Karnataka High Court
Mr Manohar Shetty vs Mrs Vimala R Kotian on 14 October, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC:41362
HRRP No. 19 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14THDAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
HOUSE RENT REV. PETITION NO.19 OF 2019
BETWEEN:
1. MR. MANOHAR SHETTY
S/O. LATE. VITTAL SHETTY
AGE MAJOR,
2. MR. VENUGOPAL SHETTY
S/O. LATE. VITTAL SHETTY
AGE MAJOR,
3. MR. HARISH KUMAR SHETTY
S/O. VITTAL SHETTY
AGE MAJOR,
ALL ARE R/AT NO.2-16-1337,
NEAR BALIGA STORES,
BEJAI, MANGALORE - 575 004.
...PETITIONERS
(BY SRI. LATHA S SHETTY., ADVOCATE)
Digitally signed by
PAVITHRA B AND:
Location: HIGH
COURT OF
KARNATAKA
1. MRS. VIMALA R KOTIAN
W/O. MR. RAMESH KOTIAN
AGED 62 YEARS,
R/AT NO.31/103,
SAGAR, APNAGHAR CO-OP. HOUSING SOCIETY
SWAMY SMARTH NAGAR
ANDHERI WEST
MUMBAI - 400 058.
2. MRS. MALATHI VIVEKANANDAN
W/O. VIVEKANANDA
AGED 60 YEARS
R/AT NO.262, 3RD CROSS,
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HRRP No. 19 of 2019
BEHIND VVS WOMENS COLLEGE
JUDGES COLONY, BASAVESHWARA NAGAR
BANGALORE - 560 079.
3. MRS. SHOBHA SADASHIVA
W/O MR. SADASHIVA
AGED 54 YEARS
R/AT VIJAYA MAHAL
SURATHKAL,MANGALORE TALUK,
D.K. 575 005.
4. MRS. ASHA SRINIVAS
W/O MR. SRINIVAS
AGED 51 YEARS,
COTTAGE VIEW BIKKARNAKATTA,
MANGALORE - 575 005.
SINCE DEAD BY LRS
4(A) MR. SRINIVAS,
H/O LATE ASHA SRINIVAS BABU POOJARTHY,
AGED ABOUT 70 YEARS,
4(B) MR. KIKITHASH SUVARNA
S/O LATE ASHA SRINIVAS,
AGED ABOUT 32 YEARS,
BOTH ARE R/AT
COTTAGE VIEW, BIKKARANAKATTA,
MANGALORE - 575 005.
5. MR. BHARATHI K. AMIN
W/O LATE MR. KESHAVA AMIN
AGED 48 YEARS
SUNRISE APARTMENTS, 3RD FLOOR,
ROOM NO.15, SHASTRI NAGAR,
RBI QUARTERS,
OLD DOMBIVILI,
WEST, THANE DISTRICT.
6. MRS. KAMALAKSHI PURUSHOTHAMA
W/O LATE MR. PURUSHOTHAMA
AGED 65 YEARS
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HRRP No. 19 of 2019
SUVARNA, R/AT "SUVARNA",
DASARKODI HOUSE,
BAJPE POST,
MANGALORE, D.K. - 575 005.
7. KUMARI PREETHA
AGED 44 YEARS
8. KUMARI NEETHA
AGED 42 YEARS
9. KUMARI SANGEETHA
AGED 37 YEARS
10. KUMARI SHWETHA
AGED 37 YEARS
RESPONDENT 7 TO 10 ARE
CHILDREN OF RESPONDENT NO.6
AND ARE C/O RESPONDENT NO.6
11. MRS. SHOBHA K. SUVARNA
AGED 45 YEARS,
W/O LATE KUSHALA SUVARNA
GURUKRIPA, BEJAI, KAPIKAD,
MANGALORE - 577 504.
12. MASTER PRATHEEK
MINOR, AGED 13 YEARS
REPRESENTED BY
HIS MOTHER/NATURAL GURADIAN
RESPONDENT NO.11
13. MR. YOGHISH KUMAR
S/O LATE P.S. SALIAN
AGED 53 YEARS
R/AT NO.601,
VINAYAKA APARTMENTS,
LADY HILL, MANGALORE,
D.K.- 577 504.
...RESPONDENTS
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NC: 2024:KHC:41362
HRRP No. 19 of 2019
(BY SRI. NIKHIL KURGOD, ADVOCATE FOR C/R3 AND R6 AND
ALSO FOR R4(A) AND ALSO V/O DATED 25.11.2020 ACCEPTS
NOTICE FOR ALL RESPONDENTS)
THIS HRRP FILED UNDER SECTION 115 OF CPC, AGAINST
THE ORDER DATED 28.01.2019 PASSED IN R.R.P.NO.6/2013
ON THE FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS
JUDGE, D.K. MANGALORE, DISMISSING THE PETITION AND
CONFIRMING THE ORDER DATED 12.12.2012 PASSED IN
HRC.NO.34/2008 ON THE FILE OF THE II ADDITIONAL CIVIL
JUDGE AND JMFC MANGALORE, ALLOWING THE PETITION
FILED UNDER SECTION 27 (2) (r) OF KARNATAKA RENT ACT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
ORAL ORDER
Though the matter is listed for admission, but with consent of both the learned counsels appearing for respective parties, the matter is taken up for final disposal.
2. The respondents in HRC proceedings being tenants have preferred this present revision petition questioning the legality and correctness of the order dated 28.01.2019 passed in RRP No.06/2013 by the I Additional District and Sessions Judge, Dakshina Kannada, Mangalore, -5- NC: 2024:KHC:41362 HRRP No. 19 of 2019 which confirmed the order dated 12.12.2012 passed in HRC No.34/2008 by the II Additional Civil Judge and JMFC, Mangalore, Dakshina Kannada,.
3. The rank of the parties has been stated as before the Trial Court/HRC Court in original proceedings, for convenience and easy reference.
4. Heard the arguments addressed by both the learned counsels appearing for the respective parties and perused the materials placed on record.
5. The petitioners-owners have filed an Eviction Petition by invoking provision under Section 27 (2) (r) of Karnataka Rent Act (hereinafter referred as 'the Act') seeking to direct the respondents-tenants to deliver the vacant possession of petition schedule premises.
6. The petitioners have contended that one B. Vasappa @ Vasappa Maistry was the original owner and husband of respondent No.1 and father of respondent Nos.2 to 4 namely Vittal Shetty, who are tenants. The respondents being the wife and sons of Vittal Shetty, have continued in -6- NC: 2024:KHC:41362 HRRP No. 19 of 2019 possession of the petition schedule premises as tenants. Now the petitioners have filed a petition under Section 27 (2)
(r) for their bona fide requirement. Hence, filed petition for seeking vacant possession from the respondents-tenants.
7. The respondents-tenants in HRC petition have filed counter statement through their advocates and denied that the petitioners are owners of petition schedule premises and respondents are tenants. Further, denied that the petitioners are in need of bona fide requirement therefore, filed eviction petition under Section 27 (2) (r) of the Act, is not maintainable.
8. Further, the respondents have taken contention in their counter statement at Para Nos.10 and 13 that Vittal Shetty was a tenant under one B. Vasappa @ Vasappa Maistry on monthly rent basis. It is further case that the respondents-tenants have entered into an agreement of sale with Vasappa Maistry during his lifetime, but did not have materialize the registration of the sale deed. Further, the respondents-tenants have approached the legal heirs of Vasappa Maistry, who are petitioners herein, to execute -7- NC: 2024:KHC:41362 HRRP No. 19 of 2019 registered sale deed, but the petitioners have denied it; therefore, it is contended in their counter statement that the respondents are not tenants, but are in possession by virtue of the agreement of sale. Therefore, they have disputed the relationship of landlord and tenant. Therefore, it is submitted that, as per Section 42 of the Act, if there is a dispute regarding landlord and tenant, then the petition is not maintainable, but had to be referred the case to the Civil Court. Therefore, on these pleadings in the counter statement prays for dismissal of the petition in HRC proceedings.
9. The Trial Court has allowed the petition filed under Section 27 (2) (r) of the Act, on the reasons that in the counter statement, the respondents have admitted that the Vittal Shetty was tenant on monthly rent basis. The execution of an agreement of sale between Vittal Shetty and respondent No.1 with Vasappa Maistry, which itself proves that Vasappa Maistry was the owner. Therefore, on these observations, the Trial Court has allowed the petition directing the respondents-tenants to quit and surrender the -8- NC: 2024:KHC:41362 HRRP No. 19 of 2019 vacant possession of petition schedule premises to the petitioners-owners.
10. Being aggrieved by this, the respondents-tenants have preferred revision petition before the District Court. The District Court has dismissed the revision petition filed by the respondents-tenants, confirming the order passed by the Trial Court. The District Court has given reasons that the Vittal Shetty was a tenant under Vasappa Maistry on monthly rent basis and rejected the claim of respondent No.4, namely Mr. Harish Kumar Shetty, who has purchased the Muli Right from one Smt. Monica Peres. Therefore, the District Court confirmed the order passed by the HRC Court.
11. Being aggrieved by it, the respondents-tenants have preferred this instant second revision petition before this Court.
12. Learned counsel for the revision petitioners- tenants herein submitted that there is dispute regarding the relationship of landlord and tenant, hence, as per Section 43 of the Act, the case ought to have been referred to the Civil -9- NC: 2024:KHC:41362 HRRP No. 19 of 2019 Court, but without doing so, allowing the HRC petition is not correct. Further, submitted that Vittal Shetty and his wife- respondent No.1, have entered into an agreement of sale in the year 2008. Therefore, the respondents are in possession by virtue of the agreement of sale, but not as tenants; therefore, their possession is protected as per Section 53A of the Transfer of Property Act.
13. Further, submitted that before the District Court, in the Revision Petition an application for amendment was filed, intending that respondent No.4 - Mr. Harish Kumar Shetty, has taken contention that he has purchased Muli Right from one Smt. Monica Peres, and therefore, disputed the petitioners' ownership on the petition schedule premises, but that was wrongly turned down by the District Court. Further, a memo was filed in this revision petition along with some documents, by contending that the petitioners are not landlords, and there is dispute regarding landlord and tenant relationship between the petitioners and respondents. Hence, they pray to allow the revision petition by setting
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NC: 2024:KHC:41362 HRRP No. 19 of 2019 aside the orders passed by both the Trial Court and District Court.
14. On the other hand, learned counsel for the petitioners-owners (respondents herein) have justified the orders passed by both the Trial Court and District Court and contended that in the counter statement itself in HRC proceedings, the respondents-tenants have admitted that their father, Vittal Shetty, was a tenant on monthly rent basis. An agreement of sale was executed between Vittal Shetty and Vasappa Maistry and after demise of Vasappa Maistry, the respondents-tenants have approached the petitioners-owners for execution of registered sale deed, which itself proved the fact that the respondents-tenants have admitted that the petitioners are owners of the property. Therefore, this was rightly considered by both the Trial Court and District Court. Hence, prays to dismiss the petition.
15. In HRC proceedings, the respondents-tenants have taken contention at Para No.10 in the counter statement that the respondents herein, along with their
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NC: 2024:KHC:41362 HRRP No. 19 of 2019 deceased father Vittal Shetty, who are tenants under B. Vasappa @ Vasappa Maistry, on monthly rent of Rs.15/-. The said Vittal Shetty had taken the petition schedule premises originally on monthly rent of Rs.9/- and thereafter the same was enhanced to Rs.15/-. During the lifetime of the said B. Vasappa @ Vasappa Maistry, Vittal Shetty and his wife-respondent No.1 had entered into an agreement of sale on 02.07.1981 for sale consideration. The said contention was not materialized for getting registration of registered sale deed. Therefore, in the counter statement itself, the respondents-tenants have admitted that they are tenants from the time of Vittal Shetty by recognizing/admitting that the Vasappa Maistry is the owner of the petition schedule premises. It is submitted that the petitioners are daughter and daughters-in-law of Vasappa Maistry, which is not disputed by the respondents-tenants.
16. The very fact that Vittal Shetty and respondent No.1 have entered into an agreement of sale with Vasappa Maistry proved the fact that Vasappa Maistry was the owner of the property. After the demise of Vasappa Maistry, the
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NC: 2024:KHC:41362 HRRP No. 19 of 2019 respondents-tenants have approached the petitioners, who are legal heirs of Vasappa Maistry, to execute the registered sale deed, which itself proved the fact that the respondents- tenants have admitted that the petitioners are owners. Otherwise, if the petitioners are not owners, then there would not have been occasion for the respondents-tenants to approach the petitioners requesting to execute the sale deed. Therefore, the respondents-tenants themselves in their counter statement admitted that they are tenants of the petition schedule premises from the time of Vasappa Maistry, which is rightly considered by both the Trial Court and District Court.
17. In the revision petition before the District Court, an application for amendment was filed under Order VI Rule 17 of CPC stating that respondent No.4 - Mr. Harish Kumar Shetty had purchased the Muli Right from one Smt. Monica Peres, therefore, it was contended that the petitioners are not owners of the petition schedule premises. According to the amendment of application, the said sale deed was executed on 31.07.2008, and therefore, this contention could
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NC: 2024:KHC:41362 HRRP No. 19 of 2019 have been taken in the counter statement in HRC proceedings, but was not taken. The said sale deed was produced at Ex.R-6, before the HRC proceedings, but in this regard, there is no contention taken in the counter statement. If respondent No.4 - Mr. Harish Kumar Shetty (tenant) has knowledge regarding he has purchased Muli Right from one Smt. Monica Peres, then he could have very well stated in the counter statement but did not take so, such contention. The District Court has dismissed the said application and has not permitted to take such contention in the revision petition. Further, upon considering the schedule of property in the HRC proceedings and in the said sale deed of purchasing Muli Right both are different and having different areas; therefore, in what way the said sale deed of purchasing Muli Right prove the said property is the same property, as in the HRC proceedings is not proved. Therefore, for this reason, the respondents-tenants might not have taken contention in the counter statement in HRC proceedings. Therefore, the District Court has rightly turned
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NC: 2024:KHC:41362 HRRP No. 19 of 2019 down the amendment application made by respondent No.4 - Mr. Harish Kumar Shetty (tenant).
18. Further, respondent No.2 in HRC proceedings, who was examined as RW-1 admitted in the course of cross examination that in the year 1952, his father had taken the petition schedule premises on rent basis on a monthly rent of Rs.9/- from Vasappa Maistry. Further, admitted that Vasappa Maistry has some other six buildings, and all the buildings, including the petition schedule premises, are called the Vasappa Maistry compound. Therefore, in the course of cross-examination, DW-1/respondent No.2 admitted that Vasappa Maistry was the owner and his father was a tenant under him. Further, DW-1 had admitted that the said property of Vasappa Maistry compound belongs to his children; therefore, now the respondents-tenants are taking contention that by virtue of the agreement of sale they are in possession. The agreement of sale was not culminated into registration of sale deed, but prior to execution of the agreement of sale, Vittal Shetty was the tenant; therefore, it is proved that the respondents are tenants under Vasappa
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NC: 2024:KHC:41362 HRRP No. 19 of 2019 Maistry, and this is rightly considered by both the Trial Court and District Court. Therefore, there is no good ground available for admitting the appeal. Hence, the orders passed by both the Trial Court and District Court are perfectly justifiable and correct one, which needs no interference by this Court. Hence, the petition is dismissed at admission itself.
SD/-
(HANCHATE SANJEEVKUMAR) JUDGE SRA List No.: 1 Sl No.: 13