Dismissed

Mr. Barakathulla Khan v. Mr. N Kanaga Sabai

Karnataka HC7 Aug 2024HRRP/1/2023

Case brief

AI extract

What is this about?

Tenant challenged eviction ordered on landlord's bona fide own-use requirement under Section 27(2)(r) of the Karnataka Rent Act, disputing jural relationship and property description and citing a pending title suit. The High Court found no merit in the tenant's contentions and dismissed the revision petition, granting time to vacate while protecting the tenant's rights if he succeeds in the suit.

What did the court decide?

Revision petition dismissed; tenant directed to vacate and hand over premises voluntarily on or before 31 August 2024, with liberty to recover possession if he succeeds in the pending suit.

Mr. Barakathulla Khan Vs Mr. N Kanaga Sabai — Landlord and Tenant | Karnataka HC (2024)

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NC: 2024:KHC:31502 HRRP No. 01 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7^TH DAY OF AUGUST, 2024 BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA HOUSE RENT REV. PETITION No.1 OF 2023 (EVI)

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BETWEEN:

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MR. BARAKATHULLA KHAN S/OLATE AHMED KAHN AGED ABOUT 50 YEARS NO.88, 89 CHANDNI CHOWK ROAD SHIVAJINAGAR, BANGALORE -1

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WRONGLY SHOWN AS PRESENTLY IN COMMERCIAL PORTION OF PREMISES BEARING NO. 5 ‘B’ NO.13^TH STREET CHANDNI CHOWK ROAD CROSS, SHIVAJINAGAR BENGALURU -560 051

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…PETITIONER

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(BY SRI SKANDA KUMAR FOR SRI RAGHUNATH M D, ADVOCATES)

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Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA

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AND:

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MR. N KANAGA SABAI S/O LATE T NAGALINGAM PILLAI AGED ABOUT 86 YEARS PRESENTLY R/AT MAIN RESIDENTIAL PROTION OF PREMISES BEARING NO.5, ‘B’ NO. 13^TH STREET, CHANDNI CHOWK ROAD CROSS, SHIVAJI NAGAR BENGALURU -560 051

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…RESPONDENT

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(BY SRI ARJUN REGO FOR SRI REGO L P E, ADVOCATES)

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2 - NC: 2024:KHC:31502 HRRP No. 01 of 2023

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THIS HRRP IS FILED UNDER SECTION 46(1) OF THE KARNATAKA RENT ACT, 1999 AGAINST THE ORDER DATED 28.11.2022 PASSED IN HRC.NO.10021/2018 ON THE FILE OF THE XV ADDITIONAL SMALL CAUSES JUDGE AND XXIII ACMM, BENGALURU, ALLOWING THE PETITION FILED UNDER SECTION 27(2)(r) OF THE KARNATAKA RENT ACT, 1999. FOR EVICTION.

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THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL ORDER

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Heard Sri Skanda Kumar for Sri Raghunath M.D., counsel for the revision petitioner and Sri Arjun Rego for Sri Rego L.P.E., counsel for the respondent.

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Tenant is the revision petitioner, challenging the order dated 28^th November, 2022, passed in HRC No.10021/2018, on the file of XV Additional Judge, Small Causes Court, Bengaluru (SCCH-19).

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Facts in brief which are utmost necessary for disposal of the revision petition are as under:

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Landlord filed a petition for eviction of the tenant from ‘B’ schedule premises which is a portion of the ‘A’ schedule premises, by filing an eviction petition which on contest, came to be allowed.

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It is further contended that the premises is required for own use of the landlord after evicting the tenant.

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After receipt of notice of the eviction petition, tenant appeared before the Court filed detailed written statement, denying the jural relationship of landlord and tenant and also the grounds for eviction.

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Apart from denying the relationship, an application

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under Section 43 of the Karnataka Rent Act, 1999 came to be filed by the tenant which on contest came to be dismissed.

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Tenant filed a revision petition before this Court against the order of rejecting the application under Section 43 of the Karnataka Rent Act, 1999, this Court while disposing of the said revision petition, observed that the question can be reagitated by the tenant at the time of final disposal of the eviction petition.

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In the meantime, a suit is also filed claiming the ownership over the property. The said suit is pending.

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Based on the pendency of the civil suit and the relationship being denied, the tenant opposed the eviction petition.

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Learned Trial Judge after recording the evidence of the parties and considering the rival contentions of the parties, allowed the petition filed by the landlord under Section 27 (2) (r) of the Karnataka Rent Act, 1999 and granted two months time to vacate the premises. Said order came to be passed on 28.11.2022.

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Being aggrieved by the same, tenant is before this Court in this revision on the following grounds:

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“The Court below erred in allowing the petition

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The Court below ought to have dismissed the petition

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The Court below ought to have seen that there is no relationship of landlord and tenant between the Petitioner and the Respondent.

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The petition ought to have dismissed in toto.

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The schedule property claimed by the Respondent herein was originally owned by the father and mother of Petitioner herein viz., late Ahmed Khan and late Sufiya Begum, who have acquired under the registered sale deed dated 16.08.1993 and the Schedule 'B' property claimed by the Respondent herein forms the part of the acquisition by the parents of the petitioner

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5 - NC: 2024:KHC:31502 HRRP No. 01 of 2023

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By oral gift, the possession was transferred to this petitioner and the same was acquired on 01.04.1994.

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Revenue records were mutated and property taxes are paid and Katha stands in his name.

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The Respondent's claim is under the forged and fabricated documents which has no sanctity in the eyes of law, which does not create any ownership right, parties went to into trial.

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The Court below ought to have seen that there is a dispute about Identity of the property, the Respondent herein has not clarified by producing and substantiating the Schedule 'B' property belongs to him. The said property forms the part of Schedule 'A' property is not proved and erred in allowing the petition.

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The Court below ought to have seen that ExP2 does not clarify Schedule 'B' property, which forms the part of Schedule 'A' property erred in accepting the same.

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The Court below ought to have seen that the Petitioner herein had filed an application under Sec. 43 of Karnataka Rent Act which came to be dismissed by the Hon'ble Court and the matter went up to the Hon'ble High Court of Karnataka, the Hon'ble High Court of Karnataka passed an order dated 13.02.2020 in HRRP 8/2020 and has granted liberty to the Petitioner herein to approach Civil court seeking declaration of his title in respect of Schedule 'B' property shown in HRC 10021/2018, erred in not noticing the same.

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The Court below further ought to have seen that the Petitioner herein has filed a suit for declaration in OS 25283/2022 against the Petitioner erred in not noticing the same below.

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The Court below further ought to have seen that since the suit for declaration has been filed in OS 25283/2022, the Court below ought to have stopped the proceedings in HRC Court and ought to have awaited for a decision of the declaratory suit erred in not doing so.

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The Court below further ought to have erred in not noticing that the petition is filed under Sec. 27 (2) (r) of Karnataka Rent Act and erred in not noticing that no proof of requirement is produced by the Respondent herein, erred in allowing the petition under Sec 27 (2) (r) of Karnataka Rent Act.”

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Sri Skanda Kumar, representing the revision petitioner, reiterating the grounds urged in the revision petition contended that there is a serious dispute as to the jural relationship, the Trial Court ought not to have ventured further in adjudicating the revision petition on merits. As such, the order under revision is not sustainable in law and sought for allowing the revision.

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He also pointed out that the result of the application

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filed under Section 43 of the Karnataka Rent Act, 1999, did not attain the finality inasmuch as this Court in the revision petition

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filed by tenant earlier directed the Eviction Court, to consider the question of jural relationship at the time of final disposal of the eviction petition and landlord being a party to it, having not challenged the same, ought not to have proceeded with the eviction petition, but landlord should have resorted the Civil Court for appropriate relief and sought for allowing the revision petition.

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Per contra, learned counsel for the respondent supports the impugned order. He further contends that the pendency of the Civil suit did not come in the way of existence of the jural relationship between the parties and if the revision petitioner succeeds in the suit, he can always get back possession of the property. Therefore, the grounds urged in the revision petition do not possess any merit and sought for dismissal of the revision petition.

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Having heard the parties in detail, this Court perused the material on record meticulously.

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On such perusal of the material on record, it is crystal clear that not only the relationship disputed between the

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8 - NC: 2024:KHC:31502 HRRP No. 01 of 2023

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parties, but also the description of the property is disputed by the tenant.

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Application filed by the tenant under Section 43 of the Karnataka Rent Act, 1999 came to be dismissed and the matter was carried to this Court in revision.

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However, this Court disposed the revision petition with a direction to consider the question of jural relationship along with the main matter.

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Pendency of the suit is not in dispute. The tenant therein claims as an owner of the property based on the sale deed. At an undisputed point of time, since the relationship was not in dispute, the application under Section 43 of Karnataka Rent Act, 1999 came to be dismissed by the eviction Court.

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Strictly speaking, the finding recorded therein would definitely act as constructive res judicata between the parties, in the absence of the observations made by this Court in the earlier revision petition.

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Why the landlord did not challenge the said order in the earlier revision petition is not explained by the landlord.

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9 - NC: 2024:KHC:31502 HRRP No. 01 of 2023

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Fact remains that there was a direction and observation by this Court in the earlier revision petition, the tenant was given an opportunity to re-agitate the issue of jural relationship at the time of disposal of the main petition.

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Therefore, the learned Trial Judge has discussed in detail about the material evidence on record in paragraph 27 to 32 of the impugned order which reads as under:

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“27. It is pertinent to note here that on careful scrutinity of judgment and decree passed in said SC.No.15024/2020, the documents produced by the present Respondent in the said suit are only alleged Rent agreement, Copy of Legal notice and Postal acknowledgment, but the Plaintiff/ respondent had not produced the Khata extract of suit premises. So, filing of SC.No.15024/2020 during the pendency of this HRC petition is with a malafide intention only.

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28. Further in the Cross examination RW.1 at page No.7 in para No.4 deposed that, “after the Judgment in S.C.No.15024/2020 I have taken the possession, Mishra handed over the possession voluntarily, I cannot say the date on which the possession was handed over by Mishra. ” This testimony of RW.1 shows his malafide intention and the tenant Mishra handed over the possession voluntarily and he cannot say the date. This evidence itself is sufficient to hold that, SC.No.15024/2020 is filed only to defeat the present petition and create more complications.

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10 - NC: 2024:KHC:31502 HRRP No. 01 of 2023

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29. Further Ex.P7 Property card, Property register and City survey map reveal that, suit property No.5 is standing in the name of Petitioner and earlier to his name, his father name Nagalingam Pillay is appearing. Further city Survey map also shows suit passage, whereas the sale deed of the respondent is in respect of property No.88 and 89.

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30. Ex.R2 & R6 photographs produced by the respondent indicate that, the disputed passage is having locked old doors in Green colour. By looking into Ex.R2 it is fully locked and it does not look that, it is in the occupation of anyone. But in para no.5 of Cross examination the RW.1 deposed 22 SCCH – 19 HRC.10021/2018 that, “Since 1994 I am in the possession of B- schedule property by way of Hiba. I have produced the documents to show that, I came in the possession of B-schedule property, such as Sale deed and Hiba nama. It is not true to suggest that, the Sale deeds and Hiba nama do not disclose that, I came in posession of B-schedule property.”

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31. On careful scrutiny of Ex.R8 sale deed and Ex.R9 Declaration/Hiba nama which disclose that, the property number is shown as Old No.71A and New no.89 and premises bearing Old No.72 New No.88. Therefore, as already discussed above the petition Schedule B-property number is 5, though this petition is filed for ejectment, but the respondent seriously disputed the title of the Petitioner and also alleged that, he is the absolute owner of petition B- schedule premises, but the said sale deed and Hiba nama are totally in respect of property No.88 and 89 which is admitted by Rw.1 in the Cross examination at Para No.3 “ My property number is 88 and 89. My parents bought

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property number 88 and 89 from Mohammed Ishaq”. ……… It is true to suggest that, Ex.R8 and 9 are in respect of property No.88 and 89.

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32. Further the RW.1 deposed at para No.4 of Cross examination that, “by seeing the Ex.P7 I cannot say which property is No.88 and 89. It is true to suggest that, at Ex.R8 and Ex.R9 no passage is mentioned. It is true to suggest that, Ex.R8 and 9 have no relation or nexus with the petition Schedule property and not paying any tax to the property No.5, B No.13, street, Chandni Chowk road.”

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The above discussion clearly establish that the learned Trial Judge has taken into consideration each and every ground urged on behalf of the tenant and negated the contentions taken by the tenant. Therefore, the tenant cannot now in this revision again re-agitate the question of relationship.

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Insofar as description of the property is concerned, the contentions urged on behalf of the revision petitioner that boundaries do not tally, would not also hold much water inasmuch as the description of the ‘A’ schedule property is for the whole property and ‘B’ schedule property of which the tenancy which is on occupation of the tenant is concerned, the description is given on the Northern side as the remaining

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portion of the ‘A’ schedule property. Such a discretion is just and proper and would not affect the tenancy. Moreover, the tenant is not occupying any portion other than the building for which the landlord has claimed the ownership.

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Even according to the tenant in the suit that has been filed by him, the ‘B’ schedule property is the ownership claimed by him. Therefore, there are no discrepancies with regard to the occupation of the property by the tenant.

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Having said thus, since no contra evidence is placed on record by the tenant insofar as the bona fide use that has been pleaded and proved by the landlord, the learned Trial Judge was justified in ordering the eviction of the tenant from the premises by accepting the grounds urged under Section 27 (2) (r) of the Karnataka Rent Act, 1999.

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Suffice to say that the material on record do not warrant interference by this Court, that too under the revisional jurisdiction. Accordingly, revision petition is to be dismissed.

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Having said thus, the Trial Court has granted two months time to vacate the premises on 28^th of November 2022. The tenant has filed the revision petition and there is an order

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of stay in this revision petition and whereby the tenant has enjoyed the property till today.

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Taking note of the fact that a suit is pending and if the tenant succeeds in the said suit, would always be entitled to take back the possession of the property in accordance with law by obtaining necessary directions in the suit and if the suit filed by the tenant is to be succeeded, needless to emphasize that the eviction order passed by this Court shall not come in the way of the tenant taking back the possession from the landlord.

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With the above observation, following order is

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passed:

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ORDER

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(i) Revision petition is dismissed.

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(ii) Revision petitioner is directed to vacate and hand over the premises voluntarily on or before 31^st August 2024.

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Sd/(V SRISHANANDA) JUDGE

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List No.: 1 Sl No.: 60

Mr. Barakathulla Khan v. Mr. N Kanaga Sabai

Case brief

What is this about?

What did the court decide?

Mr. Barakathulla Khan v. Mr. N Kanaga Sabai

Case brief

What is this about?

What did the court decide?

What the court decided

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