HAJID HUSSAIN v. VIJAYA RAJ — 1999 DIGILAW 365 (KAR)

K. R. PRASADA RAO, J. ( 1 ) THIS revision is filed under Section 115, Civil Procedure Code, by the respondent in h. r. c. No. 29 of 1985, on the file of the learned munsiff, raichur, against the order passed in h. r. c. r. p. No. 4 of 1991 by the learned district judge, raichur, confirming the eviction order passed by the trial court. ( 2 ) FOR the sake of convenience, i shall refer to the parties with regard to their position and status in h. r. c. No. 29 of 1985, on the file of the trial court. Petitioner-vijayaraj filed the eviction petition-h. r. c. No. 29 of 1985 in the trial court seeking for eviction of the respondent-haji d. hussain (original respondent) from the petition schedule house property bearing municipal No. 4-2-32 situate at mangalwarpet, raichur, alleging that he became the owner of the said premises by virtue of a registered sale deed executed in his favour on 8-5-1984 by the previous owners-bibi noor and her son syed mohd. Isaq and after the purchase of the said premises he informed the respondent about it and called upon him to attorn his tenancy in his favour. Since the respondent has not complied with the said demand he issued a legal notice calling upon him to vacate the petition schedule premises since it is required for his personal use and occupation and filed the eviction petition on the ground under Section 21 (1) (h) of the Karnataka Rent Control Act, 1961 (for short 'the act' ). The petitioner alleged in the said petition that he requires the petition schedule premises for his personal use and occupation since at present he is residing in a portion of the house situate at mangalwarpet, raichur, which has fallen to the share of his brother and he has no house of his own for his residential accommodation. Respondent resisted the said claim by filing his objections contending that the petitioner has not derived any right, title or interest in respect of the petition schedule premises under the registered sale deed executed in his favour by the power of attorney holder of his vendor and that there is no relationship of landlord and tenant between the petitioner and himself. it is also contended by the respondent that syed mohd. it is also contended by the respondent that syed mohd. Ibrahim jan was the owner of the petition schedule premises and he migrated to pakistan in the year 1948 authorising one gulam mohd; ahamad to collect rents of the petition schedule and other house belonging to him. the said gulam mohd. Ahamad died on 15-10-1951 and since from that date he has not paid the rents of the petition schedule premises to any person. The rent agreed was only Rs. 70/- per month and gulam mohammed was collecting the rents at that rate only during his lifetime. the power of attorney holder-yousuf khan, who executed the sale deed in favour of the petitioner on behalf of Smt. Bibi noor and syed mohammad isaq, was indebted to him and in order to defraud his creditors he sold the petition schedule premises to the petitioner on the basis of power of attorney. Respondent further contended that the petitioner is unmarried and is residing in his own house separately. So he has no real need to occupy the petition premises. He denied the allegation made in the petition that an intimation was given by the petitioner about his intention to purchase the petition schedule premises. ( 3 ) THE learned munsiff, after recording the evidence adduced by both parties, allowed the eviction petition and held that there is relationship of landlord and tenant between the parties and that the petitioner has made out a case under Section 21 (1) (h) of the act for eviction of the respondent from the petition premises. Against the said Order, respondent filed a revision petition in h. r. c. revision petition No. 4 of 1991 before the learned district judge, raichur, and the same was dismissed confirming the eviction order passed by the trial court. Respondent, therefore, filed the present revision petition. ( 4 ) I have heard the arguments of the learned counsel appearing on both sides. ( 5 ) THE learned counsel for the revision petitioner-respondent) contended that there is a bona fide dispute relating to the title of the petitioner in respect of the petition premises and in spite of it the courts-below have erroneously held that the relationship of landlord and tenant exists between the parties, instead of directing the petitioner to establish his title in respect of the petition premises in a competent civil court. It is further contended by him that the courts-below have overlooked the fact that the petition premises originally belonged to syed ibrahim jan, who migrated to pakistan in the year 1948 and permanently settled there along with his family members and that the vendors who executed the sale deed in favour of the petitioner in respect of the petition premises were not the previous owner of the said property and that they had no right, title and interest in respect of the said property. He also contended that the respondent never paid any rents to the said vendors of the petitioner and he never attorned his tenancy to them at any point of time in respect of the petition premises and never recognised them as his lordlords. It is also his contention that the eviction petition could have been dismissed by the courts-below as not maintainable holding that there is no relationship of landlord and tenant between the parties. Alternatively, he contended that the petitioner has not made out the grounds under Section 21 (1) (h) of the act and the courts-below have erroneously allowed the eviction petition on the said ground. In reply to these contentions, the learned counsel for the respondent herein (petitioner) submitted that the courts-below have recorded the concurrent findings on the above questions of fact and this court while exercising revisional powers under Section 115, civil procedure code, is not entitled to interfere with the said concurrent findings. he further contended that even according to the respondent, no other person made any rival claim in respect of the petition premises and no other legal heir of the original owner of the said property syed ibrahim jan is alive and available in india. Since the sale deed has been executed in favour of the petitioner by the sister of syed ibrahim jan who is the only legal heir who inherited the said property through the p. a. holder he contended that the petitioner derived valid title in respect of the petition premises and became the landlord in respect of the said premises. He finally contended that in the circumstances the courts-below have rightly concluded that the relationship of landlord and tenant exists between the parties and no complicated question-of-title relating to the petition premises is involved and that it is not necessary to refer the parties to a civil court. He finally contended that in the circumstances the courts-below have rightly concluded that the relationship of landlord and tenant exists between the parties and no complicated question-of-title relating to the petition premises is involved and that it is not necessary to refer the parties to a civil court. He finally contended that there are no justifiable grounds to interfere with the concurrent finding recorded by the courts-below that the petitioner has made out a ground for eviction of the respondent from the petition premises under Section 21 (1) (h) of the act. ( 6 ) I will first consider the question as to whether any complicated dispute relating to the title of the petition property is involved in these proceedings and whether the courts-below were justified in holding that no such question is involved and that the relationship of landlord and tenant exists between the parties. It is the admitted case of both parties that the original owner of the petition premises is one syed ibrahim jan and that he had migrated to pakistan in the year 1948 during police action and had permanently settled down in pakistan. One of the vendors of the petitioner-syed mohd. Isaq, who is examined as P. W. 2, stated in his evidence that the original owner-syed ibrahim jan left India during Police Action in the year 1948 and at that time when he left India he has given the petition premises to his mother Smt. Bibi noor, who is the other vendor, and who is the sister of the said syed ibrahim jan. Thus he claimed that his mother became the owner of the petition premises even in the year 1948 and he was looking after the management of the said property. During his absence from raichur, the said property was being managed by one gulam mohammed. But the witness has not produced any document to show that the petition premises was given to his mother by the said syed ibrahim jan in the year 1948. Even assuming that under an oral gift, the said premises has been given to the mother of this witness by the said owner syed ibrahim jan, it must be seen whether such a transfer of the property of a person who migrated to pakistan confers any right, title or interest on the transferee. Even assuming that under an oral gift, the said premises has been given to the mother of this witness by the said owner syed ibrahim jan, it must be seen whether such a transfer of the property of a person who migrated to pakistan confers any right, title or interest on the transferee. according to the Provisions of Section 41 of the administration of evacuee property Act, 1950 (for short 'the act') any such transfer made in respect of a property belonging to an evacuee in favour of another person shall be void. Section 41 of the act reads as follows. "transaction relating to evacuee property void in certain circumstances. subject to the other Provisions contained in this act every transaction entered into by any person in respect of property declared or deemed to be declared to be evacuee property within the meaning of this act shall be void unless entered into by or with the previous approval of the custodian". Section 2 (dxi) and (ii) of the act defines an "evacuee" as follows:" (D) "evacuee" means any person. (i) who, on account of the setting up of the dominions of India and pakistan or on account of civil disturbances or the fear of such disturbances, leaves or has, on or after the first day of march, 1947, left any place in a state for any place outside the territories now forming part of india; or (ii) who is resident in any place now forming part of pakistan and who for that reason is unable to occupy, supervise or manage in person his property in any part of the territories to which this act extends or whose property in any part of the said territories has ceased to be occupied, supervised or managed by any person or is being occupied, supervised or managed by an unauthorised person, or. . ". as it is admitted that the original owner of the petition premises-syed ibrahim jan had migrated to pakistan during the year 1948 and had permanently settled, there, it is clear that he falls within the definition of "evacuee" as defined under the act. Section 7 of the act prescribes the procedure to declare any property as evacuee property by the custodian. Section 7-a of the act clarifies that no property shall be declared to be evacuee property on or after 7th day may, 1954. Section 7 of the act prescribes the procedure to declare any property as evacuee property by the custodian. Section 7-a of the act clarifies that no property shall be declared to be evacuee property on or after 7th day may, 1954. The learned counsel for the petitioner submitted that the petition premises has not been declared as evacuee property by issuing any notification after following the procedure prescribed under the Provisions of Section 7 of the act before 7th may, 1954 and the said property has not so far vested in the custodian. it is also not the case of the respondent that he received any notice from the custodian to pay the rents of the petition schedule premises to him till now. So, it can be taken that the petition premises has not been declared as evacuee property under the Provisions of Section 7 of the act. But there is another provision in Section 40 of the act which declares that any transfer of the property belonging to an evacuee within the meaning of Section 2 made by him after 14th august, 1947 and before 7th day of may, 1954 shall not be effective. Section 40 (1) reads as follows:"validity of transfers respecting property subsequently declared to be evacuee property. no transfer made after the 14th day of august, 1947 but before the 7th day of may, 1954 by or on behalf of any person in any manner whatsoever of any property belonging to him shall be effective so as to confer any rights or remedies in respect of the transfer on the parties thereto or any person claiming under them or either of them, if at any time after the transfer, the transferor becomes an evacuee within the meaning of Section 2 of the property of the transferor is declared or notified to be evacuee property within the meaning of this Act, unless the transfer is confirmed by the custodian in accordance with the Provisions of this act". Section 40 (8) further declares that "every property transferred in contravention of the Provisions of this Section of an evacuee which does not confer any rights or remedies in relation to the transfer on the parties thereto shall be deemed to be property declared to be evacuee property within the meaning of sub-section (1) of Section 7 and to have vested in the custodian in accordance with the Provisions of Section 8". (emphasis supplied) thus, by virtue of the said deemed provision any transfer made by the evacuee of his property during the above said specified period does not confer any rights on the transferee and the property of the evacuee stands vested in custodian. Section 41 of the act further makes it dear that any transaction relating to evacuee property in respect of the property declared or deemed to be declared to be evacuee property within the meaning of this act shall be void unless entered into by or with the previous approval of the custodian. In the instant case, as P. W. 2-syed mohd. Isaq, one of the vendors under the sale transaction stated that syed ibrahim jan who has migrated to pakistan, who answers the description of evacuee under Section 2 (d) (i) and (ii) of the act has given the petition premises to his mother Smt. Bibi noor, she being the-sister of the said original owner at the time when he migrated to pakistan in the year 1948, it is clear from the above Provisions of the act that the said transfer of the property even by way of oral gift does not confer any rights in respect of the petition premises in favour of the said transferee Smt. Bibi noor and the said transaction, is void by virtue of the Provisions of Section 41 of the act and the petition premises stands vested in the custodian and shall be deemed to be property declared to be evacuee property by virtue of the Provisions of Section 40 (8) of the act. Thus, it is clear that the said vendor of the petitioner Smt. Bibi noor had not derived any right, title or interest in respect of the petition premises by virtue of the transfer of the said property by the original owner-syed ibrahim jan in the year 1948 when he migrated to pakistan. Thus, it is clear that the said vendor of the petitioner Smt. Bibi noor had not derived any right, title or interest in respect of the petition premises by virtue of the transfer of the said property by the original owner-syed ibrahim jan in the year 1948 when he migrated to pakistan. As a consequence, by virtue of the sale deed executed in favour of the petitioner by the said power of attorney of his vendor Smt. Bibi noor and her son P. W. 2 in respect of the petition premises, petitioner does not derive any right, title or interest in respect of the said property. Section 4 of the act makes it clear that the Provisions of this Act, the rules and the orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law. Section 46 (a), (c) and (d) of the act excludes the jurisdiction of a civil court to entertain or adjudicate upon any question whether any property or any right to, or interest in, any property is or is not evacuee property or (c) to question the legality of any action taken by the custodian-general or the custodian under this act; or (d) in respect of any matter which the custodian-general or custodian is empowered by or under this Act, to determine. However, since there is no sufficient proof of the fact that syed ibrahim jan has given the petition premises to his sister Smt. Bibi noor at the time when he left India and migrated to pakistan in the year 1948 either under an oral gift or by executing any registered gift deed in her favour, it cannot be presumed that the said property has been transferred in favour of Smt. Bibi noor by the said original owner. So, in my view, the above referred Provisions of the administration of evacuee property Act, 1950 are not attracted to the present case. So, in my view, the above referred Provisions of the administration of evacuee property Act, 1950 are not attracted to the present case. ( 7 ) IT is the main contention of the petitioner that his vendor Smt. bibi noor, who is the mother of P. W. 2, became the owner of the petition premises as the only surviving legal heir in India of syed ibrahim jan and so he derived valid right, title and interest in respect of the petition premises under the registered sale deed ex. P-1, dated 8-5-1984 executed in his favour by yousuf khan the power of attorney of Smt. Bibi noor and her son P. W. 2-syed mohd. Isaq and as the person who derived title in respect of the petition premises from the previous owner, he became the landlord in respect of the petition premises. But the respondent disputed the claim of the petitioner that Smt. Bibi noor is the sister of the original owner of the petition premises-syed ibrahim jan or that she is the only surviving legal heir of the said original owner. On the other hand, it is contended by him that the 2 wives and other sons and daughters of the original owner-syed ibrahim jan are alive and so the petitioner has not derived any right, title or interest in respect of the petition premises under the above sale deed executed in his favour. It is the further contention of the respondent that he never paid any rents in respect of the petition premises to Smt. Bibi noor or her son P. W. 2-syed mohd. Isaq at any point of time and never recognised them as his landlords. on the other hand, according to him, after the original owner syed ibrahim jan left India and migrated to pakistan in the year 1948 one gulam mohammad was in occupation of the petition premises and he was looking after the premises on behalf of the said original owner and he has let out the premises to him and was collecting the rents from him. The respondent has also given evidence to the effect that the said gulam mohammed died in the year 1980 and after his death nobody else came to collect the rents of the petition premises from him and he has not paid any rents of that premises to anybody else. The respondent has also given evidence to the effect that the said gulam mohammed died in the year 1980 and after his death nobody else came to collect the rents of the petition premises from him and he has not paid any rents of that premises to anybody else. He further disclosed in his evidence that the gulam mohd. During his lifetime had filed an eviction petition against him in respect of the petition premises, certified copy of which is produced as ex. R-1 alleging that he is the owner in respect of the petition premises and that he requires the petition premises for his personal use and occupation on the ground covered under Section 21 (1) (a) and (h) of Karnataka Rent Control Act, 1961. He also produced the certified copy of the objection statement filed by him in that case-hrc No. 17 of 1981 marked as ex. R-2 to show that he disputed the claim of gulam mohd. That he is the owner of the petition premises and contended that the said house is an evacuee property as the original owner syed ibrahim jan has migrated to pakistan in the year 1948 and has not returned thereafter. However, the respondent agreed to pay rents to gulam mohammad since he was authorised to collect the rents and since he had let out the said house to him as the person who was looking after the management of the said house. Respondent also admitted in his said counter that he has paid rents from June 1981 to January 1982 at the rate of Rs. 70/- per month to gulam mohammad. It is significant to note that the respondent has taken a. contention in the said counter filed by him that gulam mohammad has let out the petition premises to him on a monthly rent of Rs. 70/- falsely representing that he was the owner of the said house and that later on he came to know that he is not the owner of the said house and that the said house is an evacuee property. It is also in the evidence of the respondent that the said eviction petition was dismissed as not pressed by entering into a compromise with him. It is also in the evidence of the respondent that the said eviction petition was dismissed as not pressed by entering into a compromise with him. Thus, the fact remains that the right of ownership set-up by gulam mohammad, in respect of the petition premises has not been adjudicated and no finding is given in respect of the said claim of him in the said eviction proceedings. It is also in the evidence of the respondent that after the death of gulam mohammad his wife has applied to the municipality for mutation of her name in respect of the petition premises along with other properties. He produced a certified copy of the said application of her which is marked as ex. R-3 and certified copy of her affidavit filed along with that application which is marked as ex. R-4. In the said affidavit, the wife of gulam mohd. Claimed that she became the owner in respect of the petition premises and the other 3 houses after the death of her husband-gulam mohammad and that her husband gulam mohammad was the owner of the petition premises after the death of the said syed ibrahim. Thus respondent has produced these documents to show that a rival claim is made by the wife of gulam mohammad that she is the owner of the petition premises and has applied fir mutation of her name in the municipal records in respect of'the petition premises. The respondent has also given evidence stating that the original owner of the petition premises-syed ibrahim jan has got 3 sons by names mohd. Khu, mohd. sultan and another, whose name he does not know, and that he has also got daughters and 2 wives. According to him, syed ibrahim jan has authorised gulam mohd. To collect the rents of the petition premises. He also claimed that syed ibrahim jan was not having any sisters and syed ibrahim jan is no more and that he died in karachi, according to the information given to him by gulam mohd. He also clarified that about an year prior to the date of giving his evidence, he came to knew through one abdul khader khan, a relative of syed ibrahim jan, that the sons of syed ibrahim jan are alive at karachi and they are thinking to come back to raichur and take the property. He also clarified that about an year prior to the date of giving his evidence, he came to knew through one abdul khader khan, a relative of syed ibrahim jan, that the sons of syed ibrahim jan are alive at karachi and they are thinking to come back to raichur and take the property. However, he admitted that he has not tried to ascertain the correct addresses of the sons of syed ibrahim jan and has not tried to send the rent amount of the petition premises to them. Thus, the respondent disputed the claim of the petitioner that his vendor bibi noor is the sister and the only surviving legal heir of the original owner-syed ibrahim jan and contended that some daughters and 2 wives of the said original owner are alive and that even the wife of gulam mohd. , who was collecting the rents from him in respect of the petition premises, has made a rival claim of ownership in respect of the petition premises. The respondent, therefore, contended that there is a complicated dispute relating to the title of the petition premises and petitioner ought to have been directed by the trial court to go to the civil court to establish his claim of ownership in respect of the petition premises. In other words, it is his contention that no relationship of landlord and tenant exists between the petitioner and himself and that he never recognised either the petitioner or his vendors as his landlords in respect of the petition premises at any point of time and he never paid any rents to any of them at any point of time. ( 8 ) THE learned counsel for the respondent also elicited in the crossexamination of P. W. 2 one of the vendors of the petitioner that the original owner-syed ibrahim jan had 2 sons by name mohd. Kho and syed mohd. Sultan and also other sons and a daughter. It is further elicited that they were all residing in afghanistan. But, according to P. W. 2, since last 7-8 years there are disturbances in afghanistan and it is not known whether the above said legal heirs are alive or not. According to him, his maternal uncle was staying at afghanistan and he was writing letters to him mentioning in those letters about the welfare of the sons of syed ibrahim jan. According to him, his maternal uncle was staying at afghanistan and he was writing letters to him mentioning in those letters about the welfare of the sons of syed ibrahim jan. It is also in his evidence that syed ibrahim jan died in the year 1952-53. Thus even the evidence of P. W. 2 one of the vendors of the petitioner supports the contention of the respondent that the sons, daughters and wives of syed ibrahim jan are there. merely because P. W. 2 could not ascertain the whereabouts of the said legal heirs, it cannot be presumed that they are dead. The learned counsel for the petitioner, no doubt, contended that a presumption is to be drawn that they are dead as provided under Section 108 of the evidence act when they are not heard to be alive for more than 7 years by their close relatives. But when complicated question of title is involved in respect of the petition premises, the said question can be decided only by a civil court in a properly constituted suit by impleading all the legal heirs of syed ibrahim jan and it is for the civil court to decide whether any presumption can be drawn under Section 108 of the Evidence Act and such complicated questions cannot be decided by the court vested with limited jurisdiction under the Provisions of the Karnataka rent control Act, 1961. Further the question whether bibi noor one of the vendors of the petitioner, who is now not alive, was really. the sister of syed ibrahim jan is also to be decided by a civil court since the respondent has disputed the said fact and contended that syed ibrahim jan had no sisters. At this stage, it is relevant to note that it is elicited in the cross-examination of P. W. 2 that there are 2 other house properties belonging to syed ibrahim and one of those houses is now in the occupation of mohd. Omer, m. l. a. and another house is in the occupation of the sons of gulam mohd. He also admitted that he never demanded the rents from mohd. Omer, m. l. a. , so far and the sons of gulam mohammad are also not paying any rents to him. Omer, m. l. a. and another house is in the occupation of the sons of gulam mohd. He also admitted that he never demanded the rents from mohd. Omer, m. l. a. , so far and the sons of gulam mohammad are also not paying any rents to him. Though he claimed that himself and his mother allowed them to reside in that house and to look after the properties, he did not produce any documentary evidence to prove the said fart. Thus, it is found that Smt. Bibi noor never made any claim in respect of the other two houses belonging to syed ibrahim jan. So this circumstance creates a doubt as to whether really Smt. Bibi noor was the sister of syed ibrahim jan and succeeded to the properties of syed ibrahim jan as his only legal heir as claimed by the petitioner. similarly, whether any distant legal heir of the evacuee of the syed ibrahim jan, residing in india can claim the property of the evacuee under law of succession on the ground that whereabouts of the other nearer legal heirs staying in another country are not known, is a complicated question which is to be decided by a civil court. Thus, in my view, a complicated question of title in respect of the petition premises is involved in these proceedings and the said question can be decided only by the civil court. Petitioner is, therefore, to be directed to establish his title in respect of the petition premises in a competent civil court. Both the lower courts have ignored all the above aspects and have erroneously held that no complicated question of title is involved in respect of the petition premises and that no relationship of landlord and tenant exists between the petitioner and the respondent. I, therefore, find that the said finding recorded by the courts-below is erroneous. ( 9 ) FOR the reasons stated above, i find that the eviction petition is not maintainable. ( 10 ) IN view of my above finding, the question whether the ground covered under Section 21 (1) (h) of the act is made out by the petitioner for eviction of the respondent from the petition premises does not survive for consideration. ( 9 ) FOR the reasons stated above, i find that the eviction petition is not maintainable. ( 10 ) IN view of my above finding, the question whether the ground covered under Section 21 (1) (h) of the act is made out by the petitioner for eviction of the respondent from the petition premises does not survive for consideration. However, i shall proceed to examine the correctness of the finding recorded by the courts-below in respect of the said ground so that the matter need not be remanded for consideration of the said question by this court in the event of reversal of the finding recorded on the question of maintainability of the eviction petition by the apex court. ( 11 ) IT is admitted by the petitioner in his evidence that at present he is residing in a portion of the building belonging to the joint family consisting of himself and his brother, which is a double-storied building. the petitioner claimed that the said building fell to the share of his brother in a partition effected between himself and his brother in December 1985. But, he did not produce the partition deed to prove this fact. He did not also disclose in his evidence whether the said "partition is evidenced by any document or whether it was oral. He did not also disclose any other details about the said partition. It is not known whether there are any other ancestral properties belonging to the joint family and whether the petitioner is given any other property to his share under that partition. In the absence of any such details, in my view, the courts-below were not justified in accepting the said oral testimony of the petitioner that the said entire joint family building fell to the share of the petitioner and that he has no right, title or interest or share in that building. The evidence of the petitioner also shows that he is a bachelor and he is residing alone in a portion of the above said joint family building. His evidence also does not disclose the details of the accommodation available in the said building and how the portion in his occupation in that building is insufficient for his residence. The evidence of the petitioner also shows that he is a bachelor and he is residing alone in a portion of the above said joint family building. His evidence also does not disclose the details of the accommodation available in the said building and how the portion in his occupation in that building is insufficient for his residence. Thus, the evidence of the petitioner does not establish that there is any real need or necessity for him to shift from the present joint family house to the petition premises and to claim the same for his residential accommodation. I have therefore, no hesitation to hold that the above requirement of the petitioner in respect of the petition premises for his personal use and occupation is not a reasonable and bona fide requirement. The finding recorded by the courts-below to the effect that the petitioner has made out the ground covered under Section 21 (1) (h) of the Act, in my view, is clearly erroneous. ( 12 ) FOR all the above said reasons, this revision petition is allowed setting aside the order of eviction passed against the respondent by the courts-below and the eviction petition h. r. c. No. 29 of 1985, on the file of the munsiff at raichur, is dismissed. In the circumstances of the case, i direct the parties to bear their respective costs. --- *** --- .