ORDER
The Court
1. This is tenants' revision petition under Section 115 of the Code of Civil Procedure against the order of eviction passed on the ground of sub-letting by the Rent Court in H.R.C. No. 26 of 1977 and confirmed by the Revision Court in C.R.P. No. 13 of 1982.
2. The facts leading to the filing of the present revision petition are as under:
3. Respondents herein are the landlords. They had leased an agricultural land measuring 3 acres 25 guntas bearing Sy. No. 61/2 situated atHaveri Town under a registered lease deed dated 14-7-1926 for a period of 50 years on a yearly rent of Rs. 100/-. The lease deed 'permitted the tenants to put up a 'Ginning Factory' at their cost, after obtaining the necessary permission, and at the end of the lease period, the lessees were permitted to remove all constructions made by them', when they handed over the vacant possession to the lessors-landlords herein.
4. During the subsistence of the lease, the Karnataka Rent Control Act, 1961 (hereinafter called 'Act' for brevity) came into force, which governed the relationship of the landlord and tenant in the matter of evictions and other matters provided therein.
5. After coming into force of the Act, the landlords filed an eviction petition against the tenants for self-occupation under Section 21(1)(h) in H.R.C. No. 26 of 1977 on the file of the Munsiff, Haven. The said petition came to be dismissed on 13-11-1981. Aggrieved by the said order, the landlords filed a rent revision petition under Section 50 of the Act in C.R.P. No. 13 of 1982 on the file of the District Judge, Dharwad. During the pendency of the said revision petition, landlords had file an I.A. No. IV under Order 41, Rule 27 of the Code of Civil Procedure for leading additional evidence. The Revision Court by its order dated 21-3-1985 passed an order on I.A. No. IV as under.-
'The subsequent event alleged is that the suit premises have been sub-let to one toddy contractor. This subsequent event is to be proved by the party alleging it. Both the learned Counsels have submitted the lower Court may be directed to take evidence on I.A. No. IV and give its findings and thereafter the main matter may be heard'.
6. Accordingly, the Appellate Court allowed I.A. No. IV. While keeping the civil revision petition on its file, and directed the lower Court to give a finding on the question 'whether the tenants have sub-let the premises', after permitting the parties to lead additional evidence.
7. The matter thereafter, was again taken up by the Trial Court in pursuance of the order of remand and the parties also led additional evidence on the question of sub-letting. The Trial Court by its order after considering in detail the evidence led by the parties has held that the tenants have sub-let the premises to one Balaji Enterprises for running a toddy shop. Thus, they are liable to be evicted under Section 21(1)(f) of the Act and sent back the report to the Revision Court.
8. The Revision Court after the receipt of the report and after hearing the parties, agreed with the findings of the Trial Court and held that the tenants are guilty of sub-letting the premises to one Balaji Enterprises-toddy contractor. Therefore, liable to be evicted under Section 21(1)(f) of the Act.
9. These orders are challenged by the tenants.
10. Shri Subhash B. Adi appearing for the revision petitioners-tenants firstly contended that what was leased in the year 1923 was an agricultural land. It is therefore not 'premises' within the meaning of Karnataka Rent Control Act: He elaborated by contending, the leasedproperty was an agricultural land, when the lease deed was made, and though on the date of filing of the petition for eviction, the said property was not used for agricultural purpose, still it was an agricultural land and not a 'premises' within the meaning of Section 3(n) of the Act as according to him, the nature of the land 'when leased' is the determining factor. The eviction petition, therefore, was not maintainable.
11. There is no merit in this contention.
12. 'Premises' has been defined under the Act under Section 3(n) as follows.-
'Premises' means,
(i) a building as defined in Clause (a);
(ii) any land not used for agricultural purposes'.
13. Admittedly, the land leased was not used for 'agricultural purposes' but for running ginning factory, after obtaining permission, when the eviction petition was held. The Full Bench of this Court in Govind Naik G. Kalghatagi v. West Patent Press Company Limited, has held, interpreting Section 3(n) as follows.-
'A property which was an agricultural land at the time of letting and which ceased to be agricultural land on the date of the petition for eviction is 'premises' within the meaning of Section 3(n) attracting the provisions of Section 21'.
This decision conclusively answers the contention.
14. Shri Subhash B. Adi nextly contended that there is no express prohibition under the terms of the lease deed, Ex. P. 1, executed by the landlords on 26-7-1927 for sub-leasing the property. If so, the tenant has a statutory right under Section 108(j) of the Transfer of Property Act to sub-lease the premises and the Act of sub-lease complained by the landlord is 'when the contract of lease was subsisting'. Hence, the tenant cannot be held guilty of sub-leasing. The learned Counsel read to me the terms of the lease, Ex. P. 1 and the Section 108(j) of the Transfer of Property Act and the decision of this Court in Jivaji alias Balasaheb Venkatesh Anikhindi v. Sadashiva Rao Ramachandra Rao Pote and Ors. and that of Shree Chamundi Mopeds Limited v. Church of South India Trust Association, Madras, in support to the said contentions.
15. Countering this argument, Shri B.S. Keshava Iyengar, the learned Counsel appearing for the landlord contended by reading Section 23 of the Karnataka Rent Control Act and also the decision of the Supreme Court in V. Dhanapal Chettiar v. Yesodai Ammal, that after coming into force of the Karnataka Rent Control Act in the light of the proviso to Section 23 of the Act, unless the lease deed 'expressly permits' the tenants to sub-lease, the tenants cannot have recourse to Section 108(j) of the Transfer of Property Act. There is no express permission granted to the tenants under the terms of lease deed, Ex. P. 1 for the tenant to sub-lease. Hence, tenants are guilty of sub-lease.
16. In my view, the arguments of Shri B.S. Keshava Iyengar deserves to be accepted for the following reasons.-
Section 23 of the Karnataka Rent Control Act prohibits the tenant from sub-leasing the leased property after the commencement of Part V of the Act. The Act came into force on 16-11-1961. Section 23 of the Act reads as under.-
'(1) Notwithstanding anything contained in any law, but subject to any contract to the contrary, it shall not be lawful after the coming into operation of this part, for any tenant to sub-let whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein:
Provided that the State Government may, by notification permit in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in the notification:
Provided further, that nothing in this section shall apply to a tenant having a right to enjoy any premises in perpetuity.
(2) Any person who contravenes the provisions of Sub-section (1), shall, on conviction, be punished with fine, which may extend to one hundred rupees'.
17. A close analysis of Section 23 manifests that the non obstante clause viz., 'Notwithstanding anything contained in any law' clearly excludes the application of any provision of any other law including the provisions of Section 108(j) of the Transfer of Property Act, from the application provisions of the Karnataka Rent Control Act i.e., to say that, even though there is a statutory right to the tenant to sub-lease, if there was no express prohibition in the lease deed, under Section 108(j) of the Transfer of Property Act. Such a statutory right is taken away by the operation of the 'non obstante clause' of Section 23 of the Act and if the tenants were to sub-lease, the leased property or a portion of it after coming into force of the Act, he cannot escape the liability from being evicted except under three circumstances, provided by Section 23.
'(1) Where a contract of lease 'expressly granted the right to the tenant to sub-lease' not by implication'.
18. The other two circumstances being stated under the two provisos of Section 23 are not concerned in this case. Hence, omitted.
19. The question as to 'How far the provisions of Transfer of Property Act apply in matters covered under by the Rent Control Act came up for consideration before the Hon'ble Supreme Court in the case of V. Dhanapal Chettiar, supra, the Constitution Bench of the Supreme Court consisting of seven Judges while considering the application of theprovisions of Transfer of Property Act, to the Karnataka Rent ControlAct has held as follows.-
'Under the Transfer of Property Act the subject of 'Leases of Immovable Property' is dealt with in Chapter V. Section 105 defines the lease, the lessor, the lessee and the rent. Purely as a matter of contract, a lease comes into existence under the Transfer of Property Act. But in all social legislations meant for the protection of the needy, not necessarily the so-called weaker section of the society as is commonly and popularly called, there is appreciable in road on the freedom of contract and a person becomes a tenant of a landlord even against his wishes on the allotment of a particular premises to him by the authority concerned. Under Section 107 of the Transfer of Property Act a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. None of the State Rent Acts has abrogated or affected this provision. Section 108 deals with the rights and liabilities of lessors and lessees. Many State Rent Acts have brought about considerable changes in the rights and liabilities of a lessor and a lessee, largely in favour of the latter, although not wholly. The topic of Transfer of Property other than agricultural land is covered by Entry 6 of List III in the Seventh Schedule to the Constitution. The subject being in the Concurrent List, many State Rent Acts have by necessary implication and many of them by starting certain provisions with a non obstante clause have done away with the law engrafted in Section 108 of the Transfer of Property Act except in regard to any matter which is not provided for in the State Act either expressly or by necessary implication'
.(emphasis supplied)
20. Therefore, after the coming into force of Section 23 of the Act, unless there is an 'express permission' in the lease deed to sub-let (which was the reverse position earlier viz., if there was no prohibition under the lease deed tenant had a statutory right to sub-lease) tenant has no right to sub-lease:
21. The decision referred to by Shri Subhash B. Adi of this Court in Jivaji alias Balasaheb Venkatesh Anikhindi's case, supra, is also in conformity with the said view of the Supreme Court so also is the decision of the Supreme Court in Kirtikumar Maheshankar Joshi v. Pradip kumar Karunashanker Joshi.
22. Reverting to the facts in this case, admittedly, the lease deed, Ex. P. 1 has not expressly provided for the tenant the 'Right to sub-lease the premises' and so also admittedly, the act of sub-lease complained of by the landlord was at a point of time much after coming into force Part 5 of the Karnataka Rent Control Act, 1961 and also the Act. Therefore,Section 23 of the Act, applies to the facts of the case. By that section, he is debarred from sub-leasing,
23. Shri Subhash B. Adi, the learned Counsel nextly contended that in the original eviction petition filed by the landlord on 26-10-1977, he had nowhere pleaded that the tenant had sub-leased the premises. Therefore, any amount of evidence led by the parties without a specific plea in this regard cannot be looked into. There is no merit in this contention also. I have extracted above, the orders passed by the Revision Court on I.A. No. IV. It is only when both the tenant and the landlord agreed before the Revision Court that 'The Trial Court should be directed to give a finding on the question of sub-lease', the Revision Court sent the file to the Rent Court calling for a finding. This order was passed in the year 1995. The tenant did not challenge the order per contra consented for the order. After the matter went back to the file of the Rent Court, both the landlords and the tenants led evidence only on this point fully utilising the opportunity and elaborately argued on that point in extenso. After losing the battle before the Rent Court and the Revision Court, the tenant now cannot come out with such a plea. In the first place, the order passed on I.A. No. IV was a consent order and therefore has become final and binding. Secondly, the tenant cannot complain of any prejudice for the reasons stated above.
24. Shri Subhash B. Adi nextly contended that the landlord has not proved that there is a parting of exclusive possession by the original tenant in favour of sub-lessee. Therefore, the findings are liable to be set aside. The learned Trial Judge has extensively dealt with this point. He has held that the evidence of the landlord, P.W. I and that the evidence of the Assistant Executive Engineer, P.W. II, Excise Inspector, P.W. III, Chief Officer of the Town, P.W. IV and the Sub-Contractor of Toddy, P.W. V, indicates that the sub-lessee Balaji Enterprises by its proprietor Rajamallaiah through himself and also by his power of attorney holder Ramulu had made applications for sanction of power in the schedule premises for grant of licence to run a toddy shop. The sub-lessee had applied to the Chief Officer of Municipality to run the toddy business, besides, also had sought for permission to put up a temporary construction for the business which acts clearly demonstrates that Balaji Enterprises was put in an exclusive possession of the premises and the original landlord had parted with the possession. The Appellate Court also concurred with the said view. It is well-established that the dealing between the tenant and a sub-tenant more often is done clandestinely and no evidence would be available for the landlord to prove the sublease. It is therefore, from the surrounding circumstances, the Court comes to the conclusion that the tenant is guilty of sub-lease, unless the tenant explains by convincing evidence, why a stranger was put in possession of the property. That has not been done in this case. Therefore, there is no merit in this contention also.
25. Lastly, Shri Subhash B. Adi contended that the superstructure on the leased premises is admittedly built by the tenant. Therefore, he is the owner of the premises. By sub-leasing the same, he has only exer-cised his acts of ownership and cannot be found guilty of sub-lease as contemplated under the provisions of Section 21(1)(f) of the Karnataka Rent Control Act. In answering this contention, Sri B.S. Keshava Iyengar, the learned Counsel submitted that it is not merely the constructed building but also the original leased premises was also sub-leased. What was leased to Balaji Enterprises was a portion of vacant land wherein the sub-lessee had put up constructions. Hence, the tenant is guilty of sub-lease. The learned Counsel Shri B.S. Keshava Iyengar read to me Ex. P. 11, the letter written by tenant. This letter discloses that the tenant had written on 2-5-1977 to the sub-lessee Balaji Enterprises that the vacant land situated in Ginning Factory CTS 3247, may be used by the sub-tenant for running a toddy shop and for the said purpose he may erect a depot and also put up sheds for the workers to reside which has also been taken note of by the Courts below. As rightly contended, the complaint made by the landlord and the evidence discloses that the tenant has sub-leased the vacant land also which was the subject-matter of the original lease. Under Section 21(1)(f) of the Act, which reads.-
'(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 premises on one or more of the following grounds only, namely.-
(a) to (e) xxx;
(f) that the tenant has unlawfully sub-let the whole or part of the premises or assigned or transferred in any other manner his interest therein and where the sub-letting, assignment or transfer has been made before the coming into operation of this part (except in respect of sub-letting, assignment or transfer to which the provisions of Section 61 are applicable), such sub-letting, assignment or transfer has been made contrary to any provision of law then in force; or'.
26. Even if a portion of the leased premises is sub-leased, the tenant becomes liable to be evicted from the entire lease premises. In view of the said findings, I do not think it is necessary for me to consider the correctness of the preposition that the tenant who builds a superstructure at his cost on the lease premises will always be the owner of the superstructure. There is no merit in this contention. No other points are urged.
27. I do not find any merit in this revision petition. Revision petition is dismissed. No costs.
28. At this stage, the learned Counsel for tenant contended that the revision petitioners may be granted two years time to vacate the premises. This request is vehemently opposed by Shri B.S. Keshava Iyengar. Considering the facts of the case, it is reasonable to grant one year time for the tenants to quit and deliver the vacant possession of the premises, subject to the following conditions.-
(a) That each of the revision petitioners shall file an affidavit undertaking to voluntarily vacate the premises. The affidavit shall be filed within four weeks from today after serving a copy on the other side.
(b) That they shall pay the monthly rents regularly as and when it falls due without default.
(c) That they should not sub-lease or sub-let the premises.
29. The learned Counsel for the landlords is permitted to withdraw the rents deposited by the tenants.