Judgment:
ORDER
A.S. Pachhapure, J.
1. The petitioner has challenged the concurrent findings of the Courts below rejecting her application filed under Section 21(1)(a)(h)(f) and (j) of the Karnataka Rent Control Act, 1961 (hereinafter called as 'the 1961 Act' for short), confirmed in Rent Revision 16/1985 by the District Judge, Tumkur.
2. The facts relevant for the purpose of this revision are as under:
The petitioner herein filed a petition under Section 21(a)(h)(f) and (j) of the Act of 1961 before the Trial Court seeking eviction of the respondent herein and to grant the vacant possession of the petition premises bearing Khatha No. 2004/1981, Door No. 65, Ravi Talkies Road, KR Extension, Madhugiri Town, Madhugiri, Tumkur District, described in the schedule to the petition.
The petition premises belong to Sri. K.G. Venkatararnana Setty who died on 20.11.1980 without any issues and leaving behind the petitioner, his sister, as his only heir, as his wife had predeceased him. It is averred that the petition premises was let to the respondent on a monthly rental of Rs. 150-00 in the year 1979. The respondent had not paid the rent of the premises from 1.11.1979 prior to the death of the brother of the petitioner deceased Sri. K.G. Venkatararnana Setty and even subsequent to his death. Thereby, the petitioner issued a notice dated 28.03.1981 to the respondent by Registered Post and it returned with an endorsement as 'addressee refused'. The petitioner had also sent a notice under certificate of posting and the respondent did not comply the said notice nor replied the same. The petitioner alleged that the respondent is due in a sum of Rs. 2,850-00, the arrears of rent upto the end of 30.05.1981 and thereby, sought eviction on the grounds under Section 21(1)(a)(h)(f) and (J) of the 1961 Act.
The petition premises was said to be in dilapidated condition. There were large cracks developed in the building and a portion of the premises had collapsed and the remaining portion was in a dangerous condition and therefore, the petitioner intended to demolish the premises and to put up the construction in the place of the dilapidated premises, to suit her requirements and to house her grand son, who was practicing as an Advocate at Madhugiri.
It is also averred that the respondent had sublet the portions of the premises to different other persons to enrich himself by taking more rent and the petitioner also sought the possession of the premises even on this ground as well. It is also averred that the respondent had made alterations without the permission from the local authority and the petitioner and on these grounds, sought for eviction from the petition premises.
The respondent who appeared before the Trial Court filed his objections statement admitting the fact that the petition premises was owned by Sri. K.G. Venkataramana Setty and that he died in the year 1980. He did not admit the averments that the petitioner is the legal heir of the deceased. He denied the relationship of landlord and tenant between the petitioner and himself and all other averments with regard to the rental of the premises, the arrears due and the demand made. It is his specific case that he had agreed to purchase the petition premises from the deceased Sri. K.G. Venkataramana Setty, who had agreed to sell the same and that major portion of the sale consideration was paid to him. He also asserts that the deceased had executed a Will dated 5.8.1979 while he was in sound and disposing state of mind and in the said Will, he had admitted the receipt of the consideration and the respondent also claimed that the said Will was attested by the witnesses in the presence of the deceased and the attestors. As per the terms of the Will, the balance consideration of Rs. 15,000/- was due and that an amount of Rs. 5,000/- was to be spent for the obsequies of the deceased after his death and the remaining Rs. 10,000/- was to be paid to the petitioner, who had to execute a sale deed in favour of the respondent. In the circumstances, the respondent averred that the petitioner is entitled to a sum of Rs. 10,000/- as per the Will executed which has been registered and in the circumstances, it was his contention that the petition was not maintainable in law.
3. During the enquiry, the petitioner was examined as PW. 1 and three witnesses were examined on his behalf and the documents Exs.P. 1 to P. 13 were marked, while the respondent examined himself and five other witnesses and the document Ex.D.1 was marked in evidence. The Trial Court on appreciation of the material on record, after hearing the parties rejected the petition holding that there is no relationship of landlord and tenant between the parties and aggrieved by the said order, the petitioner approached the District Judge in RR 16/1985 and the said revision petition was dismissed on merits confirming the finding of the Trial Court. Aggrieved by the concurrent findings of the Courts below, the petitioner approached this Court in revision.
4. This Court disposed of the revision petition on merits vide order dated 21.08.2001 and the orders of the Courts below were set aside and the eviction petition filed by the petitioner was allowed granting one and half years time to vacate and hand over the petition premises to the petitioner. Aggrieved by the order of this Court, the respondent approached the Apex Court in Civil Appeal Nos. 4720 - 4721/2002 and vide order dated 31.03.2009, the Apex Court allowed the appeals by setting aside the order of this Court and remitted the matter for fresh disposal in accordance with law and it is under these circumstances that the matter has come up for hearing.
5. Some events which occurred subsequent to the filing of the petition before the Trial Court are necessary to be referred.
6. The respondent filed a suit in O.S. No. 179/2001 for specific performance of the contract against the petitioner and by the judgment and decree of the Principal Civil Judge, (Jr.Dvn.), Madhugiri, the suit has been decreed directing the petitioner to execute the registered sale deed in favour of the respondent in respect of the petition premises and aggrieved by this judgment and decree RA 182/2006 is pending before the Civil Judge, Sr. Dn., Madhugiri, and likewise, the petitioner instituted OS 111/2001 seeking the relief of declaration that he is the owner of the suit premises which includes the petition premises and also for possession. It has been submitted before this Court that the said suit was dismissed for default and an application for restoration is pending before the Trial Court. The Counsel for the parties in their Memo have informed this Court about these events and the Counsel for the respondent has produced the judgment and decree passed in O.S. No. 179/2001 whereas the Counsel for the petitioner has produced the copy of the plaint in O.S. No. 111/2001 and it is in these circumstances that I have heard the learned Counsel for the petitioner and also the respondent.
7. It is the contention of the learned Counsel for the petitioner that the Will Ex.D. 1 produced by the respondent is a false and fictitious document produced with a malafide intention to avoid eviction. It is also his contention that there is ample material on record to prove that there exists the relationship of landlord and tenant between the petitioner and the respondent. He contends that there was oral tenancy in the life time of the deceased Venkataramana Setty and the respondent and that as the respondent did not pay the rent, the notice was issued and the fact that the respondent did not reply the notice itself is sufficient to draw an inference about the existence of the relationship. It is also his contention that there is no material worth acceptance on record to prove that there was an agreement of sale between the deceased Venktaramana Setty and the respondent at any time and that even the provisions of Section 53-A of the Transfer of Property Act cannot be applied to, as there is no written agreement signed by the parties. So also, it is his contention that under Article 54 of the Limitation Act, the suit for specific performance has to be instituted within three years from the date fixed or the date of refusal of the performance and as the respondent instituted the suit in the year 2001, the suit itself is barred by time. So also, it is his contention that the respondent with an evil motive instituted OS 246/2008 a suit for partition between himself and the members of his family and got the compromise decree in respect of the share in the properties which includes the petition premises. Therefore, he submits that this itself would establish the malafide intention of the respondent and claims that the oral evidence led by the petitioner is sufficient to hold the existence of relationship as landlord and the tenant between the parties. On these grounds, he requested to allow the revision petition and to grant a decree of eviction.
8. Per contra, the learned Counsel for the respondent submitted that there is no relationship of landlord and tenant between the parties and that he has been in possession of the petition premises under an agreement of sale and was to pay an amount of Rs. 15,000/- the balance sale consideration as mentioned in Ex.D. 1 the Will of the deceased Venkataramana Setty and in the circumstances, he instituted the suit in O.S. No. 179/2001 and the same has been decreed. Hence, he submits that this Court cannot negate the decree in another suit by allowing this revision petition. So also it is his contention that the Will Ex.D. 1 contains the information about the relationship between the respondent and the deceased Venkataramana Setty under an agreement of sale and in the absence of any acceptable material on behalf of the petitioner, he claims that the contents of the Will have to be considered to hold that there is no relationship of landlord and tenant between the parties. Furthermore, he submits that under Section 43 of the Karnataka Rent Act, 1999 (hereinafter called as 'the 1999 Act' for short) the matter will have to be referred to the Civil Court to decide the question of the existence of the relationship between the parties as it is a complicated question which cannot be decided in summary proceedings. Furthermore, he submits that there are concurrent findings of the Courts below and the petitioner has not made out any such ground to call for interference. On these grounds, he has sought for dismissal of the petition.
9. in view of the rival contentions raised, the points that arise for my consideration are:
(i) Whether there exists the relationship of landlord and tenant between the parties?
(ii) Whether the petitioner is entitled to the possession of the petition premises on the ground of default in payment of rent and for occupation for himself or any member of his family?
(ill) Whether the petitioner has made out any grounds to call for interference in the judgment and order of the Courts below?
10. I have carefully scrutinised the material placed on record, the evidence led by the parties and the documents admitted in evidence. So far as the relationship is concerned as pleaded by the petitioner, it is only the oral evidence which has to be considered and on this aspect of the matter, the Counsel for the petitioner submits that though a contention has been raised by the respondent that there was an oral agreement of sale, the Counsel submits that his claim is barred by time and the provisions of Section 53-A of the Transfer of Property Act do not apply and hence, the oral evidence led by the petitioner has to be accepted. It is his version that when the respondent fails to establish the existence of an agreement of sale, the only course open is to accept the evidence of the petitioner and to hold that there is relationship of landlord and tenant between the parties.
It is not in dispute that there is no written agreement between the respondent and the erstwhile owner. On this aspect of the matter, as could be seen from the decision of the Apex Court reported in : AIR 1970 SC 546 (Nathulal v. Phoolchand), the Apex Court considering the provisions of Section 53-A of the Transfer of Property Act has stated the conditions required to be complied with to invoke Section 53-A.
(i) Firstly, there must be an agreement in writing signed by the executor or some person on his behalf.
(ii) Secondly, that the transferee has taken possession of the property in part performance of the contract.
(iii) Thirdly, that the transferree has done some act in furtherance of the contract; and
(iv) Lastly, that the transferee has performed or is willing to perform his part of the contract.
So if these requirements are fulfilled, then Section 53-A of the Transfer of Property Act, applies and thereby the transfer is complete. This Court in the decision reported in : ILR 2009 Kar 1534 [N. Basavaraj since deceased by his L.Rs v. B. Sridhar and Ors.] has referred to the same principles laid down by the Hon'ble Apex referred to supra. In the circumstances, in the absence of a written agreement of sale, the transfer is incomplete. Hence, Section 53-A of the Transfer of property Act has no application to the facts on hand, as admittedly, there is no written contract of sale of the petition premises.
11. As pleaded by the petitioner, there was an oral agreement of tenancy on a monthly rental of Rs. 150-00 and this agreement was in the year 1979. So far as the evidence on this aspect of the matter is concerned, the petitioner examined PW.1 the PA Holder who is the grandson of the petitioner Smt. N. Kamalamma. He states in his evidence that the respondent is the tenant under the petitioner's brother on a monthly rental of Rs. 150-00 and that the respondent has occupied the premises in the year 1979. It is relevant to note that PW.1 has no personal knowledge about the talks of tenancy between Late. K.G. Venkataramana Setty and the respondent. So also, at the time when the evidence was recorded, though the petitioner was alive, she did not enter the witness box. Therefore, the evidence of PW. 1 is of no help to the petitioner so far as the proof of tenancy is concerned. Further, PW.2 has been examined and he states in his evidence that the respondent stayed in the petition premises as a tenant under Venkataramana Setty and that he knows this fact and that he had seen the respondent paying the rent. He further states that after the death of Venkataramana Setty it was Rangappa who was collecting the rent for some days and that Rangappa has written some letters (Exs.P.10 to P. 13) addressed to the petitioner. Ex.P.10 reveals that Rangappa had collected Rs. 500-00 and that he would come on 18.02.1981 and pay the same. Ex.P.11 reveals that he collected Rs. 700-00 and that he would pay the same and likewise, Ex.P. 12 is with regard to collection of Rs. 500-00. Relying upon these documents, the Counsel submits that the said amount was collected by Rangappa after the death of Venkatmana Setty and that was the rent paid by the respondent. The perusal of these letters though reveal that he collected some amount, but it does not indicate that it was the rent. At the same time, the respondent has examined himself as DW. 1 and the witnesses DWs.2 to 6. DW.2 is none else than the said G.K. Rangappa who wrote the letters Exs.P.10 to P. 13. He has spoken in his evidence about the execution of the Will by Sri. K.G. Venkataramana Setty and the same has been produced at Ex.D. 1. DW.3 is the scribe of the Will and so far as the letters Exs.P.10 to P. 13 are concerned, DW.2 states that the respondent once had sent Rs. 500-00 through him to the petitioner and that he would pay the balance in installments. So, he does not support the version of the petitioner that the amount collected by the petitioner through DW.2 from the respondent is towards the rent of the premises. DW.2 admits the writing the letters Exs.P.10 to P. 13 to the petitioner. So, in the circumstances, though the petitioner relied upon Exs.P.10 to P. 13, they do not indicate that the amount collected by DW.2 payable to the petitioner was towards the rental of the premises. When DW.2 is the custodian of this document and when he speaks about the contents and states that the amount collected was not towards the rent, the evidence of PW.2 is diluted.
It is relevant to note that PW.2 is none else than the son-in-law of the petitioner. There is close relationship between the petitioner and PW.2. Thereby, the evidence would be an interested version and in this context, if the evidence led by the respondent is looked into, DW. 1 has spoken with regard to the oral agreement of sale and though there is much inconsistency as regards the sale consideration, he does not admit the relationship as a tenant of the petition premises. He relies on the evidence of DWs 2 to 6 and as stated earlier, DW.2 is the person who was in custody of the Will after its execution by DW.2 and DW.4 is the scribe of the said Will at Ex.D.1 and DW.3 is the attesting witness and DW.5 is the son of DW.2 and DW.6 is the son of Sri. M.Y. Narayanasastry, Advocate, who is also an attesting witness to the Will at Ex.D. 1.
12. The perusal of Ex.D.1 reveals about the execution of the Will by Venkataramana Setty on 5th August 1979. He had no issues and deceased Smt. Kamalamma the petitioner was his sister and there is reference about an oral agreement of sale between himself and the respondent and also states that an amount of Rs. 15,000/- is due to the respondent towards the sale consideration. He has stated that from the said amount of Rs. 15,000/-, an amount of Rs. 5,000/- shall be spent for the obsequies after his death and the remaining amount of Rs. 10,000/- was payable to his sister. It is relevant to note that to prove Ex.D.1, the respondent has examined the scribe the attesting witness and also DW.6 the son of Senior advocate who was an attesting witness to the' Will and the son is examined to identify the signature of his father on the will and thereby, the learned Counsel for the respondent claims that in view of this Will and the evidence led by him, he states that this material clearly proves that there was no jural relationship of landlord and tenant between the petitioner and the respondent.
13. So far as the procedure to be adopted in these proceedings are concerned, Section 42(2) of the 1999 Act, reads as under:
Subject to any rules that may be made under this Act and the other provisions of this Act, the Court shall, while holding an inquiry in any proceeding before it, follow as far as may be the practice and procedure of a Court of Small Causes, including recording of evidence.
So as per this provision, it is the summary procedure which has to be adopted by the Court while dealing with the petitions under the Act and in such proceedings, this Court has no jurisdiction to declare the validity or invalidity of the Will. So also, there is a contention by the respondent that there is an oral agreement of sale and therefore, this Court also cannot decide as to the validity of the sale agreement and more particularly, in view of the subsequent events which require reference at this stage.
14. During the pendency of the proceedings before this Court, the respondent instituted a suit in O.S. No. 179/2001 seeking the relief of specific performance of the agreement of sale and also for injunction. The copy of the judgment and decree has been produced by the respondent and the copy of the decree has been produced by the petitioner. This suit was instituted on 12.10.2001 and came to be decreed on 10.10.2006. So there is a decree for specific performance of the agreement of sale referred to supra in favour of the respondent and the petitioner herein is the defendant in the said suit. Aggrieved by the judgment and decree of specific performance of the contract, the present petitioner has preferred an appeal R.A. No. 182/2006 and the said appeal is pending on the file of the Civil Judge, (Sr. Dn.), Madhugiri. So the respondent having now approached the Civil Court for a decree and having obtained the decree in his favour, I do not think that this Court in the summary proceedings can consider the validity of the said decree which has been obtained subsequent to these proceedings. The fact remains that there is a complicated question about the relationship between the parties and that cannot be determined in these proceedings which are summary in nature.
15. At the same time, the petitioner has filed O.S. No. 111/2001 in the Court of the Civil Judge, Madhugiri and the copy of the amended plaint has been produced wherein he has sought for a declaration that he is the absolute owner of the suit schedule property which includes the petition premises and for vacant possession of the same, in addition to the mesne profits. It is submitted by the Counsel that this suit was dismissed for default and Misc.8/2007 is pending for its restoration. So, as could be seen from these subsequent events between the parties, they have now diverted themselves to the Civil Court for seeking the relief and as could be seen from the evidence led by both the parties, in my considered opinion, there is a complicated question which requires to be decided by the Civil Court.
16. The Counsel for the respondent has relied on the decision reported in : ILR 2003 Kar 4255 (Ayesha Begum v. Shahzadi) wherein this Court took into consideration the provisions of Section 43 of the 1999 Act, wherein there was concurrent findings by both the Courts below in favour of the tenant and it is held by this Court that Section 43 makes it mandatory for the Court to stop all further proceedings and direct the parties to approach the competent Court of Civil jurisdiction for declaration of their rights. He also relied upon the decision reported in ILR 2007 Kar 374 (R. Abbaiah Reddy and Ors. v. Udaya Chandra) wherein the jural relationship of land lord and tenant was disputed and both the Courts below dismissed the petition and this Court held that there was a complicated dispute regarding the title and it directed the parties to approach the competent Civil Court for declaration of their rights.
17. So now, as could be seen from the provisions of Section 43, it reads:
43. Dispute of relationship of land lord and tenant:
(1) Where in any proceeding before the Court, a contention is raised denying the existence of relationship of landlord and tenant as between the parites it shall be lawful for the Court to accept the document of lease or where there is no document of lease, a receipt of acknowledgement of payment of rent purported to be signed by the landlord a prima-facie evidence of relationship and proceed to hear the case.
(2) Where:
(a) the lease pleaded is oral and either party denies relationship, and no receipt or acknowledgement of payment of rent as referred to in Sub-section (1) above is produced; or
(b) in the opinion of the Court there is reason to suspect the genuine existence of the document of lease or the receipt or acknowledgement of payment of rent the Court shall at once stop all further proceedings before it and direct the parties to approach a competent Court of civil jurisdiction for declaration of their rights.
18. So, as could be seen from the above provisions, admittedly, there is no written agreement of lease between the parties and also there is no rent receipt. Further, the respondent claims that there is an oral agreement, of sale. The Will also refers to such an agreement and taking into consideration the appreciation of the evidence lead by both the parties, I am of the opinion that there is a civil dispute which cannot be determined under the provisions of the Act of 1999 by adopting summary procedure.
19. Though it is contended that prior to the filing of the petition, a notice was issued to the respondent and that the respondent did not reply the said notice, in view of the material placed on record and its appreciation in the above paras, the mere non reply and the inference to be drawn is itself not sufficient to prove the existence of the jural relationship of landlord and tenant. At the same time, the mere fact that the respondent has filed O.S. No. 246/2008 and obtained a decree of partition between himself and his members of the family wherein the petition premises is also included, is also not a ground to discard all the evidence and infer the malafides on his part. The proof of the relationship of landlord and tenant is not a matter of presumption and there must be positive evidence to prove the same. No doubt, there is some inconsistency so far as the sale consideration is concerned, but it is for the Civil Court to take into consideration the same and decide the validity of the agreement of sale. Even as regards the genuineness of the Will at Ex.D.1, this Court cannot take the decision in summary proceedings.
20. So ultimately, the only course left open to this Court is to have the recourse to the provisions of Section 43 of the Act of 1999 and to direct the parties to approach the Civil Court for declaration of their tights. In view of the fact that already the parties are before the Civil Court to different litigations, the findings will have to attain finality.
21. Taking into consideration the appreciation of the material on record by the trial Court and also the Revisional Court, I do not find any such grounds to set aside the findings. In that view of the matter to prove the jural relationship of landlord and tenant between the parties, they have to get a declaration from the Civil Court. As the petitioner has already instituted the suit for declaration of his title and also for possession, in case if he succeeds in the said suit and gets the possession, there is no necessity for him to further prosecute this revision petition and at the same time, in case, if the respondent gets the decree in his favour, there may not be any necessity for him to approach this Court.
22. As the parties are already before the Court, depending upon the decision in the said cases, a right has to be reserved to the parties to approach this Court in case if any order under the provisions of this Act is essential for them.
23. Though the provisions of Section 43 Clause (b) provides that the Courts shall at once stop all further proceedings before it and direct the parties to approach the competent Civil Court for declaration of their rights, as the parties are already before the Civil Court, they can seek the relief before the said Courts and in case, if they need an order of this Court after the termination of the proceedings in the Civil cases, they are at liberty to approach this Court and to reopen these proceedings. In that view of the matter, I answer-
Point No. 1 - directing the parties to get the declaration from the Civil Court;
Point No. 2 - reserving a right to the parties to approach this Court after the termination of the proceedings in the Civil Court, if they require;
Point No. 3 - in the negative and proceed to pass the following: