Sri.Nirmal Kumar Jain vs Sri.A Mohammed Noor on 9 March, 2010

[Cites 30, Cited by 0]

Karnataka High Court

Sri.Nirmal Kumar Jain vs Sri.A Mohammed Noor on 9 March, 2010

Equivalent citations: 2010 (3) AIR KAR R 643

Bench: Aravind Kumar

IN THE HIGH COURT OF KARNATAKA. BAN

DATED THIS THE 9th DAY OF MARCH 2010 2 '] ~ f'.;<

BEFORE

THE I-IONBLE MR. JUSTICE   

HRRP.No 27 OF 2d«10%%%k %
BETWEEN : A  Vi

Sri. Ninnal Kumar   A  _ 
S/0. Sn'. Kastur Chan-d,_   g   A
Aged about 51 years,      _ 
Shop No.59, Su1tanji"Guif1ta"Riad,V1 .V  
Civil Stationg *_- 1_ i     %%%% 
Bangalore 55O.%V%051,  

V        Petitioner
(By  M. V "D.<« Adv ~j

 

1. sn, A. M6ha;mz1iVedA'1\§(§E).f,

 Late A. Vfvﬁohammed Yusuf,

 V'  . AAgéd5.-abouj: 69 yééifs.

 2.  

W7,/0. _Sr1'_.v Mohammed N001",
Aged a.!:.)out 59 years.

n » ' Both rd/at D. N0.286/ 1,

 --.. ThiInmajah Road,
'Shivajinagar,

VA  x ..iBanga10re ~ 560 051.



3. Sri. Hussain, -

Father's name not known to the

Petitioner, major,  =   i

Shop no.59, Sultanji Gunta Road,_..._ _  V

Civil Station, Bangalore ~--.560. M .. g  
 j;  Respondents

[By Smt. M. N. Prabh'ar_nani," Addv. for 

This HRRP is filed u/°s._48_( 1] of Karnataka Rent
Act, against the order d.at'ec¥V;:'-- 23.10.2009 "passed in
H.R.C 134/2006 on the ﬁle of th€:_'Ch1efJudge, Court of
Small Causes, Bangalorre;>.,a1lowii1gr,tlie petition filed
under section 27(2)(r]..o.f _Karn.ataka.Ren.t"Act.,'etc.

This a3ppe?al_.co1'ning on for Hearing this day, the
Court madethe"-fo'Eiow1i1gf'*-- V' 

hfoaesn
"IA"he' _Revisio.n :_4"P.e'titioner has questioned the

correctness anv_d'the'V'legality of judgment passed in HRC

 "by the Chief Judge, Small Causes Court,

I   23.10.2009. The parties are referred to

as"per rank before court below.

   2. The petitioner initiated eviction proceedings

  against one Sri. Hussain in HRC No. lO437/ 1998 on the

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file of the 15' Additional Small Causes Judge, Bangalore

under the then Karnataka Rent Control Act, 

Section 21(i](h) & (j) seeking eviction of  

respect of premises Shop No.E§9';" 
Civil Station, Bangalore vwhich'  
described in the petitionVlasjscheduleep  the
said petition. It was.-'cyonteiideddinpeethe saeidpevtition that
they required the  for their
bonafide   petitioner Mr.
Mohammiéd   any avocation and
intended" 'cold storage for animal
food    as well in the adjacent shops

which is ti'nd:er.t.heA"tenancy of Dr. Jayaprakash and it

  Wa:si:center.i.ded  is ideal and suitable for the is'

eefproposed business and it was contended

  this requirement also into consideration

the petition schedule property was purchased by them.

  also contended that respondent is a statutory

he   ..._t.enant under petitioner whereby they claimed no notice

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of attornment of tenancy is required to be given as

provided under the provisions of Transfer of

Act to the respondent. On service of notice?'  

therein i.e., Mr. Hussein initiai'1y»  9
represented though Mr. Narayan 
on his no objection to  other 
Janardhan, Advocate  néoivstatement of

objections were filed. Q VA

3.   [petitioner No.1, Mr.
MoharnIr1ed..VN'o'e,r_ carneV_.to"be_VVexa1nined as PW--1. There

was no crossée:;arninat.ion. and it was taken as nil.

V. 4. Inﬁ"th_e said  petition an application came to

be'-':i.jfiled~. under 1 Rule 8(a) by one Mr. Nirmal

  Kastur Chand seeking permission of

the44_coL:u't come on record as one of the respondent. It

 eohtended in the affidavit supporting the

 applrication that he is in possession of the petition

Vh..,schedu1e premises and there is no relationship of

 '



landlord and tenant between him and the petitioners

therein and he was paying rent to 

Pandrinathar Temple, Tiruchi. The 

came to be resisted by the petitioners  it 0

detailed objections and  "pp
application came to    dtfll
31.03.2003 and sarne_has,reached:tinalitysince it was

not challenged.

5.   jjptcllljellilmfeviction petition
    dismissed for non-
 29.11.2004. On dismissal of
the    came be to ﬁled by the

petitioiiers  Section 27(2)[b)&(r] and Section 31 of

   Rent Act, 1999 before the Principal

  :S_ma;il"Causes Court, Bangalore on 01.04.2006.

  was arrayed as 154 respondent and Nirmai

 E{:e-gain was arrayed as the 2M5 respondent. The 1st

respondent on service of notice remained absent and as

4/



such came to be placed exparte. Respondent No.2

entered appearance and filed objections to

petition on 4.3.2007. The contentions  

petition was that petitionersvwunder 'isale "dated 0

29.08.2008 had purchased the

valuable consideration    
premises is situatedsnd the let' respondent
was duly attorned  is the tenant
under petitiongy  of Rs. 100/ -- and
tenancy   every English Calendar
month"ant1V.V.;¢f;fids':  vthe month. It was further
conteride'd«'.  is the sub tenant of 15*

responden4t'occuypyin'g petition schedule shop.

  further contended that they required

"schedulelifprernises for their own use and occupation,

--V including adjacent shops occupied by another

it V0 V'  .. tenant l)r.Jayaprakash for commencing business of cold

'  storage for sale of non--vegetarian products like, mutton.

W



chicken, ﬁsh and vegetables to eke out his livelihood. It
was also contended that first petitioner is rnore

than 65 years and as such possession wasasioughti

invoking Section 31 of Rent Act, ~1~999.  it  'é  l

7. Second respondepnt  ﬁlinaglh'

statement of objections,  that petition
was not maintainaidle:'~ spincepe vvere not the
owners of petition lgtwas contended
that proper'i:;:Y<  Naidu
and   executed a will on
"interest in favour of his mother
 her demise it should go to

 lviigu lianvdaripnathar Temple, Tiruchi. It was

.A  said Govindamma had not right to

 alienateélthefschedule property and said the alienation

byl.uSrnt-Govindamma in favour of Sri.Sundarajulu Naidu

 V' .. forvaltiable consideration on 20.12. 1943 is not binding.

 ilvvas also contended that Arul Migu Pandarinathar

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II

3. Section 43 of the Act is a mandatory provision

and petitioners have themselves contezcxde-cl_lthat

respondent N 0.2 is a rank trespassejr"an.d--p_
the Court of Small Causes could__no.t  the 

jurisdiction and give its-iverdicpt.".4p

4. When there is dispute  

relationship, thesicoipirt below  ..3have.t"

referred the parties" Civil Vllcoiiri  tolgestablish
their title andit cou'ld'*notV:vii.ave adjudicated the
5. T he allegedZreqtiirerneiiitof landlord even if
it is"  a:cceipted':_'asV ejiisitiing on the date of
the   petition would be

~--Without'iiprejiidice 'towthe revision petitioners

 right  of eviction orders passed by

't_h4e_I~lon'b"le'  Court, in respect of four

oth'e1{shops',  need or requirement is met

 ifsince doth-«-rVfour shops are available to the

 *pe«titio_ners and there is no need or necessary to

A  :'evict:this respondent in the instant case.

A  6_..-Rebnttable presumption cast on the respondent

'~ _ having been rebutted by establishing that other

four shops are available to the landlord and
landlord has failed to discharge the burden cast

on them or establish that same is not suitable.

ée



11. The learned counsel has relied upen the

following decisions in support of his submissiohiszhﬂg:.

1. Regarding rebuttable presumptioﬁ  

a. ILR 2004 Kai' 3288;' 

G. Shoukath :;_and. f}   
Chandraprakash    N =  

. (2004) 3       

P. Suryanarayana {dead}  "LR:5s vs. K.S,
Mudd;sgpwram'r:m:':   

. ILR 2003' K3193-3fé3';*1     3

Smt. Yashoda 'Bat _vS:'  Lalcshmamma

V   V' 
. _"-Sa'r"TLanat.h.-aSa.. _ABa::idi vs. Chanabasappa
 Ofhers 3 

2. Regarljing;fi1£aJ'~-fe§afiai1'shi1§

a. AlR'=QO02) ']._ °s}f:cf9s:)'

Q,   

_Rqjen"dra Tiwajy 13$. Basudeo Prasad and
 another " 

2§)é33.{:1'}ar:ccR 335
'Aye$iaa'-Begum vs. Shahzadi

 209? V%m A1R Kar R 377
R.V"Abbaiah Reddy (deceased by LRSJ and
others us. Udaya Chandra

$2009 (3) AIR Kar R 112
Smt. Sabitha Devi and another vs. Smt.
S.K. Shreedevi

5%/..



3. Regarding sale deed (not registered 
eye of law): ' i

a. AIR1962AP226    
Nandigam    
Burugupalli Srikrishntigmiirﬂiiivaﬁdiathers  :_j

b. AIR 1960 J&K   A    
Nabir Ganai vs. Mohd. ISrna.il=G_c'2_=ndib and
others  . "  

C. AIR 2009  121181;?" 
Jyotirmay Bhaftaeharyce  Bhusan
Guha' anc1»--oth:ers'- VAnic1I Roy and
      
d. i'AIi?'."«]oi96':i._ se545     

 ._'1're.nsaction
1'  AIR  1213
-V V_ VDe?U1'Das D5. Mohan Lal
~11). A1R"'1961 so 545

 e4§:gA1R 1961 so 1747
V '  f;fRam Saran Lall and others vs. Mst. Domini
" A Kuer and others

Ki'Vﬂf».:O111-thedoasis of the above he seeks for allowing of the

i '   revision petition. W"



12. Per contra Srnt.Prabhamani, learned counsel

would contend that similar plea namely 

relationship had been raised by other tenants  

of same premises in HRC   'C

1565/1998, 1566/1998 and the  we l.yheat't1a;e1a_V

against the tenants   oft'

HRRP 417, 426,  belfore this Court
and this Court had petitions by
order dated,  "the landlord to
approach  ﬁlyrljllgetting his title cleared
whiehlweei  the landlord before the
Hon'ble  in Civil Appeal No.4871-

487V4__/V2OOl5" and..the"Hon'ble Supreme Court by its order

'dated :8:-8"~20O$Vlhadl allowed the Civil appeals and set

  aside   passed by this Court and directed that

the,' proceedings should go on before the Rent Court

 and accordingly the proceedings had continued in

  proceedings. By relying upon the judgment of the

Cl   ..,_Elon'b1e Supreme Court passed in Civil Appeal No.4.-87 L

W



4874/2005 she would contend that same is sqnarely

applicable to the facts of the present 

accordingly prays that petitioner herein  

entitled to take such a plea and  for'

rejection of the revision petition;  A it

13. She would alsollvlvcontend llltliatllﬂjprlefsumption
under Section    V the said
presumption has   of the landlord
in the   lsiibmits that there is

no inﬁrmity'   the Court below.

  that in respect of four

shops for' lw-hichyevictionl petitions were instituted by her

 "  _ client seeking ekdedoh of the tenants on the ground that

 'hy name Sahil Pasha and Suhail Pasha

intend  mutton stall and garment shop in the

l"-..premisv.'?_.~§' by altering the same has been accepted by the

   below and by order dated 12-3-2007 had allowed

    eviction petition and same was confirmed by this

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18-

objections ﬁled or evidence let in and hence tenant has

no locus standi to question the sale deed.

17. She would also contend  .. 

examination R.W.1 tenant himseifdaedjnéitshi4that'Vhe_'_:is:v.a

tenant and it cannot be co.ns_truedt_as a st1'ay_'admi_ssion_Vu1

and this vital admission  note bylvvithe trial
Court and accepted:..._..}:he 1' landlord and
accordingly she    basis of the
admission   held that there is

no merit in'-the tépntentibli now raised.

18. C With: to the contention regarding

jurisdiction of the trial"CVourt adjudicating raised by the

~'"~.,_learnecl-,co1;,nseidforlthe petitioner she would contend

  pleading and it was not the subject

ni'21tter for'jiconsideratlon by the Court below and it

"~..cannot___b?e raised now for the first time before this Court.

at/'



19. With regard to the jural relationship of

Landlord and tenant she would contend 

respondent Mrﬁussain had been placed 

R.W.1 in cross--exarnination ad;nitted,.'_helpllisfa "ten.ai1.t

under a temple but no documents are" 'prod1iq.g:,d to

as such and there is attornitrierit notice R15"

and R16 and thus there is-a  attornrnent and
accordingly requests the"C'oiirtl' the contention

raised by the reyision petit.ione'rf_j~-.VV '  l

  contention with regard to the
application -'Rule 1 i[d) filed before trail
Court it 'is contended  that said application came

to filed the ground that there is no jural

  land lord and tenant by virtue of final

'order  haying been passed, it is deemed to have

been "rejected and accordingly submits that said

x V' .. contention cannot be accepted. She would also contend

 respondent was not a tenant at any point of time

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20

under temple and no scrap of paper is produced before
the trial Court and in View of the admission by
respondent No.2 i.e., revision petitioner'.ihjerein
presumption under Section MB of the  
have to be raised and tenant vvojup1_§1 bg..

contending and raising the V.iss.,iie. regarding: jural

reiationship. She contencis_"'tif1at revision' petitionv --*itseiff'

is not maintainable since tenant has not -deposited the
entire arrears of rent  Section 45 of the
Rent Act petition iiab:.le.:' to-.V_be gdi'smissed as not
  "so"fa'r asltiieivzargument advanced by
the 1earn'e.d  petitioner with regard to the

alternate i4'acc'on11inod_ation if available to the landlord

  four sho'ps'Vobtained pursuant to the orders

   court she would contend that it was

requiredliiorn the sons of the petitioners and the

 requiieriient pleaded in those petitions would have no

 bearing in the instant case and sons of the petitioner

 V. .._.inciuding petitioner herein have sought eviction of the

4.2



respondent--tenant from the petition schedule premises

as well as adjacent premises occupied

Jayaprakash for their use and occupationjinp 

establish a mutton stail and establish-'_"a   V

Elaborating her submission onﬂthisz issue. she '\vo1iid._

contend that the present revision.V.petit--i.on;er'gwassiveryhV

much aware of the: .procee'din_gsV'V""pending"t before the
Court and as such  any effort to
produce the, the Court
below or   presumption to be
rajs€'5d""iﬁ~   In support of her
submissionsi  the following judgments:
_   (1) ti 'i'iLi*< 2o'oé3'ivK'a:?i; 390
1 A. 1\/Irs:1V1\'riu'radha Shenoy Vs.N.Nanjappa
  - Rule 1 1[d) of Code of Civil Procedure
C'  {ii}  1994 Kar 2264

Anar Devi Vs.Nathu Ram

V " --  Re: Estoppel Section "116 of the Evidence Act.

(iii) ILR 1985 Kai' 2367 W



22

Swamydas Vs. Krishnan
Re: Jural relationship
(iv) (a) ILR 1989 K31'. 1555
M / s Popular Automobiles s.»   
(b) HR 2004 KAR. 4782 7 it    
Silva Uddin vs]  % V   
Re: Statutory at,tovrr1me1itV:..  i'
(V) (2002) 1 sooyso'   ii
Rajendra   Prasad
Re:   premises.

 __   submission made by Smt
Prabhaiinwani,  would contend that in the

inteifloctltory V"a.1V_:V)bpVlication filed by the tenant in HRC

  objections came to be filed by the

 landlord contending therein that the

resfiondent/tenant is a "rank trespasser" and as such

it ':j:\*trl"iie1j1 'the landlord themselves have treated the

i  fnesbondent tenant as "rank trespasser" the natural

 -

corollary would be that there existed no jural relationship of landlord and tenant and nothing requires to be proved by the tenant. He contend when he is treated as a trespasser,--they of payment of rent does not arise and it of the Rent Act, the landlord the time being is receiviné'*or"'is the' rent of any premises,¥'w_het'hie"r ﬂown a'c'coi1nt or on account of or on behalil of any other person as enumerated in-the. sub-..secftion and since the very the question of paying the rent or _:tne..-'rent which has already been paid. _ to _:Pan.da.r'ina'th temple would not arise. El'ab'oi*»--a.tirig on would submit that from the date theijtent has been deposited before this Court he.ri~ce.i'.=the contention of the learned cousnel for the respondent that Revision petition is not maintainable it not to be accepted. He would also submit that

-~.--tria_1 Court has dismissed the petition under Section %,I 24 27(2)(b) of the Rent Act namely with regard to the sub letting and the landlords have not ﬁled challenging the said order and the same final and thus it would be too_1»ate.4in ll landlords to contend that first :i*esp_ondelnt{11.a_(l the premises to the second --r_espond'ent 'Le. ;.:th_e"1'ev'ision'* petitioner.

22. With of the alternate premises A rebuttable presurnptigyli. contend that rebutt_abl_e-'lt__that tenant has to lead or tender before the trial Court the alternatepipremises being available and once » is demonstrated by way of evidence the on the landlord to prove that said alternatelpremises is not suitable for the landlord and intthe instant ease he would contend that respondent -- 'landlord has failed to establish the nonmsuitabllity of the a/ 25 available alternate shops to the respondent/landlord and they have not rebutted this evidence which lies on them. Hence, he contends that the landlord cannot be accepted;to..e2;ist be kl held that said need is met by shop premises being avai1abl:e';~.._p Helwpuldl 'alsov"'contend"' V that in the four evictionp..i'petitions2 has been referred to by for the respondent/ had been ﬁled and objections have not been objections had been filed the the rent to the landlords and as the said""plea raised by the tenant with regard-."to 3'-ural relationship came to be negatived by the confirmed by this Court and approved Apex Court and he would contend in the instantcase the said facts are not present since a ' 'speciﬁc plea has been raised on this issue and evidence '' ~.----has been let in and petitioner landlord has been cross- 4/ If-!"""» 26 examined. Accordingly he prays that contentions raised in the revision petition be accepted and the revision. petition be allowed and the eviction petition respondent herein be dismissed. it it it

23. Having heard the ll parties the following points 7I:.

(i) Whether the -..rev_isi0n petitioriipresentedl'VV by the _____lrespondentetenaifit is maintainablel? to be dismissed under Sectio1i'."_ZilE';l oif..thefV_*Rent Act for non sv deposii;'_of to be due?

my r c eaie deed dated 28--9-I989 it it cannot be construed " Las alregzilstered document and no rights ilowrfrom it in favour of the purchaser and as such the petition is not ffnarntainable?

.. (liii) "V Whether the transaction of sale as it reflected in the sale deed dated 28-9-- 1989 as per Ex.P.14 should be construed as sham transaction and W :1,»

(iv) (V) ° - (vii) 27 whether such a plea is available to the respondent--tenant'?

Whether the petitioners before below have established relationship between the and' V' whether the interlocutory--app4liea'tio'1i.'_ﬁled under Order VII i1~1[d}._shou.ld:"haife been independently' A . olonsidereld . and on f V' a not being corisideredfg' order irnpugned hereini'e..y1tiai;ed*?j" ' Whether if ireslpondentetenarit has estabhshed presumption V V' = ' petitioner-landlord possessed 'aiternate«.__'pi'emises suitable for his need " and oanflbte utilised for the purpose of the saidbusiness?

""e~.V:'_Whether the order passed by the Court below suffers from any inﬁrmity either in law or on facts?

Whether the petition filed before the trial Court is not Inaintainable since the petitioner had not pleaded that the CV 28 schedule premises if less than 14 square meters and also the rent of the petition schedule is less than Rs.3,500/- and as such the petition was 1iab1e«j"'to--«.pp"b'e dismissed? 9' 9 'A "

(viii) To what order?

24. In order to appreciate the A. f3ri{rai ..contei1tio:.:is raised by the parties it would be 'necess;{p1~y.VA:to..ullarrate.it> the facts which are not in dis_p'u.te before cohsidering the points formulated hereiVi'1.ahov%e.:V. 94 V The'Wpetiti_o'Iiier«ciai-ins to have purchased the propertyﬁiltp including petition schedule preiﬁhises unddeathregistered sale deed dated 29-9-1988. 9 __on purchase of the petition schedule H with other portions from its erstwhiie owrieprs, petitioners have got issued notice of attornment 2 from there vendor Srisathyanarayana Murthy as per Ahotice of attornment dated 29«~8«~1998. Thereafterwards 4$/ 29 the petitioners have also issued notice of attornment dated 12--9--1998. _But notice of attomment issued on behalf of the petitioner has been returned shara 'returned to the sender'. The postal cover is also available ini';the"triai' These three documents issued by Sathyanarayana "not_i_ce issued by the advocége of"b{'1L@1't'V3;:Vs.?S3Vtivtionerandyyéreturned postal covers have P.16 and R17 i eviction petition came to be filed in HRC i043?/1998 i'~Sectio1i._.V:2b.'1(1:J(h) & (j) of the Karnataka Rent » .1961. in the said proceedings notice to the H 'resp'oVndue.'n.t'p'tenant Sri. Hussain came to be issued by the beiow. On service of notice respondent 2 ithereiri entered appearance through an advocate by "nanie Sri.Narayana I.Naik who ﬁled vakalathnama on V 30 1 5-2- 1999. Thereafterwards on 22- 5-2000 Sri.Janardhan, Advocate ﬁled Vakalath on behalf of respondent/I-Iussain with no objection from counsel. The said two Vakalathnamas fiied , No.1043'7/ 1998 came to be markedas in V the instant case before trial Court, did not file statement of objections the' matter as could be frorrive-:t;he"o_rder sheet of HRC 10437/1998 which has':_béen'Vp_rodii'ceC1 before Court beiow and = of the said eviction petition an interlocutory application carzéiiedytc be S3ri.Nirma1 Kumar Jain under Order » 'A8(a:]"'*--read with Section 151 of Code of Civil 'Procedur"e--.t'oCcome on record as one of the respondent. The ..s'aid.'xapp1ication has been got marked by the 2 ~ 'p'ee.uoﬁe1~ as Ex.P.8 in the instant case before the Court below. The said application came to be resisted by the C§\/ alleged landlords by filing the objections to the same which was also produced and got marked as Ex.P.i3. The said interlocutory application after adjudication to be rejected by order dated 31~3-«2003 anetiisaiie reached ﬁnality. The certiﬁed COPE" of the "

been marked before the trialv:"1Clo:n:rt:fv When the said eviction petiti:onV_Was the1"0f'croess': if examination of P.W.v1,.- bedisniissved default by order dated 29-» are not in dispute.

raised by.the_learIf1ed»* advocates for answering the points forrntilated hercinwabove chronologically. Point No.1: The learned counsel for the if 'respondentflierein Smt.Prabhamani has raised an ini4tia1V"'vobjVection as to the maintainability of the revision 2 » petition itself. It is contended by her that under Section 'V'.45"of the Act, the revision petitioner tenant would not a/ 32 be entitled to prefer and prosecute the revision petition untii and unless he deposits the entire arrears oi'-rent before this Court. It is to be noticed at that eviction petition before the Court, under only Section 27[2)[b) andI:[r] 3-1' Karnataka Rent Act and no' €_1.ain1b'i.s.'n1adeV»for. rent. In the revision petitiondkwhich is tenant it is stated to the fo1Io--vvi':1g 'effect': " _ "Note: The rerzt.-:,=.:ftotnt_ 2006 to Febmw'-gjpiso.2oiio €1:.i;"'xtﬁe[rﬁte...:of Rs.100/- per month' 5'--eha"ve-- V_ pbeeiz deposited be fore along with separate ri:.emoV".-- V in pparagraphpﬂofd the statement of objections filed bedfore"".dt'ne'=Court below, the revision petitioner tenant that petitioners have failed to prove the title oviervthe suit property and the petition is hit by provisiodn of Section 48 and aiso that there is no jural 'relationship of landiord and tenant between the revision it "petitioner and the respondents herein. it is curious to Q'//..

note that the revision petitionerwtenant has not whispered anything with regard to paymen.t"Voff..l_lrent other than in the statement of objections examinatio1'1--in-chief before theJG'O11'Ift it ' the cross-exarnination he contelrzdstthat arrears of rents . The ax contention that he ,--vyas dlatvthie rate of Rs.100/-- per monthlélltapthe since 7 or 8 years ( i.e., stopped paying rents to case as noticed deposited the rents for the i.e., the date on which the eviction petltionerianzelljrl HRC 134/2006 came to be ﬁled pelfoireif"'the.._CourtWloeloW till the date of filing of the When the respondent landlord has not de_ma.ridled the arrears of rent and has not ﬁled an application for stopping of the proceedings under it 45 or when they have not filed the petition " ~--nnder section 27[2)[a) for recovery of alleged arrears of ﬁx 34 rent, it cannot be said that petition is not rnajntainable on account of non--payment of rents. Admittedly the revision petitioner has raised a dispute with to jural relationship as to title to the property. As such, I am of the''conside'red.xopinionilthat ' present revision petition isjheldiato accordingly point No.1 is the present revision petition "before this Court and the objections:.'i_;he respondent landlord is he1'e.hy rejected: " it it .r'N(:§:_}"2:+_ji'he revision petitioner has taken the sale deed dated 28-8~ "aS....EX..P.14 is not a complete document ' Varici itgc,-a11ri"c>t_ be construed as duly registered and as such is not rnaintainable. To buttress his argument, the learned counsel for the revision petitioner A X1" nliasxelied upon the following decisions:

(1) AIR 1961 so 545

(ii) AIR 1962 AP 226

(iii) AIR 1960 J & K 112

(iv) AIR 2009 Cal 182.

The principles enunciated in these A ash' follows: V it A V V' t by

(i) AIR 1961 Ram Saran others Domini Kuer &"o.t}ters ;h '4 V The Act is not complete registered has been copiedbtouotit Registration ofﬁce as «of that Act. Section 47 of the Registration jiiict-.has'-nothing to do with the completion '' it Registratiotnv and nothing to do with the the sale that the instrument is one of sale. At"-sa1e__v'wh~ich is admittedly not complete until the : 1fegistr'ation of instrument of sale is complete cannot be it '~said"to have been completed earlier because by virtue of

-~-Section 47 the instrument by which it is effected after it 36 has been registered commences to operate from an earlier date.

(ii) AIR 1962 A? 226.

Nczndigam Ramarao and ohers.

Srikrishnamurthi and othe:_f.s... ' Date of transfer is date of date of execution of transfer-e..deed';' '"reiation"tt back does not apply, Registration». "('19.08}'§ Sections 47 and 75.

(iii) M iéso 8z'::_4KVvfi.'x1':£:';;*""

L:V;'ie»'i\kio:i'icl.Is'mail Ganal and others. Regret:-etienk'Aetiji908) Section 47 -- As Between Par-tiest" registAerec1_'_documents takes effect from the date ' .its--v._exevc1i"tion--But as between third parties it takes "effect date of registration.

a . (ie) AIR 2009 car 182 t " it Arun Bhushan Guha & Ors V. Amal Roy & Anr. W 37

20. Fact remains that the registration of the said deed of conveyance was kept in abeyance till March, 2006 due to nonj--"'----._ payment of deﬁcit stamp duty.

registration of the said deed completed in March, deficit stamp duty. V,a'lt_is land that in View of in Section 47' 'once the registration. is of purchaser relates of execution of the _ _ docu';n.ent..'.'-- TAI'1_uVs"." the purchaser became the sewiier ol"Hthe"'suit property with effect from V or 2002 though the registration said deed was completed in March, " 2ooe.

21. But question arose as to what is the position in law about the title of the "ﬁ~""' 39 produced the certiﬁcate for having paid the deﬁcit stamp duty and since the deficit stamp duty is not paid, there is no registration in the eye of law and Wi1"1€i:1'««ft_h€§rC is no registration in the eye of law, no rights ﬂtowif"

the deed and as such the petitiori__fi1e1_d"itse1if rriaintainable is the coritentio11";of7.the learried _ for the revision petitiorier."'~~._% Stectiori' they Registration Act reads. as Lizidcif' "17. Documents of re§i§tr'ation is com ulsegx --

_ __ [documents shall be registered)' ':_jVif_:'the"<property to which they _ _ relate sit-uatediifi a district in which, and if haV'e.b_e_eri executed on or after the date k Act Noxvi of 1864, or the Indian iiiegietiyestion Act, 1866 (20 of 1866), or the _ Registration Act, 1871 [8 of 1871), or A ~. Indian Registration Act, 1877 {'3 of 1877}, or this Act came or comes into force. riamely-- ' CV 40

(a) instruments of gift of immovable property; u'

(b) other non--testamentary instruments which._'7_ purport or operate to create, declare, "

limit or extinguish, whether in present"or~t- l future, any right, title or, int.e4resit,hlyirhaethlerg' vested or contingent, of:'»,:the-A-values.' of it hundred rupees and upwards, in'; immovable property; "V " it it (C) Non--testamentery i-instruments it ' ' 'v~..W1'IEiCh acknowledge tlieiillreceipitl p'ayinent of any consideration account at V creation, declarationh,' ». ._1ifhitation or title or interest;

. . ' .

(d) lvligeases property from year to y¢éa;:,m~ for exceeding one year, or i it reservingla yearly rent;

_ " would also draw the attention of the Court ittoltliecrossiexamination of P.W.1 dated 2-7-2008 which reads as under:

"It is true that Pandarinatha temple filed O.S.No.3684/2004 against me and all tenants éév in respect of petition schedule declaration of their ownership M possession. It is not true' 'to"'say'..that'Adtiie saie deed under which I am of the petition p.re'm_isesf'.: "Vriot conﬁrmed any 'right thatl not the owner of "The ixrith the sub-

registra-r'_ofﬁ'Ce» disdeterrrlined as an under have not paid the deﬁcit 'it is not true to say that ..my Rstaiteriierit 'that it is determined as tiiideryaluedittis false. It is not true to say that origi'1ia1-..documents is handed over to me from the-_"Si,1b-registrar office on the date of registration itself."

CV 42

33. On the basis of this admission elicited.--in the cross~exa1n1nation learned counsel for revision petitioner would contend that 'docun7i'enti» question namely sale deed datedf"29s§3--".199"'3fntélrked 9 Ex.P.14 has no force in law not pa». cornup1ete--.V document after registration; y

34. It is seen irofI1_tl'ie Which has been produced by the respondent' that a seal of Sub-

Registrars     effect:

 i 

€J\J¢§318\J\Dé3<P5\® C598"

._:order to «appreciate the said contention .3 if - raised iby the learned counsel for the petitioner for being 3' acceptedrgvorffbceing rejected, it is necessary to extract other r_eleyant provisions of the Registration Act which casts obligation on the Registration Officer to register 3' . 3 'afdocument when presented for registration. The same

-~-can be found in Section 34 and 35 of the Registration Ck"

Act. The said provisions of Registration Act namely Sections 34 and 35 are extracted herein belowﬁ "

"34. Enquiry before reJgistra~tieiij..:'id:-V:_V'r it registering officer:

(1)Subject to the provisions,.

this part and in 77, as and shall be registered. undreri the or their or agents appear before the registering the time aliowed for "pfesent.atiori_"uI1der Sections 23, 24, 25 and 'V A 'A*.v-",j'j_Pv§foVided that, if owing to urgent ' necessity or unavoidable accident all such AA persons do not so appear, the Registrar, in cases where the delay in appearing does not Q/ 44 exceed four months, may direct that no___ payment of a fine not exceeding ten the amount of the proper registration_,fee.<. A addition to the fine, if any; paya:3i¢ u::dér Section 25, the document it (2) Appearances underkxésiib~section:: rriay be simultaneciis 'or: times. it (3) The registering Ia) not such H the persons byx' to have been executed; it "

Satisfy____hiinse1f as to identity of the person_s appearing before him and that they have executed the .. document; and it it ~._(c] In the case of any person appearing as a representative, assign or agent. satisfy Q/« 45 himself of the right of such person so appear.

(4]Any appiication for a direction L"

proviso to sub--seotion irriaybe-:p_ with a Sub-Registrar, who ' forward it to the Registrar to subordinate. p_ it t (5) Nothing in to copies of =

35. AND MMMM If A' ____ the persons executing the d.o£:i1ment appear personally before the officer and are personally pp to him, or if he be otherwise A' satisﬁed that they are the persons they &, 46 represent themselves to be, and if they all admit the execution of the document, or

(b) if in the case of any person appearing a representative, assign or agent,_-3such'.i'p:'~~ 'V' .' representative, assign __or. ,_ageritV"'ad.thits the execution, or

(c) if the person execnting the dead, and repre-s,e'rs_tative "tor appears before and admits, the hthhe registering document as Vv"'«g1'irectv.:V<.1'V',.:' iix»1'~~._:jA"S-ections 58 to 61, izlehtsive'. [Emphasis supplied by me] the registering oiﬁcer may, in order to that the persons appearing before' him are the persons they represent 'themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office. W 47 [3)[a) If any person by whom the document purports to be executed denies execution, or

(b) if any such person,»appea1'sWlto:'.';V registering officer to be a fnin'or;'lan'*idiot or a lunatic, or

(c) if any person 'docvurnent purports to beand his representative "denies its exec;ution;"tn'e re-gistcrifrgofficer shall refuse Zvtvollregister to the person so dienyilfllg,' or dead:

4"4Provided."that, Where such officer -is a Registrar, hlelfévshall follow the procedure in Part XII: 32[Pro\/ided further that. the State Government may, by notiﬁcation in the Official Gazeite, declare that any Sub-Registrar named in the notification shall, in respect of documents 5%,.' 48 the execution of which is denied, be deemed to be a Registrar for the purposes of this sub-section and of Part XIL] Under Sub-c1ause [1] of Section 35, * Officer will admit the executionof the xifheil 'Au presented before him and is to document if the ingredientsof=Secti'on__ Bﬁpppareidfulﬁiled. A S document to be heidpto be-"co'r_npieted for'-'registration Section 60 would it the and relevant provision. Theisarne§reads«:as4Vi;inc1er: S :"v'__'A6(3.' or REGISTRATION :

[1] of Sections 34, as apply to any document for registration have been the registering officer shall thereon a certiﬁcate containing the it word "registered", together with the number 4/ 49 and page of the book in which the document has been copied. V (2) Such certiﬁcate shall be signed, dated by the registering officer, then be admissible for-' the 4 proving that the document registered in manner f and that the" in "the endorsements 59 have occurred ' therein riier1tior1'e£1f_7 On pettteati tirejtristoiieef the Registration Act, it is to bxeveicarnineed ingredients of Section 34, 35 wild arev.corrip1ied with in the instant case in r¢§,pec5t'i'iof'i'sa1e ctieecleated 29-8«~1998 which is marked execution of the sale deed by afi'1:x:ing signatiire of the vendor and the purchaser is admitted before the Sub-Registrar. To the said effect if is an endorsement in page No.2. It is no doubt

-«true that an endorsement is made that the document is at' Si revision petitioner is not applicable to the facts. «of the case.

36. Re: Point No.3: The leamed_-c01in_sei'~::for the petitioner has also raised in v1the:_"'r€fAfiSi0f1~ V'1L'>€":t'Viti0Ip1"l'i1vi.f1 ground No.14 to the following.._effeci-:. V "The sale deed was a sham docu__r_r1e-nt_ and the respondents cannot ov..rnership under the said document until]"the-v_V"Registration is completecif _ it is also Court below that the landlord g'et:"ifigh.t.' over the petition schedule premisesi._and the deed is not binding on the resp;ondent--Vtenanvt. Having contended so, the learned petitioner has relied upon the following l"judgme11tS:__ ' ' ='{'i) AIR 1982 sc 1213 Devi Das Vs. Mohan Lal.

{ii} AIR 1961 SC 1747 52 Ram Saran Lall and others Vs.Mst.DominiKuer and others. V d The principles enunciated in the said judgnientjaretd " M

(i) AIR 1982 SC 1213 " Where the order ofpVevictio_r1"of the teiiant in V the eviction petition filed purcvha~ser"of the 'ouiidiiig was pass_ed:fb_y'VVpassingithevriplea of the tenant in t.f1e_I'e"Varas no sale of the said building was a paper of eviction would be 'ij_i.ei?u..th*at::the_ tenant could not cha_1:1enge1'}_: V the sale deed 'eXe_c1ite'd_i._n the purchaser because the aparty to it, would not be _ 'proper. " the iower courts failed to record firiding on this point the case was to the trial Court to record ﬁnding whether the sale of buiiding it to. purchaser was a bona ﬁde .. transaction. "

W 53

(ii) AIR 1961 SC 1747 "The registration under the Registration'_:;itct:u:'~..V:"~ is not cornpiete till the document.-gitov.bVe:':"

registered has been copied out""'iri'_':

records of the Registirationtg j; provided in S6} of the ARCvt.1'Section."_'4:7 'or the Registration Act nothing the completion of therefore nothingieto do j:.ri'ti1.__'the~completion of a sale when the of sale.

A sale 'which cornpleted until .~th¢ of :the_ »instrument of said to have because by virtue of $*..47'.'_the. by which it is effected, afterait has._be.er1«:_registered, commences to _{ 'operate "frorn an earlier date." that the tenant can assail a sale whenWit'tV;is sought to be used for the purpose of 7-«.__"-».eViction.V__tand the burden is cast on the tenant to prove transaction is to be tainted as a sham transaction .A the purposes of evicting the tenant. If the tenant in 4/ 54 a given situation were to raise a plea and demonstrate that for the purpose of eviction of the document has been created then there for the Court to look into the nu the veil and ﬁnding out the nature the instant case the 1anvdlordl'"has~ the"

document of registration =wh.i=ch is at Ex.P.14. Marking of "objected in the examinationfinfchiefi it the production and would be too late in tenant to contend that sale deed is a sham docu-rnenth othervvise if the submission made by the .1e'arned_ counsel for the revision petitioner is accepted-,_for'.i'being examined, it cannot be said in the ins'£ant__" the present sale deed executed by the 'Jendors 'of the landlords is for the purpose of evicting 'tenants. A perusal of the covenants contained in

-'-the sale deed do not suggest the said fact. Yet another $1 55 factor which requires to be noticed is that even the evidence of respondent, he does not contend sale deed has been executed by the petitioners for the purpose of.....evicting""th'_¢. Vtfevisiontédd petitioner. Though a suggestion hiasrbeen 'made cross~eXamination of P.W.'_'th.e sale fore' evicting the respondent the...said"'suggestionhas been denied by the petitioner _ Even in the obiection staternent fiied' there is no such petitioner has been iiigﬁase stage by stage and step «these overwhelming factors which are""g_1:arin'g,A°I of the considered View that ' contention._of the learned counsel for the revision the document in question namely sale deed as Ex.P.14 is to be construed as sham traris.ac'tion cannot be accepted. Accordingly same is ,, rej.e§ted_ 56

37. Re: Point No.4: Pivotal issue in this case is in considering the rival contention raised by the with regard to the Jural relationship and nil elaborate submissions have been made "the learned ' advocates appearing for both the appreciate the contentions'*~._rais.ed.. by counsel for the parties vvit.'t1'"i egarlci-zto jural'~re'lationship between the parties, lit.r_'Would;' be:li'nfeces_sary to extract Section 43 Rent as under:

V relationship of :"lan.d1oii:'d and tenant: p proceedings before the co_n'tention is raised denying the exisltencewof relationship of landlord and u as between the parties it shall be for the Court to accept the v_l.'(i:oc.t:1ment of lease or where there is no document of lease, a receipt of V 't acknowledgement of payment: of rent purported to be signed by the landlord as y 57 prima--facie evidence of relationship and proceed to hear the case.

(2) Where-

[a) the lease pleaded' either party denies receipt or aciinoxvieglgerrienlt of 'V rent as refereed""'ito."l» in (1) above is produced,' "or Q " "' -- . 2

(b) in t1'l"C_(.).pViVI1i'V('::)I]: oft-he' there is reason to siispect the"gien1iifie existence of tile" of' lease or the receipt or of rent.

the " once stop all further proceedings_t§eforefit and direct the parties to 'approach, "a competent Court of civil Q ~ AijulrisdictionAforldeclaration of their rights. H case of Saleem Vs. Sri.Syed Yousuff & ot1'ie1fs"' teptrted in {LR 2010 KAR 427 has held that the nRei*-zit Act of the year 1999 was promulgatec1/ introduced to enable the landlords to obtain possession of their 'R' 58 buildings or premises as the case may be by extending certain benefits or conferring certain rights ﬂow from various provisions of the Rent Act is a serious dispute with rega»rd._to the property, it would be unsafe:"*for..A_'ithe embark upon the particuiariy the"

proceedings are sumpmaiyi-n riature it-was held by this Court in such course for the triai cottrtjfu/~ou1c1'Awbe' "parties to get their rights "appropi*iate Civil Court. It is held in' theggatci touthieifollowing effect:

i « the object of the Act, a "person',._ is arrayed as a respondent/_t_enant in an eviction petition is pay the rent and continue to pay The tenant seeking to raise the conteiition that there is no jurai relationship it ..oi71and1ord and tenant is one of the defences that may be set up in contesting the petition. This does not preclude the tenant from making the deposit of rent--When the Q2 59 respondent who is held, prima »-~ facie , to bee tenant seeks to challenge that ﬁnding of a revision petition he would have to deposit the rent clairned-.._:. T otherwise, it would enab]-e""such have the luxury of prosecuting the petition and pos»sib_1y V"stai]inge.'r' proceedings before is not the object the.riAct'{':P;urtheriheldivé The object of the Section--is:"to.éVd'isentit1e the person Who istin-toccupation' premises and '=1---vw'itenant, from "aiivori'gina} or prosecuting i:;p.etitio--n "Wimont depositing or ipayiilgtt'he'e-arrears"o.f rent or the current rent. '.["herefore;._AV no doubt that the _petition_e1'~ is Areciuired to deposit the rents claimed hbyv----«-the Landlord 'before the Triai A * --. _ the event that he wants to prosecute .Athe* revision petition."

g Landiord in their eviction petition contended that »the'' respondent had been inducted by their vendor ' andﬂhe was a tenant under them and subsequent to the W. 60 purchase of the petition schedule premises the first respondent became a tenant by virtue of"

attomment and as such he was liable was contended in the respondent Mr.Nirmalkumar possession of the has told be considered as a subgtenantiehajndpll"the tenant'"vjHussain had allowed the the petition schedule petition had been filed personal use and occupatioirianﬁduéronnd of subletting. The claim h. under Section 27(2)[b) andvsection Slleohf the Rent Act is admittedly negatived Court llaridddywhile answering the point No.2 trial Court has held that petitioner had1.p_V:§tol prove respondent No.2 is sub--tenant or l.'""~.__V"-trespasser of petition schedule premises and has held 2 only a tenant of the premises and had answered it ...poirit No.2 formulated by it in the negative. The said Chg ﬁnding namely dismissal of the petition under Section 27(2][b) has not been questioned by the ﬁling revision petition and said order has Be that as it may, the facts V.whi.r.:4h forth' considering the plea regarding follows :

38. The v"'».+..;y¢'r1'ant on being arrayed as "present eviction petition in has ﬁled a detailed taken up a plea that thereizis of landlord and tenant between p-et--itiione'r:s on the one hand and the se'e.ond"irespondentlon the other. It is the contention of therey'is_ionj'petitioner tenant that he is a tenant under Aral MigaplPandarinath temple and there is title suit in Q,S.l\ulo...."l3684/2004 pending inter se between the said it zternpie on the one hand and the landlord as well as the

-mtenant on the other hand, wherein the temple who is CV, 62 the plaintiff in the said suit have contended that respondents 1 and 2 as tenants under them.

Accordingly the said plea is raised. Even". the evidence examination--in--chief of RW--l at _ 5 and 6 the averments made in the'---»st'ateinent V. objections have been reiteratedlla ,¥)y"ea..the'- refv.i_sien petitioner tenant.

39. It is an adm.itted_factfithatiin the 'earlier round of litigation namely in' ,_:~iRC,.i1"l:Oéi:3if?]f»19E)8 filed by the present petitjgmers Hussain the second 1;espVo'nd.ent._fhereixl fnazinely Mr.Nirmal Kurnar Jain ﬁled an interlocutory application under Order I Rule SA seeking for being impleaded as respondent »A __ said case. In support of the said if affidavit has been filed. The averments made the said affidavit at paragraph 2 is relevant ~ Afahdpas such the same is extracted:

"I submit that I am in possession of the petition schedule premises and since there is st"

63

a dispute between the temple and the petitioners regarding the ownership of Petitioner Schedule premises we pay rents to any person until the it same is decided by thisv.<competentl.l There is no relationship!pofjilaﬂndlord tenant between us. .'I'h._e mo'nt_hlyVre»n't 'ii paying was £25.75. that~.Arui lviigu Pandarinatharv :Templ.e;"' started to claim their title"over'- petition.gschedule premises ,I_ could p-aythle to any persons.' 'of: the petition a necessary party impleading me if any evictioniis "l passed against the respondeiit lwl"1o_4"isy"1£ot a possession of the _S_pame4"th_e p.e-titionlers may evict me from the petition slch'eVd.ul'e premises. I am carrying on _ bvusiness __ in hiring pandals, crockeries and ylo'thferl_ it'en1s on rental basis in petition A sclfirediiie premises and I have invested lost of money in the business. Even though the it 'petitioners are aware of the fact that I am in it 'possession f the petition schedule premises for the reasons best known to them they 4/, 64 have not made me as party just to obtain an order behind my back. I submit that if not permitted to come on record as the respondents and contest on be put to irreparable loss 'g the other hand no hardship bed?' the other side." it i by l

40. in their objection"'to"i_the'»i.said it application the petitioners --respondents' the landlords have taken. lthat impleading the said objections readspasv'under~:«:':::f:A§V4"' 'V V l l I Sri. Nirmal Kumar Jain---._hasVﬂsi1r1t1iptiiously pushed himself into the Vpre-mises=.._andV is a rank trespasser having coinniitted criminal trespass for which criminal or will be ﬁled against him for committing "V There is no jural relationship between this trespasser -- impleading applicant and the Petitioner." Q?

41. This application on adjudication came...__to be rejected. It is observed while disposing of application that it was open for applicants to ﬁle an application-under eiectioriv of the erstwhile Karnataka Rent depositing the rent since' by all party. It is also observed th'at'he not lprodticed any scrap of paper to shod-yvll is.:_iln.'.:occ:.upation of the premises in observed that when the? 'claims to be doing business"'in.l..:tjie premises he ought to have pr-odticed issued from the Corporation authority ainyotherldocument to establish that he is 'V"-in "~-oiccuepation of dddd the premises as a tenant and 4lltie1e_i.~Court below rejected the application in the»-...__absencie of any material evidence to show or it'"<._'l"'establish:that he has been tenant under the vendor of petitioner. The said order of dismissal is not ..challenged and it has become ﬁnal. Sri.Raghunath, (lg/_ 66 learned counsel for the revision petitioner tenantytrould contend when it is the specific case of the themselves that revision petitioner trespasser" there is no question" of' 'A relationship of landlord and and further contention of » ..lanid1ordsV..Vthernéselvles is' that tenant has occupied ._sch'ed'u}e" premises by way of trespass and the pleadings there is no and tenant and as such the tenant proving the neg'ative..:c7ioes"7tfViot _arise. _ V 42é.t1_?er_ .Srnt.Prabhamani contends that when there «.sa_le_.deed Ex.P.14 and the notice of a:tto_rnmen't._i'sV issued to the earlier tenant and eviction against the earlier tenant and he did not chooselttoyx appear and contest the matter, would "Qestablish that second respondent before the Court ' heloiv is attempting to lay a false claim and as such he $/ 67 cannot have any protection and he is deemed to be a tenant under the petitioner. She would attention of the Court to the deﬁnition of tenant as deﬁned under the Re11»t..Act, najrnély Section 3(e] and 3(n) of the Act reads '*3. Deﬁnitions :- V 'this Act, conteﬂ. otherwise requkes, ._-- ' = .._V [a] to (d) : 'A

(e) "land?,n.rd'.';3-.rnea1isaibersontwho for the time is entitled to reeeive~,_ '.the:;:rent.'.VofVan.y' 'p17€:l'I1}'.S€S, whether on :'his._ on account of or on behalf of-_ beneﬁt of any other V. __person_or~ as triistee, guardian or receiver " any other--person or who would so receive renter to be entitled to receive the rent, if4ti_1e'px.lifernises were let to a tenant; (mo lm] : XXX H (n) "tenant" means any person by whom or on whose account or behalf the rent of any W, 68 premises, is or but for a special contract would be, payable, and includes, -- i

(i) A sub-tenant;

(ii) Any person continuing... 7:111' possession afte_r.....the ter1n'ination."_*~V of his tenancy, bat, "«do1eAs~.._not_p include any persofn"t0 {whom licence as pdeiineci in'-secti,on 52 of the Indian._Easeme11ts Act, '1882 'W [Central Act"i5for 1882-}. has been + A _n gran gﬁu, The Court below -this issue at paragraph 12 'o.pon.V,',i'cleaIiadinission of the second i' tenancy. The said admission 'snggestion made by the second respondent cross examination and it reads as uin-rgler: V A is "'ziot--------~true to say that R-2 is a under me in the petition it premises since beginning. It is .,'true to say that there is no connection " Vvibetween R}. and petition schedule premises. It is not true to say that at the time "of purchase of the property by 69 me R2 was in possession of the petition scheduie premises."

(Emphasis supplied by me)

43. Sri.Raghunath would submit hie; on the jural relationship in two foidsituu admission by the petitioners 'At.he':I01"se1ve':3_V"i3e1ng second respondent is a rahk.._t¥:e_spae'ser;' and sayt"

cannot be considered as aI1r'adrr1--isusi.on of fact On this proposition he reiies 0upone.tine __dte{:_isior1s referred to supra nameiy: _ (1) 0 VRajer'1dVrét"$aSudeo Prasad and another (:1) 4-2oo30(1)0 Kccta 385 " «Vs. Shahzadi 0' A _ {rm f2f)e7(1) AIR Kar R 377 R,AI:§5giah Reddy Vs. Udaya Chandra.

2009 (6) AIR Kar R 112 V 0. Smt.Sabitha Devi & Anr Vs. Smt.S.K.Shreedevi. (V) ILR 2008 Kar 3500 70 l\/I.Ethira} Vs. Srnt Farida Khanum The principles enunciated in the said decisions are as under:

(i) (2002) 1 SCC 90 Raj endra Tiwary Vs. Basudeo Prasad ..

"A Rent Control A and tenant relationship -- Held, the ,eY=svtence'*~, of, is the Very foundatli-:mr1"'~L)pf eviction under a Rent control statute Thereforepjiirhere such relationship not to be established, any eiiiquirylinto the title of the is of a court exercilsing under such a statute - Further of Or. 7 R37 CPC, proil/iding Viorlgranting of lesser reliefs, than origina1ly~--..Vprayed for on basis of facts as Ware not attracted to such a ' Where sitting--tenant, defendant «» claimed to have executed an ,.a'greernent to purchase the disputed premises 'A from the original owner, held on facts, High Court, in second appeal erred in holding that an equitable decree of eviction rcouid be sir 71 granted against him on the basis of the title of respondents, who had purchased the premises under registered sale deeds -- Thus High erred in rernanding the matter to appellate court because it had not "

finding on the question: '""of, title '4Civili'.i }?rocedure Code, 1908, Or.

{ii} 2003(1) KCC-R 335 Ayesha Begum Vs, Sha-hlza-tiig "

"A. KARNATAKA Aer, _.i:_9'9.9,lefSection 43 When respondent denies.relaitioifiship of larn:1iord,'and tenant, it is tolreier the parties to Civil Court for of their right. Section 43 of the Act doesA'r;--ot"'"refer to revision proceedings ; 'before H-igh'Cou'rt."

'- v (ii_il«.2£l0?_(1) AIR Kar R 377 Reddy Vs. Udaya Chandra.

Vxainataka Rent Act (34 of 2001), ss. it 2';/"(¢2][c), 43 ~--~ Eviction suit ---- Jural frelationship of landlord and tenant between parties ~ Absence of documentary evidence 4// 72 like lease deed and rent receipts - Cornplicated dispute regarding title landlord -- Jural relationship of landlord tenant, not established -- Eviction not maintainable. (Para 5)._",..,,

(iv) 2009 (6) AIR Kar R 1i*2 ' Smt.Sabitha Devi & Vs. "Karnataka Rent --

Relationship of' tenant _ Finding as to, gins'-<_=-.._rr-b'y. as Cii;*ilp"iCpourt while decliningji.irisdictio1'iV to deéiiwith matter -- Said" 4'finding:Qwasfjp--réiied V"o:n»--'by HRC Court :'WhVeI'1eA..imatt?er before it -- Improper exercise'¥:Vj?indings"' to jural relationship of "1-andlpordh ought to have been * 'independentiylyfound by HRC Court -- Same should bevvlwéilrrived at by reference to it _ 1'£1Qé1téI*i:a1S.0n record (Para 8).."

" 0 (v3. {JILR 2003 Kar 3500 .' M,Ethiraj Vs. Smt Farida Khanum "There cannot be any dispute that an admission is the best evidence agaisnt the 4/ '3 73 party making it and though not conclusive, shifts the onus to the maker on the principie that what a party admits""*--.T must to be true or may be reasonably- presumed to be true so that until it presumption is rebutted, tiie admitted must be taken toﬂébe admission must be exaIni_n'e.d as a_"_lAWh0lev l and not in parts. settleda law' admission of any partyvhas to.b'e.read7 in its entirety' ..ai:.d -'not; . ,stateri1.ent out of context can constituteiiadmission on any fact._ _ _ Coiurt ' the I admission if _it'~._i's "1satisﬁed_ 'from....-other surrounding circu'mstar1ce's.liithat 5 it is untrue. The "adrnis'sion..'rrvu"st_. be used either as a whole orlnot at is also equally settled that ljthvc str'ayv....sentence elicited in the cross» 'ieXa:rii.ir1ation could hardly be construed as T' The Apex Court in the case of KOTESWARA RAO -Vs»-» ir V 1cmmmM SUBBARAO speaking through Justice K. S. I-Iegde, has observed in this behalf thus:

74

"This admission must be read _ _ along with the evidence given by hir_n..VV_i in his chief examination."

Thus, the evidence haste be entirety in a hannonious:4mai;nn'erLi»._ In this matter,' if_:"i:11e evidence:j-iﬁoflithe 1-_r1r:'I.1ord is _ read entire_ty_.:§in harmonious V rnann-er, 1; 'becornes evident that the so 1' not an admission. atioallzb they year of, ' oo'ns_truction of the '_pprerni:seVs_ The said stray sentence' _ﬁrst line of cross relate to completion of cionstructionv iiofithe entire building and it not theprerriises in question." ' _444.:_"i"¥":Tie:'principles enunciated by their Lordships intthese_Adecisions cannot be disputed. A perusal of the igpleadings and the exhibits produced before the Court, it A "if that in HRC 10437 / 1998 when the matter was pending before Court below from 1998 second $,' 75 respondent before Court below i.e., revision petitioner herein slowly and by using trick and stratagerii'-creeps in the year 2002 by ﬁling an application "

In doing so he attempts to exhibit»-his it skill by not stating as to when of the petition schedule prerrii's.es. coritentionld' is that he is in possession" petitioirschedule premises and when the petition schedule prernisjes. consideration and for what rcényfhere-V._is .Wh.is{pe2f in the application. At the costwof has to be extracted here again' appreciation of the facts. Accordingly" p5aragrap.hVA"No.2 of the afﬁdavit ﬁled along impleadingéapplication in HRC 10437/1998 is q_'CvXtracted_yd.hereiri below:

that I am in possession of the pet:ition schedule premises and since there is it dispute between the temple and the it petitioners regarding the ownership of the petitioner Schedule premises we could not $1.

76 pay rents to any person until the title to the same is decided by this competent court.~'--.,_p There is no relationship of landlord and between us. The monthly rent I was -I~ was Rs.75. After that Aru1.s_"_:"uMig:u . Pandarinathar Temple, 'I?viruchi,r_ claim their title over the :sC1yie~du.1e' premises I could notdpapy the persons. I am in possession' of it the petitjion schedule premises '~-ta necessary party to the above. me if any eviction order' the respondent' « :no1;_', has pos's'é--ssion of the samespthﬁe',petitione'r1sinlay "evict me from the petition' schedui'e.prelni.-ses. I am carrying on business ii_n~-.hir_ii1g"'pandais, crockeries and _other"~~ items Ao_nl"'rental basis in petition " premises and I have invested lost of A _ the business. Even though the petitioner's are aware of the fact that I am in p_ossejssion f the petition schedule premises for; the reasons best known to them they it have not made me as party just to obtain an order behind my back. I submit that if I am not permitted to come on record as one of Q/ 77 the respondents and contest on merits 1 will be put to irreparable loss and hardship. On the other hand no hardship will be caused to..___ the other side." i it The following facts clearly emerge from these':

(a) In what capacity the revision into possession of the petition s¢'i;¢au:1e premises been silent through out in iinpleadinglll application (ii) in 1ozi:a*i:?ie;/'pi V993 and"'(ii'i) in the present eviction petition-last petition apart from his evideI'1cep}--

Eb) No -'produced before trial Court to showithat lvieis under the temple. No receipt or 'other' 'correspondence or letter to demonstrate » tlxatpiie is under the temple. When the revision '.petitloneVr"fclaims to have paid rents to the temple which admittedlvlis muzarai temple governed by Government of Naclu any amounts paid to the temple would not' be without any receipt. The same is also $2 gr.) €)£8.I'IIiI18_tiO1'l of P.W.1 extracted herein above. It is no 78 conspicuously absent. No witnesses have been examined on behalf of the revision petitioner/tenant to demonstrate that either he is a tenant under the "ternp1e or he was inducted by the temple as a tenant'; In ' these facts I am of the considered view' it it held that the respondent has prottedi..A.that under Pandarinathar Ter11p1Ve~_._i_,

45. Per contra ' petitiotnerfhas produced the vakalathnama filed on-_ respondent tenant Mr, / 1998 and for reasons best,kr11)fwr1ihavirrg entered appearance through learned conniselttto 'appear-and contest the 'matter he did not.» toncontesti the matter and natural corollary wtonld "d_raw adverse inference against the first that as it may, the tenor of the cross-

exaniination of P.W.1 demonstrates and it has back A e~ff'1retci'-..on the revision petitioner as is seen from the cross- (,5?

79 doubt true that a stray admission made in thecross» examination cannot be used as lever for discardingpithe entire evidence. The preceding paragrapii succeeding paragraph when read 'together his V cross-examination cleariy depicts the" fact" that «rei~.;§isio11.'V petitioner himself be pa' Wunder' respondents No.1 and 2,<i"r"1 petition schedule premises. Theta-said__.cro_ss;.¢xan1ination of P.W.1 reads :as':ur_ider[§_ ag:*eement in writing rrigzself 'thsﬂrespondent, after I have-- -'property, there is no doeuémentsti that rate of rent is . . i I3.-.In.i"'.Th'ere is also no documents to that 'thevlst respondent is tenant under it not true to say that R-s is a _V texlﬁstiiunder me in the petition schedule 'premises since beginning. It is not true to it that there is no connection between R-1. it and petition schedule premises. It is not true to say that at the time of purchase of the 4% 80 property by me R2 was in possession of petition schedule premises. V (Emphasis supplied by me) H V I do not know when exactly into occupation of the.

premises. Besides filing this haveziimg if initiated any legal action__.agai'snt'R--2.Ji' it I had ﬁled HRC '1"QT{l'37/199.53 eviction of R-1. It is truethat_in"thatupetitio'n' 'Thad not made R-2 herein a_piar.ty'§'lf}?etition copy of this I-iRC is Ex._p..s§_ 3.1 ¢:I;;vcign;§5tig if in that petition" 'h_er.eing "had iifiled-application for impleading'liiirnselft--as aV":ifespondent." issuggestion made to P.W.1 in this regard. completion of the evidence of P.W.1, respondentl revision petitioner has tendered lilliisu Nothing prevented the respondent tenant to asfto What he meant by stray suggestion made in the cross examination of P.W.i. Having not either in his evidence or in his pleadings the one and the only inference that can be drawn is that T "ﬁnding of the Court below holding that there existed $8/ 81 jural relationship of landlord and tenant is to be accepted and accordingly it is accepted. By analysing entire evidence of P.W.l and R.W.1 as a Wh§51'e«' _ taking the entire evidence particula.rl-y,.'4_:

extracted herein above it is held' relationship of landlord judgments relied upon by for the petitioner are squareiiin' facts of the present case. V' it i l V V (2) _Ii;--Ru ~Kg;jj 1; r it it :Nanj appa.

{ii}. i1LRr _ .AnaraDevi Vs. Ram.

5 (iiil '"1.I»7l§'lV9A8'5"§{ar.2367 Vs. Krishnan.

The..__V loelow in paragraph 12 onwards of its has succinctly considered, discussed and _ 'evaluated the evidence and has come to a conclusion

-lflat there exists relationship of landlord and tenant and @A/ 82 I do not find any infinnity in the said judgrnent particularly having reconsidered and re-appreciateddthe evidence as well as the arguments learned counsel for the revision.<petitiorj_er'.l_:V'.it the ﬁnding of the Court below regarding jural relationship'-shaving."been...cons;idered bylll trial Court while con.s'iderir1g:.""the case question of consideringlihe by tenant under Order:,,Vl:I;V'd:RuleVld)' Hence, point number 4-' by holding that petition'erg..ha've exists relationship of landlord and «there was no necessity for considering" ~ln_Vter1ocutor'y.. application filed under Order 7 V. No.5: The learned cousnel for the

-' resplendent 'tenant has contended that there are no ':fbone::.fide"s in the petition and by way of alternative ' stgbniission he would submit that even if a presumption CM.

is to be drawn that presumption is always treated or termed as rebuttal presumption and said presumption has been successfully dischargedép burden having been shifted back~~t.0_the 'bu having been not discharged eviction petition is liable to ;iisni1sse'd_under"Section"' 27(2)(r]. In support hisi-'contentionithe-respondent would contend that in this regard in paragraphifg objection by controvertiingt:the-:':p1--eadings raised by the petitioner' He would contend that point No.3 and answered the said ﬁfx~ding.vagains't'.Vthe revision petitioner without ,.u,c0nsidering_the'aspects of the rebbuttal contention. In Rhis:'_j..contention he relies upon the following decisions: _ " A 4(1):' ILR 2004 Kar 3288 it * .f$G.Shoukath and others Vs. V.Chandraprakash.

(ii) (2004) 3 SCC 589 W 84 P.Suryanarayana Vs. K.S.Muddug0wramma.

(iii) ILR 2003 Kar 3871 Smt.Yashoda Bai Vs. Smt.Lakshmmnf§ie:. '' 'A

(iv) (2008]1O SCC 685 There is no dispute with enunciated in the ab0VeVp--s:edd> event"

otherwise by a peruse] 2'7ﬁ(2'}{r)~-dand the explanation theretoat' it V"_»..:est_ab1ishes the presumption:..th9t:~ of a landlord is a rebuttétl Eilzilberating his submission th;it"'éidVtnittedly there are four other levilctieni filed against the tenant of adj aeent premises. iii'. HRC.Nos. 1563/ 1998, 1564 / 1998, .---.,.e.,15€§j5/33982.'andA""1'5Ei6/1998 and the said order of came to be afﬁrmed by this ce-at-t Nos.291/2007. 292/2007, 293/2007 2.9$A:/2007 and also came to be confirmed by the A' VI-Iontble Apex Court in C1'Vi1Appeal cc 7502-7505/2009 Vb order dated 10-6-2009 and pursuant to the same the W landlord has obtained possession of the adjacent premises namely 4 shops which would requirement of the landlord.

48. He would also submit in eviction petition which wasfiled with ; premises let out to Dr.Jayapral{ash andticontefnds that the I ejectment suit it is still pending and assuch even petitioner is accepted he present schedule other tenant i.e., 'evicted from the petition schedule he contends that it has._coni.e in thaevidence that all the walls dividing the bearing walls. The petition schedule prpernisesu."."--..and the premises in occupation of "V Drtilayalpraltash cannot be made one and removal of .WaIi._in Vhetween would result in collapse of the building. ' ljerl contra Smt.Prabhamani would contend that four av 87 eviction petitions are filed for the bonafide use and occupation of his sons and it does not come in the way of his seeking eviction of the tenant in respect",:hof..the petition schedule premises for his use _ and the evidence of P.W.l cleariyhu requires the petition schedule and occupation. in fact beiovvdlby > plea has analysed the eviden_lce.,_nrecoi ivvhas come to a conclusion ""sVch:ed,u1e premises is bonafide required by~t"he- :petitio,ner'_for".vhis own use and occupationiifahsdwered lathe" same in favour of the landlord.' .On reconlsidlerat-ion and reappreciation of the evidence ionfreccrrd'-V_I of the view that said finding neither, suffers from any infirmity in law or on facts and co_ntention raised by the learned counsel for the revision petitioner is rejected. a Re:Point Nos.6 and 7: In View of the A' discussion made herein above, I am of the considered ﬁg 88 opinion that the order passed by the court beiowneither suffers from any legal infirmity nor it interference at the hands of this Court revisionai jurisdiction. At this '**ju.n'cti';re_"the Vlearnied ' counsel for the respondent seeks..'ir"easoncab1e«. vacate to hand over vacarit:possession thyeiiipetitionii schedule premises to the land1o'1'd"and seeks 12 months' time to x}a;§ate7 premises. On the other xieamed counsel appearing' would contend that the" aged 75 years and wouidliite to of the decree and as such sheVs_ubmits_:thre-e An1or1:th's time may be granted as it reasonable according to her.

contentions of the parties, I am of the opinion if six months' time is granted to the xjevisiontpetitioner to vacate, it would meet the ends of Q' -jtzstice since he can make alternate arrangements for ....shifting. Before parting with the case it would be @/ 89 necessary to place on record the appreciation by this Court with regard to the effective assistance by the learned Advocates appearing for and in arriving at the decision';"' Rene-_e, 9 order is passed: V I I it it I it i [i] The revision' gpetitilonllis ; it

(ii) Six months' granted to the l-iquliﬁflvacate and hand of petition schedule """ " . revision petitioner by way of undertaking itLllagreeinglltollvlacate and hand over petition 'scheldnvllellprernises to respondents/landlords

6 (six) months and continue to pay rents from February 2010 till vacating of the premises. Revision petitioner shall also undertake that he would not underlet, sublet or part with possession of the petition (§>/ 90 schedule premises during the interregnum period from March 2010 undertaking affidavit shall be filed"

weeks from today, faiiirrg éraﬁted will not enure to the . ReV':isioﬁ~.VV Petitioner and resvson»dehts.. 3.' he at V' liberty to vexecutet'tI'1et_:C)rder. {iii} The resporrdentstt to file a vouéher amount in and on such """ registry shall issue : of Respondents I & 2.

V (iv) 'Nr)'_'order as to costs. Sd/-' JUDGE X fsbb,II~&vj/gh

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