Karnataka High Court
Sri. N B Maben vs Smt. Rajashree B Nayak on 8 February, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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HRRP No. 70 of 2017
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
HOUSE RENT REV. PETITION NO.70 OF 2017 (EVI)
BETWEEN:
1. SRI. N.B. MABEN
SINCE DECEASED BY HIS LRS.
1(a) SHARLIN GOJER
AITHU BELCHADA,
AGED ABOUT 40 YEARS,
D/O LATE N.B.MABEN,
R/AT "SWEET HOME",
ASHIRWAD BUS STOP,
KORANGRAPADY VILLAGE,
UDUPI TALUK.
Digitally signed by
1(b) SAMSON MABEN
JAI JYOTHI J AGED ABOUT 38YEARS,
Location: HIGH
COURT OF
KARNATAKA
1(c) SHARON MABEN
AGED ABOUT 36 YEARS,
NO.1 (B) & (C) ARE CHILDREN OF
LATE N.B. MABEN, R/AT NO.8-78A(1),
ISHWARA NAGAR, NO.78, HERGA VILLAGE,
UDUPI TALUK.
...PETITIONERS
(BY SRI. R.A.DEVANAND, ADVOCATE FOR PROPOSED LRS OF
DECEASED PETITIONER)
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HRRP No. 70 of 2017
AND:
SMT. RAJASHREE B NAYAK
W/O LATE K.B.NAYAK,
AGED ABOUT 52 YEARS,
R/O SHENAY HOUSE,
PARKALA, UDUPI TALUK,
UDUPI DISTRICT-576 101.
...RESPONDENT
(BY SRI. P.N.HARISH, ADVOCATE)
THIS HRRP IS FILED UNDER SEC 46(1) OF THE
KARNATAKA RENT ACT, AGAINST THE ORDER DATED
12.08.2017 PASSED IN RRP NO.8/2009 ON THE FILE OF THE
PRL. DISTRICT JUDGE, UDUPI, DISMISSING THE REVISION
PETITION FILED UNDER SEC.46 OF KARNATAKA RENT
ACT,1999 AND CONFIRMING THE ORDER DATED 28.2.2009
PASSED IN H.R.C NO.1/2003 ON THE FILE OF THE PRL. CIVIL
JUDGE (JR. DN) UDUPI, PARTLY ALLOWING THE PETITION
FILED UNDER SEC.27(2)(A) AND (R) OF KARNATAKA RENT ACT
1999.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The instant revision petition is filed by the petitioner- tenant challenging the order dated 12.08.2017 passed in RRP.No.8/2009 by the Court of Principal District Judge, Udupi, (hereinafter referred to as the "First Revisional Court") and the order dated 28.02.2009 passed in HRC.No.1/2003 by the Principal Civil Judge (Jr.Dn.), -3- NC: 2024:KHC:5500 HRRP No. 70 of 2017 Udupi, (hereinafter referred to as the "Trial Court"), thereby the order of eviction passed by the Trial Court is confirmed by the First Revisional Court by directing the petitioner herein to vacate and hand over the vacant possession of the petition schedule premises to the respondent herein.
2. It is the case of the respondent that he is the owner of the petition schedule premises and has given the said premises to the petitioner herein on tenancy basis in the year 1975 on monthly rent. The respondent herein being owner of the premises has filed the eviction petition by invoking the provision under Sections 27(2)(a) and 27(2)(r) of the Karnataka Rent Act, 1999, that the petitioner-tenant was in arrears of rent amount and for his bonafide requirement, the petition is filed before the Trial Court. The Trial Court has allowed the petition and directed the petitioner herein to vacate and handover the vacant possession of the petition schedule premises to the respondent herein, which is challenged before the First -4- NC: 2024:KHC:5500 HRRP No. 70 of 2017 Revisional Court. The First Revisional Court has confirmed the order passed by the Trial Court. Therefore, against the concurrent findings of fact in orders, this revision petition is filed by the tenant.
3. Heard the arguments of both sides and perused the records.
Submission of learned counsel for petitioner-tenant
4. Learned counsel for the petitioner submitted that subsequent to the order passed by the Trial Court in HRC.No.1/2003 on passing eviction order directing the petitioner to vacate and handover vacant possession of the petition schedule premises, there was an agreement of sale executed between the father of the petitioner and mother of the respondent on 07.10.2009 for total sale consideration of Rs.11,00,000/- and the respondent received a sum of Rs.1,00,000/- towards advance sale consideration and further agreed to receive the balance sale consideration on or before 06.12.2009. Therefore, -5- NC: 2024:KHC:5500 HRRP No. 70 of 2017 submitted that the petitioner is entitled for protection of his possession as per Section 53A of the Transfer of Property Act (hereinafter referred to as the "TP Act" for short).
5. Further submitted that the petitioner herein has filed a suit in OS.No.29/2011 on the file of the Court of Senior Civil Judge, Udupi, for specific performance of contract against the respondent herein and the said suit is decreed in favour of the petitioner herein directing the respondent to execute the registered sale deed. Therefore, by virtue of agreement of sale, the possession of the petitioner is protected. Thus, Section 53A of the TP Act enure to the benefit of the petitioner. But this is not considered by the First Revisional Court and has committed error. Thus, prays to set aside the order passed by both the First Revisional Court and Trial Court. Therefore, submitted that the jural relationship of the owner and tenant has come to an end by virtue of agreement of sale and the petitioner is no more tenant -6- NC: 2024:KHC:5500 HRRP No. 70 of 2017 and thus, the respondent is estopped to claim that the petitioner is the tenant in possession. Therefore, submitted that the petitioner has performed his part towards agreement to sell and therefore, his possession to be protected by virtue of "Doctrine of Part Performance". Therefore, submitted that the First Revisional Court has committed error by wrongly determining the jural relationship of tenant and owner between the petitioner and respondent respectively.
6. Further submitted that the respondent has not issued notice of attornment of tenancy. Therefore, submitted that when the petitioner has obtained the decree on merits for specific performance of contract and the said judgment and decree is challenged before this Court and the same is pending, therefore, the possession of the petitioner is liable to the protected. Furthermore, the petitioner has paid certain amount and deposited and he has performed his part on the capacity of intended -7- NC: 2024:KHC:5500 HRRP No. 70 of 2017 purchaser by virtue of agreement to sell. Therefore, his right has to be protected under Section 53A of TP Act.
7. Further submitted that admittedly when there is an agreement to sell in respect of petition schedule premises between the petitioner and respondent, then the possession of the petitioner is by virtue of agreement to sell and the possession is recognized as intending purchaser by way of agreement to sell, but not as a tenant under the respondent. Therefore, the status of possession of the petitioner on the petition schedule premises is changed and soon after agreement to sell executed, the jural relationship of petitioner and respondent as tenant and owner is extinguished. Hence, entitled for benefit under Section 53A of the TP Act. This fact was brought to the notice of First Revisional Court, but the First Revisional Court has not at all considered anything in this regard. Hence, the First Revisional Court has committed error in confirming the order passed by the Trial Court. Therefore, prays to interfere with the order passed by both the courts -8- NC: 2024:KHC:5500 HRRP No. 70 of 2017 below and set aside the order of both the courts below by allowing the instant revision petition.
8. Learned counsel for the petitioner in support of his submission places reliance on the following judgments:
i. AIR 1989 GAUHATI 39 - SUNIL KR. SARKAR (DECEASED BY L.R'S) AND OTHERS Vs. AGHOR KR. BASU (DECEASED BY L.R'S) AND OTHERS (SUNIL's CASE) ii. AIR 1982 SC 989 - SARDAR GOVINDRAO MAHADIK AND ANOTHER Vs. DEVI SHAHAI AND OTHERS (SARDAR GOVINDRAO MAHADIK's CASE) iii. AIR 1993 KERALA 242 - DAMODARAN AND OTHERS Vs. SHEKHARAN AND OTHERS (DAMODARAN's CASE)
Submission of learned counsel for respondent - owner
9. On the other hand, the learned counsel for the respondent-owner submitted that Section 53A of the TP Act do not enure to the benefit of the petitioner for the reason that there is no covenant in the agreement to sell that because of agreement to sell, the possession of the petitioner is continued and thus, nature of possession is -9- NC: 2024:KHC:5500 HRRP No. 70 of 2017 not changed. It is mere agreement to sell and in the agreement to sell, there is stipulation that the petitioner is continued in the possession as a tenant. Therefore, there is always jural relationship of tenant and owner between the petitioner and respondent respectively. Furthermore, the petitioner has not raised any ground in the revision petition before the First Revisional Court regarding agreement to sell and doctrine of part performance as provided under Section 53A of TP Act. Therefore, submitted that the possession of the petitioner on the petition schedule premises is because of tenancy, but not possession by agreement to sell. Further submitted that till today the petitioner is in continuous possession as a tenant only and his possession is not by virtue of agreement to sell. Further submitted that the agreement to sell is an unregistered document, therefore, Section 53A of the TP Act is not applicable and do not enure to the benefit of the petitioner/tenant.
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10. The learned counsel for the respondent-owner in support of his submissions places reliance on the following judgments:
i. H.K.SHARMA Vs. RAM LAL - (2019) 4 SCC 153 (H.K.SHARMA's CASE) ii. RAM KUMAR AGARWAL AND ANOTHER VS. THAWAR DAS (DEAD) THROUGH LRS.- (1999) 7 SCC 303 (RAM KUMAR AGARWAL's CASE) iii. KALAYATH NASSAR VS. STATE OF KERALA-(1999) 7 SCC 309 (KALAYATH NASSAR's CASE) iv. SRI N.B.MABEN VS. SMT.RAJASHREE B.NAYAK AND ANOTHER - 2019(2) KCCR 1249 (N.B.MABEN's CASE)
11. Upon considering the rival submissions and perusal of the record, the points that arise for consideration before this Court are:
i. Whether, under the facts and circumstances involved in the case, by virtue of agreement of sale dated 07.10.2009 between the petitioner and respondent, jural relationship between the petitioner and respondent as a tenant and owner respectively gets extinguished?
ii. Whether, under the facts and circumstances involved in the case, the
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HRRP No. 70 of 2017
petitioner-tenant is entitled for
protection of possession as per Section 53A of the TP Act by virtue of agreement of sale dated 07.10.2009 and by virtue of judgment and decree in OS.No.29/2011?
iii. What order?
ANALYSES:
12. The execution of agreement to sell is not disputed by both sides. The agreement to sell was executed on 07.10.2009 after eviction decree is passed by the Trial Court in HRC.No.1/2003 is not disputed.
13. In the said agreement to sell executed on 07.10.2009, it is the stipulation admitted by both the petitioner and respondent that the petitioner was put into monthly tenancy and litigation is pending amongst the parties in RRP.No.8/2009 on the file of Prl. District Judge, Udupi, arising out of order passed in HRC.No.1/2003 on the file of Prl. Civil Judge (Jn. Dn.), Udupi. Though, time is stipulated for execution of sale deed i.e., on or before 06.12.2009 by reserving liberty to the parties to extend the period to perform contract by mutual agreement in
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NC: 2024:KHC:5500 HRRP No. 70 of 2017 writing. Hence, time is not the essence of contract, but there is covenant in the agreement to sell that the petitioner is continued as a tenant in the petition schedule premises. There is no stipulation in the said agreement to sell regarding change in the nature of possession. In order to give protection to the petitioner is concerned under Section 53A of the TP Act, in the agreement to sell there should be a clause regarding change in the nature of possession. There is no such clause stipulated in the agreement to sell that by virtue of agreement, the petitioner is in possession or by virtue of agreement, his possession is continued rather the petitioner is proved to be continued in the premises as a tenant as it is proved from the recitals in the agreement.
14. Upon considering the grounds raised in the revision petition before the First Revisional Court, the petitioner has not raised ground that he is entitled for protection under Section 53A of TP Act on the basis of part performance. It was much urged before the First
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NC: 2024:KHC:5500 HRRP No. 70 of 2017 Revisional Court regarding jural relationship between the petitioner and respondent as tenant and owner respectively. Both the courts below on the basis of evidence on record have held that the petitioner is the tenant over the petition schedule premises, which is under the ownership of respondent. The agreement to sell proves this fact that the status of the petitioner as a tenant is continued as tenant only and his possession continued as a tenant, but his possession is not by virtue of agreement to sell. Subsequently agreement to sell might have been executed between the parties, but in order to take benefit of Section 53A of the TP Act, the possession must be by virtue of agreement to sell, but not otherwise. The transferee will get benefit of possession under Section 53A of the TP Act, which enures benefit to the transferee in the agreement to sell recognizing his possession as intending purchaser, otherwise not. In Sunil Kumar Sarkar's case (stated supra), the Gauhati High Court has dealt with regarding Section 53A of the TP Act on the basis of
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NC: 2024:KHC:5500 HRRP No. 70 of 2017 doctrine of part performance and at Paragraph No.10, the Court held as follows:
"10. If the tenant was already in possession of the property at the time of contract, what has to be decided is whether he continues in possession in part-performance of the contract. Therefore, mere continuance in possession does not satisfy the requirements under section 53A. Where the tenant is already in possession of the property as a tenant and continues in possession in his capacity as a tenant after the contract it does not necessarily follow that he continues in possession in part-performance of the contract. It is for the reason that a tenant is estopped from questioning the title of the landlord under section 116 of the Evidence Act. Therefore, the tenant must show either from the contract or some other material or evidence that he continued to possess the property not in the capacity as a tenant, for example, he does not pay the rents under one of the terms of contract to sale in order to show that his possession is not in the capacity as a tenant, but in part-performance of the contract. In addition to it, the tenant has to show that he has done some act in furtherance of the contract, such as payment of necessary taxes to show that he was liable to pay the taxes as his possession was no longer as that of a tenant. Therefore, if a tenant has been in possession in his capacity as a tenant and not in part-performance of the contract, he cannot take the plea of protection under section 53A."
15. For attracting Section 53A of the TP Act and if the petitioner is entitled for protection as for this doctrine of part performance, then the factor to be considered is to whether the petitioner is continued in possession in part performance by virtue of agreement to sell, but in the
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NC: 2024:KHC:5500 HRRP No. 70 of 2017 present case, there is no stipulation that the petitioner is continued in possession by virtue of agreement to sell, whereas it is proved that the petitioner is continued as a tenant much prior to the agreement to sell. There is no change in the nature of possession extinguishing jural relationship between the petitioner and respondent as tenant and owner. The possession of the petitioner is continued as a tenant of the respondent only. Therefore, if the tenant is in possession in the capacity as a tenant and not by way of part performance of contract, then he cannot take the benefit of protection under Section 53A of the TP Act.
16. The petitioner has successfully obtained the decree in OS.No.29/2011 and is sub-judice the said issue before this Court in an appeal, which is pending before this Court. The petitioner can claim benefit of Section 53A of the TP Act in the said appeal pending before this Court, but not when eviction proceeding is initiated under the Karnataka Rent Act. Section 53A of the TP Act recognizes
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NC: 2024:KHC:5500 HRRP No. 70 of 2017 the possession of the intending purchaser by agreement of sale by act of his part performance. Fundamentally, the nature of possession must be by virtue of agreement to sell, then only Section 53A of the TP Act is applicable otherwise not as in the instant revision proceedings, unless there is stipulation in the agreement to sell of changing the status of possession as to whether the possession is by virtue of agreement to sell or possession by virtue of tenancy. The nature of possession on these two factors decides by governing the aspect of Section 53A of the TP Act which deals with doctrine of part performance. Therefore, the remedy of taking the benefit under Section 53A of TP Act lies in the appeal pending before this Court against the decree of specific performance of contract, but not in this eviction proceeding.
17. Though, it is cited by the learned counsel for the petitioner the principle of law enunciated at Paragraph No.10 (supra), but is applicable in the present case in
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NC: 2024:KHC:5500 HRRP No. 70 of 2017 favour of the respondent. The Hon'ble Supreme Court in Sardar Govindrao Mahadik's case has dealt with Section 53A of the TP Act and laid down law and what are the conditions precedents applicable for doctrine of part performance. Whatever may be anterior to contract or merely incidental to contract, if there is no evidence on part performance, then Section 53A of the TP Act is not applicable and that is what the principle of law laid down by the Hon'ble Supreme Court in the above stated case. But the factual matrix in the instant case is different from the above stated case except the applicability of principle of law laid down in the above stated case. The said judgment is not helpful in favour of the petitioner.
18. The Kerala High Court in Damodaran's case dealing with Section 53A of the TP Act and agreement for mortgage of property with transfer of possession to mortgagee for limited period held that the mortgagee is not entitled to continue possession beyond the stipulated period by invoking doctrine of part performance. Hence,
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NC: 2024:KHC:5500 HRRP No. 70 of 2017 the transferor is entitled to decree of recovery of possession.
19. Having difference of factual matrix in the above stated case and in the present case, the above said citations are not applicable to the present case. In the instant case, the nature of possession is continued by virtue of tenant only and not by virtue of agreement to sell. This difference of factual matrix between the cases above stated and in the instant case, the said judgments are not helpful to the petitioner.
20. The Hon'ble Supreme Court in the case of H.K.Sharma's case (stated supra) on dealing with do12ctrine of merger, at paragraph Nos.22, 23 and 24 held as follows:
"22. The question, which arises for consideration in these appeals, is when the lessor and the lessee enters into an agreement for sale/purchase of the tenanted premises where the lessor agrees to sell the tenanted premises to his lessee for consideration on certain conditions, whether, as a result of entering into such agreement, the jural relationship of lessor and the lessee in relation to the leased
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NC: 2024:KHC:5500 HRRP No. 70 of 2017 property comes to an end and, if so, whether it results in determination of the lease.
23. In other words, the question that arises for consideration is when the lessor enters into an agreement to sell the tenanted property to his lessee during the subsistence of the lease, whether execution of such agreement would ipso facto result in determination of the lease and severe the relationship of lessor and the lessee in relation to the leased property.
24. In our considered opinion, the aforementioned question has to be decided keeping in view the provisions of Section 111 of the TP Act and the intention of the parties to the lease -- whether the parties intended to surrender the lease on execution of such agreement in relation to the tenanted premises or they intended to keep the lease subsisting notwithstanding the execution of such agreement."
21. It is argued on Section 111(e) of the TP Act that the decree for specific performance granted merges with the eviction proceeding. Therefore, till decision taken in the appeal against the grant of specific performance, the petitioner cannot be vacated and thus, his possession be protected. Section 111(e) of the TP Act is not applicable in the present case for the reason that there are two independent proceedings i.e., one simple eviction
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NC: 2024:KHC:5500 HRRP No. 70 of 2017 proceeding contending that there is jural relationship between the tenant and owner between the petitioner and respondent and another one is suit for specific performance of contract. Therefore, the said Section 111(e) of the TP Act is not applicable and not enure to the benefit of the petitioner.
22. In H.K.Sharma's case (stated supra) the fact is that though there was an agreement to sell and contains nine conditions, none of the conditions provides muchless in its specific terms as to what will be the nature of possession. There is no condition in the present case also in the agreement for sale dated 07.10.2009 that the petitioner has surrendered his tenancy and he continued in possession of the property by virtue of agreement for sale.
23. Sections 105 to 107 of TP Act govern the law of lease. There must be express surrender of the tenancy right by the lessee to the lessor and the possession must be by virtue of agreement to sell, but this is absent in the agreement for sale in the present case. Therefore, these
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NC: 2024:KHC:5500 HRRP No. 70 of 2017 facts, circumstances and evidence revealed that the petitioner is not entitled for benefit of Section 53A of TP Act. The remedy of taking benefit of Section 53A of the TP Act lies to the petitioner in the suit filed for specific performance of contract and in the appeal filed against the decree, but not in the present proceedings of eviction initiated under the Rent Act. What is paramount thing considered in the present case is whether there is a jural relationship of tenant and owner between the parties. In case the petitioner succeeds in the appeal in getting confirmation of the decree passed in specific performance of contract even if the petitioner is ousted of possession, he is entitled to benefit of decree of specific performance of contract. Therefore, the rights in this regard of the parties in both proceedings are different. Before the first revisional court the plea of Section 53A is not taken and for the first time submission is canvassed before this Court in this second revisional petition. However, this Court has considered the submission canvassed by the learned counsel for the petitioner regarding doctrine of part
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NC: 2024:KHC:5500 HRRP No. 70 of 2017 performance and held that the petitioner is not entitled to take benefit under Section 53A of the TP Act for the reasons recorded above. Accordingly, I answer Points No.1 and 2 in the negative.
POINT NO.3:
24. In the light of above, the petition is found to be devoid of merits. Thus, it is liable to be dismissed.
25. Accordingly, I proceed to pass the following:
ORDER (1) The revision petition is dismissed.
(2) The judgment and decree passed in R.R.P.No.8/2009 dated 12.08.2017 by thte Prl. District Judge, Udupi District, Udupi, and judgment and decree passed in H.R.C. No.1/2003 dated 28.02.2009 by Principal Civil Judge (Jr.Dn.), Udupi, are hereby confirmed.
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NC: 2024:KHC:5500 HRRP No. 70 of 2017 (3) It is made clear that this order shall not influence the appeal pending before this Court on the issue of specific performance of contract.
(4) No order as to costs.
Sd/-
JUDGE PB: Para 1 to 20 DR: Para 21 to 23 LIST NO.: 2 SL NO.: 2