1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF JANUARY 2015 BEFORE THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA HRRP NO.105/2014 BETWEEN: 1. SRI AVINASH LAL CHANDANI S/O. LATE. HEMANDAS AGED ABOUT 66 YEARS, 2. SMT. SUMITHA LAL CHANDANI W/O SRI. AVINASH LAL CHANDANI, AGED ABOUT 50 YEARS, 3. MAS. ANIL S/O SRI. AVINASH LAL CHANDANI, AGED ABOUT 26 YEARS, 4. MS. SUSHMITHA D/O SRI. AVINASH LAL CHANDANI, AGED ABOUT 18 YEARS, ALL THE RESPONDENTS ARE R/AT NO. E-10, NEW NO.23, FIRST FLOOR, SHANKAR MUTT MAIN ROAD, SHANKARPURAM, BANGALORE 560004 ... PETITIONERS (By Sri: VIVEK REDDY, SR. ADV. FOR SRI:SUBBA REDDY K N ) 2 AND: 1. SRI P A NIRANJAN S/O LATE SRI P.S. ASWATHANARAYANA, AGED ABOUT 53 YEARS, R/AT NO.3123, 19TH CROSS, 2ND MAIN, BSK 2ND STAGE, BANGALORE 560070 2. SRI P.A. SRINATH S/O LATE SRI P.S ASWATHANARAYANA, AGED ABOUT 46 YEARS, 3. SRI P.L. VIJAYAKUMAR S/O LATE SRI P.S ASWATHANARAYANA, AGED ABOUT 53 YEARS, RESPONDENTS 2 AND 3 ARE R/AT NO.2, VASAVI TEMPLE, VISVESWARAPURAM, BANGALORE 560004 ... RESPONDENTS (By Sri: DWARAKA NATH H S, ADV. FOR C/R) HRRP FIELD U/SEC.46(1) OF KARNATAKA RENT ACT, 1999, AGAINST THE ORDERS DATED:01.08.2014 PASSED IN HRC.87/2013 ON THE FILE OF CHIEF JUDGE, COURT OF SMALL CAUSES, BENGALURU (SCCH-1), ALLOWING THE PETITION FILED U/SEC.27(2)(d)(i) AND (ii) OF KARNATAKA RENT ACT, THIS PETITION HAVING BEEN HEARD AND RESERVED FOR PRONOUNCEMENT OF ORDERS, THIS DAY A.V.CHANDRASHEKARA, J., MADE THE FOLLOWING: 3 ORDER Present Revision petition is filed under Section 46(1) of Karnataka Rent Act-1999. Revision Petitioners herein were the respondents in an eviction petition filed by the respondents herein under Section 27(2)(i)(ii)(j), 31(1)(a) & (c) of Karnataka Rent Act 1999 in case bearing No.87/13 which was pending on the file of the Court of Chief Judge, Small Causes Court, Bangalore. Learned Chief Judge has allowed the said eviction after contest directing the petitioners herein to quit and deliver the vacant possession of a residential premises bearing No.23, PID No 49-54-23 (old No. E-10) first floor Shankar Mutt Road Bangalore-560004. 2. The Trial Court has dismissed the eviction petition in so far as it relates to Section 27(2)(j) and Section 31(1)(a) & (c) of Karnataka Rent Act 1999. While allowing eviction petition, the learned Judge has mainly held that there exists the relationship of land lord and tenant between the revision petitioners herein 4 and the respondents. Consequently, the Trial Court has held that the tenants are liable to be evicted on the ground of expiry of five years from the date of the death of the original tenant. It is this order of eviction which is called in question on various grounds urged in this petition. 3. Parties will be referred to as petitioners and respondents as per their ranking in the Trial Court. 4. Facts leading to the filing of the eviction petition are as follows:Petitioners claim themselves to be the absolute owners of the petition schedule property and that their names are found as the khatedars in the property records maintained by the Bangalore City Corporation. Their case is that Dr.Hemdas was the original lessee(tenant) of their suit property paying a monthly rent of Rs.135/- and Dr. Hemdas died 5 years back leaving behind him the first respondent Avinash Lal 5 Chandani to inherit the tenancy. By virtue of Section 5 of Karnataka Rent Act-1999, the first respondent cannot continue as a tenant 5 years after the death of his predecessor i.e., original tenant Dr. Hemdas and hence respondents are liable to vacate and handover the petition schedule premises to the petitioners. Apart from this the respondents have not been residing for more than two years having inherited the tenancy and therefore they are liable to vacate and hand over the vacant possession under Section 27(2)(d)(ii) of Karnataka Rent Act-1999. Eviction is sought on yet another ground that they have not paid the arrears of rent even after the receipt of legal notice dated 13.3.2013 got issued by them. According to them the total amount of rent payable as on 31.3.3013 was Rs.6,480/-. It is further averred that the respondents have acquired a suitable residential premises and that they have been living in the said house and hence they are liable to be evicted on yet another ground available 6 under Section 27(2)(j) of Karnataka Rent Act-1999. With these pleadings, they had filed eviction petition and also sought recovery of arrears of rent of Rs.6,480/. The said petition came to be objected by the respondents by filing detailed written objections. It is their case that there is no relationship of landlord and tenant between them and the petitioners and they have called upon them to strictly prove the said relationship. It is their case that the suit schedule property belonged to a person by name Pobbathi Krishniah Setty and that one person by name Chaganlal and his brothers were residing as tenants in the suit property under the said Krishniah Setty and the said Krishniah Setty was issuing rent receipts to Changalal and his brothers who were the joint tenants. Later on, according to the respondents, suit schedule property became a trust property, a trust created by P. Krishniah Setty himself under the name and style Pobbathi Krishniah Setty and Kamalakshamma Charities Trust 7 and after the creation of the Trust, Krishniah Setty was issuing rent receipts on behalf of the said Trust to Changalal and brothers. Later on Income Tax Department issued notices to the respondents i.e., Changalal & Brothers calling upon them to pay the rent in future to the department as the Trust was liable to pay the arrears of Income Tax of the Trust. Hence respondent No.1 was paying the regularly monthly rent to Income Tax Department from 1978-79 to 1985-86. Hence, it is asserted by the respondents that Pobbathi Krishniah Setty was no more the owner of the suit property after the creation of the trust and hence they were paying the rent to the trust and that they never treated Krishniah Setty or the present petitioners as their owners after the creation of the trust. With these pleadings they requested the Court to reject the petition. 8 5. First petitioner Mr.P.A Srinath is examined as PW-1 and has got marked 13 exhibits on his behalf and 1st respondent Avinash lal Chandani is examined as RW-1 and has got marked 3 exhibits. Ultimately the learned Chief Judge of the Small Causes Court has framed following 7 points for consideration:1. Whether the petitioners prove that there exists jural relationship of landlords and tenants between the petitioners and the respondents with respect to the petition schedule property? 2. Whether the petitioners prove that the original tenant of the schedule premises has expired and thus the respondents are liable to be evicted after five years from the date of death of original tenant? 3. Whether the petitioners prove that the respondents neither paid nor tendered the whole of the arrears of rent within two months from the date on which notice of demand for payment has been served on the respondents? 4. Whether the petitioners prove that the respondents have not been in occupation of the 9 schedule premises without a reasonable cause for a period of two years? 5. Whether the petitioners prove that respondents who are the dependants on the original tenant of the schedule premises have built or acquired vacant possession of or been allotted a residence? 6. Whether the petitioners prove that they are entitled to seek eviction of the respondents as per the grounds provided under Section 31(1)(a) and 31(1)(c) of the Act? 7. What Order? 6. Points 1, 2, 4 & 5 have been answered in the affirmative and points 3 and 6 in the negative. Ultimately petition has been allowed with the following direction as found in the operative portion of the final order dated 01.08.2014:“Petition filed by the petitioners under Section 5 and Section 27 (2)(d)(i) and (ii) of the Karnataka Rent Act, 1999 is hereby allowed. The respondents are directed to quit, vacate and deliver vacant possession of the 10 schedule premises to the petitioners within 3 months from the date of this order. Petition under Section 27 (2)(j) and Section 31(1)(a) and (c) of the Karnataka Rent Act, 1999 is hereby dismissed. Under the facts and circumstances of the case, no order as to costs. Draw a decree accordingly.” 7. Points 1 to 6 have been considered together by the Trial Court. The main reason for allowing the eviction is that PW-I has admitted original tenancy under the owner Pobbathi Krishniah Setty and he has failed to produce any document relating to the property being treated as the trust property, or the suit property inherited by the petitioners being transferred in accordance with law to the said Trust. Therefore it is held that as per Section 5 of Karnataka Rent Act, the legal representatives of tenant cannot continue to reside in the tenanted property 5 years after the death of the original tenant and that eviction is to be granted since 11 they have been living in a separate house continuously for 2 years after acquitting the same. 8. Learned Senior counsel Sri. Vivek Reddy representing the revision petitioners has submitted arguments at length placing reliance upon a decision of the Hon’ble Apex Court rendered in the case Life Insurance Corporation of India vs India Automobiles & Co., (AIR 1991 SC 884) contending that the Trial Court, being a court of limited jurisdiction under Karnataka Rent Act-1999, cannot go into the question of title that too when there is a serious dispute about the title of the petitioners to the suit property. It is argued that the same will have to be left to the parties to obtain necessary declaration from a competent Civil Court of original jurisdiction. 9. Per Contra Mr. H.S.Dwarakanath, learned Counsel appearing for the petitioners has contended that RW-1 has categorically admitted about the creation 12 of tenancy by P. Krishniah Setty and payment of rent to the trust at the instance of P. Krishniah Setty and therefore he cannot question the ownership of the petition schedule property by the petitioners that too when their paternal grand father Pobbathi Sampangi Ram Setty had been adopted by Pobbathi Krishniah Setty and his wife which is reiterated in Ex.P8 the original registered sale dated 31.5.1948 executed jointly by P. Krishniah Setty and his adopted son Sampangi Ram Setty. 10. Per Contra Learned Senior Advocate Sri. Vivek Reddy has argued that in view of several admissions being culled out from the mouth of PW-1, the Trial Court which is a Court of limited jurisdiction could not have ventured to decide the vexed question of title and therefore the Trial Court has adopted a wrong approach to the real state of affairs. In the light of the 13 submissions made before this Court, following points arises for consideration before this revisional Court:(1) Whether the Trial Court is justified in going deep into the question to title of petitioners in the light of Section 43 of Karnataka Rent Act 1999? (2) Whether the Trial Court’s order needs to be interfered with and if so what extent? Reasons Point No.1 11. “Court” is defined in Section 3(c) of Karnataka Rent Act 1999 which has came into force from 31.2.2001. As per Section 3(c) Court means, in respect of area comprised within the limits of the city of Bangalore, Court of Small Causes. It has a very limited jurisdiction and hence, the Court would not be a final authority to adjudicate on issue of title. 14 12. Section 46(1) of Karnataka Rent Act 1999 provides for filing a revision to the High Court against the order of Rent Court. This section 46 is analogous to 50 of repeated enhancement i.e., Karnataka Rent Control Act-1961. The revisional jurisdiction under Section 46 providing for revisional jurisdiction of the District Court or of the High Court is not akin to the restricted revisional jurisdiction provided under Section 115 of C.P.C. The revisional jurisdiction found in Section 46(1)(2) of Karnataka Rent Act 1999 is almost akin to the appellate jurisdiction found in Section 96 of CPC. Hence the revisional Court can reassess the evidence placed before the Court if material evidence is either ignored or misinterpreted or law has been misapplied to the facts of the case. 13. The Hon’ble Apex Court in the case of M/s.Bhoolchand and Anr. vs. M/s.Kay Pee Cee Investments and Anr. (AIR 1991 SC 2053) has held 15 that the power of revision under Section 50 of Karnataka Rent Act 1961 is not narrow as found in Section 115 of CPC and that revisional Court is required to satisfy itself not only as to the legality of the impugned order but also of its correctness. It is further made clear by the Hon’ble Apex Court that the power extends to correcting not merely errors of law but also error of facts. Though the revisionsal power cannot be equated with Section 107(2) of CPC, definitely it is akin to it in the sense it can correct factural errors if the appreciation of the evidence done by the “court” is apparently improper or incorrect leading to injustice. 14. While dealing with Sections 4 & 10 of T.N. Buildings (Lease and Rent Control ) Act-1960, Hon’ble Apex Court in the case of Life Insurance Corporation of India vs India Automobiles AIR 1991 S.C. P.884 has held that in view of the control scheme and term of the legislation, the Rent Controller and the authorities 16 to whom appeal or revision could be preferred from his orders would not be final authorities to adjudicate on the question of title and that such a finding on title would not act as rejudicate in terms of Section 11 of CPC. It is further held that the Rent Controller as specified under the T.N. Buildings. Agreeing with the submission made by Sri.Parasaram, learned Sr. Advocate Hon’ble Apex Court in the case of Life Insurance Corporation of India vs India Automobiles has held in paragraph 20 as follows :“But we think Sri .Parasaran is right in the third con- tention urged by him before us which goes to the root of the matter. His argument is that a Rent Controller and, on appeal from him, the Court of Small Causes, is not competent to go into a question of title to immovable property and that a civil court cannot be barred from examining a claim of title merely because the question may have had to be considered by the Rent tribunals as a collateral issue in deciding certain applications before them. He contended that it is a basic proposition, well-settled by 17 authority, that a tribunal of limited jurisdiction like the Rent Controller (this expression will, hereinafter, also include a Court of Small Causes disposing of an appeal from him) cannot be clothed with jurisdiction to decide farreaching questions of title to immovable property. This, he said, is a proposi- tion that is borne out on general principles as well as on the provisions of the Rent Control Act.” 15. The principles found in paragraph 20 of the above decision is a binding precedent under Article 141 of the Constitution of India insofar as the limited jurisdiction of a Rent Controller or a Court of Small Causes under the Rent Legislation Act of any state. Keeping in mind the decision rendered in the case of Life Insurance Corporation of India vs India Automobiles, an attempt will have to be made to look into the oral and documentary evidence record. placed on 18 16. What is vehemently argued by Sri. H.S. Dwarakanath for the petitioners is that in terms of Section 43(1) of Karnataka Rent Act-1999 the respondents cannot deny the title of the petitioners more particularly when they have admitted the original tenancy created by Sri.Pobbathi Krishniah Setty. It is further argued that Sri.Pobbathi Sampangi Ram Setty had been adopted by Pobbathi Krishniah Setty and there is a clear reiteration to that effect in the original Registered Sale Deed executed vide Ex.P8 by Pobbathi Krishniah Setty and his adopted son on 31.5.1948 a deed of more than 64 years. Hence Ex.P8 is an important document evidencing adoption of Sampangi Ram Setty by Pobbathi Krishniah Setty. It is argued that there need not be oral evidence relating to an adoption which took place about 6 to 7 decades ago, since the persons who were present at the time of adoption are not likely to be alive. 19 17. But the question that arises is as to whether even after adoption, the schedule property continued to be in the lawful ownership of Pobbathi Krishniah Setty till his death. Admittedly the schedule property was purchased by Pobbathi Krishniah Setty in a Court auction held in Ex.20/1937-38 arising out of a judgment and decree passed in O.S.No.20/1937-38 on the file of erstwhile District Court Bangalore as evidenced in the Original Sale-Certificate marked as Ex.P3. Hence it can be definitely held that schedule property was the self-acquired property of Pobbathi Krishniah Setty and he could deal with the schedule property in any manner he liked. 18. What is observed by the Trial Court in regard to the existence of the relationship of landlord and tenant, as found in paragraph 22 of the impugned order, is that RW-I has admitted the ownership of Pobbathi Krishniah Setty and that RW-I has no 20 document evidencing the transfer of ownership of the schedule property by Pobbathi Krishniah Setty in favour of the trust. The Trial Court has relied upon the deposition of RW-I in which it is found that rent was being paid to the trust at the instance of the original owner. 19. It is true that RW-I or the original tenant have not set up their title to the property. Therefore it cannot be contended that the respondents are estopped from denying the title asserted by the petitioners. The respondents have asserted not only in their written objections filed to the main petition that the trust in question has become the owner of the property but also in the deposition of RW-I. Hence, it is useful to refer to some important documents filed by the respondents in the Trial Court. 20. Ex R-I is the original rent receipt issued by Sri.P.S. Ashwathnarayan Setty, the deceased father of 21 PW-I on 12.6.92 for having received rent of Rs.136/from Chagalal & Brothers being the rent of petition schedule property for the month of May 1972. The said P. Ashwathnarayan is none other than the father of PW-1 and grand son of Pobbathi Krishniah Setty. Admittedly Pobbathi Krishniah Setty was alive in 1972 since he died almost 5 years after his wife died in 1971. The said Pobbathi Krishniah Setty was a big cloth merchant and had many properties and this is borne out of the evidence of PW-I himself. 21. Similarly rent receipts dated 16.5.1970, 20.6.1970, 24.10.1970, 17.11.1970, 15.12.1970, 23.9.1970, 10.9.1971, 11.10.1971, 5.11.1971, 7.12.1971, 16.6.1971, 14.7.1971, 9.3.1971, 12.4.1971, 9.1.1971, 12.2.1971, 7.1.1972, 9.2.1972, 7.4.1972, 18.7.1970, 24.8.1970, which are part of Ex.R-3-series have been issued on behalf of M/s Pobbathi Krishniah Setty, cloth merchant. Ex.RI rent receipt dated 22 12.6.1972 appears to be the last receipt issued on behalf of Pobbathi Krishniah Setty. More than 150 monthly rent receipts from 7.3.1973 upto 12.2.1992 have been issued by Pobbathi Krishniah Setty and Kamalakshamma Charities (Trust) NO.2, Vasavi Temple Road, Bangalore-4. Ex.R3 series Most of these receipts marked as have been issued by Sri.P.S. Ashwatnarayana father of PW-I, i.e., grandson of Pobbathi Krishniah Setty. 22. During the course of cross examination PW- 1, he has specifically deposed that Kamalakshamma died first and Krishniah Setty died later. He has admitted the suggestion put to him as true that Pobbathi Krishniah Setty had formed the charitable trust namely Kamalakshamma Pobbathi Charities Krishniah Trust and Setty and the said Krishniah Setty was a wealthy man. He has feigned ignorance about the suggestion put to him to the effect 23 that Krishniah Setty was doing charity work like providing food, education and clothing to poor children. He has further feigned ignorance about the suggestion put to him that his father and uncles were also doing the said charity work. He has further admitted the suggestion as true to the effect that trust was assessed to income tax in IT Department and that he had been told by his father about the arrears of income tax due from the charity to the IT Department. 23. But he has feigned ignorance about the notice being issued by the IT Department to the respondents and respondent No.1 paying annual rents to the IT Department towards income tar arrears upto 31.3.2013. Though, he has deposed that he was paying rents to IT Department towards arrears of IT, he has not placed any documentary evidence to that effect. PW-1 has specifically admitted that Pobbathi Krishniah Setty and Kamalakshamma Charities has its office at 24 No.2, Vasavi Temple Road, VV Puram, Bangalore-04 and that after formation of the trust, respondent No.1 was paying rents to the trust in respect of petition schedule premises. Though he has deposed that he has cleared all the arrears of income tax to the IT department by the end of March 2013, he has not placed any documents to that effect. 24. The learned Judge has lost sight of the fact that if the property in question had been actually owned by Krishniah Setty, even after the formation of Charitable Trust rent receipts would have not have been issued by the M/s.Pobbathi Krishniah Setty Charitable Trust. These important admissions culled out from the mouth of PW-1 and relevant documents have not been referred to and discussed in right perspective. Further, the cross examination of PW-1 would disclose that he does not have any papers pertaining to the trust and no meetings are held in 25 respect of the trust. It is his case that he has not submitted any income tax returns to the IT Department. Further, the cross examination of PW-1 would disclose that rent receipts were being issued by through the treasurer of the trust and that is forthcoming in Ex.R-2 dated 27.2.1986 and other receipts. 25. As already discussed, Sampangi Ramaiah Setty, the adopted son of Pobbathi Krishniah Setty and his son have issued rent receipts for and on behalf of the charitable trust to the respondent No.1 and said receipts have been placed on record. He has specifically admitted that there was arrears of income tax to be payable by the trust. Though he has deposed that he has paid arrears of income tax to the IT department, no documents are placed on record. Hence, an adverse inference has to be drawn under Section 114(g) of Evidence Act. Just because RW-1 has not been able to produce certain documents evidencing the transfer of 26 schedule property in favour of the trust, it cannot be said that PW-1 has discharged the initial responsibility when the rents in respect of schedule property was being paid to the Trust for many years and the same being admitted by PW-1. The learned Judge has not discussed the important aspects relating to the title of the property in question. 26. The learned counsel for the petitioner has relied upon Section 43 of Karnataka Rent Act which reads as follows: 43. Dispute of relationship of landlord 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 parties 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 as prima-facie evidence of relationship and proceed to hear the case. 27 (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 subsection(1) above is produced, or (b) in the opinion of the Court there is reason to suspects 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. 27. Further, the learned counsel for the petitioner has relied upon Section 43(1)(a) to contend that RW-1 has admitted that the ownership of Krishniah Setty relating to the property in question and therefore, he is estopped from pleading contrary to his own acts.. The question that arises is as to whether the 28 property actually remained to be absolute property of Krishniah Setty and his children even after formation of the trust or whether the trust has become the owner of the property in question. 28. Further, what is argued by the learned counsel for the petitioner is that PW-1 has admitted ownership of Krishniah Setty and rent receipts being issued by Krishniah Setty. But during the very life time of Krishniah Setty rent receipts came to be issued on behalf of the trust created by him. 29. Section 43 mentions only the “Court” has power to refer parties to Civil Court. If there are concurrent findings in regard to relationship of the landlord and tenant given by “the Court” and affirmed by the District Court under Section 46(2) of Karnataka Rent Act, then the jurisdiction vested in the High court under Section 151 of CPC will be very limited. 29 30. In the light of useful admissions being culled out from the mouth of RW-1 and in the light of certain documents placed on record by RW-1, the learned Judge could not have decided such an important question relating to title. When the “Court” as contemplated under Karnataka Rent Act is a Court of limited jurisdiction, it cannot go into the niceties of title. Suffice to state that the approach adopted by the Trial Court is not correct and not proper. Such delicate question should have been left open to be decided by a competent Civil Court. 31. In the instant case, the petition is filed directly before the High Court as the final order is passed by the Small Causes Court. As discussed, the revisional power of this Court is wider than the one contemplated under section 115 of CPC. 30 32. Viewed from any angle, the impugned order is not sustainable either in law or facts and is liable to be set aside directing the parties to approach the Civil Court for obtaining necessary declaration. ORDER The petition is allowed. The impugned dated 1.8.2014 order passed in HRC 87/2013 is set aside. The competent parties Civil are Court directed for to approach obtaining the necessary declaration. Amount, petitioners if herein, any, deposited by the revision be returned to the revision petitioners. There is no order as to costs. Sd/JUDGE DM