ORDER
B.V. Nagarathna, J.
1. This revision petition is filed by the landlady challenging the order dated 24.3.2006 made in revision rent No. 7/2000 by the Pri District Judge at Chitradurga. Originally, the petitioner herein had filed H.R.C. No. 3/93 before the Prl.Civil Judge (Jr.Dn.), Sagar. The same was allowed by order dated 10.12.1999 against which the respondent herein had preferred Revision Rent No. 7/2000 and by the impugned order, the eviction petition filed by the landlady was dismissed by allowing the revision petition. Being aggrieved by the said order, the landlady has preferred this revision petition.
2. For the sake of convenience, the parties shall be referred to in terms of their status before the trial court.
3. The petitioner claiming to be the owner of the schedule premises filed the eviction petition under Section 21(1)(a), (h), (j) and (o) and Section 21(C) of the Karnataka Rent Control Act, 1961 in H.R.C. No. 3/93 before the Prl.Munsiff at Sagar. According to her originally, the respondent had unauthorisedly constructed a thatched residential house in the petition schedule premises and was living there with his family on the site belonging to the Town Municipal Council, Sagar. That the respondent who was working as a peon in the Revenue Department was acquainted with the husband of the petitioner, one N.G. Keriyappa, who was working as a Revenue Surveyor in Sagar. That due to urgency and necessity of money, the respondent offered to sell away the petition schedule housess to the petitioner for a sum of Rs. 400/- on behalf of himself and his minor sons and a sale deed 14.7.1967 was registered on 15.7.1967 and the petitioner was put in possession of the same, it was also mentioned in the sale deed that the petitioner should get a sale certificate of the petition schedule site at her cost from the Town Municipal Council, Sagar and that the petitioner had paid the full sale consideration of Rs. 400/- to the respondent, in respect of the petition schedule property. That the petitioner applied to the Sagar Town Municipality for the grant of a sale certificate in the year 1968 and had obtained a sate certificate dated 16.1.1968. That after the said sale transaction, the respondent had taken the petition schedule house on tease from the petitioner on 1.1.1984 on a monthly rent of Rs. 150/- and that he had defaulted in the payment of rents since the year 1988 and that till 30.6.1992 the rent due was to the tune of Rs. 7,950/-. That the respondent had altered the house from thatched house into a Mangalore tiled roofing house without the consent of the petitioner for his convenience. That the respondent had got electrification to the petition schedule premises without the consent of the petitioner and that he had constructed another house of two ankanas of Mangalore tiled roofing house without the consent of the petitioner. That after retirement of the petitioner's husband they intended to stay in the schedule premises and therefore, required the scheduled house. That the tenancy was terminated from the midnight on 31.8.1992 and that the respondent had no right to continue in the schedule premises and hence, sought for eviction of the respondent.
4. In response to the notice issued by the trial court, the respondent appeared and filed his statement of objections denying the ownership of the petitioner in the schedule premises, without admitting that the thatched house had been converted into a tiled roofing house and that the premises belonged to the Revenue Department of Sannamane Village and not to the municipality, the respondent denied that he had sold the schedule property to the petitioner on 14.7.1967. He also stated that the Town Municipality had no right to execute or issue sale certificate in respect of a revenue site which was situated in Sannamane Village, it was also contended as false that the respondent had taken the premises on lease on 1.1.1984 from the petitioner and had agreed to pay a rent of Rs. 150/ -per month. The respondent denied the relationship cf landlord and tenant in respect of the schedule premises. It was, however, admitted that the electricity was obtained to the premises at his own cost and that the respondent himself had constructed the entire house having tiled roofing. Adverse possession was also claimed against the petitioner with effect from 14.7.1967 by way of additional objections. It was submitted that the petitioner and her husband were living at Bangalore, having their own house and that the hasband of the petitioner had his ancestral house at Talaguppa and that the respondent was living in the house constructed by him and the same was not granted by the Revenue Authorities or Municipal Authorities. Hence, dismissal of the petition was sought.
5. In support of her case, the petitioner examined her husband who was a GPA holder as PW1 and also examined two other witnesses as PWs.2 and 3 and got marked Exs. F-1 to P-19 and closed her side, respondeat examined his son as PW.1 and another witness as PW.2 and they got marked Exs.P-1 to P-25 and closed their side.
6. On the basis of the above material on void, the trial court framed following points for its consideration:
i) Is there any bonafide title dispute in respect of the petition schedule between the parties?
ii) Does the petitioner proves the landlord and tenant relationship between herself and the respondent?
iii) Does the petitioner further proves that the respondents are in arrears of rent and if so that they have not paid the arrears of rent within two months from the date of receipt of notice without sufficient reasons or cause?
iv) a) Does the petitioner requires the petition schedule premises for her bonafide use and occuaption?
b) Is partial eviction is permissible?
c) To whom greater hardship will be caused?
v) Does the petitioner proves that the petition schedule premises is reasonable and bonafide required for immediate purpose of demolition land reconstruction alleged in the petition?
vi) Does the petitioner proves that the tenant-respondent has erected a permanent structure without the consent of the petitioner on the petition schedule?
vii) Does the petitioner proves that the petition schedule premises was not used for the purpose for which it was let for a period of six months?
viii) What order of decree?
The tribunal answered Issue Nos. i, iv(b), v and vii in the negative and issue No. ii, in, iv(a) and vi in the affirmative and No. iv(c) in favour of the petitioner and accordingly, allowed the eviction petition under Section 21(1)(a), (h) and (o) of the Act and directed the respondent to hand over vacant possession of the petition schedule premises within three months from the date of the order.
7. Being aggrieved by the said order, the legal representatives of the respondent filed Revision Rent No. 7/2000 before the Prl. District Judge, Shimoga. By order dated 31.8.2002 the revision petition was held to have abated. Being aggrieved by the said order, W.P. No. 34596/2009 was filed before this court and the same was allowed and the same was allowed and the matter was remanded back to the revisional court. After hearing the parties, the revisional court framed the following points for its consideration:
i) is there any bonafide dispute as to the title of the landlady so also as to the existence of tenancy between the parties?
ii) Whether the petitioner proves that he is entitled for eviction of the respondents Under Section 21(1)(a) of the Act?
iii) Whether the petitioner is entitled for eviction of the respondents from the petition premises Under Section 21(1)(h) of the Act?
iv) Whether the petitioner is entitled for eviction of the respondents Under Section 21(1)(a) of the Act?
v) Whether the impugned order passed by the learned Civil Judge calls for interference at my hands?
vi) To what order?
The tribunal answered point Nos. 1 and 5 in the affirmative and point Nos. 2 to 4 as not surviving for consideration and by an order dated 24.3.2O06 allowed the revision petition and dismissed the eviction petition of the petitioner. Being aggrieved by the said order, the landlady has preferred this revision petition.
8. I have heard Sri. R.B. Wadashivappa, learned Counsel for the petitioner and Sri. R.V. Prakash, learned Counsel for the respondents.
9. According to the learned Counsel for the petitioner, the revisional court was not right in dismissing the eviction petition on the ground that there was no landlord-tenant relationship. That the documents produced by the petitioner regarding title to the house are the original sale deed executed by the deceased respondent in her favour and the sale certificate executed by the Municipality at Sagar in respect of the site and the assessment and khatha extracts, which prima facie establish title of the petitioner over the schedule property. No evidence by way of documents were produced by the respondent with regard to there being title in favour of any other person with regard to the schedule property. In fact the contents of Ex.P1 would make it apparent that the site initially did not belong to either of the parties, but subsequently, the petitioner obtained title over the same and hence the respondent could not deny the title of the petitioner. Merely because the respondent had paid tax for some period would not mean that the respondent was the owner of the schedule property. Under the circumstances he submits that the order of the revisional court be set aside and the order of the trial court be confirmed.
10. Per contra, it is submitted on behalf of the respondent that he was in possesion as an unauthorized occupant and though possessor/right was sold on 4.7.1967 by Ex.P2, he never parted with the possession. He has not paid any rents to the petitioner that Ex.P3 is not a valid document in the eye of law and that the revisional court was justified in holding that there was no relationship of landlord and tenant and thereby dismissing the eviction petition which does not call for any interference in this revision petition.
11. Having regard to the submission made by the learned Counsel on both side, the only point that would arise for my consideration is as to whether the revisional court was justified in dismissing the eviction petition filed by the petitioner herein.
12. From the material on record, it is not m dispute that initially neither the petitioner nor the respondent had title to the schedule property in question. It is admitted by both sides that the property belonged to the government and that the respondent was in unauthorized possession of the site (Bagar Hukum) and thereafter respondent put up a thatched house and the same was converted into a tiled roof. It is also not in dispute that Ex.P3 is a sale certificate issued by the Sagar Municipality in favour of the petitioner herein, though the said document is not admitted by the respondent.
13. The petitioner has let in evidence of her husband as PW.1 on the basis of power of attorney produced as Ex. P1. According to her the schedule property originally belonged to the Town Municipality and that the respondent had constructed a shed unauthorizedly. He sold the same property to the petitioner i.e., only the constructed portion; that FW. 1 was at the relevant point of time working in the Land Acquisition Office of Sharavathi Project and that the respondent was working as Peon in the said office. The respondent at that point of time expressed his intention to sell the house and proposed selling of the same. That on 14.7.1967 the document was executed and on 15.7.1967 it was registered for a consideration of Rs. 400/-, a sum of Rs. 150/- was paid on 14.7.1961 and that a sum of Rs. 200/- was paid at the time of registration on 15.7.1967 and that a sum of Rs. 50/- was to be utilized for obtaining sale certificate or registration in respect of the said property. On 15.7.1967 the respondent gave possession of the property to the petitioner on registration of the document which is marked as ix.P2. Thereafter Sagar Municipality issued sale certificate to the petitioner which is marked as Ex.P3 and the khatha endorsement issued by the Municipality is produced at Ex.P4 and the site assessment extract is at E.PS and the demand notice is at Ex.P6, the tax paid receipts are at Ex.P7. The endorsement issued by the President of the Municipality after change in khatha is at Ex.P8. Six tax paid receipts are produced at Ex.P9 to P14. PW.1 retired from government service and the same is proved by Ex.P15 which is a certificate and the relieving order is at Ex.P16.
14. According to PW.1 on 1.1.1984 respondent took die premises on a monthly rent of Rs. 150/-. Till 31.12.1978 respondent paid the rents regularly, but subsequently defaulted in the payment of rents. PW.1 was at that point of time posted at Hegadadevana Kote and taking advantage of his absence, the respondent converted the thatched roof premises into a tiled roof and constructed a shed in the back portion of the property without the consent of the petitioner. On 30.6.1996 a legal notice was issued regarding the arrears of rent as well as for seeking vacant possession of the premises and the acknowledgment of service of notice is at Ex.F17 and the office copy of the notice is produced at Ex.P18.
15. According to PW.1 in the absence of any other premises, the schedule premises is required for the residence of the petitioner and that the family would face the greater hardship if the schedule premises is not vacated as they were living in a leased premises and the lease of the said premises was come to an end in June, 1997.
16. In his cross-examination PW. 1 has stated that in the year 1973 he left Sagar. He has further stated that the respondent was not the title holder of the schedule site and that he purchased the house in the name of his wife. There is no document to show the payments of rents by the respondent.
17. That there is no document with regard to the tenancy between the parries and also there is no document in respect of the payment of rents. PW 1 in his cross-examination has however, stated that prior to the respondent entering into possession of the premises, the mother of PW. 1 was residing in the premises and that a he later died. He has denied that there was no relationship of landlord and tenant between the parties He has also stated that when Ex. P2 was executed by the respondent in favour of the petitioner, the respondent had stated that he would reside near his lands. In his further cross-examination PW.1 has stated that in 1984 in the presence of two peons by name Sanna Dyamaiah and Dodda Dyamaiah in the office, the agreement relating tenancy was finalized, however, the said persons had been transferred to Mandya.
18. The evidence of PW.2 and 3 with regard to tenancy between the parties is of no assistance to the petitioner, but PW.2 being the signatory of Ex.P-2, his evidence is vital regarding execution of Ex.P-2 by respondent PW.3 who was then working as a clerk at Taluk Office, Sager, knew the respondent and identified him at the Sub-Registrar's office at the time of registration of Ex.P2.
19. As opposed to the evidence of the petitioner, PW.1 in his evidence has stated that since the year 1956-57, the respondent has been in possession of the premises and that they have never been out of possession of the said premises since then. Initially on the schedule premises there was a thatched root construction and thereafter tiled roof construction was put up along with wall and other amenities by the respondent. It is also stated by RW.1 that the petitioner has never come near the schedule premises asking for rents and that the schedule premises belongs to the government and that the Municipality has not issued any Sale Certificate either in favour of the petitioner or in favour of the respondent. According to him, it is not true that since 1.4.1984, the respondent entered into possession of the schedule premises as a tenant and that from January 1988, there has been arrears of rent The respondent has never sold the schedule premises to the petitioner for Rs. 400/-, the respondent had put up construction on the site belonging to the government He has however admitted that respondent had soil super structure put up on the site belonging to the government to the petitioner, hut that site does, not belong to the petitioner According to RW. 1 the site belongs to Revenue Department of Saunamane village, and Ex.P2 is the site extracts the year 1993-94 with regard to the schedule property. According to RW.1, the tax in respect of the said property was being paid by the respondent and that Ex.R3 to R12 axe the tax paid receipts, but the said documents are in the name of the petitioner. Ex.R13 to R16 axe the four notices issued by the Town Municipality to the petitioner, that Ex.R17 to R19 are the notices issued to the petitioner for putting up an unauthorized construction. Ex.R20 is a document showing details of RW.1 as a voter called Enumeration Card. Similarly Ex.R21 to R25 documents were also got marked by RW. 1 pertaining to the schedule premises.
20. In his cross-examination RW.1 has stated that since the schedule premises did not belong to the petitioner there was no necessity of seeking the permission of the petitioner for putting up certain construction. With regard to Ex.P2 dated 14.7.1967 which was registered on 15.7.1967, RW.1 has denied the signature of his father on the said documents. In fact RW.1 has denied the signature of his lather even the statement of objections and additional objections filed in the said case. The evidence of the witness is one of total denial as far as the schedule premises being sold by the respondent to the petitioner as well as regarding tenancy. He has denied that from 1.1.1984 the respondent entered into possession of the premises as a tenant on a monthly rent of Rs. 150/ - that there was no relationship of landlord and tenant between the parties. However, he has admitted that Ex.R3 to R5, R11 to R12 and R14 to R19 bear the name of the petitioner and his name does not find a place in the Voters list at Ex.R20. RW2 has deposed as a neighbour of respondent but his evidence is not of much assistance to respondent.
21. From the material on record, it is noticed that by virtue of Ex.P-2, the respondent is the seller of the petition schedule house and the petitioner is the purchaser and the validity of the sale deed Ex.P-2 has not been challenged before any competent court. The documents produced by the petitioner regarding the title to the property are the original sale deed Ex.P-2 executed by the deceased respondent in her favour and the sale certificate executed by Municipality, Sagar in favour of the petitioner and the assessment and khatha extract which prima facie establish title of the petitioner over the schedule property. It is also of significance that though initially the petitioner had no title over the schedule site as only the constructed portion was sale by respondent to petitioner, subsequently, a sale certificate was issued by the Municipality, which is at Ex.P3 confirming the title over the site in the petition. In fact in Ex.P2 which is the sale deed, there is a statement that schedule property is situated within the Municipal limits and that the sale certificate has to be obtained from the Municipality. Ex.P2 is a registered document dated 14.7.1967 under which the possessory title of the respondent was sold to the petitioner as the respondent had put up an unauthorised construction on the site belonging to Sagar Municipality. In the said document it is clearly stated that a sum of Rs. 50/ - was to be paid by the petitioner to the Municipality to get the Sale Certificate issued in the name of the petitioner and a sum of Rs. 150/ - was received. As consideration and a sum of Rs. 200/- was to be received as consideration at the time of registration. There is a clear statement that possession was handed over to the petitioner by virtue of the said document As per Ex.P3 it is apparent that by virtue of a Government Order dated 4.9.1956 the schedule site which initially was a gomal land was transferred to Sagar Municipality and by resolution No. 17 dated 23.2.1966 it was resolved to make an absolute sale in favour of the petitioner and 16.1.1968 is a registered document which also notes that a sum of Rs. 134.75 was received by the Municipality on 4.1.1968 and possession of the house was also handed over on 16.1.1968. The said document is signed by the President of the Sagar Municipality and two other councilors and is attested by two witnesses.
22. Therefore, initially the respondent did not have any right or title in respect of the schedule site and the respondent was in unauthorized occupation of the same by putting up a temporary structure. The right to possession of the said property was transferred by the respondent to the petitioner, though the respondent had no title to the said property. The clear indication was that the petitioner ought to get the possession of the said property regularized by getting the title transferred in her name from the Municipality; accordingly, a sum of Rs. 50/ - was set apart for that purpose in the total consideration amount paid under Ex. P2. On the said basis the petitioner applied to the Sagar Municipality and by virtue of Ex.P3 the petitioner got the title as well as the possession of the schedule premises regularized in her name, which document is not adverted to by the revisional court The following documents are also relevant in the context of petitioner's title. Ex.P4 is the endorsement issued by TMC, Sagar to the petitioner, which shows that the petitioner is the owner of the schedule property and Ex.P-5 is the assessment extract of the schedule property while Ex. P6 is the Payment Receipt which also reveals the name of the petitioner, while Ex.P7 is the receipt issued by the Municipality with regard to the site valuation in respect of the petition schedule premises pursuant to issuance of sale certificate. Ex.P8 is the endorsement given by the Municipality with regard to change of khatha in favour of the petitioner, while Ex. P9 to P14 are tax payment made by the petitioner to the Municipality in respect of the schedule premises, Ex.P4 to P14 also clearly support the title of the petitioner over the schedule premises.
23. However, the respondent's case is that he had constructed a house in the revenue land bearing Sy. No. 20 of Sannamane village. But in view of the express recitals in Ex.P2 executed by the respondent in favour of the petitioner, the respondent cannot contend otherwise. In fact Ex.R3 to P19 which are the tax paid receipts issued by the Municipality from 1970 to 1989 and the notices from Municipality from 1973 to 1976 clearly reveal the name of the petitioner in the same, though according to the respondent, the payment was made by the respondent and his wife and son. In fact Ex.R2 is the KTC extract of Sy.No.20 of Sannamane village which discloses that the property was acquired by the Municipality from the Revenue Department under whose jurisdiction it was treated as gomal land. But the name of the respondent is not found in the said document either in the title holders column or in the column with regard to possession. However, the acquisition of the said property by the Municipality is established Ex.R21 and R22 which are the tax paid receipts of the deceased respondent to the Municipality for the years 1963 to 1967 also reveal that the respondent had an interest in the schedule premises prior to the execution of Ex.P2 and subsequently, the petitioner's name appears. Under the circumstances the dispute raised by the respondent with regard to the Title of the petitioner viz-a-viz the schedule premises is untenable. Hence the trial court rightly held in favour of the petitioner and the revisional court committed an error in answering the said issue against the petitioner and thereby dismissing the eviction petition.
24. From a reading of the above documents it is established that the petitioner has supported her contention regarding her title to the schedule premises with the help of documentary evidence but the respondent though denies title of the petitioner to the said premises has not corroborated his evidence with any documentary evidence. In fact, no contra evidence by way of documents have been produced by the respondent to dis-claim the prima facie title of the petitioner in respect of the suit schedule property. The initial title in the Sagar Municipality is affirmed by the respondent also who has also not set up any title in his name. Under the circumstances it is held that the petitioner is the title holder of schedule premises. Hence, the finding of the Revisional Court on this issue is reversed, while the finding of the trial court is confirmed.
25. The next issue is with regard to the existence of landlord-tenant relationship between the parties. It is the case of the petitioner that the respondent is a tenant in respect of the schedule premises with effect from 1.1.1984 on a monthly rent of Rs. 150/- and that the respondent paid rents up to 31.12.1987 and not from January 1988 and the period thereafter. According to the petitioner, the respondent constructed a roof on the schedule premises by removing the thatched roof and that he has also constructed a shed on the backside of the house. Initially a notice was issued on 30.6.1986 regarding arrears of rent and the same was replied by stating that respondent was not a tenant of the schedule premises. The respondent had also admitted that he had removed the roofing and had put up a tiled roofing and also constructed entire structure without taking the permission or consent of the petitioner. According to the trial court in the absence of any evidence with regard to the respondent having title in the schedule premises and the respondent not contending that he is in possession of the premises in any other capacity, the evidence of PW.1 that the respondent is living in the schedule premises as a tenant would have to he accepted.
26. The trial court on the basis of Ex.P2, P3, P5, P6, P7, P9 to P14 and Ex.R3 to R19 held that the petitioner was the title-holder and that the respondent was in arrears of rent since January 1988 and that the schedule premises was inquired for bonafide use and occupation of the petitioner and allowed the petition under Section 21(1)(a), (h) and (c) white dismissing the petition under Section 21(1)(j).
27. As far as the nature of possession of the respondent in respect of the schedule premises is concerned and with regard to there being landlord tenant relationship between the parties, the evidence of the witnesses would have to be looked into before answering on the said issue. According to the petitioner the respondent took on tease the schedule premises from 1.1.1984 on a monthly rent of Rs. 150/- and the lease commenced from the first of every month and ended on the last day of the month. That since January 1988 up to end of June 1992 the respondent has been in arrears of rent to an extent of Rs. 7,950/ -. In response to the said legal notice dated 5.7.1992 which is produced as Ex.P17, P19, reply was issued on behalf of the respondent on 9.7.1998. According to the respondent, the petitioner had no right, title of interest in respect of the schedule premises and that the respondent was not a tenant of the petitioner, that the respondent was in possession of the premises for nearly fifty years, hence there was no question of the respondent handing over vacant possession of the premises to the petitioner. While on the other hand denying the execution of Ex.P2, it was also contended by the respondent that despite the execution of Ex.P2 by the respondent in favour of the petitioner, since the respondent continued to be in possession of the schedule premises, the respondent had perfected his title to the schedule premises by virtue of the doctrine of adverse possession.
28. From the material on record what has to be considered is the oral evidence of the parties with regard to the establishment of landlord tenant relationship between the parties, in the sense that while it is established that the petitioner had acquired title in respect of the schedule premises by way of regularization, the respondent entering into possession with effect from 1.1.1984 as a tenant is not supported by any documentary evidence. Further the case of the respondent is that even after 14.7.1967 the respondent continued to remain in possession of the premises and on that basis adverse possession has been claimed by the respondent. But the said stand of the respondent, is not correct as it is clear that the respondent initially did not have any title to the schedule site and that after Ex.P2 was executed by the respondent in favour of the petitioner only, possession was handed over to the petitioner, as respondent could not convey any title to the petitioner. This would prima facie support the contention of the petitioner that after petitioner had taken possession from the respondent in the year 1967, the respondent entered into possession of the premises with effect from 1.1.1984 only as a tenant as petitioner has also stated in his evidence that as per ix.P2 possession was given by the respondent to the petitioner and thereafter the mother-in-law of the petitioner i.e., mother of PW.1 resided in the said premises and after her death, the respondent was inducted as a tenant in respect of the premises in question. The respondent has not produced any evidence to show in what capacity he continued to reside in the premises, after execution of Ex.P2, wherein he had handed over possession of the premises in the year 1967 itself to the petitioner. The assertion of the respondent is contrary to his document at Ex.P2 and the other exhibits which are in favour of petitioner.
29. As per the Karnataka Rent Control Act, 1961, the definition of landlord under Section 3(h) does not envisage ownership in respect of the premises under the tenancy as a landlord who is not a owner of premises is entitled to seek eviction of the tenant. But the creation and existence of landlord tenant relationship is a sine qua non for the court to assume jurisdiction under the Rent Control Act. In the absence of tenancy between the parties, a person cannot maintain a petition for eviction under the Act Therefore, white answering on the two issues the trial court answered in favour of the petitioner not only on the question of title to the schedule premises, but also on the question of the relationship of landlord and tenant between the parties. However, the revisional court answered that there was a bonafide dispute as to the title of tae petitioner in respect of the schedule premises and hence on that basis dismissed the eviction petition tiled by the petitioner without going into the other issues regarding the relationship of landlord and tenant between the parties as well as on the entitlement of the petitioner to seek eviction of the respondent If the revisional court had considered landlord and tenant relationship between the parties in the first instance and on the basis of there being a relationship would have answered the other issues, would have been considered. However, in the absence of an answer as to the existence of relationship of landlord and tenant between the parties by the revisional court and the bonafide dispute as to title being answered in the affirmative and not taking up the other issues for consideration on the ground that they did not survive for consideration and thereby dismissing the eviction petition is not the correct approach of the revisional court.
30. As far as the denial of title by the tenant is concerned, the dispute, if not a complicated one can be decided by the court under the Act A question regarding dispute of title is complicated one or not is a mixed question of a proven fact. The nature of the plea, facts giving rise to such a plea, genuiness of the plea, material placed by the parries and various circumstances of the case, will be taken into consideration on this question. If it is found that there is a bonafide dispute between the parties as to the existence of such relationship between the parties, the court exercising special jurisdiction cannot decide the question. For instance, where a sale deed is required to be proved in the context of the title of the landlord, the same has to be proved by the executant along with the attestors of the said deed also. In eviction proceedings, a tenant cannot question the transaction between the landlord and the third party, which has conferred title on the landlord. In fact, the validity of the title to the property where registered sale deed is in existence and which has not been challenged in any suit cannot be questioned by the tenant.
31. As far as adjudication of the dispute regarding landlord-tenant relationship is concerned, the Karnataka Rent Control Act has not described any particular mode or form of creation of a relationship of landlord and tenant. However, in the absence of there being a landlord-tenant relationship, the provisions of the Rent Control Act would not apply. Under the circumstances, the general law i.e., the Transfer of Property Act which govern the mode of creating a relationship of laud bid and tenant would have to be taken into consideration. When the relationship is disputed, the Kent Court has to adjudicate upon the relationship and pass appropriate orders and cannot simply direct the parties to Civil Court merely because there is denial of landlord-tenant relationship by the tenant. A simple denial of relationship cannot oust the jurisdiction of the court under the Act because the simplest thing would be for a party to deny the relationship of landlord and tenant. In such circumstance, the court constituted under the Rent Act has to determine the relationship of landlord and tenant. The denial of relationship by a tenant should be examined by the court by looking into the record to find out whether such denial is bonafide. As the said issue is one of fact requiring evidence to establish the relationship, the question of relationship between landlord and tenant can be treated as a preliminary issue and thereafter the other issues have to be dealt with. The court also has to find out if the denial of relationship by the tenant is untenable or frivolous and give a finding as to whether the Rent Court to precluded from exercising its jurisdiction under the Act Hence, the jurisdiction of the court constituted under the Act cannot be invoked unless there exists the relationship of landlord and tenant, but mere denial of relationship does not invoke jurisdiction of the court constituted under the Act and the same may be determined as the preliminary issue or tried along with other issues depending upon the facts and circumstances of the case.
32. The citations referred to at the Bar are as follows. In the case of Pratapsingh and Ors. v. Jaibunnisa Begum and Anr. reported in AIR 1989 Kar 70 (DB) it was held that the plea as to title of the landlord, if found to be bonafide and complicated, results in refraining of the exercise of jurisdiction under the Act and therefore, the said plea goes to the root of the jurisdiction. In such cases it will be within the judicial discretion of the court to allow a party to put forth a 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 tight of the circumstances of the cases prima facie support the plea. Therefore, the revisional court has the jurisdiction to adjudicate on the question of title of landlord if on the material on record, a finding can be given and so also a finding given on the said issue by the trial court can be corrected at the stage of revision
33. In the case of Mohammed Ibrahim and Ors. v. Mahabaobbi reported in 1963 (2) M LJ 250 it has been held that whenever there is a complicated dispute as to the title of the landlord or as to the existence of the tenancy, the court functioning under the Act has power to refer the parties to a suit. In the said decision there was a serious dispute between the parties with regard to a sale made in respect of the house property to the respondent therein and whether the first petitioner was a tenant under the respondent. Under such circumstances this court directed the parties to establish their rights in such manner as they found it possible to do so in a properly instituted suit. In the instant case however, the issue regarding question of title of the petitioner vis-a-vis the schedule premises is not a complicated one but the issue regarding the relationship between the parties is not answered at all by the revisional court while the trial courts finding on the issue is confirmed herein.
34. In the case of Rukamoddia Uastagirsab v. Basawwa and Ors. reported in AIR 1974 Mys 46 it has been held that the court functioning under the Rent Control Act, 1961 has to settle the jurisdictional fact namely the existence of landlord tenant relationship between the parties and is competent to decide even disputes relating to the title of the landlord provided that such disputes are not complicated and are absolutely essential to the decision of the jurisdictional fact In the said case where the title of the landlord to the premises was questioned and the tenant set up his own title as owner, it was held that the dispute relating to the title of the landlord involved the complicated questions of law and as such it was in the interest of justice, the question to be settled in a properly instituted suit and not in a summary proceeding.
35. While applying the above decisions to the facts of the present case, the petitioner has title to the premises on the basis of Ex.P2 and F3. It is significant that the respondent has not set up title in himself, but on the other hand has admitted that he was in unauthorized occupation of a premises on a site belonging to the Municipality. The said plea, while juxtaposed with the contents of Ex.P2 and P3, the details of which are referred to above, would make it apparent that the respondent's dispute regarding the title of the petitioner is untenable and the respondent has also failed to prove that the said title vested with any other person. Considering the fact that the petitioner produced Ex.P2 and P3 apart from other documentary evidence, in order to prove her title in respect of the schedule premises would mean that the dispute raised by the respondent regarding the petitioner's title to the premises did not involve any complicated question of fact since it is not the case of the respondent that the documents in question particularly Ex.P1 and P3 were not valid documents. Hence this is not a case where complicated dispute as to title of the landlord/petitioner had to be referred to the civil court for adjudication and the trial court was justified in giving a finding on the petitioner's title.
36. In the case of Mahabir Prasad Jain v. Ganga Singh reported in : AIR1999SC3373 it has been held that even if there is exclusive possession of a party in respect of a schedule premises, that would not give rise to any presumption of tenancy. In the absence of there being any evidence by the respondent as to in what capacity the respondent had possession of the premises in question, particularly, execution of Ex.P2, in my view, the trial court was right in holding that there existed relationship of landlord and tenant between the parties. Since the revisional court has not adverted to this aspect of the matter, the finding of the trial court on this aspect is considered and confirmed.
37. For the aforesaid reasons, the revision petition is allowed and the order of the revisional court is set aside by confirming the order of the trial court, without any order as to costs.