CASES REFERRED: 1. (1985) 2 SCC 54 : AIR 1985 SC 577 - Abdulla v. Galappa (Dist) 1. 2. 1983 (1) KLJ 344 - Nagaraja Rao v. Krishna Rao (Overruled) 3. 1974 (1) KLJ 316 - Mohammed v. Mainuddin (Foll) 4. ILR 1987 KAR 450 - Shiva Rao v. Cecilia (do)

Mr. M.S Bhujanga Rao for Appellants

Mr. S.V Raghavachar

Mr. M.N Seshagiri for R-9

The Judgment of the Court was delivered by

Bopanna, J.:— This appeal raises an interesting question touching the right of the landlord to seek a decree for possession against his tenant in respect of his premises to which the Karnataka Rent Control Act, 1961 (hereinafter referred to as the ‘Act’) applies.

2. In this Judgment, the parties are referred to, by the position assigned to them in the trial Court. The facts leading to this appeal are as follows:

One Dr. Ali Hussain (hereinafter referred to as the ‘owner’) was the owner of the premises in question bearing Municipal No. 1392 (new No. 859) situate in Masjid Mohalla of Ramanagaram Town. The premises in question will be, hereinafter referred to as the ‘suit premises’. It was admittedly covered by the provisions of the Act. Dr. Ali Hussain had two wives. Plaintiffs 1 to 3 are the sons, plaintiffs 4 to 6 are the daughters and plaintiffs 7 and 8 are the two wives of Dr. Ali Hussain.

3. The owner had filed an eviction petition against defendants 1 and 3 in H.R.C No. 13/1973 on the file of the learned Munsiff, Ramanagaram. In that eviction petition (H.R.C No. 13/1973), he had sought for eviction of defendants 1 and 3 on the ground that defendant-1 was a chronic defaulter in the payment of rent which was Rs. 60/- per month. It was the case of the owner that defendant-3 was inducted by defendant-1 as a sub-tenant unauthorisedly. He also sought for eviction of defendants 1 and 3 under Section 21(1)(h) of the Act for his bona fide use and occupation. During the pendency of H.R.C No. 13/1973 the owner died. Therefore, in the light of the law as it stood then, the legal representatives of the owner could not prosecute the said eviction petition. Hence it came to an end. In the said proceedings, the plaintiffs were brought on record as L.Rs of Dr. Hussain. Accordingly, the Rent Control Court made an order to the effect that the proceedings stood terminated by the death of the original landlord viz., the owner. Thereafter, the plaintiffs filed the present suit O.S No. 32/1975 in the Court of the Civil Judge, Bangalore District, Bangalore for possession and also for mesne profits against defendants 1 to 4 or such of the defendants who would be found in possession of the suit premises.

4. The plaint averments will have to be noticed since the question as to jurisdiction of the Civil Court to make a decree for possession against defendants 1 and 3 arises in this case.

5. The plaintiffs, as L.Rs of the owner, averred in para 4 of the plaint that the owner had filed the eviction petition H.R.C No. 13/1973 on the file of the Munsiff, Ramanagaram, against defendants 1 and 3 praying for a decree for eviction. In the eviction petition it was pleaded inter alia that the 1st defendant had taken the premises on lease on a monthly rental of Rs. 60/- and he had unlawfully sublet the said premises and that he had committed default in the payment of rent. The 1st defendant contended that he was not a tenant of the premises. The 3rd defendant who was the 2nd respondent in the said eviction petition pleaded that there was no relationship of landlord and tenant and he had been put in possession of the premises in pursuance of an agreement of sale dated 16-12-1968 alleged to have been executed by the owner in favour of his wife defendant No. 4 in the present suit. In paragraph 6 of the plaint, the plaintiffs averred that the defendant-3 had denied the relationship of landlord and tenant in H.R.C No. 18/1973 and had set up title in himself and it was because of this, the plaintiffs were advised to file a suit for recovery of possession of the suit premises treating the possession of defendants 1 and 3 as unauthorised and wrongful. On that basis, they also made a claim for mesne profits for the use and occupation of the premises which, according to them, was wrongful and unauthorised. They also denied the agreement alleged to have been executed by the owner in favour of defendant-4 who is admittedly the wife of defendant-3. Defendant-1 remained ex parte.

6. Defendant-4 set up an agreement of sale executed by the owner and pleaded that pursuant thereto, she was put in possession of the suit premises; that she and defendant-3 (husband of defendant-4) were therefore entitled to the protection under Section 53A of the Transfer of Property Act (in short the ‘T.P Act’). Defendant-2 took the stand that he was an unnecessary party and as he was unnecessarily dragged to the Court and he prayed for deleting his name from the cause title. So the main contesting parties before the trial Court were defendants 3 and 4.

7. The trial Court, on consideration of the oral and documentary evidence, came to the conclusion that the plaintiffs were the heirs of the owner. This finding, in our view, is not open to challenge in the light of the order made by the Rent Control Court in H.R.C No. 13/73. The plaintiffs were brought on record as L.Rs of the owner in H.R.C No. 13/1973. That apart, defendant-3 has also admitted in his deposition that the plaintiffs were the L.Rs of the owner.

8. On the issue whether there was an agreement of sale in favour of defendant-4, the trial Court came to the conclusion that the agreement in question was not genuine as the same appears to have been fabricated and forged for the purpose of the case. On the basis of the findings recorded on issues 1 to 4 in favour of the plaintiffs, the trial Court decreed the suit directing the defendants to deliver vacant possession of the suit premises to the plaintiff and also awarded past mesne profits of Rs. 1440/- and also directed enquiry into future mesne profits. The plaintiffs were also awarded proportionate costs from the defendants.

9. Having regard to the contentions urged on both sides, the following points arise for consideration in this appeal:

1) Whether the defendants 3 and 4 are entitled to the benefit of Section 53A of the Transfer of Property Act?

2) Whether the defendants 1 and 3 are entitled to have the protection under the provisions of the Karnataka Rent Control Act, 1961?

3) Whether the defendants 2 and 4 have any right in the suit premises?

4) What order or decree?

10. Before we take up the points for consideration in seriatim, it is necessary to dispose of the contention urged on behalf of defendant-1. It is contended that no notice was served on defendant-1 in the suit; therefore, the decree for ejectment passed against him was an ex parte decree; hence he had filed a Miscellaneous Petition before the trial Court for setting aside the same. We find from the records that service of notice on defendant-1 was held sufficient by the trial Court. In our opinion, the trial Court was right in holding service of notice on defendant-1 as sufficient. Therefore, it is not necessary to go into that aspect of the case in this appeal. The decree passed against the 1st defendant cannot be construed as the one passed without notice to him.

POINT NO. 1:

11. Sri Bhujanga Rao, learned Counsel for defendants 3 and 4 made a strong plea that the trial Court committed an error in placing reliance on the provisions of Section 73 of the Evidence Act for coming to the conclusion that the agreement was not genuine. According to him, in the light of the evidence of defendant No. 3, the scribe and the attesting witness, there was enough proof to show that the document was executed by the owner and therefore, the trial Court should not have doubted the genuineness of his signature and if it had any doubt, it should have referred the disputed signature of the owner to the handwriting expert for satisfying itself that the disputed signature in Ex. D.1 was the same as the admitted signature of the owner. In our view, the evidence of D.Ws 1 to 3 was not seriously challenged in cross-examination. However, we must take notice of the fact that this document was executed some time in the year 1968 and the undisputed signatures of the owner were taken in the year 1974. Therefore, there is every possibility of some minor variations in the signature of the person over a number of years. It has come on record that Dr. Ali Hussain was not keeping good health, he being a heart patient. Therefore we notice some minor variations in the configuration of words in the signature of the owner when we compare the disputed signature with his undisputed signature. There is also the possibility of the owner altering the style of his writing to deny the genuineness of his earlier signature.

11.1 But for the purpose of invoking the doctrine of equity of part-performance as embodied in Section 53A of the T.P Act, defendants 3 and 4 apart from proving the agreement of sale Ex. D.1 must also prove that defendant-4 (transferee) has, in part-performance of the contract, taken possession of the property or any part thereof or in the case of the transferee being already in possession, continues in possession in part-performance of the contract and has done some act in furtherance of the contract. In the instant case either of the two things is not established. Defendant No. 4 in whose favour the agreement of sale as per Ex. D.1 dated 15-12-1968 is executed, is no other than the wife of defendant No. 3. In the earlier proceeding under the Act for eviction, it was the case of the owner that defendant-1 was the tenant of the suit premises and he had sublet the suit premises; to defendant-3. Thus defendant No. 4 being the wife of defendant No. 3 was residing in the suit premises along with defendant No. 3. No evidence is adduced to prove that defendant No. 4 was continued in possession pursuant to Ex. D.1 and she had done some act in furtherance of the agreement Ex. D.1 The agreement Ex. D.1 is silent. It does not state that pursuant to the agreement defendant No. 4 was put in possession of the suit premises. In the absence of specific evidence to satisfy the doctrine of part-performance, defendant-3 and 4 cannot successfully claim protection or defend their possession of the suit premises under Section 53A of the T.P Act. It only follows that defendant No. 3, as claimed by Dr. Ali Hussain in the H.R.C No. 13/73 was in possession as subtenant under defendant No. 1 and defendant No. 4 being his wife was residing with him. They (defendants-3 and 4) had not taken possession of the suit premises in part performance of the agreement Ex. D.1 Further they have also not proved that they have done any act in furtherance of the contract. Thus defendants 3 and 4 are not entitled to the benefit of Section 53A of the T.P Act.

12. One more fact which goes against defendants 3 and 4 is that the execution of the agreement of sale - Ex. D.1 - was repudiated by Dr. Ali Hussain in the year 1974 in H.R.C 13/73 to which defendants 3 and 4 were parties. In that proceeding Dr. Ali Hussain filed his rejoinder as per Ex. P. 3 dated 13-1-1974 denying execution of Ex. D.1 and further alleging that it was false, fabricated, concocted and forged. Defendants 3 and 4 did not take any step to enforce the agreement of sale Ex. D.1 against the owner i.e, Dr. Ali Hussain or his legal representatives within a period of three years from the date of knowledge of repudiation of the agreement. As a result thereof, defendant No. 4 has lost her right, if any, under Ex. D.1 and it cannot now be enforced. The doctrine of part-performance is a doctrine of equity. Delay defeats equity. Therefore, when the agreement Ex. D.1 has become unenforceable by reason of the Law of Limitation, the defence of part-performance which is founded on Ex. D.1 cannot be permitted to be enforced as the agreement Ex. D.1 has lost all its efficacy in as much as the right of defendant-4 to enforce it is lost by the law of limitation. The doctrine of part-performance which is a doctrine of equity cannot be permitted to be invoked under these circumstances.

13. Accordingly point No. 1 is answered in the negative and against defendants 3 and 4.

POINT NO. 2:

14. As noticed earlier, defendant-1 did not contest the suit before the trial Court. So we are left with the defence of defendant No. 3 only regarding the nature of possession of defendants 3 and 4 in respect of the suit premises.

15. It is observed by the Supreme Court in Abdulla Bin Ali v. Galappa . 1985 2 SCC 54 that the allegations made in the plaint would decide the forum of the suit and the jurisdiction of the Court does not depend upon the defence taken by the defendants in the written statement.

16. In this case, the plaint averments do not dispute the possession of defendant-3. What all the plaintiffs say is that the defendants cannot claim any possession under the alleged agreement of sale - Ex. D.1 Therefore, though defendants 3 and 4 have not taken the plea that defendant-3 was the sub-tenant, it is open to defendants 1 and 3 claim protection of the Act in view of the provision of Section 21 of the Act.

17. However, it is contended by learned Counsel for the plaintiffs that the defendants 1 and 3 having incurred forfeiture of tenancy under the T.P Act by setting up an agreement of sale, they cannot plead that they are entitled to the protection of the Act. This plea could have been sustained if there had been forfeiture in terms of Section 111(g) of the T.P Act. That sub-section provides that:

“A lease of immoveable property determines.-

(g) by forfeiture: that is to say (1) in case the lessee breaks an express condition which provides that on breach thereof, the lessor may re-enter or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee or his intention to determine the lease”

18. It is not in dispute that no such notice of forfeiture was given by the plaintiffs to defendants Nos. 1 and 3 under Section 111(g) of the Act. Therefore, it cannot be said that the defendants 1 and 3 have no right to invoke the provisions of Section 21 of the Act. In this connection a decision of this Court reported in Nagaraja Rao v. Krishna Rao . 1983 1 KLJ 344. on which the learned Counsel for the plaintiffs placed reliance requires to be specifically noticed. In paragraph 23 of the Judgment, a learned Single Judge of this Court considered the effect of a decree made by a Civil Court notwithstanding the applicability of the provisions of the Karnataka Rent Control Act to premises. In paragraph 24 of the Judgment it was observed as follows:

“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 that reason that the Municipality referred the parties to file the suit for declaration of title. Ex. 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, and, 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.”

The learned Judge made the above observations without reference to the statutory provisions contained in Section 111(g) of the T.P Act. There could not have been a forfeiture of tenancy in the absence of a notice by the lessors as required by Section 111(g) of the T.P Act and forfeiture could not have been inferred only from the plea in the written statement. The forfeiture of tenancy under, the circumstances stated in Section 111(g) of the T.P Act takes place if the lessor or his transferee expresses his intention to put an end to the lease by giving notice in writing to the lessee, on any one of the grounds stated therein. No such thing has happened in the case. That apart, the above observation runs counter to the decision of the Supreme Court in Abdulla Ali's case which lays down that the issue of jurisdiction has to be determined on the averments made in the plaint. In our view, the aforesaid decision of the learned Single Judge in Nagaraja Rao's case is a decision per incuriam since the same had been rendered without noticing, and contrary to the relevant statutory provisions. We accordingly over-rule the decision in the aforesaid Nagaraja Rao's case. In our view the law that is applicable to the facts of the case on hand is correctly stated in Mohammed Qasim v. M. Mainuddin . 1974 1 KLJ 316. by Malimath, J. (as he then was). In that case the plaintiff had averred that he had purchased the property from the original owner and defendant-3 therein was a tenant under the original owner. Defendant-3 set up title in himself and therefore, it was alleged that he was in possession as a trespasser. The plaintiff sought for a declaration of title and possession. On these facts as averred by the plaintiff, it was held thus:

“Where the plaintiff averred that he had purchased the property from the original owner, and defendant 3 who was a tenant under the original owners, had forfeited his tenancy rights as he disclaimed plaintiff's title and set up title in himself and therefore the 3rd defendant was in possession as a trespasser and sought for a decree for declaration of title and possession, held: the third defendant, as a person in possession of the premises after the determination of the lease in his favour was also ‘tenant’ for the purpose of the Act and the plaintiff whose title had been established was entitled to rent and therefore was ‘landlord’ within the meaning of the Act. Hence the bar under the first part of sub-section (1) of Section 21 was attracted and no decree to recover possession could be made in favour of the plaintiff. Since the bar contained in Section 21(1) is against the Court if the Court comes to the conclusion that it is required to make a decree in favour of the landlord and against the tenant in respect of a premises to which the Act applies, the bar contained in sub-section (1) gets attracted whether or not the defendant has taken the plea that he is a tenant of the premises.”

19. Incidentally it is necessary to refer to the decision of the Supreme Court in Shiva Rao v. Cecilia Pareira . ILR 1987 KAR 450.. That is a case which arose directly under the provisions of the Act. In that case, even though the Act was not applicable to the premises at the time when a decree for ejectment was passed by the Civil Court, the protection of the Act was invoked at the time of execution as during the course of execution, the Act became applicable. It was held by the Supreme Court that the decree could not be executed having regard to the application of the Act to the premises concerned therein. The Supreme Court held thus:

“4. It was held by this Court in Mani Subrat Jain v. Raja Ram Vohra., ((1980) 1 SCC 1 : AIR 1980 SC 299) dealing with Section 2(1) of the East Punjab Urban Rent Restriction Act which defines ‘tenant’ more or less in similar term as the present Act that in view of such a definition of the ‘tenant’ in Rent Control Act, the fact that by the time the Act came into force a decree or any other process extinguished the tenancy under the general law of real property does not terminate the status of a tenant so long as he continues in possession and his possession cannot be terminated except as provided for in the Rent Control Act. It is well settled legal principle that Rent Control legislations being beneficial to the tenant, have to be given a liberal interpretation. While ordinarily substantive rights should not be held to be taken away except by express provision or clear implication in the case of Rent Control Act, it being a beneficial legislation, the provision which confers immunity to the tenant against eviction by the landlord though prospective in form, operates to take away the right vested in the landlord by a decree of a Court which has become final, unless there is express provision or clear implication to the contrary.”

(Emphasis supplied)

In the light of the aforesaid observations of the Supreme Court, we have no hesitation in coming to the conclusion that defendant-1, who was treated by the owner as a tenant of the premises, continued to enjoy the protection of the Act even during the pendency of the present suit in O.S No. 32/1975. It therefore, follows that the possession of defendant-3 as a sub-tenant could not be decided in these proceedings. That depends on the right of the plaintiffs as against defendant-1 under the Act. We have already held that defendants 3 and 4 were not put in possession pursuant to the agreement of sale Ex. D.1

20. Mr. Raghavachar strongly relied on the decision of the Supreme Court in Abdulla Bin Ali v. Galappa to which we have already adverted to. He relied on paragraphs 5 and 6 of the aforesaid Judgment. In para 5 of the said Judgment, the Supreme Court has ruled that the jurisdiction of the Court does not depend upon the defence taken by the defendant in the written statement but on the reading of the plaint as a whole. But what Mr. Raghavachar submits is that defendants Nos. 1, 3 and 4 have not taken the plea that they were the tenants of the suit premises in the trial Court and hence they cannot be permitted to take the benefit of the provisions of the Act. The facts of that case should be noticed in order to appreciate, this contention of Mr. Raghavachar.

21. In that case, the proceedings were initiated by the landlord against the tenant for recovery of arrears of rent in respect of an agricultural tenancy. Those proceedings were dismissed for want of jurisdiction. The tenant also denied the title of the landlord in those proceedings. Accordingly, the landlord filed a suit for possession and also mesne profits alleging that the tenant was a trespasser. In the suit filed by the landlord, the tenant took the plea that the Civil Court had no jurisdiction to entertain the suit. On these facts, the Supreme Court ruled that the landlord should not be non-suited on the ground that he had not claimed a declaration of title and that he had set up the relationship of landlord and tenant in the plaint. The suit was held to be cognisable by the Civil Court. In our view, the decision rested on the peculiar facts of that case.

22. The defendants 1, 3 and 4, in the suit in question did not challenge the title of the landlord. What they pleaded in the HRC proceedings was that they were put in possession pursuant to the agreement of sale executed by the owner in favour of defendant-4. The owner had approached the Rent Control Court for an order of eviction against defendants 1 and 3 on the ground that they were tenants and the proceedings before the Rent Control Court came to be terminated not on the ground that the Rent Control Court had no jurisdiction to entertain the petition but on the ground that the plaintiffs herein could not continue the petition on the death of the owner in view of the law as it stood then. Therefore, it is not proper to suggest that the defendants had denied the title of the plaintiffs in the Rent Control Court. In our view, the law laid down by this Court in Mohammed Qasim's case is applicable to the facts of this case on all fours and it is not possible to get any assistance from the decision of the Supreme Court in Abdulla Bin Ali's case.

23. For the reasons stated above, it is held that defendant-1 continues to be the tenant of the suit premises and defendant-3 was treated by Dr. Ali Hussain, the predecessor in-title of the plaintiffs as sub-tenant under defendant-1. Accordingly, point No. 2 is held in the affirmative.

POINT NO. 3:

24. Defendant-2 has pleaded that he is an unnecessary party to the suit and he has no right whatsoever in the suit premises, therefore, he be deleted from the suit; whereas defendant-4 claimed that she was put in possession of the suit premises pursuant to the agreement of sale-Ex. D.1 While considering point No. 1, it has already been held that defendants 3 and 4 were not put in possession of the premises pursuant to the alleged agreement of sale Ex. D.1, and they had not done any act in furtherance of the agreement, therefore they were not entitled to the benefit of Section 53A of the T.P Act. Defendant-4 is the wife of defendant-3. Defendant-3 who, as claimed by Dr. Ali Hussain, was a sub-tenant under defendant-1. Defendant-4 resides with defendant-3 because she is his wife. Thus it is clear that defendant-4 has no independent and enforceable a right whatsoever in the suit premises. Accordingly point No. 3 is answered in the negative.

POINT NO. 4:

25. The next point for consideration is as to the reliefs to which the plaintiffs are entitled to. The plaintiffs are admittedly the owners of the suit premises. Defendant-1 is the tenant of the suit premises to which the provisions of the Act are applicable. Therefore, the decree for ejectment cannot be passed against defendant-1 and also against defendant-3 because he is acknowledged by the predecessor of the plaintiffs as the sub-tenant under defendant-1 having regard to the provisions contained in Section 21 of the Act. The learned Counsel for respondents 3 and 4 submitted that a sum of Rs. 40/- per month may be fixed as rent for the suit premises and on that basis a decree for arrears of rent for the period from 25-3-1975 (date of filing the suit) up to date and also for a period of 3 years prior to the date of filing the suit may be passed. The learned Counsel for the plaintiffs has no objection for making such an order.

26. For the reasons stated above, the judgment and decree of the trial Court are set aside and the suit is decreed in the following terms:

i) The plaintiffs are declared to be the owners of the suit premises;

ii) Defendant-1 is the tenant in possession of the suit premises. The rate of rent of the premises is Rs. 40/- per month. The tenancy month is the English Calendar month commencing from the first of each month.

iii) There shall be a decree for arrears of rent in favour of the plaintiffs and against the 1st defendant for a sum of Rs. 7,360/- being the arrears of rent due from 3 years prior to the date of the suit up-to-date worked at the rate of Rs. 40/- per month.

iv) Defendants 2 and 4 have no right whatsoever in the suit premises.

v) It is open to the plaintiffs to seek possession of the suit premises from Defendants 1 and 3 under the provisions of the Karnataka Rent Control Act as Defendant-3 was acknowledged to be the sub-tenant under Defendant-1.

vi) Defendants 1 and 3 are entitled to get the amounts paid by them or by any of them towards house tax in respect of the suit premises subsequent to the decree of the trial Court. On proof of the same, Defendant 1 will be entitled to have that amount deducted out of the amount decreed.

vii) The plaintiffs have to pay the deficit Court fee if any, on the amount decreed.

viii) The parties shall bear their own costs in this appeal.