Karnataka High Court
Smt Shobha vs Sri Muniraju on 11 September, 2014
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11TH DAY OF SEPTEMBER, 2014
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
H.R.R.P. NO.8/2014
BETWEEN:
SMT SHOBHA
D/O LATE MUNISWAMY
AGED ABOUT 51 YEARS,
R/AT NO.638/A,
DR. RAJKUMAR ROAD,
RAJAJINAGAR 2ND STAGE,
BANGALORE - 560 010. ...PETITIONER
(BY SRI VENKATESH R.BHAGAT, ADV.)
AND:
SRI MUNIRAJU
S/O FATHER NAME NOT KNOWN
AGED ABOUT 51 YEARS,
PROPRIETOR,
MEGHASHREE TRAVELS,
#638/A, DR.RAJAJKUMAR ROAD,
RAJAJINAGAR 2ND STAGE,
BANGALORE - 560 010. ...RESPONDENT
(BY SRI V.VIJAYASHEKHARA GOWDA, ADV.)
THIS HRRP IS FILED UNDER SEC.46(1) OF K.R.ACT,
AGAINST THE ORDER DATED 11.09.2013 PASSED IN IA
NO.3 IN HRC NO.124/2011 ON THE FILE OF THE CHIEF
JUDGE, COURT OF SMALL CAUSES, BANGALORE,
ALLOWING IA NO.3 FILED UNDER SEC.43 OF KARNATAKA
RENT ACT, 1999.
THIS HRRP COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
2
ORDER
Petitioner before trial Court is assailing the order passed by the Chief Judge, Small Causes Court, Bangalore, in HRC No.124/2011 dated 11.09.2013, allowing I.A.No.3 filed by respondent under Section 46(1) of Karnataka Rent Act, 1999 (for short the 'Rent Act') by holding there is no jural relationship of landlord and tenant between petitioner and respondent and stopping all further proceedings and directing the petitioner-landlord to approach competent Civil Court to establish her legal right over suit schedule premises.
2. I have heard the arguments of Sri Venkatesh R.Bhagat, learned counsel appearing for petitioner and Sri V.Vijayashekhara Gowda, learned counsel appearing for respondent. Records of trial Court have been secured and by the consent of learned Advocates appearing for parties, matter is taken up for final disposal.
3. It is the contention of Sri Venkatesh R. Bhagat, learned counsel appearing for the petitioner 3 that trial Court committed a serious error in not considering the fact that respondent was paying rents to the petitioner's mother and also her sister-in-law, as petitioner's agent and not otherwise, which fact was not in dispute and as such, trial Court committed an error in holding that rent received by mother and sister-in- law, is not established and thereby petitioner had failed to establish relationship of landlord and tenant. It is also contended by him that trial Court failed to take note of release deed executed by petitioner's mother in her favour and there being a statutory attornment of tenancy as per Section 109 of Transfer of Property Act, 1882 and the ratio laid down by this Court in the case of AYESHA BEGUM VS SHAHZADI reported in ILR 2003 Kar. 4255, was not at all applicable to the facts of case in view of judgment rendered by this Court in the case of SILVA UDDIN vs NAGARAJU reported in ILR 2004 Kar. 4782. Hence, he prays for allowing the revision petition and prays for setting aside the order passed by trial Court and for a direction to the trial 4 Court to dispose of the petition on merits and in accordance with law.
4. Per contra, Sri V.Vijayashekhara Gowda, learned counsel appearing for respondent would support the order passed by trial Court and contends that there was no jural relationship of landlord and tenant between petitioner and respondent and in support of his submission he draws the attention of Court to cross-examination of P.W.1, whereunder she admits that no letter or notice to respondent calling upon him to pay rent on the ground that release deed was executed in her favour in respect of suit schedule premises had been issued by her and as such petitioner had failed to establish the relationship of landlord and tenant. He has also relied upon the evidence of P.W.1 in its entirety to contend that admissions elicited in the cross-examination of P.W.1 would prove that there was no relationship of landlord and tenant. In support of his submissions he has relied upon the following judgments:
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(i) ILR 2010 KAR. 2204 SRI ANANTSWAMI vs. SMT. RADHA SRINATH AND ANOTHER
(ii) ILR 2011 KAR. 5669 RAMAKRISHNA vs. AYESHA MOHIDDIN
(iii) ILR 2003 KAR. 4255 AYESHA BEGUM vs. SHAHZADI
5. Having heard the learned Advocates appearing for parties and on perusal of order in question, I am of the considered view that following points would arise for my consideration:
(i) Whether order passed by trial Court allowing the application filed by respondent - tenant under Section 43 of Rent Act, deserves to be affirmed or set aside?
(ii) What order?
BRIEF BACKGROUND OF THE CASE:
6. Petitioner herein had filed an eviction
petition under Section 27(2)(r) of Karnataka Rent Act, 1999 against respondent seeking for eviction, contending interalia that respondent had been inducted as a tenant about 20 years back by her father and 6 respondent has paid a sum of Rs.10,000/- towards security deposit at the time of inception of tenancy, which did not carry any interest and said premises was leased to respondent for running a travel business under the name and style of "Meghashree Travels". It is further contended that on demise of her father, Bangalore Development Authority executed a sale deed dated 25.06.1999 in favour of petitioner and her mother, since they were Class 1 heirs and they were entitled to get the sale deed from Bangalore Development Authority. Subsequently, mother of petitioner is said to have relinquished her right, title, interest over suit schedule premises in favour of petitioner by executing a release deed dated 10.09.1999.
As such, petitioner claims to be the absolute owner of suit schedule premises and pursuant to same, she has got the khatha transferred to her name in the Municipal records and she has been paying taxes. She contended that tenancy was attorned in her favour and respondent became a tenant under petitioner and was paying rent @ Rs.1,100/- per month. On account of her legitimate 7 demand requesting respondent to quit, vacate and deliver vacant possession of schedule premises having not been complied by respondent, she filed the eviction petition in question.
7. On service of summons, respondent appeared, filed objections to the main petition and admitted that he had been inducted as a tenant by the father of petitioner, as also payment of security deposit which according to him was Rs.25,000/- and not Rs.10,000/- as contended by petitioner. Respondent also denied payment of rent @ Rs.1,100/- per month to the petitioner. He further contended that his father - Sri K.M.Byrappa was a tenant under petitioner's father under a rental agreement dated 25.04.1991. He also contended that when respondent started a new business along with his father, vacancy of petition schedule property came to be notified by Rent Controller and in the said proceedings father of petitioner admitted that respondent was carrying on the business and he is a tenant under him and as such, proceedings initiated 8 by Rent Controller for allotment of petition schedule premises to applicants came to be dropped. He also contended that fresh agreement was executed by father of petitioner on 28.5.1994 and accordingly he had agreed to pay a sum of Rs.375/- per month and an advance of Rs.15,000/- was paid. He has also contended that fresh agreement came to be executed once again on 14.2.1995 by petitioner's father in favour of respondent and further advance of Rs.10,000/- was paid. As such, he contended that in all a sum of Rs.25,000/- was paid as advance. He has also contended that on the demise of father of petitioner, mother of petitioner continued to collect rents till petitioner got issued a legal notice to respondent - tenant. Respondent has also pleaded ignorance about release deed said to have been executed by mother of petitioner and as such, he denied the relationship of landlord and tenant on the ground there was no attornment of tenancy. It was also contended by him that Smt Sarojamma, W/o Mariyappa, namely, daughter-in-law of late Sri Muniswamy, had received 9 rent and issued rent receipts. Hence, respondent disputed relationship of landlord and tenant and prayed for stopping of further proceedings.
8. Pursuant to said plea raised, respondent also filed an interlocutory application under Section 43 of Karnataka Rent Act, 1999 namely, I.A.No.3 to stop all further proceedings and sought for a direction to the petitioner to approach competent Civil Court. On said application, enquiry came to be conducted and both parties have tendered evidence before trial Court. On considering the pleadings and evaluating the evidence as also consideration of arguments canvassed by respective learned Advocates, trial Court formulated following points for its consideration:
(i) Whether there is no jural relationship of landlord and tenant between the Petitioner and Respondent?
(ii) What order?10
9. On appreciation of evidence, trial Court has come to a conclusion that for sometime respondent was paying rent to mother of the petitioner and on some occasions to sister-in-law of petitioner and petitioner having admitted about she having not received rents from respondent and petitioner having not received any rent from respondent at any point of time, there was no jural relationship of landlord and tenant between petitioner and respondent and as such, relying upon the judgment rendered by this Court in the case of AYESHA BEGUM vs. SHAHZADI reported in ILR 2003 Kar. 4255, allowed I.A.No.3 and further proceedings in HRC No.124/2011 came to be stopped. Petitioner was directed to approach the Civil Court to establish her legal right over the schedule property. It is this order, which has been assailed in the present revision petition. RE. POINT NO.1:
10. At the outset, it requires to be noticed that respondent does not dispute that he was inducted as a tenant of petition schedule property by the father of 11 petitioner and payment of rents to him. He also admits that petitioner's father had executed Lease Agreement in his favour and payment of rents to petitioner's father pursuant to such agreements. He also admits in his statement of objections that the contents of paragraph 4 of the eviction petition, are true and correct. His admission reads as under:
"3. The respondent is hereby submits that, he admits the facts made in para-4 of the petition are true and correct except the security deposit alleged as Rs.10,000/-. But the respondent has paid refundable security deposit of Rs.25,000/- but not Rs.10,000/- and so also this respondent has not the tenant under the said Muniswamy @ Appayanna but the father of the respondent Sri K.M.Byarappa was the tenant through a rental Agreement dated.25.04.1991, as his father was a radio repairer during that relevant point of time. Thus xxxxxx stranger to the respondent."
11. He also admits that on the demise of petitioner's father- Sri Muniswamy @ Appayanna, he continued to pay rent to his wife namely, mother of petitioner Smt Lakshmamma. His admission in statement of objections reads as under: 12
"6. It is further submitted that xxxxxxxxxxxx attornment of tenancy. After death of Muniswamy @ Appayanna his wife Smt. Lakshmamma continued to be collecting rent from the respondent, till the petitioner issued legal notice to him. After issuance of frivolous legal notice to the respondent, the mother of the petitioner stopped coming to the respondent to collect rent of Rs.1,100-00 per month. According to the xxx landlord and tenant."
12. Thus, statement of objections filed by the respondent would clearly indicate that respondent does not dispute the fact that he having been inducted as a tenant of petition schedule premises by the father of petitioner and thereafter he having continued to pay the rents of petition schedule premises to the mother of petitioner.
13. Evidence on record would clearly indicate that on the demise of father of petitioner, absolute sale deed in respect of property in question came to be executed by the Bangalore Development Authority in favour of petitioner and her mother as per Ex.P-1 namely, sale deed dated 25.06.1999, which includes the petition schedule premises. Subsequently, on 13 10.09.1999 mother of petitioner has executed release deed relinquishing her right, title and interest over suit schedule premises in favour of petitioner herein. As such, petitioner became the absolute owner of schedule property including petition schedule premises and there cannot be any dispute with regard to these facts since it is borne by registered documents. Incidental question that would arise would be, whether there is attornment of tenancy in favour of tenant or not as required under Section 109 of Transfer of Property? Section 109 of Transfer of Property Act reads as under:
"109. Rights of lessor's transferee:-
If 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 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 transfer crease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treate the transferee as the person liable to him:
Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having 14 reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.
The lessor, the transferee and the lessee may determine what 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."
14. Undisputedly, father of petitioner had inducted respondent's father as tenant to the petition schedule premises as owner of said premises, which fact is also not disputed by respondent. On his demise, Bangalore Development Authority has executed a absolute sale deed in favour of petitioner and her mother. Mother who was entitled for half share and possessing right, title and interest over petition schedule premises, has relinquished her right, title and interest in favour of her daughter-petitioner. By virtue of Section 109 of Transfer of Property Act, 1882, there is statutory attornment of tenancy in favour of transferee. This view is supported by judgment of this Court in the 15 case of M/S. POPULAR AUTOMOBILES vs. N.VEERASWAMY reported in ILR 1989 Kar. 1555 wherein it has been held as under;
"14. The very fact that the vendor of the respondent S. Rajagopal had addressed a letter to the petitioner apprising the sale in favour of the respondent and requesting the petitioner to attorn as a tenant of the respondent and to pay the rents due in respect of the schedule premises to the respondent with effect from 1-1-1982 is not disputed. When the communication has been received from S. Rajagopal with whom the petitioner claims the relationship of landlord and tenant, it is rather strange that the petitioner not only denies the sale but also the validity of the sale deed and insists that S. Rajagopal continues to be the owner of the schedule premises as well as the landlord in so far as the petitioner is concerned. The stand taken by the petitioner is incongruous and strange indeed. By operation of law, even assuming that the petitioner regards the sale as null and void, there is what is known as statutory attornment and until and unless the sale is set aside by a competent Court, the petitioner has to be regarded as a tenant of the purchaser of the schedule premises. In other words, the respondent is deemed to be the landlord of the petitioner. In proceedings instituted for eviction of tenant, this Court cannot go into the validity of title to property in the circumstances in which a registered sale deed has come into existence the validity of which has not been challenged and relief sought before the Court of Law in a civil suit. If the sale deed is violative of any 16 of any of the provisions of the Urban Land (Ceiling and Regulation) Act, it is for the Authority under the Act to take such action in law as deemed fit by the Authority against the respondent in respect of the property in question. So long as no such action has been taken by the Authority under the Act, a mere assertion by the petitioner that the sale deed is null and void cannot destroy the relationship of landlord and tenant between the respondent and the petitioner, by virtue of deemed attornment. I am of the opinion that the trial Court was justified in holding that there is subsisting relationship of landlord and tenant between the respondent and the petitioner."
Thus, by operation of law respondent is deemed to be tenant under the petitioner herein.
15. Trial court has relied upon the judgment of Coordinate Bench of this Court in the case of AYESHA BEGUM vs. SHAHZADI reported in ILR 2003 Kar. 4255 to stop further proceedings and to direct petitioner to approach Civil Court to establish her right. In the said case Court of first instance as well as the revisional Court, had on appreciation of facts had come to a conclusion that there was no jural relationship of landlord and tenant, which order was assailed by the 17 landlord in the revisional jurisdiction under Section 115 of CPC. As such, this Court held that revisional is maintainable and was of the view that orders by lower Courts are not required to be interfered with. It has been held in the said judgment as under:
"6. It is no doubt true xxxxxxxxxxxx having higher jurisdiction. As there is concurrent finding recorded by both the Courts below that there is no relationship of landlord and tenant, in my considered opinion, no useful purpose would be served by remitting the matter back to the Rent Court for merely carrying out the mundane task of directing the parties to the Civil Court for adjudication of their rights by once again taking the matter on its file. This Court sitting in revision xxxxxxxxxx finding of the Court or the Courts-below."
As to what was the nature of dispute that arose between the parties and reasons of such adjudication has not been discussed by Coordinate Bench of this Court and reasons recorded by trial Court to arrive at such conclusion is not to be found in the said judgment.
16. As against this judgment relied upon by the learned counsel appearing for respondent herein, petitioner has also relied upon judgment of another 18 Coordinate Bench of this Court in the case of SILVA UDDIN vs. NAGARAJU reported in ILR 2004 Kar. 4782, which is later on judgment and the law precedent commands that later judgment prevails over the earlier judgment. Coordinate Bench of this Court in Silva Uddin's case has discussed, analyzed and adjudicated the facts and found that principles laid down in Ayesha Begum's case, cannot be universally applied as a straight jacket formula. In the background of discussions made in the Silva Uddin's case and in the back drop of Section 109 of the Transfer of Property Act, 1882, I am of the considered view that a transferee would be entitled to collect rent in terms of lease as of right and becomes a landlord as defined under Section 3(e) of Rent Act. In fact, it is this principle which has also been analyzed in the earlier judgment of this Court in M/s. Popular Automobiles came referred to supra, whereunder it has been held that in circumstances of transfer of property by registered document, tenancy would get statutorily attorned in favour of transferee. Hence, I am of the considered view that principles laid 19 down in Ayesha Begum's case would be inapplicable to the facts on hand.
17. Insofar as, two judgments relied upon by the learned counsel for respondent, I am of the view that it would not assist the respondent/tenant for the following reasons:
(i). RE: ILR 2011 Kar. 5669:
RAMAKRISHNA vs. AYESHA MOHIDDIN It was found by the Coordinate Bench of this Court that despite plea having been put forward by respondent / tenant denying jural relationship of landlord and tenant, said plea had been summarily rejected and an order of eviction had been passed without examining the said plea and as such, provisions of Section 27 (2), 42(1) and 43 of the Rent Act came to be discussed, analyzed and held by trial Court that when a plea with regard to jural relationship of landlord and tenant is raised, trial Court will have to address the said issue and without recording a finding on the said issue, it cannot summarily pass an order of eviction. In this case we are not faced with such situation. Trial 20 Court has addressed the issue regarding jural relationship of landlord and tenant, permitted the parties to tender their evidence both oral and documentary and after such evidence being tendered, it came to be analyzed by trial Court. Hence, on facts the principles laid down in Ramakrishna's case referred to supra, would be inapplicable to the facts on hand.
(ii). ILR 2010 Kar.2204:
SRI ANANTSWAMI vs. SMT. RADHA SRINATH AND ANOTHER It was noticed by this Court in the said case that before filing an eviction petition plaintiff had got issued a legal notice contending that defendant therein is a tenant under him and on account of reply having been sent admitting his tenancy, petitioners therein filed an eviction petition and in eviction proceedings defendant filed statement of objections denying the relationship of landlord and tenant contended that there existed relationship of mortgager and mortgagee. However, trial Court dismissed the eviction petition and held there was no relationship of landlord and tenant and directed the 21 parties to approach Civil Court. Revision petition which came to be filed before this Court against said order, also ended in dismissal. It is thereafter, plaintiff filed a suit for possession and it is in this background, an issue came to be framed as to whether plaintiff prove that defendant is a tenant under him in respect of suit schedule property? by trial Court and suit came to be decreed against which an appeal was filed before this Court. Trial Court also found that termination of tenancy is valid. Against said judgment and decree appeal came to be filed by defendant. In the background rival contentions raised, Coordinate Bench of this Court formulated following points for its consideration:
"(i) Whether the Court below is justified in holding that the defendant is the tenant under the plaintiffs in respect of the suit schedule premises?
(ii) Whether the Court below has jurisdiction to direct the defendant to deliver vacant possession of the suit schedule premises in favour the plaintiffs?
(iii) If the answer to point No.(ii) is in the negative, whether the eviction petition filed by the plaintiffs in HRC 22 No.126/1999 can be revived under Section 43 of the Karnataka Rent Act, 1999?"
This court has held that after Civil Court having found that there was a relationship of landlord and tenant and a declaration of right of parties being that of landlord and tenant could not have passed an order of eviction or directed delivery of possession and in the said appeal this Court revived or restored the earlier eviction proceedings which had been stopped by Small Causes Court or which had been terminated by the Small Causes Court by applying Section 43 and directed the Small Causes Court to proceed with the eviction proceedings in accordance with law. There cannot be any dispute with regard to proposition of law laid down in the said case. As to the principles laid down in the said judgment and its applicability to the facts on hand when examined with reference to evidence and finding recorded by trial Court, as already discussed hereinabove, it would not detain this Court too long to reject the contention of Sri V.Vijayaprakash Gowda, 23 learned counsel appearing for respondent. Issue involved in the present lis relates to attornment of tenancy and this Court having held that there is a statutory attornment of tenancy and particularly when respondent herein himself admits in paragraphs 4 and 6 that his father had been inducted as a tenant of suit schedule premises by the father of petitioner and on his demise, respondent having continued to pay rent to the mother of petitioner and said admission having been ignored by trial Court, has resulted in non-appreciation of available evidence or erroneous appreciation of available evidence, thereby giving scope for exercise of revisional jurisdiction by this Court. In view of aforestated discussion, I am of the considered view that principles laid down in Anantswamy's case would not be applicable to the facts of present case.
18. Hence, I am of the considered view that point No.1 formulated hereinabove requires to be answered in favour of petitioner i.e., landlord and against respondent
- tenant.
24RE. POINT NO.2:
19. In view of the fact that eviction petition is of the year 2011 and proceedings having not been concluded though 3 years have lapsed, it would be necessary to direct the trial Court to dispose of eviction petition expeditiously at any rate within a time frame.
20. For reasons stated hereinabove, I proceed to pass the following:
ORDER
(i) Revision petition is hereby allowed.
(ii) Order passed by Chief Judge, Small
Causes Court, Bangalore, in HRC
No.124/2011 dated 11.09.2013, is
hereby set aside.
(iii) I.A.No.3 filed by respondent to stop all further proceedings and direct petitioner to approach the competent Civil Court, is hereby dismissed.25
(iv) HRC No.124/2011 is restored to the file of Chief Judge, Small Causes Court, Bangalore with a direction to dispose of the case on merits and in accordance with law and without being influenced by any observations made by it in its earlier order or without being influenced by any observations made by this Court in this order.
(v) Both parties are directed to appear
before Chief Judge, Small Causes
Court, Bangalore on 6.10.2014 without waiting for any fresh notice being issued.
(vi) Trial Court to dispose of HRC No.124/2011 expeditiously at any rate within 3 months from 3.10.2014 and both parties shall cooperate with the trial Court.26
(vii) Registry is hereby directed to retransmit the records to jurisdictional trial Court forthwith at any rate an or before 30.09.2014 and same shall be brought to the notice of Registrar (Judicial) by the concerned Assistant Registrar.
(v) No costs.
Sd/-
JUDGE
DR