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2015 DIGILAW 199 (KAR)

P GANGADHARA PATIL v. MADHAVARAO M K

2015-02-23

A.V.CHANDRASHEKARA

body2015
ORDER : The present petition is directed against the order passed by the Principal District Judge in Civil Revision (Rent) Petition No.2/2007 on 23.2.2010. The revision petitioner initiated eviction proceedings under the relevant provisions of Karnataka Rent Act1999 by filing eviction petition in HRC No.8/2006 on the file of the Prl.Civil Judge (Jr.Dn.), Davanagere. 2. Respondent herein had contested the same by filing an application under Section 43 of Karnataka Rent Act, 1999 by denying the very existence of jural relationship of landlord and tenant. 3. The case put forth by the respondent herein in HRC No.8/2006 is that though he was inducted originally as tenant by the petitioner, same has been merged with the agreement of sale executed by the petitioner in his favour on 4.8.1994 agreeing to sell the suit schedule property for a sum of Rs.1.95 Lakhs. It is further stated that the petitioner has received a sum of Rs.20,000/as advance out of the agreed consideration of Rs.1.95 Lakhs on 4.8.1994 while executing the agreement of sale. The case put forth by the respondent herein is that the petitioner has received a sum of Rs.1.35 Lakhs in all towards agreed consideration and therefore the relationship of landlord and tenant does not exist. 4. Relying upon the decision of the Hon’ble High Court of Punjab and Haryana reported in ILR 1975 (2) P & H 277, the learned Judge of the rent court has held that tenancy has merged with the agreement of sale and therefore relationship of the landlord and tenant does not exist. Further, the learned Judge of the Trial Court has held that the landlord has not placed any material such as the lease agreement or rent receipts in regard to the existence of tenancy. 5. The order dated 23.8.2007 passed in HRC 8/2006 on an application filed under Section 43 of Karntaka Rent Act, 1999 was challenged before the Principal District & Sessions Judge, Davanagere in Civil Revision (Rent) Petition No.2/2007 under Section 46(2) of Karnataka Rent Act. Relying upon the decision of the Punjab and Haryana High Court, the learned District Judge has dismissed the said revision petition and thus affirmed the judgment of the Trial Court passed in HRC No.8/2006. It is this concurrent findings which are called in question in the present revision petition. 6. Heard the learned counsel for the parties. 7. Relying upon the decision of the Punjab and Haryana High Court, the learned District Judge has dismissed the said revision petition and thus affirmed the judgment of the Trial Court passed in HRC No.8/2006. It is this concurrent findings which are called in question in the present revision petition. 6. Heard the learned counsel for the parties. 7. After hearing the learned counsel for the parties, the point that arises for consideration is: “Whether the Trial Court is justified in holding that the tenancy has merged with the agreement of sale dated 4.8.1994 and thus there is no relationship of land lord and tenant? 8. Perused the copy of Ex.D2 agreement of sale entered into between the parties on 4.8.1994. The petitioner herein has executed an agreement of sale in favour of respondent agreeing to sell plaint schedule property for a sum of Rs.1.95 Lakhs it also discloses receipt of Rs.20,000/as advance on the said date in the presence of the witnesses who have attested to the said document. Several clauses have been incorporated in the agreement of sale. They are as follows: “At the time of registration of documents pertaining to the following schedule a copy of General Power of Attorney have to be issued as a reference. The Municipal Tax, Khata Extract, House List Assessment Copy etc., if any must be cleared and the Original Receipt order have to be issued at the time of document registration. Before or after the document registration, if any legal litigation arises regarding the premises by any concerned person or authorities have to be solved by the G.P Holder at their cost. At the time of Document registration the G.P. Holder of the following schedule property have to be submit a No Objection Certificate or Clearance Certificate for Sale from the Income Tax Authority or otherwise the legality of the premises may stand in question. That after the above 4 condition completed and if the party No.1 SRI.M.K. MADHAVA RAO failed to register the documents at his cost is appropriate time the paid advance amount may be furfited after issuing a trial notice regarding this sale agreement.” 9. What is argued by the learned counsel for the respondent is that petitioner, being the landlord, was expected to comply with certain obligations and he has not complied with same. What is argued by the learned counsel for the respondent is that petitioner, being the landlord, was expected to comply with certain obligations and he has not complied with same. It is also argued that only after complying with the conditions imposed in the agreement of sale, he should have forfeited the amount that too by issuing notice. In the light of non compliance of the conditions imposed in the agreement of sale and in the light of non cancellation of agreemnet of sale by forfeiting the advance amount, the revision petitioner herein could not have contended that relationship of landlord and tenant exists. 10. The learned Judge of the First Appellate Court has relied upon yet another decision in the case of 2007 (1) Kar.L.J. 437 . As per the facts of the said case transferor having failed to get the katha in his name and arrange for registration, serving on transferee, notice repudiating contract and filing suit for recovery of possession and for damages and mesne profit has been held to be incorrect and improper and not maintainable. 11. In the present case, agreement of sale discloses about the agreement entered into between the parties relating to schedule property. A comprehensive suit has been filed by the respondent herein in O.S.626/2010 before the Civil Judge (Jr.Dn.), Davanagere for the relief of specific performance of contract. Several decisions have been relied upon by the learned counsel for the petitioner. One such decision is the decision of Madras High Court in the case of K.Mani v.s M.D.Jayavelu (S.A.1464/2010 and 1465/2010 disposed of 10.6.2011). What is held in the said decision is that there is no hard and fast rule that soon after the emergence of an agreement to sell between a landlord and a tenant with regard to a demised premises, the possession of the tenant should automatically get itself converted into one that of an agreement holder, unless there is specification to that effect in the agreement itself. 12. In the decision rendered in Jiwan Dass Rawal v. Narian Dass and others (AIR 1981 DELHI 291) it is specifically reiterated that contract for sale is a right created in personam and not in estate. No privity in estate can be deduced therefrom which can bind the estate, as is the position in cases of mortgage charge or lease. 12. In the decision rendered in Jiwan Dass Rawal v. Narian Dass and others (AIR 1981 DELHI 291) it is specifically reiterated that contract for sale is a right created in personam and not in estate. No privity in estate can be deduced therefrom which can bind the estate, as is the position in cases of mortgage charge or lease. Of course, such personal right created against the vendor to obtain specific performance can ultimately bind any subsequent transferee who obtains transfer of the property with notice of the agreement of sale. 13. This court in the case of A.R.Ommar Sait and others vs. B.S.Rajanna (ILR 2007 KAR 4051) has held that tenant in occupation of the premises entered into an agreement of sale with the landlord cannot contend that there is no relationship of landlord and tenant just because of agreement of sale has been entered into between him and landlord. Tenancy rights cannot be merged with the rights of the agreement holder. 14. In another decision of Hon’ble High Court of Madras in the case of Jessie Thavamani v. Liakath Basha ( 1996 (1) CTC 398 ), it is held that merely entering into an agreement of sale, the tenant cannot acquire any right in the property. If possession is traceable to the agreement of sale, then such possession can be sustained on the basis of the principle of part-performance under section 53A of T.P. Act. Even if there has been an agreement of sale and advance has been paid in pursuance of that agreement, Rent Control Court will not lose of jurisdiction to entertain the petition. 15. In another decision of Hon’ble High Court of Delhi rendered in the case of Shikha Mishra & Ors. v. S. Krishnamurthy (TR.P.(C) 25.2012 dated 23.1.2014) it is reiterated that mere agreement of sale of immovable property does not create any right in the property save the right to enforce the said agreement. In the said decision, the decision of the Hon’ble High Court of Delhi rendered in Jiwan Dass v. Narain Das has been relied to hold that the no rights enure to the agreement purchaser, not even after passing of a decree for specific performance and till conveyance is effected in accordance with law. Thus the point framed by this Court is answered in the negative. 16. Thus the point framed by this Court is answered in the negative. 16. Viewed from any angle this Court is of the opinion that the principles reiterated by the Hon’ble High Court of Delhi and Madras High Court are more persuasive and they have to be followed. Hence the petition is to be allowed and matter has to be remanded to the Rent Court to deal with the petition in accordance with law. ORDER Present petition is allowed. The matter is remanded to the Trial Court to reregister the case in HRC 8/2006 and dispose of the matter in accordance with law as per the provisions invoked under Section 27(2) (d) & (e) of the Karnataka Rent Act. It is made clear that Trial Court, which is seized of the suit O.S.626/2010 filed for relief of specific performance shall dispose of the matter within a period of 6 (Six) months from today. Parties and their respective advocates to cooperate with the Court dealing with O.S.626/2010. All the contentions raised by the parties in their respective pleadings in the said suit are kept open. It is brought to the notice of the Court that the next date of hearing of the suit O.S.626/2010 is on 26.2.2015. Therefore, it is made clear that this petition itself shall be deemed as service of summons to the petitioner herein in the suit O.S.626/2010 and written statement shall be filed within the time prescribed as per the law. Parties to bear their own costs. Registry to send a copy of this order to Trial Court dealing with O.S.626/2010 for reference and compliance, at the earliest.