Karnataka High Court
Pratap Singh And Ors. vs Jaibunnisa on 10 August, 1987
Equivalent citations: AIR1989KANT70
JUDGMENT Shivashankar Bhat, J.
1. These two revision petitions were referred for consideration by the Division Bench and accordingly they have come up before us for hearing .
2. Since common questions of law and facts are involved, they are heard together, and disposed of by the following order.
3. The, parties are same in both the petitions. Petitioners claim to be the owners, sought eviction of the respondents-tenants under various sub-clauses of S. 21(l) of the Karnataka Rent Control Act, 1961 ('the Act') alleging that the respondents were the lessees. The petitioners claim to be the descendants of one Lachiramsing, whose grandfather was Parwatsing. The premises were bits of open land in the year 1849 and were granted on lease by Lachiramsing in favour of one Mohamad Gori Soudagar under a registered lease deed (Ex. P. 1). According to the petitioners the lease was for a period of 20 years and thereafter the tenant had to continue as a lessee under the lessor and the lessor was entitled to seek possession at any time. It is further averred by the petitioners that the lessee was permitted to put up shop buildings on a consolidated rent of Rs. 50/for the lease period of 20 years and after the expiry of the period of 20 years; the agreed rent was stated to be Rs. 4/- per year per shop. Accordingly the original lessee continued as tenant. The successors-in interest of the original lessee are in possession as ordinary tenants and they are the respondents here. Accordingly eviction has been sought against them. It is further stated by the petitioners that the original lessor Lachiramsing had a younger brother called Fakirsing, who had two sons Bhawansingh and Chattusing. Bhawansing had a son called 'Lachiram' and he died issueless. Petitioners 1 to 3 are the children of Chattusing.
4. The respondents contested the claim of the petitioners on several grounds. The first respondent and respondents 2 and 3 filed separate objections. Most of the grounds urged by them were common. It may be summarised as follows: -
The respondents disputed the right of the petitioners to seek possession as landlords. They asserted that neither the petitioners nor their predecessors-in-interest recovered any rent from the respondents for the last more than 70 years (The eviction petition is of the year 1969 and the objections also must have been filed immediately thereafter). Respondents pointed out that the right of the petitioners, if any, stood extinguished by lapse of time to recover the rent. Permanent structures have been put up on the original lease-hold. Respondents also question the relationship of the petitioners to the original lessor Lachiramsing. They pointed out that on the expiry of the alleged lease period no steps were taken to obtain possession of the premises and therefore the title of the lessor was lost by adverse possession and prescription. It is also averted that there were several transfers by the original lessee or his successors and the transferees continued to be in possession as bona fide purchasers for value, without notice of any claim of the petitioners. It was specifically averred by the respondents that the refusal to pay rent after the determination of the alleged lease period amounts to disowning the title of the lessor; since more than 12 years have elapsed from such refusal, the rights of the petitioners and their alleged predecessors were extinguished long back. It was further stated by' them that the proceedings involve complicated questions of law and fact and as the respondents deny the petitioners' rights, if any, to file the petition, the petition may be either rejected or the petitioners may be directed to get their title decided in a competent civil court. Respondents also contended in the alternative that they were permanent tenants on annual rent and' therefore they cannot be evicted at all. They also denied the existence of any grounds under S. 21(l) of the Act, pleaded in the eviction petition.
5. It has come on record that even as early as in the year 1915 notices were exchanged between the alleged lessees and the first petitioner and one Lachiram (stated to be the uncle of first petitioner), claiming to be the owners the persons in possession of the premises in their reply Ex. D. 4(a) disputed the claim f the first petitioners and his alleged uncle, who sought possession as per the notice Ex. D. 5(a). No follow up action was taken by the alleged landlords thereafter, either for recovery of rent or possession.
6. The trial Court framed the following issues :
(i) Whether the opponents are the permanent tenants annual rent?
(ii) Whether petitioners have no right to' recover possession?
(iii) Whether the petitioners have got right to claim possession of the open site by demolishing the building?
(iv) Whether this court has got jurisdiction to try this case?
(v) Whether petitioners require the suit premises bona fide and reasonably?
(vi) Who is put to greater harding?
7. The learned Munsiff held that the petitioners were the successors-in-interest of the original lessor Lachiramsing. It was further held that the lease was not a permanent lease and therefore the tenants were liable to be evicted, in case the grounds under S. 21 (1) of the Act are made out. Finally he held that the petitioners made out a ground under S. 21(l)(h) of the Act and accordingly directed eviction of the tenants, after negativing the plea as to greater hardship raised by the tenants.
8. On issue No.4 the Munsiff noted the contention of the counsel for the petitioners that the question of title was not at all involved in these proceedings and the court under the Act was therefore competent to decide the question whether the tenancy was a permanent one or otherwise. At the same time the Munsiff also observed that the counsel for the tenant-1st respondent did not urge the grounds pertaining to the title of the petitioners. Therefore, it held that the court 'has jurisdiction to entertain the proceedings.
9. Respondents filed appeals under the Act before the Court of the District Judge, Belgaum. One appeal was filed by the first respondent Shidlingappa Virappa Virupaxi and the other by second respondent Jaibunnisa Begum. After summarising the respective contentions, the learned District Judge framed the following points for determination; after stating, "now the important questions raised and argued which in my view arise for determination are the following":-(Underlining by us) "(i) Is the lease deed Ex. P. 1 dt. 24-2-1849 a permanent lease or merely an indefinite lease subsisting during the lifetime of the lessor and thereafter an annual lease in the hands of the heirs and assigns of the original lessor and lessee?
(ii) Has the Court jurisdiction to decide the question as to whether the relationship of landlord and tenant subsisted between the applicants and the opponents?
(iii) Is the need of the landlords established to be bona fide and reasonable?
(iv) Comparative hardship,"
10. The learned District Judge upheld the finding of the Munsiff on the question of relationship claimed by the petitioners to the original lessor. However, he found that the lease of the year 1849 was a permanent lease and therefore the petitioners cannot seek eviction of the respondents at all. In view of this, the learned District Judge did not go into the second question framed by him. At para 20, the learned District Judge stated thus: -
"Although I have stated some more questions for consideration including whether in the circumstances of the case it could be said that the relationship of landlord and tenant did subsist and a decision on that issue did not involve the investigation into complicated questions of law and fact as also the further question in relation to the statutory finding of the landlords' need being established to be bonafide and reasonable followed by the point relating to comparative hardship, it seems to me that in view of my finding on the first point as to the nature of the tenancy which I have held to be a permanent lease, the other questions do not survive for consideration and need not be investigated."
11. The petitioners have filed these revision petitions against the above order of the learned District Judge.
12. In these revision petitions Sri Ajit Gunjal contended as follows :
(i) The lease deed in question did not create a permanent lease and the lessee continued to be in possession as an ordinary tenant, whose tenancy can be terminated at any time by the landlord.
(ii) Even assuming that the lease deed created a permanent tenancy, the landlord can seek eviction of the tenants under S. 21(l) of the Act in view of the decision of this Court in Bharat Petroleum Corpn. Ltd. v. Mohamed Hanif, .
(iii) Applying the aforesaid decision, the tenants are liable to be evicted since the counsel for them did not challenge the findings of the trial court on the question of the petitioners need being held bona fide, and reasonable as is clear from para 10 of the judgment of the learned District Judge.
13. On the other hand, Sri Sharat Javali appearing for the respondents at the outset, contended that the question of the court's jurisdiction should have been decided by the courts below before, going into any other question as the said question goes to the very competency of the court to entertain the petition. He contended that the petitioners had so subsisting right at all to the premises in question; the rights, if any, having lost by prescription and adverse possession. This question being a complicated question of fact and law should not have been gone into by 'the Court as defined under the provisions of the Act, wherein the proceedings are of a summary nature. He argued that the question of title not being a simple one, should not have been made the subject of scrutiny in such a summary proceedings, especially when the respondents and their predecessors-in title were admittedly in possession of the premises the question ever since the date of Ex. P. 1, which is of the year 1849 and that permanent structures have been put up and no rent was being paid at least for the last over 70 years and no attempt was made to secure possession of the premises, even after the right of the petitioners was questioned as early as in the year 1915. He pointed out several salient features which, if properly proved in a suit would result in showing lack of title in the petitioners. To start with, as stated in the lease deed itself, original owner Lachiramsing had no heirs at all and the relationship of the present petitioners to claim heirship to Lachiramsing itself is in doubt. Long possession, non-payment of rent, alienations of portions of the premises, putting up of permanent structures, inaction even after denial of the right to recover rent are all pointers, leading to extinguishments o f title, if -any, in the petitioners. He further contended that the decision of the Division Bench o f t his Court in the aforesaid Bharat Petroleum case requires reconsideration because a person claiming to be permanent tenant cannot be evicted at all and that S. 21 of the Act does not create: a new right in the landlord to seek eviction of a permanent tenant. In essence, his contention is that the question of title being a complicated one, the courts below should not have gone into that claim of the petitioners in these proceedings.
14. On this, Mr. Gunjal, contended that such a plea was not raised in the courts below and, at any rate, the said plea was given up; therefore, the courts below did not into this aspect of the case.
15. Whether question raised about the title of the petitioners is a complicated one or not, will be a mixed question of fact and law. The nature of the plea, facts giving rise to such a plea, genuineness of the plea, material placed by the parties and various circumstances of the case, will go into the consideration of this question.
16. If it is found to be really a complicated, question, and was raised bona fide, it will be unfair to be resolved in a summary proceeding by the court as defined under the Act. The Act, does not vest any exclusive jurisdiction in the said Court to decide the question of title while considering first proviso to S. 8(l) of the Mysore House Rent- & Rent Accommodation Control Act, 1957 (which was the predecessor to the present Act, in' the old Mysore area), Justice Somnath Iyer (as he then was) observed in M. Thammiah v. K. V. Subba Rao, (1964) 2 Mys U 356 at p. 359, that, -
"if there is a bona fide dispute between the parties as to the existence of such relationship between the parties, the Court exercising special jurisdiction under S. 8 of the Act, cannot decide that question; nor can the Court proceed with the petition for eviction on the basis that such relationship exists between the parties. It is not every denial by the tenant of the title of the landlord that prevents the Court from exercising its special jurisdiction under S. 8 of the Act. If such denial by the tenant is found to be frivolous or obviously untenable, the Court is not precluded from exercising its special jurisdiction under S. 8 of the Act. But if the denial by the tenant of the landlord's title is bona fide, the question of the title of the landlord can only be determined by a civil court and not by the Court exercising special jurisdiction under the Act".
17. Mohammed Ibrahim v. Mahabaobbi, (1963) 2 Mys LJ 250 was a decision rendered under the present Act. It was observed therein that, "absence of a provision similar to provision, S. 8(l) of the earlier Act would not make any difference to the question, as to whether, the Court functioning under the provisions of the Rent Control Act, 1961 can decide the question of title when there is a bona fide dispute on this question. At p. 253 it was observed:-
"It is enough for me to state in this case that whenever there is a complicated dispute as to the title of the landlord or as to the existence of the tenancy, the Court functioning under the new Act has as much power as it had under the old Act to refer the parties to a suit".
Accordingly, the eviction order was set aside and the concerned parties were directed to establish their rights in a proper forum. Same .view was reiterated in Rukamoddia v. Basawwa, AIR 1974 Mys 46 and in para 14 this Court held that the issue raised involved a complicated question of title and hence, the eviction petition was rejected.
18. In all these three cases, plea was found to be a complicated one and that it was raised bona fide and accordingly at the stage of revision petitions after entertaining the plea, landlord's eviction petitions were dismissed.
19. The plea as to the title of the landlord, if found to be bona fide and complicated, results in refraining of the exercise of jurisdiction under the Act. Therefore, the said plea goes to the root of the jurisdiction. In such circumstances, it will be within the judicial discretion of this Court to allow a party to put forth the contention, even if, the contention was not properly argued in the courts provided such a plea is raised in the pleading and relavant materials read the light of the circumstances of the case, prima facie support the plea.
20. The respondents, in this case, raised the plea specifically in their objections to the eviction petition. That is clear from the summary of pleadings, stated in para 3 of the trial court's order. It was pleaded by the respondents that the petitioners in no way were related to and cannot succeed to,the original owner, who executed the lease deed -Ex. P. 1. They also contended that by lapse of time and the inaction of the lessor to take any action to recover possession or rent, their title, if any, was lost. First respondent also pleaded that he was a bona fide purchaser for value, without notice of the petitioners claim if any. Several sale transactions took place in respect of the premises and transferees enjoyed the premises as owners, which again prove the extinguishments of title by adverse possession. Even after a demand for rent, made in the year 1915 and the denial of the liability made on behalf of the predecessors of the respondents, no action was taken, to recover the rent, which may result in the extinguishments of the right to recover rent and consequently, the very title itself. It was categorically pleaded that, "as this proceeding involves complicated question of law and fact and as the respondents deny the petitioner's rights, if any, to file the petition,the petition may be either rejected or petitioners may be directed to get their title decided in a competent court of law". Issues 2 and 4, are referable to this plea as to title of the petitioners and the jurisdiction of the court to go into the said complicated question. In para 9 o f his judgment, the learned District Judge framed the points for determination on the basis of the "questions raised and argued" and the second question framed is referable to this plea.
21. The learned District Judge gave relief to the respondents, by holding that they were not liable to be evicted since it was a permanent tenancy. Thereafter in para 20, the learned Judge stated that he did not go into the second question, as it did not survive for consideration.
22. In the circumstances, we hold, that the respondents are entitled to raise this plea and the plea was never given up by the respondents.
23. Next question is, whether the plea disputing the title of the petitioners is a bona fide one and whether it is a complicated one. The plea in this regard has already been summarised above. We have no doubt in our mind that, the plea questioning the title of the petitioners involves complicated question of fact and law, and the plea raised by the respondents cannot, in any way, be termed frivolous or lacking in bona fide.
24. In view of what is stated above, it is not necessary to go into the other contentions raised by Mr. Gunjal. The revision petitions will have to be dismissed. The petitioners, if they are so advised, may take recourse to such remedies as are open to them in law to establish their title to the property. Consequently the eviction petition filed by the petitioners before the trial court also shall stand dismissed keeping open all other contentions raised by the parties.
Accordingly, revision, petitions are dismissed.
In the circumstances of the case, there will be no order as to costs.
25. Petitions dismissed.