Sri Mansoor Eqbal vs Smt Mohammed Begum
2023 Latest Caselaw 5275 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 4TH DAY OF AUGUST, 2023

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

       HOUSE RENT REV. PETITION NO.22/2021 (EVI)

BETWEEN:

1.     SRI MANSOOR EQBAL
       S/O. MOHAMED SHARIF
       AGED ABOUT 51 YEARS
       R/AT NO.2373,
       2ND WEST CROSS
       ASHOKA ROAD
       LASKAR MOHALA
       MYSORE-570 001.                      ... PETITIONER

           (BY SRI O. SHIVARAMA BHAT, ADVOCATE)
AND:

1.     SMT. MOHAMMED BEGUM
       W/O. LATE YOUSUFF
       AGED ABOUT 54 YEARS
       R/AT NO.2378
       WEST CROSS
       22ND ASHOKA ROAD
       LASKAR MOHALLA
       MYSORE-570 001.

2.     SRI YOUNUS
       S/O. LATE M. YOUSUFF
       AGED ABOUT 36 YEARS
       R/AT NO.2378,
       22nd ASHOKA ROAD
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      LASKAR MOHALLA
      MYSORE-570 001.

3.    SRI M. PARVEEZ
      S/O. LATE M. YOUSUFF
      AGED ABOUT 34 YEARS
      R/AT NO.2378
      WEST CROSS
      22ND ASHOKA ROAD
      LASKAR MOHALLA
      MYSORE-570 001.                        ... RESPONDENTS

     (BY SRI PRAKASH T. HEBBAR, ADVOCATE FOR R1 TO R3)

     THIS HRRP IS FILED UNDER SECTION 115 OF CPC,
AGAINST THE JUDGMENT DATED 29.09.2021 PASSED IN R.R
2/2021 ON THE FILE OF THE I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, MYSURU, DISMISSING THE PETITION FILED
AGAINST THE ORDER DATED 18.02.2021 PASSED ON I.A.II IN
HRC.53/2014 ON THE FILE OF THE IV ADDITIONAL I CIVIL
JUDGE MYSURU, ALLOWING THE I.A.NO.II FILED UNDER
SECTION 43(2) OF KARNATAKA RENT ACT, 1999.

     THIS HRRP HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 26.07.2023 THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
                      ORDER

Heard the learned counsel for the petitioner and learned

counsel for the respondents.

2. This revision petition is filed under Section 115 of

C.P.C. praying this Court to set aside the judgment dated

29.09.2021 passed in R.R.No.2/2021 on the file of the I

Additional District and Sessions Judge, Mysuru which was filed

challenging the order dated 18.02.2021 passed on I.A.No.II in

H.R.C.No.53/2014 on the file of the IV Additional Civil Judge,

Mysuru and allow this revision petition as prayed for and grant

such other and further relief as the Court deems fit.

3. The factual matrix of the case is that the petitioner

herein has filed the eviction petition against the respondents

seeking for an order of eviction under Section 27(2)(a)(o) and

(r) of the Karnataka Rent Act, 1999 seeking for an order to

direct the respondents to vacate and handover vacant

possession of the petition schedule premises. It is contended

that the petitioner is an absolute owner of the property for

having purchased the same on 17.11.2011. It is contended that,

at the time of purchasing the property, the respondents were in

occupation of the schedule property, except a room measuring

10 x 10 ft. as tenants under the vendor of the petitioner. On

earlier occasion, the husband of the respondent No.1 was tenant

in occupation of the said property as admitted by him in the suit

filed by him against the vendor of the petitioner in

O.S.No.201/2005. In the said suit, he contended that he was a

tenant on monthly rent of Rs.75/- and there was an agreement

of sale entered by the vendor of the petitioner in favour of him

on 08.01.1993 and on the strength of the said agreement, he

filed suit in O.S.No.201/2005 for the relief of specific

performance of alleged agreement, which was dismissed on

13.03.2008. After dismissal of the said suit, the schedule

property was conveyed to the petitioner by the vendor of the

petitioner and all the revenue records were transferred to the

name of the petitioner. Hence, the respondents became the

tenants under the petitioner on a monthly rent of Rs.75/-. Even

though the room measuring 10 x 10 ft. was not the subject

matter of the lease, the respondents have trespassed into the

said property and occupied the same. In this regard, criminal

case is registered against the respondents and the respondents

are very irregular in payment of rent and they have not paid the

rent right from the date of purchase of the schedule property by

the petitioner. The petitioner also pleaded that he has no house

of his own for his residence and the same is required.

4. In pursuance of the said petition, the respondents

appeared through the counsel and filed the written statement

denying the jural relationship between the parties. It is

contended that the petitioner is a stranger to the petition

schedule premises and he is not the owner of the petition

schedule premises and the sale deed dated 17.11.2011 is null

and void and unforceable and denied the very averments made

in the petition and prayed the Court to dismiss the suit.

5. The respondents have also filed I.A.No.II under

Section 43(2) of the Karnataka Rent Act praying to stop further

proceedings directing the petitioner to approach the competent

Court of civil jurisdiction for adjudication of his right. In the said

application, the respondents reiterated the objections filed to the

petition and also contend that the petitioner has not produced

any documents to establish the jural relationship of landlord and

tenant between them. Hence, there is no question of revival of

tenancy since, the agreement for sale entered into would destroy

all the alleged rights of tenancy and create fresh rights in their

favour of the prospective purchasers.

6. The petitioner also filed objections to the said

application contending that the very application is not

maintainable and respondents have no locus standi to purchase

this property and contend that on 08.01.1993, the husband of

the respondent No.1 and father of respondent Nos.2 and 3 were

tenants under the vendor of the petitioner and denied all other

averments made in the application. It is also contended that

filing of Misc.No.27/2013 is not known to this petitioner and the

petitioner has not received any notice in the said case and

further contended that, even otherwise, the said petition filed

after execution of the sale deed in favour of the petitioner is not

maintainable and it will not take away the relationship of

landlord and tenant between the petitioner and the respondents.

Hence, the question of filing the petition after more than five

years of dismissal of their suit cannot be entertained.

7. The Trial Court, having considered the material on

record, rejected the application and hence, R.R.No.14/2015 was

filed and the Court, after hearing the matter, set aside the order

dated 11.11.2015 and remitted the matter to the Trial Court with

a direction to dispose of I.A.No.II in accordance with law.

Thereafter, the Trial Court once again enquired I.A.No.II and

examined the witness and marked the documents as Exs.R1 to

R7. On the other hand, the petitioner filed his affidavit-in-chief

and examined himself as P.W.1. The Trial Court, having

reconsidered the material on record, stopped further proceedings

by allowing I.A.No.II. Being aggrieved by the said order of the

Trial Court dated 18.02.2021, the petitioner filed R.R.No.2/2021

and Trial Court dismissed the same. Hence, the present revision

petition is filed before this Court invoking Section 115 of C.P.C.

8. The main contention of the learned counsel for the

petitioner is that the order passed by the Trial Court as well as

the Revisional Court is erroneous and ignored the material

evidence and by placing reliance on irrelevant and inadmissible

materials have reached a wrong conclusion. The Trial Court as

well as the Revisional Court have not considered the previous

admission of the status of the respondents as tenants under the

vendor of the revision petitioner. In the presence of such

admission in the very legal proceedings, the Courts below are

not justified in ignoring such admissions. The counsel also would

vehemently contend that, in Ex.R7 produced by the respondents

alleged to be the sale agreement set up by them, there is no

mention about handing over possession of the respondents and

they have admitted that they were in possession of the property

before execution of Ex.R7 and the respondents are the tenants

as admitted in O.S.No.124/2012. It is also contended that both

the Courts have failed to appreciate that no documents were

produced to show against the admission made regarding jural

relationship between them and both the Courts ought not to

have allowed the application and confirmed the same, the

question of invoking Section 53(A) of the Transfer of Property

does not arise.

9. It is also contended that the respondents did not

cross-examine P.W.1 and the observation of the Trial Court is

erroneous and also contend that Court below ought to have

noted that mere execution of sale agreement will not give raise

to any status of owner, particularly when suit for specific

performance filed by the respondents was dismissed and

miscellaneous petition was allowed after seven years which has

been stayed by this Court in W.P.No.233/2020 and mere

pendency of miscellaneous petition cannot confirm title to the

respondents. It is further contended that allowing of the

miscellaneous petition also cannot be a ground to dismiss the

revision as the said order is challenged by the petitioner in

W.P.No.233/2020 in which stay has been granted by this Court

and the finding of the Revisional Court about the agreement

dated 08.01.1993 by receiving advance amount of Rs.2,50,000/-

is irrelevant for couple of reasons. One reason being the said

suit was dismissed and no miscellaneous was filed as on the date

of the sale deed made in favour of the petitioner. Even if the

said suit is restored, the question is whether he entitled for a

decree for specific performance in view of lapse of time and also

creation of interest in favour of the petitioner. Admittedly, the

petitioner is the owner by virtue of the sale deed and therefore,

the respondents are estopped from denying the ownership of the

petitioner.

10. Learned counsel for the petitioner, in support of his

argument, relied upon the order passed by this Court in

H.R.R.P.NO.26 OF 2016 dated 23.06.2023, wherein this

Court has considered the judgment of the Apex Court in

JOSEPH KANTHARAJ AND ANR. VS. ATTHARUNNISA

BEGUM S. reported in 2010 AIR SCW 1411 and comes to the

conclusion that the Court should not defer the proceedings for

eviction under the Karnataka Rent Act, unless the Court is

satisfied prima facie that the agreement is genuine and defence

is bonafide.

11. Per contra, learned counsel for the respondents

would vehemently contend that the respondents are not the

tenants under the present petitioner and no rents are paid to the

petitioner herein to establish the jural relationship between the

parties and both the Trial Court as well as the Revisional Court

have rightly come to the conclusion that the petitioner has not

established the jural relationship between the parties and rightly

passed the order.

12. Learned counsel for the respondents, in support of

his argument, relied upon the judgment of the Apex Court in

JOSEPH KANTHARAJ AND ANR. VS. ATTHARUNNISA

BEGUM S. reported in 2010 AIR SCW 1411 and brought to

notice of this Court Para No.9, wherein the Court has observed

that the relationship of landlord and tenant between him and the

previous owner had come to an end, and that as on the date of

sale by Anthony Swamy in favour of the respondent, he was in

possession in part performance of the agreement of sale and not

as a tenant. The counsel also brought to notice of this Court

Para No.10 of the judgment, wherein the Apex Court has

observed that 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 specific

performance, by itself will not lead to deferment of the eviction

proceedings 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. Hence, the

counsel would contend that this judgment is aptly applicable to

the case on hand and prays for dismissal of the revision petition.

13. Having heard the respective counsel and also on

perusal of the grounds urged in the revision petition and the

submissions of the respective counsel, the points that would

arise for consideration of this Court:

(1) Whether this Court can exercise the power under Section 115 of C.P.C. to set aside the order of the Trial Court and Revisional Court and the same suffers from its legality and correctness?

(2) What order?

Point No.(1)

14. Having perused the grounds urged in the revision

petition as well as the submissions of the respective parties, it is

not in dispute that it is the claim of the petitioner that he had

purchased the property on 17.11.2011. It is also not in dispute

that a suit was filed in O.S.No.201/2005 for the relief of specific

performance based on the sale agreement dated 08.01.1993. It

is also not in dispute that the same was dismissed, as the suit is

abated, since the legal representatives were not brought on

record. It is also not in dispute that a miscellaneous proceedings

was filed in Misc.No.27/2013 for restoration of the said suit. The

documents are also marked as Exs.R1 to R7 i.e., Ex.R1-copy of

the plaint in O.S.No.201/2005, Ex.R2 copy of the amended

petition in Misc.No.27/2013, Ex.R3-copy of the order sheet in

Misc.No.27/2013, Ex.R4-copy of the amended petition in

Misc.No.27/2013, Ex.R5-copy of the petition in Misc.No.27/2013,

Ex.R6-copy of orders in R.R.No.14/2015 and Ex.R7-copy of the

sale agreement dated 08.01.1993 before the Trial Court, when

an enquiry is held on I.A.No.II filed under Section 43(2) of the

Karnataka Rent Act, 1999. It is also not in dispute that the

respondents have disputed that there is no jural relationship

between them and the petitioner and consequently, filed an

application under Order 43(2) of the Karnataka Rent Act, 1999.

15. The Trial Court, having considered the material on

record, comes to the conclusion that the dispute is with regard

to the jural relationship between the parties and comes to the

conclusion that there are sufficient reason to suspect the

existence of jural relationship as landlord and tenant between

the vendor of the petitioner i.e., Mumtaz Begum and husband

and father of the respondents i.e., Yousuff and the document of

lease agreement or any rent receipt are also not produced as

required under Section 43 of the Karnataka Rent Act, 1999. If

the relationship is not proved, the Court does not have any

power to pass any order and hence, allowed the application vide

order dated 18.02.2021.

16. The Revisional Court also reassessed the material

available on record and comes to the conclusion that an

agreement of sale was executed and also taken note of the said

sale agreement in Para No.29 and in detail discussed having

considered the agreement of sale, wherein the sale consideration

is mentioned as Rs.3 lakhs and paid an advance amount of

Rs.2,50,000/- and date was fixed for registration of the sale

deed during November, 2004, since the vendor reserved right to

reside in a room measuring 10 x 10 ft. which is not the tenanted

property. It is also important to note that the revision petitioner

had purchased the property in the year 2011 and when the

petitioner had purchased the property, at that time, suit filed by

the agreement holder for specific performance was not pending

and the same was dismissed on 13.03.2008.

17. It is also important to note that Misc.No.27/2013

was filed in 2013 after lapse of five years of dismissal of the suit

and during the intervening period, he had purchased the

property and there is no dispute with regard to the fact that the

property was purchased by the petitioner herein in 2011. But, it

is the contention of the respondents that the said sale deed will

not convey any title and the Court cannot decide the issue with

regard to the said fact in eviction petition. On perusal of the

sale agreement dated 08.01.1993, it is very specific that the

vendor of the petitioner in the said agreement specifically stated

that the entire petition schedule premises was leased out, except

room measuring 10 x 10 ft. for their use to second party, all

these days. First party, offered second party, for purchase of

schedule house and sale consideration was fixed at Rs.3 lakhs

and out of that, an advance of Rs.2,50,000/- was received and

only retained the premises to the extent of 10 x 10 ft. for their

use. But, it is very specific that the premises was let out i.e.,

entire premises, except room measuring 10 x 10 ft. Hence, it is

clear that, before entering into an agreement of sale, premises

was let out and thereafter, a sale agreement was entered into

between the parties and in order to decide the issue between the

parties, a suit was filed in O.S.No.201/2005. It is also very clear

in the agreement that sale deed will be executed in the month of

November, 2004 and to enforce the said sale deed, suit was filed

in 2005, immediately after the non-execution of the sale deed

within the time as prescribed in the sale agreement. No doubt,

the same was dismissed on 13.03.2008 and it is also important

to note that miscellaneous was filed in 2013 and in between, the

property is purchased by the petitioner herein.

18. It is also important to note that no material is placed

before the Trial Court to prove the fact that after the sale

agreement, rents have been paid by the prospective purchasers

and also, there is no separate agreement with regard to the

continuation of the tenancy after the sale agreement but,

averment is clear that, all these days, they were tenants and

also no stipulation in the agreement that the prospective

purchasers have continued possession in part performance of the

agreement and at the same time, there is no averment that the

petitioner has to continue the payment of rent, till the execution

of the sale deed.

19. First of all, there is no separate agreement

subsequent to the sale agreement and no document is placed

before the Court to evidence the fact that after the sale

agreement, the prospective purchasers have paid the rent.

Hence, the judgment of the Apex Court in JOSEPH

KANTHARAJ's case is aptly applicable to the case on hand, as

the Apex Court in the judgment in Para No.10 held that 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.

No doubt, in this judgment, it is mentioned that possession has

been delivered in part performance of the agreement, but in the

case on hand, no such averment in the agreement and at the

same time, there is no document of lease deed or any rent

receipt for payment of rent from the date of such agreement of

sale.

20. Learned counsel for the petitioner also relied upon

the judgment of this Court passed in H.R.R.P.NO.26/2016

dated 23.06.2023 and brought to notice of this Court Para

No.27. No doubt, this Court considered the judgment of the

Apex Court in JOSEPH KANTHARAJ's case and extracted Para

No.10 of the said judgment, but in the said case, the suit was

already dismissed and the appeal filed against the said suit was

also dismissed and only R.F.A. was pending. Hence, this Court

comes to the conclusion that eviction proceedings cannot be

deferred. But, in the case on hand, that is not the situation and

the very suit has been dismissed as abated and no finding was

given by the Trial Court. Having considered no averment with

regard to parting of possession in part performance of contract,

the judgment of JOSEPH KANTHARAJ's case will not come to

the aid of the respondents but, there is a recital in the sale

agreement that he is tenant, except the room measuring 10 x 10

ft.

21. When such being the case, the issue involved

between the parties is with regard to the jural relationship of

landlord and tenants and when the suit is filed for the relief of

specific performance and the same was dismissed in 2008, after

lapse of five years, miscellaneous petition was filed. However,

learned counsel for both the parties submit that they were not

aware of the status of the said miscellaneous petition, but in the

revision petition, learned counsel for the petitioner himself in

Para No.10 of the grounds stated that miscellaneous petition was

allowed after seven years which has been stayed by this Court in

W.P.No.233/2020 and also contend that mere pendency of the

miscellaneous cannot confirm title to the respondents. In page

No.15 and Para No.12 of the grounds urged in the revision, it is

also contended that allowing of miscellaneous petition cannot be

a ground to dismiss the revision as the said order is challenged

by the petitioner in W.P.No.233/2020 in which stay has been

granted by this Court. The counsel also submits that the writ

petition filed regarding impleading application was dismissed and

hence, approached this Court by filing a writ petition and the writ

petition was also subsequently disposed off. When such being

the material on record and in view of the agreement of sale and

the petitioner herein also purchased the property when there

was no pendency of the proceedings, his right is also affected,

since he had purchased the property by paying sale

consideration as that of the prospective purchaser based on the

sale agreement in a sum of Rs.2,50,000/- as against the sale

consideration of Rs.3 lakhs. Hence, the matter requires to be

decided by the Trial Court i.e., both in the Rent Court and also in

Civil Court with regard to sale agreement as early as possible, if

the miscellaneous is allowed and suit is restored, since the

parties have approached the Court long back. When there is an

averment in the sale agreement itself as tenant prior to

agreement of sale, the Trial Court and Revisional Court

committed an error in not considering the averments of the

agreement of sale, in the absence of rent receipt and lease

document. Hence, it requires interference of this Court to set

aside the order of the Trial Court and Revisional Court.

Accordingly, I answer point No.(1) as 'affirmative.

Point No.(2)

23. In view of the discussions made above, I pass the

following:

ORDER

(i) The revision petition is allowed. The impugned order of the Trial Court allowing the application filed under Section 43(2) of the Karnataka Rent Act, 1999 is set aside and consequently, the order of the Revisional Court is also set aside.

(ii) Since the parties are before the Court almost from two decades, the matter has to be considered in a time bound period. Hence, it is appropriate to give direction to the parties to

pursue the miscellaneous petition which is pending before the Trial Court, forthwith and if the suit in O.S.No.201/2005 is restored, the matter shall be adjudicated within a period of six months from and if the miscellaneous proceedings is dismissed, nothing survives for consideration of O.S.No.201/2005. The Revisional Court is directed to proceed with the petition in H.R.C.No.53/2014 and dispose of the same within a period of six months from the date of disposal of suit or miscellaneous proceedings.

(iii) In the meanwhile, the Rent Court is directed to record the evidence in eviction petition and not to decide the same, till the disposal of the suit in O.S.No.201/2005 if it is restored, since the genuineness and enforceability of the agreement has to be decided.

Sd/-

JUDGE

ST