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2019 DIGILAW 1530 (KAR)

Rajesh @ S. M. Rajesh v. Meenakshi

2019-07-02

SREENIVAS HARISH KUMAR

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JUDGMENT : Sreenivas Harish Kumar, J. 1. This revision petition is filed by the tenant who has suffered an order of eviction. In the first instance, the respondent herein initiated eviction proceeding, HRC 84/2002, against the petitioner in this revision petition under section 27(2)(r) and Section 31 of the Karnataka Rent Act. The respondent pleaded before the court of first instance that the petitioner was her tenant in respect of a residential accommodation (the premises) on a monthly rent of Rs. 400/- the tenancy came into existence on the basis of an oral agreement, but it was from month to month. She stated that she required the premises for accommodating her second son who was to be married and for this reason she sought eviction of the petitioner. 2. The petitioner contested the eviction proceeding. He denied the truth in the reason given by respondent for evicting him. He also denied the respondent's right to evict him; he denied jural relationship of landlord and tenant. 3. The court of first instance held that petitioner was respondent's tenant. It assigned the reasons that the petitioner failed to prove that he constructed the house, that there was valid decree of the Civil Court in favour of the respondent and the order passed by the municipality was held to be illegal and void, that the petitioner failed to prove that the land where premises existed belonged to the government, that it was not the case of the petitioner that he had purchased the property from a lawful owner, that he was not a licencee and hence he should be a tenant. Arriving at these conclusions, the court of first instance allowed the eviction petition and ordered for petitioner's eviction. 4. The petitioner questioned this order by filing a revision petition under section 46(2) of the Karnataka Rent Act, to the District Court, Mangaluru. The District Court also concurred with the findings of court of first instance and dismissed the revision petition. Hence this revision petition under Section 115 of the Code of Civil Procedure. 5. The main point of argument of Sri. P.P. Hegde, the learned counsel for petitioner is that the court of first instance has erroneously drawn an inference that the petitioner is respondent's tenant. Hence this revision petition under Section 115 of the Code of Civil Procedure. 5. The main point of argument of Sri. P.P. Hegde, the learned counsel for petitioner is that the court of first instance has erroneously drawn an inference that the petitioner is respondent's tenant. It has wrongly drawn a presumption rather that the petitioner must be a tenant as his ownership over the premises or his authority to remain in possession being a licensee is not established. He argued that ownership of a person in respect of a property is some thing different from a person being a landlord entitled to evict a tenant. The premises is situated in a government land, his name found a place in the municipal records earlier. The survey conducted also showed that the premises was a part of government land. The respondent claimed oral tenancy, but at least a single document which otherwise would circumstantially establish the oral tenancy was produced, and hence the petitioner's stand that he is not a tenant under the respondent should have been upheld. He argued that even if the respondent could be held to be the owner of the premises, still he had no right to initiate proceeding under Karnataka Rent Act for eviction of the petitioner. She should have filed a suit for possession. He argued for allowing of revision petition. 6. On the other hand the learned counsel for respondent argued for sustaining the judgments of the two courts. He argued that by virtue of decree in O.S. No. 424/2002, the respondent was declared as absolute owner of the premises; this judgment attained finality as the two appeals RA 191/2007 and RA 127/2007 preferred against that judgments were dismissed and therefore the petitioner had no right to contend that the premises was situated in a government land. The petitioner simply disputed the relationship, but failed to establish it. If really there did not exist jural relationship of landlord and tenant, the petitioner could have made an application under Section 43 of the Karnataka Rent Act. Therefore this contention of the petitioner should fail. 6.1. He argued another point that the petitioner had no right to prefer and prosecute this revision petition because of his failure to deposit the rent as required under Section 45(1) of Karnataka Rent Act. Therefore this contention of the petitioner should fail. 6.1. He argued another point that the petitioner had no right to prefer and prosecute this revision petition because of his failure to deposit the rent as required under Section 45(1) of Karnataka Rent Act. It is a mandatory requirement that rent should be deposited or otherwise the tenant loses all his rights to prosecute the revision petition. The rent having not been deposited, this revision should be dismissed. 7. To this point of argument, the reply of Sri. P.P. Hegde was that the obligation to deposit the rent would arise if jural relationship was not disputed. Here the petitioner never paid the rent to respondent as he has been in occupation of the premises in his independent capacity. 8. I have considered the points raised by the learned counsel. The argument of Sri. P.P. Hedge makes it very clear that the petitioner opposes his eviction from the premises mainly contending that he is not a tenant under the respondent, but the requirement of the premises for the respondent is not disputed. Therefore the scrutiny in this revision petition must be confined to findings of the court below that there exists relationship of landlord and tenant between the parties. 9. The first revisional court i.e., the District Court has confirmed the findings of the court of first instance. Both the courts appear to have given importance to ownership over the premises to arrive at an opinion that the respondent is the landlord. Though the ownership is a superior right, and that the owners do become the landlords whenever they let the property, it is also accepted position that if a person is inducted as a tenant by any person other than a true owner, then in that event, the true owner cannot be considered as a landlord. Many a time, after creation of tenancy, some transaction resulting in cessation of jural relationship of landlord and tenant may take place. The person in occupation of a premises may claim independent right in himself. These are some of the instances where jural relationship may be disputed. 10. Creation of oral tenancy is permitted, but it is also a matter of proof, in the sense that no inference can just be drawn about existence of landlord and tenant relationship based on assertion about oral lease. These are some of the instances where jural relationship may be disputed. 10. Creation of oral tenancy is permitted, but it is also a matter of proof, in the sense that no inference can just be drawn about existence of landlord and tenant relationship based on assertion about oral lease. Circumstances establishing creation of oral lease and its continuance can be proved. 11. The counsel for petitioner has relied upon the decisions namely:- (a) Rajendra Tiwary vs. Basudeo Prasad and Another, (2002) 1 SCC 90 (b) Tribhuvanshankar vs. Amrutlal, (2014) 2 SCC 788 (c) Sabitha Devi and Another vs. S.K. Shreedevi, 2009 CDJ 409 Kar HC (d) R. Shariff and Others vs. A. Mohammed Noor and Another, (2004) ILR (Kar) 1546 (e) Pratapsingh and Others vs. Jaibunnisa Begum and Another, (1989) AIR Karnataka 70 (f) Sri Srinivas vs. M/s Thiru Margadarshi Constructions Pvt. Ltd. HRRP No. 254/2010 decided on 19.7.2013 12. The conspectuses of these decisions is that a court while exercising a jurisdiction under special law does not assume jurisdiction to grant or mould a relief under Order VII Rule 7 of CPC. It is quite clear that the learned counsel has referred to these decisions to substantiate argument that if a party, whose eviction is sought, is found to be in occupation not as a tenant, he can be evicted only by filing a suit for possession, and the rent court cannot pass a decree for possession just because the ownership of the petitioner in eviction petition is established. This proposition can be applied only if the petitioner is in occupation in his individual right but inferior to the right and title of the respondent. 13. Here in this case, it is true that the court of first instance has drawn an inference that the petitioner must be a tenant as his independent ownership over the property or right as a licensee has not been established. This conclusion can certainly be said to be incorrect if there is no other evidence showing creation of oral tenancy. But both the courts have referred to oral evidence of the witnesses, PW-1 to PW-3 and held that their evidence has stood un-discredited. PW-3 is an independent witness, he has answered in cross examination that he was present when there took place negotiations between the petitioner and the respondent regarding leasing of the premises. But both the courts have referred to oral evidence of the witnesses, PW-1 to PW-3 and held that their evidence has stood un-discredited. PW-3 is an independent witness, he has answered in cross examination that he was present when there took place negotiations between the petitioner and the respondent regarding leasing of the premises. This finding of fact cannot be disturbed in a revision under Section 115 of Code of Civil Procedure. The argument of Sri. P.P. Hegde on this point is not acceptable. 14. Regarding deposit of rent by the tenant at the time of preferring revision petition under Section 46(1), the position is now settled. 15. Howsoever strongly a party may contend disputing the tenancy, he is under an obligation to deposit the rent to prefer and prosecute the revision. It is held by the Division Bench of this court in the case of C.S. Sheshagiri vs. Smt. Jayalakshmi @ Jayalakshmamma by LRs. (2016) ILR (Kar) 1866 as below:- "37. In view of the law laid down by the three Division Benches of this court, while interpreting Section 29(1), we have to adopt the same interpretation while construing Section 45. Accordingly, question no. 2 is answered holding that an order passed under Section 27 of the Act and if the respondent tenant intends to challenge the said order under Section 46 of the Act, he shall deposit the arrears of rent due by him to the landlord from the day the amount became due till the date of filing of revision petition. Otherwise, the revision petition is liable to be dismissed." 16. The learned counsel for respondent has placed reliance on a judgment of this court in the case of Dileep Kumar Mishra vs. T.M. Vinay and Another, (2015) 4 KCCR 3556 . In this judgment, it is held that if a tenant does not file an application under Section 43 of Karnataka Rent Act, he cannot turn around and say that there exists no jural relationship of landlord and tenant. Same is the position here in this case. 17. Even if the above principle is applied, it can very well be stated that the petitioner has to deposit the rent. Just because he has disputed the jural relationship, he is not absolved of his obligation to deposit the rent. 18. Therefore the foregoing discussion takes me to conclude that all the grounds urged by Sri. 17. Even if the above principle is applied, it can very well be stated that the petitioner has to deposit the rent. Just because he has disputed the jural relationship, he is not absolved of his obligation to deposit the rent. 18. Therefore the foregoing discussion takes me to conclude that all the grounds urged by Sri. P.P. Hegde cannot be accepted. This revision petition fails and it is dismissed. No order as to costs.