A. Leelavathi and Others vs Shyamalamma and Others

B.S. Patil, J.—This revision petition is filed against the order dated 05.09.2015 passed in HRC No. 4/2015 directing the respondents to quit, vacate and deliver vacant possession of the petition schedule premises to the petitioners.

Petitioners were respondents in the HRC case, whereas respondents were the petitioners. HRC case was filed seeking eviction of the revision petitioners-tenants from the premises in question under Section 27(1)(2)(a) & (r) read with Section 31 of the Karnataka Rent Act, 1999.

The case of the respondents-landlords has been that petition schedule property was purchased by one B.L. Lakshminarayana under a registered sale deed dated 20.07.1973 from A. Appu Rao � father of the revision petitioners herein. Thereafter, Lakshminarayana died intestate leaving behind his two brothers who succeeded to his estate. During the lifetime of Lakshminarayana, father of revision petitioners � late A. Appu Rao who had sold the property to Lakshminarayana continued in the petition schedule premises as a tenant agreeing to pay rents and in this regard, lease agreement dated 01.08.1973 had been executed which was subsequently renewed with fresh terms and conditions on 01.04.1976. It was further contended that during his lifetime, A. Appu Rao had vacated southern portion of the property, but continued in the petition schedule property which was the northern portion.

It is further urged that although monthly rent of Rs. 190/- was agreed to be paid, A. Appu Rao did not bother to pay any rent. An alleged re-conveyance agreement was created and based on the same, family members of the tenant-revision petitioners filed a suit in O.S. No. 4769/2008 seeking declaration that the sale deed dated 20.07.1973 executed in favour of B.L. Lakshminarayana by A. Appu Rao was only a mortgage and not out and out sale.

Respondent-landlord contended that 1st petitioner filed a suit in O.S. No. 5318/2008 against the tenants and the members of the family seeking relief of injunction contending that they were the absolute owners of the petition schedule property. It is not disputed that both these suits have been disposed of. O.S. No. 4769/2008 filed by the tenants and the family members has been dismissed. The suit filed by the landlord-respondents herein has been decreed. Thereafter, having issued legal notice calling upon the tenants to quit and hand over vacant possession of the premises, the present eviction proceedings came to be instituted. The landlords urged that they did not have any suitable premises for occupation in the locality and the premises was required for their personal use and occupation.

Respondents-tenants appeared and denied the relationship of landlord and tenant as asserted in the petition. They urged that the sale deed executed in the year 1973 was a sham document. There was no jural relationship of landlord and tenant. The dispute regarding title of the tenants to the property was pending in O.S. No. 4769/2008 and after the dismissal of the suit, an appeal was filed. The khatha of the property was still pending in the name of A. Appu Rao. Therefore, they sought for dismissal of the eviction petition.

For the landlords, petitioner No. 5 � B.N. Nagaraja was examined as PW-1. Exs. P-1 to P-18 were produced and marked. Respondents-tenants got examined two witnesses RWs-1 & 2 and produced and marked Exs. R-1.

On consideration of the materials on record, the court below has come to the conclusion that petitioners were able to establish the existence of jural relationship of landlord and tenant between them in the light of the findings recorded in O.S. No. 4769/2008 in that regard and that the landlords had successfully made out a case regarding the bona fide need for self-occupation of the premises in question in terms of the provisions contained under Section 27(2)(r) of the Act. The court below has also found that the tenants had failed to pay any rent despite issue of notice, and therefore, grounds urged under Section 27(2)(a) of the Act was also proved.

Learned Counsel appearing for revision petitioners submits that relationship of landlord and tenant has not been proved. Elaborating this submission, he urges that against the judgment and decree dated 31.07.2014 passed in O.S. No. 4769/2008 dismissing the suit filed by the revision petitioners and their family members, an appeal has been filed in R.F.A. No. 1424/2014, wherein even the finding as regards relationship of landlord and tenant has been also assailed.

It is also his contention that even in O.S. No. 4269/2008 there is no positive finding recorded stating that the relationship of landlord had not been established between the revision petitioners and the respondents. In this regard, he points out that the finding recorded is that relationship between the parties was either that of a tenant or that of a licensee. He also points out that R.F.A. No. 1424/2014 has been filed as against the decree passed in favour of respondents-landlords.

Learned Counsel appearing for the respondents takes me through the judgment in O.S. No. 4769/2008 and O.S. No. 5318/2008 disposed of on 31.07.2014, particularly to the findings recorded in page 28 of the said judgment to contend that a positive finding has been recorded regarding the relationship of landlord and tenant between the petitioners and tenants by referring to rental agreements that have been produced and marked. He further points out that the claim made by the revision petitioners contending that registered sale deed executed in the year 1973 by their father Appu Rao was a sham document has been disbelieved by the court below and the suit filed has been dismissed. It is also urged by him that by keeping the litigation alive and by merely filing an appeal against the said judgment and decree passed in O.S. No. 4769/2008 without there being any interim order of say of further proceedings in HRC case either in the suit or in the appeal, the litigation cannot be kept alive and the rights of the landlord who has established his title over the property by producing registered sale deed and who has proved the relationship of landlord and tenant cannot be denied and defeated.

Upon hearing the learned Counsel for both parties and on careful consideration of the materials on record, I find that the revision petitioners have failed in their attempt to establish that registered sale deed executed by their father in favour of B.L. Lakshminarayan was a sham document and was not an out and out sale. They have also failed to establish their right on the strength of the so-called re-conveyance deed alleged to have been executed by B.L. Lakshminarayan in favour of Appu Rao. The City Civil Court has dismissed the claim made by the revision petitioners in this regard. A perusal of the said judgment in O.S. No. 4769/2008 also disclosed that sale deed dated 20.07.1973 which was marked as Ex. P-1 has been relied upon to hold that it had presumptive value under Section 90 of the Indian Evidence Act. It has also held that B.L. Lakshminarayan had granted the property in favour of Appu Rao on tenancy basis and in that regard, reliance has been placed on the rental agreements that have been marked as Exs. P-17 & 18. It is in this background and having regard to the findings recorded in O.S. No. 4769/2008, the court below has held that not only that respondents established their right over the property as absolute owners, but even the relationship of landlord and tenant between the revision petitioners and the respondents had been established by virtue of the findings recorded in the suit.

These findings which are arrived at on contest, govern the parties and are binding on them. There is no interim stay of the judgment and decree passed in O.S. No. 4769/2008. The HRC court, no doubt, cannot enter into the title of the property. Eventually, if the revision petitioners succeeds in establishing their right that the registered sale deed of the year 1973 was a sham document and did not convey absolute right in favour of B.L. Lakshminarayana, or for that matter, the re-conveyance deed said to have been executed in the year 1973 on the very date of sale had clothed the revision petitioners with any right to seek any relief, then naturally the said findings would govern the parties and the proceedings in HRC court, or for that matter, the order passed by this Court would be subject to the result of the appeal which is pending.

Merely because a claim has been made and litigation is kept alive from 2008, this Court cannot defer the proceedings in HRC case filed. For the purpose of HRC proceedings, the relationship of landlord and tenant has been established in terms of the judgment and decree passed in O.S. No. 4768/2008 and the findings recorded therein are binding on the HRC court. The HRC court cannot go against such findings. Therefore, I do not find any illegality in the eviction order passed by the court below. The revision petition, therefore, being devoid of merits is dismissed.

However, it is made clear that in case the revision petitioners succeed in the appeal filed by them, depending on the nature of the relief they get, they would be entitled for restitution. Making this position clear, the rents deposited by the revision petitioners is ordered to be paid to the respondents-landlords. Having regard to the facts and circumstances, revision petitioners are granted six months time to hand over possession of the premises on or before 04.04.2016, subject to payment of regular rents at the rate of Rs. 190/- per month and on condition that no third party shall be inducted into the premises.