Karnataka High Court
M Sanjeeva Shetty vs Hilary Mascarenhas Since Deceased By ... on 19 January, 2021
Bench: Alok Aradhe, Nataraj Rangaswamy
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
WRIT APPEAL NO.1548 OF 2008 (HRC)
BETWEEN:
M.SANJEEVA SHETTY
S/O M.CHANDU SHETTY
SINCE DEAD BY HIS LRS
1(a). MURALIDHAR SHETTY
AGED ABOUT 67 YEARS,
S/O LATE M.SANJEEVA SHETTY,
R/AT NO.1-629, CITY HALL KARMALA,
BOLWAR, PUTTUR, D.K.-574 201.
1(b). MANJULA
AGED ABOUT 65 YEARS,
W/O H.L.PRAKASH,
R/AT SBM ROAD,
MADDUR, MANDYA-571428.
1(c). VINATHA.M
AGED ABOUT 63 YEARS,
W/O THYAGARAJ R,
R/AT NO.51/1, MISSION ROAD CROSS,
SAMPANGIRAMANAGAR, WILSON GARDEN,
BENGALURU-560027.
1(d). GEETHA ESHWARAPPA
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AGED ABOUT 61 YEARS,
W/O B.ESHWARAPPA,
R/AT NO.2/10, BASAPPA ROAD,
SHANTHI NAGAR, WILSON GARDEN,
BENGALURU-560027.
1(e). M.GIRIDHARA SHETTY
AGED ABOUT 59 YEARS,
S/O LATE M.SANJEEVA SHETTY,
R/AT NO.5-256, SOORAJ NILAYA,
NEAR BHAVANI SHANKAR TEMPLE,
PUTTUR, D.K.-574201.
1(f). VEENA BASAVARAJU
AGED ABOUT 57 YEARS,
W/O B.S.BASAVARAJU,
R/AT NO.22, 2ND CROSS,
G.B.LANE, COTTON PET CROSS,
BENGALURU-560053.
1(g). M.MANOHARA SHETTY
AGED ABOUT 56 YEARS,
S/O LATE M.SANJEEVA SHETTY,
R/AT NO.1-321, KSK COMPOUND,
NEHARUNAGAR, PUTTUR,
D.K.-574203.
1(h). M.SHIVASHANKARA SHETTY
AGED ABOUT 54 YEARS,
S/O LATE M. SANJEEVA SHETTY,
R/AT NO.1-321, KSK COMPOUND,
NEHARUNAGAR, PUTTUR,
D.K.-574203.
...APPELLANTS
(BY SRI. G.BALAKRISHNA SHASTRY, ADVOCATE FOR SRI.
SACHIN B.S., ADVOCATE)
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AND:
HILARY MASCARENHAS
SINCE DECEASED BY LRs:
(a) PATRICK CYPRIAN MASCARENHAS
AGED ABOUT 39 YEARS,
S/O LATE HILARY MASCARENHAS
(b). HAROLD MASCARENHAS
S/O LATE HILARY MASCARENHAS,
AGED 53 YEARS
(c). MRS. EVELYN MASCARENHAS
W/O LATE HILARY MASCARENHAS
AGED 74 YEARS
ALL ARE RESIDING AT NO.123/100,
NEAR ANITHA OIL MILL,
PUTTUR, DAKSHINA KANNADA-574201.
...RESPONDENTS
(BY SRI. A.SANATH KUMAR, ADVOCATE FOR RESPONDENT
NO.1(A))
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, 1961 PRAYING TO SET ASIDE
THE ORDER PASSED IN THE WRIT PETITION NO.52208/2003
DATED 31.07.2008.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 12.01.2021, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, NATARAJ RANGASWAMY J.,
DELIVERED THE FOLLOWING:
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JUDGMENT
This intra Court appeal under Section 4 of the Karnataka High Court Act, 1961 is filed challenging the correctness of the Order dated 31.07.2008 passed by a learned Single Judge of this Court in W.P.No.52208/2003.
2. The appellant herein claimed to be a collector of rent from the predecessor of the respondents who was the tenant.
3. The facts that could be gathered from the pleadings on record are that the land in question is 8 cents of punja land in Sy.No.123/10C of Puttur, Dakshina Kannada, which was owned and possessed by Sri.Mahalingeshwar Temple (hereinafter referred to as the 'temple'), Puttur, governed by the provisions of the Madras Hindu Religious Endowment Act, 1927. The Moktesar of the temple, had leased out a larger portion of the land in Sy.No.123/10C to one Santhappa Rai for a period of 55 years in terms of a rent deed dated 28.05.1923, which was 5 duly registered. The said Santhappa Rai thereafter executed a lease dated 27.10.1932 in favour of Mr.Piade Mascarenhas for a term of 30 years, which was duly registered. Thus the lease in favour of Mr.Piade Mascarenhas expired on 27.10.1962. In the meanwhile, Mr.Piade Mascarenhas expired and the lease was continued by his son, Mr.Hilary Mascarenhas. Later the said Santhappa Rai assigned all his interest in the aforesaid premises to the appellant in terms of an assignment deed dated 03.05.1965 for a period of 12 years, which was duly registered. It is stated that Mr.Hilary Mascarenhas was paying the rent as agreed to the appellant and that the appellant was in turn paying the rent to the temple. Even after the year 1977 when the assignment expired, the temple had approved the assignment of the right by passing three rent receipts for the years 1982, 1985 and 1986 in favour of the Landlord, which discloses that the rent was received from the appellant on behalf of Santhappa Rai.
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4. The predecessor of the respondents (Mr.Hilary Mascarenhas) continued in the premises as a statutory tenant after the lease expired on 27.10.1962 and he paid the rent for four years after the death of Mr.Piade Mascarenhas and had thereby attorned his tenancy in favour of the landlord. However, the tenant failed to pay the rent thereafter, which compelled the landlord and Mr.Santhappa Rai, jointly, to issue a notice dated 23.06.1965. The tenant claimed that he did not pay the rent for the period 1965 to 1969 as the appellant did not issue receipts, which led him to send the rent to the appellant by a money order. Since the tenant continued in default of payment of rent, notices dated 21.08.1978 and 26.09.1986 were issued to him by the appellant demanding arrears of rent and to quit and deliver vacant possession of the premises as the appellant needed it for his own bona fide requirement and also since the respondents had acquired suitable alternative accommodation. The landlord, thereafter filed an eviction petition against the tenant (Mr.Hilary Masceranhas, his 7 brother's wife-Mrs.Cicilia Mascarenhas and his younger brother Mr.Lawrence Mascarenhas) namely HRC No.3/1987 under Sections 21(1)(a), (h) and (p) of the Karnataka Rent Control Act, 1961 (henceforth referred to as 'the Act of 1961').
5. The eviction petition was allowed in part in terms of the Order dated 20.04.1991 and the tenant was ordered to quit and deliver vacant possession of the petition schedule property under Section 21(1)(a) and (p) of the Act of 1961 and petition under Section 21(1)(h) was dismissed. In the meanwhile, Mr.Hilary Mascarenhas died and his son, Patrick Cyprion Mascarenhas, Mrs.Cicilia Mascarenhas and Mr.Lawrence Mascarenhas filed a Revision (Rent) Petition No.136/1991 before the IInd Additional District Judge, Dakshina Kannada, Mangalore, which was allowed by order dated 20.02.2001 in the following terms:
"The eviction order passed under S.21(1)(p) of the K.R.C. Act against first respondent is set 8 aside and the revision is dismissed so far as respondents 2 and 3 are concerned under S.21(1)(p) of the K.R.C Act. The revision filed by the revision petitioners under S.21(1)(a) is dismissed."
6. Following this, a Revision Petition was filed before this Court under Section 115 of the Code of Civil Procedure, which was permitted to be withdrawn by learned counsel for petitioners therein by order 28.10.2003 and liberty was reserved to him to file a writ petition. Thus, W.P.No.52208/2003 was filed challenging the Order of eviction dated 20.04.1991. The writ petition was allowed on two grounds: (i) that the suit property did not qualify to be a premises under Section 3(n) of the Karnataka Rent Control Act, 1961 (ii) that the appellant herein was not a landlord. The landlord filed W.A.No.1548/2008 which was dismissed by this Court in terms of the Judgment dated 15.12.2009, holding that the subject matter of eviction petition was not a 'premises' as defined under Section 3(n) of the Act of 1961. This Court felt it unnecessary to go into 9 the question as to whether the appellant was a landlord or not.
7. Feeling aggrieved by the aforesaid order, the appellant filed S.L.P (Civil) No.7680/2011 and after leave was granted, was numbered as Civil Appeal No.11152/2016. The Apex Court in terms of its Order dated 22.11.2016 held that the subject matter of the eviction petition was a "premises" within the meaning of Section 3(n) of the Act of 1961 and thus the provisions of the Act of 1961 were applicable. The Apex Court remitted the case to this Court to consider whether the appellant is a landlord or not, as that issue was not answered by this Court. Therefore, the dispute now lies in a narrow compass. If the landlord is able to prove the jural relationship of the tenant, then the respondents are bound to quit and deliver the vacant possession of the premises in question.
8. In order to appreciate this contention, it is appropriate to note the definition of the word "landlord" as 10 found in Section 3(h) of the Act of 1961, which is extracted below:
"landlord means any person who is for the time being receiving or entitled to receive, rent in respect to any premises whether on his own account or any account, or behalf, 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 be entitled to receive the rent if the premises were let to tenant: and includes any person not being a tenant who from time to time derives title under a landlord; and further includes in respect of his subtenant a person who has sub-let any premises".
9. The learned Single Judge held that there was no jural relationship of landlord and tenant between the rivaling parties. The learned Single Judge held that the appellant herein was not a landlord as he must be able to seek eviction of the tenant for his own benefit under Section 21 of the Act of 1961.
10. The learned counsel for the appellant contended that though his right under the assignment 11 agreement dated 1965 came to an end on 1977, yet the fact that the temple continued to receive the rent from him on behalf of Santhappa Rai, made it clear that the assignment stood resuscitated. He contended that even the respondents had acknowledged this fact by tendering the rent by money order, after the termination of the rights of assignment. He therefore contended that he was a "landlord" and that the tenants had accepted that fact. He therefore contended that he was entitled to seek eviction of the respondents on the ground of non-payment of the rent. The learned counsel relied upon the following precedents in support of his contention:
i) Sri Ram Pasricha vs. Jagannath and others (1976) 4 SCC 184.
ii) Satish Chand Makhan and others vs. Govardhan Das Byas and others (1984) 1 SCC
369.
iii) Boorugu Mahadev and sons and another vs. Sirigiri Narasing Rao and others (2016) 3 SCC
343.
iv) Sudarshan Trading Company Limited vs Mrs.L.D'Souza AIR 1984 Kar 214.
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v) K.L.Vedamurthy vs. M.Gopalachari ILR 1998 Kar 2453.
11. Per Contra, the learned counsel for the respondent No.1(a) claimed that even as per the case of the appellant, he was an assignee of the right to collect rent from the respondents, which stood terminated after 12 years from the date of assignment. Therefore, the appellant did not possess any right to collect rent from the respondents. Hence he claimed that the appellant was not a landlord. He also contended that the original lease in favour of Shanthappa Rai also expired in the year 1978 and therefore, the superior landlord namely Sri.Mahalingeshwar temple was only entitled to seek eviction. The learned counsel also contended that they had filed an application seeking conferment of occupancy rights in Form 7A before the Land Tribunal and that therefore even the superior landlord could not evict the respondents.
12. Now that the Hon'ble Supreme Court has held that the petition property is a 'premises' as defined under 13 Section 3(n) of the Act of 1961 and that the provisions of the Act of 1961 are applicable, the petition property shall henceforth be referred to as "premises".
13. With the above, we shall now examine whether the appellant qualifies to be a "landlord" as defined under the Act of 1961.
14. It is undisputed that the petition premises belongs to Sri.Mahalingeshwara Temple which was leased in favour of Shantappa Rai for a term of 55 years in terms of a lease deed dated 28.05.1923. The said Mr.Shanthappa Rai executed a lease deed dated 27.10.1932 in respect of the premises for a period of 30 years on an annual rent of Rs.10/- payable in two installments, which was duly registered in favour of Mr.Piade Mascarenhas. This lease expired in the year 1962. However, Mr.Piade Mascarenhas expired in 1962 and his son inherited the tenancy and was a tenant by holding over. It is not in dispute that Mr.Shanthappa Rai assigned the premises to the appellant herein in terms of an assignment deed dated 03.05.1965 14 which was duly registered. The tenants attorned the tenancy in favour of the appellant herein and paid the rent to the appellant for the period 1965 to 1969 but did not pay the rent thereafter, since the appellant failed to issue the receipts. The respondents however failed to pay the rent from the year 1969-70 which prompted the appellant to cause a notice dated 21.08.1978. The respondents admitted in clear terms that this notice was issued not only on behalf of the appellant but also on behalf of Shanthappa Rai. The respondents claimed that they tendered the rent to the appellant by a money order, thus putting to rest all speculation and uncertainty regarding the status of the appellant.
15. In view of Section 116 of the Evidence Act, 1872, the respondents were estopped from disputing the right and interest of the appellant viz a viz, the premises and the respondents to recover the rent payable in respect of the premises. In S.Thangappan v. P.Padmavathy AIR 1999 SC 3584, it has been held by the Supreme Court as follows:
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"14. This section puts an embargo on a tenant of an immovable property, during the continuance of his tenancy to deny the title of his landlord at the beginning of his tenancy. The significant words under it are at the beginning of the tenancy. This is indicative of the sphere of the operation of this section. So a tenant once inducted as a tenant by a landlord, later he cannot deny his landlord title. Thus, this principle of estoppel debars a tenant from denying the title of his landlord from the beginning of his tenancy. Howsoever defective title of such landlord could be, such tenant cannot deny his title. But subsequent to his induction as tenant if the landlord looses his title under any law or agreement and there is threat to such tenant of his eviction by subsequently acquired paramount title holder then any denial of title by such tenant to the landlord who inducted him into the tenancy will not be covered by this principle of estoppel under this Section. In Mangat Ram (AIR 1987 SC 1656) (supra) this Court held (para 11):
"The estoppel contemplated by Section 116 is restricted to the denial of title at the commencement of the tenancy and by implication it follows that a tenant is not estopped from contending that the title of the lessor has since come to an end."
16. It is noteworthy that the temple had accepted the appellant to be the rent collector on behalf of Shanthappa Rai by accepting the rents from the appellant 16 on behalf of Shanthappa Rai in terms of Exs.P13, 14 and 15 which are dated 21.04.1982, 20.04.1985 and 26.04.1986. Thus, these facts leave no doubt in our mind that the appellant was a rent collector on behalf of Shanthappa Rai and thus qualified to be a landlord as defined under Section 3(h) of the Act of 1961, which was just enough to file a petition for eviction.
17. The temple did not initiate any action to evict Santhappa Rai or the appellant from the premises. On the contrary, the temple had approved the right of the appellant by the assignment by passing three receipts for having received the rent during 1982, 1985 and 1986 from the appellant (Exs.P13 to P15). These rent receipts disclosed that they were received from the appellant on behalf of Mr.Santhappa Rai. The appellant was a representative of Mr.Shanthappa Rai and claimed nothing more than that as his right as an assignee to be in possession stood extinguished in the year 1977 itself. Thus, as rightly contended by the respondents, the 17 appellant possessed no more rights than a rent collector and therefore, even assuming that the respondents were liable to be evicted from the premises, the possession of the premises should be restored back to either Shanthappa Rai if he is alive or to his legal representatives if they are interested or to the superior landlord, namely, Mahalingeshwar Temple.
18. Before we depart, we wish to record that the writ petition filed before this Court was under Article 227 of the Constitution of India and therefore, there were inherent constraints for exercise of jurisdiction to overturn a finding of fact recorded by the Courts regarding the jural relationship between the appellant and the respondents. The Order of the learned Single Judge does not indicate whether the records of the Trial Court were referred to before reversing the finding of fact. In the absence of any perversity regarding the finding recorded by the Trial Court and the Revisional Court, the learned single Judge ought not to have reversed the finding of fact. In Mohd.Inam v. 18 Sanjay Kumar Singhal and others 2020 (7) SCC 327, it has been held as under:-
"34. It is a well settled principle of law, that in the guise of exercising jurisdiction under Article 227 of the Constitution of India, the High Court cannot convert itself into a court of appeal. It is equally well settled, that the supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and seeing that they obey the law. It has been held, that though the powers under Article 227 are wide, they must be exercised sparingly and only to keep subordinate courts and Tribunals within the bounds of their authority and not to correct mere errors. Reliance in this respect can be placed on a catena of judgments of this Court including the ones in Satyanarayan Laxminarayan Hegde vs. Millikarjun Bhavanappa Tirumale (1960) 1 SCR 890, Bathutmal Raichand Oswal vs. Laxmibai R. Tarta (1975) 1 SCC 858, India Pipe Fitting Co. v.
Fakruddin M.A. Baker (1977) 4 SCC 587, Ganpat Ladha v. Sashikant Vishnu Shinde (1978) 2 SCC 573, Labhkuwar Bhagwani Shaha v. Janardhan Mahadeo Kalan (1982) 3 SCC 514, Chandavarkar Sita Ratna Rao v. Ashalata S. Guram (1986) 4 SCC 447, Venkatlal G. Pittie v. Bright Bros (P) Ltd. (1987) 3 SCC 558, State of Maharashtra v. Milind 19 (2001) 1 SCC 4, State v. Navjot Sandhu (2003) 6 SCC 641, Ranjeet Singh v. Ravi Prakash (2004) 3 SCC 682, Shamshad Ahmad v. Tilak Raj Bajaj (2008) 9 SCC 1 and Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar (2010) 1 SCC 217"
19. The Hon`ble Apex Court in the case of Kesharlal H. Pardeshi v. Vithal S. Patole (Dead) By LRs (2005) 10 SCC 249 has held thus:
"6. We are of the opinion that the High Court in exercise of its jurisdiction under Article 227 of the Constitution ought not to have interfered with the findings arrived at by the two courts below and then recorded a finding of its own holding that the appellant is not the landlord which finding is also inconsistent with the definition of "landlord" in clause (3) of Section 5 of the Act. The finding of the High Court cannot be countenanced."
20. In view of the reasons set out above, this writ appeal is allowed and the impugned Order passed by the learned single Judge in W.P.No.52208/2003 is set aside.
21. It is directed that the appellant shall recover possession of the petition premises and deliver the same 20 to his principal namely, Shanthappa Rai / his legal representatives or to the superior landlord namely Mahalingeshwara Temple.
Sd/-
JUDGE Sd/-
JUDGE sma