Karnataka High Court
Shri V S H Mohamed Ali vs Shri M G Ramamurthy on 3 July, 2019
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY 2019
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
H.R.R.P. No.164 OF 2012
BETWEEN
Shri. V.S.H.Mohamed Ali,
Son of Shri Hameed Sultan,
Aged 62 years, Shop No. GF-5,
Ground Floor, No.426-B,
9th Main Road, Vijayanagar,
Bengaluru-560040.
...Petitioner
(By Sri. S.Shaker Shetty, Advocate)
AND
Shri. M.G.Ramamurthy,
Son of Late G.Ganganarasaiah,
Aged about 61 years,
No.426-B, New No.56/1,
9th Main Road, Vijayanagar,
Bengaluru-560040.
...Respondent
(By Sri. Syed Kashif Ali, Advocate for
Sri. Sundaraswamy & Sri. Ramdas, Advocates)
This HRRP is filed under Section 46(1) of Karnataka
Rent Act 1999 Against the judgment and decree dated
14.08.2012 passed in HRC No.323/2009 on the file of the
XII Additional Small Causes Judge, MACT, Bengaluru,
allowing the eviction petition filed under Section 27(2)(j) &
(r) of the Karnataka Rent Act, 1999.
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This HRRP having been heard and reserved on
13.06.2019, coming on for pronouncement this day, the
Court pronounced the following :
ORDER
This is a tenant's revision petition. The court below by its judgment dated 14.8.2012 in HRC 323/2009 directed the petitioner to quit and deliver within two months the vacant possession of shop premises bearing No.GF5 situated on the ground floor of the entire property bearing No. 426V, IX Main, Vijayanagar, Bengaluru, (hereinafter referred to as 'petition schedule premises') to the respondent. This is the order challenged here.
2. Given a brief account of the facts, the respondent initiated eviction proceeding against the petitioner invoking the provisions of section 27 (2)(j) & (r) of the Karnataka Rent Act, 1999. He stated that the entire building where the petition schedule premises is situated was constructed in the year 1964 and since it was in a dilapidated condition, it required demolition. He wants to construct a new building after demolition. The respondent has also 3 pleaded that he wants the petition schedule premises for his use and occupation and the petitioner will not face any hardship if he is ordered to be evicted as he has an alternative accommodation in his own building. On 10.7.2009 the respondent issued a legal notice to the petitioner terminating the tenancy and calling upon him to quit and deliver vacant possession to him. Since the petitioner did not vacate, he initiated eviction proceedings in the Court of Small Causes Judge, Bengaluru.
3. The petitioner who is the respondent in the eviction proceeding contested the eviction petition. Though he has admitted that he took the petition schedule premises on rent from the respondent's father, he has pleaded specifically that the respondent has no right to evict him. His plea is that after the demise of the respondent's father Ganganarasiah, all his class I legal heirs succeeded to his estate as co-owners. Therefore, the petitioner alone has no locus standi to maintain the petition for eviction. The eviction petition does not also 4 disclose that the respondent is acting on behalf of and with the concurrence of other co-owners. The petitioner has also stated that he is regular in payment of rent and that he enhanced rent periodically.
4. With regard to demolition and reconstruction of the building, the petitioner has pleaded that the respondent has taken up a false plea. The respondent has no such intention. The other ground put forward by the respondent that the petition schedule premises is required for his own use also is not admitted by the petitioner. The petitioner denied to have possessed an alternative accommodation for his business as stated by the respondent in his eviction petition.
5. The court below has held that there exists jural relationship of landlord and tenant between the parties. Rejecting the specific contention of the petitioner-tenant that the respondent alone has no right to initiate eviction proceeding, the court below has held that it is now a 5 settled law that one co-owner can seek eviction of a tenant and it is not necessary that all must join.
6. Sri. Shaker Shetty, the learned counsel for the petitioner assails this finding; his argument is that the trial court has not taken into consideration the fact that a brother of the respondent has filed a suit for partition. Unless partition takes place, the respondent gets no right to evict any tenant. The eviction order should not result in granting a decree for partition. Therefore till a competent court decides the suit for partition, a single co-owner does not derive any right. He also argued that the respondent has not stated that he has been authorized by other co- owners to seek eviction of the petitioner. He has placed reliance on the judgments of the Supreme Court in the cases of Abdul Salam vs. Ghouse Bi [1988 (3) SCC 63], D.Satyanarayana Vs. P.Jagadish [(1987) 4 SCC 424], Hardeo Rai Vs. Shakuntala Devi [AIR 2008 SC 2489] and Nanalal Girdharlal and Another vs 6 Gulamnabi Jamalbhai Motorwala and Others (AIR 1973 Gujarat 131).
7. The counsel for the respondent argues that a co- owner has every right to seek eviction of a tenant. It is not necessary that all the co-owners must join. He has placed reliance on two judgments of the Supreme Court in the cases of FGP Limited Vs. Saleh Hooseini Doctor and another [(2009) 10 SCC 223] and Mohinder Prasad Jain Vs. Manohar Lal Jain [AIR 2006 SC 1471].
8. It is not possible to uphold the argument of Sri. Shaker Shetty. The decisions that he has cited has no application. They are all misplaced reliance. The facts in Abdul Salam vs. Ghouse Bi [supra] show a different situation. The tenant purchased undivided interest of a tenant in common. When an eviction proceeding was initiated by another person having an interest in the property, it was held by this court that a tenancy cannot be split. There cannot be two orders, one for evicting a 7 tenant from a portion which he has not purchased and the other dismissing the petition in respect of the portion purchased by him. Therefore the facts are altogether different.
9. In D.Satyanarayana Vs. P.Jagadish [supra] the point of law involved is about rule of estoppel found in Section 116 of the Evidence Act. The facts are that the appellant before the Supreme Court was a subtenant of respondent. The actual landlord caused a notice to the appellant stating that the premises was unlawfully sublet to him by the respondent and he would initiate action for evicting him. Then the appellant attorned the tenancy directly to the landlord. The appellant's lessor i.e., the respondent commenced proceeding to evict the appellant. It was in this context, the scope of Section 116 of the Evidence Act was discussed; therefore this decision has no application to the facts of the case.
10. Hardeo Rai Vs. Shakuntala Devi [supra] discusses concept of unity of interest in a Mitakshara joint 8 family. It is held here that when intention to separate is expressed, share of each coparcener becomes clear, therefore joint tenancy comes to an end and the members of the family become tenants in common. This decision is cited probably in the context that one brother of the respondent filed a suit for partition, which brought to an end, as it was argued, the co-ownership. This principle cannot be applied to the case on hand in view of the fact that no other member of the family took objection for evicting the petitioner tenant by the respondent alone. Moreover, in the later pronouncement of the Supreme Court in the case of FGP Ltd.,(supra), a decision cited by the respondent's counsel, it is very clearly held that till partition of property takes place, a co-owner is competent to recover possession of his movable property. Also in the case of Mohinder Prasad Jain, (supra), the Supreme Court has held that when a co-owner files a suit for eviction of a tenant on the ground of his bonafide personal need, he need not show consent given by other co-owners. This being the position of law, another decision cited by 9 Sri. Shaker Shetty, i.e., in the case of Nanalal Girdharlal and Another vs Gulamnabi Jamalbhai Motorwala and Others [supra] has no application. For all these reasons, the argument of Sri. Shaker Shetty should fail.
11. In regard to actual grounds taken by the respondent for evicting the petitioner, if the judgment of the trial court is seen, it is found that the trial court has very well appreciated the evidence. I do not find any good ground to differ from those findings. However Sri. Shaker Shetty argued that the respondent has failed to prove the grounds of eviction taken under Section 27(2) (j) or (r). His argument is that the respondent has failed to prove that he has really intended to demolish the building for reconstruction purpose. Evidence like approved plan, license for construction, should have been produced. No presumption can be drawn as the respondent has not filed a separate affidavit indicating the requirement of the petition schedule premises for his own occupation. He also argued that the respondent could have occupied another 10 shop which fell vacant if really he wanted to carry on business. He tries to gather support for his argument from two judgments of the Supreme Court in the cases of Hasmat Rai and Another Vs. Raghunath Prasad [(1981) 3 SCC 103] and Somanathasa Baddi Vs. Chanabasappa and Others [(2008) 10 SCC 685]. In regard to applicability of these decisions, I have to state that the Hon'ble Supreme Court held the views expressed in those cases in the light of given set of facts and circumstances. Those decisions may not be of any avail to the petitioner. It is true that the respondent did not file an affidavit as envisaged in explanation 1 of Section 27(2)(r) of Karnataka Rant Act, and therefore a presumption as to his requirement cannot be drawn. But never the less the grounds pleaded by him for eviction of the petitioner cannot be said to be not proved. He also sought eviction of other tenants in the building and the very fact that he did not occupy one of the shops that fell vacant reasonably shows his intention to demolish the old building. As has been observed by the trial court, obtaining of license and 11 approved plan will arise after vacating all the tenants. There is no infirmity in the said finding. I do not find good reason to interfere with trial court's order. For all these reasons, this revision petition is dismissed with costs.
12. The petitioner tenant shall quit and deliver vacant possession of schedule premises to the respondent within three months from today.
Sd/-
JUDGE ckl