ORDER
Ajit J. Gunjal, J.
1. All these revision petitions are by the tenants. H.R.R.P. No. 417 of 2003 relates to H.R.C. No. 1566 of 1998; H.R.R.P. No. 427 of 2003 relates to H.R.C. No. 1564 of 1998; H.R.R.P. No. 426 of 2003 relays to H.R.C. No. 1563 of 1998 and H.R.R.P. No. 428 of 2003 relates to H.R.C. No. 1565 of, 1998.
2. In all these petitions the landlord is common and the tenants are different.
3. During the course of this order, the landlord would be referred to as the petitioner and the tenants will be referred to as the respondents.
4. The petitioner initiated eviction proceedings under the Karnataka Rent Control Act, 1961 seeking eviction of the respondents under Section 21(1)(h) and (j) of the Act. The case of the petitioner is that all the respondents are tenants under the petitioner in respect of the shop premises bearing No. 286 situate at Thimmaiah Road, Civil Station, Bangalore and all the respondents are paying a monthly rent of Rs. 125/- and the tenancy being of English calendar month.
5. It is the case of the petitioner that the schedule shops are under the occupation of the respondents. The son of the petitioners is unemployed and he intends to start his business in readymade garment in the schedule shops. The son possesses sufficient knowledge in the readymade garment business as he had worked as a manager in some of the prestigious readymade garments shops and thereby had acquired sufficient experience. They further averred that they have sufficient funds to finance the son's business in readymade garment business. Notwithstanding several requests made by the petitioners, the respondents are not intending to vacate the schedule premises. Consequently, they were constrained to initiate eviction proceedings.
6. The respondents entered appearance, inter alia, contended in the first instance that there was no relationship of landlord and tenant inter se between them as according to them the petitioners do not have title to the suit property as their vendor himself had lost the title in another proceeding. They further contended that the requirement of the petitioners was not genuine and generally denied the bona fide requirement of the petitioners.
7. When the eviction petitions were pending, the Karnataka Rent Control Act, 1961 was replaced by the Karnataka Rent Act, 1999. In the said new enactment, a provision was included, namely, Section 43, wherein when there is a serious dispute regarding relationship of landlord and tenant, it was obligatory on the part of the Court to stay the proceedings and direct the parties to seek their redressal in an appropriate Court for declaration of the title. In these circumstances, the tenants in all these eviction petitions maintained applications questioning the relationship of landlord and tenant. In H.R.C. No. 1566, 1564 and 1565 of 1998 they filed necessary applications as contemplated under Section 43 of the Act, inter alia, contending that the petitioners do not have title to the schedule property. In H.R.C. No. 1563 of 1998 an application under Section 151 of the CPC was made reiterating the same stand questioning the title of the petitioners. The said applications were taken up for consideration by the learned Trial Judge. The learned Trial Judge rejected the said applications on the ground that it is not open to the tenants to raise such a dispute regarding jural relationship of landlord and tenant and he ultimately came to the conclusion that since the petitioners were permitted to receive the rent from the tenants they are entitled to maintain the said eviction petitions. Consequently, he rejected the applications filed by the respondents. The said orders of the learned Trial Judge are challenged by the respondents in these revision petitions.
8. I have heard Shri Mujeeb and Sri Janardhan, learned Counsels appearing for the respondents as well as Sri C.R.U. Goulay, learned Counsel for the petitioners in detail. The learned Counsels appearing for the respondents in support of their contention that there is a genuine and bona fide dispute regarding the relationship have set forth the following facts.
The schedule property in all these four petitions consists of shops which are non-residential. This property originally belonged to one Lakshmaiah Naidu. He died as a bachelor and he had left a Will dated 11-5-1930 under which he had bequeathed the schedule property along with other two residential houses in favour of his mother one Govindammal creating a life interest. It is stated that the Will also, according to the respondents, discloses that after the death of said Govindammaf the property would devolve upon Pandarinatha Temple in Trichi. It appears that the said Govindammal initiated proceedings in the District Court, Trichi in O.P. No. 61 of 1934 seeking letters of administration and the same was granted. Later the said Govindammal during her lifetime sold the suit property in favour of one Sundar Raj Naidu under a registered sale deed dated 20-12-1943. It appears there was some dispute inter se between the said Sundar Raj Naidu and another one i.e., V.N. Ramaiah Naidu who happened to be the son of Muthial Naidu i.e., the grandfather of the testator of the Will in O.S. No. 85 of 1956. Suffice it to say that the said suit O.S. No. 86 of 1956 was dismissed. This was carried in appeal in RA No. 13 of 1957 on the file of the District Judge, Bangalore. In the said proceedings a finding was recorded that the said Govindammal, legatee under the Will executed by her son Lakshmaiah, did not derive any title to the schedule property and a finding was recorded that in the absence of any permission under Sub-section (2)(ii) of Section 307 of the Succession Act the sale made by Govindammal in respect of the schedule property in favour of said Sundar Raj Naidu is null and void. It appears the said Sundar Raj Naidu also instituted a suit for recovery of the arrears of rent in respect of the property in Meenakshi Koil Street in SC No. 11116 of 1980 on the file of the Principal Small Causes Judge, Civil Station, Bangalore against one C. Shah and the said Small Causes Suit was disposed of on 25-6-1987 on the ground that the vendor of Sundar Raj Naidu had only a limited interest and did not derive any title and after, the death of Govindammal his title to the property got extinguished. In the said proceedings the learned Small Causes Judge recorded a finding that in view of the judgment in RA No. 13 of 1957, Sunder Raj Naidu had only a limited interest and after the death of said Govindammal his right clearly extinguished. He further recorded a finding that after the death of Govindammal, Pandarinatha Temple authorities issued notice to the defendant in the said suit asking him to pay the rent in respect of the schedule property to the temple authorities. In view of this, the said suit for recovery of rent filed by the petitioner was dismissed. This judgment and decree were challenged in CRP No. 1225 of 1988 in this Court. This Court by its order dated 12-8-1993 dismissed the revision petition. In the said revision petition this Court has categorically recorded a finding that in view of the judgment in RA No. 13 of 1957 filed by Sundar Raj Naidu (vendor of the petitioner) it will have to be held that he purchased only Govindammal's life interest in the suit schedule property and after the death of Govindammal the life interest purchased by Sunder Raj Naidu also got extinguished. Consequently, it was held that the order passed by the Small Causes Judge in SC No. 11116 of 1980 was correct and the vendor did not derive any title. The said order was sought to be reviewed by the petitioner in CP No. 37 of 1997. The review petition was also dismissed. Ultimately, the said orders in CRP No. 1225 of 1988 and CP No. 37 of 1994 were challenged in SLP No. 15461 of 1994 before the Hon'ble Supreme Court which declined to interfere with the order passed by this Court. But, however, the Apex Court was pleased to pass the following order on a concession made by the tenants, which reads as under:
'The learned Counsel for the respondent-tenant very fairly states that his client would keep on depositing monthly rent before the Trial Court. He may do so.
We have been informed that a civil suit is pending between the temple and the petitioner. The question of title shall be determined in the said suit.
The petition is disposed of accordingly'.
It may not be out of place to mention that during the pendency of the revision petition in this Court, Sundar Raj Naidu died and his legal heirs were brought on record.
9. Another set of facts are that the said Sundar Raj Naidu filed O.S. No. 117 of 1989 for declaration and consequential relief of injunction against the said Pandarinatha Temple, Trichi. Suffice it to say, in the said suit an application I.A. No. 7 was filed by the legal heirs of said Sundar Raj Naidu under Order 23, Rule 1 to withdraw the said suit with liberty to file a fresh suit on the same cause of action if occasion arises. In the circumstances, the suit was dismissed as withdrawn. However, insofar as liberty to file a fresh suit on the same cause of action was concerned it was denied to them. Consequently, an order was passed granting permission to the said Sundar Raj Naidu to withdraw the suit. But, however, without reserving liberty to file a fresh suit on the same cause of action. It appears the legal heirs of the said Sundar Raj Naidu had initiated proceedings in H.R.C. No. 10322 of 1985 on the file of the 6th Additional Judge, Court of Small Cause, Mayo Hall, Bangalore for eviction against some of the respondents under Section 21(b), (c), (f), (h), (j) and (k) of the old Act. The said eviction petition was dismissed and that was challenged before this Court in H.R.R.P. Nos. 1339 and 1641 of 1996. This Court disposed of the said revision petitions by its order dated 18-10-2000 observing thus:
'It is not in dispute that the respondent was inducted by the petitioners and they paid the rents to the petitioners for some time. Having regard to the principles of Section 116 of the Indian Evidence Act, they are estopped from denying the title of the landlord, and though this principle has an exception viz., that when the title of the original landlord itself is extinguished, the same has no application. But, in this case the reversions having not yet exercised, their reversionary rights and till that is exercised by taking possession, respondents cannot contend that they are absolved from paying the rents. Under such circumstances, the findings of the Trial Court until the reversionary right is exercised, respondents shall continue to pay the rents to the eviction petitioners has to be upheld'.
10. This order has attained a finality. In view of the fact that the petitioners having purchased the petition schedule premises along with other property in the year 1998 which forms a part of the sale deed dated 6-2-1947 purchased by Sundar Raj Naidu from Govindammal; consequently it was submitted by the learned Counsel appearing for the respondent that in view of these facts as narrated there is no jural relationship of landlord and tenant and consequently the Trial Court had no option but to ask the petitioner to approach the Civil Court to establish their title and then seek eviction of the respondents. They further relied on decision in D. Satyanarayana v. P. Jagadish : [1988]1SCR145 , Mangat Ram and Anr. v. Sardar Meharban Singh and Ors. : AIR1987SC1656 , and a judgment of this Court in Pratapsingh v. Jaibunnisa Begum : AIR1989Kant70 . Sri Janardhan, learned Counsel appearing for some of the respondents reiterating the arguments submitted that in view of the fact that in respect of the petition schedule premises proceedings were initiated under Section 19 of the old Act and they were directed to deposit the rents in H.R.C. No. 10328 to 10334 of 1998 and according to him the tenants are depositing the rents in the proceedings under Section 19 of the Act. It was his further contention that all the documents relating to the earlier proceedings were made available to the learned Trial Judge, but however he has not chosen to consider the said earlier proceedings.
11. Sri C.R.U. Goulay, learned Counsel appearing for the petitioners refuted all the contentions raised by the respondents. He stressed on order passed in H.R.C. No. 7762 of 1980, wherein an application filed by Pandarinatha Temple to come on record was rejected. He further submits that in view of the fact that he was permitted to collect rents till the rights are decided for the purpose of seeking eviction of the respondents he continues to be the landlord under Section 3(g) of the Karnataka Rent Act, 1999 (new Act). It is his further submission that the notice issued by the temple to the tenants asking them to pay the rents is not a relevant factor as according to him only the Trichi property was given to the temple and so far as the property in Bangalore is concerned, it was retained by Lakshmaiah and that they have derived title to the petition schedule property and other properties under the sale deed. It is his submission that the provisions of Section 43 of the new Act are not at all applicable as according to him a dispute can be raised when the tenants deny the title of the landlord and not when there is a dispute between the landlord and some other persons. He submits that the decisions relied by respondents have no relevance and do not have any bearing on the subject-matter of the proceeding. He further submitted that in view of the fact that the status of the respondents having been admitted they are barred from raising a contention regarding title. He further submits that in view of Section 116 of the Indian Evidence Act, the tenants cannot be permitted to deny the title. He also submits that since the rent receipts are produced, a prima facie finding will have to be recorded that the petitioners are the landlords for the purpose of initiating the eviction proceedings. In view of this, he submitted that the order under revision does not call for interference as according to him the learned Trial Judge has rightly rejected the said applications holding that it does not fall in the realm of a summery proceeding to decide the question of title.
12. Insofar as contention of Mr. Goulay that the petitioners come under the definition of Section 3(e) of the new Act, does not have any substance. It is no doubt true that Section 3(e) of the new Act contemplates that a rent collector is also a landlord. However, the observation made by the Hon'ble Supreme Court very clearly indicates that they are only rent collectors until the title to the property is decided by a Competent Court. In view of the fact that such a concession was made by one of the tenants that he would go on paying the rents until the title to the property is decided does not give a right to the petitioners nor does it clothe him with the title to the schedule property. It is only on the basis of the observation made by the Hon'ble Supreme Court he is collecting the rents and that too only for a limited period until the title to the suit property is decided, it cannot be said that they are clothed with the right to initiate eviction proceedings,
13. I have given my anxious consideration to the rival contention of both the parties.
14. Section 43 of the Karnataka Rent Act, 1999, reads as follows:
'Dispute of relationship of landlord and tenant.--(1) Wherein any proceeding before the Court, a contention is raised denying the existence of relationship of landlord and tenant as between the parties it shall be lawful for the Court to accept the document of lease or where there is no document of lease, a receipt of acknowledgment of payment of rent purported to be signed by the landlord as prima facie evidence of relationship and proceed to hear the case.
(2) Where.--
(a) the lease pleaded is oral and either party denies relationship and no receipt or acknowledgment of payment of rent as referred to in Sub-section (1) above is produced; or
(b) in the opinion of the Court there is reason to suspect the genuine existence of the document of lease or the receipt or acknowledgment of payment of rent,
the Court shall at once stop all further proceedings before it and direct the parties to approach a Competent Court of civil jurisdiction for declaration of their rights'.
A reading of Section 43 would indicate that when there is a serious dispute regarding the title, the Rent Control Court is debarred from proceeding with the matter and the Court shall direct the parties to approach the Civil Court for adjudication of their rights. It is seen that the property in question originally belonged to one Lakshmaiah who by virtue of a Will bequeathed the schedule property along with two other residential property in favour of his mother. What was bequeathed was only the life interest. After the death of his mother the property, according to the Will, would devolve upon Pandarinatha Temple, Trichi. The fact remains that Sundar Raj Naidu purchased the said property; but what was purchased by him was only a life interest. The said finding is concluded by a suit filed by him and which is later confirmed in RA No. 13 of 1957. A series of proceedings have taken place and in all those proceedings the vendor of petitioner initiated suits and eviction proceedings and in all those proceedings a finding is recorded that the vendor of petitioners did not have title to the suit property and what was purchased by them from the legatee, under the Will, was only a life interest and nothing more or nothing less. In view of the fact that a finding is recorded in RA No. 13 of 1957, in CRP No. 1225 of 1988 and also in CRP No. 1339 of 1996 connected with CRP No. 1641 of 1996, an irresistible conclusion will have to be drawn that there is a serious dispute regarding the title of the petitioner in respect of the petition schedule property.
15. Insofar as the contention of Mr. Goulay that the question of title cannot be gone into in a summery proceedings and further that a tenant cannot question the title of the petitioner has been set at rest by a series of decisions of the Hon'ble Supreme Court and of this Court in D. Satyanarayana 's, case, supra, when a similar question arose, the Hon'ble Supreme Court at para 3 has held thus:
'The appeal must be allowed on the short ground that there being a threat of eviction by a person claiming title paramount i.e., head lessor Krishnamurthy, the appellant was not estopped under Section 116 of the Indian Evidence Act from challenging the title and his right to maintain the eviction proceedings of the respondent-P. Jagadish as the lessor. Section 116 of the Indian Evidence Act provides that no tenant of immovable property shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. Possession and permission being established, estoppel would bind the tenant during the continuance of the tenancy and until he surrenders his possession. The words 'during the continuance of the tenancy' have been interpreted to mean during the continuance of the possession that was received under the tenancy in question, and the Courts have repeatedly laid down that estoppel operates even after the termination of the tenancy so that a tenant who had been let into possession, however, defective it may be, so long as he has not openly surrendered possession, cannot dispute the title of the landlord at the commencement of the tenancy. The rule of estoppel is thus restricted not only in extent but also in time i.e., restricted to the title of the landlord and during the continuance of the tenancy; and by necessary implication, it follows that a tenant is not estopped, when he is under threat of eviction by the title paramount, from contending that the landlord had no title before the tenancy commenced or that the title of the landlord has since come to an end'.
In another decision the Hon'ble Supreme Court in the case of Mangat Ram, supra, has observed thus:
'In the premises, the High Court as well as the learned Additional District Judge were clearly in error in decreeing the suit brought by respondent 1 under Section 20(2)(a) of the Act by relying on the rule of estoppel embodied in Section 116 of the Indian Evidence Act, 1872. The estoppel contemplated by Section 116 is restricted by the denial of title at the commencement of the tenancy and by implication it follows that a tenant is not estopped from contending that the title of the lessor had since come to an end. The failure of the High Court to deal with the legal implications flowing from the terms of the dissolution deed and the execution of the rent note by the appellants accepting Smt. Prakash Kaur to be their landlord, coupled with the admission of respondent 1 that two-thirds share of the partnership assets consisting of the land and building at Hapur Road, Ghaziabad from which the business of the partnership firm was being carried on of which the demised premises forms a portion, has resulted in complete miscarriage of justice.....'.
My view is further strengthened by another decision of this Court in Pratapsingh 's case, supra, wherein it is held that wherever there is a dispute regarding jural relationship, the same cannot be decided in a summery proceeding. It has been observed at paras 16 and 19 as follows:
'If it is found to be really a complicated question, and was raised bona fide, it will be unfair to be resolved in a summary proceeding by the Court as defined under the Act. The Act, does not vest any exclusive jurisdiction in the said Court to decide the question of title while considering first proviso to Section 8(1) of the Mysore House Rent and Rent Accommodation Control Act, 1957 (which was the predecessor to the present Act, in the old Mysore Area), Justice Somnath Iyer (as he then was) observed in M. Thammaiah v. K.V. Subha Rao 1964(2) Mys. L.J. 356, that.--
'If there is a bona fide dispute between the parties as to the existence of such relationship between the parties, the Court exercising special jurisdiction under Section 8 of the Act, cannot decide that question; nor can the Court proceed with the petition for eviction on the basis that such relationship exists between the parties. It is not every denial by the tenant of the title of the landlord that prevents the Court from exercising its special jurisdiction under Section 8 of the Act. If such denial by the tenant is found to be frivolous or obviously untenable, the Court is not precluded from exercising its special jurisdiction under Section 8 of the Act. But, if the denial by the tenant of the landlord's title is bona fide, the question of the title of the landlord can only be determined by a Civil Court and not by the Court exercising special jurisdiction under the Act'.
The plea as to the title of the landlord, if found to be bona fide and complicated, results in refraining of the exercise of jurisdiction under the Act. Therefore, the said plea goes to the root of the jurisdiction. In such circumstances, it will be within the judicial discretion of this Court to allow a party to put forth the contention, even if, the contention was not properly argued in the lower Courts, provided such a plea is raised in the pleadings and relevant materials read in the light of the circumstances of the case, prima facie support the plea'.
16. In view of the law laid down by the Hon'ble Supreme Court as well as this Court, it is incumbent upon the petitioners to establish their title in respect of the petition schedule property.
17. Section 43 of the new Act is enacted to safeguard the interest of the tenants and they should not be evicted by the persons who has no title to the petition schedule property. It is no doubt true that frivolous applications are made to stall the eviction proceedings, but however in the case on hand, the fact that a series of proceedings at undisputed point of time when the title of the vendor of the present petitioner itself was questioned and having been denied by the Courts, the applications maintained by the respondents in the Trial Court for deferring the eviction proceedings until the title is decided cannot be said to be either frivolous or to drag on the proceedings.
18. In view of the above discussions, I find that the Trial Court ought to have accepted the applications and directed the parties to approach the Civil Court for establishing the title.
19. Consequently, these revision petitions are allowed and the orders of the Trial Court are set aside. The petitioners are directed to approach the Civil Court to establish their title.
Any observation made during the course of this order is only for the purpose of disposal of these revision petitions. The Court has not decided the rights of the parties.