Karnataka High Court
Smt Reshma vs Sri G S Sathish on 21 October, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2024:KHC:42077
HRRP No. 24 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
HOUSE RENT REV. PETITION NO. 24 OF 2019 (EVI)
BETWEEN:
1. SMT. RESHMA,
W/O LATE RIYAZ ULLA KHAN,
AGED ABOUT 35 YEARS,
2. KUMARI THAMMANNA,
D/O LATE RIYAZ ULLA KHAN,
AGED ABOUT 9 YEARS,
PETITIONER NO.2 IS MINOR,
REP. BY HER MOTHER AND NEXT FRIEND
SMT. RESHMA, FIRST PETITIONER
BOTH ARE R/O DOOR NO.71,
LIG 2ND STAGE, K.H.B. COLONY,
KUVEMPUNAGAR, MANDYA CITY - 571 401.
...PETITIONERS
[BY SRI JAGADISH J.R., ADVOCATE (PH)]
AND:
SRI G.S. SATHISH,
S/O LATE G.S. SHIVARUDRAIAH,
AGED ABOUT 47 YEARS,
Digitally signed by
ANUSHA V R/O NO.86, 12TH CROSS, K.H.B. COLONY,
CHAMUNDESWARINAGARA,
Location: High MANDYA CITY - 571 401.
Court of Karnataka
...RESPONDENT
[BY SRI V.S. HEGDE, ADVOCATE (PH)] THIS HRRP IS FILED U/SEC.115 OF CPC, AGAINST THE ORDER 115 OF CPC, AGAINST THE JUDGMENT DATED 20.11.2018 PASSED IN RENT REVISION NO.01/2018 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE AT MANDYA, DISMISSING THE PETITION FILED AGAINST THE ORDER DATED 15.03.2018 PASSED IN H.R.C.NO.5/2012 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC, MANDYA, ALLOWING THE PETITION FILED UNDER SECTION 27(2)(a) AND (r) OF THE KARNATAKA RENT ACT, 1999. -2-
NC: 2024:KHC:42077 HRRP No. 24 of 2019 THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 13.06.2024, THIS DAY, THE COURT, PRONOUNCED THE FOLLOWING:
CAV ORDER Challenging judgment dated 20.11.2018 passed by V Additional District and Sessions Judge, Mandya, in Rent Revision no.01/2018 ('Revisional Court', for short) dismissing order dated 15.03.2018 passed by II Additional Civil Judge and JMFC, Mandya, in H.R.C.no.5/2012 ('Rent Court', for short) filed under Section 27(2)(a) and (r) of Karnataka Rent Act, 1999 ('Rent Act' for short), this petition is filed.
2. Facts in brief are that under sale deed dated 10.11.2011, registered on 15.11.2011, GS Sathish claimed to have purchased house no.71, situated at 2nd stage, LIG, KHB colony, Hosahalli, Mandya City, measuring East to West 45 ft.
and North to South 30 ft. ('premises' for short), from Smt.Shakeela Bhanu, who was allottee of same by Karnataka Housing Board ('KHB' for short).
3. It was stated, Riyaz Ulla Khan, who was tenant of previous owner, continued tenancy under him on monthly rent of Rs.2,000/- for 11 months. In view of short duration, agreement was not reduced into writing nor any security deposit was received. It was stated, Riyaz had paid rent only -3- NC: 2024:KHC:42077 HRRP No. 24 of 2019 upto December, 2011 and from January, 2012 became willful defaulter, having failed to pay rent despite demand. Arrears accrued till September, 2012 was Rs.18,000/-. On ground that premises was required for bonafide own use and occupation, as he did not have any other alternative accommodation, he had demanded respondent to vacate and handover possession by issuing notice on 24.07.2012.
4. On ground that, despite service of notice, respondent had failed to comply, petition namely HRC no.5/2012 was filed.
5. On appearance, Riyaz filed objections stating that after allotment by KHB, Smt.Shakeela Bhanu had lived in it for only one month. As she was in need of money for her medical expenses, she had executed unregistered sale deed on 18.06.1987 in his favour by receiving entire sale consideration amount of Rs.9,000/- and delivered vacant possession. It was submitted thereafter, he had paid remaining installments to KHB, with last installment paid in year 2011.
6. It was stated, until then Smt.Shakeela Bhanu had kept postponing execution of regular sale deed on pretence that KHB had not executed sale deed in her favour. It was submitted, since Smt.Shakeela Bhanu was his relative, he had -4- NC: 2024:KHC:42077 HRRP No. 24 of 2019 acted on her assurances. It was later realized that on 15.11.2011, KHB had executed sale deed in favour of Smt.Shakeela Bhanu, who without his permission allegedly sold it to GS Satish and said sale was illegal. It was stated as Riyaz Ulla Khan was not tenant, but 'owner in possession' under unregistered sale deed and also by being in 'adverse possession' for more than 25 years, petition under Rent Act, was not maintainable. During pendency of proceedings, Riyaz Ulla Khan died. His wife and daughter were brought on record as legal representatives.
7. Based on pleadings, Rent Court framed following points for consideration:
1. Whether petitioner proves that the respondent is his tenant in the petition schedule premises?
2. If so, whether petitioner proves that the respondent has become defaulter in payment of rents?
3. Whether petitioner proves that the petition schedule premise is required for his bonafide use and occupation?
4. Whether respondent proves that the petition is bad for non-joinder of necessary parties?
5. What order?
8. Thereafter, Sri GS Sathish examined himself and another as PWs.1 and 2 and got marked Exs.P1 to 6. Two -5- NC: 2024:KHC:42077 HRRP No. 24 of 2019 witnesses were examined by respondents as RWs.1 and 2 and Exs.R1 to 22 were marked.
9. On 15.03.2018, Rent Court answered points no.1 to 3 in affirmative, points no.4 in negative and point no.5 by allowing petition, directing delivery of vacant possession of premises within three months; payment of Rs.18,000/- towards arrears of rent and fixing Rs.2,000/- per month as rent from date of petition till delivery of possession.
10. Aggrieved, Rent Revision Petition no.1/2018 was filed under Section 50 of Rent Act, mainly on ground that there was serious dispute about ownership of premises, which was erroneously ignored by Rent Court without any material to establish default and especially, when both parties claimed to be owners, there would be no question of payment of rent. Even acquisition of title by adverse possession was also ignored, etc.
11. Based on contentions Revisional Court framed following points for consideration:
1. Whether the petition filed by the petitioner is maintainable as the revision petitioners have not deposited the arrears or rent?
2. Whether the impugned order passed by the trial Court in H.R.C. No.05/2012 dated 15.03.2018 calls for interference by this Court?-6-
NC: 2024:KHC:42077 HRRP No. 24 of 2019
3. What order?
12. Under impugned order dated 20.11.2018, Revisional Court answered point no.1 in negative, point no.2 as not arising for consideration and point no.3 by dismissing petition as not maintainable. Aggrieved, present House Rent Revision Petition was filed.
13. Sri Jagadish J.R., learned counsel for petitioners submitted, dismissal of revision petition as not maintainable on ground of non-payment of arrears of rent was highly irregular, especially, when there was serious dispute about title over premises and existence of relationship of landlord and tenant.
14. It was submitted, while deciding said issue, Rent Court had specifically observed that there was no material to establish tenancy. It was submitted when even according to GS Sathish, there was oral tenancy. Riyaz Ulla Khan had disputed existence of tenancy. Thus, case fell under Section 43 (1) of Rent Act. As per Section 43 (2) (a) of Rent Act, where lease pleaded is oral and there is denial of relationship, unless receipt or acknowledgment of rent is produced, Rent Court would be required to stop all further proceedings before it and direct parties to approach Civil Court for declaration of their rights. -7-
NC: 2024:KHC:42077 HRRP No. 24 of 2019
15. It was submitted, facts of case falling within ambit of Section 43 of Rent Act, consequences ought to have followed. Such being case, based only on stray admission, petition was allowed, that too without giving any finding on plea of adverse possession which would have required filing of civil suit. It was submitted, receipts for having paid allotment price installments to KHB and unregistered sale deed duly corroborated version of petitioners. However, there was non- consideration of such relevant material. In support of his submission, learned counsel relied on decisions in R. Shariff and Ors. v. A. Mohammed Noor and Anr., reported in ILR 2004 KAR 1546 and of Hon'ble Supreme Court in case of Tribhuvanshankar v. Amrutlal, reported in 2014 (2) SCC
788.
16. On other hand, Sri VS Hegde, learned counsel for respondent - GS Sathish sought to oppose petition. It was submitted, though petitioners had sought to raise dispute regarding title and ownership over premises, during cross- examination, petitioner no.1 examined as RW.1, while denying suggestion about being tenant of GS Sathish, specifically stated that they had continued as tenants under Smt.Shakeela Bhanu. Learned counsel drew attention to further admission about -8- NC: 2024:KHC:42077 HRRP No. 24 of 2019 receipt of notice issued by GS Sathish to her husband - Riyaz and about taking no steps to verify claims made in notice or for payment of rent. It was submitted combined effect of said admissions was taken note by Rent Court to decide existence of relationship of landlord and tenant and allowed petition.
17. It was submitted, Section 45 of Rent Act mandates deposit of rent as a precondition to contest petition, prefer or defend revision petition. It was submitted, admittedly, petitioners herein had failed to deposit rent before Revisional Court. Therefore, revision petition was dismissed. Thus, finding about existence of jural relationship of landlord and tenant was concurrent and scope for interference with concurrent findings in second revision would be extremely limited.
18. It was submitted, while giving finding on said aspect, Rent Court had referred to admission during cross- examination. It was further submitted, petitioners' claim of ownership over premises was sought to be sourced under an unregistered sale deed. An attempt was made to improvise by claiming it to be relinquishment deed by examining RW.2. However, after raising of objections against marking of said deed, there is no further agitation on said issue by petitioners. -9-
NC: 2024:KHC:42077 HRRP No. 24 of 2019 In any case, said deed being unregistered document cannot convey valid title. On above grounds, sought for dismissal.
19. Heard learned counsel and perused impugned orders and record.
20. From above, it is seen petitioners herein are questioning orders passed by Rent Court and Revisional Court mainly on ground of failure to appreciate serious dispute regarding non-existence of relationship of landlord and tenant and consequentially relegation to Civil Court as mandated by Section 43 of Rent Act. Hence, points that arise for consideration are :
"1. Whether there is failure to follow mandate of Section 43 of Rent Act even in absence of written lease deed or production of rent receipt etc. and when there is dispute about title over premises?
2. Whether, Revisional Court erred in dismissing revision petition merely on ground of non- deposit of rent?"
Re point no.1:
21. In instant case, dispute about existence of jural relationship of landlord and tenant is sought to be based on two aspects. Firstly, on ground that premises originally allotted to Smt.Shakeela Bhanu by KHB was sold to Riyaz Ulla Khan, much prior to alleged sale in favour of GS Sathish. And secondly, on
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NC: 2024:KHC:42077 HRRP No. 24 of 2019 ground that tenancy claimed was oral and even after plea of dispute about tenancy, neither rent receipt or acknowledgement of payment of rent signed by landlord produced, thereby attracting Section 43 of Rent Act, as per which parties would require to approach Civil Court for declaration of their rights.
22. Admittedly, premises belonged to KHB and Smt.Shakeela Bhanu was an allottee. Sale deed by KHB was executed in her favour on 31.10.2011. Further, document under which petitioners claim title is unregistered and not marked. As per Section 54 of Transfer of Property Act, 1882, deed of alienation of immovable property of value exceeding Rs.100/- requires to be by way of registered deed. Consequences of failure to register same would render it illegal/invalid as per Section 49 of Registration Act.
23. Insofar as second aspect, careful reading of Section 43 (1) of Rent Act, provides in case of dispute about existence of jural relationship of landlord and tenant, production of document of lease and where there is no such document, receipt of acknowledgement of payment of rent purported to be signed by landlord as prima-facie evidence to proceed to hear
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NC: 2024:KHC:42077 HRRP No. 24 of 2019 case. However, same cannot be read as a threshold bar against recording of evidence to establish tenancy.
24. Moreover, though plea denying title and tenancy were taken in objections, no application under Section 43 of Rent Act was filed. In this regard, it is held by this Court in case of Dileep Kumar Mishra v. T.M. Vinay, reported in (2015) 3 Kant LJ 158, as follows:
"13. What is argued before this Court by the learned Counsel for the revision petitioners is that, the mandatory provision of Section 43 of the Karnataka Rent Act, 1999 has not been complied with, when nothing came in the way of the respondents therein to file an application under Section 43 of the Karnataka Rent Act and request to decide the aspect regarding the relationship of the landlord and tenant first. Having not done so at the earliest, they cannot turn round and say that there exists no jural relationship of landlord and tenant, at this stage."
25. Matter thus, having proceeded for trial, finding of Rent Court regarding existence of jural relationship cannot be questioned on said ground at this stage.
26. In any case, it is seen, finding of Rent Court is based on admission extracted from RW.1 about receipt of notice by Riyaz Ulla Khan, prior to filing of petition failure to verify claim and ensure payment of rent as well as admission about tenancy and its continuation under Smt.Shakeela Bhanu- vendor of GS Sathish. Admittedly, GS Sathish is claiming title over premises under Ex.P.1 - registered sale deed dated
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NC: 2024:KHC:42077 HRRP No. 24 of 2019 10.11.2011. This Court in Silva Uddin v. Nagaraju, reported in (2004) 7 Kant LJ 484, has held:
"7. In view of transfer of ownership of the premises to the respondent by the previous lessor, the respondent- becomes the lessor and becomes entitled to receive rent in terms of the lease by operation of Section 109 of the T.P. Act. It is relevant to state that in India no attornment of tenancy is necessary in law as Section 109 of the T.P. Act creates a statutory attornment. The section does not insist that transfer of the lessor's rights can take effect only if the tenant attorns. Attornment by the tenant is unnecessary to confer validity to the transfer of the lessor's rights. However, the section protects payment of rent by the tenant to the transferor without notice of the transfer. The transfer of ownership of the premises to the respondent by the previous lessor has resulted in statutory attornment by the tenant in favour of the lessor's transferee i.e. the respondent herein and consequently jural relationship of landlord & tenant.
8. In this context, it is also relevant to examine as to whether the right of the transferee under Section 109 of the T.P. Act is curtailed or modified by the Rent Act. The definition of 'landlord' under Section 3(e) of the Rent Act reads as follows:
"Landlord" means a person who for the time being is receiving or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of or for the benefit of any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or to be entitled to receive the rent, if the premises were let to a tenant;"
The expressions 'entitled to receive the rent' and 'to be entitled to receive the 'rent' in the aforesaid definition signify that the transfer of interest of the landlord in favour of any other person is not prohibited. Hence the right of the transferee under Section 109 of the T.P. Act is not curtailed/modified by the Rent Act. Thus a transferee of a lessor is entitled to collect rent in terms of the lease as of right and becomes landlord under Section 3(e) of the Rent Act. The tenant cannot dispute the right of the transferee landlord to maintain an
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NC: 2024:KHC:42077 HRRP No. 24 of 2019 eviction petition under the Rent Act or to claim rent. Hence in the case of a valid transfer of the premises by the lessor by way of sale, question of referring the parties namely the transferee of the lessor and the tenant to a Civil Court under Section 43 of the Rent Act does not arise. The judgment relied on by learned Counsel for the petitioner in Ayesha Begum v. Shahzadi [ILR 2003 Kar 4255.] is not applicable to the facts of this case or cases of the present nature i.e., cases to which Section 109 of the T.P. Act is applicable."
27. Thus, as held, admission of tenancy from vendor, there would be statutory attornment. Consequently, point no.1 requires to be answered in negative.
In re point no.2:
28. Same requires to be answered in negative, in view of following ratio laid down by Division Bench of this Court in C.S. Sheshagiri v. Jayalakshmi, reported in ILR 2016 Kar 1866, as follows:
"34. Therefore, to attract Section 45 two conditions must be fulfilled. Firstly, the person who is contesting the original proceedings or an order on an application under Section 27 should be a tenant and there should be an order in a proceedings under Section 27. Secondly, even though he disputes the jural relationship, once the Court holds that he is a tenant for the purpose of Section 45, he is bound to comply with the obligation imposed under Section 45 and deposit the rent.
35. Then the words used are "preferred" or "prosecute".
Ultimately if he succeeds in the revision, the amount in deposit would be refunded to him. But, without depositing the rent, a person who is held to be a tenant by an order of a Court in a proceedings under Section 27 is neither permitted to prefer or prosecute the revision. The word
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NC: 2024:KHC:42077 HRRP No. 24 of 2019 "preferred" refers to deposit of arrears of rent till the date of filing of the revision petition. On such deposit, his obligation to pay future rents does not cease. Not only he should deposit the rent as on the date he preferred the revision petition but also continue to pay the rent, if he wants to prosecute the revision."
29. In view of above, Revision Petition fails and is dismissed. However, in case, petitioners file separate affidavits-undertaking to quit, vacate and handover vacant possession to respondent and pay arrears of rent as per order of Rent Court within time fixed without seeking extension of time after expiry of time granted by this Court, they shall be permitted to occupy premises until 31.12.2024, by paying rent as ordered by Rent Court.
Parties to bear their own costs.
Sd/-
(RAVI V HOSMANI) JUDGE psg* List No.: 1 Sl No.: 60