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2015 DIGILAW 1296 (KAR)

Katariya Cloth Emporium v. Premchand

2015-11-30

B.S.PATIL

body2015
ORDER : B.S. Patil, J. 1. Petitioners herein were tenants in occupation of the petition schedule premises bearing shop No. 19, which is part of Municipal No. 14, Corporation No. 14/7, situated in the ground floor of K.S. Market, Deewan Khana Lane, Chickpet cross, Bengaluru, measuring East to West 7' 6" and North to South 16' 6", in all 123.75 sq.ft. 2. Premchand - respondent No. 1 herein/eviction petitioner filed HRC No. 71/2014 under Section 27(2)(i) and (r) of the Karnataka Rent Act, 1999 seeking eviction of the tenants. The eviction petitioner purchased the property under registered Sale Deed dated 18.11.2004 from Sri K.S. Lakshminarayan and Sri K.S. Venkatachalapathy, sons of Surappa Shetty. It is not in dispute that Surappa Shetty owned the petition schedule property. One Sri Ghewarchand was carrying on business in the premises in the name and style M/s. Kataria Cloth Emporium as a tenant. It was urged that having taken the same from its owners Sri K.S. Lakshminarayan and Sri K.S. Venkatachalapathy on a monthly rental of Rs. 700/- which was later on increased to Rs. 755/- the tenant was in occupation. After the death of Ghewarchand, tenants/petitioners herein being his legal representatives started carrying on business of M/s. Kataria Cloth Emporium. 3. Earlier eviction petitioner had filed original suit in O.S. No. 5536/2005 seeking possession against Ghewarchand. The matter came up before this Court in RFA. No. 1576/2011 wherein this Court found that the Civil Court had no jurisdiction to entertain the suit as rent payable was less than Rs. 25,000/- per annum and that provisions of Karnataka Rent Act were applicable. The eviction petitioner withdrew the suit. Thereafter, by issuing notice to the legal representatives of Ghewarchand calling upon them to vacate and handover vacant possession as the same was needed for self occupation of the eviction petitioner, the present HRC petition has been filed. 4. The eviction petitioner contended that he intended to commence business in garments in the premises in question. It was alleged that tenants had committed default in paying rent. 5. Tenants appeared and contested the claim. It was urged by them that eviction petitioner had purchased the property under Sale Deed dated 18.11.2004 knowing fully well that executants of the said Sale Deed were not the complete owners of the shop premises. They urged that originally the property belonged to one Surappa Shetty. 5. Tenants appeared and contested the claim. It was urged by them that eviction petitioner had purchased the property under Sale Deed dated 18.11.2004 knowing fully well that executants of the said Sale Deed were not the complete owners of the shop premises. They urged that originally the property belonged to one Surappa Shetty. He died leaving behind two sons and five daughters. All the legal heirs of Surappa Shetty did not join in execution of the Sale Deed dated 18.11.2004 in favour of the eviction petitioner. K.S. Lakshminarayana and K.S. Venkatachalapathy, vendors of eviction petitioner had right only over portion of the property and therefore, eviction petitioner who had no absolute right over the whole property could not maintain the petition for eviction. 6. It was next contended that in the light of the judgment passed by this Court in RFA. No. 1576/2011 by which the matter was remitted permitting the eviction petitioner to seek necessary relief in O.S. No. 5536/2005 including as regards the question whether he had acquired ownership over the entire property, there was no justification for the eviction petitioner to withdraw the said suit and to initiate present proceedings. 7. The tenants denied the assertion of the eviction petitioner that the premises was needed for his own use and occupation. It was urged that eviction petitioner owned huge property at Triveni Road, Yeshwanthpura and Mathikere and could make use of the same for running garments business. 8. Before the Court below, the eviction petitioner examined himself as P.W. 1 and produced and marked Exs. P1 to P18(a). For the tenants, respondent No. 4 before the Court below Indra Prakash was examined as R.W. 1 and produced and marked Exs. R1 to R11. On consideration of oral and documentary evidence, the Court below has held that eviction petitioner was able to establish jural relationship of landlord and tenant with respect to the petition schedule premises. It has also found that tenants had failed to pay arrears of rent. It has held that under the guise of denying title of the eviction petitioner over the petition schedule premises, tenants have not paid rents from 18.11.2004 and hence, eviction petitioner was entitled to recover arrears of rent at the rate of Rs. 750/- per month from 18.11.2004 till they vacated the schedule premises. 9. It has held that under the guise of denying title of the eviction petitioner over the petition schedule premises, tenants have not paid rents from 18.11.2004 and hence, eviction petitioner was entitled to recover arrears of rent at the rate of Rs. 750/- per month from 18.11.2004 till they vacated the schedule premises. 9. As regards the requirement pleaded by the eviction petitioner regarding the need for bona fide use and occupation of the petition schedule premises, the Court below has held that the premises in which eviction petitioner was carrying on business in electrical items was got vacated by his landlord which fact had been admitted by R.W. 1 in his cross-examination. It has further held that as admitted by R.W. 1 he had no documents to show that eviction petitioner was running electrical business. Court below has come to the conclusion that the need and necessity pleaded by the eviction petitioner had been established. 10. As regards alternative premises owned by the eviction petitioner, Court below has held that there was no material produced by the tenants to establish that those properties were exclusively owned by the eviction petitioner. The Court below has granted four months time from the date of the order to quit and deliver vacant possession. 11. Learned counsel appearing for the tenants/petitioners herein Sri P.D. Surana has contended that eviction petition was not maintainable as the eviction petitioner was not the exclusive owner of the property. It is his submission that question of title of the eviction petitioner which was disputed by the tenants could not have been gone into in the HRC proceedings. In this connection he points out that Ex. P13 - Release Deed relied on by the Court below has been executed only by three daughters of the original owner and the other two daughters have not joined. It is next contended by him that O.S. 6070/1995 filed by the two brothers K.S. Lakshminarayana and K.S. Venkatachalapathy against their five sisters seeking a direction for execution of Release Deed was withdrawn. Therefore, the two brothers did not have absolute right over the property in question. It is his submission that purchaser of undivided interest in the tenanted property cannot maintain a suit for possession from the tenant. In this regard, he has placed reliance on the judgments of the Apex Court in the case of SIDHESHWAR MUKHERJEE Vs. Therefore, the two brothers did not have absolute right over the property in question. It is his submission that purchaser of undivided interest in the tenanted property cannot maintain a suit for possession from the tenant. In this regard, he has placed reliance on the judgments of the Apex Court in the case of SIDHESHWAR MUKHERJEE Vs. BHUBNESHWAR PRASAD NARAIN SINGH & OTHERS - AIR 1953 SC 487 and A.V.G.P. CHETTIAR AND SONS & OTHERS Vs. T. PALANISAMY GOUNDER - AIR 2002 SC 2171 . 12. It is also urged by him that the description of the property in the Sale Deed under which eviction petitioner claims title and the details as stated in the cross-examination and the photographs do not match with each other, therefore, there was dispute regarding identity of the property. 13. As regards the bona fide requirement pleaded, it is urged by him that in the legal notice issued, the eviction petitioner intended to start a hosiery business but in the affidavit filed before the Court, he stated that he wanted the premises for running business in electrical appliances, therefore, there was no consistency in his claim. It is next contended by him that the property located in Yeshwanthpur which measured 30' X 70' belongs to the eviction petitioner and the same is available for his use and occupation to start his business. It is also pointed out by him that there was one more property where business by name Mangilal & Company was carried on, which is admittedly a family concern. It is his submission that no presumption can be drawn regarding bona fide use and occupation by the landlord as no affidavit has been filed along with the eviction petition in compliance with the provisions contained under Section 27(2)(r) of the Karnataka Rent Act. In this regard, he has placed reliance on the judgment of the Apex Court in the case of SOMANATHASA BADDI Vs. CHANABASAPPA - LAWS (SC) - 2008-7-191. In support of his contention that bona fide requirement has not been established by the eviction petitioner, he has relied on the principles laid down in the case of G. SHOUKATH Vs. V. CHANDRAPRAKASH - 2004 (5) Kar. L.J. 44 (DB), and in the case of K.N. ANANTHARAJA GUPTA Vs. D.V. USHA VIJAYKUMAR - AIR 2008 SC 539 . 14. In support of his contention that bona fide requirement has not been established by the eviction petitioner, he has relied on the principles laid down in the case of G. SHOUKATH Vs. V. CHANDRAPRAKASH - 2004 (5) Kar. L.J. 44 (DB), and in the case of K.N. ANANTHARAJA GUPTA Vs. D.V. USHA VIJAYKUMAR - AIR 2008 SC 539 . 14. Sri V.B. Shivakumar, learned counsel appearing for the eviction petitioner takes the Court through the evidence of the witnesses, particularly the cross-examination of R.W. 1 to contend that description of the shop in the petition schedule is not in dispute. He has urged that the tenants were inducted by the vendors of the eviction petitioner; admittedly, K.S. Lakshminarayana and K.S. Venkatachalapathy were collecting rents and none of the daughters of the original owner have claimed any right, nor they have instituted any suit for partition. He urges that as per Section 116 of the Indian Evidence of Act, 1872, tenant cannot question the title of the landlord. He refers to the judgment rendered by this Court in RFA. No. 1576/2011 to contend that HRC petition was maintainable and not a suit. 15. Regarding bona fide use, it is urged by him that the property situated at Yeshwanthpur belonged to joint family and was not the exclusive property of the eviction petitioner; similarly, property where business was run by Mangilal and Company was also not the exclusive concern or business of the eviction petitioner. He has urged that hosiery and garment business are one and same and that there is no inconsistency in the stand taken by the eviction petitioner in pleading the bona fide need. 16. Having heard the learned counsel for the parties and on careful perusal of the entire materials on record, the points that arise for consideration are:- (i) Whether the eviction petition was maintainable as the tenants had disputed the exclusive and full title of the vendors of the eviction petitioner over the suit schedule premises? (ii) Whether the findings recorded by the Court below regarding the bona fide need for self occupation of the premises by the eviction petitioner for running a garment business suffer from any illegality or perversity? 17. It is an admitted fact that one Surappa Shetty was the original owner of the shop premises in question. He had inducted father of the present tenants as a tenant in the premises. 17. It is an admitted fact that one Surappa Shetty was the original owner of the shop premises in question. He had inducted father of the present tenants as a tenant in the premises. Surappa Shetty had two sons by name K.S. Lakshminarayana and K.S. Venkatachalapathy. After the death of Surappa Shetty, admittedly, tenants were paying rents to K.S. Lakshminarayana and K.S. Venkatachalapathy. The last paid rent admittedly was Rs. 755/-. The eviction petitioner has produced Release Deed executed by the sisters of K.S. Lakshminarayana and K.S. Venkatachalapathy as Ex. P. 13. When confronted with the said document R.W. 1 has stated that one more sister was not a party to the Release Deed. Certified copy of the Partition Deed was also confronted in the evidence of R.W. 1 and was marked as Ex. P14 and as regards the said Partition Deed also, he has stated that one more sister was not a party to the same. He has urged that one Saraswathamma, one of the daughters of Surappa Shetty did not sign the Partition Deed. R.W. 1 pleads ignorance with regard to the nature of the settlement arrived at between the family members of late Surappa Shetty. 18. Whether all the members of the original owner of the premises, Surappa Shetty, had joined together in conveying title over the property in favour of the eviction petitioner? Whether all the daughters of Surappa Shetty had released their rights in favour of K.S. Lakshminarayana and K.S. Venkatachalapathy, the two sons of Surappa Shetty? Whether the Sale Deed executed by them in favour of the eviction petitioner was not binding on one of the sisters who had not released her right in favour of her brothers are all matters which are of little concern (no concern) to the tenants. Admittedly, there is no claim made by any of the so called joint owners of the property either against the vendors of the eviction petitioner or against the eviction petitioner and none of them have challenged the absolute right, title and interest of the eviction petitioner over the petition schedule premises. 19. Having purchased the property under a registered Sale Deed from K.S. Lakshminarayana and K.S. Venkatachalapathy, who were receiving rents from the tenants/revision petitioners herein, eviction petitioner has stepped into the shoes of the original landlord/owner of the property. 19. Having purchased the property under a registered Sale Deed from K.S. Lakshminarayana and K.S. Venkatachalapathy, who were receiving rents from the tenants/revision petitioners herein, eviction petitioner has stepped into the shoes of the original landlord/owner of the property. It is not open for the tenants to deny the right, title and interest of the eviction petitioner over the property in question. 20. In SIDHESHWAR MUKHERJEE Vs. BHUBNESHWAR PRASAD NARAIN SINGH & OTHERS - AIR 1953 SC 487 , the principle of law laid down was in the context of a suit filed for partition by the purchaser of the coparcenary property, wherein the Apex Court has held that all that he purchased at the execution sale was the undivided interest of the coparcener in the joint family property and he did not acquire title to any defined share and therefore, was not entitled for joint possession from the date of his purchase. It was further observed that he could work out his right only by a suit for partition and his right to possession would be from the period when specific allotment was made in his favour. In the instant case, we are not concerned with any suit for partition or claim made by any purchaser for allotment of his share in the joint family property. Therefore, reliance placed on this judgment by the counsel for the tenants/petitioners herein is not apposite. 21. Similarly, the judgment in the case of A.V.G.P. CHETTIAR AND SONS & OTHERS Vs. T. PALANISAMY GOUNDER - AIR 2002 SC 2171 has no application to the facts of the present case inasmuch as in the said case, the Apex Court has laid down that when there was a bona fide dispute regarding title to the property as raised by the tenant, the Rent Controller could not finally adjudicate the issue of title to the property in question. The Apex Court has further held in the said decision that a mere denial of title of the landlord was not enough and that if the denial was shown to be not bona fide, then HRC Court could not go into the question of title. The Apex Court has further held in the said decision that a mere denial of title of the landlord was not enough and that if the denial was shown to be not bona fide, then HRC Court could not go into the question of title. As can be ascertained from paragraphs 42 and 43 of the said judgment, the respondent - landlord in the said case had claimed that one Gowthama was the absolute owner of the property and that he had purchased absolute interest from the said Gowthama. Given such a pleading, it was held that respondent could not be allowed to set up a different case and take shelter behind the definition of 'landlord' in the Act because the definition of 'landlord' was an enabling provision in the sense that it enabled persons who were not the owners to ask for eviction under the Act, but it did not mean that a person who has claimed to be the landlord qua owner can jettison his case as pleaded in his eviction petition and establish his claim on the basis that he was otherwise entitled to claim as landlord of the suit premises. In that background, the Apex Court found that there was a bona fide dispute as to title of the landlord in the said case, therefore, the Rent Controller did not have jurisdiction to hear and finally adjudicate upon the matter. 22. In the instant case, there is no dispute raised by any of the previous owners of the property. The registered Sale Deed conferring title in favour of the eviction petitioner executed in the year 2004 vide Ex. P. 1 has not been challenged by anybody. Even one of the sisters out of five, of the previous vendors of the eviction petitioner who has allegedly not signed the Release Deed or Partition/Settlement Deed has not made any claim. In such circumstance, it is not open for the tenants to deny the title acquired by the eviction petitioner under the registered Sale Deed. Such a denial made is neither bona fide, nor just, it is only intended to protract the proceedings and lacks bona fides. 23. Insofar as bona fide requirement of the landlord/eviction petitioner for his own occupation of the premises to run a garment shop, the Court below has in detail examined the need pleaded by the eviction petitioner/landlord. Such a denial made is neither bona fide, nor just, it is only intended to protract the proceedings and lacks bona fides. 23. Insofar as bona fide requirement of the landlord/eviction petitioner for his own occupation of the premises to run a garment shop, the Court below has in detail examined the need pleaded by the eviction petitioner/landlord. The mere fact that on an earlier occasion in the legal notice issued, the eviction petitioner communicated his desire to the tenants to establish electrical appliances business does not prevent him from pleading in the petition and in the affidavit that he wanted to establish a garment business. He has stated in his evidence that he has suffered loss in the electrical business and he wanted to establish a garment business. 24. The Court below has analysed the evidence of the tenants with regard to the alternative premises available to the eviction petitioner and has rightly found that the premises situated at Yeshwanthpur belonged to joint family and was not the exclusive premises of the eviction petitioner. Even the premises where Mangilal and Company business was run also does not exclusively belong to the eviction petitioner. Therefore, the Court below has rightly appreciated the evidence on record to come to the conclusion that bona fide need was established and that the tenants failed to establish that eviction petitioner had any other alternative premises for his use and occupation. 25. Reliance placed by the tenants/petitioners herein on the judgment in the case of G. SHOUKATH Vs. V. CHANDRAPRAKASH - 2004 (5) Kar. L.J. 44 (DB) is of no use for them, inasmuch as in the facts of the present case, the landlord has established his bona fide requirement which is also shown to be reasonable. It is not just a mere wish or desire of the eviction petitioner/landlord that is pleaded, his pressing need for establishing another business is established. 26. It is also necessary to notice here that the petition schedule premises is situated in Chickpet area where eviction petitioner wants to establish hosiery business. The evidence discloses that the said area is suitable for the eviction petitioner to establish the said business. Therefore, the tenants cannot characterize the said need of the eviction petitioner as baseless or not reasonable, muchless one that lacked bona fides. For the said reason judgment in K.N. ANANTHARAJA GUPTA Vs. The evidence discloses that the said area is suitable for the eviction petitioner to establish the said business. Therefore, the tenants cannot characterize the said need of the eviction petitioner as baseless or not reasonable, muchless one that lacked bona fides. For the said reason judgment in K.N. ANANTHARAJA GUPTA Vs. D.V. USHA VIJAYKUMAR - AIR 2008 SC 539 also does not come to the aid of the tenants/revision petitioners because as held above, the landlord has shown that he has no other suitable accommodation and that the premises in question is required for his bona fide and reasonable occupation to commence the garment business. Accordingly, both the points are answered in favour of the eviction petitioner and against the tenants. All the other grounds urged by the counsel for the revision petitioner are baseless and are not substantiated. Evidence on record does not support the said contentions. The Court below has dealt with, in detail, all aspects of the matter. 27. Hence, the revision petition fails and the same is dismissed. In the facts of the case, three months time is granted to the tenant to vacate the premises provided the entire arrears of rent is paid within three weeks from today. Revision petitioners shall vacate and hand over vacant possession of the premises on or before 28.02.2016. 28. Parties shall bear their respective costs.