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2003 DIGILAW 528 (KAR)

MANJUNATH M. v. RAJESH P. SHAH

2003-07-04

V.GOPALA GOWDA

body2003
V. GOPALA GOWDA, J. ( 1 ) THE petitioner is the landlord. He has filed this revision petition against the order dated 18-11-1999 passed by the Trial Court dismissing his eviction petition filed under Section 21 (l) (h) of the Karnataka Rent control Act, 1961. ( 2 ) THE petitioner filed petition seeking eviction of the respondent from the petition schedule premises on the ground that he requires the same for self-occupation of his family members. The petitioner claimed that he is the owner of the schedule property by virtue of the Will dated 29-9-1993 executed by. the landlady, deceased Boramma. The respondent vehemently resisted the petition taking several contentions including denial of relationship of landlord and tenant. Parties adduced evidence and produced documents in support of their respective case. Upon appreciation of the material evidence placed on record, the Trial Court held that the petitioner has no right to maintain the eviction petition; that he has not proved the Will and that he has not established the fact that he is the landlord of the petition schedule premises. Consequently, the eviction petition was dismissed. Aggrieved by the same the present revision petition is filed. ( 3 ) IT is an undisputed fact that Smt. Boramma was the landlady and respondent was the tenant under her. The plea of the petitioner is that the said Boramma executed Will in which the petition schedule property had been bequeathed in his favour. The respondent-tenant denied the same. P. W. 2 is the brother of Boramma. He has spoken to the execution of the Will. He is also a beneficiary under the Will apart from the petitioner in respect of other property of the testator. In addition to P. W. 2, the petitioner also examined P. W. 3 to prove the Will. The Trial Court disbelieved the execution of Will merely on certain minor discrepancies in the evidence. The Trial Court was not justified in not accepting the evidence on record in answer to the contentious point that was framed by it. After the death of landlady, it is not in dispute that petitioner was collecting the rents from the respondent. As per the definition under section 2 (h) of the Kamataka Rent Control Act, he is the landlord. The respondent has not stated who is his landlord after the death of original landlady. After the death of landlady, it is not in dispute that petitioner was collecting the rents from the respondent. As per the definition under section 2 (h) of the Kamataka Rent Control Act, he is the landlord. The respondent has not stated who is his landlord after the death of original landlady. Except the petitioner, no other person came forward claiming that he is the landlord of the petition premises. The Trial Court rightly held that the tenant cannot question the title of the landlord. The same is in accordance with the law laid down in Thimmappa v Kousalya. Under these circumstances, the Trial Court should have accepted the plea of the petitioner that he succeeded to the petition schedule premises. The finding of the Trial Court is contrary to the documentary evidence placed on record. Therefore, the order under revision is bad in law and liable to be set aside. ( 4 ) AS the finding of the Trial Court is not correct, it has to be held that the petitioner is the landlord and respondent is the tenant of the petition schedule premises. It follows that the stand of the respondent that there is no jural relationship between the parties, deserves rejection and accordingly it is rejected. ( 5 ) COMING to the finding recorded by the Trial Court with regard to the requirement of petition schedule premises by the petitioner for himself and his family members bona fide use and occupation, the issue to be resolved by the Trial Court was whether the requirement pleaded by the petitioner is genuine or not. Instead of considering the claim of bona fide requirement pleaded, the Trial Court gone on discussing the factors which are not germane to the issue and consequently held that the requirement is not proved. In paragraph 7 of the eviction petition the petitioner has clearly pleaded his and family members bona fide use and requirement of the premises. Without taking into consideration of the same, the Trial Court has erroneously dismissed the eviction petition. The evidence adduced was not properly appreciated by the Trial Court. Hence, the finding of the Trial Court relating to the need of the schedule premises by the petitioner, is liable to be reversed. Without taking into consideration of the same, the Trial Court has erroneously dismissed the eviction petition. The evidence adduced was not properly appreciated by the Trial Court. Hence, the finding of the Trial Court relating to the need of the schedule premises by the petitioner, is liable to be reversed. ( 6 ) INSOFAR as the comparative hardship of the parties is concerned, the petition schedule premises is located in the first floor and the same is bequeathed in favour of the petitioner his grandmother testator. The other portions of the same building are bequeathed in favour of ethers, one of them is examined in the case of P. W. 2. Quite naturally he has to shift to the same. Hence, if an order of eviction is not granted in respect of the premises, the petitioner will suffer much hardship. On the other hand, the respondent being tenant, he can search for alternative accommodation, which cannot be done by the petitioner. Several new buildings are coming up everywhere in Bangalore and it may not be difficult for the respondent to secure a suitable alternative premises. Hence, if an eviction order in respect of the premises is passed, respondent will not suffer if it is not passed, much inconvenience and hardship will be caused to the petitioner. Therefore, the Trial Court was not justified in not passing an order of eviction in respect of the premises. The Trial Court without considering these aspects, has gone on discussing matters not concerned and relevant with the resolution of the contentious issue that arose for its consideration issue. Hence, the finding recorded in favour of the respondent by the Trial Court has to be reversed by allowing this petitin and passing an order of eviction against the respondent in respect of premises in question. ( 7 ) THE petition premises constitutes one unit. It cannot be bifurcated for the purpose of partial eviction. Having regard to the dimension, and therefore the petition premises is not suitable for partial eviction so as to accommodate the respondent in a portion. Hence, partial eviction is not feasible. ( 8 ) THE other plea of the respondent that the schedule premises was mortgaged or that he had the option to continue in the premises on the expiry of the lease period etc. Hence, partial eviction is not feasible. ( 8 ) THE other plea of the respondent that the schedule premises was mortgaged or that he had the option to continue in the premises on the expiry of the lease period etc. , are all irrelevant in view of the finding that petitioner became the landlord by virtue of the bequeath of the petitioner under the Will. ( 9 ) FOR the foregoing reasons, the revision petition is allowed and the order under revision is set aside. The eviction petition of the petitioner is allowed. The respondent is granted six months time to quit, vacate and deliver the vacant possession of the petition schedule premises to the petitioner. --- *** --- .