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2002 DIGILAW 576 (KAR)

THILOTHAMMA v. RAHMATHUNNISA

2002-09-17

A.V.SRINIVASA REDDY

body2002
A. V. SRINIVASA REDDY, J. ( 1 ) THIS revision by the tenants under Section 50 of the Karnataka Rent control Act, 1961 is preferred against the order dated 19-1-2000 passed in H. R. C. No. 10484 of 1999 on the file of XV Additional Small Causes judge, Bangalore. ( 2 ) THE respondent-landlord filed the petition for eviction of the tenants under Section 21 (l) (f) and (j) of the Karnataka Rent Control Act, 1961 (Karnataka Act 22 of 1961 ). She put forth the case in the eviction petition that the husband of the first petitioner, one S. M. A. Hameed was a tenant in a portion of premises bearing No. 4, Mosque Road, Frazer town, Bangalore, and subsequent to his death the first petitioner continued in occupation of the premises on a monthly rent of Rs. 95/- excluding light and water charges. It is the case of the respondent that the premises is in a dilapidated condition and it is required to be demolished and reconstructed. The respondent claimed to have sufficient funds at her disposal for putting up a new construction. It is further her case that the first petitioner has sub-let the premises to the second petitioner who is her son-in-law. Based on these two grounds she claimed that she is entitled to get possession of the petition premises. ( 3 ) THE petitioners denied the petition averments and filed the statement of objections disputing the claim of the respondent that she had sufficient means to put up a construction after demolition. They also denied that the second petitioner is a sub-tenant of the premises. It is their stand that the second petitioner is the son-in-law of the first petitioner and he has been staying along with the first petitioner (mother- in-law) even before the demise of the original tenant Prof. Hameed. ( 4 ) THE Court below on perusal of the document and appreciation of the evidence led in the case allowed the petition filed for eviction both under Section 21 (l) (f) and (j) of the Act 1961. Hence, the present revision by the aggrieved tenants. Hameed. ( 4 ) THE Court below on perusal of the document and appreciation of the evidence led in the case allowed the petition filed for eviction both under Section 21 (l) (f) and (j) of the Act 1961. Hence, the present revision by the aggrieved tenants. ( 5 ) WHILE the matter was pending consideration in this Court, the karnataka Rent Act, 1999 (Karnataka Act 34 of 2001) came into force with effect from 31st December, 2001 bringing about sweeping changes in the matter of regulation of rent and eviction of tenant in certain areas of the State. Bangalore City in which the premises in question is situate is one of the areas covered by the new Act. ( 6 ) BY virtue of clause (b) of sub-section (2) of Section 70 of the Act 1999 this revision is required to be considered under the provisions of the new Act. The relevant provision reads as under:"section 70. Repeal and savings. (1) The Kamataka Rent control Act, 1961 (Karnataka Act 22 of 1961), is hereby repealed. (2) Notwithstanding such repeal and subject to the provisions of Section 69 (a ). . . . . (b) all cases and proceedings other than those referred to in clause (a) pending at the commencement of this Act before the Controller, Deputy Commissioner, Divisional Commissioner, court, District Judge or the High Court or other authority, as the case may be in respect of the premises to which this Act applies shall be continued and disposed off by such Controller, Deputy Commissioner, Divisional Commissioner, court, District Judge or the High Court or other authority in accordance with the provisions of this Act". In Act 1999 the Legislature has introduced a provision governing inheritability of tenancy by enacting Section 5 in the Act. Section 5 has introduced certain limitations in the matter of inheritance of tenancy rights by the successors of the original tenant. Section 5 of the new Act reads:"section 5. Inheritability of tenancy. (1) In the event of death of a tenant, the right of tenancy shall devolve for a period of five years from the date of his death to his successors in the following order, namely. Section 5 of the new Act reads:"section 5. Inheritability of tenancy. (1) In the event of death of a tenant, the right of tenancy shall devolve for a period of five years from the date of his death to his successors in the following order, namely. (a) spouse; (b) son or daughter or where there are both son and daughter both of them; (c) parents; (d) daughter-in-law, being the widow of his pre-deceased son: provided that the successor has ordinarily been living or carrying on business in the premises with the deceased tenant as a member of his family up to the date of his death and was dependent on the deceased tenant. The petitioners herein are the wife and son-in-law of the deceased tenant. Apparently, the son-in-law cannot succeed to the tenancy as Section 5 does not recognise a son-in-law as one of the successors who can inherit the right of tenancy. The facts of the case make it clear that the first petitioner who succeeded to the tenancy had been living with the deceased tenant as a member of his family up to the date of his death and was dependent on him. As this fact has not been disputed by the respondent-landlord the tenancy would devolve on her for a period of 5 years from the date of the death of her husband. Her husband, the original tenant, died on 25-6-1992. The devolvement of the tenancy having been limited under the Act only to a period of 5 years from the date of death of her husband, her right to tenancy stood extinguished way back in 1997 itself. We are now in the year 2002. In the context of law prevailing at present the petitioners cannot put forth any defence to the eviction claim set up by the respondent-landlord as she would be entitled to the vacant possession of the premises as of right even without recourse to any of the grounds available for eviction under the Act. ( 7 ) LEARNED Counsel for the petitioner-tenant cited several decisions in support of his contention that there was no sub-tenancy. ( 7 ) LEARNED Counsel for the petitioner-tenant cited several decisions in support of his contention that there was no sub-tenancy. In Dipak banerjee v Lilabati Chakraborty, the Apex Court laying down the essential ingredients required to establish sub-tenancy, held:"in order to prove tenancy or sub-tenancy two ingredients had to be established, firstly, the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly, that right must be in lieu of payment of some compensation or rent". In Ramegowda v Gowrammd, this Court held that there is no sub-letting in the absence of parting of exclusive possession of premises or portion of it, in the following terms:"there is no specific finding that the petitioner has parted with possession of any portion of the premises to another person. Merely because a relative or a friend resides with the tenant for a certain period continuously or otherwise does not amount to sub-letting as long as there is no exclusive possession of the premises or a portion of the premises, by such person". To similar effect is the decision in Smt. Vimala Devi v. A. Venkatesha murthy, where the Court has laid down the law as:"onus of proof in cases seeking eviction on the allegation of sub- letting is that the initial onus lies on the landlord to at least prove that the tenant has parted with exclusive possession over the property in favour of a stranger. If he discharges his onus to this extent, then even though he fails to prove the parting of possession for some consideration, the onus shifts on to the tenant to prove as to in what capacity the stranger has acquired exclusive possession over the premises. In case the tenant fails to discharge this part of the onus cast on him, Courts will be competent to draw presumption of sub-letting". The law on the point being clear it cannot be said on the facts of the present case that the second petitioner is staying in the premises as a sub-tenant. Even assuming for the sake of arguments that the second petitioner is not staying as a sub-tenant, even then by virtue of Section 5 the right of inheritance that devolves on him would not exceed the 5 years maximum provided for in the said section. Even assuming for the sake of arguments that the second petitioner is not staying as a sub-tenant, even then by virtue of Section 5 the right of inheritance that devolves on him would not exceed the 5 years maximum provided for in the said section. As relief that is bestowed on the landlord (respondent) to claim possession of the premises after expiry of 5 years is activated by sheer operation of law without imposing on her the need to establish the requirement of the premises for her own bona fide use and occupation, none of the decisions cited at the Bar which bear on the question of what a landlord, seeking for eviction on any of the grounds available to him, should establish in support of such requirement and on what constitutes sub-letting under the old Act are of no relevance for determining the relative rights of the parties in this petition. Under Section 5 of the Act the Court has no other option but to pass an order directing eviction of the tenants on the expiry of 5 years from the date of death of the original tenant notwithstanding the fact that the landlord may have failed to establish the requirement of the petition premises by her for her own bona fide use and occupation. ( 8 ) IN the result, for the reasons stated above, there is no merit in this revision and the same is dismissed. However, considering the fact that the petitioners require some time to find alternate accommodation, the Court deems it necessary that the petitioners should be given three months time from today to quit and deliver vacant possession of the premises to the landlord. The petitioners shall quit and deliver vacant possession of the premises within three months from today without demur and this concession would be available to them only so long as they make regular payment of the rents. --- *** --- .