ORDER
K. A. Swami, J.
1. This regular second appeal is preferred against the judgment and decree dated 25-11-1989 passed by the Principal District Judge, Kolar in R. A. No. 3/1984 confirming the decree dated 30-11-1983 passed in O. S. No. 54/81 by the learned Civil Judge, K. G. F.
2. This appeal has been referred to a Division Bench having regard to a conflict between the several decisions of this court regarding the jurisdiction of a civil court to pass a decree for possession against the tenant of a premise to which the provisions of the Karnataka Rent Control Act, 1961 (hereinafter referred to as the 'Act'), are applicable.
3. The premises in question are residential houses situated in Robertsonpet, K.G.F. The details of the premises are set out in the schedule to the plaint. We do not consider it necessary to repeat the same. It is sufficient to state that the provisions of the Act apply to Robertsonpet, K.G.F. wherein the premises in question are situated.
4. The appellant was the 1st defendant in the suit. Respondent-2 was the plaintiff and respondents 1 and 3 were defendants 3 and 2 respectively.
5. The 2nd respondent purchased the suit schedule premises from the previous owner Sri A. Doreswamy Naidu under a registered sale deed dated 14-4-1979. After the purchase, the plaintiff filed H.R.C. No. 50/1979 for possession against the defendants but they denied her title and set up title in themselves. Therefore, the plaintiff treated the tenancy as forfeited and filed O.S. No. 54/1981 for a declaration of her title to the suit properties described in plaint schedules-B, C and D and for possession of the same. She specificallyaverred in the plaint that the defendants were the tenants of the premises; that she had filed H.R.C. No. 50/1979 against the defendants wherein they denied her title, therefore, their tenancy stood terminated by forfeiture and hence she pleaded that she had filed the suit for a declaration of title and for possession of the suit schedule premises.
6. The defendants also contended that the plaintiff was not the owner of the suit schedule premises and that they were not the tenants of the schedule premises. They claimed possession of, and title to, the premises on the basis of agreements of sale alleged to have been executed by the plaintiff's predecessors-in-title, in their favour.
7. On the basis of the pleadings of the parties, the trial court raised the followingissues :
'1. Whether the plaintiff proves that she is the owner of the suit schedule property having purchased from A. Doreswamy Naidu under a registered sale deed dated 14-4-1979?
2. Whether the plaintiff proves that she is in occupation of the house and vacant site except the portions occupied by the defendants shown in B, C and D Schedules to theplaint?
3. Whether the plaintiff proves that the 1st defendant is in occupation of B' Schedule, D.2 is in occupation C' Schedule and D.3 is in occupation of the D' Schedule to the fullestextent?
4. Whether the plaintiff proves that A. Doraiswamy Naidu, the original owner after the sale, attorned the tenancy of the defendants in her favour?
5. Whether the plaintiff proves that there is forfeiture of the tenancy as the defendants have denied the title and the defendants are trespassers liable to be evicted from the properties in their possession and also liable to pay damages for use and occupation?
6. Whether the plaintiff proves that D. 1 is liable to pay Rs. 155/- at the rate of Rs. 5/-p.m. D.2 is liable to pay Rs. 124/- at the rate of Rs. 4/- p.m. and D.3 is liable to payRs. 279/- at the rate of Rs. 2/-p.m. from 14-4-79 to 12-10-81?
7. Whether the defendants prove that at the intervention of one G. Balu and A. Su-bramanyaswamy's it was settled that the plaintiff and other tenants including the defendants have to purchase their respective tenements for a sum of Rs. 4000/- and Rs. 2000/ - respectively and each of the tenant including the plaintiff, paid Rs. 1,111/- on 15-11-78 together with Rs. 12-50 Ps. the cost of stamp paper for agreement to the landlord but the said landlord committed breach of contract in collusion with the plaintiff on 22-1-79?
8. Whether the defendants prove that the plaintiff having agreed to the terms of purchase with the defendants and other tenants having knowledge of the fact of the agreement of sale in their favour, she is now estopped under Section 115 of Evidence Act to contend that she is the owner of the property?
9. Whether the defendants prove that theyare entitled for protection under S. 53(A) ofthe Transfer of Property Act?
10. Whether the suit is not maintainable for clubbing the causes of action against three tenants with respect to three items of the properties which are individual?
11. To what reliefs are the parties entitled?'
8. The Trial Court answered the issues as follows:
'Issue No. 1:-- The plaintiff has proved that she is the owner of the suit schedule property having purchased from A. Doraiswamy Naidu under a registered sale deed dated 14-4-79.
2. The plaintiff proves that she is in occupation of the house and vacant site except the portions occupied by the defendants, shown in B, C and D Schedules to the plaint.
3. The plaintiff has proved that the 1st defendant is in occupation of B Schedule, D-2is in occupation of C' Schedule and D.3 is in occupation of the D' Schedule to the fullest extent.
4. The plaintiff has proved that the original owner A. Doraiswamy Naidu after sale attorned the tenancy of the defendants in her favour.
5. The plaintiff has proved that there is forfeiture of the tenancy as the defendants have denied the title and the defendants are trespassers liable to be evicted from the properties in their possession and also liable to pay damages for use and occupation.
6. The plaintiff has proved that D.1 is liable to pay Rs. 75/- at the rate of Rs. 2.50 p.m. D.2 is liable to pay Rs. 124/- at Rs. 4/- p.m. and D.3 is liable to pay Rs. 279/-at Rs.9/- p.m. from 14-4-79 to 12-10-81 as damages.
7. Defendants 1 and 2 have failed to prove that at the intervention of one G. Balu and A. Subramanyaswamy, it was settled that the plaintiff and other tenants including them have to purchase their respective tenements for a sum of Rs. 4000/-, Rs. 2000/- respectively and each of the tenants including the plaintiff paid Rs. 1,111/- on 15-11-78 together with Rs. 12.50 Ps. the cost of stamp paper for agreement to the landlord but the said landlord committed breach of contract in collusion with the plaintiff on 22-1-79.
8. The defendants have failed to prove that the plaintiff having agreed to the terms of purchase with the defendants and other tenants having knowledge of the fact of the agreement of sale in their favour she is now estopped under Section 115 of the Evidence Act to contend that she is the owner of the properties.
9. The defendants have failed to prove that they are entitled for protection under S. 53( A) of the T. P. Act.
10. The defendants have failed to prove that the suit is not maintainable for clubbing causes of action against three tenants with respect to three items of the properties which are individual. The suit is well maintainable.
11. This is the relief issue.Accordingly, the trial court decreed the suit.
9. Aggrieved by the judgment and decree of the trial court, defendants-1 and 2 preferred R. A. No. 3/1984 before the District Court, Kolar. The learned Principal District Judge, Kolar, held that the Civil Court had jurisdiction to pass a decree for possession as there existed no relationship of landlord and tenant between the plaintiff and the defendants. Therefore, the provisions of the Karnataka Rent Control Act, did not come in the way of passing decree for possession. He placed reliance on a decision of this court in Mangalamba v. Sulochana Bai, ILR (1988) Karnataka 3374. Hence the second appeal by the 1st defendant.
10. Sri C. B. Srinivasan, learned counsel for the appellant contended that as the lower appellate court has recorded a finding that the 1st defendant was the tenant of the B Schedule premises, and as to the area where the suit schedule premises is situated, the provisions of Parts IV and V of the Act are applicable, the decree for possession passed by the trial court and confirmed by the lower appellate court is without jurisdiction inasmuch as Section 21(1) of the Act ousts the jurisdiction of a civil court to pass a decree for the recovery of possession of any premises in favour of the landlord against the tenant governed by the provisions of the Act; that a mere denial of title of the landlord and setting up title in himself, by the tenant, the tenancy does not automatically stand terminated unless it is terminated by the landlord on that ground by issuing notice in writing to the tenant under Section 111(g) of the Transfer of Property Act; that it is thereafter the relationship of landlord and tenant comes to an end if the tenancy is governed by the Transfer of Property Act only; but in a case where the Act applies, even after the termination of the tenancy by forfeiture, the defendant-tenant continues to be a tenant having regard to the definition of the word 'tenant' as contained in Section 3(r) of the Act; that the judgment in Mangalamba's case, (ILR (1988) Karnataka 3374), and other decisions followed in that judgment have not taken into considerationthe effect of the definition of the word 'tenant' as contained in Section 3(r) of the Act.
11. On the contrary, it is contended by Sri G. S. Visweswara, learned counsel for the 2nd respondent-plaintiff that as the appellant has denied the title of the owner and has set up title in himself, it is not open to him now to have the benefit of the provisions of the Act i.e. the Karnataka Rent Control Act; that the provisions of the Act govern the parties only if there exists a relationship of landlord and tenant. Therefore, it is contended on behalf of the plaintiff that the decree passed by the trial court and affirmed by the lower appellate court does not call for interference and cannot be held to suffer from any illegality.
12. Having regard to the contentions raised by both sides, the following points arise for consideration :
1. Whether a Civil Court can pass a decree for the recovery of possession against a tenant of the premises to which the provisions of Parts IV and V of the Karnataka Rent Control Act, 1961 apply, even when a tenant denies title of the landlord and sets up title in himself, to the premises, in a case where the tenancy is proved?
2. Whether the decisions in Rachayya v. Kariyappa Siddappa, : AIR1981Kant76 ; Nagaraja Rao B. S. v. M. K. Krishna Rao, (1983) I Kant LJ 344 : (AIR 1983 NOC 191); Mangalamba v. Sulochana Bai, (ILR (1988) Karnataka 3374); Dyamappa Butti v. Somappa, (1968) 1 Mys LJ 221 : (AIR 1969 Mysore 252); Mohammed Qasim v. Mohammed Moinuddin, (1974) I Kant LJ 316 : (AIR 1974 Kant 113); and Govindaraja Mudaliar v. University of Mysore, ILR (1987) Karnataka 3415, lay down the law correctly?
Points Nos. 1 and 2
13. It is convenient to consider both the points together as they are inter-connected. Hence they are considered together.
Part V of the Act deals with the control of eviction of tenants and obligation of landlords. Section 21 of the Act which gives protection to tenants against eviction by anycourt or other authority and specifies the grounds on which alone an order for the recovery of possession of the premises can be made, is the first section in Part-V of the Act. Section 21(1) of the Act reads thus :
'21. Protection of tenants against eviction.-- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or other authority in favour of the landlord against the tenant :
Provided that the court may, on an application made to it, make an order for the recovery of possession of a premises on one or more of the following grounds only, namely : (a) to (p) xx xx xx'
Thus from the non obstante clause contained in the opening part of sub-section(I) of Section 21, it is abundantly clear that no court or any other authority can pass a decree for recovery of possession of any premises governed by the Act except in accordance with the provisions contained in Section 21 of the Act. The words 'any court' refer to courts other than those specified in clause (d) of Section 3 of the Act. In other words, the words 'any court' are used in sub-section (1) of Section 21 of the Act to indicate ordinary civil court exercising its ordinary civil jurisdiction subject to pecuniary and territorial jurisdiction under the Karnataka Civil Courts Act. The word 'Court' as defined in the Act excludes ordinary civil courts because it specifies the courts which alone can make an order for recovery of possession of the premises. When the Act specifies the courts which alone can have jurisdiction to pass an order for recovery of possession of the premises on one or more of the grounds enumerated therein and further provides a remedy of revision to a specified court, it excludes the jurisdiction of ordinary civil court by necessary implication. In the case of Section 21 (1) of the Act, it is not necessary to take the assistance of a theory of exclusion of jurisdiction by necessary implication because the section by express words excludes the jurisdiction of ordinary civil court to passan order for recovery of possession of the premises to which the provisions of Parts IV and V of the Act apply. In the instant case, it is not in dispute that the provisions of Parts IV and V of the Act apply to the suit schedule premises.
14. In the instant case, the defendant has denied the title of the plaintiff and has claimed title in himself on the ground that there is an agreement of sale executed by Sri A. Doreswamy -- the vendor of the plaintiff --anterior to the deed of sale executed by him in favour of the plaintiff; therefore, the plaintiff cannot claim to be the owner of the suit premises. The courts below have concurrently held that the plaintiff has acquired title to the suit premises and the defendant was the tenant of the premises at the time when the plaintiff purchased the premises. However, the decree for possession has been passed because the defendant cannot continue to have the benefit of the tenancy as he has lost his status as tenant by denying title of the landlord and setting up title in himself having regard to the provisions contained in Section 111(g) of the Transfer of Property Act. The courts below have not taken into consideration the scope and effect of the definition of the word 'tenant' as defined in Section 3{r) of the Act. The word 'tenant' is defined under S. 3(r) of the Act as follows :
' 'tenant' means any person by whom or on whose account rent is payable for a premises and includes the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenant's family up to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a premises by its tenant or a person to whom the collection of rents or fees in a public market, cart stand or slaughter house or of rents for shops has been framed out or leased by a local authority.'
From the aforesaid definition, it is abundantly clear that it also includes a person who continues to be in occupation of the premises even after the termination of his tenancy.
The definition, however, does not include a person placed in occupation of a premises by its tenant or a person to whom the collection of rents or fees in a public market, cart stand or slaughter house or of rents for shoos has been framed out or leased by a local authority. At this stage, we may point out that by a mere denial of title of the landlord by the tenant of the premises and setting up title in himself even in a case where the tenancy is governed by the Transfer of Property Act only, the tenancy does not automatically stand terminated under Section 111(g) of the Transfer of Property Act. The landlord must choose this conduct of the tenant and forfeit his tenancy right by giving a notice in writing to the lessee of his intention to determine the lease. We will deal with this aspect at a later stage of this judgment. However, at this stage, even if it is assumed that on a mere denial of the title of the landlord by the tenant and setting up the title to the premises in himself, a person in possession of a premises as a tenant ceases to be a 'tenant' under the provisions of the Transfer of Property Act; nevertheless in a case where the premises is governed by Parts IV and V of the Act, the relationship of landlord and tenant continues until such person is actually evicted from the premises pursuant to the order of eviction passed as per the provisions contained in Section 21 of the Act. This position is no more res integra.
15. In Majati Subba Rao v. P. V. K. Krishna Rao, : AIR1989SC2187 , while considering similar definition of the word 'tenant' contained in the statute of another State, the Supreme Court has observed thus (at p. 2190 of AIR) :
'5. It was argued by learned counsel for the appellant that even accepting that there was a denial of title by the appellant, the result would be only that the respondent-landlord became entitled to forfeit the lease and in order to be a ground for eviction in a suit that forfeiture would have to precede the suit or petition for eviction. It was submitted by him that it was not open to a landlord to take advantage of a denial of title by the tenant in the very proceedings for eviction in the course of which the denial was made. The denialmust be anterior to the eviction proceedings. In support of this argument, learned counsel placed reliance on the decision in Maharaja of Jeypore v. Rukmani Pattamahadevi, (46 Ind App 109 : AIR 1919 PC 1 : 42 Mad 589 : 17 ALJ 552 : 21 Bom LR 655). In our view, this argument also does not stand scrutiny. In V. Dhanapal Chettiar v. Yesodai Animal, : [1980]1SCR334 , a Constitution Bench of this Court comprising seven learned Judges held that in the matter of determination of tenancy, the State Rent Acts do not permit a landlord to snap his relationship with the tenant merely by serving on him a notice to quit as is the position under the Transfer of Property Act. The landlord can recover possession of the property only or one or more of the grounds enacted in the relevant section of the Rent Acts. Even after the termination of the contractual tenancy, the landlord under the definitions of landlord and tenant contained in the Rent Acts, remains a landlord and a tenant remains a tenant because of the express provision made in the enactments that a tenant means 'a person continuing in possession after the termination of the tenancy in his favour'. Yet another important feature of the Rent Acts is that either by way of a non obstante clause or by necessary implication these enactments have done away with the law contained in Section 108 of the Transfer of Property Act dealing with rights and liabilities of the lessor and the lessee. The difference between the position obtaining under the Transfer of Property Act and the Rent Acts in the matter of determination of a lease is that under the former Act, in order to recover possession of the leased premises determination of the lease is necessary because during the continuance of the lease the landlord cannot recover possession of the premises while under the Rent Acts the landlord becomes entitled to recover possession only on the fulfilment of the conditions laid down in the relevant sections. He cannot recover possession merely fay determining the tenancy. Nor can he be stopped from doing so on the ground he has not terminated the contractual tenancy.'
15.1 This is also the view taken by this court in Mohammed Qasira's case, (AIR 1974 Karnataka 113). That was a case in which a civil suit was filed for possession of the premises governed by the provisions of the Act on the ground that the tenant forfeited his title as he disclaimed title of the plaintiff and set up title in himself. The courts below decreed the suit for possession. In the second appeal, this court, on the basis of the finding recorded by the courts below held that the defendant was a tenant who had forfeited the tenancy right by disclaiming the status of the tenancy and setting up title in himself and further held that even in such circumstances, the relationship of landlord and tenant had not come to an end as the defendant continued to remain in possession of the premises having regard to the provisions contained in Section 3(r) of the Act. The relevant portion of the judgment is as follows (at p. 114 of AIR):
'The first part of sub-section (1) of Section 21 contains an injunction against the courts or any other authority not to make a decree or order for possession in favour of the landlord and against the tenant for possession of any premises. It is not disputed that the Act applied to the suit premises which is situate at Sedam in the District of Gulbarga. The second part of sub-section (1) of Section21 which is in the nature of a proviso states that the Court as defined in the Act may on an application made to it make an order for recovery of possession of a premises only on one or more of the grounds stated therein. This is not a case to which the proviso to sub-section (1) of Section 21 is attracted inasmuch as the proceeding out of which this second appeal arises is not an application for recovery of possession of the premises made to the Court constituted under the Act on any of the grounds mentioned in sub-section (1) of Section 21 of the Act. So far as the first part of sub-section (1) of Section 21 is concerned, the same has to be given effect to when the court has to make a decree in favour of the landlord and against the tenant in respect of any premises to which the Act applies. As already mentioned, the premises is situate at Sedam to which the Act applies. The bar containedin sub-section (1) will be attracted when a decree for possession is required to be made in favour of the landlord and against the tenant. The first question for consideration, therefore, is as to whether the third defendant is a tenant. The expression 'tenant' has been defined in Section 3(r) of the Act which includes a person continuing in possession after the determination of the tenancy in his favour. The case of the landlord is that the third defendant was a tenant of the suit premises but that the said tenancy stood determined under Section 111(g) of the Transfer of Property Act when he disclaimed the lessor's title and set up title in himself. Both the courts below have held that though the third defendant is in possession, he had failed to establish that he has perfected his title to the suit property by adverse possession and that the plaintiff has title to the suit property. As a person in possession of the premises after the determination of the lease in his favour is also a tenant for the purpose of the Act, it has to be held that the third defendant is a tenant as defined in Section 3(r) of the Act. The other question to be examined is as to whether the plaintiff is in the position of a landlord. The expression 'landlord' has been defined in Section 3(h) of the Act to mean any person who is for the time being being receiving or entitled to receive rent in respect of any premises. As the title of the plaintiff has been established, it follows that he is a person who is entitled to receive rent in respect of the premises in question. Hence all the ingredients to attract the bar contained in the first part of sub-section (1) of Section 21 are satisfied. Hence no decree for recovery of possession could be made in the suit in favour of the plaintiff who is the landlord and against the third defendant who is the tenant.'
Accordingly, this court affirmed the finding that the plaintiff was the owner of the suit premises and the defendant was a tenant. Therefore, this court set aside the decree for possession and mesne profits passed by the courts below. This decision is in conformity with the decision of the Supreme Court in Majati Subbara Rao's case, : AIR1989SC2187 , and it also accords with the definition of the word 'tenant' as contained in S.3(r)read with Section 21(1) of the Act. We, therefore, approve the decision in Mohd. Qasim's case.
16. The decision in Mohd. Qasim, (AIR 1974 Karnataka 113), came up for consideration in Govinda Raja Mudaliar's case : ILR1987KAR3415 , and the same was followed. That was a case in which the plaintiff filed a suit for possession of the suit schedule premises which was a residential premises and for past and future mesne profits. The original owner of the suit premises was Gurumurthappa who died leaving behind a will dated 25-3-1983. The said property and the other properties were bequeathed by Gurumurthappa in favour of the plaintiff. The plaintiff filed Misc. Case No. 374/1954 and obtained letters of Administration. Thereafter he issued a notice to the defendant-tenant calling upon him to pay the arrears of rent. The defendant replied the notice denying the title of the plaintiff and set up title in himself. Therefore, the plaintiff filed a civil suit for possession of the suit premises treating the defendant as a trespasser. The courts below came to the conclusion that the defendant was a tenant of the suit premises and his tenancy stood terminated by reason of denial of title of the plaintiff and setting up title in himself under Section 111(g) of the Transfer of Property Act. Accordingly a decree for possession was passed. In the second appeal, Nesargi, J. followed the decision in Mohammed Qasim's case and held that the suit for possession was not within the jurisdiction of the civil court having regard to the provisions contained in Section 3(r) of the Act and Section 21(1) of the Act. In that case another decision of this court, in Nagaraja Rao, (AIR 1983 NOC 191), was also relied upon by the plaintiff. Nesargi, J. in the light of the decision of the Supreme Court in V. Dhanpal Chettiar v. Yesodai Animal, : [1980]1SCR334 , held that the decision in Nagaraja Rao's case was no more a good law.
16.1. Nagaraja Rao's case, (1983 (1) Kant LJ 344 : AIR 1983 NOC 191), arose out of a suit for possession, of the premis.es to which Parts-IV and V of the Act were applicable. Sabhahit, J. in this case came to theconclusion that as the tenant denied the title of the landlord and claimed title in himself, the tenancy stood forfeited under S. 111(g) of the Transfer of Property Act. Therefore, the defendant was not entitled to the protection of the Karnataka Rent Control Act. The relevant portion of the judgment is as follows :
'23. The next question for my consideration would be whether the defendant is the tenant under the plaintiff and, if so, the learned Civil Judge was justified in ordering eviction as the provisions of the Rent Control Act applied to the area.
24. It is true that while answering Point No. 2, the learned Civil Judge has stated that the father of the defendant was inducted as tenant and his son also continued in that capacity. But even so, the facts on record would clearly establish as also the contention taken in the written statement that the defendant never claimed to be the tenant under the plaintiff; he has denied the title of the plaintiff and it is for the reason that the Municipality referred the parties to file the suit for declaration of title. Ext.D.10 makes the position clear. That states :
'With reference to their applications dated 1-12-1967 and 6-12-1967, requesting the change of khata of Assessment No. 683/393 in their favour, respectively, Sriyuths M. K. Srikanta Rao and B. S. Nagaraja Rao, are informed to approach the court of law to prove the right over the property first and then approach this office for effecting the change of khata as this is a question of purely civil nature.'
That clearly establishes that as early as in 1967 itself, the defendant did not claim to be a tenant under the plaintiff and even denied the title of the plaintiff; and thereby forfeited the tenancy in respect of the suit house, if any, hence, there was no bar for the learned Civil Judge to order eviction of the suit property in favour of the plaintiff as in such a case, the provisions of the Rent Control Act are not attracted.'
Apart from the decision in Majati Subba Rao's case, : AIR1989SC2187 , to whicha reference, has already been made, in V.Dhanpal Chettiar's case : [1980]1SCR334 , also the Supreme Court has held that when the case is governed by the provisions of the Rent Control Act, even if the lease is determined by forfeiture under the provisions of the Transfer of Property Act, the tenant continues to be a tenant as there is no forfeiture in the eye of law and he is liable to be evicted only under the provisions of the relevant Rent Act, Para 16.2. In Dhanpal Chettiar's case the question that arose for consideration was as to whether for the purpose of obtaining an order of eviction under the provisions of the Rent Act, it was necessary to determine the lease by issuing a notice under the provisions of the Transfer of Property Act. It was held that no such notice was necessary because the tenancy was governed by the Rent Act and even if such a notice was required to be issued under S. 106 of the Transfer of Property Act for terminating the tenancy, the landlord could not get possession of the premises unless he could get an order of eviction in accordance with the Rent Act on complying with the requirements stated therein. Therefore, it was held that issuing of notice under Section 106 of the Transfer of Property Act was not necessary. During the course of the judgment, the observations as to continuation of the tenancy even after the forfeiture were made relying upon the provisions of the Rent Act. In the light of the decision of the Supreme Court in Majati Subba Rao's case, : AIR1989SC2187 , and in the light of the provisions contained in Section 3(r) read with S. 21(1) of the Act, it is not possible to hold that the decision in Nagaraja Rao's case (AIR 1983 NOC 191), lays down the law correctly. Therefore, we are of the view that the decision in Nagaraja Rao's case has to be overruled.
16.3. In Dyamappa Butti v. Somappa, (1968) I Mys LJ 221 : (AIR 1969 Mysore 252), it was held that in order to seek an order of eviction under the provisions of the Hyderabad Houses (Rent, Eviction and Lease) Control Act; 1954, it was necessary to issue a notice terminating the contractual tenancy in accordance with Section 106 of the Transfer of Property Act. It was also furtherheld that denial of title of the landlord of the premises and setting up title in himself by the tenant would not ipso facto put an end to the lease. It only conferred a right on the lessor, if he so elected, to determine the lease by a notice as required by Section 111(g) of the Transfer of Property Act. The decision in Dyamappa's case contains two propositions. One, that it is necessary to issue a notice terminating the contractual tenancy under Section 111(g) of the Transfer of Property Act in order to obtain possession of the leased premises under the Rent Control Act. This proposition does not hold good in the light of the decision of the Supreme Court in V. Dhanpal Chettiar's case, : [1980]1SCR334 . The second proposition is that by reason of denial of title of the landlord and setting up title in himself by the tenant, there is no automatic forfeiture of the tenancy right and that such conduct on the part of the tenant gives a right to the lessor to elect to determine the lease by issuing a notice in writing as required under Section 111(g) of the Transfer of Property Act, This proposition is in conformity with the provisions contained in Section 111(g) of the Transfer of Property Act and therefore, it applies to a case where tenancy is purely governed by the provisions of the Transfer of Property Act and not by the provisions of the Rent Act. Therefore, we approve the second proposition relating to forfeiture of tenancy under Section 111(g) of the Transfer of Property Act applicable only to cases where it is purely governed by the Transfer of Property Act and not by the Rent Act.
16.4. Tn Rachayya's case, : AIR1981Kant76 , Chandrakanthraj Urs, J. has considered the case of a premises situated at Kanaginhal village, not governed by the provisions of the Rent Act. However, in para 11 of the judgment relating to forfeiture of tenancy by reason of denial of title of the landlord (plaintiff) by the tenant and setting up title in himself, it has been observed thus :
'Sri Tarakaram, learned counsel appearing for the respondent-plaintiff, strongly urged that the lower appellate court erred in coming to the conclusion that on account of the fact that there was defect in the notice terminatingthe tenancy, the plaintiff would not be entitledto possession of the suit schedule property.His contention is that when the tenantdisputes the title of the landlord, irrespectiveof the technicalities of Section 106 of theTransfer of Property Act the landlord shouldbe entitled to the possession of the premises.There was forfeiture of the lease of whateverkind in terms of Section 111 of the Transfer ofProperty Act and therefore, the lower appellate court ought to have decreed the suit forpossession as well. There is some force in thisargument as a person cannot be given thebenefit of right to continue as tenant and aisocontest the title of the landlord at the sametime. In the said view of the matter, the lowerappellate court while it stands in all otherrespects is modified to the extent of theportion relating to denial of possession to theplaintiff.
The underlined observations are to the effect that once the tenant denies title of the landlord and sets up title in himself, the tenancy stands forfeited. As already pointed out, S. 111(g) of the Transfer of Property Act specifically states that in such an event, it is open to the landlord to give notice in writing to the lessee of his intention to determine the lease. Therefore, even if the tenant denies the title of the landlord and sets up title in respect of the leased premises in himself, if the landlord does not choose to determine the lease by issuing a notice, mere denial of title of the landlord and setting up title in himself by the tenant, the tenancy or lease does not automatically or ipso facto lead, to forfeiture of tenancy. Therefore, we are of the view that the underlined portion in para 11 of the judgment in Rachayya's case has to be declared as not laying down the law correctly and has to be overruled.
16.5. In Mangalamba's case, (ILR (1988) Karnataka 3374), Shyamsundar, J. considered a second appeal arising out of a decree for possession passed against the tenants in occupation of the premises to which Parts IV and V of the Act were applicable. It was held that in the light of the decision of the Supreme Court in Sultan v. Ganesh. : AIR1988SC716 ,the proposition of law laid down in Mohammed Qasim's case, (AIR 1974 Karnataka 113), was no longer a good law. Shyam-sundar, J. also followed the decisions in Rachayya's case, : AIR1981Kant76 and Nagaraja Rao's case, (AIR 1983 NOC 191). Therefore, it is necessary to consider as to what exactly is the proposition laid d own in Sultan's case by the Supreme Court.
16.6. In Sultan's case, : AIR1988SC716 , the plaintiff filed a suit for a declaration of title and for possession of the suit premises and for damages. The defendants in their written statement asserted that they were not the tenants of the premises and K. K. Sen had no right to sell the property to the plaintiff and the defendants had perfected their title by adverse possession for more than 12 years and therefore, sought for dismissal of the suit. The plea of adverse possession was negatived and a decree for possession was passed. The High Court confirmed the decree for possession. In the appeal preferred before the Supreme Court, a contention was tried to be urged that having regard to Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Aet, the Court after giving a decree declaring that the plaintiff was the owner of the premises and that the defendants were the tenants of the plaintiff, should have stayed its hand and directed the parties to take recourse to the Rent Act for possession of the premises. This contention was raised for the first time before the Supreme Court. The defendants at no point of time in the suit had claimed that they were the tenants of the suit premises. Therefore, the Supreme Court observed thus in paras 7 and 8 of the judgment :
'7. It is clear that the relationship of landlord and tenant between the appellant and the respondent was not admitted. Even before filing of the present suit, the appellants disputed the relationship and claimed to be the owners on the basis of adverse possession. In fact, it was under these circumstances that when the respondent who purchased this plot of land from K. K. Sen and wanted to construct that the present appellants claimed to be the owners and obstructed the construction and therefore initially the suit for injunction was filed and it appears that the suit was withdrawn and the present suit for declaration of title and possession was filed. In this suit, a decree for mesne profits and rent also was claimed. Therefore, the contention that the present appellants could not be evicted in a suit on this ground, does not appear to be justified as in fact the suit was filed on the basis of title and the appellants never raised any plea of protection but relied on adverse possession and in this view of the matter it could not he said that the suit could not be decreed. In fact this plea that the appellant w ho is the tenant is protected under the provisions of the Rent Act was not raised at any time in the courts below. Even in the judgment of the High Court, there is nothing To indicate that such a contention was raised before the High Court.
8. It was contended before us that as one of the grounds for termination of the lease was alleged to be non-payment of rent and as during the pendency of these proceedings, the Rajasthan Rent Act was amended and Section 13A was introduced, the appellant ought to have been given this protection under Section 13A and it was in respect of this contention that reliance was placed on the decision of this court in Gyan Chand v. K. B. Lal, : [1977]2SCR324 . In fact, so far as the present appeal is concerned this is not a suit for eviction under the Rent Act but a suit for possession based on title as from the very beginning. So far as the appellant is concerned, he denied the relationship of landlord and tenant and claimed to be the owner by adverse possession and therefore, at this stage, in this appeal before this court on special leave the plea on this ground could not be raised.....'
It was further held thus :
'In this view of the matter it could not be contended that a decree for possession could not be passed when admittedly the appellants did not plead to be tenants seeking any protection and one of the grounds which has been held to be proved is that the defendant-appellant has denied the title of the plaintiff-respondent from the beginning even beforethe present suit was filed.
The question as to whether the appellant isentitled to protection under the Rent Act ashas not been raised at any stage it could not begone into at this stage as it involves disputedquestions of fact. The contention thereforeadvanced on behalf of the appellants cannotbe accepted.'
Thus it is clear that in Sultan's case, : AIR1988SC716 , it was not held that the civil court was entitled to pass a decree for possession against the tenant in possession of the premises governed by the Rent Act if such a plea were to be raised by the defendant. That being so, we are of the view that in Mangalamba's case. (ILR (1988) Karnataka 3374), the scope of Sultan's case has not been correctly appreciated.
In addition to this, it is also relevant to notice that Sultan's case did not consider the case wherein Rent Act provided that the tenant in occupation of the premises after the termination of tenancy would continue to be a tenant until he is evicted in accordance with the provisions of the Rent Act. Such a provision is contained in the Karnataka Rent Control Act. As already pointed out and it is that provision which makes all the difference between Sultan's case and also the case governed by the Transfer of Property Act and the Rent Control Act. Therefore, it is not possible to agree with the view expressed by this court in Mangalamba's case, (ILR (1988) Karnataka 3374), that in spile of the provisions contained in the Act, the civil court will have jurisdiction to pass a decree for possession against a tenant in possession of the premises governed by Parts IV and V of the Karnataka Rent Control Act. We may also point out here that in Mangalamba's case, the definition of the word 'tenant' and the effect of it are not considered. Therefore, we are of the view that the decision in Mangalamba's case cannot be held to lay down the law correctly as it is opposed to the decision of the Supreme Court in Majati Subba Rao's case, : AIR1989SC2187 , and the definition of the word 'tenant' contained in Section 3(r) of the Act read with the provisions contained in Section 21(1) of the Act. Accordingly, we areof the view that the decision in Mangalamba's case has to be overruled.
17. For the reasons stated above, point Nos. 1 and 2 raised for determination are answered as follows :
Point No. 1 is answered in the negative.
Point No. 2 : (1) The decisions in Mohammed Qasim's case, (AIR 1974 Karnataka 113) and Govindaraja Mudaliar's case : ILR1987KAR3415 , are approved as laying down the law correctly.
(2) The decision in Nagaraja Rao's case, (AIR 1983 NOC 191) (Kant) and the decision in Mangalamba's case, : ILR1988KAR3374 , are overruled.
(3) The proposition of law laid down in para 11 of the judgment in Rachayya's case, : AIR1981Kant76 , is also declared as not laying down the law correctly. It is overruled.
(4) The decision in Dyamappa Butti's case (AIR 1969 Mysore 252), in so far it lays down that it is necessary to issue notice under Section 106 of the Transfer of Property Act for termination of contractual tenancy for the purpose of seeking possession under the provisions of the Karnataka Rent Control Act is not approved and the same is overruled. The other proposition as to forfeiture of tenancy under Section 111(g) of the Transfer of Property Act is affirmed as laying down the law correctly, in a case where tenancy is governed by the Transfer of Property Act only and not by the Act.
18. For the reasons stated above, this second appeal is allowed in the following terms :
(i) The decrees of the courts below in so far it awards possession of B Schedule property is set aside.
(ii) The finding as to existence of the relationship of landlord and tenant in respect of the suit premises between the plaintiff and defendants-1 to 3 is confirmed.
(iii) The decree of the lower appellate court in so far it holds that the defendants are thetenants of the suit premises and awards past mesne profits representing the arrears of rent is not disturbed.
(iv) It is made clear that in the light of these findings, now it is open to the landlord to seek possession of the suit Schedule B premises under the provisions of the Karnataka Rent Control Act.
(v) In the circumstances of the case, there will be no order as to costs in this appeal.
19. Before parting with this case, we consider it just and necessary to make the following observations :
The experience shows that in many H.R.C. cases, tenants take up a plea of denying the title of landlords and also set up title in themselves. Ultimately, those contentions are found to be baseless. These pleas are taken up in most eases only to prolong the litigation and as by raising such a plea, the tenant is not going to lose anything. On the contrary, he will gain lime. The effect of such contentions is that the proceedings get prolonged. Even after the order of eviction is passed, and some times even during the pendency of the eviction proceedings, suits are filed by the tenants claiming title in themselves and denying title of Ihe landlord and even setting up title in third parties. In order to curb such untenable contentions and to make the tenant to realise that such an untenable plea is going to cost him with the order of eviction and also to see thai the objects of the Karnataka Rent Control Act are given effect to, we are of the view that it is necessary to make a provision enabling the landlord to make it a ground for eviction in the event the denial of title of the landlord by the tenant is found to be not bona fide even if such a denial is made in the objection to the eviction petition filed under Section 21(1) of the Karnataka Rent Control Act. The principle of forfeiture on disclaimer is founded on the rule that a man cannot approbate and reprobate at the same time. In addition to this, when a tenancy of a contractual tenant purely governed by the Transfer of Property Aet can be forfeited and it can be terminated on the ground that he has denied the title of the landlord or has claimedtitle in himself, under Section 111(g) of the Transfer of Property Act, we do not see any justification why a statutory tenant governed by the Karnataka Rent Control Act should not be made to suffer an order of eviction on the same ground. In fact, such a provision is found in the Rent Acts of Andhra Pradesh and Rajasthan. Sub-sec. (2) of Section 10 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 provides as follows :
'A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied :
(vi) that the tenant has denied the title of the landlord or claimed a right of permanent tenancy and that such denial or claim was not bona fide, the Controller shall make an order directing the tenant to put the landlord in possession of the building and the Controller is not so satisfied, he shall make an order rejecting the application.'
Similarly, the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, also contains a provision which is as follows :
'13. Eviction of tenants.-- (1) Notwithstanding anything contained in any law or contract, no court shall pass any decree or make any order in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent thereof to the full extent allowable by this Act, unless it is satisfied.-
(f) that the tenant has renounced his character as such or denied the title of the landlord and the latter has not waived his right or condoned the conduct of the tenant; or'
In Majati Subba Rao's case, : AIR1989SC2187 , the Supreme Court has held that denial of title of the landlord by the tenant need not be anterior to the eviction petition. We are of the view that the State of Karnataka may also add one more ground to Section 21(1) of the Karnataka Rent Control Act, similar to Section 13(1)(f) of the aforesaid RajasthanRent Act enabling the landlord to secure possession of the premises. Such a provision will curb not only the unnecessary litigation, it will also eliminate an untenable defence thereby helps speedy disposal of cases and shortens the duration of the litigation.
20. A copy of this judgment shall be sent to the Chief Secretary, Government of Karna-taka, Bangalore, in view of the observations made above.
21. Order accordingly.