Karnataka High Court
Smt Jothinarayan Das vs M/S Devatha Saree Bhandar on 18 August, 2022
Bench: B.M.Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF AUGUST 2022
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
CIVIL REVISION PETITION NO. 289/2018
BETWEEN :
SMT. JYOTHI NARAYAN DAS
W/O NARAYAN DAS BODHARAM,
AGED ABOUT 73 YEARS,
SHOP NO.21,
DEVATHA MARKET,
CHICKPET,
BENGALURU - 560 053.
... PETITIONER
(BY SRI. H J SANGHVI., ADVOCATE)
AND:
1. M/S DEVATHA SAREE BHANDAR
REPRESENTED BY ITS PARTNERS,
2. SRI D K PANDURANGA
S/O DEVATHA KRISHNAIAH SETTY
AGED ABOUT 80 YEARS,
3. SRI D P VINAY MOHAN
S/O D K PANDURANGA
AGED ABOUT 45 YEARS,
2
4. SMT VANI VINOY
W/O D P VINOY MOHAN
AGED ABOUT 37 YEARS
ALL ARE R/AT
NO.43, 30TH CROSS,
3RD MAIN, 7TH BLOCK
JAYANAGAR,
BENGALURU - 560 011.
... RESPONDENTS
(BY SMT. SRUTI CHAGANTI, ADVOCATE FOR C/R)
THIS CIVIL REVISION PETITION IS FILED UNDER SECTION
18 OF THE KARNATAKA SMALL CAUSES COURTS ACT, 1964
AGAINST THE JUDGEMENT AND DECREE DATED 05.06.2018
PASSED IN S.C. NO.192 OF 2013 ON THE FILE OF THE XIII
ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU
DECREEING THE SUIT FOR VACANT POSSESSION.
THIS CIVIL REVISION PETITION HAVING BEEN HEARD
AND RESERVED ON 06.12.2021 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THIS COURT MADE
THE FOLLOWING:
3
ORDER
The petitioner, who is the defendant in SC No.
192/2013 on the file of the XIII Additional Judge, Court of
Small Causes, Bengaluru (for short, 'the Small Causes Court'),
has impugned the judgment and decree dated 05.06.2018 in
such proceedings. The Small Causes Court by this impugned
judgment has directed the petitioner to quit and handover
vacant possession of the commercial premises bearing No.21
in Property No.7, Devatha Market, Chickpet, Bengaluru - 560
053 ('the subject premises'). The Small Causes Court has also
directed the petitioner to pay a sum of Rs.250/- per month as
rental arrears for the months from March 2010 until
22.08.2012 and a sum of Rs.8000/- per month as damages
from 22.08.2012 till the date the petitioner vacates and hands
over vacant possession of the subject premises. The Small
Causes Court has concluded that the petitioner's possession
of the subject premises from 22.08.2012 is unauthorized.
2. The respondents have initiated the proceedings in
SC No. 192/2013 for ejectment contending that the second
respondent, Sri D.K. Panduranga, is the owner of the subject
premises. He has acquired title to this property under the
Partition Deed dated 14.08.1980. In terms of this partition
deed, the immovable properties that are described in
Schedules - C, D and E appended to such deed are allotted to
him, and the subject premises is mentioned in Schedule-D.
He has contributed the subject premises towards the capital
of the firm, M/s Devatha Saree Bhandar [the Firm], and this is
borne out by the terms of the Partnership Deed dated
01.04.1988. The terms of the partnership are revisited with
effect from 01.04.1992 when Sri D.K.Panduranga, who was
managing the Firm's affairs until then, expressed his inability
to supervise the affairs of the Firm, and his son,
Sri D.P. Vinay Mohan [the third respondent] took over the
responsibilities. The Firm is reconstituted in the year 2006
admitting the fourth respondent, Smt. Vani Vinay, the wife of
the third respondent.
3. The respondents contend that the petitioner, who
is in possession of the subject premises as a tenant, was
paying monthly rent at the rate of Rs.210/-. When the
petitioner stopped paying rent from the month of March 2010,
they have caused legal notice dated 22.08.2012 terminating
the tenancy and calling upon her to vacate and hand over
vacant possession of the subject premises. The petitioner has
caused reply notice dated 27.08.2012 denying that she is in
possession of the subject premises as a tenant under the
respondents; M/s J.N. Textiles, a partnership firm with she
as one of the partners, is in possession of the subject
premises as the tenant. However, they do not recognize any
person other than the petitioner as the tenant because of the
express agreement [as part of the lease agreement dated
15.10.1969] and that the petitioner can alone occupy the
subject premises for the purposes of running business under
the name and style, M/s Jyothi Narayandas.
4. The respondents further contend that they have
also commenced suit in OS No. 314/2011, and there is an
interim injunction order restraining the petitioner from
carrying on any business in the subject premises under any
name other than under the name and style, M/s Jyothi
Narayandas. The petitioner must hand over vacant
possession of the subject premises, and because she has not
handed over the possession, she must be ejected by a decree
along with a decree for damages at the rate of Rs.8000/- per
month from the date of the suit till the date of delivery of
vacant possession.
5. This Court must, at this stage, record that the
respondents had described the subject premises as
measuring East to West 18' and North to South 9'10" in
Paragraph-8 of the plaint, but in the Schedule appended to
the plaint, the subject premises is described as measuring
East to West 15.9' and North to South 11.1' and totally
measuring 176.49 Sq. Ft. Subsequently, Paragraph- 8 of the
plaint is deleted by amendment permitted on 19.08.20131.
The second respondent, Shri D.K.Panduranga, who is
examined as PW1, has also stated in his affidavit in lieu of
examination-in-chief that the subject premises measure East
to West 18' and North to South 9'10". But the Small Causes
Court has expunged this statement by its order dated
28.01.2016.
6. The petitioner has filed Written Statement
contending that there is no jural relationship of landlord and
tenant between her and the respondents. She has asserted
that the respondents have deliberately not filed any
1 The petitioner has contested the maintainability of the suit denying
this measurement and contending that the subject premises
measures only 9' x 14'. The petitioner's defence in this regard is in
the additional written statement
proceedings against M/s J.N.Textiles, a partnership firm
which is in possession of the subject premises for over 44
years. The Firm [M/s Devatha Saree Bhandar] cannot be the
landlord of the subject premises. Initially, Sri Narayandas
Bodharam was in possession of one of the premises in the old
building called Devatha Market. The building was
reconstructed by M/s Devatha Building. The partners of this
firm let out the subject premises [which measures 9' x 14'] to
her after receiving huge goodwill and advance. Sri D.K.
Panduranga commenced proceedings in HRC No. 516/1991
for eviction under the provisions of the erstwhile Karnataka
Rent Control Act, 1961 describing the subject premises as
measuring 9'x 14'. Neither in his pleadings nor in his
evidence in such proceedings, he mentioned that he had
contributed the subject premises as his capital contribution
to the Firm. The petitioner has referred to different
proceedings2 commenced by the respondents to vindicate her
stand that the subject premises measures only 9' x 14'.
7. The petitioner has further contended that until
17.08.1980, rental receipts are issued by M/s Devatha
Building and thereafter, the rental receipts are issued by Sri
D.K. Panduranga on behalf of M/s Devatha Market. At no
point of time, the rental receipts are issued by the Firm [M/s
Devatha Saree Bhandar]. M/s Devatha Building, a
partnership firm, is the absolute owner of the subject
premises. She is a partner of M/s J.N.Textiles, and this firm
is an occupation of the subject premises. This firm is not a
party to the present proceedings. On the question of arrears
of rents, the petitioner contends that she is prompt in
tendering rents, but the concerned is in the habit of refusing
2 The proceedings are in HRC No.515/1991 [against Sri Dhanraj], HRC
No. 10538/1991 [against M/s Manoj Textiles], HRC No. 10338/1991
[against Sri N Dharoonlal], HRC No. 1448/1992 [against Sri
Mahaveerchand Uttam Chand], HRC No. 10219/1995 against M/s
Devatha Fabrics, HRC No. 10228/1995 [against M/s K. Ishwari and
Sons] and HRC No. 10218/1995 [M/s Sumerlal Bhandari].
to receive rents. Therefore, she has caused legal notice dated
19.06.2010 enclosing a cheque for a sum of Rs.840/- towards
the rent payable for the period between April 2010 and July
2010. She has also tendered a sum of Rs.1260/-and another
sum of Rs.420/- by money order, apart from another sum of
Rs.840/-. These amounts have been refused.
8. Sri D.K.Panduranga, the second respondent, has
examined himself as PW13. In his Examination-in-chief he
has reiterated the petition averments, and in his cross-
examination, he has stated inter alia that his father, his
brothers and he are the original owners of the property
known as 'M/s Devatha Market'. His family members have
purchased this property in the year 1946. The subject
premises is allotted to his HUF in a family partition. The
Firm acquired title to this property in the year 1988 with the
3 The office copy of the legal notice dated 22.08.2012, the reply notice
dated 27.08.2012, certified copy of the orders on OS No. 314/2011,
Partnership Deeds dated 01.04.1988, 01.04.1992 and 01.04.2006,
Property Assessment Extract and the Lease Deed dated
15.10.1969 are marked as exhibits P1-P10 through him.
same being contributed towards its capital. Prior to 1988 he
was collecting the rents as the kartha of his HUF and
maintaining the accounts thereof in the name of M/s Devatha
Market. There is no firm, either as a partnership firm or a
proprietary concern, under the name and style, M/s Devatha
Market, but a bank account is maintained in this name for
the benefit of his family members. From 1988, the rents have
been collected and credited to the Firm [M/s Devatha Saree
Bhandar].
9. However, Sri D.K.Panduranga has denied the
suggestion that from the very inception, M/s J.N.Textiles is in
possession of the subject premises though he admits that he
has commenced proceedings in HRC No.516/1991 against
the petitioner as per Exhibit-D1 in respect of the subject
premises describing it as measuring 9' x 14'. He has also
stated that when he commenced such proceedings he was not
aware of the actual measurement. He has admitted the
suggestion that the shop to the west of the subject premises
is numbered '15' and he has mentioned the combined
measurement of these two premises in his evidence in HRC
No. 516/1991 as 22' x 9'. His deposition in such proceedings
is marked as Exhibit D2. He has also admitted that he has
transferred this western shop in favour of Sri Dhanraj, and in
the sale deed executed in his favour, the adjacent premise is
described as measuring 13' x 9'. But he has qualified this
statement asserting that measurement mentioned therein is
an approximation.
10. Sri D.K.Panduranga is categorical that the actual
measurement of the subject premises is 14.4' x 11' [total 179
Sq. Ft.]. When certain Rental Receipts are confronted to him
[which are marked as Exhibits D2 - D7] he has explained that
the name 'Devatha Market' is only an ad hoc name and all the
receipts have been accounted in the Firm's favour.
Responding to the suggestion that he has commenced the
proceedings in HRC No.516/1991 in his individual capacity
and therefore the Firm could not be the owner of the subject
premises, he has stated that he commenced the proceedings
under the belief that he could initiate such proceedings on
behalf of the Firm and because the khata for the subject
property was mutated in his name. He has denied the
suggestion that the Partnership Deed dated 01.04.1988
[Exhibit P6], which is executed by him, his son, Sri Vinay
Mohan [the third respondent] and his HUF for contributing
the subject premises as capital of the Firm, is a sham
document.
11. Sri D.K. Panduranga has been cross-examined on
different aspects such as the Firm's address4; the khata for
the subject premises continuing in his name; the
commencement of the different proceedings against other
tenants; the Partnership Deed dated 01.04.1988 not being
4 He has stated that the Firm's address is No.529, First Floor, Ramesh
Market, Avenue Road, Bengaluru, but the address as shown in the
plaint is the common address of all the partners of the Firm.
acted upon, the deposit of a sum of Rs.840/- by M/s J.N.
Textiles in O.S. No.314/2011; and his son, the third
respondent, commencing proceedings for eviction of certain
tenants in possession of other premises and the disposal of
those proceedings. He has admitted most of these
suggestions.
12. The petitioner's power of attorney, Sri Bansi Lal K
Chhabria, is examined as DW1. He has reiterated the
petitioner's pleadings in his examination-in-chief. Apart from
exhibits D1-D7 which are marked in the cross-examination of
Sri D.K.Panduranga, he has marked a copy of his power of
attorney and notarized copies of the sale deeds executed by
the respondents for the other premises in the building. In his
cross-examination he had admitted that Sri Narayandas was
running a textile business in the subject premises under the
name and style, M/s Jyothi Narayandas Textiles, and he was
working with him as an assistant. However, in the year 1971,
he joined the firm comprising of himself and the petitioner,
who is his mother's younger sister. They have not obtained
any permission from the landlords for the change. No
permission is obtained for this change. Sri Narayandas is
aged about 78 years and his wife, the petitioner, is aged
about 65-70 years. The couple normally do not visit the
subject premises except for Puja. He has stated that he could
produce documents to show that he is operating the firm's
business as the managing partner, but he has not produced
any such document.
13. Sri Bansi Lal K Chhabria is also permitted to
further examine himself. He has accordingly filed his affidavit
on 05.01.2018 in lieu of further examination-in-chief. This is
after the Court Commissioner5 appointed by the Small
Causes Court has filed his report and is examined as CW1.
5 The Assistant Director of Land Records, Bengaluru, who at that point
of time was in Office holding additional charge, is appointed as the
Court Commissioner.
In his further evidence, Sri Bansi Lal K Chhabria has stated
that the carpet area of the subject premises is 9' x 14' [126
Sq.Ft] and the plinth area is 151.2 Sq.Ft. He has also stated
that because the carpet area is below 14 Sq.Mts and the rent
for the subject premises is only Rs.210/- per month, the
respondents' suit for ejectment must be dismissed.
14. The Court Commissioner, in his report filed on
22.07.2017, has stated that the carpet area of the subject
premises is 14.76' [in length] and 9.02' [in width]; the plinth
area of the subject premises is 16.07' [in length] and 10.33'
[in width]; the area marked in Blue colour [in the sketch] is
outside the plinth area6. Though the Court Commissioner
has mostly reiterated the contents of his Report in his
examination-in-chief, in his cross-examination he has
admitted that he has measured the subject premises in
meters but has mentioned the measurements in his Report in
6 The Commissioners report, which includes the sketch and the
different documents furnished to the Commission, are marked as
exhibits C1 - C10.
Sq. Ft. and he has applied the conversion scale of 10.76 Sq.
Ft. per Sq.Mtr. He has also mentioned that the petitioner is
in possession of the premises that measures East to West
4.05 Mts. and North to South 2.75 Mts. and the total
measurement is 12.37 Sq. Mts.
15. The Small Causes Court, in the light of the rival
pleadings and the aforesaid evidence on record, has formed
the following points for consideration7:
[a] Whether the respondents prove that they have
validly terminated the tenancy of the subject
premises in favour of the petitioner, and
[b] Whether the respondents are entitled for the relief
sought for by them
16. The Small Causes Court, on the petitioner's
defense that the respondents' suit must be rejected because
7 In the questions framed, the Small Causes Court has referred to the
parties as they are arrayed in the proceedings before it.
the subject property measures more than 14 Sq. Mt., has
opined that the petitioner has not placed any material on
record to substantiate the measurement of the subject
premises as asserted by him. The Small Causes Court has
concluded that the petitioner's witness [DW1] has admitted
that the plinth area of the subject premises is 151.2 Sq.Ft.,
and when this is converted into Sq.Mt, the plinth area
measurement would be 14.03 Sq. Mt; if the plinth area is
more than 14 Sq. Mt, in the light of this Court's decision in
K.T.Gowda v. Nagaraj Rao8, a suit for ejectment would be
maintainable.
17. The Small Causes Court has also concluded that
the issuance of the legal notice dated 22.08.2012 is not in
dispute, and this notice satisfies the requirements of Section
106 of the Transfer of Property Act, 1882. The Small Causes
Court, observing that the agreed rate of monthly rent and the
8Reported in ILR 2008 Kar. 2753
market rent are not disputed, has directed the petitioner to
pay arrears of rent and damages as aforesaid.
18. It is seen from the records that the petitioner has
deposited the following amounts in the present proceedings:
1 Rs. 2520/- This Court on 04.07.2019 has
permitted acceptance of the
deposit of this amount.
Consequentially, the petitioner
has submitted re-validated pay
order dated 21.05.2019 and this
deposit is accepted
2 Rs. 5040/- This Court on 25.07.2019 has
permitted acceptance of the
deposit of this amount.
Consequentially, the petitioner
has submitted re-validated pay
order dated 21.05.2019 and this
deposit is accepted
3 Rs. 1260/- The petitioner has filed pay order
dated 06.11.2020 along with the
memo dated 27.11.2020.
However, there is no order to
accept this deposit
4 Rs. 1890/- The petitioner has filed pay order
dated 01.04.2021 along with the
memo dated 16.07.2021.
However, there is no order to
accept this deposit
Rs. 10,710 Total
The petitioner has recently frilled another Memo for deposit of
Rs.2,520/-.
19. This Court on 06.12.2021 has recorded the
learned counsels' submissions that this Court, subject to final
orders, may permit the petitioner to take back the Pay orders
dated 06.11.2020 and 01.04.2021. This Court has also
recorded that the submissions in this regard are taken on
record for appropriate consideration at the time of final
disposal. Further, the learned counsel for the parties by
mutual consensus are permitted to place on record certain
additional material, including a certified copy of the order
dated 27.01.2003 in HRC number 516/1991 and a copy of
the plan for the reconstruction of the Devatha Market. These
additional materials are taken on record without objections
by other side.
20. This Court in the light of the rival submissions,
which are adverted to later, will have to consider the following
questions:
[1] Whether the petitioner should succeed in her
defense that the respondents must fail in their suit
for ejectment because there are serious questions
over their claim to the subject premises.
[2] Whether the petitioner is successful in establishing
that the subject premises measure less than 14
Sq.Mt. and therefore her tenancy is protected under
the provisions of Karnataka Rent Act, 1999.
[3] Whether the Small Causes Court has erred in
concluding that the respondents have terminated
the lease of the subject premises in favour of the
petitioner and the petitioner is liable to pay rental
arrears at the rate of Rs.210/- per month from
March 2010 till 22.08.2012 and damages at the
rate of Rs.8,000/- per month that date till the date
of handing over vacant possession of the subject
premises to the respondents.
21. Sri H.J. Sanghvi, the learned counsel for the
petitioner, submits that the Small Causes Court has failed to
consider that the petitioner has demonstrated that the
respondents can neither assert clear and indisputable title to
the subject premises in themselves nor in the Firm [M/s
Devatha Saree Bhandar] and as such, they could not
successfully maintain the suit for ejectment. If there are
serious disputes over title, a suit for ejectment cannot be
sustained. The civil Court has not even considered this
question and therefore, this Court must intervene.
22. Sri H.J. Sanghvi, in support of this canvass,
argues that the respondents contend that Sri D.K.
Panduranga, his father and brother were the owners of the
larger property comprising of the subject premises, and in the
family partition vide the Partition Deed dated 14.08.1980, Sri
D.K.Panduranga and his son, Sri Vinay Mohan [the third
respondent] are allotted the subject premises. However, the
respondents cannot dispute that Sri D.K.Panduranga was
collecting the rents as the proprietor of M/s Devatha Market
as he has admittedly issued Rental Receipts as per Exhibits
D2-D7 even after the aforesaid partition. Though the
respondents contend that Sri Panduranga has brought the
subject premises into the Firm's capital, and that the Firm is
reconstituted on 01.04.1992 and again on 01.04.2006
[Exhibits D7 and D8], they have not issued any notice for
attornment of tenancy.
23. Sri H.J. Sanghvi submits that if indeed the subject
premise is brought in as the Firm's capital in the year 1988,
Sri D.K.Panduranga would not have commenced proceedings
in HRC No. 516/1991 in his personal capacity. Neither in his
pleadings nor in his evidence in these proceedings, he has
stated that the Firm was the owner of the subject premises
and in fact, he has asserted that he is the absolute owner of
the subject premises. This completely belies the respondents'
case that the Firm is the absolute owner of the subject
premises. Despite these contra circumstances, the
respondents have not produced, except the partnership
deeds, any document to show that the income tax returns are
filed on behalf of the Firm disclosing either that it is the
owner of the subject premises or that the rental receipts have
been accounted for on behalf of the Firm.
24. Smt. Sruti Chaganti, the learned counsel for the
respondents, submits that the petitioner, in the Reply Notice
dated 27.08.2012 [Exhibit P4], is categorical that M/s
Devatha Building was receiving rents in the year 1980, and
thereafter on 07.08.1980 notice is issued to her informing
about the partition amongst the family members and for
payment of rents to Sri D.K.Panduranga. The petitioner does
not dispute that the agreed rent is last paid to Sri
D.K.Panduranga. Sri D.K.Panduranga and his son, Sri Vinay
Mohan [the third respondent], who were partners of the Firm
[M/s Devatha Saree Bhandar], and Sri D.K.Panduranga, as
the Kartha of his HUF, have signed the Partnership Deed
dated 01.04.1988 [Exhibit-P6]. The terms of this Partnership
Deed demonstrate that the subject premises and the other
premises owned by the aforesaid HUF is contributed as
capital of the Firm.
25. Smt. Sruti Chaganti argues that if the aforesaid
circumstances are undisputed, it cannot be disputed that the
respondents continue to be the owners of the subject
premises albeit as the partners of the Firm. She canvasses
that in law a partnership is not a separate entity from its
partners. A partnership is only a compendious name for all
the partners, and such firm will not have its own separate
rights distinct from the partners' rights. When one talks of
firm's property, one necessarily speaks of partners' property
because their interest in the firm's property would be as
tenants-in-common. As such, in the present case the HUF's
interest in the subject premises is not extinguished or
abridged by its contribution as capital of the Firm9. She
further canvasses that there would be statutory attornement
of tenancy in favour of the Firm with the aforesaid change
because of the provisions of section 109 of the Transfer of
Property Act, 1882. The jural relationship between the
respondents and the petitioner is established. Therefore, the
petitioner cannot succeed in her defence that the
respondents' suit must fail because there are serious
questions over their claim to the subject premises.
26. Smt. Sruti Chaganti next submits that Sri D.K.
Panduranga has commenced proceedings in HRC
No.516/1991 under the provisions of the Karnataka Rent
Control Act as a 'landlord' of the subject premises because
9 In support of this legal canvass, Smt. Sruti Chaganti relies upon the
decision in S V Chandra Pandian and others v. S V Shivalinga
Nadar reported in (1993)1 SCC 589 and in Sujan Suresh Savant v
Dr.Kamalkant Shantharam Desa reported in 2004 SCC Online Bom.
under the provisions of such Act a landlord could commence
such proceedings. In this regard, she relies upon the
provisions of section 3 (h) of this enactment. She also further
submits that when a partner initiates proceedings, he
necessarily acts on behalf of the firm as its agent and
therefore, Sri D.K. Panduranga was within his competence as
a partner of the Firm and as a co-owner to initiate the
proceedings under the erstwhile enactment.
27. It is salient that the respondent either does not
dispute or cannot dispute that she was inducted into the
subject premises as a tenant by Sri D.K. Panduranga's family
members in the year 1969 with the execution of the Lease
Deed dated 26.06.1969 (Ex.P10); that after the partition in
the year 1980 in which the subject premises is allotted to
Sri.D.K. Panduranga, a Letter dated 07-08-198010 is
addressed to the respondent calling upon her to pay rents to
A copy of this Letter is produced in the present proceedings
D.K.Panduranga and son (HUF); that after this letter, the
respondent has tendered rents to Sri.D.K.Panduranga; that
with the execution of the Partnership dated 01.04.1988
(Ex.P6), D.K.Panduranga and son (HUF) is admitted as one of
the partners of the Firm with the subject premises being
contributed as capital; that even as of today
Sri.D.K.Panduranga, his son and his daughter-in-law claim
title to the subject premises but not as members of HUF.
28. The petitioner's case that there is serious dispute
over the respondent's claim over the subject premises is
essentially premised in the assertions that Sri.D.K.
Panduranga, even after the Letter dated 07.08.1980, has
received rents as the proprietor of M/s Devata Building and
that he has commenced proceedings in HRC No.516/1991
asserting that he is the absolute owner. The respondents do
not dispute these assertions and in fact, they explain this
relying upon two propositions viz., that a co-owner can sue
for ejectment of a tenant on behalf of the co-owners and that
a partner's actions are always as an agent of the firm.
29. Though a host of decisions are filed, it cannot be
disputed that these two propositions are indeed settled.
These propositions, in the undisputed facts and
circumstances of the case which are mentioned in para 27
surpa, must necessarily have full play. In which event,
neither of the two circumstances relied upon by the petitioner
would create a serious doubt over the respondent's claim over
the subject premises for the purposes of the present
proceedings. This Court must also refer to the provisions of
Section 116 of the Indian Evidence Act, 1882 which
incorporate the doctrine of estoppel that prohibits a tenant
from disputing the landlord's title.
30. There are certain notable exceptions to the
applicability of this doctrine. A useful reference in this regard
could be made to the decision of the Hon'ble Supreme Court
in S. Thangappan v. P. Padmavathy11, where it is
reiterated as follows:
"This section puts an embargo on a tenant of an
immovable property, during the continuance of his
tenancy to deny the title of his landlord at the
beginning of his tenancy. The significant words under
it are "at the beginning of the tenancy". This is
indicative of the sphere of the operation of this
section. So a tenant once inducted as a tenant by a
landlord, later he cannot deny his landlord's title.
Thus, this principle of estoppel debars a tenant from
denying the title of his landlord from the beginning of
his tenancy. However defective the title of such
landlord could (sic may) be, such tenant cannot deny
his title. But subsequent to his induction as tenant if
the landlord loses his title under any law or
agreement and there is a threat to such tenant of his
eviction by subsequently acquired paramount title-
holder then any denial of title by such tenant to the
landlord who inducted him into the tenancy will not
be covered by this principle of estoppel under this
section."
11 Reported in (1999) 7 SCC 474
31. But in the present case, where the petitioner does
not dispute the salient such as that she was put in
possession of the subject premises by Sri D.K. Panduranga's
family members, that in the subsequent family partition the
subject premises is allotted to Sri. D.K. Panduranga, and that
Sri.D.K. Panduranga still continues to retain rights as a co-
owner [though as a partner of the Firm], the doctrine of
estoppel must apply. Therefore, the petitioner cannot succeed
in her defense that she can demonstrate a serious question
over the respondents' claim to the subject premises. As such
the question for consideration in this regard must be held
against the petitioner.
Reg. Question 2
32. Sri H.J.Sanghvi submits that Sri D.K. Panduranga
is categorical in the proceedings in HRC No.516/1991 that
the subject premises measures East to West 14' and North to
South 9'. Even according to the lease deed dated 15.10.1969
[Exhibit P10,] the subject premises measures only 150 Sq. Ft.
Because the petitioner seriously disputes the assertion that
the subject premises measures East to West 15.9' and North
to South 11.1' [176.49 Sq ft], this Court, in CRP No. 31/2017,
has directed the Small Causes Court to appoint a Court
Commissioner. Thereafter, a surveyor, who is not even a
graduate, is appointed as the Court Commissioner. The Court
Commissioner has furnished his Report mentioning the
measurements of the subject premises in Feet/Sq.Ft. The
carpet area of the subject premises, even according to this
Report, is East to West 9' and North to South 14'.
33. Sri H.J. Sanghvi submits that the Court
Commissioner, at the instance of the respondents, has filed a
report stating that the plinth area will be 166.02 Sq.Ft. [16.07
feet in length and 10.33 feet in width]. Nevertheless, he has
admitted in his cross-examination that the petitioner is in
possession of an area measuring 12.37 Sq.Mts. [East to West
4.05 Mts. and North to South 2.75 Mts]. The Court
Commissioner's report demonstrates that the measurement of
the subject premises is below 14 Sq.Mts. The respondents do
not dispute that if the measurement of the subject premises
exceeds 14 Sq.Mts, the petitioner can only be evicted subject
to the provisions of the Karnataka Rent Act, 1999.
34. Smt. Sruti Chaganti on the other hand, submits
that notwithstanding the Commissioner's Report, there
cannot be any dispute about the measurement of the plinth
area of the subject premises. The petitioner's witness [DW1]
in his additional evidence has admitted that the plinth area of
the subject premises measures 151.2 Sq.Ft; if the admitted
plinth area is 151.2 Sq.Ft, the corresponding measurement in
Sq. Mt. will be 14.03 Sq. Mt. She emphasizes that it is settled
that for the purposes of jurisdiction under the Karnataka
Rent Act, the plinth area of the premises would be decisive12,
and given the provisions of this Act13, the respondents'
remedy for securing the petitioner's ejectment is only after
termination of lease as contemplated under Section 106 of the
Transfer of Property Act,1882.
35. Smt. Sruti Chaganti further submits that Sri
D.K.Panduranga has indeed commenced proceedings in HRC
No.516/1991 under Section 21(1)(h) of the Karnataka Rent
Control Act, 1961. But with the coming into force of the
Karnataka Rent Act,1999 and because the premises such as
the subject premises are excluded from the applicability of the
aforesaid Act, Sri D.K.Panduranga has filed Memo on
27.01.2003 for leave to withdraw the petition stating that the
subject premises measures more than 14 Sq. Mts. with leave
12 The learned counsel, in this regard, relies upon the decision of this
court in B.Chikkanna and another v. Smt. K M Jagadamba reported
in ILR 2006 Kar 4207.
13The provisions of section 3(g) of the Karnataka Rent Act stipulate that
its provisions will not apply to premises used for commercial
premises and if the plinth area of such premises exceeds 14 sq.mts.
to initiate fresh proceedings. This memo is accepted, and the
proceedings closed. As such, the petitioner cannot take any
advantage of the description of the measurement of the
subject premises in such proceedings. In this regard, she
relies upon a certified copy of the memo dated 27.01.2003
placed on record in these proceedings on 22.10.2020.
36. The respondents admit that the inception of
tenancy of the subject premises is with the execution of Lease
Deed dated 15.10.1969 [Exhibit P10]. The Schedule
appended to this Lease Deed mentions the measurement of
the subject premises. It is stated that the subject property
measures East to West 15' and North to South 10' without
specifying whether that is the measurement of the carpet area
or the plinth area, obviously because at that point of time the
measurement of these two areas did not determine
jurisdiction.
37. In HRC No.516/1991 Sri DK Panduranga has
mentioned the measurement of the subject premises as East
to West 14' and North to South 9' without specifying whether
that is the measurement of the carpet area or the plinth area.
Even in the year 1991 the measurement of these two areas
did not affect the jurisdiction. However, with the coming into
force of the Karnataka Rent Act,1999, which makes the
measurement of the plinth area crucial for jurisdiction, Sri
D.K.Panduranga is permitted to withdraw this petition upon
his Memo dated 27.01.2003. This Memo in its material part
reads as under:
"The petition schedule shop premises measures East to
West 15 feet nine inches and North to South 11 feet 1
inch. It totally measures more than 14 Sq. Mt.. In view of
the provisions of the Karnataka Rent Act, 1999, the
petitioner cannot maintain the above petition against the
respondent to have the benefit of an order of an eviction
in respect of the petition schedule shop premises.
Preserving his right to institute appropriate legal
proceedings against the respondent to have possession
of the petition schedule premises, the petitioner be
permitted to withdraw the above petition."
On the same day viz., 27.01.2003, the concerned Court has
dismissed the petition as not pressed recording that the
learned counsel for the respondents has requested for
dismissal of the petition in the light of this memo.
38. The Court Commissioner though has stated in his
cross-examination that the petitioner is in possession of an
area measuring 12.37 Sq. Mts., he is categorical in the
sketch, which is part of this Report marked as Exhibit C2,
that the plinth area measures 166.02 Sq.Ft. [i.e., 16.07 feet in
length and 10.33 feet in width]. In the sketch, he has the
marked separately both the plinth and the carpet areas. The
carpet area is mentioned as 133.13 Sq. Ft.
The carpet area is marked with the alphabets 'ABCD' and the
plinth area is marked with the alphabets 'EFGH'. The area
marked in Blue is described as a concrete platform outside the
plinth area. The wall area is indicated to be between the two
boxes marked in letters 'ABCD' and 'EFGH'. Significantly,
even the petitioner's witness [DW1] is categorical in his
additional evidence that the plinth area of the shop premises
measures 151.2 Sq.Ft.. His evidence in this regard reads as
under:
"I have appointed independent engineer and was
given report that the carpet area of the schedule
shop is measuring 9 ft. X 14ft. i.e. 126 Sq.Ft. only
and plinth area of the schedule shop premises
measuring 151.2 Sq. Ft. only.
39. It cannot be disputed that 10.764 is the value that
will have to be applied for converting the measurement in Sq.
Mts. to Sq.Ft. If the measurement of the plinth area admitted
by the petitioner viz. 151 Sq. Ft. is taken, the area in Sq.Mts
would be 14.046 Sq.Mts. If the plinth area as mentioned by
the Commissioner viz., 166.02 Sq.Ft. is taken, the area in
square meters would be 15.423 Sq.Mts. In either event, the
plinth area of the subject premises would be more than
14Sq.Mts.
40. In view of this evidence, the petitioner cannot take
advantage of the description of the measurement in HRC
No.516/1991. Further, the description of the measurement
in such proceedings, when in the year 1991 the measurement
did not affect jurisdiction, cannot be fatal because Sri D.K.
Panduranga, one of the petitioner therein, has withdrawn the
petition on the specific ground that the subject premises
measures more than 14 Sq. Mts. before there could be final
adjudication.
41. As regards the law on whether the carpet area or
the plinth area would be decisive, a useful reference could be
made to the Division Bench judgement of this court in M L
Shiv Kumar v. N Annappa (since deceased} by LRs and
another14. On this specific question, it is held as follows:
"Therefore, the duty of the court is to attribute the
meaning which is well understood. In other words, to
give a literal meaning to the word used by the legislature
in the statutory provisions. When such meaning is
attributed, there is no scope of excluding what is included
in the "plinth area" on the concept of non user of that
premises. Therefore, the said provision cannot be
construed as meaning that it is only actual user of the
area used for commercial purpose which is to be taken
into consideration. There is no warrant for such
construction or interpretation as the word employed is
very clear. The word is used in the context of user of the
14 Reported in 2011 SCC online Karnataka 4072
premises, either for residential or non-residential, which
decides the application of the aforesaid proposition. The
first condition is, the premises should be used for non-
residential purpose. Thereafter, it should be used for
commercial purpose. It is only then, if the area of the
premises exceeds 14 Sq. Mt., the application of the act is
excluded. Therefore, the word "user used in the provision
is in the context of the purpose for which the premises is
used and not the area which is put to use.
For the aforesaid reasons, keeping in mind, the
words used in the statute, the law regarding
interpretation of the statutory provisions and the purpose
for which the Act is enacted and this exclusion from the
application of the Act which is provided for, it is manifest
that the plinth area is not the carpet area. It is carpet
area and the area covered by the walls of the premises,
which constitutes "plinth area", which is to be taken into
consideration."
In the light of this discussion, the question for
consideration in this regard must be held in favour of the
respondents and against the petitioner.
42. Sri H.J. Sanghvi submits that the respondents
have not placed on record any evidence to substantiate that
the petitioner is in arrears of rent at the rate of Rs.210/- per
month from March 2010 and similarly, they have not placed
on record any material to demonstrate that they would be
entitled for damages at the rate of Rs.8000/- per month. The
Small Causes Court, despite its limited pecuniary jurisdiction
and the lack of material, has directed the respondent to pay
rental arrears at the rate of Rs.210/- per month for the said
period and damages at the rate of Rs.8000/-per month. The
finding in this regard cannot howsoever be justified.
43. In rebuttal, Smt. Sruti Chaganti submits that
there is no dispute that the rent is last paid at the rate of
Rs.210/- per month; the petitioner on its own initiative may
have deposited some rent in the suit in O.S. No.314/2011,
but that was without notice to the respondents. This deposit
does not constitute valid payment of rent. The suit in O.S.
No.314/2011 is dismissed on 31.07.2007 as withdrawn. She
argues that the petitioner cannot deny the liability to pay
arrears of rent as of the date of legal notice dated 22.08.2012
nor the liability to pay damages at the same rate after this
legal notice.
44. The petitioner does not dispute that her
possession of the subject premises is as a tenant. Crucially,
Sri H.J.Sanghvi's submissions is centered around the
jurisdiction of the Small Causes Court to entertain the
respondents' suit for ejection on the ground that the subject
premises measures less than 14 Sq.Mts., and he does not
contest the respondents' case that the tenancy is determined
with the issuance of legal notice dated 22.08.2012 [Exhibit
P1] calling upon the respondent to vacate and hand over
vacant possession of the subject premises after availing 15
days' notice as contemplated under Section 106 of the
Transfer of Property Act,1882.
45. It is seen from the records that upon receipt of
this legal notice dated 22.08.2012 the respondent has caused
reply notice dated 27.08.2012 [Exhibit P4]. The suit is
commenced on 14.02.2013 much after the expiry of 15 days.
Admittedly, the subject premises is used only for commercial
purposes. Thus, the lease is validly terminated and the
finding by the Small Causes Court in this regard cannot be
found fault with.
46. It is admitted that the last rent is paid at the rate
of Rs.210/- per month. In fact, certain amounts are
deposited in the present proceedings at the aforesaid rate.
The petitioner contends that the rental arrears are deposited
in O.S.No.311/2011. However, there is no material to
demonstrate that the respondents have withdrawn the
amount deposited in such proceedings. There is also no
material on record to demonstrate that the petitioner has paid
any rent to the respondents after the issuance of the legal
notice dated 22.08.2012. The respondents have not placed
any material on record to conclude that the last rent is paid
only in the month of March 2010 except for the oral testimony
of PW1. The Small Causes Court has relied upon the oral
testimony to direct the petitioner to pay rental arrears at the
rate of Rs.210/- per month from March 2010. The
respondents, to be entitled to rental arrears for the period
prior to 22.08.2012, should have placed necessary material
on record to draw just and reasonable inference in their
favour. More importantly, there should be a prayer in this
regard. There cannot be any direction to pay any amount as
rental arrears until March, 2010.
47. Further, there is no evidence on record to
establish that the respondents would be entitled for damages
at the rate of Rs.8000/- per month. In the absence of
necessary evidence, the respondents would not be entitled to
arrears at the rate of Rs.210/- per month from the date of
legal notice dated 22.08.2012 as directed by the Small Causes
Court. The Small Causes Court's finding in this regard
cannot be justified. In these circumstances, this Court is of
the considered view that the impugned judgment must be
modified to the limited extent of directing the petitioner to pay
damages at the rate of Rs.210/- per month from 22.08.2012
to the actual date of delivery of vacant possession of the
subject premises. The third question is answered accordingly.
48. The petitioner, because a couple of Pay Orders
requires to be revalidated, and to avoid possible protraction,
must be permitted to not only withdraw the amount deposited
in the present proceedings but also to receive such Pay
Orders that will have to be revalidated subject to the
condition that the petitioner shall pay the damages as
aforesaid.
49. The petitioner has been in possession of the
subject premises right from the year 2012. These proceedings
have prevailed for over more than a decade. In deciding
reasonable time not only these circumstances but also the
admitted fact that neither the petitioner, who is admittedly a
septuagenarian, nor her husband, who would be an
octogenarian, are looking after the business is the subject
premises and the petitioner's employee, who has asserted
partnership with the petitioner but without any document, is
in possession are also considered. This Court is of the
considered view that the petitioner must vacate and hand
over vacant possession of the subject premises within a
period of one hundred and twenty [120] days from this date.
For the foregoing, the petition is allowed in part
modifying the Small Causes Court's impugned judgment
dated 05.06.2018 calling upon the petitioner to deliver vacant
possession of the subject premises to the respondents within
one hundred and twenty [120] days from this date and to pay
to the respondents damages at the rate of Rs.210/- per
month from 22.08.2012 till the date of actual delivery of
vacant possession. The office is directed to draw decree
accordingly.
The office is directed to refund the amounts in deposit
to the petitioner and return to the petitioner the Pay Orders
filed into this Court along with the Memos dated 27.11.2020
and 16.07.2021 and 16.08.2022.
No costs.
Sd/-
JUDGE
nv*
BMSPJ:
18.08.2022 CRP NO.289/2018
ORDER ON ENLARGEMENT OF TIME
The orders are pronounced disposing of the petition
calling upon the petitioner inter alia to hand over vacant
possession of the subject premises within 120 days from
today.
After the pronouncement of the orders today,
Sri.H.J.Sanghvi, the learned counsel for the petitioner,
submits that the petitioner is diagnosed as suffering from
cancer and she could be in the last few months of her life and
therefore, this Court, on humanitarian grounds, consider
enlarging time granted to the petitioner to ensure that the
vacant possession of the premises is handed over to the
respondents.
When queried, the learned counsel for the respondents
submits, the request for enlargement of time may be
considered in the light of the circumstances pleaded but any
enlargement of time must be for a reasonable period.
The request for enlargement is considered, and this
Court is of the considered view that in the circumstances the
petitioner could be placed, it would be just and proper to
enlarge the time to vacate by a period of nine [9] months from
today instead of four months [120] days.
It is ordered accordingly.
Sd/-
JUDGE
