Holding

The High Court was justified in allowing the landlord to support the eviction order in the tenant's revision and, due to merger, the landlord is entitled to evict under Section 11(8).

Summary

The tenant, Nalakath Sainuddin, held a single tenancy over a shop with two doors and sublet one door to Koorikadan Sulaiman, who later purchased the entire property from the original owners. The landlord filed an eviction suit invoking three grounds under the Kerala Buildings (Lease and Rent Control) Act, 1965: arrears of rent, personal occupation, and additional accommodation under Section 11(8). The Rent Control Court allowed eviction on the arrears ground only; the appellate authority added Section 11(8) and rejected Section 11(3). The tenant sought revision under Section 20, and the High Court upheld eviction on the arrears ground, rejected Section 11(8) but allowed eviction under Section 11(3). The Supreme Court held that the High Court was correct in permitting the landlord to support the eviction order in the tenant's revision and that, upon purchase, the sub‑tenancy merged, making the landlord an owner entitled to evict under Section 11(8). Consequently, the tenant's appeals were dismissed and the landlord's appeals were allowed, with the tenant given time to vacate after clearing arrears.

Issues considered

When can a landlord support an eviction order in a revision petition filed by the tenant under Section 20 of the Kerala Buildings (Lease and Rent Control) Act, 1965, by disputing a finding adverse to him on another ground?
Whether Section 11(8) of the Act is available to a landlord who was originally a sub‑tenant but later purchased the entire property, invoking the doctrine of merger.

Legislation cited

Kerala Buildings (Lease and Rent Control) Act, 1965s. 11(2)(b), s. 11(3), s. 11(8), s. 20
Transfer of Property Act, 1882s. 109, s. 111

Subjects

rent controlevictionrevisional jurisdictionSection 20Section 11(8)merger doctrinesub‑tenancyTransfer of Property Actlandlord‑tenant

Judgment

NALAKATH SAINUDDIN A
v.
KOORIKADAN SULAIMAN

JULY 8, 2002

[R.C. LAHOTI AND B.N. AGRAWAL, JJ.] B

, Rent Control and Eviction :

Kera/a Buildings (Lease and Rent Control) Act, I965.
c
Section 20-Revisional jurisdiction of High Court-Eviction order passed
on one of the several grounds-Tenant filing revision-Landlord supporting
eviction order by disputing correc~ness of finding adverse to him on another
ground for eviction-High Court upholding availability of such ground-
Justification of-Held, High Court is justified in interfering with and reversing
part of order adverse to landlord.
D

Section I I (8)-Eviction-Ground of additional accommodation for
personal use-Respondent occupying part of the building ns sub-tenant and
' .> appellant as tenant-Later respondent purchasing interest of owner in the
entire building and filing application for eviction of tenant-Rent Court E
negating availability of ground of eviction, appellate authority graming the
same-High Court negating the ground-On appeal, held applicability of
Section I l (8) attracted since on purchase of interest of owner by respondent
in the part of the premises held by him as sub tenant results in merger wiping
out the sub tenancy and converting the nature of occupation of respondent
into that of owner-Doctrine of merger.
p
Words and Phrases:

Expression 'any aggrieved party '-Meaning of in the context of Section
20(1) of the Kera/a Building (Lease and Rent Control) Act, 1965.
G
A shop with openings on two sides was assigned two door numbers
by the local authority. Owner of the property let out th'e property to
appellant, tenancy being single tenancy for two doors. Appellant then
sublet one of the doors to respondent. Thereafter, respondent purchased

. 'r the entire property from the original owners. Respondent then filed an
l
H
2 SUPREME COURT REPORTS [2002) SUPP. l S.C.R.

A application for eviction of appellant-tenant under Sections 11(2)(b), 11(3)
and 11(8) of the Kerala Buildings (Lease and Rent Control) Act, 1965.
Rent Control Court ordered eviction under Section 11(2)(b) but refused
under Section 11 (8) and 11 (3) of the Act. Parties filed appeals. Appellate
authority ordered eviction under Section 11(8) in addition to Section
B 11(2)(b) and upheld the dismissal of claim for eviction under Section 11(3).
Aggrieved, appellant-tenant filed revision under Section 20 of the Act.
However, no revision was filed by respondent-landlord. High Court held
that in addition to ground under Section 11(2)(b) eviction was sustainable
under Section 11(3) but refused eviction under Section 11(8) of the Act. ·.
Hence the present cross appeals.
c The questions which arose for consideration in these cross appeals
are when an order for eviction is passed on one of the several grounds
urged by the landlord, can the respondent-landlord in a revision filed by
tenant under Section 20 of the Kerala Buildings (Lease and Rent Control)
Act, 1965 support the order for eviction by disputing the correctness of
D finding adverse to him, on another ground for eviction and urge before
the revisional court to uphold the availability of such ground so as to
sustain the order for eviction and whether on the facts and in the
circumstances of the case, High Court was justified in holding non-
availability of ground for eviction under Section 11(8) of the Act. In appeal
E before this Court, appellant-tenant submitted that the appellate authority
had negated availability of ground under Section 11(3) of the Act and
respondent-landlord did not file any revision to High Court under Section
20 of the Act challenging the order of the appellate authority, the same
having achieved a finality, High Court did not have jurisdiction to pass
an eviction order under Section 11(3) of the Act once the ground under
F Section 11(8) was also negated by High Court and ground under Section
11(8) of the Act was not available to the respondent-landlord, as he was
holding one of the doors of the shop as sub-tenant while both the doors of
the shop were held by the appellant-tenant under a single tenancy, in spite
of purchase by the respondent-landlord from the previous owner the
G appellant-tenant remains a tenant in one door and sub-tenancy of the
respondent-landlord over other door did not come to an end by applying
the doctrine of merger.

Respondent-landlord contended that a landlord in his capacity as
respondent, in a revision before the High Court preferred by the appellant-
H tenant can support the decree by urging availability of a ground for
NALAKATH SAINUDDIN v. KOORIKADAN SULAIMAN 3
eviction though decided against him by the order impugned before the A
High Court. Also the High Court was not justified in holding non-
availability of ground under Section·ll(S) of the Act to the respondent-
landlord.

Allowing the respondents-landlord's appeals and dismissing the
appellant-tenant's appeals, the Court. B
HELD: 1.1. There is no reason to read and interpret Section 20 of
the Kerala Buildings (Lease and Rent Control) Act, 1965 narrowly and
limit the scope of revisional jurisdiction conferred on the High Court
thereby. Once a revision petition is entertained by the High Court,
whichever be the party invoking the revisional jurisdiction, the High Court C
acquires jurisdiction to call for and examine the records of the authority
subordinate to it. The records relating to 'any order' and/or any
proceedings are available to be examined by the High Court for the
purpose of satisfying itself as to the (a) legality, (b) regularity, or (c)
propriety of the impugned order, including any·, part of the order, or D
proceedings. The only limitation on the scope of High Court's jurisdiction
is that the order or proceedings sought to be scrutinized must be of the
subordinate authority. Any illegality, irregularity or impropriety coming
to its notice is capable of being corrected by the High Court by passing
such appropriate order or direction, as the law requires and justice
demands. The expression 'any aggrieved party' in Section 20(1), means a E
person feeling aggrieved by the ultimate decision, that is, the operative
part of the order. A party to the proceedings, who has succeeded in
securing the relief prayed for, is not a party aggrieved though the order
contains a finding or two adverse to him. The respondent can support the
order and pray for the ultimate decision being sustained, without filing a F
revision of his own, and for achieving such end he may seek reversal of
any findings recorded against him. [13-C-G]

1.2. In the instant case, a revision preferred under Section 20 of the
Kerala Buildings (Lease and Rent Control) Act, 1965 by the tenant laying
challenge to the propriety of the decision of the appellate authority under G
Section 11(8) of the Act, the landlord could have urged that the order for
eviction could be sustained under Section 11(3) of the Act also. High Court
has not erred in permitting the landlord to urge such a plea in the revision
filed by the tenant though the landlord did not file any revision of his own.
A landlord who has succeeded in securing an order of eviction on one of
the several grounds urged by him cannot be said to be a person aggrieved H
4 SUPREME COURT REPORTS [2002] SUPP. I S.C.R. .,-
A by such order. He cannot file a revision; rather he can feel satisfied with
the order. The person aggrieved is the tenant and in a revision preferred
by the tenant it is only just and equitable that the landlord should be
permitted to support the order of eviction by disputing correctness of the
finding recorded in the impugned order whereby the availability of
additional ground for eviction was negatived. Such a right has to be
B necessarily spelled out in favour of the landlord who has succeeded from
the court below else there would be grave injustice. (14-C, DJ

Seetaram and Ors. v. Smt. Ramabai and Anr., AIR (1958) MP 221;
Cadden Chinna Venkata Rao and Ors. v. Koralla Satyanarayanamurthy and
c Anr., AIR (1943) Madras 698 and K. Venkataramani v. S. Aravamuthan and
Ors., AIR (1982) Madras 36, approved.

Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat, (1969)
2 SCC 74; Major S.S. Khanna v. Brig. F.J. Dhillon, (1964) 4 SCR 409;
Babula/ Nagar and Ors. v. Shree Synthetics Ltd. and Ors., (1984) Suppl. SCC
D 128; Hukumchand Mills Ltd. v. The Commissioner of Income Tax, Central
Bombay, (1967] 1 SCR 463 and Smt. Gangabai v. Vijay Kumar and Ors.,
(1974) 2 sec 393, referred to.

2.1. If the respondent is in occupation of part of the building as sub- >,
tenant he cannot have recourse to Section 11(8) of the Act. However, if
E his occupation though having originated as sub-tenant stands enlarged into
that of an owner, and hence a landlord, by virtue of his purchase would
be entitled to eviction of the tenant under Section 11(8) of the Act. It would
depend on whether the purchase of interest of the owner in the part of
the premises held him as sub-tenant results in merger so as to wipe out
the sub-tenancy and convert the nature of occupation of the respondent
F
into that of an owner. [14-F, G)
... _
2.2. The common law rule that a landlord cannot split the unity and
integrity of the tenancy so as to result in possession over a part of the
demised premises being recovered from the tenant does not have
G applicability in India because of Section 109 of the Transfer of Property
Act, 1882 which provides a statutory exception to the rule and enables an
assignee of a part of the reversion to exercise all the rights of the landlord
in respect of the portion respecting which the reversion is so assigned
subject, of course, to the other covenant running with the land. (16-E, F, G)

H 2.3. In a lease governed by the provisions of the Transfer of Property '<I
ff
NALAKATH SAINUDDIN v. KOORIKADAN SULAIMAN 5
Act or the principles emerging therefrom as applicable in India, the A
transfer of a part of leased premises by the owner in favour of the sub-
tenant, holding sub-lease from the tenant, would result in merger. It will
be a strange proposition to urge or to accept that although the respondent
has purchased the reversion in the entire estate consisting of two doors
and the appellant has become the respondent's tenant as to both the doors B
still the respondent continues to be a sub-tenant of appellant in respect of
one door. Respondent cannot be an owner and sub-lessee both and at the
same time. The smaller estate of sub-tenancy shall sink or drown into the
larger estate of ownership, as the two cannot co-exist. The sub-tenant,
respondent, has not acquired only a share of the landlord-owner's estate
nor an ownership in part confined to sub-tenancy premises, but he has C
acquired full ownership in the entire premises under the purchase deed.
The right of reversion vesting in the then owners, so far as the appellant
is concerned, stands fully and entirely vested in the respondent. There is
nothing to hold that the intention of the parties to the deed is not to effect
a merger and confer the estate of owner on the sub-tenant respondent.
Undoubtedly, the appellant's estate did intervene but that is of no D
consequence in view of Section 109 of the Transfer of Property Act. There
is nothing to prevent the splitting up of tenancy and resulting in statutory
attornment by the tenant-appellant in favour of the sub-tenant-respondent
on the factum of transfer of full ownership, including reversion, under the
purchase deed being brought to his notice, which would take effect from E
the date of the deed. Thus, with effect from the date of the deed, the sub-
tenancy of the respondent held under the appellant to the extent of sub-
leased premises terminated by merger and the respondent became the
owner-landlord of the entire premises consisting of two doors. Thus, the
applicability of Section 11(8) of the Act is squarely attracted.
[17-F, G, H; 18-A-DJ F
Mohar Singh (Dead by lrs) v. Devi Charan and Ors., [1988) 3 SCC
63, relied on.

B.P. Pathak v. Dr. Riyazuddin and Ors., AIR (1976) MP SS and G
Sardari/al v. Narayan/al, AIR (1980) MP 8, referred to.

Words and Phrases, Permanent Edition, Vol. 27, Pages 124, 138,
referred to.

CIVIL AP PELLA TE JURISDICTION : Civil Appeal Nos. 3648-49 H
6 SUPREME COURT REPORTS [2002) SUPP. 1 S.C.R. ~

A of 2002.
From the Judgment and Order dated 22.12.2000 of the Kerala High
Court in C.R.P. Nos. 1439 of 1997 (C) and 1445 of 1997 (E).

WITH
B
C.A. Nos. 3650-51 of 2002.

T.L.V. Iyer, Ms. Malini Poduval and Ms. Lansinglu Rongmei for
the Appellant.

c P. Krishnamurthy, K.M.K. Nair and P.B. Suresh for the Respondent.

The Judgment of the Court was delivered by

R.C. LAHOTI, J. Leave to appeal granted in all the petitions.

The suit property is a building situated within the jurisdiction of Rent
D Control Court of Kozhikode. Th..: plan of the property shows that it is a shop
with openings on two sides. Though the property is one, however, it has been
numbered by the local authority by assigning two Door Nos. i.e. Door No.6/
481 and 6/482. The small comer of the shop situated between the openings on
the two sides has been assigned No. 6/482 while the remaining entire shop
.
E is assigned Door No. 6/481. The property was owned by Kunhilakshmi alias
Leelamma and others and held on tenancy by Nalakath Sainuddin, the
appellant, on a monthly rent of Rs. 65 , the tenancy being a single tenancy
for Doors Nos. 6/481 and 6/482. The tenancy had commenced in the year
1969. Sometime in the year 1972, Door No. 6/482 was sublet by the appellant
to the respondent Koorikadan Sulaiman on a monthly rent of Rs. 100. On
F 12.9.1988, the respondent purchased the entire property (i.e. including both
the Doors) from the then owners of the property. The respondent then served
a notice on the appellant calling upon him to surrender possession over the
property in his possession. The notice was followed by an application filed
by the respondent in the Rent Control Court for an order directing the tenant
to put the landlord in possession of the building on three grounds, viz., (i)
G
that the appellant was in arrears of rent, (ii) that the building was bonafide
needed for his own occupation, and (iii) that the respondent occupying only
a part of the building required additional accommodation in occupation of
the appellant for the landlord's personal use, the grounds as contemplated
respectively by Sections 11 (2)(b ), 11 (3) and 11 (8) of the Kerala Buildings
H (Lease and Rent Control) Act, 1965 (hereinafter, 'the Act', for short). ·1·
NALAKATH SAINUDDIN v. KOORIKADAN SULAIMAN IR.C. LAHOTI, l.] 7

The Rent Control Court negated the availability of grounds under sub- A
Sections (3) and (8) of Section I I of the Act but ordered the eviction of the
appellant on the ground of non-payment of arrears of rent under Section
I 1(2)(b). Both the parties preferred their respective appeals before the Rent
Control Appellate Authority. The appeal preferred by the tenant was dismissed.
The appeal preferred by the landlord was allowed in part. The eviction of the
appellant was ordered under Section 11 (8) of the Act in addition to Section B
11 (2)(b ), as directed by the Rent Control Court. The dismissal of claim for
eviction under Section 11(3) by the Rent Control Court was upheld by the
Appellate Authority. Feeling aggrieved by the decision of the Appellate
Authority, the tenant preferred a revision under Section 20 of the Act before
the High Court. The landlord did not prefer any revision against the order of C
the Appellate Authority. In the revision preferred by the tenant, the High
Court has, by its impugned judgment, upheld the order of eviction under
Section 1 l(2)(b). As to availability of ground of eviction under Section 11(8),
the High Court has held that the same was not available to the landlord.
However, in the opinion of the High Court, the order for eviction could be
sustained under Section 11(3) of the Act. Accordingly, the High Court modified D
the judgment of the Appellate Authority by holding that in addition to the
ground under Section 11 (2)(b ), the order for eviction would be sustainable
, under Section 11(3) of the Act. The tenant has filed two petitions seeking
leave to file appeals by special leave. The landlord has also filed two petitions
seeking special leave to appeal against the judgment of the High Court and E
praying for eviction of the tenant under Section 11 (8) of the Act also. However,
in the narration of facts herein we have referred to the status of the parties
as they are arrayed in appeals arising out of SLP(C) Nos.1599-1600/2001
filed by tenant.

In so far as the order for eviction under Section 11 (2)(b) of the Act is F
concerned, the learned counsel for the tenant submitted that the tenant has,
as contemplated by Section I 1(2)(c) of the Act, deposited the amount of
arrears of rent with interest and cost of proceedings within the time appointed
thereunder, and, therefore, the order for eviction on that ground is liable to
be vacated and that being the position of law the tenant does not wish to G
contest the order for eviction on that ground as in view of the subsequent act
of the tenant the order has ceased to be effective and the dispute in appeal,
to that extent, is rendered academic merely. The validity of the order of the
High Court, in the light of the cross appeals, remains to be tested by finding
out whether the order of eviction can be sustained under Section 11(3) or
11 (8) of the Act. H
8 SUPREME COURT REPORTS [2002) SUPP. 1 S.C.R.

A Shri T.L.V. Iyer, learned senior counsel for the tenant-appellant has
submitted that the Appellate Authority had negated availability of ground
under Section 11(3) of the Act and in view of the landlord having not preferred
any revision to the High Court under Section 20 of the Act disputing the
order of the Appellate Authority to the extent to which the claim under
B Section 11(3) of the Act was disallowed, the same had achieved a finality and
the High Court did not have jurisdiction to pass an order for eviction under
Section 11 (3) of the Act once the availability of ground under Section 11 (8)
was also negated by the High Court. The decree under Section 11(3) of the
Act passed by the High Court deserves to be set aside for this short reason.

C Shri P. Krishnamurthy, the learned senior counsel for the. landlord has
disputed the correctness of the submission made by Shri T.L.V. Iyer and
urged that a landlorp 'in his capacity as respondent, in a revision before the
High Court preferred~ the tenant under Section 20 of the Act, can support
the decree by urging availability of a ground for eviction though decided
against him by the order impugned before the High Court. He also submitted
D that even otherwise, th~ J:Iigh Court was not justified in holding non-availability
of ground under Section 11 (8) of the Act to the landlord and the High Court
ought to have sustained the decree for eviction under Section 11 (8) itself for
which purpose the landlord has filed appeal by special leave before this
Court. In his reply Shri T.L.V. Iyer, the learned senior counsel for the tenant ...
E submitted that ground under Section 11(8) of the Act was not available to the
landlord as the part of the building which he was occupying was in his
capacity as sub-tenant and not as a landlord. He submitted that in as much
as the landlord was holding shop No.6/482 as sub-tenant while shop No. 61
481 and 6/482 were both held by the tenant under a single tenancy, in spite
of purchase by the landlord from the previous owner the tenant remains a
F tenant in shop No. 6/481 and sub-tenancy of the landlord over shop No. 61
482 did not come to an end by applying the doctrine of merger. Shri P.
Krishnamurthy, Senior Advocate, appearing for the landlord, has disputed
the correctness of the submissions made by Shri Iyer.

In these cross-appeals two questions arise for decision:- (i) when an
G order for eviction is passed on one of the several grounds urged by the
landlord, can the landlord-respondent in a revision filed by tenant under
Section 20 of the Act, support the order for eviction by disputing correctness
of finding, adverse to him, on another ground fo~ eviction and urging before
the revisional court to uphold the availability of such ground so as to sustain
H the order for eviction? (ii) whether on the facts and in the circumstances of
NALAKA TH SAINUDDIN "· KOORIKADAN SULA IMAN [R.C. LAHOTI, J J 9
the case, the High Court was justified in holding non-availability of ground A
for eviction under Section 11(8) of the Act?

The relevant provisions of the Act are sub-Sections (3) and (8) of
Section l l and Section 20. The same are reproduced hereunder:-

"I I. (3) A landlord may apply to the Rent Control Court for an order B
directing the tenant to put the landlord in possession of the building
if he bonafide needs the building for his own occupation or for the
, occupation by any member of his family dependent on him.

Provided that the Rent Control Court shall not give any such
direction if the landlord has another building of his own in his C
possession in the same city, town or village except where the Rent
Control Court is satisfied that for special reasons, in any particular
case it will be just and proper to do so:

Provided further that the Rent Control Court shati not give any
direction to a tenant to put the landlord in possession, if such tenant D
is depending for his livelihood mainly on the income derived from
any trade or business carried on in such building and there is no other
suitable building available in the locality for such person to carry on
such trade or business:

xxx xxx xxx E

II. (8) A landlord who is occupying only a part of a building, may
apply to the Rent Control Court for an order directing any tenant
occupying the whole or any portion of the remaining part of the
building to put the landlord in possession thereof, if he requires F
additional accommodation for his personal use.

20. (I) In cases where the appellate authority empowered under
section 18 is a Subordinate judge, the District Court, and in other
cases the High Court, may, at any time, on the application of any
aggrieved party, call for and examine the records relating to any G
order passed or proceedings taken under this Act by such authority
for the purpose of satisfying itself as to the legality, regularity or
propriety of such order or proceedings, and may pass such order in
reference thereto as it thinks fit.

, (2) The costs of and incident to all proceedings before the High H
IO SUPREME COURT REPORTS (2002) SUPP. I S.C.R. ·i
A Court or District Court under sub-section (1) shall be in its discretion."

As to the first question, Shri Iyer, the learned senior counsel for the
tenant submitted that the revisionaljurisdiction can be invoked by an aggrieved
party by putting in issue 'any order' and the jurisdiction conferred on the
revisional Court is to test the legality, regularity or propriety of 'such order'
B and then to pass a just order 'in reference thereto'. Emphasizing the words
'such order' Z«id 'in reference thereto', Shri Iyer submitted that the revisional
jurisdiction is invoked by the person aggrieved by such order putting in issue
that part of the order with which he feels aggrieved and, therefore, the
revisional Court can exercise jurisdiction by making a just order touching
C only that part of the impugned order which has been put in issue by the
revision-petitioner and that is determinative of the scope of hearing in revision
as also of the subject matter with reference to which the revisional jurisdiction
can be exercised. He further submitted that it was open for the landlord-
respondent to file a revision against that part of the order with which he felt
aggrieved and the respondent having not done so the High Court could not
D have, in a revision preferred by the tenant-appellant, interfered with and
reversed that part of the order which was adverse to the respondent. We do
not find ourselves persuaded to agree with the learned senior counsel for the
tenant-appellant.

In Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat,
E
[1969] 2 sec 74, it has been held that revisional jurisdiction partakes the
appellate jurisdiction of a superior Court. The right of appeal is one of entering
a superior Court and invoking its aid and interposition to redress the error of
the Court below. Two things which are required to constitute appellate
jurisdiction are : the existence of the relation of superior and inferior Court
F and the power on the part of the former to review decisions of the latter.
When the aid of the High Court is invoked on the revisional side it is done
because it is a superior Court and it can interfere for the purpose of rectifying
the error of the Court below. Subject to limitations placed on the exercise of
revisional jurisdiction, it remains a part of the general appellate jurisdiction
G of a superior Court in a wider and larger sense.

In Major S.S. Khanna v. Brig. F.J. Dhillon, [1964] 4 SCR 409, this
Court held that when revisional jurisdiction is exercised in relation to a 'case'
it can also be exercised in relation to a part of a case. Hidayatullah, J. (as His
Lordship then was), in his separate concurring opinion, compared the revisional
H jurisdiction of the High Court with the jurisdiction to issue a writ of Certiorari
NALAKA TH SAIN UDDIN v. KOOR!KADAN SULA!MAN lR.C. LAHOT!, J.] 11

and held that the revisional jurisdiction is clearly in the nature of a proceeding A
on a writ of Certiorari though His Lordship also pointed out the essential
differences between the two powers. However, His Lordship clearly opined
- that the revisional jurisdiction is conferred to keep the subordinate Courts
within the bounds of their jurisdiction and once a flaw of jurisdiction is found
the High Court exercising revisional jurisdiction need not quash and remit as B
is the practice in English Law under the writ of Certiorari but can itself pass
such order as it thinks fit.

In Babula/ Nagar and Ors. v. Shree Synthetics Ltd and Ors., [1984]
Suppl. SCC 128, it was held that once a jurisdiction is conferred to examine
the propriety or impropriety of the order, the jurisdiction is wide. One meaning C
assigned to the expression 'propriety' is 'justice'. A jurisdiction to examine
the propriety of the order or decision carries with it the same jurisdiction as
the original authority to come to a different conclusion on the said set of
facts. If any other view is taken the expression 'propriety' would lose its
significance.
D
In Hukumchand Mills Ltd v. The Commissioner of Income Tax, Central
Bombay, [1967] I SCR 463, Section 33(4) of the Income Tax Act, 1922
came up for the consideration of this Court. The provision conferred the
Appellate Tribunal with power to 'pass such orders thereon as it thinks fit'.
It was urged that the word 'thereon' restricts the jurisdiction of the Tribunal
to the subject matter of the appeal. This Court held that the Tribunal was E
conferred with power to pass such orders as could be passed by the Appellate
Assistant Commissioner whose order was impugned before the Tribunal. It
was further held that in an appeal preferred by the assessee it was certainly
open to the Department to support the finding of the Appellate Assistant
Commissioner on any of the grounds decided against it. p
It was also held in Smt. Gangabai v. Vijay Kumar and Ors., [1974] 2
SCC 393-'no appeal can lie against a mere finding' and, if filed, shall be
liable to be dismissed as not maintainable. In Seetaram and Ors. v. Smt.
Ramabai and Anr., AIR (1958) MP 221, the Division Bench consisting of M.
Hidayatullah, CJ and P.K. Tare, J., (as their Lordships were then), considered G
Clause 21 of the C.P. and Berar Letting of Houses and Rent Control Order,
1949 which provides for an appeal being preferred by 'any person aggrieved
by an order' of the Controller to the Deputy Commissioner who shall decide
the appeal. Eviction was sought for on three grounds but was allowed by the
Controller only on one ground. In an appeal preferred by the tenant the H
12 SUPREME COURT REPORTS [2002] SUPP. I S.C.R.

A landlord was not permitted by the Deputy Commissioner to establish that the
other two grounds on which permission was asked for were wrongly decided.
The Deputy Commissioner formed an opinion that the order of Controller
could not be allowed to be supported by the landlord-respondent before him
on any ground which had been decided against him by the Controller unless
B an appeal was filed by the landlord-respondent. The Division Bench held that
'a person aggrieved' must be a man against whom a decision has been
pronounced which has wrongfully refused him something which he had a
right to demand. In spite of a ground for an order having been decided
against the landlord, if the operative part of the order is in his favour, the
landlord though a 'person aggrieved' is not a 'person aggrieved by an order
C of the Controller'. The landlord could have felt satisfied therewith and there
is no reason why he should have appealed. Even if a person has a grievance
against the finding he cannot come by way of appeal unless he. challenges the
order itself and wants to get it interfered with. Such an interpretation of the
provision is warranted otherwise even if the order is in favour of a party he
would be required to file an appeal against a finding. The Division Bench
D held that, in an appeal, the party who has an order in its favour is entitled to
show that the order is justified on some ground which was decided against
it in the Court below and this position of law· is supportable on general
principles without having recourse to Order 41 Rule 22 of the Code of Civil
Procedure.
E
Krishnaswami Ayyangar, J. in his opinion, in Gaddem Chinna Venkata
Rao and Ors. v. Koral/a Satyanarayanamurthy and Anr. AIR (1943) Madras
698, which is a Full Bench decision, held, interpreting Order 41 Rule 22 of
the CPC, that a party who has succeeded in the result of a decision in spite
of one or more of several grounds urged by him having been negated, he
F cannot and need not appeal as regards the latter grounds however erroneous
the decision because there is no right of appeal to a party who has succeeded.
The distinction lies in supporting or sustaining the decree in one's favour and
in obtaining an alteration .whicti "wou!d give him a further advantage. The
latter can be secured only. by an appeal or cross objection .
..
G A Single Bench decision of )\1adras High Court in K. Venkataramani
v. S. Aravamuthan and Ors., AIR (1982) Madras 36, is directly in point
dealing with pari materia provision contained in Section 25 of the Tamil
Nadu Buildings (Lease and Rent Control) Act, 1960. It was held that where
an order for eviction is based on one of the several grounds, in an appeal
H preferred by the tenant, the ultimate decision in favour of the landlord can be
NALAKA TH SAINUDDIN v. KOORIKADAN SULA!MAN (R.C. LAHOTI, l.] 13
supported by the landlord without filing an appeal by disputing the correctness A
of findings on a ground decided against him and submitting that the order of

- eviction should have been rested on that ground as well. What is true of the
appellate jurisdiction is also true of the revisional jurisdiction under Section
25. The Division Bench decision of Madhya Pradesh High Court in Seetaram
and Ors. 's case (supra) was followed.
B
We agree with the view taken by the High Courts of Madhya Pradesh
and Madras. We are of the opinion that-

(i) There is no reason to read and interpret Section 20 of the Kerala
Buildings (Lease and Rent Control) Act, 1965 narrowly and limit
the scope of revisional jurisdiction conferred on the High Court
c
thereby;

(ii) Once a revision pet1t10n is entertained by the High Court,
whichever be the party invoking the revisional jurisdiction, the
High Court acquires jurisdiction to call for and examine the
D
records of the authority subordinate to it. The records relating to
'any order' and/or any proceedings, are available to be examined
by the High Court for the purpose of satisfying itself as to the
(a) legality, (b) regularity, or (c) propriety of the impugned order,
including any part of the order, or proceedings. The only limitation
•
on the scope of High Court's jurisdiction is that the order or E
proceedings sought to be scrutinized must be of the subordinate
authority. Any illegality, irregularity or impropriety coming to
its notice is capable of being corrected by the High Court by
passing such appropriate order or direction as the law requires
and justice demands;
' F
(iii) 'Any aggrieved party', the expression employed in Section 20(1),
means a person feeling aggrieved by the ultimate decision, that
is, the operative part of the order. A party to the proceedings,
who has succeeded in securing the relief prayed for, is not a
party aggrieved though the order contains a finding or two adverse G
to him. The respondent can support the order and pray for the
ultimate decision being sustained, without filing a revision of his
own, and for achieving such end he may seek reversal of any
findings recorded against him. However, if the non-petitioning
party feels entitled to a more beneficial or larger order in his
favour but was allowed a lesser or smaller relief then to the H
•
14 SUPREME COURT REPORTS (2002) SUPP. I S.C.R.

A extent of claiming the more beneficial or larger relief he should
have filed a revision petition of his own as he was 'an aggrieved
party' to that extent;

There is, therefore, no doubt in the present case that in a rev1s10n
preferred under Section 20 of the Act by the tenant laying challenge to the
B propriety of the decision of the Appellate Authority under Section 11(8) of
the Act, the landlord could have urged that the order for eviction could be
sustained under Section 11(3) of the Act also. The High Court has not erred
in permitting the landlord to urge such a plea in the revision filed by the
tenant though the landlord did not file any revision of his own. A landlord
C who has succeeded in securing an order of eviction on one of the several
grounds urged by him cannot be said to be a person aggrieved by such order.
He cannot file a revision rather he can feel satisfied with the order. The
person aggrieved is the tenant and in a revision preferred by the tenant it is
only just anri equitable that the landlord should be permitted to support the
order of eviction by disputing correctness of the finding recorded in the
D impugned order whereby the availability of additional ground for eviction
was negatived. Such a right has to be necessarily spelled out in favour of the
landlord who has succeeded from the court below else there would be grave
injustice.

The next question is as to the availability of ground for eviction under
E Section 11 (8) of the Act for the landlord. Section 11 (8) of the Act provides
for a landlord occupying (as landlord) only a part of a building seeking
ejectment of the tenant occupying the remaining part of the building subject
to his proving his requirement of additional accommodation for his personal
use. Obviously, if the respondent is in occupation of part of the building as
F sub-tenant he cannot have recourse to Section 11(8) of the Act. However, if
his occupation though having originated as sub-tenant stands enlarged into
that of an owner, and hence a landlord, by virtue of his purchase dated
12.9.1988 he would be entitled to eviction of the tenant under Section 11(8)
of the Act. Answer would depend on the question whether the purchase of
interest of the owner in the part of the premises held by the respondent as
G sub-tenant results in merger so as to wipe out the sub-tenancy and convert the
nature of occupation of the respondent into that of an owner. Section 111
(relevant part thereof) and Section I 09 of the Transfer of Property Act are
relevant for the purpose and are reproduced hereunder:-

"111. Determination of lease.-A lease of immovable property
H
NALAKATHSAINUDDIN '· KOORIKADAN SULAIMAN [R.C. LAHOTI, l.] 15
;
determines- A
xxx xxx xxx
(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; B
xxx xxx xxx
109. Rights of lessor's transferee.-Jf the lessor transfers the
property leased, or any part thereof, or any part of his interest therein,
the transferee, in the absence of a contract to the contrary, shall
possess all the rights, and if the lessee so elects, be subject to all the C
liabilities of the lessor as to the property or part transferred so long
as he is the owner of it; but the lessor shall not, by reason only of
such transtcr cease to be subject to any of the liabilities imposed
upon him by the lease, unless the lessee elects to treat the transferee
as the person liable to him:
D
Provided that the transferee is not entitled to arrears of rent due
before the transfer, and that, if the lessee, not having reason to believe
that such transfer has been made, pays rent to the lessor shall not be
liable to pay such rent over again to the transferee.

The lessor, the transferee and the lessee may determine what E
proportion of the premium or rent reserved by the lease is payable in
respect of the part so transferred, and, in case they disagree, such
determination may be made by any Court having jurisdiction to
entertain a suit for the possession of the property leased."

Merger is largely a question of intention, dependent on circumstances, F
and courts will presume against it when it operates to disadvantage of a party. ··
"Merger" generally is defined as the absorption of a thing of less importance
by a greater whereby the lesser ceases to exist but the greater is not increased,
and rights are said to be merged when the same person who is bound to pay
is also entitled to receive. Pacific States Savings & Loan Co. v. Strobeck, 33 G
P.2d 1063, 1066, 139 Cal.App.427. [See: Words and Phrases, Permanent
Edition, Vol.27, at page 124] A merger, at law, is defined to be where a
greater estate and a less coincide and meet in one and the same person, in one
and the same right, without any intermediate estate. The less estate is
immediately annihilated, or, in the law phrase, is said to be merged-that is,
sunk or drowned-in the greater. Thus, if there be a tenant for years, and the H
'
16 SUPREME COURT REPORTS [2002] SUPP. 1 S.C.R.

A reversion in fee simple descends to or is purchased by him, the term of years
is merged in the inheritance. The rule in equity is the same as at law, with
this modification: that at law it is invariable and inflexible; in equity it is
controlled by the expressed or implied intention of the party in whom the
interest or estates unite. (See: Words and Phrases, ibid, p.138). Merger is
B founded on the principle that two estates-one larger and one smaller cannot
and need not co-exist, if the smaller estate can in equity, and must in law,
sink or merge into the larger estate.

The Transfer of Property Act, 1882 embodies mostly the principles of
justice, equity and good conscience. In view of codification of such principles
C in India, the principles of equity shall stand modified to the extent of provision
otherwise in the Transfer of Property Act. The learned senior counsel for the
tenant-appellant submitted that a merger would not result because out of the
property purchased by the respondent, the then sub-tenant, part is held by the
appellant-tenant as tenant and part is held by the respondent as sub-tenant
and in view of the different nature of the two parts of the estate there is no
D coalescence. Secondly, the estate existing in favour of the appellant-tenant is
an intervening estate which would prevent the union and fusion of estates
held by the then owners and the respondent. The submission, though attractive,
does not hold water on a deeper probe. As we have already stated, the
doctrine of merger stands statutorily incorporated in Clause (d) of-Section
E 111 of the Act and has to be read along with Section 109 of the Transfer of
Property Act and not in isolation.

The common law rule that a landlord cannot split the uhity and integrity
of the tenancy so as to result in possession over a part of the demised premises
being recovered from the tenant does not have applicability in India because
of Section 109 of the T.P. Act which provides a statutory exception to the
F rule and enables an assignee of a part of the reversion to exercise all the
rights of the landlord in respect of the portion respecting which the reversion
is so assigned subject, of course, to the other covenant running with the land.
This position of law stands settled with the decision of this Court in Mohar
Singh (Dead) by LRs. v. Devi Charan and Ors., [1988] 3 SCC 63 wherein
G M.N. Venkatachaliah, J. (as His Lordship then was) speaking for the Bench
consisting of R.S. Pathak, Chief Justice and himself, held that Section l 09 of
T.P. Act does away with the need for a consensual attomment. The attomment
is brought about by operation of law. The severance of the reversion and
assignment of the part so severed do not need the consent of the tenant.

H In B.P. Pathak v. Dr. Riyazuddin and Ors., AIR (1976) MP 55, a
•,
NALAKATH SAINUDDIN v. KOORIKADAN SULAIMAN [R.C. LAHOTI, !.] J7
,
Division Bench of the High Court of Madhya Pradesh consisting of Chief A
Justice P.K. Tare and Justice Shiv Dayal (later, Chief Justice), took the view
on an illuminating survey of judicial opinion that a transferee of a part of
leased property acquires "all the rights" of the lessor in respect of that part
as if it alone had comprised the lease and a new relationship is created
between the transferee and the Jessee. The section creates a statutory attomment B
substituting, but retaining the same effect of, the'contractual attomment. Title
of the assignee is complete on execution of the deed of assignment and is not
postponed till the notice of the assignment. The Division Bench repelled the
submission that since the lessor could not have terminated the tenancy of a
part of the demised premises by a notice to quit, he cannot transfer the
premises in part and confer such a right on the transferee. The Division C
Bench held that the right of ejectment is inherent in ownership. Therefore, by
virtue of Section 109 ofT.P. Act such transferee is entitled to evict the tenant
from the part transferred to him not only when the lease had been determined
before the transfer but also if it is determined after the transfer in any of the
circumstances mentioned in Section 111. Thus he can terminate by a quit
notice the lease in respect of the property transferred to him. D
The Division Bench decision came up for consideration by a Full Bench
of the same High Court in Sardarila/ v. Narayan/al, AIR ( ! 980) MP 8. Chief

-· Justice G.P. Singh, speaking for the Full Bench, approved the statement of
law in B.P. Pathak's case and held that Section 109 of T.P. Act confers a
right on the owner to effect a severance of a lease by his unilateral act and
E

tenancy over a part of the property leased can be determined by the transferee.

It is, thus, clear that in a lease governed by the provisions of the T.P.
Act or the principles emerging therefrom as applicable in India, the transfer
of a part of leased premises by the owner in favour of the sub-tenant, holding F
sub-lease from the tenant, would result in merger. It will be a strange
proposition to urge or to accept that although the respondent has purchased
the reversion in the entire estate consisting of Doors No.6/482 and 6/483 and
the appellant has become the respondent's tenant as to both the doors still the
respondent continues to be a sub-tenant of appellant in respect of Door No.6/
482. The respondent cannot be an owner and sub-lessee both and at the same G
time. The smaller estate of sub-tenancy shall sink or drown into the larger
estate of ownership as the two cannot co-exist. The sub-tenant, i.e. the
respondent, has not acquired only a share of the landlord owner's estate nor
an ownership in part confined to sub-tenancy premises; what he has acquired
under the deed dated 12.9.1988 is the full ownership in the entire premises. H
I
18 SUPREME COURT REPORTS (2002] SUPP. l S.C.R.

A The right of reversion vesting in the then owners, so far as the appellant is
concerned, stands fully and entirely vested in the respondent. There is nothing
to hold that the intention of the parties to the deed dated 12.9.1988 was not
to effect a merger and confer the estate of owner on the sub-tenant (the
respondent). Undoubtedly, on I2.9.I988, the appellant's estate did intervene
but that is of no consequence in view of Section I 09 of the Transfer of
B Property Act. The sale deed is not under challenge. There is nothing to
prevent the splitting up of tenancy and resulting in statutory attornment by ·
the tenant-appellant in favour of the sub-tenant-respondent on the factum of
.transfer of full ownership, including reversion, under the deed dated I2.9. l 988
being brought to his notice which would take effect from the date of the
C deed. We are, therefore, of the opinion that on 12.9.1988 the sub-tenancy of
the respondent held under the appellant to the extent of sub-leased premises
tenninated by merger and the respondent became the owner-landlord of the
entire premises consisting of two Doors. So far as the apportionment of rent
is concerned, that would depend on consensus between the owner and the
respondent. In the absence of consent or a dispute arising, the same would
D be detennined by a competent forum whether the Rent Controller or the Civil
Court. The applicability of Section I I (8) of the Act is squarely attracted and
the respondent could have availed the benefit thereof for evicting the appellant.

For all the foregoing reasons we do not find the decree for eviction ,._
E liable to be interfere with. The appeals filed by the tenant are dismissed. The
appeals filed by the landlord are allowed. However, the appellant is granted
four months' time from today for vacating the suit premises subject to his >
clearing all the arrears of rent and filing an usual undertaking, both within
three weeks from today, in the executing court. No order as to the costs.

. F N.J. Appeals filed by the tenant dismissed
Appeals filed by the landlord allowed. ·