Dismissed

Mohammed Kutty v. Kaliyekkal Niskarapalli Darussalam Madra

Kerala HC18 May 2016CRP/452/2009

Case brief

AI extract

What is this about?

The High Court dismissed the revision petition filed by a tenant challenging his eviction from a Wakf property. The court held that the tenancy was not protected under the Kerala Land Reforms Act and the lease was validly terminated due to the tenant's willful default in rent payment.

What did the court decide?

The civil revision petition is dismissed; no order on costs.

Mohammed Kutty Vs Kaliyekkal Niskarapalli Darussalam Madra — Property and Title | Kerala HC (2016)

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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 ANTONY DOMINIC &

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THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU

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WEDNESDAY, THE 18TH DAY OF MAY 2016/28TH VAISAKHA, 1938

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CRP.No. 452 of 2009

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AGAINST THE JUDGMENT IN OS 16/2007 of WAKF TRIBUNAL, KOZHIKODE DATED 28-02-2009

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PETITIONER/1ST RESPONDENT:

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MUTHANIKKAT ADIPARAMBIL MUHAMMEDKUTTY, S/O KUNHALAVI, RESIDING AT CHERIYAMUNDA, AMSOM AND THALAKKADATHUR DESOM, TIRUR TALUK, MALAPPURAM DIST.

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BY ADV. SRI.C.M.MOHAMMED IQUABAL

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RESPONDENTS/PLAINTIFFS & 2ND RESPONDENT:

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KALIYEKKAL NISKARAPALLI AND DARUSSALAM MADRASSA PARIPALANA COMMITTEE,,

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REP. BY ITS SECRETARY.

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RANDOTI KOMUKUTTY, S/O.LATE AHAMMEDKUTTY, SECRERARY,,

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KALIYEKKAL NISAKARAPALLI AND, DARUSSALAM MADRASSA PARIPALANA COMMITTEE,, RESIDING AT PONMUNDAM AMSOM AND DESOM,,

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TIRUR TALUK, MALAPPURAM DIST.

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THE CHIEF EXECUTIVE OFFICER, KERALA STATE WAKF BOARD,

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NEAR KALOOR STADIUM, ERNAKULAM.

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R,R1,2 BY ADV. SRI.K.M.FIROZ R,R1,2 BY ADV. SMT.M.SHAJNA SC FOR R3 (B/O) BY ADV. ABDUL HASSAN R3 BY ADV. SRI.K.SHIBILI NAHA, SC, KERALA STATE WAKF BOARD

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ.

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C.R.P.No.452 of 2009

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Dated this the 18^th day of May, 2016

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ORDER

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Dama Seshadri Naidu, J.

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The appellant is the tenant and respondents 1 and 2 are the landlords. Having suffered an adverse decree in O.S.16/07 on the file of the Wakf Tribunal, Kozhikode, the appellant has approached this Court contending that the respondents have no locus to seek his eviction from the property, which he had on lease prior to its dedication in favour of the first respondent by the original owner.

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As seen from the record, the original owner leased the property to the appellant way back in 1982. Later, after some initial litigation, the details of which are inconsequential, in 1995 the landlord and the tenant entered into a fresh lease agreement, fixing the monthly rent at Rs.1,350/-. The record reveals that in 2002, per Document No.440/02, the original landlord dedicated the property to the Wakf, the first respondent.

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C.R.P.No.452 of 2009

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: 2 :

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Upon noticing that since 2002 onwards the appellant had

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been in default of paying the monthly rent, the first respondent issued a notice in 2005 appellant terminating the lease, apart from seeking arrears of rent. Further, the first respondent seems to have needed the property for its own purpose.

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When the appellant replied in the negative, the first respondent initiated eviction proceedings in O.S. No.16 of 2007 before the Wakf Tribunal, Kozhikode, which through its judgment, dated 28th February 2009, decreed the suit: It directed the appellant to pay arrears of rent, apart from delivering the vacant possession of the property to the first respondent. Under those circumstances, the appellant has approached this Court.

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Heard the learned counsel for the appellant and the learned counsel for the respondents.

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The petitioner’s principal grievance seems to be that he had the property on lease in 1982, and the property was dedicated much later in point of time. In other words, the dedication of the

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C.R.P.No.452 of 2009

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: 3 :

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property in favour of the first respondent ought to be subservient to the petitioner’s tenancy rights. In this context, the petitioner has taken a specific plea that his tenancy has been protected by way fixity of tenure as per Kerala Land Reforms Act.

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Nevertheless, a perusal of the impugned judgment reveals that the Tribunal has addressed the issue in favour of the respondent landlord: Even the original lease in 1982, not to speak of the fresh lease in 1995, was subsequent to the enforcement of the Kerala Land Reforms Act. The plea of protected tenancy or fixity of tenure, thus, stood rejected. In these circumstances, we are of the view that the petitioner’s contention that he has had any protection under the Kerala Land Reforms Act cannot be countenanced.

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It is further to be noted that the property, admittedly, has not been protected by any Rent Control Legislation. In other words, the rights of the parties are governed by the Transfer of Property Act—especially section 111 of the said Act. Indeed, once

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C.R.P.No.452 of 2009

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: 4 :

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the tenancy has been admitted, it can be determined, for example, on account of willful default committed by the tenant in paying the rent.

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In such an event as has been adverted to above, all that the landlord has to do is to take recourse to due process—say, as statutorily delineated in Chapter V of the Act. It is beyond cavil that the appellant is in arrears of rent. Because of the petitioner’s persistent, willful default, the first respondent has taken recourse to due process of law to evict the petitioner: He issued Ext.A9 quit notice, despite which, the appellant still persisted with his default. Under those compelling circumstances, the first respondent is said to have terminated the lease.

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A perusal of the record does not indicate that there is any countervailing material placed by the revision petitioner to show that the default was not willful or that there was no default at all.

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Once it is proved that the tenant has committed default, it lies within the power and discretion of the landlord to terminate

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C.R.P.No.452 of 2009

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: 5 :

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the subsisting lease and seek the tenant’s eviction. In the present instance, the first respondent has precisely done the same. The Tribunal, indeed, has considered all the issues and eventually held that the revision petitioner has committed willful default and that he ought to vacate the premises upon the termination of the lease, apart from paying the arrears of rent.

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In the above facts and circumstances, we find no merit in the revision and accordingly dismiss it. No order on costs.

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Sd/- ANTONY DOMINIC JUDGE

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Sd/- DAMA SESHADRI NAIDU JUDGE

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jes

Mohammed Kutty v. Kaliyekkal Niskarapalli Darussalam Madra

Case brief

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Mohammed Kutty v. Kaliyekkal Niskarapalli Darussalam Madra

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