord pointed out that R.C.R.No.258 of 2011 was disposed of by the High Court on 4.7.2011 and the tenants filed O.A.No.4 of 2012 before the Land Tribunal on 22.11.2011. The application before the Land Tribunal was filed only to see whether the matter could be protracted.

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O.P.(RC) NO.1785 OF 2012 O

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:: 3 ::

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The petitioners/tenants did not raise any contention before the Rent Control Court that the respondent is not the 'landlord' under the Rent Control Act or that the tenants are not liable to be evicted on the ground that they are kudikidappukars. No such contention having been taken before the Rent Control Court, the tenants are precluded from raising such a contention before the executing court. The contention of the petitioners that they are kudikidappukars is barred by constructive res judicata. Section 108A of the Kerala Land Reforms Act provides that Section 11 of the Code of Civil Procedure is applicable to the proceedings under the Land Reforms Act. Therefore, the proceedings initiated by the petitioners before the Land Tribunal would be barred by res judicata. The tenants having not raised a contention that they are kudikidappukars in the Rent Control Proceedings, they cannot get the execution proceedings stopped on the ground that they moved the Land Tribunal. The respondent in a Rent Control Petition, unless disputes the title of the landlord or contends that he is a tenant or kudikidappukaran, he concedes the fact that there is a landlord-tenant relationship. That landlord-tenant relationship is in respect of the tenancy under the

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O.P.(RC) NO.1785 OF 2012 O

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:: 4 ::

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Kerala Buildings (Lease and Rent Control) Act, which is quite distinct and different from the tenancy right or kudikidappu right under the Kerala Land Reforms Act. Having conceded to the jurisdiction of the Rent Control Authorities and having suffered an order of eviction, the tenants are not entitled to turn round and contend that they are kudikidappukars under Section 2(25) of the Kerala Land Reforms Act. A person cannot at the same time be a tenant under the Kerala Buildings (Lease and Rent Control) Act and a kudikidappukaran under the Kerala Land Reforms Act in respect of the same building.

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The executing court was justified in ordering delivery of the building. There is no illegality, irregularity or impropriety in the order passed by the court below.

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Learned counsel for the petitioners submitted that the landlord has excess lands and the land in question was earmarked as the excess land to be surrendered by the landlord. The learned counsel also raised a contention that the land in question was really surrendered by the landlord and therefore, she has no existing title to get delivery of the property. No such contention was raised by the

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O.P.(RC) NO.1785 OF 2012 O

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:: 5 ::

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petitioners before the executing court. Such a contention is raised for the first time in this Original Petition and that too without any supporting documents. We are not inclined to entertain this highly belated contention. Even if the contention raised by the petitioners is true, that is not a ground to adjourn or stop the execution proceedings.

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For the reasons stated above, the Original Petition (RC) is dismissed.

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(K.T.SANKARAN) Judge

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(M.L.JOSEPH FRANCIS) Judge

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ahz/

Vittala D.Prabhu v. Nalini Shenoy

Case brief

What is this about?

What did the court decide?

Vittala D.Prabhu v. Nalini Shenoy

Case brief

What is this about?

What did the court decide?

What the court decided

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