Karnataka High Court
Surendra Nayak vs Derric Prabhakar Soans on 6 June, 2023
Bench: H.P.Sandesh
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HRRP No. 38 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
HOUSE RENT REV. PETITION NO. 38 OF 2019
BETWEEN:
1. SURENDRA NAYAK
S/O. LATE MUKUNDAN NAYAK,
AGED 63 YEARS,
R/AT D.NO.8-491/2,
MISSION COMPOUND,
BALMATTA,
MANGALORE-575 002
D.K.
...PETITIONER
(BY Ms. MEGHANA BALLA, ADVOCATE)
AND:
1. DERRIC PRABHAKAR SOANS
S/O. LATE JACOB GEORGE SOANS,
Digitally signed AGED 70 YEARS,
by SHARANYA T C/O N.H.CLARE
Location: HIGH R/AT MISSION COMPOUND,
COURT OF UDUPI-576 101.
KARNATAKA
UDUPI DISTRICT.
2. M. IBRAHIM
S/O. MOHAMMED,
AGED 66 YEARS,
R/AT D.NO.8-491/1
MISSION COMPOUND,
BALMATTA,
MANGALORE-575 002,
D.K.
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HRRP No. 38 of 2019
3. M. SADIQUE
S/O. MOHAMMED,
AGED 63 YEARS,
R/AT D.NO.8-491/1
MISSION COMPOUND,
BALMATTA,
MANGALORE-575 002,
D.K.
...RESPONDENTS
(BY SRI. SHIVARAMA BHAT O., ADVOCATE FOR C/R1)
THIS HRRP IS FILED UNDER SECTION 46(1) OF
KARNATAKA RENT CONTROL ACT, AGAINST THE ORDER DATED
16.07.2019 PASSED IN R.R.P.NO.21/2016 ON THE FILE OF THE
I ADDITIONAL DISTRICT AND SESSIONS JUDGE,
D.K.MANGALORE, DISMISSING THE REVISION PETITION AND
CONFIRMING THE ORDER DATED 02.09.2016 PASSED IN
HRC.NO.24/2006 ON THE FILE OF THE I ADDITIONAL CIVIL
JUDGE AND JMFC, MANGALURU. D.K., ALLOWING THE
PETITION FILED UNDER ORDER 27(2),(a),(h),(o) AND (r) OF
THE KARNATAKA RENT ACT.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This matter is listed for admission. Heard the learned
counsel appearing for the petitioner and the learned counsel
appearing for Caveator/Respondent No.1.
2. This HRRP is filed under Section 115 of CPC praying
to set aside the common order dated 16.07.2019 passed in
R.R.P.No.21/2016 by the I Additional District & Sessions Judge,
D.K., Mangaluru.
HRRP No. 38 of 2019
3. The factual matrix of the case is that, the petitioner
in HRC No.24/2006 is the present owner being one amongst
the successor landlords of the petition premises. The
petitioner/Respondent No.2, herein had obtained the petition
premises from the deceased Jacob Lawrence Soans as per the
terms of the Lease Agreement dated 17.11.1983 on a monthly
rent of Rs.350/-. The petition premise is personally occupied by
respondent Nos.1 to 3. But the respondent No.1 alone is the
statutory monthly tenant having it obtained by executing Lease
Agreement. The petitioner is the brother of the late Jacob
Lawrence Soans who died as Bachelor and he being the sole
legal heir has succeeded to all his assets including the petition
premises. Hence, he becomes entitled to calculate the rent
from respondent No.1 as landlord. Respondent No.1 has
inducted respondent Nos.2 and 3 without any consent of the
petitioner and are subtenants of petition premises as illegally
inducted by respondent No.1.
4. It is contended that the petitioner is now conferred
with ownership right in respect of the entire land comprised in
TS No.147, measuring 14 cents in extent of Attavara Village
which is inclusive of petition premises as per the proceeding of
HRRP No. 38 of 2019
petition authority and Head Quarters assistance to Deputy
Commissioner, Mangaluru (land reforms) in LRT No.2427/2000-
01. Therefore, besides successor landlord, the petitioner on his
own right has become entitled to collect the rent. The petitioner
has restricted the claim on rent arrears from 01.10.2002 till the
date of the demand notice dated 22.02.2006. In spite of receipt
of the demand notice the respondents have not complied the
demand notice and are liable to be evicted from the petition
premises under Section 27(2)(a) of the Karnataka Rent Act,
1999 ('the Act' for short) and also invoked the other Sections
27(2)(b), 27(2)(o), 27(2)(r) and 27(2)(h) of the Act.
5. After service of notice, respondent Nos.1 and 2
have appeared through the common Counsel and respondent
No.3 also appeared through the Counsel.
6. Respondent No.1 has filed memo dated 18.09.2006
contending that he has surrendered the petition schedule
premises to Late Jacob Lawrence Soans in the year 1984 itself
and thereafter he is residing separately. He also contends that,
thereafter, the brother-in-law of the respondent was put in
possession and enjoyment of the said premises by Jacob
HRRP No. 38 of 2019
Lawrence Soans under some agreement. He contends that
respondent No.1 has not sublet the premises to anybody much
less to respondent No.2 nor he is in arrears of rentals as
alleged by the petitioner.
7. Respondent No.2 also filed objections, wherein, he
has specifically denied the material averments made in the
petition. It is contended that even if any grant is made the
same is challenged by the Churches of South India in Appeal
No.581/2006 before the Karnataka Appellate Tribunal at
Bengaluru. Further, it is contended that respondent No.1 has
issued reply notice dated 13.03.2006 by contending that he
had surrendered the petition premises in favour of Late Jacob
Lawrence Soans and he had re-let the petition and he is no
longer the tenant either under him or under petitioner.
8. Respondent No.3 also filed objection statement
contending that the very grounds urged in the petition are
inconsistent. The petitioner has no means to carryout the
reconstruction and denied the averments of the plaint.
9. The Trial Court having considered the grounds
urged in the pleadings and also considering both oral and
HRRP No. 38 of 2019
documentary evidence led before the Trial Court considered the
documents - Exs.P1 to P24(i), Exs.R1 to R4 and Exs.C1 to
C3(a), apart from the oral evidence of P.W.1 and R.Ws.1 and 2.
The HRC petition for the eviction of the respondents under
Section 27(2)(b)(h)(o) and (r) of the Act was allowed with
costs. As regards the eviction under Section 27(2)(a), the
petitioner is directed to vacate and handover the vacant
possession of the petition premises if they do not deposit the
entire arrears of rent till this date on or before the 30th day
from this date and on deposit of the same on or before the 30th
day from this date, the ground of eviction under Section
27(2)(a) does not survive and the respondents are also
directed to vacate the petition premises and to hand over the
vacant possession of the petition premises to the petitioner
within 60 days. Being aggrieved by the order passed in HRC
No.24/2006, R.R.P. was filed before the Rent Revision Court
viz., R.R.P.No.21/2016 by respondent No.1 and another
R.R.P.No.22/2016 was filed by respondent No.2 and 3 herein.
The Rent Revision Court having re-analyzed the material
available on record, dismissed R.R.P.No.21/2016 and
HRRP No. 38 of 2019
R.R.P.No.22/2016 and confirmed the order passed in HRC
No.24/2006. Hence, the present HRRP is filed before this Court.
10. The main contention of the learned counsel
appearing for the revision petitioner before this Court is that
there is a dispute with regard to the title and admittedly the
petition schedule premises was granted in favour of the brother
of the petitioner and the same has been challenged by the rival
claimant and the appeal is also pending before the Karnataka
Appellate Tribunal. When there is no title, the question of
passing an order of eviction does not arise. The second
contention of the revision petitioner is that the land was
granted in favour of the respondent herein and the same was
challenged by the rival claimants, the same is pending before
the Karnataka Appellate Tribunal. The other contention of the
learned counsel is that the very relationship is disputed and no
material is placed before the Court to show that this petitioner
is the tenant of the landlord and when there is no documentary
evidence with regard to establish the jural relationship between
the parties, the Trial Court as well as the Revisional Court
ought not to have granted the relief.
HRRP No. 38 of 2019
11. The learned counsel appearing for the petitioner in
support of her arguments, relied upon the judgment of this
Court in the case of R.Shariff and others v. A. Mohammed
Noor and another reported in ILR 2004 KAR 1546, wherein,
this Court held that when there is a serious dispute regarding
the title of the property, the rent control Court is debarred from
proceeding with the matter - The Court shall direct the parties
to approach the Civil Court for adjudication of their rights - The
Rent Control Court has to defer all further proceedings before
it, till the final decision of the Civil Court in respect of
declaration of title of the property.
12. The learned counsel also would vehemently contend
that both the Courts have committed an error and also relied
upon the judgment of the Apex Court in the case of
Tribhuvanshankar v. A. Amrutlal reported in (2014) 2 SCC
788, wherein, the Apex Court observed that, Eviction decree -
Existence of landlord-tenant relationship between parties sine
qua non for grant of, where eviction suit is filed under Rent
Control Act - Hence enquiry in such suit should be limited to
existence of landlord-tenant relationship - If such relationship
HRRP No. 38 of 2019
is found to be not existing, eviction suit is liable to be
dismissed.
13. The learned counsel also would vehemently contend
that even there is a dispute with regard to the identity of the
property, though an eviction petition was filed in the year 2006,
an amendment was sought in the year 2019 and when there is
a dispute with regard to the identity of the property, the
question of passing an order of eviction does not arise.
14. In support of her contention, she placed the
document - application under Order 6 & 17 read with Section
151 to 153 of CPC. The said application is filed before the I
Additional Civil Judge, Mangaluru, D.K. The copy of the
objection statement filed by the landlord. The learned counsel
would vehemently contend that both the Courts failed to
consider the contention of this petitioner and no material has
been placed that this petitioner is a sub-lessee. Apart from
that, he contends that he is in possession prior to 1983 i.e.,
even before inducting the alleged inducting of respondent No.1
to the premises. Hence, the order requires to be set aside.
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HRRP No. 38 of 2019
15. Per contra, the learned counsel appearing for
respondent No.1/landlord would vehemently contend that
admittedly the premises was let out to the first respondent in
the year 1983 in terms of the Lease Agreement. The learned
counsel also would vehemently contend that respondent No.1,
who is the original tenant, appears and files a memo stating
that he has surrendered the premises in the year 1984 itself to
the original landlord. But no document is placed to that effect
for having surrendered the same and instead of he continued
his brother-in-law, who is respondent No.2 and the respondent
No.2 is in the occupation of the premises. But contend that he
is in occupation based on some agreement and even such
agreement is also not produced before the Court. Hence, it is
clear that the original tenant is respondent No.1 and he allowed
respondent No.2 and the present petitioner to continue in the
possession. The learned counsel also would vehemently
contend that both the Courts have taken note of both oral and
documentary evidence even compared the signature of the
landlord with regard to the document which they have
particularly relied upon viz., Ex.R3 and the same is not
accepted. Apart from that, when there is an admission with
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HRRP No. 38 of 2019
regard to respondent No.1 was inducted as tenant and no
material is placed before the Court with regard to surrendering
of the possession and also the revision petitioner herein though
claims that he is in occupation even prior to inducting
respondent No.1 as tenant, no document is placed before the
Court.
16. The learned counsel also would submit that even
though the matter is pending before the Karnataka Appellate
Tribunal, the present petitioner is not a rival claimant and
admittedly the grant was made in favour of the
respondent/landlord, the same is questioned and he is not
having a knowledge about whether the same is disposed of or
not. When he was not a rival claimant he cannot dispute the
very title. Hence, the very contention of the learned counsel
for the petitioner cannot be accepted. The learned counsel also
would vehemently contend that the petitioner herein has not
stated anything about when this petitioner has entered the
premises except stating that he was in occupation even prior to
1983 and the very evidence of R.W.1 before the Trial Court is
that he has surrendered the same. In order to surrendering of
the premises also no material is placed and all these materials
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HRRP No. 38 of 2019
were considered by the Trial Court and rightly came to the
conclusion that the respondents are to be evicted by allowing
the petition. Hence, there are no grounds to interfere with the
findings of the Trial Court.
17. Having heard the respective counsel and on perusal
of the material available on record, admittedly, the petition is
filed under Sections 27(2)(a), 27(2)(b), 27(2)(o), 27(2)(h) and
27(2)(r) of the Act. The Trial Court having considered the
material on record formulated the points with regard to the
relationship between the parties and point No.1 is with regard
to establishment of relationship and taken note of the very
admission given by respondent No.1 that he admitted that he
was inducted as tenant from the landlord in the year 1983. But
his contention is that he has surrendered the possession in
favour of the landlord but no material is placed before the
Court except stating in the memo that he has surrendered the
possession. But it is the claim of respondent No.2, who is none
other than the brother-in-law of respondent No.1 that he has
been in possession, based on some documents i.e., agreement
but no such agreement is placed before the Trial Court and also
respondent No.3/petitioner herein claims that he is in
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HRRP No. 38 of 2019
occupation prior to 1983 but no material is placed before the
Court to show that he was in possession prior to 1983 before
inducting respondent No.1. When respondent No.1 categorically
admits that he was inducted in the year 1983 in terms of the
lease agreement, no explanation on the part of the present
petitioner regarding how come respondent No.1 came into
possession.
18. It is also important to note that respondent No.2
claims that he is in possession and no such document is placed
before the Court. All these materials are considered by the Trial
Court while answering point No.1 and rightly came to the
conclusion that establishes the relationship between respondent
No.1 and later on respondent Nos.2 and 3 are sublet by
respondent No.1. When there is a relationship of respondent
No.1 and when respondent Nos.2 and 3 have not placed any
material as contended by them, the very contention of the
Revision Petitioner cannot be accepted. It is also important to
note that both respondent Nos.2 and 3 have filed R.R.P, before
the Rent Revision Court. Both are dismissed but respondent
No.2 has not challenged the order. The present petitioner, who
is respondent No.3, has filed the present revision petition.
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HRRP No. 38 of 2019
19. The main contention of the learned counsel
appearing for respondent No.1 is that there is no jural
relationship between the parties. Both the Courts having taken
note of both oral and documentary evidence came to the
conclusion that the original tenant is respondent No.1. In order
to prove that he has surrendered the premises, no material is
placed before the Court. This petitioner and respondent No.2
also not placed any material except the oral contention. No
doubt, some of the documents are placed before the HRC Court
producing the documents - Ex.R1 - certified copy of the Sale
Deed dated 30.03.2001; Ex.R2 - certified copy of the Sale Deed
dated 19.06.2009; Ex.R3-Rent Bond dated 20.04.1984;
Ex.R3(a)-Signature of RW.1; Ex.R3(b)-Signature of the Jocob
Lawrence; Ex.R3(c)-Signature of T.Mohammed Abdulla and
R3(d)-Portion of Ex.R3. All these documents with regard to
Rent Bond of the year 1984, the endorsement dated
14.03.2016, which is at Ex.R4. These documents not evidence
the fact that this petitioner was in occupation even prior to
1983 before getting the property to respondent No.1. Hence,
the very contention that no jural relationship between this
petitioner and the landlord cannot be accepted. The material
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HRRP No. 38 of 2019
clearly discloses that the premises was let out to respondent
No.1. Respondent No.1 though claims that he has surrendered
the premises, no material is placed before the Court for having
surrendered the premises. Hence, the first and foremost
contention of the petitioner cannot be accepted regarding the
relationship.
20. The other contention is regarding no title, the same
cannot be accepted. Admittedly, the tenancy right was
confirmed in favour of the land lord, who is the respondent
herein. No doubt, the same is questioned before the Karnataka
Appellate Tribunal, the same is pending. According to the
revision petitioner and the learned counsel for the respondent
says that he does not know about the status before the
Karnataka Appellate Tribunal. Even assuming that the same is
pending before the Court, this petitioner is not the rival
claimant with regard to the title of the landlord. When such
being the case, the said contention cannot be accepted.
21. The third contention is the identity of the property,
which is in dispute. It is the claim of the respondent - landlord
that total 14 cents was granted but the identity of the property
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HRRP No. 38 of 2019
is concerned, it is not in dispute that the very revision
petitioner claims that he is in occupation prior to 1983; before
parting the premises in favour of the first respondent and also
it is not in dispute that the eviction is sought in respect of the
particular premises, which is mentioned in the petition itself
i.e., Door No.16-8-491 (old) and 16-8-491 (1) and (2) (new)
together with appurtenant land ad measuring 0-14 acres in
extent in R.S.A.No.15/113 and T.S.No.152/1B, Mission
Compound, 17th Balmatta Ward, Mangalore City.
22. The learned counsel also brought to the notice of
this Court that an application is filed under Order 6 & 17 read
with Section 151 to 153 of CPC. An application is also filed with
regard to deleting the letter 'A' found after the letters 'R.S.' and
delete the figure '15' and insert '20'. But no dispute with
regard to the premises is concerned, in which the petitioner is
in occupation. When such being the case, the very contention
that the identity is in dispute cannot be accepted. Hence, I do
not find any merit in the Revision Petition. Both the Courts
considered the material on record with regard to the petitioner
is in occupation of the premises, which was let out to
Respondent No.1 in the year 1983 and no document is
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HRRP No. 38 of 2019
substantiated that respondent No.1 has vacated the premises
or surrendered the premises as contended in the memo. When
such being the case, even the Rent Revision Court while
considering the material on record, formulated the point as
point No.1 with regard to the contention of this petitioner; with
regard to the very contention that whether the order passed by
the Trial Court is illegal, perverse and thereby it requires
interference. While answering point No.1, in detail discussed
though jointly discussed point Nos.1 and 2 and taken note of
the documents which have been produced before the Trial
Court and also taken note of the very contention of this revision
petitioner and in detail discussed with regard to the identity of
the property in paragraph Nos.21, 22, 23 and 24, not
committed any error and rightly came to the conclusion that
there is no perversity in the order. When such being the case,
I do not find any merit in the revision petition.
23. In view of the discussions made above, I pass the
following:
ORDER
(i) The HRRP is dismissed.
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HRRP No. 38 of 2019
(ii) The respondent/landlord is permitted to
withdraw the rent deposited by the revision
petitioner before this Court. However, taking
into note of the long pendency of the matter
before the Trial Court for eviction, it is
appropriate to grant six months time from
today to the revision petitioner to quit and
vacate the premises, subject to payment of
continuous rent with arrears and file an
affidavit with undertaking to quit and vacate
the premises within the time prescribed and
payment of rent.
In view of dismissal of the petition, I.A.No.1/2019 for
stay does not survive for consideration, the same stands
disposed of.
Sd/-
JUDGE
CP
