Kadaraki vs Smt. Onkaramma and Others

M.P. Chandrakantharaj Urs, J.—This appeal arises out of the judgment and decree dated 30.6.1977 passed by the Civil Judge at Davangere in O.S. No. 52/1975 on his file. The appeal is by the 2nd Defendant. In the course of this judgment, we will refer to the parties by the ranks assigned to them in the trial Court.

The 2nd Defendant was the transferee of a portion of the suit schedule property which he was occupying as a tenant. The Plaintiff�s suit was for specific performance of an statement to call the suit schedule property, including the portions in the occupation of the 2nd Defendant, by the 1st Defendant who was the owner of the whole of the suit schedule property. Because the 2nd Defendant purchased two rooms in his occupation, he was impleaded.

The Defendants contested the suit. It was held, it would suffice for us to say, the 2nd Defendant was not a bonafide purchaser without notice. On the other hand, it was held on evidence that the 2nd Defendant had knowledge of the transaction of the agreement to sell between the Plaintiff and the 1st Defendant and therefore he could not be considered to be a bonafide purchaser without notice. In that circumstance, the suit came to be decreed. While decreeing the suit, the trial Court has directed that successors in interest of the 1st Defendant who died during the pendency of the suit, must execute the sale deed in favour of the Plaintiff, on the Plaintiff is entitled to possession of two items, namely tenements bearing Door No. 690/2 and 690/4, the portion of the premises which were in occupation of the 2nd Defendant even prior to the suit agreement to sell. Aggrieved by the latter of the reliefs granted, the 2nd Defendant has preferred the present appeal.

We do not see any merit in the contention advanced by the 2nd Defendant that he is a bonafide purchaser without notice. On appreciating the evidence on record, the Court came to the correct conclusion that he was not a bonafide purchaser without notice and therefore he was not entitled to protect his subsequent purchase. In that view of the matter, the appeal as against that finding must fail.

But, in regard to possession, the fact was never in dispute that he was in occupation of the portion of the premises which he purchased as a tenant. In fact, the very fact of his occupying the premises as a tenant and living with the Plaintiff who was the tenant that the conclusion was reached that he had knowledge of the agreement between the Plaintiff and the 1st Defendant. Therefore, even if the sale in his favour is held to be bad in law, by that process, his possession as a tenant cannot be disturbed. The mere fact that the 1st Defendant agreed to put the Plaintiff in vacant possession, does not clothe the vendors with the authority to physically evict by procedure which is not known to law by virtue of the judgment and decree under appeal.

Section 21 of the Karnataka Rent Control Act 1961, begins with the nonabstante Clause and reads as follows:

21.Protection of tenants against eviction:(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or other authority in favour of the landlord against the tenant:

Provided that the Court may on an application made to it, make an order for the recovery of possession of a premises on one or more of the following grounds only, namely:

(a)...etc.

Therefore, as long as that law protects the tenant from eviction except on the grounds which follow the section extracted above, it is not possible for a Civil Court, whose jurisdiction is excluded, to evict a person indirectly what the landlord or landlady, cannot do directly. In that view of the matter, we must interfere with the judgment and decree in so far as it relates to direction or order at (d). Therefore, the appeal stands allowed by this Judgment to the extent indicated.

However, Mr. L.S. Venkatakrishna, learned Counsel appearing for Respondent-Plaintiff, strenuously contended that his Court should remove the technical defect in the decree by exercising its power under Rule 33 of Order 41 of the CPC His contention is founded on the decision of the Supreme Court in the case of Lala Durga Prasad and Another Vs. Lala Deep Chand and Others, . In that case, the Supreme Court after adverting to the manner in which the decrees for specific performance were being drawn up in India, pointed out the correct manner in which they should be drawn up. It held that where there was a subsequent purchaser, he also must join in the execution of the sale deed in favour of the successful Plaintiff along with the Defendant who had contracted to sell to the Plaintiff. However they cautiously added that in doing so, the subsequent purchaser need not be joined for special convenants made between the prior transferee and his vendor.

That decision has been followed by a learned single Judge of this Court in the case of Khadir Saheb Jaffar Saheb by Lrs. v. Amin Saheb 1981 (1) KLJ 321. In the latter mentioned decision, the learned Judge has also held that such technical defects can be corrected by the appellate Court in exercise of its power under Rule 33 of Order 41 of the CPC We have no hesitation to concur with that ruling.

Therefore, the trial Court erred in not declaring the sale in favour of the 2nd Defendant void as well as in not directing that he should join the execution of the sale deed in favour of the Plaintiff.

In that circumstance, we modify the decree now to read that in place of direction (d) which we delete, following shall be substituted "the sale in favour of 2nd Defendant being void, the 2nd Defendant shall join the 1st Defendant in the execution of the sale deed without prejudice to his rights as a tenant of the portions bearing Door Nos. 690/2 and 690/4".

The appeal is, accordingly, allowed partially and with the modification indicated above. But, in the circumstances of the case, there will be no order as to costs.