Karnataka High Court
Smt. Shashikala Shetty vs Smt. Meenakshi Rai on 27 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
R
DATED THIS THE 27 DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
HOUSE RENT REV. PETITION NO.5/2024 (EVI)
C/W
HOUSE RENT REV. PETITION NO.6/2024 (EVI)
IN HRRP NO.5/2024:
BETWEEN:
1. SMT. SHASHIKALA SHETTY
D/O LATE NARAYANA SHETTY
AGED ABOUT 78 YEARS
R/AT ARUNDATHI HATTI HALLI
MANGALURU-575 003.
2. SMT. ARUNDATHI S. SHETTY
W/O LATE SHAM SUNDARA SHETTY
AGED ABOUT 67 YEARS
R/AT ARUNDATHI HATHILL
MANGALURU-575 003.
3. SMT. SHRUTHI S. SHETTY
D/O LATE SHAM SUNDARA SHETTY
AGED ABOUT 39 YEARS
4. SMT. SHREYA SHETTY
D/O LATE SHAM SUNDARA SHETTY
AGED ABOUT 31 YEARS
PETITIONER NO.3 AND 4 ARE
REPRESENTED BY THEIR POWER
OF ATTORNEY HOLDER
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PETITIONER NO.2 ARUNDATHI S. SHETTY
W/O LATE SHAM SUNDARA SHETTY
AGED ABOUT 67 YEARS
R/AT ARUNDATHI HATHILL
MANGALURU-575 003.
5. SRI. JEEVANDAS SHETTY
S/O LATE NARAYANA SHETTY
AGED ABOUT 74 YEARS
R/AT LALBABH
NEAR KALYANA JEWELLERS
BALLALBAGH
MANGALURU-575 003.
6. SMT. VIJAYA SHETTY
D/O LATE NARAYANA SHETTY
AGED ABOUT 73 YEARS
R/AT LALBABH
NEAR KALYANA JEWELLERS
BALLALBAGH
MANGALURU-575 003.
7. SRI. SHIVANANDA SHETTY
S/O LATE NARAYANA SHETTY
AGED ABOUT 72 YEARS
R/AT LALBABH
NEAR KALYANA JEWELLERS
BALLALBAGH
MANGALURU-575 003.
8. SRI. BALACHANDRA SHETTY
S/O LATE NARAYANA SHETTY
AGED ABOUT 66 YEARS
R/AT LALBABH
NEAR KALYANA JEWELLERS
BALLALBAGH
MANGALURU-575 003. ... PETITIONERS
(BY SRI. HAREESH BHANDARY T., ADVOCATE)
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AND:
SMT. MEENAKSHI RAI
SINCE DECEASED BY
HER LEGAL REPRESENTATIVES
1. MR. PRAVEEN CHANDRA RAI
AGED ABOUT 56 YEARS
S/O LATE RANGANATH RAI
R/AT KODIAL GUTHU HOUSE
KODIALBAIL
MANGALURU-575 003.
2. SMT. DEVIKA R. HEGDE
AGED ABOUT 47 YEARS
W/O RAKESH R. HEGDE
R/AT RAMANDA
S.R.COMPLEX
BENDOORWELL
MANGALURU-575 003. ... RESPONDENTS
(BY SRI. M. SUDHAKAR PAI, ADVOCATE R1 AND C/R2)
THIS HRRP IS FILED UNDER SECTION 115 OF CPC,
AGAINST THE ORDER DATED 05.04.2024 PASSED IN RR
NO.14/2021 ON THE FILE OF THE IV ADDITIONAL DISTRICT
AND SESSIONS JUDGE, D.K. MANGALURU, ALLOWING THE
PETITION AND SETTING ASIDE THE ORDER DATED 03.08.2021
PASSED IN HRC NO.3/2013 ON THE FILE OF THE III
ADDITIONAL CIVIL JUDGE, MANGALURU, D.K., ALLOWING THE
PETITION FILED UNDER SECTION 27(2)(r) AND SECTION
31(1)(a) OF THE KARNATAKA RENT ACT, 1999.
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IN HRRP NO.6/2024:
BETWEEN:
1. SMT. SHASHIKALA SHETTY
D/O LATE NARAYANA SHETTY
AGED ABOUT 78 YEARS
R/AT LALBAGH
NEAR KALYANA JEWELLERS
BALLALBAGH
MANGALURU-575 003.
2. SMT. ARUNDATHI S. SHETTY
W/O LATE SHAM SUNDARA SHETTY
AGED ABOUT 67 YEARS
R/AT ARUNDATHI HATHILL,
MANGALURU-575 003.
3. SMT. SHRUTHI S. SHETTY
D/O LATE SHAM SUNDARA SHETTY
AGED ABOUT 39 YEARS
4. SMT. SHREYA SHETTY
D/O LATE SHAM SUNDARA SHETTY
AGED ABOUT 31 YEARS
PETITIONER NO.3 AND 4 ARE
REPRESENTED BY THEIR
POWER OF ATTORNEY HOLDER
PETITIONER NO.2 ARUNDATHI S. SHETTY
W/O LATE SHAM SUNDARA SHETTY
AGED ABOUT 67 YEARS
R/AT ARUNDATHI HATHILL
MANGALURU-575 003.
5. SRI JEEVANDAS SHETTY
S/O LATE NARAYANA SHETTY
AGED ABOUT 74 YEARS
R/AT LALBAGH
5
NEAR KALYANA JEWELLERS
BALLALBAGH
MANGALURU-575 003.
6. SMT. VIJAYA SHETTY
D/O LATE NARAYANA SHETTY
AGED ABOUT 73 YEARS
R/AT LALBAGH
NEAR KALYANA JEWELLERS
BALLALBAGH
MANGALURU-575 003.
7. SRI. SHIVANANDA SHETTY
S/O LATE NARAYANA SHETTY
AGED ABOUT 72 YEARS
R/AT LALBAGH
NEAR KALYANA JEWELLERS
BALLALBAGH
MANGALURU-575 003.
8. SRI. BALALCHANDRA SHETTY
S/O LATE NARAYANA SHETTY
AGED ABOUT 66 YEARS
R/AT LALBAGH
NEAR KALYANA JEWELLERS
BALLALBAGH
MANGALURU-575 003. ... PETITIONERS
(BY SRI. HAREESH BHANDARY T., ADVOCATE)
AND:
SMT. MEENAKSHI RAI
SINCE DECEASED BY
HER LEGAL REPRESENTATIVES
1. MR. PRAVEEN CHANDRA RAI
AGED ABOUT 56 YEARS
S/O LATE RANGANATH RAI
R/AT KODIAL GUTHU HOUSE
6
KODIALBAIL
MANGALURU-575 003.
2. SMT. DEVIKA R. HEGDE
AGED ABOUT 47 YEARS
W/O RAKESH R HEGDE
R/AT RAMANDA
S.R. COMPLEX
BENDOORWELL
MANGALURU-575 003. ... RESPONDENTS
(BY SRI. M. SUDHAKAR PAI, ADVOCATE FOR R1 AND C/R2)
THIS HRRP IS FILED SECTION 115 OF CPC, AGAINST THE
ORDER DATED 05.04.2024 PASSED IN REV.(RENT) NO.10/2021
ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS
JUDGE, D.K. MANGALURU, DISMISSING THE PETITION AND
CONFIRMING THE ORDER DATED 03.08.2021 PASSED IN HRC
NO.3/2013 ON THE FILE OF THE III ADDITIONAL CIVIL JUDGE,
MANGALURU, D.K, ALLOWING THE PETITION FILED UNDER
SECTION 5 OF THE KARNATAKA RENT ACT, 1999.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 12.06.2025 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV ORDER
Heard learned counsel for the petitioners and learned
counsel for caveator-respondent Nos.1 and 2.
2. These two revision petitions are filed by the
petitioners-respondent Nos.2, 3(a) to 3(c) and 4 to 7 before the
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Trial Court praying to set aside the order 03.08.2021 passed in
H.R.C.No.3/2013 by the learned III Additional Civil Judge,
Mangaluru, D.K. and the order dated 05.04.2024 passed in Rev.
(Rent) Nos.14/2021 and 10/2021 by the learned IV Additional
District Judge and Commercial Court, D.K. Mangaluru.
3. The factual matrix of the case of the petitioners
before the Trial Court is that while seeking the relief of eviction,
invoked the provisions of Section 27(2)(r) and 31(1)(a) read
with Section 5 of the Karnataka Rent Act, 1999 directing the
respondents to vacate and surrender the vacant possession of
petition premises to the petitioners. The petition property is a
non-agricultural immovable property residential building bearing
Door No.4-1-77, R.S.No.394, T.S.No.227, East Southern portion
measuring 0-10 cents situated in Kodialbail Village and Ward,
Mangaluru Taluk within the Mangalore City Corporation and
within the registration Sub-District of Mangalore City (hereinafter
referred to as 'petition premises').
4. It is the case of the original petitioner in
H.R.C.No.3/2013 that her husband late Ranganath Rai along
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with his mother Smt. Akkamma Rai and brother Narayana Rai
respectively had granted the petition premises on permanent
lease in favour of late Narayana Shetty as per registered deed of
transfer dated 27.07.1961. As per the terms of the deed, late
Narayana Shetty was required to pay Rs.30/- per annum on or
before 27th July of next succeeding year. It is also the case of
the original petitioner that the respondents are the legal heirs of
deceased Narayana Shetty. The said late Narayana Shetty during
his life time and after his death, his heirs (as legal
representatives of respondents) have defaulted continuously in
the payment of the annual rent for the past more than five years
and as such, have contravened the terms of lease. As a result,
the respondent's moolgeni lease stood forfeited in terms of
clause of the document of deed of transfer dated 27.07.1961. It
is also the case of the original petitioner that the petition
premises is required for her own use and occupation as she is
presently residing in the family house of her husband and there
is paucity of space and lack of privacy in the above house for the
petitioner. The petitioner has caused a registered legal notice
dated 17.07.2012 through her advocate calling upon the
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respondents to surrender the vacant possession of petition
premises in favour of the petitioner within 15 days of the receipt
of the notice. Having received the notice, the respondents got
replied to the said legal notice on 31.07.2021 and also sought to
tender arrears of moolageni along with the legal reply. Having
received the same, the petitioner has returned the demand draft
to the Advocate for respondents along with rejoinder reply dated
06.08.2012. It is also the case of the petitioner that the original
tenant late Narayana Shetty died on 13.02.2008 and the
respondents as his legal representatives have protection of Rent
Act upto a period of five years i.e., till 13.02.2013. The
respondents are bound to deliver the possession of petition
premises immediately on 13.02.2013. Hence, the petitioners
have filed the petition invoking the provisions of the Karnataka
Rent Act, 1999.
5. In pursuance of the notice issued by the Trial Court
in H.R.C.No.3/2013, respondent Nos.1, 2 and 4 to 7 have filed a
memo adopting the objection filed by the respondent No.3. The
respondent No.3 has filed the objection contending that late
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Narayana Shetty had taken the petition premises on permanent
tenancy rights and also stated that the said moolageni or
permanent lease is irrevocable and the very nomenclature itself
shows that it is a permanent tenancy. It is contended that the
petitioner could not have invoked the Rent Act to levy blackmail
against the respondents. The petitioner has also not stated how
she is entitled to file the case under the Rent Act. It is further
contended that petitioner is aware that deceased late Narayana
Shetty during his lifetime had effected very vast improvements
in the land taken on moolageni by him and now the property is
very valuable and it is surprising that the petitioner has not even
whispered a single word about it. It is contended that petitioner
could not have terminated the tenancy without offering the value
of improvements which the said late Narayana Shetty had
effected. After his death, the respondents have spent lot of
amounts on the petition premises and petition is premature,
unwarranted and petition should be dismissed in limine. It is
contended that Court has no such jurisdiction to decide about
the improvements, right to terminate the moolageni or
permanent tenancy and such other issues. It is further
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contended that description of the property given in the petition is
not correct and sought for dismissal of the eviction petition.
6. The Trial Court having considered the grounds which
have been urged in the petition and the objection, allowed the
parties to lead evidence and the Power of Attorney holder
Smt. Devika Hegde, daughter and GPA holder of original
petitioner is examined as P.W.1 by filing evidence affidavit in lieu
of oral examination in chief and marked the documents as
Exs.P1 to P17. The wife of petitioner No.1(b) is also examined as
P.W.2 by filing an evidence affidavit in lieu of oral examination in
chief and marked the documents as Exs.P18 to P20. The
respondents did not adduce any evidence, but only cross-
examined P.W.1.
7. The Trial Court having considered both oral and
documentary evidence placed on record, framed the following
points for consideration:
"1. Whether the petitioner proves that the
respondents have defaulted in paying the
annual rents as per moolageni chit dated
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27/07/1961 thereby for an order of eviction
against the respondents?
2. Whether the petitioner proves that she being a
widow requires the petition premises for
bonafide her use and occupation thereby for an
order of eviction against the respondents under
Section 27(2)(r) R/w.31(1)(a) of Karnataka
Rent Act 1999?
3. Whether the petitioner proves that respondent
is liable to be evicted under Section 5 of
Karnataka Rent Act, 1999?
4. What Order or decree?".
8. The Trial Court having appreciated both oral and
documentary evidence placed on record, answered point Nos.1
and 3 as 'affirmative' and point No.2 as 'negative'. While
answering point No.2 regarding bonafide requirement, the Trial
Court comes to the conclusion that requirement of petition
premises by the original petitioner for her bonafide occupation
and use will not arise for consideration on account of death of
her husband during the pendency of the case and declined to
grant the relief under Section 27(2)(r) and 31(1)(a) read with
Section 5 of Karnataka Rent Act, 1999. However, allowed the
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petition in coming to the conclusion that the petitioners have
defaulted in paying the annual rent as per the moolageni Chit
date 27.07.1961 and also the respondents being the legal
representatives of original tenant are liable to be evicted under
Section 5 of the Karnataka Rent Act, 1999 on the ground that
legal representatives of the original tenant are entitled to
continue the premises for a period of five years.
9. The Trial Court also, while allowing the petition filed
under Section 5 of the Karnataka Rent Act, 1999, directed that
the parties shall ascertain the value of improvements made in
the petition property by four gentlemen within two months from
the date of this order. On receipt of valuation of improvements
made in the petition property, petitioner Nos.1(a) and 1(b) shall
deduct the arrears of rent payable by the respondents and pay
the balance value of improvements to the respondents. It is also
directed that the respondents on receipt of value of
improvements, shall handover the vacant possession of petition
property along with improvements within one month from the
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date of amount and the petition filed by the petitioner under
Section 27(2)(r) and 31(1)(a) is dismissed.
10. Being aggrieved by the judgment of the Trial Court,
the respondents in H.R.C.No.3/2013 have filed Rev. (Rent)
No.10/2021 before the IV Additional District Judge and
Commercial Court, D.K., Mangaluru challenging the order of the
Trial Court passed in H.R.C.No.3/2013 dated 03.08.2021
allowing the petition filed by the petitioners under Section 5 of
the Karnataka Rent Act, 1999.
11. The Rent Revision Court having reassessed the
grounds urged in Rev. (Rent) No.10/2021 formulated the point
whether the Courts below have committed an error in passing
the impugned order of eviction against the respondents-tenants
under Section 5 of the Karnataka Rent Act, 1999. The Rent
Revision Court having reassessed both oral and documentary
evidence placed on record, affirmed the judgment of the Trial
Court in allowing the petition filed under Section 5 of the
Karnataka Rent Act, 1999 and dismissed the rent revision
petition and confirmed the order passed by the Trial Court.
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12. The legal heirs of original petitioner also filed Rev.
(Rent) No.14/2021 before the IV Additional District Judge and
Commercial Court, D.K., Mangaluru challenging the rejection of
the petition filed under Section 27(2)(r) and 31(1)(a) of the
Karnataka Rent Act, 1999 and whether the Trial Court acted
outside its jurisdiction allowing to make valuation and to make
payment for eviction. The Rent Revision Court having reassessed
the material available on record, considered the grounds urged
in the petition regarding rejection of petition filed under Section
27(2)(r) and 31(1)(a) of the Karnataka Rent Act, 1999 and also
questioning the impugned order of the Trial Court wherein
direction was issued to ascertain the value of improvements and
to make payment for eviction and answered point Nos.1 and 2
as 'affirmative' by allowing the rent revision and set aside the
order of the Trial Court as to the relief sought under Section
27(2)(r) and 31(1)(a) of the Karnataka Rent Act, 1999 and to
the extent of pre-condition to make valuation and to make
payment for eviction. Being aggrieved by the orders passed by
the Rent Revision Court, these two petitions are filed by the
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original respondents questioning the order passed in both Rev.
(Rent) Nos.10/2021 and 14/2021.
13. The revision petitioners in H.R.R.P.No.5/2024 would
contend that the Courts below committed an error in considering
the material available on record and entire approach made by
the Courts into the matter is contrary and failed to appreciate
the limited jurisdiction under which it is functioning under the
Karnataka Rent Act, 1999. The said Act does not vest any
jurisdiction on the Court to decide on the rights of permanent
tenants and its alleged breach thereof. It is contended that
availability of statutory protection alone is considered as it has
very limited jurisdiction. It is contended that petitioners had
tendered moolageni rent, their lease could not have been
forfeited. Whether the petitioners are entitled to enforce
forfeiture clause and claim possession, is again outside the
jurisdiction of Rent Court. Further, the lease deed provided that
unless the improvements are paid, they cannot be dispossessed
and right to possession arises only after the respondents herein
become entitled to it unlike a statutory tenant. It is contended
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that the Rent Court has no such jurisdiction to enquire into these
aspects. The important questions of law have not been
considered by the Courts below and both the Courts have
treated the case as one on the original side of the Court and has
gone beyond the scope of the Rent Act. It is contended that
moolageni is a permanent tenancy and the person who lessee
the property is called as 'Moolagar' and the lessee will be called
as 'Moolgenidar' and this type of lease is prevailing only in
Kanara District. The Moolagenidars become the second class of
proprietors from whom nobody can deprive of their right of
possession except their own act of gift or sale. A Moolagenidar is
a tenant holding a perpetual lease, not removable so long as he
pays rent and so long as he does not violate the stipulations of
the lease entailing forfeiture. Moolageni tenure is a permanent
heritable tenure alienable on some cases by the conditions of the
moolageni chit, but in all cases perpetual, though subject to
forfeiture for non-payment of rents.
14. The counsel would further contend that the
Karnataka Rent Act applies only to statutory tenant and not to
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any other type of tenancies. The Courts below have failed to
note this important difference between statutory tenants and
moolageni tenants. The Courts below have again wrongly
interpreted the applicability of the provisions of Karnataka
Conferment of Ownership on Mulgeni or Volamulgeni Tenants
Act, 2011 and the Rules framed thereunder. It is contended that
the Act has been upheld by the High Court of Karnataka, but is
now pending consideration before the Supreme Court. The Court
could not have expected the petitioners to prove in this case the
steps taken by them to get conferment of ownership in respect
of petition property. Learned counsel also would vehemently
contend that the Trial Court committed an error in allowing the
petition and contend that the very petition itself is not
maintainable. It is also contended that petition is not filed under
Section 27(a) regarding arrears of rent and when the petition is
not filed under Section 27(a), payment for default of rent does
not arise.
15. Learned counsel for the petitioners in support of his
argument relied upon the judgment of the Apex Court in
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LAXMIDAS BAPUDAS DARBAR AND ANOTHER VS.
RUDRAVYA (SMT) AND OTHERS reported in (2001) 7 SCC
409 and relying upon this judgment, the counsel would contend
that contractual act is very clear that it is a permanent lease and
hence, the petitioners cannot be evicted and when there is a
contractual terms and the lease is for a period of 99 years,
question of invoking the Rent Act does not arise. The counsel
would vehemently contend that conditions in Ex.P8 is very clear
with regard to forfeiture clause and cannot seek eviction for
arrears of rent directly and even if Court comes to the conclusion
that arrears of rent is payable, time has to be given to pay the
amount. When such being the case, it is contended that there is
no cause of action.
16. Learned counsel also brought to notice of this Court
Sections 6 and 10 of the Karnataka Conferment of Ownership on
Mulgeni or Volamulgeni Tenants Act, 2011 and brought to notice
of this Court regarding bar of jurisdiction that no Civil Court shall
have jurisdiction to settle, decide or deal with any question
which is by or under this Act is required to be settled, decided or
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dealt with by the competent authority or the Assistant
Commissioner as the case may be. Learned counsel also would
vehemently contend that both the Courts failed to take note of
said fact into consideration.
17. Per contra, learned counsel for caveator-respondent
Nos.1 and 2 would vehemently contend that while filing the
petition, the petitioners not only invoked the provisions under
Section 27(2)(r) and 31(1)(a) of Karnataka Rent Act and also
sought for eviction under Section 5 of the Karnataka Rent Act,
1999. Learned counsel would vehemently contend that no
dispute with regard to the fact that nature of tenancy is
moolageni and brought to notice of this Court Section 3 and 3(h)
regarding definition of premises and tenancy. Learned counsel
would vehemently contend that in terms of lease which is
marked as Ex.P8, it is very clear that annual rent is payable per
annum and petitioners committed default in payment of rent and
legal notice was issued and reply was given. Learned counsel
would vehemently contend that original tenant died on
13.02.2008 and petition is filed after five years, since the right
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accrues to the legal representatives of original tenant for a
period of five years and only after the period of five years,
eviction petition is filed.
18. Learned counsel for caveator-respondent Nos.1 and
2 also brought to notice of this Court judgment passed by the
Apex Court in Special Leave Petition (Civil) No.9975 of
2025 dated 07.04.2025. The counsel referring this judgment
brought to notice of this Court discussion made in paragraph
No.16 in respect of definition 2(g) as well as paragraph No.17,
wherein discussion was made with regard to above Section
which would indicate that the dependent heir of the original
tenant unless she is the widow of the original tenant would be
entitled to carry on as a tenant in such capacity for a period of 5
years from the demise of the original tenant. Learned counsel
referring this judgment also brought to notice of this Court
paragraph No.45, wherein also discussion was made that in
other words, the attempt on the part of the learned counsel was
to persuade us to accept the argument that if Section 2(g) of the
Act, 1997 is not applicable, then in such circumstances the
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petitioner has a right to continue in occupation of the premises
in question as the legal heir of the original tenant.
19. Learned counsel also brought to notice of this Court
the judgment of the co-ordinate Bench of this Court passed in
House Rent Rev. Petition No.28 of 2021 dated 05.09.2024
and brought to notice of this Court discussion made in paragraph
No.7 with regard to tenancy of mulgeni and paragraph No.16
and so also paragraph No.25, wherein discussion was made in
respect of Section 5 of the Rent Act is concerned and comes to
the conclusion that Rent Act is applicable to the case on hand
and contend that similar set of facts was considered in the said
petition and the counsel brought to notice of this Court
paragraph No.31, wherein an observation is made that in view of
the judgment of the Apex Court and co-ordinate Bench of this
Court, it is crystal clear that the Mooldar is also a type of tenant
that has been defined under Karnataka Rent Act. In the eviction
petition by the tenant that he is protected under the Karnataka
Rent Act 1999 cannot be countenanced in law, in view of the
principles enumerated in the judgment of the Apex Court and
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also the co-ordinate Bench of this Court. Learned counsel also
brought to notice of this Court with regard to invoking of Section
5 of the Karnataka Rent Act, 1999 and passing the order
invoking the said provision.
20. The counsel also relied upon the judgment of the
Apex Court in PATRIC JOHN (SINCE DECEASED) BY L.Rs.
VS. SOMASHEKHAR reported in 2009 SCC ONLINE KAR 79,
wherein also discussion was made with regard to Section 3(n)
and 5 of Karnataka Rent Act, 1999 and discussed with regard to
the restrictions on the rights of legal representatives of tenant
under Section 5, wherein it is held that provisions of Section 5 is
applicable even to a tenant who had died during the pendency of
proceedings initiated under the old Act and prior to coming into
force of the 1999 Act. Further it is also held that legal
representatives of such tenant will have the right to inherit only
in terms of Section 5, even though they were brought on record
prior to commencement of the 1999 Act and such legal
representatives will remain as legal representatives only for the
purpose of Section 5 and will not get the status of rent. Learned
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counsel referring this judgment would contend that only for a
period of five years as enumerated under Section 5 confers the
right to continue and not more than that. Learned counsel would
contend that in the case on hand also, the respondents are legal
representatives of original tenant and contend that Section 5
attracts and no other proviso.
21. In reply to this argument of learned counsel for
caveator-respondent Nos.1 and 2, learned counsel for the
petitioners would vehemently contend that citations referred
above and Section 5 is subject to the contract and Section 5 not
overrides the explicit contract. Learned counsel would
vehemently contend that in both the judgments of the Trial
Court and Rent Revision Court, not discussed the proviso of the
Karnataka Conferment of Ownership on Mulgeni or Volamulgeni
Tenants Act, 2011, since there is a bar under Section 10. Hence,
the impugned order of the Trial Court as well as the Rent
Revision Court are liable to be set aside.
22. Having heard learned counsel for the petitioners and
learned counsel for the caveator-respondent Nos.1 and 2 and
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also the grounds which have been urged in both the petitions,
the points that would arise for consideration of this Court are:
(1) Whether the petitioners in H.R.R.P.No.5/2024
have made out the grounds to set aside the
order passed in Rev. (Rent) No.14/2021
allowing the petition in coming to the
conclusion that the Trial Court has committed
an error in dismissing the petition under
Section 27(2)(r) and 31(1)(a) of the Karnataka
Rent Act, 1999?
(2) Whether the Rent Revision Court has
committed an error in coming to the conclusion
that the Trial Court erred in acting outside its
jurisdiction allowing to make valuation and
make payment for eviction by answering the
same as 'affirmative' and that Trial Court ought
not to have exercised such powers and it
requires interference of this Court in
H.R.R.P.No.5/2024?
(3) Whether the petitioners in H.R.R.P.No.6/2024
have made out the grounds to set aside the
order of dismissal passed in Rev. (Rent)
No.10/2021 confirming the judgment of the
Trial Court granting the relief under Section 5
26
of the Karnataka Rent Act, 1999 and it requires
interference of this Court?
(4) What order?
POINT No.1:
23. Having heard the counsel in H.R.R.P.No.5/2024
wherein specific contention was made that Rent Revision Court
committed an error in allowing the petition filed under 27(2)(r)
and 31(1)(a) read with Section 5 of the Karnataka Rent Act,
1999. It is contended in the Revision Petition that very approach
made by the Rent Revision Court that the Trial Court committed
an error in dismissing the petition under 27(2)(r) and 31(1)(a) is
erroneous and ought not to have allowed the petition in respect
of 27(2)(r) and 31(1)(a) read with Section 5 of the Karnataka
Rent Act, 1999. Having taken note of the said contention and
also it is not in dispute that petition is filed under 27(2)(r) and
31(1)(a) of the Karnataka Rent Act, 1999. The Trial Court having
considered the ground sought for eviction for personal use and
occupation of the original tenant considered the same and while
answering the said point for consideration in respect of point
27
No.2 framed for consideration whether the petitioners prove that
she being a widow, requires the petition premises for bonafide
use and occupation while seeking the relief invoking 27(2)(r) and
31(1)(a) of Karnataka Rent Act comes to the conclusion that the
original petitioners sought that the petition premises is required
for bonafide occupation and use will not arise for consideration
on account of death during the pendency of the case. When such
finding is given Rent Revision Court fails to take note of the said
fact into consideration and no any other averment made in the
petition that any other family members are required to petition
schedule premises and proviso under Section 27(2) is very clear
with regard to if the premises required for bonafide use of
herself as well as any family members, then Court can examine
the same and consider the same, but on account of death of the
original petitioner, she has claimed that petition schedule
premises is required for her bonafide use and occupation. In the
absence of any other amendment or pleading, question of
granting the relief under Section 27(2)(r) and 31(1)(a) does not
arise. The Rent Revision Court fails to take note of the said fact
into consideration and nothing is discussed in the judgment
28
regarding 27(2)(r) is concerned. Hence, committed an error in
allowing the petition filed under 27(2)(r) and 31(1)(a) of the
Karnataka Rent Act, 1999 also. Hence, I answered the point
No.1 as affirmative.
POINT NO.2:
24. Having considered the grounds urged by the revision
petitioner's counsel and also the counsel appearing for the
respondent and having framed the point for consideration, the
question before this Court is whether Rent Revision Court has
committed an error in coming to the conclusion that the Trial
Court erred in acting outside its jurisdiction allowing to make
valuation and make payment for eviction by answering the same
as affirmative and the Trial Court ought not to have exercise
such powers and the said findings requires interference of this
Court.
25. Having perused the order of the Trial Court, no doubt
while allowing the petition under Section 5 of the H.R.C Act, a
direction was given to parties to the petitioner shall ascertain the
value of improvements made in the petition property by four
gentleman within 2 months from the date of the order. On
29
receipt of valuation of improvements made in the petition
property, petitioner Nos.1(a) and 1(b) shall deduct the arrears of
rent payable by the respondents and pay the balance value of
improvements to the respondent and further direction was given
that respondents on receipt of value of the improvements, shall
hand over the vacant possession of the petition property along
with improvement within one month from the date of amount.
No doubt having considered the Ex.P.8 there is a clause, in case
of any forfeiture of the lease there is a recital to consider the
improvement and the same has been extracted in paragraph
No.23 of the Trial Court. Having perused the covenant only
observes that it is clear that petition was filed under Section 5 of
Rent Act as the Mulageni binds the legal representatives of
parties to the Ex.P.8 and also even discussed the provision under
Section 5 of Rent Act. Having discussed Section 5 also fails to
take note of the proviso under Section 5 of the Rent Act, but
relies upon Ex.P.8 that it makes it clear that respondent did not
pay the Mulageni for a continuous period of 5 years, the
Mulageni stands forfeited.
30
26. It is also important to note that possession of the
petition property along with improvements, cost of
improvements shall be estimated by the four gentleman and pay
the improvement cost after deducting the arrears of rents to the
Mulagenidar. No doubt there is a covenant in the said document,
but the fact is that when four gentleman examines and estimate
the improvement cost and again there would be a dispute with
regard to making of estimation regarding improvement and the
same cannot be decided. Hence, the very order passed by the
Trial Court allowing the petition under Section 5 would be
defeated giving such direction. The Rent Revision Court rightly
comes to the conclusion that it can be done in a separate
proceedings and not in the petition filed under Section 5 of Rent
Act. No doubt, there is a recital in Ex.P.8 covenant for
improvement and the same cannot be done in view of the
specific provision under Section 5 of the Act that tenant is
entitled for protection under Section 5 and the same is only for a
period of 5 years in view of the subsequent enactment of 1999
and the Court has to take note of the very object and intention
and wisdom of the legislature while incorporating Section 5 of
31
Rent Act since the Trial Court has allowed the petition under
Section 5 of Rent Act and ascertaining the value of improvement
made in the petition property as stipulated in Ex.P.8 that could
be considered in a separate proceedings and if that report and
estimation is disputed, there will be no end and also further
direction that on the receipt of the valuation of improvement
made in the petition property, petitioner shall deduct the arrears
and pay the balance value of improvement again the same is a
disputed question of fact and though direction was given that
respondent on receipt of value of improvement shall hand over
the vacant possession of petition property along with
improvement within one month from the date of receipt of
amount, but if that report is disputed, again the provision under
Section 5 of Rent Act will become futile. Hence, Rent Revision
Court comes to the conclusion that the same cannot be done and
the same can be done only in a separate proceedings. Hence, I
do not find any error committed by the Trial Court in reversing
the finding in allowing the revision petition.
32
POINT No.3:
27. The revision petitioner's counsel would vehemently
contend that in H.R.R.P.No.6/2024 both the Courts have
committed an error in invoking Section 5 of Rent Act and
Rev.(Rent).Nos.10/2021 confirming the judgment of the Trial
Court. The main grievance of counsel appearing for the revision
petitioner is that there is no dispute that there is a registered
lease agreement dated 27.07.1961 in terms of Ex.P.8. It is also
important to note that during the life time of original tenant no
such any case is filed against him, but petition is filed invoking
under Section 27(2)(r) and 31(1)(a) and also Section 5 of H.R.C
Act. It is also important to note that the original tenant died in
the year 2008 and also it is the specific case of the original land
owner that rent for a period of 5 years has not been paid. It is
also not in dispute that notice was issued forfeiting the lease
since there is a proviso in the lease itself that in case rent has
not been paid for a period of 5 years, the lease will be forfeited.
The fact that notice was issued and lease was forfeited is not in
dispute, but no doubt a reply was given along with arrears of
rent and the same has not been accepted.
33
28. It is also important to note that the Court has to take
note of the very clause in Ex.P.8 and specific recital is made in
case of default for a period of 5 years, tenancy would be
forfeited and accordingly tenancy was forfeited by causing legal
notice. It is also important to note that having issued such notice
of forfeiture of the waited for a period of 5 years and petition is
filed in the year 2013 and since the original tenant died on
13.02.2008 and after the expire of 5 years, allowing the tenants
who are the legal heirs of original tenant filed the petition. It is
also observed by both the Courts that there is no any covenant
in the Ex.P.8 for renewal of the lease on payment of arrears of
rent. No doubt counsel appearing for the revision petitioner
contend that petition is not filed under Section 27(2)(a)
regarding arrears of rent. The counsel would vehemently
contend that the Court has to determine arrears of rent and
direction may be given and no such occasion arises in the case
on hand as soon as notice was issued, the very tenant sent the
arrears of rent along with D.D and the same is not accepted.
When such being the case and when the petition is not filed
under Section 27(2)(a), question of giving any time to the
34
tenant to make the payment of rent and continue the
proceedings does not arise when the petition is not filed under
Section 27(2)(a) of the Act.
29. The other contention of the counsel that it is a
perpetual lease and the same is a contract and hence, cannot be
evicted and also counsel would contend that Rent Act cannot be
invoked and Ex.P.8 lease deed is very clear regarding it is a
perpetual lease. On the other hand the contention that when the
rent has agreed, not been paid for a period of 5 years and even
if it is a perpetual lease and the same is forfeited in terms of
Ex.P.8. It is not in dispute that there is a clause in Ex.P.8 that
forfeiture would be made in case of default of payment of rent
for a period of 5 years. It is also not in dispute that in terms of
the registered lease agreement, rent is payable Rs.30/- per
annum. When such being the case, the very contention of the
counsel that tenancy is a fixed term of contractual lease cannot
be accepted and the same has been terminated in terms of
clause in Ex.P.8.
30. No doubt counsel appearing for the revision petition
relied upon the judgment reported in (2001) 7 Supreme Court
35
Cases 409 in case of Laxmidas Bapudas Darbar and
another V/s Rudravva (Smt) and others and the said
judgment is not applicable to the facts of the case on hand and
the said petition was filed under Section 21 of Karnataka Rent
Control Act wherein also held that it can be initiated only on any
of the grounds mentioned in clause (a) to (p) of the proviso to
sub-section (1) of Section 21 and only when the lease deed such
ground is also provided as one of the ground for forfeiture of the
lease and held that Rent Acts have primarily been made to
protect the tenants and also discussed that it is a provision
providing statutory protection to the tenants and proviso limits
the grounds on which a landlord can seek eviction of a tenant.
The non obstante clause contained under Section 21, will
override any condition in any contract which may provide a
ground for eviction other than those enumerated in clauses (a)
to (p) of sub-section (1). It has to be noted that the old act was
repealed by bringing a new enactment of Karnataka Rent Act,
1999.
31. It is also important to note that while repealing the
old act Section 70 is also introduced which says that Karnataka
36
Rent Control Act is hereby repealed and also sub-clause 2 says
that not withstanding such repeal and subject to the provisions
of Section 69. Hence, Section 70 of the Act has got 3 parts,
Section 70(2)(a), (b) and (c). The cases of proceedings coming
within the provisions of Section 70, 70(2)(a), they will continue
under the repealed act and the provisions of the act are not
made applicable and to this extent the act can be held to be
prospective and also detailed discussion was made that two
things emerges from this provision of sub section (2) clause (b)
of Section 70. The proceedings and cases have to be continued
and disposed of under the act must be in accordance with
provisions of the act itself, that means the provisions of the act
would govern all such proceeding pending, for which the
provisions of the act are applicable.
32. It is also very important to note that Court has to
take note of Section 3(n) of Karnataka Rent Act definition of
tenant for the purpose of the Act which reads as follows:
Section 3(n): "Tentant" means any person
by whom or on whose account or behalf the rent of
37
any premises, is or but for a special contract would
be, payable, and includes;
i) a sub-tenant;
ii) any person continuing in possession
after the termination of his tenancy, but
does not include any person to whom a
licence as defined in Section 52 of the
Indian Easements Act, 1882 (Central At
5 of 1882) has been granted;
iii) a deserted wife of a tenant who has
been or is entitled to be in occupation of
the matrimonial home or tenanted
premises of husband; and
iv) a divorced wife of a tenant who has a
decree of divorce in which the right of
residence in the matrimonial home or
tenanted premises has been
incorporated as one of the conditions of
the decree of divorce;
33. Having read Section 70 of Karnataka Rent Act, 1999
and also having read Section 3(n) it is very clear that rent of any
premises is or but for a special contract would be, payable, and
38
includes a sub tenant, any person continuing in possession after
the termination of his tenancy, but does not include any person
to whom a licence as defined in Section 52 of the Indian
Easements Act, 1882 (Central At 5 of 1882) has been granted.
Having read Section 3(n) as well as Section 70, the old act was
repealed and certain provisions were also made for continuation
of the proceedings and also tenancy is defined under Section
3(n) of the new enactment Karnataka Rent Act, 1999, the
definition of tenant, it includes the special contract. In the case
on hand also, it is a case of Mulageni. It is also important to note
that as on the date of entering into a lease agreement under
registered document in terms of Ex.P.8, the Rent Act, 1999 was
not in existence, but new enactment of Rent Act came into
existence in view of introducing the new enactment and
repealing the old Rent Control Act and specific provision is made
under Section 5 of the new Act. This Court would like to extract
Section 5 of the Rent Act which reads as follows:
"Section 5. Inheritability of tenancy.-(1) In the
event of death of a tenant, the right of tenancy shall
devolve for a period of five years from the date of his
39
death to his successors in the following order,
namely.-
(a) spouse;
(b) son or daughter or where there are both
son and daughter both of them;
(c) parents;
(d) daughter-in-law, being the widow of his
predeceased son:
Provided that the successor has ordinarily been
living or carrying on business in the premises with
the deceased tenant as a member of his family up to
the date of his death and was dependent on the
deceased tenant:
Provided further that a right to tenancy shall
not devolve upon a successor in case such successor
or his spouse or any of his dependent son or
daughter is owning or occupying a premises in the
local area in relation to the premises let.
(2) If a person, being a successor mentioned in
sub-section (1), was ordinarily living in or carrying
40
on business in the premises with the deceased
tenant but was not dependent on him on the date of
his death, or he or his spouse or any of his
dependent son or daughter is owning or occupying a
premises in the local area in relation to the premises
let to which this Act applies such successor shall
acquire a right to continue in possession as a tenant
for a limited period of one year from the date of
death of the tenant; and, on the expiry of that
period, or on his death, whichever is earlier, the
right of such successor to continue in possession of
the premises shall become extinguished. "
34. When this Court having considered the judgment
contended by the revision petitioner's counsel that in the said
judgment not discussed about Section 5 of new enactment of
Rent Act, 1999. This Court has to take note of the principles laid
down in the judgment of division bench reported in (2009) 5
KLJ 345 in case of Patric John (Since deceased) by L.Rs
V/s Somashekhar wherein this Court discussed Section
70(2)(a) regarding whether the same is retrospective or
prospective and held it is a prospective in limited sense i.e., only
the cases and proceedings coming within the provisions of
41
Section 70(2)(a) of the 1999 Act will continue under the
repealed Act and provisions of 1999 Act to such proceedings will
not apply. It is also made it clear that under sub clause 2(b) of
Section 70 applicability of the Act also discussed pending
proceedings under the old Act held that all proceedings though
initiated prior to the coming into the force of the 1999 Act, which
are continued under this Act, had to be proceeded in terms of
the provisions of 1999 Act itself. Hence, all the provisions of the
1999 Act would be applicable as if the said proceedings are
initiated under the provisions of the 1999 Act.
35. In this judgment also discussed with regard to
Section 3 and Section 5 of Rent Act, 1999. It is important to
note that restrictions on the rights of legal representatives (LRs')
under Section 5 and also discussed applicability held that
provisions of Section 5 is applicable even to a tenant who had
died during the pendency of proceedings initiated under the old
Act and prior to coming into force of the 1999 Act. Further held
that legal representatives of such tenant will have the right to
inherit only in terms of the Section 5 even though they were
brought on record prior to commencement of 1999 Act, such
42
legal representatives will remain as legal representatives only for
the purpose of Section 5 and will not get the status of tenant.
Having considered the principles laid down in the judgment it is
very clear that the right of inheritance is given for a period of 5
years only.
36. It is the contention of the revision petitioner's
counsel that earlier document of lease deed confers the right as
a statutory tenant and the said contention cannot be accepted. It
is very clear that tenancy is a right of inheritance as original
tenant is no more. In the very judgment in paragraph No.13
referred supra discussed in this regard, they also relied upon the
provisions of Section 3(n) of the Act, the definition of tenant,
Section 3(n) of the Act does not includes spouse, children
whether defendant or not. This makes it clear legislature had not
intended to extend the tenancy rights to the successors of
tenant and such tenancy rights get extinguished the moment
tenant dies. If the tenant dies during the pendency of the
proceedings, his legal representatives would come on record
only to derive the benefit of Section 5 of the Act and not for any
43
other reason and this Court would like to extract the very
paragraph No.13 of the judgment.
" In this regard, they also relied on the
provisions of Section 3, clause (n) of the Act, the
definition of 'tenant'. Section 3, clause (n) does not
include spouse, children, whether dependent or not.
This makes it clear that, Legislature had not intended
to extend the tenancy rights to the successors of
tenant and such tenancy rights get extinguished the
moment tenant, dies. If the tenant dies during the
pendency of the proceedings, his legal representative
would come on record only to derive the benefit
under Section 5 of the Act and not for any other
reason. "
37. This Court also would like to rely upon judgment of
this Court Manu/KA/0673/2004 in the case of Jaya Andrews
V/s Yusuf wherein it has been held that legal representatives of
the original tenant can be continue for a period of 5 years from
the death of original tenant and then quit and deliver vacant
possession of the schedule premises. The said dictum indicates
that maximum period of tenancy that can be inherited is 5 years
and that cannot be read as minimum period. It is also important
to note that the very Section 5 of Rent Act was also discussed in
44
this judgment that inheritance of tenancy and death of tenant
and right of tenancy devolves on his legal representatives only
for a period of 5 years and Section 5 is also very clear that in the
event of death of the tenant, the right of tenancy would devolve
upon legal representatives only for a period of 5 years and also
to be taken note of in the context of Section 31(1)(a), what
legislature intends by this provisions is to restrict the heritability
of tenancy depending upon the circumstances under which the
said tenancy is claimed. The maximum that could be claimed is
for a period of 5 years. It has nothing to do with the Court power
to pass an eviction order against the legal representatives of
deceased tenant during the said period of 5 years. If the original
tenant could be evicted from the premises on the land lord
making out a case for eviction, under Section 5 for any other
provisions of Rent Act, a similar eviction could be passed against
the legal representatives of the deceased tenant.
38. This Court in the judgment reported in (2009) 6
KLJ 621 in a case of P.M.Nagajyothi V/s
V.M.Ramasanjeevasheety and others wherein also discussion
45
was made in respect of 3(n) and Section 5 wherein held that
inherited tenancy of husband whether successor inherited
tenancy under Section 5 of the Act, whether such tenant liable to
be evicted within a period of 5 years of inheritance held that
according to Section 5, right of tenancy would devolve on certain
categories of successors of deceased tenant and certain
conditions have to be complied with by the successors and also it
is held that Section 3(n) of the Act is exhaustive in respect
categories of persons who pay the rent, person who has a
successor has inherited tenancy would also to be included within
the definition. A successor who has inherited tenancy is a
statutory tenant under Section 3(n) since the definition of tenant
is not exhaustive. Hence, a successor of tenant who inherited
tenancy under Section 5 is a tenant under Section 3(n) and
tenant under Section 27(1)(n) of the Act would then include
inherited tenant under Section 5. When Section harmonizing
with Section 3(n) is read with Section 27 would mean that an
inherited tenancy under Section 5 is liable to be evicted within a
period of 5 years if landlord make out a case for eviction and
tenant has to vacate the premises.
46
39. This Court also would like to rely upon the judgment
decided on 19.12.2023 in a case of Vinod and Others V/s
Mudakappa and Others in connected matter reported in
MANU/KA/3694/2023 wherein also discussion was made
when the original tenant died after coming into force of act
Section 5 of Act is applicable and death of tenant and right of
tenancy shall devolve for a period of 5 years from the date of his
death on said count.
40. This Court would like to rely upon the judgment
passed in H.R.R.P.No.706/1999 decided on 24.02.2003 in case
of Shahwar Basheer and others V/s Veena Mohan and
Others also discussed that revisions have to be disposed of only
with reference to the Section 5 of the Act wherein held that it
would be open for the landlord to stay claim under Section 5 and
obtain the possession of the premises in the occupation of
successors of the tenant after the expire of the term permitted
under Section 5 as it is a new substantive remedy provided for
the enforcement of an existing right. It is also held that because
of the provision of the present Act, especially Section 5 were not
in existence at the time of the orders were passed and more still
47
as there is no consideration of material on record with reference
to the altered law that governs the field, now, this Court sitting
in revision can adjudicate the matter in terms of the alter law as
subsequent developments and altered circumstances are
relevant at all stages of proceedings. It is also observed in this
judgment that the right that accrues to the successors under
Section 5 is not an absolute right in that the right to continue in
possession during the subsistence of the inheritance of tenancy
is always subjected to the rights of the land lord seeks for their
eviction. If it requires for the same or if a right accrues to him
for such eviction from the acts of commission or omission of the
successors in violation of legal obligation of the contract of
tenancy.
41. This Court would like to rely upon the judgment
reported in (2009) 3 KarLJ 386 in case of B.K.Suresh Babu
and Ors V/s ANanthalakshmi and Ors wherein Section 5 of
Karnataka Rent Act, 1999 was also discussed and held that
Section 5 of Act says rights of legal representatives as tenant
extinguished after five years from date of death of original
tenant and ratio decided in this case is that as per Section 5 of
48
Karnataka Rent Act, 1999, in absence of independent right to
occupy tenancy rights of legal representative stood extinguished
after five years from death of original tenant and this judgment
in paragraph No.9 held that Section 5 is prospect in operation, in
that, the right of a legal representative of a tenant to claim
protection under Section 3(n) read with Section 21 of the 1961
Act is taken away prospectively with coming into force of 1999
Act, which recognizes only a limited right in such legal
representatives. Section 5 is not applied retrospectively as a
requisite for an action in terms of Section 5 is an event that has
occurred before coming into force of new Act. The right of legal
representative of a tenant who claims his right to occupation
only as a successor of a tenant, but not under an independent
right would have to be addressed in terms of Section 5 which
contemplates that the tenancy would stand determined with the
death of the tenant subject to Section 5.
42. Having considered the principles laid down in the
judgment referred supra and also the judgment relied upon by
the counsel appearing for the respondent in a similar set of facts
in the judgment of this Court dated 05.09.2024 passed in
49
H.R.R.P.No.28/2024 wherein also in a case of issue of Mulageni
was considered and so also discussed in paragraph No.25 the
issue of whether rent Act is applicable or not and also the issue
of if it is a registered deed which protects the right of tenant and
the same is also considered and even though the judgment of
LAXMIDAS BAPUDAS DARBAR AND ANOTHER VS. RUDRAVYA
(SMT) AND OTHERS referred by the counsel for the revision
petitioner was also taken and co-ordinate bench of this Court in
M/s Bombay Tyres International Ltd., V/s K.S.Prakash reported
in AIR 1997 Kant 311 also discussed and in the judgment of
LAXMIDAS BAPUDAS DARBAR case Supreme Court held that
eviction proceedings under the Rent Control Act can be initiated
before the expire of during the currency of the lease period and
only on any of the grounds mentioned in 21(a) to (b) of Rent
Control Act and only when such ground is also provided in the
lease deed as one of the ground for forfeiture of lease, referring
those two judgments, comes to the conclusion that Supreme
Court as well as co-ordinate bench held that the Muldar is also a
type of tenant that has been defined under Karnataka Rent Act
and hence, held that the very contention that tenant is protected
50
under the Karnataka Rent Act cannot be countenanced in law.
This Court also discussed in paragraph No.45 discussed
extracting Section 5 of Rent Act regarding inheritability of
tenancy and in paragraph No.47 comes to the conclusion that it
is crystal clear that if original tenant dies persons who are
entitled to remain in the property as a persons who are directly
dependent on the original tenant over a period of 5 years.
43. Having considered all these principles laid down in
the judgment referred supra, it is very clear that under the
circumstances landlord is also entitled to eviction of the
respondent from the petition premises by resorting to Section 5
of the Rent Act, 1999. In the case on hand also no doubt there
was a lease for period of 99 years that is in favour of the original
tenant and subsequently he passed away and also in terms of
Ex.P.8 it is very clear that lease can be forfeited in case of
default in non-payment of rent for a period of 5 years and
hence, lease also forfeited. It is also important to note that after
the death of original tenant, a notice was given and forfeited the
tenancy on the ground of non-payment of rent and also they
waited for a period of 5 years to file the petition since there was
51
a provision under Section 5 of Rent Act, the right of inheritance
of tenancy for a period of 5 years and also proviso is very clear
that only for a period of 5 years they are entitled and in view of
specific provision is made under the Rent Act, the very
contention of the counsel appearing for the petitioner that
cannot invoke Section 5 and it is a perpetual tenancy and also
the revision petitioner is statutory tenant cannot be accepted
and special provision is made under Section 5 of Rent Act to
evict the tenant who are the legal heirs of original tenant. Hence,
the contention of revision petitioner cannot be accepted that the
Trial Court and Revision Court committed an error in invoking
Section 5 and the dismissal of Rev. (Rent) Nos.10/2021
confirming the judgment of the Trial Court is erroneous cannot
be accepted. Hence, I answer the same as negative.
POINT No.4:
44. In view of the discussions made above, I pass the
following:
ORDER
i) The petition H.R.R.P.No.5/2024 is allowed in part and granting the relief under Section 27(2)(r) and 52 Section 31(1)(a) of the Karnataka Rent Act, 1999 is hereby set-aside only.
ii) The order passed in H.R.R.P.No.5/2024 and H.R.R.P.No.6/2024 are confirmed invoking Section 5 of Karnataka Rent Act, 1999 and consequently the revision petitioner is given 2 months time to vacate and hand over the premises to the respondent.
Sd/-
(H.P. SANDESH) JUDGE ST, RHS