Allowed

Miss Rina Vitha D Souza v. Mr a M Alwyn Pinto

Karnataka HC5 Sept 2024HRRP/28/2021

Case brief

AI extract

What is this about?

In a revision petition, this Court examined the applicability of the Karnataka Rent Act, 1999 to a moolgeni tenancy. The Court held that the moolgeni relationship falls within the Act's scope. Finding grounds for eviction regarding non-payment of rent, sub-letting, and expiry of inheritance rights, this Court set aside lower court orders and allowed the eviction petition, granting respondents time

What did the court decide?

The eviction petition filed under Section 27(2)(c)(r) and Section 5 of the Karnataka Rent Act was allowed, setting aside impugned orders.

Miss Rina Vitha D Souza Vs Mr a M Alwyn Pinto — Landlord and Tenant | Karnataka HC (2024)

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NC: 2024:KHC:36399 HRRP No. 28 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA

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HOUSE RENT REV. PETITION NO. 28 OF 2021

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BETWEEN:

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MISS RINA VITHA D'SOUZA, D/O WINNIFRED D'SOUZA, AGED ABOUT 58 YEARS, R/AT MEADOW VIEW, OPP. CHECK POST, VANANJOOR, MANGALURU-575 028.

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…PETITIONER

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(BY SRI SACHINDRA KARANTH, ADVOCATE [PH])

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AND:

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MR. A M ALWYN PINTO, S/O EDWIN PINTO, AGED ABOUT 68 YEARS, R/AT "PINTO VIEW",

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

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3^RD CROSS, LOWER BENDORE, IN FRONT OF GEETHANJALI ROAD, KANAKANADY, MANGALORE-575 002.

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MISS NELLY MASCARENHAS, D/O EDWIN PINTO, AGED ABOUT 66 YEARS, R/AT "PINTO VIEW",

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3^RD CROSS, LOWER BENDORE, IN FRONT OF GEETHANJALI ROAD, KANAKANADY, MANGALORE-575 002.

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…RESPONDENTS

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(BY SRI ANANDARAMA K, ADVOCATE FOR R-1 & R-2 [PH])

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THIS HRRP IS FILED UNDER SECTION 115 OF CPC, AGAINST THE JUDGMENT DATED 20.03.2021 PASSED IN RENT REVISION PETITION NO.7/2019 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, D.K.MANGALURU, DISMISSING THE PETITION AND CONFIRMING THE ORDER DATED 06.12.2018 PASSED IN HRC NO.22/2013 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE, MANGALURU.D.K. DISMISSING THE PETITION FILED UNDER SECTION 27(2) (a)(c)(r) AND (o) R/W SEC.5 OF KARNATAKA RENT ACT AND ETC.,

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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.Sachindra Karanth, learned counsel for the petitioner and Sri.Anandarama K, learned counsel for the respondents No.1 and 2.

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The present revision petition is by the landlord challenging order dated 20.03.2021 passed in RRP.No.7/2019 by the Principal District & Sessions Judge, Dakshina Kannada District, Mangaluru, wherein the Order dated 06.12.2018 passed in HRC No.22/2013 by the learned Principal Civil Judge, Mangaluru, is confirmed.

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The parties are referred to as landlord and tenant for the sake of convenience only.

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The landlord filed petition under Section

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27(2)(a)(c)(r) and (o) r/w Section 5 of the Karnataka Rent Act, 1999 ('The Act' for short) directing respondent/tenant to vacate the petition schedule premises, which is more fully described in the Schedule 'A' to the petition, which reads as under:

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"SCHEDULE 'A'

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(Description of the property)

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Immovable property situated in Kadri Village of Mangalore Taluk, within the limits of Mangaluru City Corporation and within the registration SubDistrict of Mangalore City bearing the following particulars:-

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Sy.No. Extent A.C. 125/54 0.16

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Containing house bearing door no.15-20-1121 with all mamool and easementary rights etc."

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It is contended in the petition that 'A' schedule property was originally held by the landlord Late Juje Marian Mascarenhas and his wife. They settled property on their son namely, Alexander Mascarenhas as per registered settlement deed dated 14.10.2022, later transferred the wrag right in the above property in favor of his father as per registered deed of transfer dated 05.10.1928. Subsequent thereto Juje Marian Mascarenhas settled 'A' schedule property on his wife namely, Ragina Pais and daughter, Pauline Mascarenhas as per

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registered deed dated 22.07.1930. Subsequent thereto, Ragina Pais died and her daughter Pauline Mascarenhas became owner of the said property absolutely. Pauline Mascarenhas executed a Will on 02.02.1973 bequeathing 'A' schedule property in favor of her nieces. After death of Pauline Mascarenhas, her nieces namely, Smt.Anne Mascarenahas and Dioncia Nathilia became joint owner in respect of 'A' schedule property. Smt.Anne Mascarenahs and Dionicia Nathalia Mascarenhas have executed a registered joint Will dated 29.01.1997 in favour of the petitioner.

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As such, petitioner became the owner of the 'A' schedule property. Both Smt.Anne Mascarenahs and Dionicia Nathalia Mascarenhas died on 03.02.2012 and 07.08.2012 respectively, thereafter, it is the petitioner, who is the absolute owner of the 'A' schedule property and started enjoying the said property.

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It is further contended by the petitioner that one Sussan was a Mulgeni tenant in respect of the 'A' schedule property with liberty to pay mulgeni of Rs.20/- per year. Sussan transferred Mulgeni right in favour of Late Edwin Pinto as per registered deed of transfer on 16.04.1971. Ever since

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the said transfer, Edwin Pinto had failed to pay the Mulgeni to the Mulgars and after demise of Edwin Pinto, it is the respondents, who had inherited the tenancy right. The respondents have failed to pay the Mulgeni either to the predecessor in interest of the petitioner or to the petitioner. It is also contended by the petitioner that as per the terms of original mulgeni chit dated 03.01.1925, if mulgeni is not paid continuously for a period of 3 years, the mulgeni stands forfeited.

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It is the contention of the petitioner that the petitioner as the present mulgar has become entitled to re-possess the 'A' schedule property on account of non-payment of mulgeni for three years. Therefore, issued a legal notice on 02.09.2013 to the respondent informing them about the forfeiture of the lease.

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Further contention of the petitioner discloses that respondents have illegally sub-let the house comprised in 'A' schedule property in favour of third party, which action amount to mulgar terminating the lease and re-possess the property.

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It is further contended that since there is sub-let of

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the premises and no payment of rent and also on account of death of original tenant, the period of five years to enjoy the property as per Section 5 of the Act, gets extinguished long back and therefore, sought possession of the property through aforesaid Eviction petition.

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Pursuant to the notice issued by the Eviction Court, respondents appeared through an advocate and filed detailed statement of objections contending that the respondents are in possession and enjoyment of the suit schedule property as absolute owners of the Moolgeni rights. They further contended that they being moolgeni tenants, it is a permanent tenancy and therefore, there is no question of termination of the moolgeni as is contended by the petitioner.

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It is also contended that the alleged right of forfeiture of the lease is untenable and therefore, sought for dismissal of the eviction petition.

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Thereafter, the parties placed their oral and documentary evidence on record. The petitioner got herself

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examined as PW1 and placed on record 25 documents, which

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are as follows:

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"List of documents exhibited on behalf of Petitioner/s:

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Ex.P.1: C.C of settlement deed

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Ex.P.2: Original registered mulageni chit dated 03.01.1925. Ex.P.3: Original registered deed dated 05.10.1928. Ex.P.4: Certified copy of the settlement deed dated 22.07.1930.

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Ex.P.5 & 6: Death certificates Ex.P.7: C.C of Probate No.17/99 Ex.P.8: Joint Will. Ex.P.9 & 10: Death certificate of Miss Annie Marcellina

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Mascarenhas & Nathallia Dionysia Mascarenhas. Ex.P.11: C.C of Registered Deed Ex.P.12: R.T.C Ex.P.13: Death certificate of Venifride D'souza CIVIL Ex P.14: Original Will. EXP15: C.C of judgment in O.S.No.70-13 EXP17: Original Ration card. EXP.18: Memo filed by the plaintiff dated 18.07.14 Ex.P.19: C.C of Order Sheet in O.S.No. 70-13 EN Ex.P.20: Office copy of legal notice dated 02.09.13 Ex.P.21: Postal acknowledgment Ex.P.22: Un-served Legal notice. Ex.P23: R.P.A.D Cover. Ex.P.24: Postal acknowledgment Ex.P.25: Death certificate of Edwin Pinto"

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As against the evidence placed on record by the

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petitioner, Mr.Nelly Mascarenhas-respondent no.2 has been examined as RW.1 and no documentary evidence is placed on

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record. Thereafter, learned Trial Judge heard the parties and

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raised the following points for consideration:

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"1) Whether the petitioner proves that they are entitled for eviction of respondent from the petition schedule premises as per U/S 27(2)(a)(c) (r) & (o) r/w Sec.5 of Karnataka Rent Act?

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2) Whether the petitioner proves that they are entitled for evict ion of respondents from the petition schedule premises as prayed for?

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3) What order or decree?"

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Learned Trial Judge, after considering the arguments of the parties, held points No.1 and 2 in the negative and dismissed the eviction petition.

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Being aggrieved by the same, the

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petitioner/landlord filed revision petition before the First Appellate Court in RRP.No.7/2019. The learned Judge, after securing the records, heard the parties in detail and raised the following points for consideration:

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"1) Whether the trial Court has committed any error in appreciating the material placed on record or in applying correct legal principles to the facts of the case?

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2) Whether the petitioner has made out valid ground to interfere with the impugned order?

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3) What order?"

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Thereafter, the learned Judge confirmed the order passed by the trial Judge and dismissed the revision petition. Those orders are challenged before this Court in this revision.

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Sri K.Sachindra Karanth, learned counsel for the petitioner contended that Moolgeni is not in dispute, as the petitioner himself has produced original registered Moolgeni chit-Ex.P.2. It is his contention that after amalgamation of the Karnataka Rent Act, Mulagar would also be protected by the Rent Act and therefore, Eviction petition was maintainable before the Eviction Court, which has not been properly appreciated by the Eviction Court as well as Revision Court resulting in miscarriage of justice. It is also his argument that the respondent is a tenant only under Mulagar. Since payment of rent is not paid for several years and the mulagar has been alienated by sub-letting the premises, rights available under mulgeni also makes out case for the revision petitioner to forfeit the lease and obtain possession of the property.

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He further contended that the tenant has gone on challenging his version to suit his convenience, which could be very well seen from the contents of cross examination of PW.1

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resulting in confusion as to his status. He further points out the suggestion made to PW.1 goes to show that on one hand, tenant wants to take advantage of the terms of moolgeni chit at Ex.P.2, on the other hand, tries to get protection under the Rent Act 1999, therefore, the trial Court ought not to have dismissed the eviction petition, which was confirmed by the First Appellate Court and sought for allowing the revision petition.

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In support of his arguments, he has placed on record the following judgments, wherein it has been held as under:

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(i) M/s.Bombay Tyres International Ltd. vs. K.S.Prakash reported in ILR 1997 KAR 111 , in para Nos.10 and 14,16 and 17, for the proposition, it is held that,

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" 11. …. This stand was opposed by the learned Counsel for the landlords and it was contended that provisions of Section 21 of the Act can be invoked notwithstanding the contract between the parties and that the provisions contained in Section 21 of the Karnataka Rent Control Act abrogates the contract. On these arguments, it is seen that in paragraph 6 of the Judgment, Their Lordships of the Supreme Court has formulated the question that arises for consideration, viz.,

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"Whether during the subsistence of a contractual tenancy, it is open to the landlord to resort to proceedings under the Karnataka Rent Control Act."

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Thereafter, Their Lordships have considered the question in the light of the decision of the Supreme Court in V. DHANAPAL CHETTIAR vs YESODAI AMMAL. After considering the provisions of Section 21 of the Rent Control Act and considering the decision of the Supreme court in Dhanapal Chettiar's case, Their Lordships clearly held in paragraph 8 of the Judgment as follows:

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"A careful reading of the said Section sows that if anyThing contrary is contained in any contract that cannot prevail."

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Again after considering the dictum laid down by the Supreme court in Dhanapal Chettiar's case, it was further held as follows: (in paragraph 11 of the Judgment):

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"Therefore, this Authority clearly holds that the provisions of the Rent Control Act would apply notwithstanding the contract."

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Again in paragraph 14, it was held:

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"Further, it is not correct to hold that the Rent Control Act is a beneficial enactment only to the tenant."

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14. ….. Thus, it can be seen that on an interpretation of Section 21 of the Karnataka Rent Control Act, Their Lordships have held that it would operate notwithstanding any contract and that the provisions under the contract of lease between the parties cannot prevail over the provisions of the Rent Control Act. Their Lordships have also interpreted the decision in Dhanapal Chettiar's case to the effect that the provisions of the Rent Control Act would apply notwithstanding the contract. When the Supreme court has interpreted the provisions of Section 21 of the Rent Control Act as also the decision in Dhanapal Chettiar's case to the effect that the provisions of the rent control Act would operate de hore the contract, we are bound by the same. On a reading of the decision of the Supreme court in Sri. Lakshmi Venkateshwara Enterprises's case, we have no hesitation to hold that Their Lordships have held that the provisions of Section 21 of the Rent Control Act would operate notwithstanding the provisions contained in the contract of lease.

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16. ….. The principles laid down by the Supreme court in paragraphs 8 and 11 are clear to the effect that Section 21 of the Rent Control Act would over-ride the provisions of any contract and that the Landlord is entitled for an order of eviction if he satisfies one or other conditions mentioned therein. Even assuming that those observations are only in the nature of obiter dicta, even then, it is binding on this Court. Normally even an obiter dictum is expected to be obeyed and followed" (See: SARWAN SINGH LAMBA AND OTHERS vs UNION OF INDIA AND OTEHRS.

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17. In view of what is stated above, we are clearly of the opinion that the decision of the Full Bench of this Court in Sri. Ramakrishna Theatres Ltd.'s case is no longer good law in the light of the decision of the Supreme Court in Sri Lakshmi Venkateshwara Enterpreises's case. Accordingly, we hold that a landlord is entitled to an order of eviction if he satisfies one or other conditions mentioned in Section 21 of the Karnataka Rent Control Act notwithstanding the fact that the lease under which the tenant is in possession of the premises is for a term and that it has not expired on the date when the application for eviction is filed.

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(ii) Pradesh Kumar Bajpai vs. Binod Behari Sarkar dead by Lrs. reported in (1980) 3 SCC 348, in para No.12 and 13, for the proposition, it is held that;

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"12. …. In the case before us, it is not in dispute that after the Rent Act came into force, the landlord cannot avail himself of Clause 12 which provides for forfeiture, even if the tenant neglected to pay the rent for over two months. The landlord cannot enter into possession forthwith without notice. The only remedy for him is to seek eviction under the provisions of the Rent Act. In such circumstances the tenant cannot rely on Section 114 of Transfer of Property Act and claim that he should be given an opportunity to pay the arrears of rent, even though the requirements of Section 3(1) had been fulfilled.

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13. We are satisfied that once the requirements of Rent Act are satisfied, the tenant cannot claim the double

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protection of invoking the provisions of the Transfer of Property Act or the terms of the contract."

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(iii) In Dhanapal Chettiar Vs. Yesodai Amma reported in (1979) 4 SCC 214 in para No.19, for the proposition, it is held that;

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For the reasons stated above we hold that the High

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Court was right in its view that no notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the landlady-respondent to get an order of eviction against the tenant-appellant. But we were told by learned Counsel for the appellant that he had some more points to urge before the High Court to challenge the order of eviction. We do not find from the judgment of the High Court that the appellant was prevented from supporting the orders of the courts below in his favour by urging any other point. No point of substance could be indicated before us which was worth consideration after a clear and definite finding by the appellate Court that the respondent required the premises bona fide for a personal necessity. We do not think it is advisable to delay the proceeding any further and send back the case to the High Court on this account. We accordingly dismiss the appeal but in the circumstances direct the parties to bear their own costs throughout.

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(iv) Mr.Charles Rego Vs. Fr Mullers Charitable Institute & Others reported in ILR 2009 Kar 487 in para No.10, for the proposition, it is held that,

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"10. On a consideration of the above rival contentions, from the authorities referred to as to the nature of a moolageni, it may be said that it is a tenancy in perpetuity at a fixed rent. It is as good as an absolute holding as long as rent is paid and there is no violation of any other condition imposed. In the instant case, one of the conditions imposed in terms as Ex.P-1, which is the original deed under which the moolageni was created, is that the right could not be transferred without the consent of the owner or the moolagar. There are subsequent transfers which were with the consent of the moolagar. It is for the first time that respondent-1 had

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sought permission to divide the properties in parcels and to sell the right in favour of several third parties which is said to have been granted as shown in Ex.R-1. It is clear that permission was not sought to create a volla moolageni or a sub-tenancy and the permission sought for was to sell or transfer the right of tenancy absolutely in favour of several others. The creation of sub-tenancy, on the other hand, in favour of several respondents was therefore, illegal and violation of the express condition imposed under the deed creating the tenancy.

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Insofar as the contention that 1961 Act or the 1999 Act did not apply to the premises cannot be accepted. Reference to Section 23 is irrelevant. Section 23 of the 1961 Act prohibits sub-letting while holding that it would not apply to tenancies in perpetuity. It merely imposes a fine on any person who contravenes the provisions of the Section. The same cannot be read to contend that the sub-leases created would not be illegal since the lease was one in perpetuity.

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The further contention that Section 21(1)(f) did not apply, if the sub-tenancy was created subsequent to Part-V coming into force, even if there was nay substance in such contention, with the 1999 Act being made applicable to the premises, the wording and tenor of sub-clause (b) of Section 27(2) is wide enough to encompass the property within the mischief of the Section and therefore, there is no infirmity. It is also clear that insofar as the creation of sub-tenancy in favour of one Lancy Quilo was apparently without the permission of the petitioner and hence would not bind the petitioner. The absence of the said party to the proceedings is not fatal. The reasoning of the court of the District Judge that the erstwhile transferors of the property, from time to time, ought to have been made parties is not tenable. And the further contention that the lease being a perpetual lease, eviction proceedings could not have been brought is also not a complete statement.

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Having regard to the legal position as expounded by the Supreme Court, while affirming a decision of this court in SRI RAMAKRISHNA THEATRES LIMITED VS. GENERAL INVESTMENTS AND COMMERCIAL CORPORATION LIMITED AND OTHERS (SUPRA), in that, if there is violation of a condition of the lease deed,

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eviction proceedings could certainly to brought under the provisions of the Rent Act, but the grounds available would only be those enumerated under the relevant provisions. hence, it cannot be said that the eviction proceedings could not have been brought. The incidental contention that the respondent -1 had not sub-let an extent of 9 cents of land, as the same is reserved as a right of way, is wholly immaterial as respondent-1 would lose right over the entire extent even if the respondent has violated the condition in respect of a portion of the premises leased."

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(v) Shahwar Basheer & Others Vs. Veena Mohan reported in ILR 2003 Kar 4732 , in para No.15, for the proposition, it is held that,

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….. Guided by this object oriented approach of the legislature in enacting Section 5, I reject the exterme positions urged before me by the learned counsel for LR's of tenant. The wisdom of legislature in framing Section 5 has to be respected by the Courts because thought it is ultimately for the Court to pronounce, the framers of the law who are more familiar with the work-a-day world are not too inexpert of incompetent to make decisions, however far-reaching they may be. The Apex Court and several High Courts have often sounded the need in various decisions for a legal instrumentality which delivers justice with finality and fullness in rental matters and the present Act is programmed for such a constructive change.

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(vi) Smt.Thilothamma & Another Vs. Rahmathunnisa reported in ILR 2002 Kar 4846, in para No. 7, for the proposition, it is held that ,

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"7. … The law on the point being clear it cannot be said on the facts of the present case that the second petitioner is staying in the premises as a sub-tenant. Even assuming for the sake of arguments that the second petitioner is not staying as a sub-tenant, even then by virtue of Section 5 the right of inheritance that devolves on him would not exceed the 5 years maximum provided for in the said section. As relief that is bestowed on the landlord-respondent to claim possession of the premises after expiry of 5 years is activated by sheer operation of

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law without imposing on her the need to establish the requirement of the premises for her own bona fide use and occupation, none of the decisions cited at the Bar which bear on the question of what a landlord, seeking for eviction on any of requirement and on what constitutes sub-letting under the old Act are of no relevance for determining the relative rights of the parties in this petition. Under Section 5 of the Act the court has no other option but to pass an order directing eviction of the tenants on the expiry of 5 years from the date of death of the original tenant notwithstanding the fact that the landlord may have failed to establish the requirement of the petition premises by her for her own bona fide use and occupation."

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Per contra, Sri Anandarama K., learned counsel for respondents, with vehemence, contended that tenant can take not only alternative pleas but also mutual destructive pleas to protect his possession over the property. It was clear from Ex.P.2, where he is protected by Mulgeni rights and not by Rent Act.

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Alternatively, he also contends, in the event this Court holds that respondent is tenant as is defined under provisions of the Act, then the tenant is entitled to be evicted by owner-landlord only on the grounds that are specified under Section 27(2) of the Act, 1999. In the case on hand, no such ground is available for the landlord to evict the tenant from the premises and therefore, viewed from any angle, orders passed

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by both Courts are just and proper. Thus, sought for dismissal of revision petition.

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He further contended that once the arrears of rent

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is adjudged and paid in a sum of Rs.2,000/- at the rate of Rs.20/- per year which would cover upto year 2027, the ground under Section 27(2)(a) of the Act, gets automatically extinguished.

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Insofar as sub-letting is concerned, there is no proper proof laid by the landlord/petitioner to prove the same. Therefore, the ground under Section 27(2)(b) of the Act is also not available, even though in the petition, instead of 27(2)(b), it has to be construed as Section 27(2)(c) of the Act.

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So also insofar bonafide use of the petition premises, admittedly, there is no material placed on record. Accordingly, no grounds are available under Section under 27(2)(r) of the Act, is concerned and dismissal of the eviction petition needs to be maintained.

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Insofar as Section 27(2)(o) of the Act is concerned, tenant never denied ownership of the landlord. But, all that he is contending is he is in possession of property as mulgar.

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Therefore, ground under Section 27(2)(o) is also not applicable to the facts on hand and sought for dismissal of the revision petition.

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Sri Anandarama, lastly contended that insofar as Section 5 of the Rent Act is concerned, since respondent is mulgar, Rent Act is not applicable. Alternatively, if this Court comes to the conclusion that Rent Act is applicable to the case on hand, then Section 5 would not have any application inasmuch as there is registered deed of transfer, which protects the rights of tenant and therefore, dismissal of the Eviction petition needs to be maintained.

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A feeble attempt is also made by the respondent/tenant that since there is a new enactment of the Karnataka Conferment of Ownership on Mulageni or Volamulageni Tenants Act, 2011, is in force, the tenant would be entitled to benefit of protection under the said Act, but the same is not pleaded.

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In the light of aforesaid arguments, this Court perused the material placed on record meticulously.

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On such perusal of material placed on record, there is no dispute that Smt.Sussan was mulgar under Ex.P.2. There is no dispute as to number of transfers made either by Sussan or by original mulgar. Majority of the documents are registered documents and there is no dispute among parties with regard to transfer over a period of time.

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All that respondent is claming that he is not protected Karnataka Rent Control Act, 1961 and Karnataka Rent Act, 1999. Therefore, eviction petition is not maintainable. This Court would address said aspect of the matter at the first instance so as to reduce the magnitude of the matter.

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In order to establish that Karnataka Rent Act, 1999 is applicable to the facts and circumstances of the case Sri Sachnidra Karanth, learned counsel for the petitioner has placed reliance on the order of the Co-ordinate Bench of this Court in M/s Bombay Tyres International Ltd. vs. K.S.Prakash reported in ILR 1997 KAR 111. It is pertinent to note in the said judgment, the Co-ordinate Bench of this Court placed reliance on the judgment of the Hon'ble Supreme Court in Laxmidas Bapudas Darbar & Another V. Rudravva

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& Others reported in 2001 (7) SCC 409, wherein it has held that eviction proceedings under the Rent Control Act can be initiated before the expiry or during the currency of the lease period only on any of the grounds mentioned in Section 21(1) (a) to (p) of the Rent Control Act and only when such ground is also provided in the lease deed as one of the grounds for forfeiture of lease.

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On careful perusal of the relevant paragraphs of said judgment of the Co - ordinate Bench of this Court as well as judgment of the Hon'ble Supreme Court, it is crystal clear that the Mooldar is also a type of tenant that has been defined under Karnataka Rent Act.

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In view of the authoritative principles of law enumerated by the Hon'ble Apex Court and Co-ordinate Bench of this Court as referred to supra, first objection, in the eviction petition by the tenant that he is protected under the Karnataka Rent Act 1999 cannot be countenanced in law.

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Accordingly, this Court categorically records a finding that the relationship between petitioner and respondents is that

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of landlord and tenant as is found in the provisions of Karnataka Rent Act, 1999.

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Having said thus, the next point would be to find out whether the grounds urged in the eviction petition has been made out by the petitioner so as to record an order of eviction against the respondents by allowing the eviction petition and setting aside the impugned orders.

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In this regard, learned counsel for the respondents placed reliance on the judgment of the Hon'ble Apex Court in Laxmidas case ( supra) has invited attention of this Court to paragraph No.18 of the said judgment.

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For ready reference, paragraph No.18 of the said judgment is culled out hereunder:

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"18. The effect of the non obstante clause contained under Section 21 of the Karnataka Rent Act on the fixed-term contractual lease may be explained as follows:

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(i) On expiry of period of the fixed-term lease, the tenant would be liable for eviction only on the grounds as enumerated in clauses (a) to (p) of sub-section (1) of Section 21 of the Act.

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(ii) Any ground contained in the agreement of lease other than or in addition to the grounds enumerated in clauses (a) to (p) of sub-section (1) of Section 21 of the Act shall remain inoperative.

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(iii) Proceedings for eviction of a tenant under a fixed-term contractual lease can be initiated during subsistence or currency of the lease only on a ground as may be enumerated in clauses (a) to (p) of sub-section (1) of Section 21 of the Act and it is also provided as one of the grounds for forfeiture of the lease rights in the lease deed, not otherwise.

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(iv) The period of fixed-term lease is ensured and remains protected except in the cases indicated in the preceding paragraph".

¶162

37. Sri Anandarama, emphasized on sub-para (3) of

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Paragraph No.18, wherein the Hon'ble Apex Court has taken note of the non- obstante clause available under the Karnataka Rent Act, 1961 and contended that whenever lease is to be terminated, where it is a permanent lease, the ground available to landlord under Section 21(1)(a) to (p) must be available and proved; then alone eviction of the tenant is possible.

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Applying the principles of law enumerated in the aforesaid principles to the case on hand, the contention urged on behalf of the tenant that Section 27(2)(a) is not available to the landlord has got sufficient force inasmuch as rent was in a sum of Rs.20/- per year and Rs.2,000/- having been paid which would cover the arrears of rent. Even under the Karnataka Rent Act, 1999, when there is dispute regarding quantum of

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arrears of rent, under provisions of the Act, time is to be given to the tenant to make good payment and rent is to be paid within a fixed time, the eviction cannot be permitted. Therefore, the petitioner cannot evict tenant from the premises on the ground of Section 27(2)(a).

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Insofar as sub-letting is concerned, even though tenant has stated that there is no sub-letting, material document available on record would clearly show that mulgar was said to be not in possession of scheduled premises and there was a sub-letting. Therefore, ground under Section 27(2)(c) is to be held in favour of landlord in the case on hand.

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Further, on the ground under Section 27(2)(r) is concerned, it is clearly found from the Karnataka Rent Control Act, 1961, it was the landlord, who was required to prove the bonafide use and occupation of the petition premises by placing cogent and convincing evidence on record.

¶169

In the Karnataka Rent Act, 1999, there is clear departure from said principle inasmuch as there is presumption available to the landlord that the petition property is bonafidely required for his own use and all that the landlord has to prove

¶170

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this by deposing it in the witness box. It is for the tenant to place contra evidence rebutting the said presumption in the case on hand.

¶173

On perusal of material evidence on record placed by tenant, no such evidence is available on record so as to rebut the presumption available to the landlord. Therefore, the landlord is entitled for an order of eviction under Section 27(2)(r) of the Act.

¶174

Lastly, learned counsel has pressed into service Section 27(2)(o) of the Act. In this regard, the argument put forward by the tenant that there is no dispute as to the ownership of the property.

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On perusal of the material on record, there is sufficient force in the said submission made on behalf of the tenant and the ground made under Section 27(2)(o) is not available to the landlord.

¶176

Learned counsel for petitioner has also taken shelter to Section 5 of the Karnataka Rent Act, 1999.

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For ready reference Section 5 of the said Act is

¶180

culled out herein, which reads as under:

¶181

"5. Inheritability of tenancy.

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(1) In the event of death of a tenant, the right of tenancy shall devolve for a period of five years from the date of his death to his successors in the following order, namely:-

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(a)spouse;

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(b)son or daughter or where there are both son and daughter both of them;

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(c)parents;

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(d)daughter-in-law, being the widow of his pre-

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deceased son:

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Provided that the successor has ordinarily been living or carrying on business in the premises with the deceased tenant as a member of his family up to the date of his death and was dependent on the deceased tenant:

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Provided further that a right to tenancy shall not devolve upon a successor in case such successor or his spouse or any of his dependent son or daughter is owning or occupying a premises in the local area in relation to the premises let.

¶190

(2) If a person, being a successor mentioned in sub-section (1), was ordinarily living in or carrying on business in the premises with the deceased tenant but was not dependent on him on the date of his death, or he or his spouse or any of his dependent son or daughter is owning or occupying a premises in the local area in relation to the premises let to which this Act applies, such successor shall acquire a right to continue in possession as a tenant for a limited period of one year from the date of death of the tenant; and, on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession of the premises shall become extinguished.

¶191

Explanation. - For the removal of doubts, it is hereby declared that,-

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(a) where, by reason of sub-section (2), the right of any successor to continue in possession of the premises becomes extinguished, such extinguishment shall not affect the right of any other successor of the same category to continue in possession of the premises but if there is no other successor of the same category, the right to continue in possession of the premises shall not, on such extinguishment, pass on to any other successor specified in any lower category or categories, as the case may be;

¶194

(b) the right of every successor, referred to in sub-section (1) to continue in possession of the premises shall be personal to him and shall not, on the death of such successor, devolve on any of his heirs."

¶195

On careful perusal of the contents of the provisions

¶196

of law, it is crystal clear that if original tenant dies persons, who are entitled to remain in the property are the persons, who are directly dependant on the original tenant for over a period of five years.

¶197

In the case on hand, the original tenant died and respondents are the persons, who are ordinarily residing with the tenant and they were dependant on the tenant.

¶198

Under such circumstances, the landlord is also entitled to eviction of the respondent from the petition premises by resorting to Section 5 of the Rent Act, 1999. In view of the above factual aspects and discussion thereon, the other decisions relied on by the parties need not be gone into in detail even though principles stated therein cannot be disputed.

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Accordingly, the petition is liable to be allowed. Hence, the following:

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ORDER

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(i) The revision petition is allowed .

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(ii) Order dated 06.12.2018 in HRC No.22/2013 passed by the Prl. Civil Judge & JMFC, Mangaluru, and order dated 20.03.2021 in RRP.No.7/2019 passed by the Prl. District & Sessions Judge, Dakshina Kannada District, Mangaluru, are hereby set-aside;

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(iii) Consequently, the eviction petition filed under Section 27(2)(c)(r) and Section 5 of the Karnataka Rent Act is allowed.

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(iv) Taking note of the fact that respondents are in possession of the property and considerable time is to be given for the purpose of handing over vacant possession of the property. Accordingly, time is granted till 31.10.2024.

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Sd/(V SRISHNANDA) JUDGE

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Psg* List No.: 1 Sl No.: 61

Miss Rina Vitha D Souza v. Mr a M Alwyn Pinto

Case brief

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Miss Rina Vitha D Souza v. Mr a M Alwyn Pinto

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