Disposed

Mrs Sylvia Saldanha v. Mr M Titus

Karnataka HC22 Jul 2021HRRP/47/2018

Case brief

AI extract

What is this about?

High Court disposed of two revision petitions challenging land/tenant rulings. Petitioner sought to remain as owner or tenant; respondent claimed landlord status. Court reserved right for respondent to prove ownership if property location differs and disposed of pending applications.

What did the court decide?

Revision petitions disposed of; respondent reserved right to evict petitioner from Jeppinamogaru house, but must prove ownership for Kankanady house.

Mrs Sylvia Saldanha Vs Mr M Titus — Landlord and Tenant | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF JULY, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE M.I.ARUN

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HRRP NO.47 OF 2018 C/W HRRP NO.30 OF 2016 (EVI)

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IN HRRP NO.47 OF 2018

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BETWEEN :

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MRS. SYLVIA SALDANHA D/O DORATHY VEIGAS AGED ABOUT 49 YEARS R/AT LOBO COMPOUND GORIGUDDA, MANGALURU – 575 002 … PETITIONER

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(BY SRI SHIVARAMA BHAT O., ADVOCATE)

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AND :

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MR. M. TITUS S/O LATE MOSSES AGED ABOUT 82 YEARS R/AT LOBO COMPOUND NEHRU ROAD, ANGARAMAJAL P.O. KANKANADY MANGALURU – 575 002 … RESPONDENT

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(BY SRI M.SUDHAKAR PAI, ADVOCATE)

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THIS HRRP IS FILED UNDER SECTION 115 OF CPC AGAINST THE ORDER DATED 19.09.2018 PASSED IN R.R.P.NO.17/2016 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K. MANGALURU, ALLOWING THE RENT REVISION PETITION AND SETTING ASIDE THE ORDER DATED 17.03.2016 PASSED ON I.A. NO.III IN EX.CASE NO.50/2016 ON THE FILE OF THE IV ADDITIONAL

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CIVIL JUDGE AND JMFC., MANGALURU, ALLOWING THE I.A.NO.III FILED UNDER ORDER 21 RULE 97 READ WITH SECTION 151 OF CPC.

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IN HRRP NO.30 OF 2016

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BETWEEN :

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MRS. DORATHY VERIGAS SINCE DEAD BY LR.

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1(a) SYLVIA SALDANHA D/O LATE DORATHY VEIGAS AGED 49 YEARS R/AT D.NO.10-60/5(5) GORIGUDDA NEHRU ROAD KANKANADY P.O. MANGALURU – 575 002 (AMENDED AS PER THE ORDER DATED 10.10.2018) … PETITIONER

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(BY SRI. SHIVARAMA BHAT O., ADVOCATE)

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AND :

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MR. M.TITUS S/O LATE MOSSES AGED ABOUT 77 YEARS R/AT LOBO COMPOUND NEHRU ROAD, ANGARAMAJAL P.O. KANKANADY MANGALURU – 575 002 … RESPONDENT

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(BY SRI M.SUDHAKAR PAI, ADVOCATE)

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THIS HRRP IS FILED UNDER SECTION 115 OF KARNATAKA RENT ACT, 1999 AGAINST THE ORDER DATED 25.07.2015 PASSED IN R.R.P.NO.1/2013 ON THE FILE OF THE I ADDL. DISTRICT AND SESSIONS JUDGE, D.K., MANGALORE, ALLOWING THE PETITION FILED UNDER SECTION 46(2) OF THE KARNATAKA RENT ACT AND SETTING ASIDE THE IMPUGNED

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ORDER DATED 13.08.2012 PASSED IN H.R.C.NO.101/2002 ON THE FILE OF THE III ADDITIONAL CIVIL JUDGE, MANGALORE, D.K. DISMISSING THE PETITION FILED UNDER SECTION 27(2)(3)(a)(o)(r) AND 31(1)(c) OF THE KARNATAKA RENT ACT.

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THESE PETITIONS COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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HRRP No.47/2018 is preferred against the order dated 19.09.2018 passed by the Court of IV Additional District and Sessions Judge, Dakshina Kannada, Mangaluru, in RRP No.17/2016 allowing the revision petition filed by the respondent herein. HRRP No.30/2016 is preferred against the order dated 25.07.2015 passed by the Court of I Additional District and Sessions Judge, D.K., Mangaluru in RRP No.1/2013 allowing the revision petition filed by the respondent herein. The respondent in both the revision petitions is one and the same person. The petitioner in HRRP No.47/2018 has filed the revision in her personal capacity and she has filed HRRP No.30/2016 as a legal representative of her deceased mother. Both the revision petitions pertain to the same property.

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The respondent in HRRP No.30/2016 filed HRC No.101/2002 on the file of III Additional Civil Judge, Mangaluru, D.K., against one Mrs. Dorathy Veigas, who is the mother of the petitioner herein. It was contended by the respondent herein that he is the absolute owner of the residential premises situated in Lobo Compound bearing door no.1-160 along with other residential premises comprised in Survey No.117-1A1 of Jeppinamogaru village of Survey No.45/1 and Survey No.101/1A of Kankanady B Village of Mangaluru Taluk within the Mangaluru City Corporation. It was contended that the said door No.1-160 was occupied by the mother of the petitioner herein. The court below, after considering the evidence, came to the conclusion that the petitioner therein (respondent herein) has failed to prove the relationship of landlord and tenant between himself and the respondent therein with respect of the premises and dismissed the petition.

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While passing the said order, the court below has taken into consideration the judgment passed by the Principal Civil Judge (Jr.Dn.), Mangaluru in O.S.No.200/2004 clubbed with O.S.No.263/2003. In the

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said suits, the trial court came to the conclusion that the respondent herein is the owner of 16 cents of land situated in Survey No.117-1A1 of Jeppinamogaru village and door Nos.1-154 to 1-162 which includes door No.1-160 which is the subject matter of these revision petitions. A reading of the said judgment indicates that the said door no.1-160 is situated in Survey No.117-1A1 of Jeppinamogaru village. The judgment does not speak about the rights of the respondent herein in Survey Nos.45/1 and 101/1A of Kankanady B village. The said judgment was challenged in R.A.Nos.48 and 49 of 2009 by the petitioner herein on her behalf and also on behalf of her mother, as she was dead by then, on the file of I Additional Senior Civil Judge, Mangaluru, D.K. The said appeals have been dismissed by the Appellate Court and it has reached finality. The court below in HRC No.101/2002 concluded that the respondent

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herein is claiming ownership over door No.1-160 which is situated in Kankanady B village and that the respondent herein had failed to prove the jural relationship of landlord and tenant and directed the parties to approach the Civil Court and dismissed the HRC petition. Aggrieved by the order passed in HRC No.101/2002, the respondent herein preferred RRP No.1/2013 before the I Additional District and Sessions Judge, Mangaluru. The said Court, after reappreciating the evidence, concluded that the respondent herein had purchased 16 cents of land in Survey No.117-1A1 of Jeppinamogaru village by virtue of the sale deed dated 22.02.1994 and that subsequently, two rectification deeds dated 06.02.2004 and 20.03.2004 were executed by virtue of which he became the owner of the properties measuring 4½ cents in Survey No.45/1 of Kankanady B village and 3 cents of Survey No.101/1A of Kanakanady B village. The first revisional Court also places its reliance upon Ex.P12 which is the attornment notice issued jointly by the respondent herein and his predecessor in title one Mrs. Saverine Lobo dated

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24.02.1994 to the mother of the petitioner herein. It has also observed that the petitioner herein has admitted her tenancy under the predecessor in title of the respondent herein in her evidence and has consequently allowed RRP No.1/2013 and the petitioner herein has been directed to handover the vacant possession of the petition schedule premises to the respondent herein within three months from the date of the order.

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Subsequent to the said order, the respondent herein preferred Execution No.50/2016 on the file of the Principal Civil Judge and JMFC, Mangaluru to have the order passed in RRP No.1/2013 executed and thereby to have the mother of the petitioner herein vacated from the premises. In the said execution petition, her daughter, the present petitioner filed I.A.No.3 as obstruction petitioner under Order 21 Rule 97 read with Section 151 of CPC contending that she had purchased door Nos.1-157, 1-158, 1-159 and 1-160 (mulgar right) in RS No.45/1 of 84B, Kankanady village, Mangaluru. Accepting the contention of the

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petitioner herein, I.A.No.3 filed by her as obstructer was allowed by the Executing Court and it held that a detailed enquiry is necessary before passing an order for delivery of warrant in favour of the decree holder and posted the matter for issues.

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The said order of the Executing Court in Execution No.50/2016 was challenged in RRP No.17/2016 by the respondent herein. The Revisional Court, based on the evidence, concluded that what has been acquired by the petitioner herein is only a mulgar right and the respondent herein is having moolgeni right over the property concerned and it also took into consideration the issuance of attornment notice by the predecessor in title of the respondent herein, Mrs. Saverine Lobo jointly with the respondent herein. On the said ground, it allowed the revision petition by setting aside the order passed by the Executing Court on the application filed by the petitioner herein as an obstructer in the execution petition.

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Aggrieved by the order passed in RRP No.1/2013 wherein the respondent herein is held to be the landlord and the deceased mother of the petitioner herein is held to be the tenant and a direction was issued for the tenant to vacate the petition schedule premises, HRRP No.30/2016 has been filed by the petitioner herein as the legal representative of her mother. Aggrieved by the order of the revisional court in RRP No.17/2016 wherein the application of the petitioner herein under Order 21 Rule 97 read with Section 151 of CPC has been dismissed, the obstructer/petitioner has preferred HRRP No.47/2018.

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The issue that arises for consideration in these revision petitions is whether the respondent herein is a ‘landlord’ in respect of Door No.1-160 for the purposes of the Karnataka Rent Act, 1999 and that there exists jural relationship of landlord and tenant between the respondent herein and the petitioner herein.

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Heard the learned counsel for the parties.

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It is the contention of the petitioner herein that she is the owner of Door No.1-160 situated in RS No.45/1 in 84B Kankanady village, Mangaluru Taluk. She has relied upon the sale deed dated 13.01.2003 produced as Ex.R1 to claim her ownership over the property and based on the same, she denies the allegation that she or mother were tenants under the respondent herein.

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It is noticed by virtue of Ex.R1, the petitioner has purchased only the mulgars (warga) right from the original mulgar of the property. She has not purchased the right of permanent tenancy (moolgeni rights). The respondent herein by virtue of Ex.P11 dated 22.02.1994 has purchased moolgeni rights in respect of 16 cents of land in Survey No.117-1A1 of Jeppinamogaru village and subsequently by way of rectification deeds dated 06.02.2004 and 20.03.2004 (Exs.P1 and P2) has become the owner of moolageni rights in respect of 3 cents of land in Survey No.101/1A and 4½ cents of land in Survey No.45/1 of Kankanady B Village. The sale deed dated

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22.02.1994 also mentions that the respondent herein became the owner of house properties bearing door Nos.1154 to 1-162 which also includes the disputed property bearing door no.1-160. As per the findings recorded by the trial court in O.S.Nos.200/2004 c/w 263/2003 and the Appellate Court in R.A.Nos.48 and 49/2009 referred to above, the petitioner herein has admitted her tenancy in respect of the property in question and has conceded that the predecessor in title of the respondent herein Mrs. Saverine Lobo was the landlord. Exs.P12 is the attornment notice which shows the change of ownership from Mrs. Saverine Lobo to the respondent herein and the same is issued by both the parties jointly to the late mother of the petitioner herein and it pertains to door no.1-160.

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It is the specific contention of the petitioner herein that door no.1-160 is situated in Kanakanady village, Mangaluru Taluk and she does not admit her tenancy over the same and contends that the respondent is not the

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landlord. However, the petitioner concedes to the fact that the respondent herein is the owner of 16 cents of land situated in Survey No.117-1A1 of Jeppinamogaru village and all the buildings constructed thereon and that she has no right, title or interest of any nature whatsoever on the said property and if the present property were to be in Jeppinamogaru village, she undertakes that she would quit and deliver vacant possession of the same in favour of the respondent herein.

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In the course of the arguments, the respondent has vehemently argued that he is having the moolgeni right over Survey No.117-1A1 of Jeppinamogaru village and 3 cents of land in Survey No.101/1A and 4½ cents in 45/1 of Kankanady B Village and what right the petitioner has got in RS No.45/1 of Kanakanady village is only a mulgar right and not moolgeni right and given the fact that she has admitted as to her tenancy in O.S.Nos.200/2004 c/w 263/2003 and there has been a joint attornment notice issued proves the jural relationship of landlord and tenant

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between the respondent and the petitioner herein and the present revision petitions need to be dismissed.

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However, in the course of arguments, the respondent has contended that door No.1-160 which is presently in the occupation of the petitioner herein is situated in 16 cents of land in Survey No.117-1A1 of Jeppinamogaru village and as there is no dispute about his ownership over the said 16 cents of land and the buildings constructed thereon, the revision petitions may be dismissed. Thus, it is the contention of the respondent that door no.1-160 which is in occupation of the petitioner herein is situated in Survey No.117-1A1 of Jeppinamogaru village and it is specifically stated by the petitioner that if that be so, she has no problem in vacating the said property and that she has filed these revision petitions only on the ground that the property in question is situated in RS No.45/1 of Kankanady village.

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Under the circumstances, it would be appropriate to dispose of the revision petitions by reserving the right to

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the respondent herein to have the petitioner herein vacated from the house property bearing door no.1-160 situated in Survey No.117-1A1 of Jeppinamogaru village, but in case, if door no.1-160 were to be situated in RS No.45/1 of Kankanady village, the respondent has to initiate appropriate proceedings to prove his ownership and then have the petitioner vacated from the property. Ordered accordingly.

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With the above observation, the revision petitions stand disposed of. Pending I.As. do not survive and they stand disposed of accordingly.

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Sd/JUDGE

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hkh.

Mrs Sylvia Saldanha v. Mr M Titus

Case brief

What is this about?

What did the court decide?

Mrs Sylvia Saldanha v. Mr M Titus

Case brief

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