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2007 DIGILAW 317 (KAR)

V. N. NAGARAJ v. K. V. SRINIVASA

2007-06-04

K.RAMANNA

body2007
( 1 ) THOUGH the matter is listed for admission by consent of both the counsel, it is taken up for final hearing and disposed of. ( 2 ) THIS revision petition is filed by the unsuccessful tenants under S. 115 of C. P. C. to set aside the order passed by the Principal district Judge, Kolar in R. R. No. 6/2004 dated 30th March, 2007, so also the judgment and decree passed by the Principal Civil Judge (Jr. Dn.) J. M. F. C. , Chickaballapur in H. R. C. No. 11/91 dated 30th March, 2004. ( 3 ) THE case of the respondents-landlord is that the petition schedule premises has fallen to the share of the respondents in the partition. The father of the petitioners took the petition schedule premises on lease from the mother of the respondents. The respondents herein filed a suit for partition and a compro mise decree was drawn in the said suit and the petition schedule premises had fallen to the share of the respondents. Initially deceased lakshmidevamma filed H. R. C. No. 18/70 against the very same revision petitioners for eviction, subsequently the said eviction petition came to be withdrawn. After due notice to the revision petitioners, the respondents filed eviction petition under S. 21 of the karnataka Rent Control Act, 1961 before the civil Judge (Jr. Dn.) and JMFC, Chickballapur in H. R. C. No. 11/1991. The revision petitioners herein appeared through their counsel and filed objections contending that the petition schedule premises consists of three houses and one main house towards the north which is in possession of the revision petitioners-tenants. There are two other houses to the southern side, which are not the subject-matter of the lease and the respondents are not in possession of those two houses on the southern side and the same was kept vacant. The revision petitioners herein admitted that they are ready to pay the rents due to the person who is entitled to receive the same. The revision petitioners happens to be agriculturist and their land is situated very close to the petition schedule property and so a suitable premises for the revision petitioners cannot be found in that area. Both the parties adduced evidence before the trial Court. After considering the evidence, the trial Court found that the petition schedule premises is required for bona fide use and occupation of the respondents landlords. Both the parties adduced evidence before the trial Court. After considering the evidence, the trial Court found that the petition schedule premises is required for bona fide use and occupation of the respondents landlords. Therefore, the eviction petition came to be allowed which has been challenged by the revision petitioners herein before the district Judge, Kolar in R. R. No. 6/04. The district Judge, Kolar considered the materi als placed on record and confirmed the order passed by the trial Court and dismissed the revision petition filed by the petitioners-tenants. Being aggrieved by the said order, the revision petitioners herein filed this revision petition challenging the same. ( 4 ) HEARD the arguments of learned counsel for both the parties and perused the records. ( 5 ) THE learned counsel for the revision petitioners contended that father of the revision petitioners was a tenant under Lakshmidevamma and he died in the year 1983 but the revision petitioners continued as tenants. Therefore, the learned District Judge contended that S. 5 of the Act is not applicable. There is no pleadings as such pleaded by the respondents. It is further contended that when old Act was in force the evidence of the respondents was recorded and still the case was pending under the old Act. The respondents have not filed any affidavit to invoke the presumption available for them under S. 27 (2) (r) of the Karnataka Rent Act. When once they have not filed such an application, the question of rebutting the evidence placed on record by the respondents does not arise, It is for the respondent to prove the bona fide use and occupation of the premises. It is further contended that the schedule mentioned in the eviction petition discloses that there are two houses on the south side of the property which are vacant. The revision petitioners have filed detailed objections to the eviction petition specifically contending that the petition schedule property consists of three houses. One main house towards north is in their possession and there are two other houses on the south and the respondents are not in possession of the said two houses, which is not the subject-matter. Therefore, the trial Court as well as learned District Judge ought io have dismissed the eviction petition filed by the respondents. One main house towards north is in their possession and there are two other houses on the south and the respondents are not in possession of the said two houses, which is not the subject-matter. Therefore, the trial Court as well as learned District Judge ought io have dismissed the eviction petition filed by the respondents. It is further contended that there is no evidence placed on record by the respondents to invoke the presumption under S. I 27 (2) (r) of the Act. Therefore, the order of eviction passed by the trial Court is liable to be set aside, so also the impugned order passed by the District Judge confirming the order of eviction is to be set aside. ( 6 ) ON the other hand, learned senior counsel appearing for the respondents submitted that the property in question had fallen to their share in a partition and the earlier eviction petition filed by Lakshmidevamma came to be withdrawn as not pressed. The eviction petition was filed in the year 1970 when the karnataka Rent Control Act, 1961 was in force. So the question of filing an affidavit-in-support of the eviction petition when the new Act came into force does not arise. The trial Court has not only allowed the eviction petition on the ground that the revision petitioners-tenants have not rebutted evidence but also on merits that the petition schedule premises was required for bona fide use and occupation of the respondents. When once the revision petitioners admitted the relationship! of landlord and tenant and the provisions of karnataka Rent Act, 1999 are applicable tq the eviction petition pending as on 31-12-2001, there is no need to file any separate affidavit by the respondents-landlords to invoke s. 27 (2) (r ). Therefore, both the trial Court as well as learned District Judge recorded concurrent findings rightly and passed the order by meeting all the contentions raised by the revision petitioners and prays for dismissal of the revision petition. ( 7 ) I have carefully examined the materials placed on record. The revision petitioners have not seriously disputed about the jural relationship of landlord and tenant. The contention is that they continued to be the tenants in respect of the petition schedule premises. Of course, the father of the revision petitioner was a tenant under deceased-Lakshmidevamma, the mother of the respondents. The revision petitioners have not seriously disputed about the jural relationship of landlord and tenant. The contention is that they continued to be the tenants in respect of the petition schedule premises. Of course, the father of the revision petitioner was a tenant under deceased-Lakshmidevamma, the mother of the respondents. Though the father of the revision petitioners died in the year 1983, they continued to be as tenants. There is no separate lease deed if any entered into between the parties. However, the revision petitioners have contended that they are the tenants under the respondents. The trial Court recorded the evidence of both the parties and met the contentions taken by the revision petitioners and their objection statement. The revision petitioners have taken the objections that the mother of the respondents filed H. R. C. 18/70 on similar grounds and sought for eviction and subsequently filed the suit for partition. The trial court after considering the evidence of both the parties held that the earlier eviction petition filed by deceased-Lakshmidevamma came to be withdrawn. The suit O. S. No. 326/ 90 clearly shows that the petition schedule property had fallen to the share of the respondents. Ex. P-10 is the commissioner's report, which also indicates that the suit schedule property had fallen to the share of the respondents. When once the jural relationship of landlord and tenant is admitted and the trial court has rightly recorded the findings, now they cannot raise this point before this Court in a revision petition under S. 115 of C. P. C. The other contentions is that the respondents have: wrongly mentioned the schedule in-the eviction petition. At the same time, the revision-petitioners should not forget that they are the tenants of the petition schedule premises. Wrong mentioning of the boundaries in the petition schedule property will not take away the rights of the respondents. Of course, it is contended by the revision petitioners that there are two houses situated on the southern side of the petition schedule property, which are still vacant. Under the new Act the landlord can select and occupy any premises, which is in occupation of the tenant. Therefore, the revision petitioners-tenants cannot direct the landlord to occupy some other premises, which are available for use and occupation. Under the new Act the landlord can select and occupy any premises, which is in occupation of the tenant. Therefore, the revision petitioners-tenants cannot direct the landlord to occupy some other premises, which are available for use and occupation. Under the Karnataka Rent Act, 1999, it is the duty of the landlord to prove that petition schedule premises is required for his bona fide own use and occupation. If the petition schedule premises is required and which is suitable for his occupation, then the tenant is bound to vacate the premises. It is an admitted fact that new Act came into force on 31-12-2001. At that point of time, the eviction petition i. e. , H. R. C. 11/91 was pending. Therefore, the question of filing an affidavit by the respondents to invoke the presumption before the trial Court does not arise. The affidavit is to be filed if eviction petition is filed under S. 27 (2) (r) of the new Act and not under the karnataka Rent Control Act, 1961 and there is no provision made by the Legislature in the new Act requiring the landlord to file an affidavit if eviction petition is filed under old Act eviction. Therefore, the contention of the learned counsel for the petitioners that respondents have not filed any affidavit-in-support of their eviction petition immediately after new Act came into force does not hold good and as the revision petition is filed under S. 115 of the C. P. C. it is not proper on the part of revision Court to interfere with the concurrent findings recorded by both the trial court as well as the learned District Court. There is no mistake in recording the findings by the trial Court. Therefore, the trial Court as well as District Court after considering the oral and documentary evidence rightly held that the revision petitioners have not rebutted the presumption available in favour of the respondents-landlord. Hence, the revision petition is liable to be dismissed at the stage of admission. Accordingly, the revision petition is dismissed. Under the facts and circumstances of the case that the revision petitioners are in occupation of the petition schedule premises as tenants since the lifetime of their father and even after his death. It is just and proper to grant one year's time to vacate and hand over peaceful possession of the petition schedule premises to the respondents. Under the facts and circumstances of the case that the revision petitioners are in occupation of the petition schedule premises as tenants since the lifetime of their father and even after his death. It is just and proper to grant one year's time to vacate and hand over peaceful possession of the petition schedule premises to the respondents. To that effect, they should file an undertaking within fifteen days from today. The tenant-revision petitioners are directed to hand over vacant possession of the petition schedule premises to the respondents on or before 4-6-2008 and they shall pay the monthly rents regularly.