M. Sharada vs Immanuel Kariappa & Others

CASE NUMBER.,PROPERTY NUMBER

HRC NO.89/2003,Door No.8-14-1277

HRC NO.92/2003,Door No.8-14-1301

(a) the lease pleaded is oral and either party denies relationship, and no receipt or acknowledgment 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.â€​,

Thus Section 43 clearly shows that the dispute raised should be about the existence of the landlord and tenant relationship and not about the,

title. The section further indicates that such dispute should be genuine. The Hon’ble Supreme Court inJ oseph Kantharaj and another vs.,

Attarunnissa Begum (2010)2 SCC 619 while holding that the dispute raised shall be genuine, in para 10 of the judgment held as follows:",

“10. We may however clarify that a mere assertion by a tenant that he is in possession in part-performance of an agreement of sale, or the",

mere filing of a suit for a specific performance, by itself will not lead to deferment of the eviction proceedings under Section 43 of the new Act.",

But where the respondent in an eviction proceeding under the Rent Act denies the relationship of landlord and tenant contending that he is not in,

possession as a tenant and produces and relies upon an agreement of sale in his favour which confirms delivery of possession in part-performance,",

and a specific performance suit is pending and there is no lease deed, or payment of rent from the date of such agreement of sale, or no",

acknowledgement of attornment of tenancy, Section 43 of the new Act may apply. But a word of caution, Courts dealing with summary",

proceedings against tenants under the Rent Acts for eviction, should be wary of the defendants coming forward with defences of agreement",

of sale, lest that becomes a stock defence in such petitions. Unless the court is satisfied prima facie that the agreement is genuine and",

defence is bona fide, it should not defer the proceedings for eviction under the Rent Acts.â€​",

(emphasis supplied),

Thus it is clear that to invoke Section 43 of the Act the dispute raised should be with regard to the relationship of the landlord and tenant and,

secondly such dispute should be genuine. Whether those two conditions were satisfied is the point to be considered in these cases. For that purpose,",

we have to examine the definitions of the ‘landlord’ and ‘tenant’ under Section 3(e) and 3(n) the Act which read as follows:,

3(e). “landlord†means a person who for the time being is receiving or is entitled to receive, the rent of any premises, whether on his own",

account or on account of or on behalf of or for the benefit of any other person or as a trustee, guardian or receiver for any other person or who would",

so receive the rent or to be entitled to receive the rent, if the premises were let to a tenant;",

3(n). “tenant†means any person by whom or on whose account or behalf the rent of any premises, is or but for a special contract would be,",

payable, and includes:",

i) a sub-tenant;,

ii) any person continuing in possession after the termination of his tenancy, but does not include any person to whom a licence as defined in Section 52",

of the Indian Easements Act, 1882 (Central Act 5 of 1882) has been granted:",

From the above provisions, it becomes clear that the requisites of tenant and landlord relationship are the payment and receipt of the rent. For that",

the title of the person receiving the rent is not sine qua none.,

In these cases, relying on Ex.P45 the perpetual lease deed dated 05.11.1897 and Ex.P46 the registered deed of transfer of perpetual lease hold",

rights, the petitioner contended that her father was the Moolgenidar/permanent lessee of the petition properties. Relying on Ex.P2 the registered",

WILL dated 26.04.1972, she contended that by virtue of the bequest made under the said document, she acquired the rights of her father over the",

property, let out the properties and was collecting the rents.",

None of the heirs of Doggu Kottary questioned the WILL relied upon by the petitioner. It is the settled proposition of law that the tenant being the,

stranger is not competent to question the WILL of the landlord. Further, the respondents themselves admitted that they were the tenants of the",

property and they had paid the rent to the petitioner till the period stated in the notices.,

Respondents admitted that they were the tenants under the petitioner and they were paying rent to her all along. Their only contention was that,

they have purchased the rights of the Mulagar (ownership) himself from his heirs, therefore, there is a merger of their right of sub tenant with the right",

of the owner/original lessor. Therefore they claim that they are not liable to pay the rent or vacate the premises. Section 109 of the Indian Evidence,

Act, 1872 states that when the question is whether persons are landlord and tenant and it has been shown that they have been acting as such, the",

burden of proving that they do not stand, or have ceased to stand to each other in those relationships respectively, he is on the person who affirms it.",

Therefore, once the jural relationship was admitted the presumption of such relationship was in favour of the petitioner. The burden was on the",

respondents to prove that such relationship was ceased. Therefore, the Court has to see whether the respondent discharged such burden.",

Though the petitioner in her evidence deny the suggestion that the respondents have purchased the property from the Mulagar and the relationship,

of the executants of those sale deeds with Mulagar, tenants did not produce the said sale deeds relied upon by them. They did not enter the witness",

box to substantiate their case. In HRC No.92/2003 the first respondent did not set up any sale deed in his favour, but contended that his daughter and",

daughter in law have purchased the property. When the respondents did not have the seriousness of proving their case at least by producing the,

relevant documents and leading evidence, it becomes hard to accept that the dispute raised by them is genuine one.",

Then the next question is whether the question of merger of the rights of the lessee and the owner of the property is a complicated question which,

cannot be examined by the Court under Section 27 of the Act. The question of merger was examined by this Court in Monnappa Kottari and others,

vs. David Pinto and another ILR 2006 KAR 3936 which was a similar case. In that case it was held that in view of the intervening rights of,

Moolagenidar (Permanent lessee), on the Chalagar (sub-tenant/ordinary monthly tenant) purchasing the moolagar’s right there will be no merger",

and the sub-tenant’s right is subject to the rights of moolagenidar. Para 17 and 18 of the said judgment, in that regard read as follows.",

“17. In view of the above, it is clear that the right of the mulgenidar or sub-mulgenidar cannot be extinguished except in case of violation of",

the conditions of mulgeni relating to payment of rent. Thus, if anybody purchases the right of mulgar, the same will always be subject to the right",

of mulgenidar or sub-mulgenidar. The rights of mulgenidar of sub-mulgendenidar are the intervening rights, in the case on hand, between the rights of",

mulgar and defendant No.1 (ordinary tenantiturned Mulgar).,

…………………………………… If the sub-tenant acquires the entire interest of the owner in the whole of the estate, the sub-tenancy",

merges into ownership and the estate of Sub-tenant stands enlarged into that of a full owner. It has further observed that, the situation would have",

been different if the sub-tenant would not have acquired the entire estate of the owner or the ownership interest in the entire estate forming subject,

matter of sub-lease. A merger is prevented if there is an intermediate estate outstanding with another at the relevant,

time.…………………………….â€​,

(Emphasis supplied),

Thus it is clear that the law on the point of merger was well settled by this Court in Monappa Kottari’s case and there was no complicated,

question of law which could not be decided by the Court in the proceedings under the Rent Act. Even assuming for the arguments sake that the,

respondents have purchased the property from the moolagar or his heirs as alleged, and petitioner committed breach of Moolageni agreements,",

respondents had to work out their remedy in appropriate proceedings for possession or recovery of rent etc. The failure of the trial Court and the,

District Court in appreciating these aspects while driving the petitioner to the Civil Court by invoking Section 43 of the Act was therefore wholly,

erroneous under law and the facts of the case.,

Then the next question is whether the petitioner was entitled for eviction of the respondents under Section 27(2)(a)(h)(o) and (r) of the Act.,

Admittedly the respondents did not pay the rent denying the jural relationship and failed to prove the ground of denial. Therefore, they clearly incurred",

the liability of eviction under Section 27(2)(a) and (o) of the Act.,

Section 27(2)(h) deals with the requirement of the premises by the landlord for the purpose of building, rebuilding or making any substantial",

addition or alterations to the same. Section 27(2)(r) deals with the requirement of the premises by the landlord for his own use and occupation either in,

the same form or in the reconstructed form.,

Though the petition is filed under section 27(2)(h) and (r) of the Act, in the petitions it is only said that the premises are required for making",

substantial alterations to the same. In the affidavits filed by way of chief examination, absolutely there is no whisper about the requirement of the",

premises for reconstruction/substantial alteration. Therefore these are not the fit cases to grant eviction on the grounds under Section 27(2)(h) and (r),

of the Act.,

For the aforesaid reasons, the petitions are partly allowed with costs throughout. The impugned judgment and decree dated 01.03.2010 in HRC",

Nos.89/2003 and 92/2003 passed by the Principal Civil Judge (Jr. Dn), Mangaluru D.K confirmed by the I Additional District Judge, Dakshina",

Kannada, Mangaluru on 10.02.2011 in R.R.P.Nos.15/2010 and 16/2010 are hereby set aside.",

The petitions in HRC Nos.89 and 92 of 2003 are hereby allowed on the grounds under Section 27(2)(a) and (o) of the Karnataka Rent Act, 1999.",

The prayer for ejectment under Section 27(2)(h) and (r) of the Act is hereby rejected.,

The respondents shall handover the vacant possession of the petition premises to the petitioner within 60 days from the date of this order.,