Karnataka High Court
Mangalamba vs Sulochana Bai on 1 August, 1988
Equivalent citations: ILR1988KAR3374, 1988(3)KARLJ437
JUDGMENT Shyamasundar, J.
1. Regular Second Appeal 860 of 1978 is by the plaintiff in O.S.210 of 1967, whereas Regular Second Appeals 883 and 964 of 1978 are by the defendants in O.S. 10 of 1970. A common point that arises in these appeals is the question of law touching their right to the suit property being urban property from which the occupants - the defendants are not sought to be dislodged by the plaintiffs.
2. The question that arises for consideration in all these appeals is whether having regard to the case of the plaintiffs in all these cases, they ought to have been relegated to proceedings under the Rent Control Act and the Courts should not have investigated the controversy between them in the suits before the Courts below, The point with 3 little ramification and elaboration is as follows :
In all these cases, the plaintiffs found their title to the suit properties being threatened in one case namely R.S.A. 860/78 being a house property in K.G.F and in the other case being an open site in the City of Bellary by the defendants in possession, who either sought to set up title in themselves or set up title in the third parties, the result was the plaintiffs being apprehensive of their rights and consequent jeopardy in virtue of the denial of the same by the defendant, who according to the plaintiffs were tenants in possession, filed the suits of which these appeals arise, for a declaration that they were the owners of the suit property and for possession thereof from the defendant. RSA. 860 of 1978 arose out of the suit filed in O.S.210/67 on the file of the Munsiff, KGF, seeking for a declaration that the plaintiffs were the owners of suit property and for possession thereof from the defendants. Similarly the suit filed before the Munsiff, Bellary, in O.S. 10 of 1970 by the plaintiff, currently the respondent in this Court, was also for a declaration that the plaintiff was the lawful owner of the suit property and for possession thereof from the defendants, who were his tenants. In the suit before the Munsiff at K.G.F., the defendants not merely denied that they were the tenants of the suit property, but asserted that they were the owners thereof and had at no time parted with title to the suit property, which continued to be theirs despite a sale in favour of the plaintiff by their father. They contended that the sale was in fact no sale at all and never affected their rights and interest in the suit property. Therefore, they denied the plaintiff's entitlement to the same and resisted the endeavour made for taking possession of the same from them. In a faint manner they also pleaded immunity from ejection on the basis of the Mysore Rent Control Act, which was then in force, in the town of Kolar Gold Fields the Old Mysore Rent Control Act of 1951 was in force. Under the provisions of that Act, which are almost part mater/a with the Karnataka Rent Control Act, 1964, possession of the premises affected by that Act had to be secured only through the medium of a proceeding instituted under the provisions of the Act and not otherwise. The bar of the suit for ejection on the basis of the regulation of their rights by the Rent Control Act was faintly pleaded and on the basis of that plea, an issue had been framed suggesting the suit was not maintainable because the defendants had pleaded in para 10 of the written statement that in view of the defendants tenancy, as pleaded by the plaintiff, the suit was thereby not maintainable. The relevant issue reads -
"Whether the suit is not maintainable as pleaded by defendants in para 10 of their written statement?"
There are many other issues in the suit to which it is not necessary to call any attention.
3. However, in the suit O.S. 10 of 1970 there appears to have been no plea touching the defendants' rights under the Rent Control Act and consequently there is no issue at all bearing on this point. The Court of the Munsiff of K.G.F., decreed the suit notwithstanding the objections raised and directed recovery of possession of the suit property by the plaintiff, after declaring their title thereto. On appeal the learned Civil Judge proceeded to non-suit the plaintiff on a short ground of non-issuance of a notice under Section 111(g) of the Transfer of Property Act, since the suit for ejection was based primarily on the denial of the defendants of the plaintiff's title to the suit property. The learned Civil Judge held possession being claimed on the basis of forfeiture of tenancy, it was only appropriate that these should have been a notice of forfeiture under Section 111(g) of the Transfer of Property Act. He then went on to hold that in the absence of such a notice possession on ground of forfeiture of tenancy could not have been ordered. It may be mentioned that the plaintiff in that suit had issued a notice under Section 106 of the Transfer of Property Act terminating the defendants' tenancy and as a matter of fact it was in the reply, which they issued as per Exhibit P-7. they set up title in themselves and in that process had denied the plaintiff's title. That was the reason why the plaintiff went to Court seeking declaration of his title and for recovery of possession.
4. In the other suit O.S.10 of 1970, there were two defendants and both of them denied title on the plaintiff, set up title in the Government and the Municipality. As already mentioned they did not plead the bar of the Rent Control Act in opposition to the suit.
5. The trial Court, in the first instance, over-ruled all defences and decreed the suit. There were appeals from the Judgment and decree, which later resulted in a remand of the entire case back to the Munsiff with a direction to dispose of the suit afresh with particular reference to a set of new issues framed by the Appellate Court. The Court was also directed to implead the Government and the Municipality as party defendants and to dispose of the suit afresh on merits.
6. On remand, the trial Court very dutifully conformed to the direction of the Appellate Court by impleading the Government and the Municipality as party defendants to the suit duly summoning them to appear before it. In due course, both Government and the Municipality having appeared before the Court below, it would appear, failed to affirm the defendant's stand regarding title to the suit property, in them. They did not support that case at all. With the result, once again after a denovo contest between the parties, the decree made on the earlier occasion came to be restored.There were again appeals to the Civil Judge in R.A. 96 and 97 of 1977 by the defendants. Both those appeals were heard together and disposed of by the learned Civil Judge under a common order made on 30-6-1978 Both the appeals have been dismissed.
7. In the appeals the point now in focus had been canvassed for the first time by relying on the adventitious circumstances of the property in question being governed by the Rent Control Act in. force in the City of Bellary. It had been urged that having regard to the plaintiff's case that the defendants were tenants of the suit property, the appropriate course was to sue for their ejection in a properly constituted proceeding under the Rent Control Act instead of a suit before the Court of the Munsiff seeking a decree for possession. The learned Civil Judge dealt with this aspect of the matter and went on to reject the aforesaid point indicating that the defendants in the written statement had asserted that the plaintiff had no right to seek possession from the defendants treating them as tenants basing himself on the pleadings of the case pointing out that the defendants had denied plaintiff's title and set up title in third Demons, Civil Judge held that after pleading a case of jus tertii cannot now be urged the suit was not maintainable in view of the alleged bar under the Rent Control Act. It is the correctness of this Judgment which is for consideration in the two second appeals RSA.694 and 883 of 1978.
8. Related to them a subsequent development which affected the appeal in R.S.A.964 of 1978 is the fact of possession of the suit property in the possession of the appellant having since been taken by the respondents -plaintiffs in an execution proceedings of recent origin. Mr. D.L.N. Rao, learned Counsel appearing for the respondent brings to my notice the above said development, which would be of some materiality in regard to adjustment of equities, if any, such as granting of time etc. The appellant being out of possession, if his entitlement to possession is not to be decreed, the question of granting time to deliver possession would not arise. This is an aspect to be borne in mind.
9. Now for the point raised for consideration I shall deal with the same with particular reference to the facts of the case in RSA 964 and 883 of 1978, for in those cases there was no plea as such in the written statement of the defendants claiming the benefit or protection of the Rent Control Act. The defendants took their stand touching the embargo under the Rent Control Act for the first time when their appeals went before the Civil Judge on the second occasion. It does not appear as if on the first occasion parties had found it necessary to focus attention on this point. Earlier, there was no debate. It is only on the second occasion, when the appeals in R.A.96 and 97 of 1977 were filed before the Civil Judge he was asked to go into and consider this question touching the maintainability of the suit in the light of the prevalence of the Rent Control Act and the protection it afforded to the defendants. None-the-less this matter has been squarely met and dealt with by the Civil Judge, who has rightly pointed out that the controversy regarding the existence of the association of landlord and tenant between the parties has been raised by the defendants and not by the plaintiff. The plaintiff, no doubt, claimed them as tenants. But the defendants resisted such a claim and went to the extent of setting up title in. third parties, who later turned out to be absolutely dis-interested in taking advantage of the generosity of the defendants in setting up title on them. The defendants having pleaded that it was either the Government or the Municipality, who was the owner of the suit property, later when both of them were imported into the suit in obedience to the direction of the Appellate Court, both declared that they had no interest in the suit property at all. Consequently and without more the plea of jus tertii put forward by the defendants turned out to be clearly a hollow claim. The question is whether in those circumstances, the Court was still bound to give credence to the defendants' stand and deny relief to the plaintiff.
10. It is no doubt true that in respect of properties affected by the Rent Control Act, jurisdiction to award possession to the landlord vests exclusively in the Court under the Act. But then in a case where one side claims the other as the tenant, but the other side denies that status, would the jurisdiction of the Rent Control Court obtained, is in fact the question in focus. It is trite law that jurisdiction of the Court under the Rent Act obtains only where there is no dispute in regard to vinculum juris i.e., the relationship between the parties is that of landlord and tenant. If that relationship is denied or disputed, the Court under the Rent Control Act has no jurisdiction to decide that matter particularly where it raises complicated questions. AS a rule parties are referred to a suit to sort out this wrangle touching title, In this connection reference can be made usefully to the decision in PRATAP SINGH v. JAIBUNNISA BEGUM, .
11. To say in these cases jurisdiction of the Civil Court did obtain, it is not necessary to go to the length of ascertaining whether if those cases had gone before the Court under the Rent Control Act, the controversy touching the existence or otherwise of relationship of landlord and tenant between the parties could not have been resolved by that Court because of the complex dimensions involved therein. But suffice it to note that in these cases, the defendants did not themselves seek the protection or immunity from action based on the protection granted to them under the Rent Control Act. It is needless to add that herein the plaintiff had been driven to the Court by the stand taken on behalf of the defendants denying title of the plaintiff. The denial having raised an apprehension in the mind of the plaintiff giving rise to some anxiety to him because of the denial of his title to the property, he had, therefore, to go to a Civil Court to establish his title and it is only as a consequence and incidental thereto he asked for possession from a person. who was not prepared to acknowledge his superior right as owner of the suit property. The plaintiff does not seek for any declaration that not merely he is the owner but the defendants are the tenants under him in the suit property. Such is not the declaration he seeks for. He does not go to that length. Fed up by the tantrums of the defendants, who despite being his tenans for years and having acknowledged his right to the property suddenly turned round and denied his title and what is more set up title in somebody else. The question how really is whether such a person should be assisted by founding a right in him granting him an amnesty from ejection, because the plaintiff is stated to have chosen a wrong forum to recover possession.
12. Mr. Ramachandra appearing for the appellant in these cases Cites in this connection a decision of this Court in MOHAMMED QASIM v. MOHAMMED MAINUDDlN AND ORS., AIR 1974 Karnataka 113. Therein His Lordship Mr. Malimath, as he then was, held that as the defendant had been treated as a tenant of the premises under the Rent Control Act by the plaintiff, a decree for recovery of possession could not be passed in view of the bar. contained in Section 21(1). His Lordship further pointed, out that the bar contained in Sub-section (1) is against the Court or other authority making a decree or order for recovery of possession in favour of the landlord but against the tenant and if the Court came to the conclusion that it was required to make a decree in favour of the landlord and against the tenant in respect of a premises to which the Act applies, the bar contained in Sub-section (1) gets attracted, irrespective of the question whether the defendant had taken the plea that he was a tenant of the premises and was therefore entitled to such protection. The enunciation made by His Lordship is referred to in the head-note and is to the following effect -
"The bar contained in Sub-section (1) is against the Court or other authority making a decree or order for recovery of possession in favour of the landlord and against the tenant. If the Court comes to the conclusion that it is required to make a decree in favour of the landlord and against the tenant in respect of a premises to which the Act applies, the bar contained in Sub-section (1) gets attracted, whether or not the defendant has taken the plea that he is a tenant of the premises."
13. Formidable as the said authority is and in other circumstances would have been binding on me, I am however to point out that the view of law as it obtained in the decision referred to supra has since undergone a sea change in the light of the pronouncement of the Supreme Court in SULTAN AND ORS. v. GANESH AND ORS., . Their Lordships of the Supreme Court have pointed out in that case that in order to claim the benefit of the Rent Act, the same should be fortified by a forthright plea by the defendant and what is more in a suit for possession based on title, a defendant cannot claim protection under the Rent Act. That was a case in which the plaintiff aggrieved by the denial of title by the defendant, whom he claimed to be a tenant under his vendor had filed a suit for declaration and possession. He succeeded in all the Courts. But before the Supreme Court, a plea was raised on the basis of the plaintiff's case that on the basis of the plaintiff's case that he was a tenant of the suit premises, he was there by entitled to the protection of the Rent Control Act. Rejecting the said plea, their Lordships pointed out:
"In a suit for declaration of title and possession filed by the plaintiff who claimed to have purchased the premises, the defendant who was in possession, claimed title by adverse possession against the vendor. The defendant never raised the plea that he was the tenant of the vendor and on the contrary denied the relationship of landlord and tenant. The plaintiff had also claimed a decree for mesne profits and rent. The decree for possession and rent was passed by lower Courts.
In this view, the defendant in appeal before the Supreme Court could not claim protection of the Rent Act since he relied on title oh basis of adverse possession and had never raised the plea before the lower Courts that he was entitled to protection under the Rent Act."
It was held defendant cannot take advantage of a passing reference made by the plaintiff to the debated status of the defendant as a tenant and this was particularly so when the defendant himself was not anxious to acknowledge that status.
14. in the light of the pronouncement of the Supreme Court aforesaid, it would be difficult to follow the Judgment of this Court in Mohammed Qasim's case referred to supra since the ratio in that decision must be taken to have been considerably whittled down by the decision of the Supreme Court indicated above. Therefore and without more, I must say the point raised herein does not assist the appellants in these cases, since they have not sought for protection or benefit of the Act, it is futile for them to contend that the plaintiff having treated them as tenants they were, therefore, entitled to protection under the Rent Act. This position appears to have been correctly summed up by Chandrakantaraj Urs, J., in RACHAVVA & ANR. v. KARIYAPPA SIDDAPPA AND ANR., 1981(1) KLJ 186 wherein His Lordship made the following enunciation -
"Then is some force in this argument as a person cannot be given the benefit of right to continue as tenant and also contest the tile of the landlord at the same time."
Similar view had been taken by Sabhahit, J., in NAGARAJA RAO v. KRISHNA RAO by L.Rs., 1983(1) KLJ 344 His Lordship had said --
"Where the defendant in a suit for possession did not claim to be a tenant under the plaintiff and even denied the title of the plaintiff, he thereby forfeits the tenancy right if any and there is no bar to order eviction and the Rent Control Act is not attracted."
This decision has been since dissented by Nesargi, J., in GOVINDARAJA MUDALIAR v. UNIVERSITY OF MYSORE, . His Lordship relying on the pronouncement of the Supreme Court in DHANPAL CHETTIAR v. YESODAI AMMAL, holds that in cases of statutory tenancies regulated by Rent Control Act, it was not necessary to issue a suit notice under Section 106 of the Transfer of Property Act, then went on to hold the decision in NAGARAJA RAO v. M.K. KRISHNA RAO had to be treated as rendered per incuriam. I do not, however wish to go into this controversy since it is unnecessary for my purpose to rely either on the decision of Sabhahit, J., 1981(1) KLJ 186 or on the later decision of Nesargi, J., which I have however noticed.
15. In the light of the above discussion it becomes clear that appeals R.S.A. 964 of 1978 and R.S.A. 883 of 1978 fail and are liable to be dismissed. It is ordered accordingly. The appellant in R.S.A. 883 of 1978 is said to be in possession of the suit property and on his behalf a plea is made for granting one year time to deliver possession of the premises. Sri D.L.N. Rao, learned Counsel for the respondents - plaintiff submits that these litigations began in the year 1970 and so only a short reprieve of 3 months time may be granted. It is no doubt true that these litigations have been quite long drawn and the plaintiff has been successfully kept out of possession all these years, Mr. Rao says that there is only a temporary structure on the suit premises, which can be removed and taken away conveniently by the defendant for being erected elsewhere. Whatever that may be it seems to me that ends of justice would be met with by granting six months time to the defendant to vacate and deliver vacant possession of the portion of the suit property in his possession. He is therefore, directed to vacate and deliver vacant possession of the suit property on or before 1 -2-1989. The question of granting time to the appellant in R.S.A.964 of 1978 does not arise in the light of the statement made by Mr. Rao that his client has already taken possession of the property in execution.
16. In the result, these two appeals i.e., R.S.A. 964 and 883 of 1978 fail and are dismissed without any order as to costs. The decrees of the Courts below are confirmed, subject to the direction regarding granting of time to the appellant in R.S.A. 883 of 1978 as indicated supra.
17. Coming now to the case of appellant in R.S.A.860 of 1978, there appear to be a slight difference. The question is whether it would necessitate taking a different view apart from what I have just now expressed. Herein also, the defendants claim the benefit of the Rent Control Act. The relevant para in the written statement is as follows :
"That the plaintiff in as much as he alleges possession and enjoyment and also tenancy the suit is not maintainable in view of the enactment of Mysore Rent Control Act."
The issue raised on the basis of the plea is not very definite and distinct. It is quite vague as could be seen from the said issue, which is in these terms.-
"Whether the suit is not maintainable as pleaded by defendants in para 10 of their written statement?"
18. The Civil Judge has not gone into this aspect of the matter. The Munsiff has decreed the suit. The controversy before the Civil Judge as to the tenability of the claim for ejection even in the absence of a notice under Section 111(g) of the Transfer of Property Act, is presently of no consequence if the defendants are statutory tenants governed by the Rent Control Act, as pointed out by Nesargi, J., in Govindaraja Mudaliar v. University of Mysore, . A reading of the written statement and the reply notice Exhibit P-7 clearly goes to show that in any view of the matter the defendants were not interested in arrogating to themselves the status of tenant. On the contrary they made a firm effort to impress on the Court the fact that the property was theirs and has remained theirs at all times. Their contention was the alienation of the property by Balakrishna Naidu, who was the husband of first defendant and father of defendants 2 and 3 was nonest, law and had not affected their right, title and interest in the suit property. On the other hand, they also claim the suit to be barred under Section 144 old and new Section 65 of the Limitation Act, because they were in peaceful possession that was hostile, open, uninterrupted notorious, exclusive and continuous. On this plea, the Munsiff raised Issue No. 6 in the suit calling upon the parties to establish whether the suit was barred by limitation. It seems to me on the principle of the decision in Sultan and ors. v. Ganesh and ors., which enjoins the defendant to claim the benefit of the Rent Protection Act dehors any dispute regarding the relationship of landlord and tenant and on the basis of the pronouncement of Chandrakantaraj Urs, J., in Rachavva and anr. v. Kariyappa Siddappa and anr. 1981(1) KLJ 186, holding that a person cannot say that he is a tenant at the same time dispute the landlord's title claiming adverse possession, a party litigant cannot take such a stand.
19. It also seems to me the plea touching the defendant's right to immunity from ejection on the basis of the Rent Control Act is absolutely bald and vague as indicated earlier. Having said that the property aforesaid was not conveyed to the plaintiff at all as asserted by the plaintiff and that they had continued to be the owners of the suit property at all times and that they had even otherwise perfected their title by adverse possession, it was indeed futile for the defendants to say that inspite of all this they were still entitled to masquerade as tenants for the purpose of claiming the benefit of the Rent Control Act. After having deliberately denied the title of the plaintiff and having driven him to the Court for seeking a declaration of his title, the endeavour now made to non-suit him on the ground that he should have sought relief in a different forum under the auspices of the Rent Control Act is allegedly unbecoming.
20. Prima facie on the case of the defendants setting up title in themselves, the Rent Control Court would have no jurisdiction. If that be so, a plea that defendants were nonetheless entitled to the protection of the Rent Control Act was one which was clearly vexatious if not frivolous. Such a plea deserves to be struck off in exercise of the power of the Court under Order 6 Rule 16 of the Code of Civil Procedure. Therefore, it is I proceed to strike off the plea but forward by the defendants in para 10 of the written statement and in consequence also delete Issue No. 7 bearing on the same.
21. Under the circumstances, and in the light of this development, without more, the defendants are rendered incompetent to claim the protection of the Rent Control Act.
22. In the result, therefore, the appeal R.S.A. 860 of 1978 succeeds and is allowed. The Judgment and decree of the Civil Judge is hereby reversed and in lieu of the same, the Judgment and decree of the Munsiff made in O.S. 210 of 1967 is hereby restored. I grant one year's time from this date to the defendants to deliver vacant possession of the suit property to the plaintiff. I direct the parties to bear their own costs throughout.