K. Abdul Subhan - Since Deceased By L.Rs. vs A.K. Satyanarayana Setty on 15 June, 1984
From a perusal of the orders of all the three courts,
we find that it has been concurrently found by them that the
premises and not been taken on lease by Thimmaiah as a
Manager of Hindu Joint Family. It has also been found that
the appellant had not inherited the tenancy, since the
premises in question were non-residential premises and,
therefore, tenancy was not heritable. This finding of the
courts below is fortified by a judgment of the division
bench of the Karnataka High Court in K. Abdul Subhan Vs.
A.K. Satyanarayana Setty reported in (1984 (2) Karnataka Law
Journal, 72) wherein after an analysis of various provisions
of the Act, it has been authoritatively laid down that there
is no provision in the Act for transmission of tenancy in
regard to non-residential premises under the Act. In that
view of the matter, learned counsel for the appellant is
right to contend that since the appellant was not a tenant
and had not inherited the tenancy, a petition under Section
21 of the Act for his eviction was not maintainable. If the
respondent wanted to recover possession of the premises from
the appellant, he had to take recourse to filing a suit for
possession and not by filing an eviction petition. The
learned District Judge while hearing the revision was,
therefore, perfectly right in coming to the conclusion that
the respondent - landlord was not entitled to file the
application for eviction, more particularly because the
landlord had not mentioned any of the grounds contained in
Section 21(1) of the Act in the petition seeking eviction
either. The High Court, therefore, fell in error in
upsetting the well considered judgment and order of the
learned District Judge dated 4.3.1977. This appeal
consequently succeeds and is allowed. The order of the High
Court dated 26.10.1983 is set aside and that of the District
Judge dated 4.3.1977 restored. Since, the respondent is not
present, there shall be no order as to costs.