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2003 DIGILAW 522 (KAR)

DAVID PAUL v. KARUNAKAR M. SHETTY

2003-07-03

body2003
( 1 ) THE correctness and the legality of the order passed by the court-below dismissing IA No. 9 filed by the petitioner for stopping of all further proceedings in HRC 1068/2000 is being challenged in this revision by the petitioner-tenant. ( 2 ) THE respondents herein filed HRC 1068/2000 against the petitioner-tenant in the II Addl Small Causes Judge, Bangalore under Sec 21 (1) (a) and (h) of the Karnataka Rent Control Act, 1961 (hereinafter referred to as the repealed Act) seeking an order of eviction against the petitioner. The petitioner filed his statement of objections denying the relationship of landlord and tenant between him and the respondents. It was stated by him in the statement of objections that he was a tenant under one Mirza Askar Ali and after his death as many persons claimed to be his legal representatives he was constrained to file HRC 1471/98 and deposited rents in those proceedings The present eviction proceedings is filed by the respondents claiming to be the owners of the petition premises having purchased the same from the legal representatives of the deceased Mirza Asker Ali The petitioner relies heavily upon the order passed in HRC 1471/98 whereunder the court passed the final order directing the petitioner to deposit the rents payable by him with regard to the schedule premises till the title of the respondents to the property is adjudicated upon in accordance with law The petitioner filed I A No 9 in the court-below in H R C 1068/2000 stating that there was no relationship of landlord and tenant between himself and the respondents because there is no declaration from any competent court to the effect that the vendors of the respondents are the legal representatives of the deceased Mirza Asker Ali and, therefore, so long such a declaration is not forthcoming the sale by the vendors of the present respondents would not bestow on the respondents any right title or interest and hence the eviction proceedings filed by the respondents cannot be adjudicated upon in a HRC proceedings as the very existence of relationship of landlord and tenant is absent. The court-below dismissed the said I A No 9 as an attempt made by the petitioner to protract the proceedings. ( 3 ) I have heard learned counsel Mr K. K Vasanth for the petitioner and learned Counsel Mr Udaya Holla for the respondents. The court-below dismissed the said I A No 9 as an attempt made by the petitioner to protract the proceedings. ( 3 ) I have heard learned counsel Mr K. K Vasanth for the petitioner and learned Counsel Mr Udaya Holla for the respondents. ( 4 ) THE question that arises for my consideration in the present revision is, whether the petitioner could be permitted to raise the plea of absence of relationship of landlord and tenant in the proceedings brought by the respondents herein for his eviction. ( 5 ) DURING the pendency of the HRC proceedings Act 34 of 2001 was enacted repealing the Karnataka Rent Control Act, 1961 and in its place introduced the Karnataka Rent Act, 1999 (hereinafter called the present Act) for regulation of the rent and eviction of tenants and for matters connected therewith or incidental thereto Sec 43 of the present Act provides how a dispute as to relationship of landlord and tenant has to be dealt with by the court The said provision reads 43 Dispute of relationship of landlord and tenant - (1) Where in any proceeding before the Court, a contention is raised denying the existence of relationship of landlord and tenant as between the parties it shall be lawful for the court to accept the document of lease or where there is no document of lease, a receipt of acknowledgment of payment of rent purported to be signed by the landlord as prima-facie evidence of relationship and proceed to hear the case (2) Where. (a) the lease pleaded is oral and either party denies relationship, and no receipt or acknowledgement of payment of rent as referred to in sub-section (1) above is produced, or (b) in the opinion of the Court there is reason to suspect the genuine existence of the document of lease or the receipt or acknowledgment of payment of rent. (a) the lease pleaded is oral and either party denies relationship, and no receipt or acknowledgement of payment of rent as referred to in sub-section (1) above is produced, or (b) in the opinion of the Court there is reason to suspect the genuine existence of the document of lease or the receipt or acknowledgment of payment of rent. the Court shall at once stop all further proceedings before it and direct the parties to approach a competent Court of civil jurisdiction for declaration of their rights sec 43 is applicable only in a case where there is nothing to evidence the existence of the relationship of landlord and tenant It cannot be relied upon by a tenant who does not deny his status but only denies that the person who has presented the eviction petition against him is not the landlord because he acquired the premises from persons who are not the true representatives of the original landlord The petitioner does not dispute the fact that he was the tenant under Mirza Askar Ali When he concedes his tenancy under Mirza Askar Ali, on the death of his landlord he would by operation of law, become the tenant under the legal representatives of the deceased landlord The notice of attornment of tenancy has also been served on the petitioner No tenant could dispute his status of tenant under the legal representatives of the deceased landlord once it is established by the persons so claiming that they are the true representatives of the deceased landlord. The relief sought by the petitioner in IA N0. The relief sought by the petitioner in IA N0. 9 rests on the premise that the present respondents are not the true owners nor are they the landlords because according to the petitioner, they had not purchased the petition premises from the true representatives of the deceased landlord The case of the petitioner, in essence, therefore is that the vendors of the present respondents were not the true representatives of the deceased landlord and, therefore, there is no relationship of landlord and tenant between him and the present respondents The fact that requires to be determined to decide the question arising for consideration in the present revision, therefore, is whether the petition premises has been purchased by the present respondents from the true legal representatives of the deceased Mirza Askar Ali If it is shown by the respondents that their vendors were indeed the true legal representatives of the deceased Mirza Askar Ali, the petitioner cannot be permitted to raise the plea of non-existence of relationship of landlord and tenant ( 6 ) THE petition premises has been sold to the respondent by the brothers and sisters of the late Mirza Asker Ali in their capacity as the legal representatives of the deceased. They claimed that Mirza Asker Ali was a bachelor and on his death they have become the joint owners of the properties owned by him by virtue of succession as provided in Muslim Law as applicable to Shia Muslims In their capacity as such, they brought a suit in O S No 6540/93 against one Afsar Khan for declaration of their title to the property. The suit came to be decreed by making the following order. The suit came to be decreed by making the following order. The suit of the plaintiff and the same is decreed declaring that the plaintiffs are the only legal heirs of late Mirza Asker Ali and they have succeeded to the estate of the deceased as shown in Schedule A and B the mother of deceased landlord Ms Gowhar Begum had earlier filed O. S No 664/82 for obtaining letter of administration of the estate of Mirza Asker Ali under Sec. 218 of the Indian Succession Act in which the petitioner was also arrayed as a respondent During the pendency of the suit Ms Gowhar Begum died and her legal representatives were brought on record On 29-7-1998 the legal representatives of the deceased Ms Gowhar Begum filed a memo for dismissal of O S No 664/82 as not pressed, stating that they have been declared as the only legal heirs of late Mirza Asker Ali and have succeeded to the estate of the deceased and therefore there was no need to persist with the said suit It is to be noted here that the respondents in O S No 664/82 were all tenants and they were not claiming any right other than the tenancy right over the respective premises in their occupation In R G HIREMATH AND ANOTHER v T KRISHNAPPA, AIR 1978 KARNATAKA 13 a similar question arose for the consideration of this court This Court on considering the stand taken by the tenant that the subsequent purchaser from the legal representatives of the deceased landlord is not the true owner of the petition premises, bruashed aside the stand and observed it is not in dispute that the petitioners came to occupy the buildings as tenants and it is also not in dispute that they paid rents first to Ramachandragiri and after his death, to this wife Kamalinibai continuously for a period of 20 years. They, however, refused to recognise the respondent as owner despite the registered sale deed in his favour In these circumstances, I am quite unable to understand the legitimacy of their stand, when they did not dispute the right of Kamalinibai to receive the rent in respect of the same buildings The relationship that existed as between the petitioners and Kamalinibai continued under the same terms and conditions, after respondent purchased the buildings The petitioners are, therefore, estopped from questioning the title of the respondent under S 116 of the Evidence Act If any decision is needed on this question see Sri Ram Pasricha v Jagannath ( AIR 1976 SC 2335 ) in which it was also observed that under the general law, in a suit between landlord and tenant the question of title to the leased property is irrelevant ( 7 ) THE petitioner in the present petition is also estopped from contending that he is not the tenant under the respondent but the petitioner thinks otherwise and learned counsel for the petitioner Mr Vasanth contends that the decree in O S No 6540/93 is a decree obtained by fraud and collusion and, therefore, it cannot be taken note of for coming to a conclusion that there exists the relationship of landlord and tenant between the petitioner and the respondents He relies on Section 44 of Indian Evidence Act, 1872 in support of his above proposition The said provision reads 44 Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved -Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Section 40, 41, or 42 and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion. (underlining is mine) ( 8 ) THE argument advanced by Mr K K Vasanth is without any legal basis The right that accrued to the legal representatives of the deceased Mirza Asker Ali on his death in respect of the property in possession of the petitioner is a right in rem As a right in rem, it confers upon them the advantage of protecting their interests in respect of the property left behind by Mirza Asker Ali against all persons This right accrues by sheer operation of law and the petitioner who was a tenant under the late Mirza Asker is bound by the correlative duty that this right imposes on a tenant of Mirza Asker Ali Since Afsar Khan was not a tenant under Mirza Asker Ali and he claimed to be an exception, the filing of the suit in O. S. 6540/93 became necessary The L Rs of Mirza Asker Ali were ill advised to file the suit in O S 664/82 because the same was not required to establish their right over the properties as they were entitled to all the rights that Mirza Asker Ali had during his life time over the properties owned by him for the right in rem is also a right against or in respect of a thing The L Rs have a jus ad rem in respect of the petition premises because the right of ownership vests in them automatically on the death of Mirza Asker Ali When this right to the property was transferred by the L Rs to the respondent herein, it again created in favour of the respondent a right in rem in respect of the petition premises and the petitioner who was a mere tenant under the late Mirza Asker Ali cannot seek any exemption from his obligation towards the vendor of the L Rs of the deceased Mirza Asker Ali in respect of the petition premises Therefore, the question whether the decree in O S 6540/93 was obtained by fraud or collusion is unnecessary for purpose of deciding whether or not there is the relationship of landlord and tenant between the parties The decree obtained by the L. Rs of late Mirza Asker Ali against Afsar Khan was a decree in personam which only determined the rights as between the L Rs of the deceased Mirza Asker Ali and the said Afsar Khan The decree would in no way influence or affect the right or obligations of the petitioner in respect of the petition premises vis-a-vis the L Rs of Mirza Asker Ali and, therefore, the present respondent also Even if it were to be found that the decree in O S No. 6540/93 was obtained by fraud or collusion the petitioner cannot gain anything out of it to escape his obligations as a tenant under the Mirza Asker Ali Therefore, the very basis on which the entire case of the petitioner is based falls to the ground and he is estopped from contending that he is not a tenant under the present respondent. Laws of procedure could only be understood as to facilitate and further the ends of justice and not as a thing designed to trip people up when they seek to step into the shoes of a dead man This idea has been succinctly brought out in Salmonds Jurisprudence, 11th Edition p. 482 wherein the author elucidates the meaning of inheritance as follows inheritance is some sort of a legal and fictitious continuation of the personality of the dead man, for the representative is in some sort identified by the law with whom he represents The rights which the dead man can no longer own or exercise in propria persona and the obligations which he can no longer in propria person fulfill, he owns, exercises and fulfils in the person of a living substitute To this extent and in this fashion it may be said that legal personality of a man survives his natural personality, until his obligations being duly performed and his property duly disposed of his representative among the living is no longer called for ( 9 ) NO one can dispute that the vendors of the present respondent being the brothers and sisters of the deceased could be identified by law with the deceased landlord whom they represented while disposing of the property to the present respondent and it has to be construed in law that the sale had been exercised by the deceased landlord himself through his living substitutes Therefore, the very basis on which the petitioner is trying to wriggle out of the proceedings in the HRC court is not open to him in law The revision is, therefore, liable to be dismissed ( 10 ) IN the result, I find no merit in this revision and it is accordingly dismissed. --- *** --- .