Karnataka High Court
Mr. Barakathulla Khan vs Mr. N Kanaga Sabai on 7 August, 2024
Author: V Srishananda
Bench: V Srishananda
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HRRP No. 01 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
HOUSE RENT REV. PETITION No.1 OF 2023 (EVI)
BETWEEN:
1. MR. BARAKATHULLA KHAN
S/OLATE AHMED KAHN
AGED ABOUT 50 YEARS
NO.88, 89 CHANDNI CHOWK ROAD
SHIVAJINAGAR, BANGALORE -1
WRONGLY SHOWN AS PRESENTLY IN
COMMERCIAL PORTION OF
PREMISES BEARING NO. 5
'B' NO.13TH STREET
CHANDNI CHOWK
ROAD CROSS, SHIVAJINAGAR
BENGALURU -560 051
...PETITIONER
(BY SRI SKANDA KUMAR FOR
SRI RAGHUNATH M D, ADVOCATES)
Digitally AND:
signed by
MALATESH
KC 1. MR. N KANAGA SABAI
Location: S/O LATE T NAGALINGAM PILLAI
HIGH AGED ABOUT 86 YEARS
COURT OF
KARNATAKA PRESENTLY R/AT MAIN RESIDENTIAL
PROTION OF PREMISES
BEARING NO.5, 'B' NO.
13TH STREET, CHANDNI CHOWK
ROAD CROSS, SHIVAJI NAGAR
BENGALURU -560 051
...RESPONDENT
(BY SRI ARJUN REGO FOR SRI REGO L P E, ADVOCATES)
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HRRP No. 01 of 2023
THIS HRRP IS FILED UNDER SECTION 46(1) OF THE
KARNATAKA RENT ACT, 1999 AGAINST THE ORDER DATED
28.11.2022 PASSED IN HRC.NO.10021/2018 ON THE FILE OF
THE XV ADDITIONAL SMALL CAUSES JUDGE AND XXIII ACMM,
BENGALURU, ALLOWING THE PETITION FILED UNDER SECTION
27(2)(r) OF THE KARNATAKA RENT ACT, 1999. FOR EVICTION.
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri Skanda Kumar for Sri Raghunath M.D., counsel
for the revision petitioner and Sri Arjun Rego for Sri Rego
L.P.E., counsel for the respondent.
2. Tenant is the revision petitioner, challenging the
order dated 28th November, 2022, passed in HRC
No.10021/2018, on the file of XV Additional Judge, Small
Causes Court, Bengaluru (SCCH-19).
3. Facts in brief which are utmost necessary for
disposal of the revision petition are as under:
Landlord filed a petition for eviction of the tenant from 'B'
schedule premises which is a portion of the 'A' schedule
premises, by filing an eviction petition which on contest, came
to be allowed.
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4. It is further contended that the premises is required
for own use of the landlord after evicting the tenant.
5. After receipt of notice of the eviction petition,
tenant appeared before the Court filed detailed written
statement, denying the jural relationship of landlord and tenant
and also the grounds for eviction.
6. Apart from denying the relationship, an application
under Section 43 of the Karnataka Rent Act, 1999 came to be
filed by the tenant which on contest came to be dismissed.
7. Tenant filed a revision petition before this Court
against the order of rejecting the application under Section 43
of the Karnataka Rent Act, 1999, this Court while disposing of
the said revision petition, observed that the question can be re-
agitated by the tenant at the time of final disposal of the
eviction petition.
8. In the meantime, a suit is also filed claiming the
ownership over the property. The said suit is pending.
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9. Based on the pendency of the civil suit and the
relationship being denied, the tenant opposed the eviction
petition.
10. Learned Trial Judge after recording the evidence of
the parties and considering the rival contentions of the parties,
allowed the petition filed by the landlord under Section 27 (2)
(r) of the Karnataka Rent Act, 1999 and granted two months
time to vacate the premises. Said order came to be passed on
28.11.2022.
11. Being aggrieved by the same, tenant is before this
Court in this revision on the following grounds:
"The Court below erred in allowing the petition
The Court below ought to have dismissed the petition
The Court below ought to have seen that there is no
relationship of landlord and tenant between the Petitioner
and the Respondent.
The petition ought to have dismissed in toto.
The schedule property claimed by the Respondent herein
was originally owned by the father and mother of
Petitioner herein viz., late Ahmed Khan and late Sufiya
Begum, who have acquired under the registered sale
deed dated 16.08.1993 and the Schedule 'B' property
claimed by the Respondent herein forms the part of the
acquisition by the parents of the petitioner
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By oral gift, the possession was transferred to this
petitioner and the same was acquired on 01.04.1994.
Revenue records were mutated and property taxes are
paid and Katha stands in his name.
The Respondent's claim is under the forged and fabricated
documents which has no sanctity in the eyes of law,
which does not create any ownership right, parties went
to into trial.
The Court below ought to have seen that there is a
dispute about Identity of the property, the Respondent
herein has not clarified by producing and substantiating
the Schedule 'B' property belongs to him. The said
property forms the part of Schedule 'A' property is not
proved and erred in allowing the petition.
The Court below ought to have seen that ExP2 does not
clarify Schedule 'B' property, which forms the part of
Schedule 'A' property erred in accepting the same.
The Court below ought to have seen that the Petitioner
herein had filed an application under Sec. 43 of Karnataka
Rent Act which came to be dismissed by the Hon'ble
Court and the matter went up to the Hon'ble High Court
of Karnataka, the Hon'ble High Court of Karnataka passed
an order dated 13.02.2020 in HRRP 8/2020 and has
granted liberty to the Petitioner herein to approach Civil
court seeking declaration of his title in respect of
Schedule 'B' property shown in HRC 10021/2018, erred in
not noticing the same.
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The Court below further ought to have seen that the
Petitioner herein has filed a suit for declaration in OS
25283/2022 against the Petitioner erred in not noticing
the same below.
The Court below further ought to have seen that since the
suit for declaration has been filed in OS 25283/2022, the
Court below ought to have stopped the proceedings in
HRC Court and ought to have awaited for a decision of
the declaratory suit erred in not doing so.
The Court below further ought to have erred in not
noticing that the petition is filed under Sec. 27 (2) (r) of
Karnataka Rent Act and erred in not noticing that no
proof of requirement is produced by the Respondent
herein, erred in allowing the petition under Sec 27 (2) (r)
of Karnataka Rent Act."
12. Sri Skanda Kumar, representing the revision
petitioner, reiterating the grounds urged in the revision petition
contended that there is a serious dispute as to the jural
relationship, the Trial Court ought not to have ventured further
in adjudicating the revision petition on merits. As such, the
order under revision is not sustainable in law and sought for
allowing the revision.
13. He also pointed out that the result of the application
filed under Section 43 of the Karnataka Rent Act, 1999, did not
attain the finality inasmuch as this Court in the revision petition
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filed by tenant earlier directed the Eviction Court, to consider
the question of jural relationship at the time of final disposal of
the eviction petition and landlord being a party to it, having not
challenged the same, ought not to have proceeded with the
eviction petition, but landlord should have resorted the Civil
Court for appropriate relief and sought for allowing the revision
petition.
14. Per contra, learned counsel for the respondent
supports the impugned order. He further contends that the
pendency of the Civil suit did not come in the way of existence
of the jural relationship between the parties and if the revision
petitioner succeeds in the suit, he can always get back
possession of the property. Therefore, the grounds urged in
the revision petition do not possess any merit and sought for
dismissal of the revision petition.
15. Having heard the parties in detail, this Court
perused the material on record meticulously.
16. On such perusal of the material on record, it is
crystal clear that not only the relationship disputed between the
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parties, but also the description of the property is disputed by
the tenant.
17. Application filed by the tenant under Section 43 of
the Karnataka Rent Act, 1999 came to be dismissed and the
matter was carried to this Court in revision.
18. However, this Court disposed the revision petition
with a direction to consider the question of jural relationship
along with the main matter.
19. Pendency of the suit is not in dispute. The tenant
therein claims as an owner of the property based on the sale
deed. At an undisputed point of time, since the relationship
was not in dispute, the application under Section 43 of
Karnataka Rent Act, 1999 came to be dismissed by the eviction
Court.
20. Strictly speaking, the finding recorded therein
would definitely act as constructive res judicata between the
parties, in the absence of the observations made by this Court
in the earlier revision petition.
21. Why the landlord did not challenge the said order in
the earlier revision petition is not explained by the landlord.
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Fact remains that there was a direction and observation by this
Court in the earlier revision petition, the tenant was given an
opportunity to re-agitate the issue of jural relationship at the
time of disposal of the main petition.
22. Therefore, the learned Trial Judge has discussed in
detail about the material evidence on record in paragraph 27 to
32 of the impugned order which reads as under:
"27. It is pertinent to note here that on careful scrutinity
of judgment and decree passed in said SC.No.15024/2020,
the documents produced by the present Respondent in the
said suit are only alleged Rent agreement, Copy of Legal
notice and Postal acknowledgment, but the Plaintiff/
respondent had not produced the Khata extract of suit
premises. So, filing of SC.No.15024/2020 during the
pendency of this HRC petition is with a malafide intention
only.
28. Further in the Cross examination RW.1 at page No.7
in para No.4 deposed that, "after the Judgment in
S.C.No.15024/2020 I have taken the possession, Mishra
handed over the possession voluntarily, I cannot say the
date on which the possession was handed over by Mishra. "
This testimony of RW.1 shows his malafide intention and
the tenant Mishra handed over the possession voluntarily
and he cannot say the date. This evidence itself is sufficient
to hold that, SC.No.15024/2020 is filed only to defeat the
present petition and create more complications.
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29. Further Ex.P7 Property card, Property register and
City survey map reveal that, suit property No.5 is standing
in the name of Petitioner and earlier to his name, his father
name Nagalingam Pillay is appearing. Further city Survey
map also shows suit passage, whereas the sale deed of the
respondent is in respect of property No.88 and 89.
30. Ex.R2 & R6 photographs produced by the
respondent indicate that, the disputed passage is having
locked old doors in Green colour. By looking into Ex.R2 it is
fully locked and it does not look that, it is in the occupation
of anyone. But in para no.5 of Cross examination the RW.1
deposed 22 SCCH - 19 HRC.10021/2018 that, "Since 1994
I am in the possession of B- schedule property by way of
Hiba. I have produced the documents to show that, I came
in the possession of B-schedule property, such as Sale
deed and Hiba nama. It is not true to suggest that, the
Sale deeds and Hiba nama do not disclose that, I came in
posession of B-schedule property."
31. On careful scrutiny of Ex.R8 sale deed and Ex.R9
Declaration/Hiba nama which disclose that, the property
number is shown as Old No.71A and New no.89 and
premises bearing Old No.72 New No.88. Therefore, as
already discussed above the petition Schedule B-property
number is 5, though this petition is filed for ejectment, but
the respondent seriously disputed the title of the Petitioner
and also alleged that, he is the absolute owner of petition
B- schedule premises, but the said sale deed and Hiba
nama are totally in respect of property No.88 and 89 which
is admitted by Rw.1 in the Cross examination at Para No.3
" My property number is 88 and 89. My parents bought
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property number 88 and 89 from Mohammed Ishaq". .........
It is true to suggest that, Ex.R8 and 9 are in respect of
property No.88 and 89.
32. Further the RW.1 deposed at para No.4 of Cross
examination that, "by seeing the Ex.P7 I cannot say which
property is No.88 and 89. It is true to suggest that, at
Ex.R8 and Ex.R9 no passage is mentioned. It is true to
suggest that, Ex.R8 and 9 have no relation or nexus with
the petition Schedule property and not paying any tax to
the property No.5, B No.13, street, Chandni Chowk road."
23. The above discussion clearly establish that the
learned Trial Judge has taken into consideration each and every
ground urged on behalf of the tenant and negated the
contentions taken by the tenant. Therefore, the tenant cannot
now in this revision again re-agitate the question of
relationship.
24. Insofar as description of the property is concerned,
the contentions urged on behalf of the revision petitioner that
boundaries do not tally, would not also hold much water
inasmuch as the description of the 'A' schedule property is for
the whole property and 'B' schedule property of which the
tenancy which is on occupation of the tenant is concerned, the
description is given on the Northern side as the remaining
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portion of the 'A' schedule property. Such a discretion is just
and proper and would not affect the tenancy. Moreover, the
tenant is not occupying any portion other than the building for
which the landlord has claimed the ownership.
25. Even according to the tenant in the suit that has
been filed by him, the 'B' schedule property is the ownership
claimed by him. Therefore, there are no discrepancies with
regard to the occupation of the property by the tenant.
26. Having said thus, since no contra evidence is placed
on record by the tenant insofar as the bona fide use that has
been pleaded and proved by the landlord, the learned Trial
Judge was justified in ordering the eviction of the tenant from
the premises by accepting the grounds urged under Section 27
(2) (r) of the Karnataka Rent Act, 1999.
27. Suffice to say that the material on record do not
warrant interference by this Court, that too under the revisional
jurisdiction. Accordingly, revision petition is to be dismissed.
28. Having said thus, the Trial Court has granted two
months time to vacate the premises on 28th of November 2022.
The tenant has filed the revision petition and there is an order
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of stay in this revision petition and whereby the tenant has
enjoyed the property till today.
29. Taking note of the fact that a suit is pending and if
the tenant succeeds in the said suit, would always be entitled
to take back the possession of the property in accordance with
law by obtaining necessary directions in the suit and if the suit
filed by the tenant is to be succeeded, needless to emphasize
that the eviction order passed by this Court shall not come in
the way of the tenant taking back the possession from the
landlord.
30. With the above observation, following order is
passed:
ORDER
(i) Revision petition is dismissed.
(ii) Revision petitioner is directed to vacate and hand over
the premises voluntarily on or before 31st August
2024.
Sd/-
(V SRISHANANDA)
JUDGE
MR
