Malimath, J.:— This second appeal is by the third defendant against the decree passed by the Additional Civil Judge, Gulbarga in Regular Appeal No. 95 of 1968, affirming the decree passed by the Munsiff at Sedam in O.S No. 28/1 of 1966.
2. The first respondent-plaintiff instituted the suit on the 3rd of June, 1966 for a declaration that he is the owner of the suit house situate at Sedam, for possession and mesne profits at the rate of Rs. 10 per month from the 1st of April till realisation. The case of the plaintiff is that defendants 1 and 2 were the original owners under whom the third defendant was a tenant. He purchased the suit property from defendants 1 and 2. But, defendant No. 3 forfeited his tenancy rights as he disclaimed the plaintiff's title and set up title in himself. The plaintiff has further averred that in these circumstances, the third defendant is in possession as a trespasser. It is on the basis of these averments that the plaintiff sought a decree for declaration of title, possession and mesne profits. The third defendant, who is the contesting defendant, set up title in himself and asserted that he has perfected his title by adverse possession. He denied the plaintiff's title. The Court of first instance made a decree in favour of the plaintiff, declaring his title and awarding possession and mesne profits, at the rate of Rs. 10 per month from the 1st of April, 1966. That decree having been affirmed on appeal by the learned Civil Judge, the third defendant has challenged the same in this second appeal.
3. Sri N. Santhosh Hegde, learned Counsel appearing for the appellant, contended that the decree passed, for possession and mesne profits, by the Court below is contrary to law. It was contended that in view of the bar contained in sub-section (1) of Section 21 of the Mysore Rent Control Act, 1961 (hereafter referred to as the Act), no decree for possession could be passed in favour of the plaintiff and as against the third defendant. Such a contention was sought to be raised by the third defendant in the Court of first instance, but the Court of first instance did not permit the third defendant to raise such a contention. The first part of sub-section (1) of Section 21 of the Act in so far as it is material for the purpose of this case may be extracted as follows:
“21. (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or other authority in favour of the landlord against the tenant:
Provided that the court may on an application made to it, make an order for the recovery of possession of a premises on one or more of the following grounds only, namely:—
………………………………..”
The first part of sub-section (1) of Section 21 contains an injunction against the Courts or any other authority not to make a decree or order for possession in favour of the landlord and against the tenant for possession of any premises. It is not disputes that the Act applies to the suit premises which is situate at Sedam in the district of Gulbarga. The second part of sub-section (1) of Section 21 which is in the nature of a proviso states that the Court as defined in the Act may on application made to it make an order for recovery of possession of a premises only on one or more of the grounds stated therein. This is not a case to which the proviso to sub-section (1) of Section 21 is attracted, in as much as the proceeding out of which this second appeal arises is not an application for recovery of possession of the premises made to the Court constituted under the Act on any of the grounds mentioned in sub-section (1) of Section 21 of the Act. So far as the first part of sub-section (1) of Section 21 is concerned, the same has to be given effect to when the Court has to take a decree in favour of the landlord and against the tenant in respect of any premises to which the Act applies. As already mentioned, the premises is situate at Sedam to which the Act applies. The bar contained in sub-section (1) will be attracted when a decree for possession is required to be made in favour of the landlord and against the tenant. The first question for consideration, therefore is as to whether the third defendant is a tenant. The expression “tenant” has been defined in Section 3(r) of the Act which includes a person continuing in possession after the determination of the tenancy in his favour. The case of the landlord is that the third defendant was a tenant of the suit premises but that the said tenancy stood determined under Section 111(g) of the Transfer of property Act when he disclaimed the lessor's title and set up title in himself. Both the Courts below have held that though the third defendant is in possession, he has failed to establish that he has perfected his title to the suit property by adverse possession and that the plaintiff has title to the suit property. As a person in possession of the premises after the determination of the lease in his favour is also a tenant for the purpose of the Act, it has to be held that the third defendant is a tenant as defined in Section 3(r) of the Act. The other question to be examined is, as to whether the plaintiff is in the position of a landlord. The expression “landlord” has been defined in Section 3(h) of the Act to mean any person who is for the time being receiving or entitled to receive rent in respect of any premises. As the title of the plaintiff has been established, it follows that he is a person who is entitled to receive rent in respect of the premisesin Question. Hence, all the ingredients to attract the bar contained in the first part of sub-section (1) of Section 21 are satisfied. Hence, no decree for recovery of possession could be made in the suit in favour of the plaintiff who is the landlord and against the third defendant who is the tenant.
4. The contention of Shri J.S Gunjal, learned Counsel appearing for the first respondent, is that as it was not the case of the third defendant that he is the tenant of suit premises, the bar contained in sub-section (1) of Section 21 is not attracted. It is, no doubt, true that the third defendant did not assert that he is in possession of the suit premises as a tenant. On the contrary, he set up title in himself and denied the title of the plaintiff. The bar contained in sub-section (1) is against the Court or other authority making a decree or order for recovery of possession in favour of the landlord and against the tenant. 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. Besides, it is necessary to note that in this case the third defendant did expressly seek permission of the Court to plead the bar contained in sub-section (1). The Court of first instance refused permission to the third defendant to take up such a contention. It cannot, therefore, be said that the contention which is now pressed by Sri Santhosh Hegde was not pressed in the Court of first instance. It may be mentioned that though in a different form, this contention was permitted to be pressed in the Lower Appellate Court.
5. As the third defendant is a tenant of the premises to which the Act applies and the plaintiff is a landlord, the Courts below were not entitled to make a decree for recovery of possession in view of the bar contained in sub-section (1) of Section 21 of the Act.
6. I may notice another contention of Sri Gunjal urged on the basis of the observations of the Supreme Court in Raizada Topandas v. Gokakhram Gokalchand(1), reported in A.I.R 1964 Supreme Court 1348. That was a case in which the Supreme Court was required to examine the scope and effect of Section 28 of the Bombay Rents, Hotels and Lodging House Rates Control Act, 1947. That was a case in which the plaintiffs instituted a suit in the City Civil Court, Bombay seeking a declaration that the defendants were not entitled to enter into or remain in possession of a certain shop in Greater Bombay and for a permanent injunction restraining them from entering the shop. The defence to the suit was that the relationship between the parties was not that of a licensee and licensee but that the shop had is fact been sub-let to them and that the agreement between the parties had been given the form of a licence only as a cloak to protest the plaintiffs from ejectment under the Act by its landlord on the ground of unlawful sub-letting. It was further contended that as they were really tenants, their landlords-plaintiffs were not entitled to institute the suit in the City Civil Court Bombay and that the proper remedy for them was only to approach the Rent Control Court under Section 28 of the Act. Their Lordships, repelling the contention of the defendants, held that it is only if the suit as framed is by a landlord or a tenant and the relief asked for is in the nature of claim which arises out of the Act or any of its provisions, then only and not otherwise, the proceedings have to be initiated under Section 28 of the Act. In other words, their Lordships came to the conclusion that for the purpose of adjudicating as to whether the plaintiffs had approached the proper form or not, what has to be looked into is the averments in the plaint. That decision is not of any assistance for deciding the point that arises for consideration in this case. The question as to whether the suit filed in the Court of first instance was proper or not is not a matter which arises for consideration in this case. The only question for consideration in this case, is as to whether in a suit properly instituted in the Civil Court a decree for recovery of possession could be made in favour of the landlord and against the tenant in view of the bar contained in sub-section (1) of Section 21. The question which has arisen for consideration in this case did not arise for decision before the Supreme Court. Hence, the said decision is not of any assistance for deciding the question involved in this case.
7. Sri Gunjal lastly submitted, in the event of the decree for possession being set aside, a decree for recovery of rent from the 1st of April 1966 till the date of the decree could be made in this case instead of driving the plaintiff to another suit for that purpose. He submitted that if such a direction is given, the plaintiff is prepared to pay whatever court-fee he is liable to pay on the amount that the plaintiff may be held entitled to Sri Santhosh Hegde fairly submitted that he has no objection for a decree for arrears of rent being made in favour of the plaintiff from the 1st of April, 1966 till the date of the decree by this Court. Having regard to the circumstances, the request of Sri Gunjal deserves to be acceeded to.
8. For the reasons stated above, this appeal is partly allowed. The decree for recovery of possession and mesne profits passed by the Courts below is set aside. The decree passed by the Courts below declaring that the plaintiff is the owner of the suit property is confirmed. There shall be a decree in favour of the plaintiff for arrears of rent from the 1st of April, 1966 till the date of the decree at the rate of Rs. 10 per month, subject to the condition that the plaintiff first respondent pays the court-fee on the amount to which he is entitled. No costs.