P.G. Ajithkumar, J.:— The 1 Respondent in R.C.P. No. 65 of 2011 on the file of the Rent Control Court (Munsiff), Vatakara, is the revision petitioner. The rent control petition was filed seeking eviction of the petitioner and the 2 respondent under Section 11(2)(b) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965. Eviction was ordered by the Rent Control Court. The petitioner got the order of eviction under Section 11(2)(b) of the Act vacated by making deposit of the arrears of rent, interest and costs. He filed R.C.A. No. 43 of 2012 under Section 18(1)(b) of the Act before the Rent Control Appellate Authority (Additional District Judge), Vatakara challenging the order of eviction under section 11(4)(i). The appeal was dismissed. Thereupon, the petitioner has filed this revision petition under Section 20 of the Act.
2. The petition schedule shop room is a part of the assets of Smt. Janaki Krishnakumar. In the suit for partition of her assets, O.S. No. 205 of 1996, one of the co-owners, the 1 respondent was appointed as the party receiver. He, after obtaining leave of the court filed the petition for eviction on the basis of the allegation that the 1 respondent transfers his right under the lease in the petition schedule shop room to the 2 respondent. The petitioner alone contested. He filed counter statement to the effect that the partnership firm comprising himself, one N. Abdul Khader and K. Ummer was conducting the business in the petition schedule shop room. The 1 respondent sold his 1/12 share in the schedule shop room to Sri. N. Abdul Khader. He retired from the firm and at that time his share in the room was transferred in favour of the 2 respondent. In an earlier rent control petition, R.C.P. No. 82 of 2009, this petitioner happened to say a few facts as instructed by the 2 respondent, who has no role in the business in the petition schedule shop room. The business is being run by the partnership firm of the petitioner and Sri. Ummer. Thus the petitioner stoutly denied the allegation that he transferred tenancy right in favour of the 2 respondent.
3. After trial, the Rent Control Court found that the petitioner unauthorisedly transferred his right in the premises to the 2 respondent. Accordingly, eviction was ordered. The petitioner has seriously challenged the said finding before the Appellate Authority, but was not successful.
4. On 15.01.2016, this Court admitted the revision to file and issued urgent notice to the respondents. Execution of the order of eviction was initially stayed for two months and the order has been extended from time to time.
5. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the 1 respondent. The 2 respondent did not choose to appear before this Court.
6. The point to be considered is as to whether the order of eviction, on the ground that the petitioner unauthorisedly transferred his tenancy right in the petition schedule shop room to the 2 respondent, is liable to be interfered with in exercise of the powers of this Court under Section 20 of the Act.
7. The learned counsel appearing for the petitioner stressed his contention more on the legal points than the factual aspects. The 2 respondent purchased fractional shares of the petitioner and the 1 respondent in the shop room thereby becoming a co-owner of the property. Consequent to the 2 respondent purchasing the tenancy right in the whole room, his tenancy right is merged with the ownership and hence he is not liable to be evicted, is the main point urged.
8. The learned counsel appearing for the 1 respondent would submit that the evidence on record sufficiently proved that the petitioner parted with possession of the petition schedule room to the 2 respondent and is a transfer coming within the mischief of Section 11(4)(i) of the Act. It is pointed out that the petitioner, who was the original tenant under Smt. Janaki did not have right to transfer his right of tenancy, but as per Ext.A9 he has transferred possession of the premises in favour of the 2 respondent. Exts.A7 and A8 were also placed reliance on by the 1 respondent to show that the petitioner had parted with possession and control over the premises in favour of the 2 respondent.
9. In the light of Exts.A7, A8 and A9, which contain unqualified admission by the petitioner that he has transferred his tenancy right in the petition schedule shop room in favour of the 2 respondent, it may not be possible for him now to wriggle out of that admission. He as RW1 tried to explain away those admissions. The courts below considered the evidence in detail and held that those admissions bound him to the transaction. As per Ext.A9, not only the tenancy right, but also his 1/12 fractional share in the ownership was also transferred in favour of the 2 respondent.
10. Ext.A9 was executed on 18.03.2009. Now the contention of the petitioner is that without knowing its contents and implication, he happened to execute Ext.A9. Same stand was taken by him with respect to Exts.A7 and A8 also. Such a contention could have been given some importance if such documents came into existence simultaneously. The petitioner is not an illiterate person. He executed Ext.A9 on 18.03.2009 transferring his tenancy right and the fractional share in favour of the 2 respondent. He filed counter statement in R.C.P. No. 82 of 2009, Ext. A7, on 28.1.2010, stating that such a transfer had taken place. The same version was reiterated by him while giving evidence in R.C.P. No. 82 of 2009 on 02.06.2010. After taking such a consistent stand, he cannot now contend that all such declarations were made without knowing its nature and understanding the consequence. Therefore, we are of the view that both the courts below rightly had held that the tenancy right was transferred by the petitioner in favour of the 2 respondent.
11. Section 14(1) of the Act makes an unauthorised transfer of tenancy/sub-letting a ground for eviction. The contention of the learned Counsel appearing for the petitioner is that since the 2 respondent purchased the tenancy right and 2/12 share of title, his tenancy right coalesced with the ownership and hence he is absolved from eviction. In order to understand the principle of merger, we have to go to the general law as contained in Section 111 of the Transfer of Property Act, 1882. Section 111(d) reads thus-
‘111. Determination of lease.-A lease of immovable property determines- (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;’
12. The learned counsel appearing for the petitioner canvassed for a position that there is merger whereby this case would not come within the prohibition of section 11(4)(i) of the Act. The dictum in Action Group Res. in Envrn. & Education Development Society v. Sakky Bai, [(1998) 9 SCC 685] is placed reliance on in support of that contention. In that case the Apex Court held that since the tenant acquired co-ownership right in the demised premises, an release application under the provision of Section 21(1)(a) of the Uttar Pradesh Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 could not be allowed. The said decision was rendered on a different set of facts and under the provision of Section 21(1)(a) of the U.P. Rent Act. The said decision has no applicable to the facts of this case.
13. In T. Lakshmipathi v. P. Nithyananda Reddy, [(2003) 5 SCC 150], the Apex Court considered in detail as to when there occurs merger of tenancy right and ownership entailing union of both rights. The question was whether by purchase of the right of a co-owner by the tenant, there will be merger as contemplated in Section 111(d) of Transfer of Property Act, 1882. The Apex Court held,
‘(1) The common-law doctrine of merger is statutorily embodied in Section 111(d) of the TP Act. This provision contemplates (i) coalescence of the interest of the lessee and the interest of the lessor, (ii) in the whole of the property, (iii) at the same time, (iv) in one person, and (v) in the same right. There must be a complete union of the whole interests of the lessor and the lessee so as to enable the lesser interest of the lessee sinking into the larger interest of the lessor in the reversion. Merger is largely a question of intention, dependent on circumstances, and the courts will presume against it when it operates to the disadvantage of a party.’
14. The Apex Court in India Umbrella Manufacturing Co. v. Bhagabandei Agarwalla (dead) by LRs. Savitri Agarwalla (Smt), [(2004) 3 SCC 178] the same principle was reiterated. A Three-Judge Bench of the Apex Court has considered the question in Pramod Kumar Jaiswal v. Bibi Husn Bano, [(2005) 5 SCC 492] detail and it was held-
‘In order to bring the tenancy to an end the merger should be complete, i.e. the interest of the landlord in its entirety must come to vest and merge into the interest of tenant in its entirety. When part of the interest of the landlord or the interest of one out of many co-landlords-cum-co-owners comes to vest in the tenant, there is no merger and the tenancy is not extinguished. On taking an assignment from some of the co-owner landlords, the interests of the lessee and the lessor in the whole of the property do not become vested at the same time in one person in the same right. Therefore, a lessee who has taken assignment of the rights of a co-owner lessor, cannot successfully raise the plea of determination of tenancy on the ground of merger of his lessee's estate in that of the estate of the landlord.’
15. What emerges from the above is that there will not be any merger of ownership and tenancy, thereby absolving the tenant from the teeth of an objectionable tenancy, for the reason that the tenant has purchased fractional rights in the property. There should be a union of the whole interest of the lessor as well as the lessee for there to be a merger. Merely by purchasing the right of a co-owner, the right of ownership and tenancy will not be merged. On the strength of his purchase of the right of a co-owner, the tenant cannot claim that the original tenancy has extinguished and he is not liable to be evicted from the premises.
16. Applying the principle of law as stated above, the fact that the 2 respondent purchased the co-ownership right of the petitioner in the property, his character would not be changed. It is beyond dispute that the original tenancy arrangement did not permit the petitioner to transfer the tenancy right. When the petitioner transferred the tenancy right in favour of the 2 respondent as per Ext.A9, that amounted to creation of an objectionable tenancy, definitely inviting an action under Section 11(4)(i) of the Act. By purchasing a minor share in the property, there is no merger and the character of the 2 respondent as an unauthorised tenant will not get changed. Therefore, we hold that the contention of the learned counsel for the petitioner is untenable.
17. The findings of the courts below that the petitioner unauthorisedly transferred the tenancy right in favour of the 2 respondent and therefore they are liable to be evicted therefrom under Section 11(4)(i) of the Act, is not liable to be interfered with under the provisions of Section 20 of the Act. The order of eviction is not illegal, irregular and improper. This revision therefore fails. We accordingly dismiss the revision petition. No costs.
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