M. Shanthilal Jain vs M. Ugamraj Jain

A.V. Chandrashekara, J.—Heard the learned counsel for the parties.

The present revision petition is filed challenging the order of eviction passed by the Principal Civil Judge (Junior Divn.), Mandya, in HRC. 3/04 on 19.3.2010 and the affirmation of the same in REV (Rent) 4/10 by the Additional District Judge, Mandya, on 18.1.2013. Petitioner herein is the respondent in the above cases. The respondent herein is the petitioner in the eviction petition filed in HRC. 3/04 under Section 27(2)(c) and (r) of the Karnataka Rent Act, 1999, (hereinafter referred to as the Act, for brevity).

Parties will be referred to as petitioner and respondent as per their ranking in the trial court. The facts leading to the filing of the petition for eviction in HRC. 3/04 are as follows:

"a) Petitioner is stated to be the elder brother of the respondent. It is his case that he is the absolute owner of the schedule premises, a residential house situated in the first floor of a building bearing municipal khatha No. D2/236/657/1-B Mandya city. The respondent is stated to have taken possession of the schedule premises from him on rent agreeing to pay monthly rent of Rs. 1,500/-. However, he is stated to have not paid rents from January 1995. In spite of several requests and demands, he did not pay the rents and therefore he is liable to pay Rs. 1,69,641/- towards arrears of rent.

b) In spite of several demands, he did not vacate and hand over vacant possession of the premises, as such he got issued a demand notice on 14.7.2003 to pay the entire arrears of rent within two months, lest he would be forced to file an eviction petition. In spite of receiving the said notice, the respondent neither paid the arrears of rent nor handed over vacant possession of the premises. As such he was forced to file the eviction petition on 15.3.2004."

The respondent has filed detailed objections denying all material averments and has called upon the petitioner to strictly prove the contents of the same. He has denied the existence of jural relationship of landlord and tenant. It is his case that he is in possession of the schedule property as a member of joint family and as co-owner.

During the pendency of the petition, an application came to be filed by the respondent under Section 43 of the Act to refer the parties to have the issue adjudicated in the civil court of competent jurisdiction. The said application was disposed of 24.1.2005.

Against the said order, RRP. 4/05 came to be filed which was also dismissed by order dated 21.3.2005. The petitioner has been examined as P.W. 1 and one Sripal Jam is examined as PW2. The respondent has been examined as RW1 and 3 witnesses on his behalf were examined. 24 exhibits were got marked on behalf of the petitioner and 11 exhibits were got marked on behalf of the respondent.

Ultimately the learned judge has allowed the petition by framing the following points as found in paragraph 14 of the judgment:

"1) Whether the petitioner is entitled for an order of eviction as against the respondent under Section 27(2)(a) of Karnataka Rent Act, 1999?

2) Whether the petitioner is entitled for an order of eviction as against the respondent under Sec. 27(2)(j) of Karnataka Rent Act, 1999?

3) Whether the petitioner is entitled for an order of eviction as against the respondent under Sec. 27(2)(r) of Karnataka Rent Act, 1999?"

Point Nos. 1 to 3 are answered in the affirmative and ultimately the petition has been dismissed. It is this order dated 19.3.2010 passed in HRC. 3/04 which is called in question before the revisional court, i.e. District Court, Mandya, in RRP. 4/05.

Several grounds have been urged by the learned counsel for both sides.

After hearing the learned counsel for the parties, the following relevant points arise for consideration:

"1. Whether the trial court is justified in coming to the conclusion that there exists jural relationship of landlord and tenant in the present case?

Whether any interference is called for and is so, to what extent?"

REASONS

Point No. (1): Parties are own brothers. The case of the respondent is that he is in possession of the premises as a member of joint family and co-owner. The case put forth by the petitioner is that he is the absolute owner of the property in question and the respondent is a tenant under him on a monthly rent of Rs. 1,500/-. Since the respondent denied the jural relationship of landlord and tenant, he chose to file an application under Section 43 of the Act requesting the court to refer the parties to the civil court.

It is useful to refer to the provisions of Section 43 of the Act. It reads thus:

"43. Dispute of relationship of landlord and tenant.

(1) Where in any proceeding before the Court, a contention is raised denying the existence of relationship of landlord and tenant as between the parties it shall be lawful for the Court to accept the document of lease or where there is no document of lease, a receipt of acknowledgement of payment of rent purported to be signed by the landlord a prima-facie evidence of relationship and proceed to hear the case.

(2) Where:

(a) the lease pleaded is oral and either party denies relationship, and no receipt or acknowledgement of payment of rent as referred to in sub-section (1) above is produced; or

(b) in the opinion of the Court there is reason to suspect the genuine existence of the document of lease or the receipt or acknowledgement of payment of rent

the Court shall at once stop all further proceedings before it and direct the parties to approach a competent Court of civil jurisdiction for declaration of their rights."

The application was objected by the petitioner and ultimately I.A. 1 was dismissed on 24.1.2005. What is observed in the said order is that jural relationship between the parties is admitted and that the court can look into the issue of jural relationship of landlord and tenant. Thus it has come to the conclusion that there was no need to refer the matter to the civil court. On a reading of the entire order, it is evident that the learned judge has not given any finding about the existence of jural relationship of landlord and tenant between the parties.

It is in this regard Section 43 of the Act assumes importance. When the existence of jural relationship of landlord and tenant is disputed, the party who seeks eviction is expected to furnish written agreement of lease or rent receipt and in the absence of the same, one cannot hold that there is existence of jural relationship of landlord and tenant. Even if the party seeking eviction were to produce rent agreement or rent receipts and the court suspects the genuineness of those documents, then also it should refer the matter to the civil court. By no stretch of imagination the order dated 24.1.2005 could be considered as one indicating either expressly or impliedly about the existence of jural relationship of landlord and tenant between the petitioner and respondent herein.

The apex court in the case of Life Insurance Corporation of India Vs. M/s. Indian Automobiles and Co. and others, has held the rent court cannot go into the niceties of ownership when the very ownership asserted by the petitioner is disputed. What is held in the said decision is that when there is a serious dispute about the very existence of relationship of landlord and tenant, the rent court being the court with limited jurisdiction cannot go into that question and it has to be decided by a civil court of competent jurisdiction.

The argument advanced by learned senior counsel before the apex court is found in paragraph 20 of the judgment in the case of L.I.C. OF INDIA (supra) and the same has been accepted by the apex court. Paragraph 20 of the said decision is relevant and is extracted below:

"20. But we think Sri. Parasaran is right in the third contention urged by him before us which goes to the root of the matter. His argument is that a Rent Controller and, on appeal from him, the Court of Small Causes, is not competent to go into a question of title to immovable property and that a Civil Court cannot be barred from examining a claim of title merely because the question may have had to be considered by the Rent Tribunals as a collateral issue is deciding certain applications before them. He contended that it is a basic proposition, well-settled by authority, that a Tribunal of limited jurisdiction like the Rent Controller (this expression will, hereinafter, also include a Court of Small Causes disposing of an appeal from him) cannot be clothed with jurisdiction to decide far reaching questions of title to immovable property. This, he said, is a proposition that is borne out an general principles as well as on the provisions of the Rent Control Act. Taking up the provisions of Ss. 10 and 19 which read thus:

S. 10(1)- Eviction of tenants. A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section or Ss. 14 to 16:

Provided that nothing contained in the said sections shall apply to a tenant whose landlord is the Government:

Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitle to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in the said sections, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.

S. 19- Decisions which have become final not to be reopened-Any application under Section 3-A or Section 12, and any application under sub-section (2) or sub-sections (3) or sub-section (3-A) of S. 10 or under S. 14, 15 or 16, shall be summarily rejected by the authorized officer or the Controller, as the case may be, if such application raised between the same parties or between parties under whom they or any of them claim, substantially the same issues as have been finally decided or as purport to have been finally decided in a former proceeding-

(i) under this Act, or

(ii) under any other law from time to time in force before the date of the commencement of this Act and relating to matters dealt with in this Act.

Counsel contended that S. 10 makes it clear beyond doubt that the Rent Controller is precluded from deciding any issue regarding title to the property and that, if any such question arises, he should leave it to be decided by Ordinary Civil Courts in appropriate proceedings. The procedure to be adopted by him is disposing of the applications before him is a summary one hardly conducive to a satisfactory disposal of such complicated questions. Under Rule 12(2) he is required to decide applications by recording a required to decide applications by recording a brief note of the evidence of parties and witnesses and decide matters after giving the parties an opportunity to state their case; more or less, in the manner in which a Court of Small Causes decides cases before it. Indeed, in the Presidency Town, he is subordinate to the Court of Small Causes which has been notified as the authority to hear appeals from his orders and it is a well-settled proposition that the Court of Small Causes is not competent to adjudicate on questions of title. For these reasons, learned Counsel submits, the decision of the Court of Small Causes in the earlier proceedings cannot fetter a Civil Court from adjudicating upon all the issues arising before it in a Civil Suit."

In the present case, while deciding the main petition for eviction, the learned judge has come to the conclusion that the petition schedule premises is required for the bona fide use and occupation of the petitioner and the respondent has committed default in the matter of payment of rents. The finding on these scores is based on the assumption that the existence of jural relationship of landlord and tenant between the parties has already been decided on 24.1.2005 while passing orders on I.A.I. This is a wrong assumption. The trial court has adopted wrong approach to the real state of affairs. As already discussed, the order dated 24.1.2005 does not even remotely indicate about the existence of jural relationship of landlord and tenant between the parties.

Learned counsel for the petitioner has relied on another decision in the case of Babulal and Another Vs. K. Sharadamma and Another, . As per the facts of the said case, the tenant had strongly denied the relationship of landlord and tenant between himself and the petitioner. He had failed to prove non-existence of such relationship. That itself is a ground for eviction, according to this decision, under Section 27(2)(o) of the Act. As per the facts of the said case, the schedule premises had fallen to the ownership of the petitioner by virtue of the will executed by his grandfather. Subsequent to his death, the tenants had paid rents to the legatee on the basis of the will. Therefore the said decision is clearly distinguishable on facts and hence, it is not of any assistance to the case of the petitioner in any manner.

Suffice to state that the approach of the trial court and appellate court is incorrect and improper. When the very existence of jural relationship of landlord and tenant between the parties is seriously disputed and when no documentary evidence like rent receipt of rent agreement are produced before the trial court, the order in question is not sustainable either in law or on facts. Hence the trial court and revisional court have committed a serious illegality in coming to the conclusion about the alleged existence of jural relationship of landlord and tenant between the parties. Hence point No. (1) is answered in the negative.

Point No. (2): In view of the finding on point No. (1), the revision petition will have to be allowed and the impugned order has to be set aside. In the result, the following order is passed:

ORDER

The revision petition is allowed. The order passed in HRC. 3/04 on 19.3.2010 by the Principal Civil Judge (Junior Divn.), Mandya, is set aside. The petitioner is directed to obtain a declaration from the competent civil court. Parties to bear their own costs.

If the revision petitioner has deposited any amount towards arrears of rent either in this court or in the trial court, he is permitted to withdraw the same.