Sri. Syed Amjad Vs Sri. Khalid Pasha

THIS HRRP IS FILED UNDER SECTION 46(1) OF THE KARNATAKA RENT CONTROL ACT, 1999, AGAINST THE ORDER DATED 13.07.2018 PASSED IN HRC.NO.10010/2015 ON THE FILE OF THE XV ADDITIONAL SMALL CAUSE JUDGE AND XXIII ACMM, BENGALURU, DISMISSING THE PETITION FILED UNDER SECTION 27(2)(r) OF THE KARNATAKA RENT ACT 1999 FOR EVICTION 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 Janardhana G and Sri M.D.Raghunath for

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the parties.

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Unsuccessful landlord in the Eviction Petition in

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HRC No.10010/2015 is the Revision Petitioner.

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The facts in the nutshell for the disposal of the present petition are as under:

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A petition under Section 27(2)(r) of the Karnataka Rent Act, 1999, came to be filed alleging that the father of

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the respondent had entered into a rental agreement with Smt.Sarfunnissa on 20.04.2005, who is the original owner of the ground floor of the premises bearing No.52/3, 8th

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Main, 7^th Cross, now 9^th Cross, Vasanth Nagar, Bengaluru. Description of the property is more fully described in the schedule hereunder and hereinafter referred to as petition

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schedule property:

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“SCHEDULE

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All that part and parcel of the Residential Premises of Ground Floor bearing No.52/3, old No.117, situated at 8^th Main Road, 7^th Cross, Now 9^th Cross, Vasanthnagar, Bengaluru, measuring in all 640 sq.ft., and bounded on the:

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East by : Road ”

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West by: Property belonging to Laloo Sab

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North by: Property belonging to Ali Sab

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South by: Private property (earlier portion of the same property No.52/3, now bearing independent number)”

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It is further contended that the monthly rental

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was Rs.2,000/- and there was an advance amount of Rs.25,000/-. The petitioner had purchased the said property from Smt.Sarfunissa under Sale Deed dated 14.07.2013 and thereafter, the petitioner brought the fact of the sale and the respondents continued to occupy the premises after the death of their father and there is an automatic attornment of tenancy. The petitioner

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requested the respondents to pay the monthly rent for the petition premises and despite elapsing of two years, the respondents failed to pay any rent to the petitioner and there is no sufficient reason for them to withhold the rent and sought for eviction of the respondents.

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It is also contended that the petition premises is required for the bonafide use and occupation of the petitioner and at present he is residing in second floor of the petition property along with his brother which is sufficient for both petitioner and his brother and he wanted to continue there and petitioner wanted to occupy the petition premises.

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The petitioner requested the respondents to vacate and hand over the premises, but they failed to do so. Even though the respondents promised to vacate, they failed to vacate the premises.

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Therefore, there was a legal notice issued on 24.03.2015 to the respondents. Despite service of notice, respondents did not vacate the premises and therefore, the petition was laid for eviction of the respondents from the petition premises.

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After service of notice, respondent Nos.1 and 2 appeared through their respective counsel and filed detailed statement of objection. Respondent Nos.3 and 4 did not appear before the Trial Court and therefore, they were placed ex parte .

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In the objections statement, there is a denial of landlord and tenant relationship. They further contended that they were not tenants at any given point of time, much less on payment of monthly rent of Rs.2,000/- and payment of advance of Rs.25,000/-.

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The learned Trial Judge thereafter, recorded the evidence of the petitioner wherein, the petitioner got examined himself as PW.1 and placed on record six documents vide Exs.P1 to P6 comprising of original registered Sale Deed, encumbrance certificate, office copy of the legal notice, postal receipt, postal acknowledgment and letter of Rent Agreement.

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As against the evidence placed on record, first respondent examined himself as RW.1 and Wajid Pasha - respondent No.4 as RW.2. On behalf of the respondents, certified copy of the Will executed by Zainabbee is placed

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on record as Ex.R1. Death certificates of Zainabbee and Gulabjan are marked as Exs.R2 and R3. Certified copy of the plaint in OS No.25255/2016 is marked as Ex.R4. Katha extract of the schedule premises bearing No.52/3 is marked as Ex.R5. So also, katha extract of the property bearing No.58 is marked as Ex.R6. Endorsements issued by the BBMP are marked as Exs.R7 and R8. Water bills in respect of the scheduled premises are marked as Exs.R9 and R10 and so also two motor driving licences are marked as Ex.R11 and R12.

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The learned Judge in the Trial Court after hearing the arguments of the parties, took into consideration in a cumulative manner the oral and documentary evidence on record, dismissed the Eviction Petition, inter alia , holding in paras 14 and 15 as under:

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“14. I have perused the documents produced by the petitioner it appears that, one Smt. Sharfunnissa was executed the absolute saledeed in favour of the petitioner Syed Amjath on 24.07.2013 with respect of the property bearing No.52/3 old during 170 under the registered saledeed. As per the Ex.P.2, it is the encumbrance certificate it disclose that, the said Sharfunnissa was executed the sale-deed in favour of the petitioner. After execution of the said sale-deed, the petitioner Syed Amjath was issued the legal

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notice to the respondents through his counsel on 24.03.2015 calling upon the respondents to quit, vacate and delivery of the vacant possession of the premises, the notice was served on the respondent No.1. The respondents have clearly admitting that, the originally suit property belongs to the mother of the Jainabi and after death of the Jainabi, the khatha was changed in the name of Sharfunnissa on the basis of the Will executed by the said Jainabi. The respondents have taken the contention that, as per the Mahamodun Law, Jainabi is not having the legal right to execution of the Will. But in support of the said contentions, the respondents have not produced any documents and also not adduce any evidence. Though the Jainabi was executed the Will in favour of her daughter is neither valid or invalid under the law, but the respondents are not having any legal rights to questioning the said Will. The respondents have clearly admitting that, their father was residing in the petition schedule property, thereafter the respondents are continued.

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15. Further, for the purpose of prove the legal rights over the petition schedule property, the respondents have not produced any title documents. As per the Ex.R.5, it disclose that, the petition schedule property bearing No.52/3 is original belongs to the Jainabi as she is the owner. As per the Ex.R.6, the property No.58 belongs to the one Mr. Syed Sajith Husain. The counsel of the respondent argued that, the property mentioned in the rental agreement is bearing No.58, hence the said property is not a petition schedule property. The petitioner and also vendor of the petitioner are not the owner of the said property as mentioned in the rental agreement. Therefore after perusal of the said document, it is one thing is clear that the rental agreement which is Ex.P.6 is not concerned to the property of the petition schedule property.”

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Being aggrieved by the same, the petitioner is

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before this Court on the following grounds:

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 “When the Respondents have admitted that the petition schedule premises originally belonged to Smt. Zainab Bee and she had in fact gifted the same to her daughter Smt. Sharfunnissa and Smt. Sharfunnissa in turn has sold the same to the Petitioner, the Learned Judge ought to have held that the Petitioner having stepped into the shoes of his vendor and the Respondents are in occupation of the petition schedule premises under a Lease Agreement ExP6, the Respondents are liable to be evicted from the petition schedule premises and when the Petitioner has sought for the same for his own use and occupation.

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 The Learned Judge having held that under Sec.43 of the Rent Control Act, the Respondents failed to prove the title to the property having admitted that Smt. Zainab Bee was the original owner of the property and she had gifted/willed the same to her daughter Smt. Sharfunnissa and thereafter, Smt. Sharfunnissa having become the owner, sold the same to the Petitioner, but erred in holding that the property covered under the Rental Agreement is bearing No.58 and hence it is a different property, when the fact remains that it is not the case of the Respondents and they are at any point of time they are the tenants in respect of Property and on the other hand, admitted that at they are in occupation of the petition schedule premises from the time of their father.

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 The Learned Judge seriously erred in holding that the Petitioner is the owner of the property bearing no.58 and in the Rent Agreement the property number mentioned as 52/3 and they are two different properties and hence petitioner fail to prove the jural relationship between them and accordingly dismissed the same even though it is an admitted fact that the respondent father has been residing in the petition schedule property which belonged to Smt. Sharfunnissa who in turn sold this same to the Petitioner.

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 The Learned Judge seriously erred in holding that the Petitioner failed to prove the Rental Agreement when the fact remains that the Respondents having admitted that they are in occupation of the petition schedule premises right from the beginning and it belonged to Smt. Zainab Bee and thereafter, Sm. Sharfunnissa having become the owner, the Petitioner purchased the same from her, the Respondents ought to have produced the necessary document to show the same and when they failed to produce any document to show as to in what capacity, they are in occupation of the premises, the leqrend Judge ought to have admitted the case of the Petitioner and allowed the Petition.

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 The Learned Judge seriously erred in holding that the property bearing No.58 is not in the name of Sm.Zainab Bee or Sharfunnissa and on the other hand, it is in the name of Syed Sajith Hussain under ExR6, and hence the same is not connected to the Petitioner when it is not the case of the Respondents that they have been residing in the premises No.58 under the Rent agreement. On the other hand, having admitted that they are residing in the petition schedule premises and subsequently, there is change of number from 52/3 to property No.58.

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 The Learned Judge ought to have held that once the Respondents have admitted that they are in occupation of the petition schedule premises, and have not produced any other record claiming any ownership over the same, it is on the basis of the said fact, it could have been presumed that they are tenants in occupation of the building and accordingly they are liable to be evicted form the petition schedule premises.

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 The Learned Judge seriously erred in holding that the jural relationship is not proved when the fact remains that the Petitioner has presented the Rental Agreement and got elicited from the Respondents that they are in occupation of the building as tenants and it had belonged to one Smt. Sharfunnissa and she in turn has sold the same to the Petitioner herein and when they have not produced any record to show that they are there out of their own right, the Learned Judge seriously erred in that jural relationship is not proved.

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 The Learned Judge ought to have held that since the Respondents are in occupation of the petition schedule premises right from the beginning from the days father, and when the Petitioner has clearly stated that the number has been changed to 58, from BBMP, the Learned Judge ought to have accepted in the absence of any document to prove that and he ought to have allowed the petition of the Petitioner.

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 Looking from any angle, the decision of the Court below in dismissing the Petition of the Petitioner is otherwise erroneous, unjust and unsustainable.

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 The Petitioner is not filed any other case in any Court.”

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Sri Janardhana, learned counsel for the revision petitioner reiterating the grounds urged in the petition, vehemently contended that the learned Trial Judge got misdirected himself in understanding that the petition schedule property and the property in occupation by the respondents are altogether different properties and wrongly dismissed the Eviction Petition and sought for allowing the Eviction Petition. He would further contend that the documents placed on record by the respondents themselves would establish that the petition property and the property that has been purchased by the petitioner is one and the same. He further contended that only on the ground of sub numbers, the Trial Court ought not to have

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dismissed the Eviction Petition holding that there is no landlord and tenant relationship and relegating the parties to the Civil Court, has resulted in grave miscarriage of justice.

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He would also emphasise that the boundaries in the Sale Deed marked on behalf of the petitioner and the Will that has been placed on record with the petition schedule premises would tally each other and therefore, the finding recorded by the learned Trial Judge is improper and sought for allowing the petition.

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Per contra, Sri M.D.Raghunath, learned counsel for the respondents vehemently contended that not only the properties are different, but also the ownership is in dispute, inasmuch as the respondents are in possession of the petition premises based on the Will executed by Zainabbee, marked at Ex.R1.

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He would further contend that to establish that there existed a landlord and tenant relationship either with the present petitioner or with the vendor, no material document is placed on record and Ex.R6 - letter of the Rent Agreement is disputed by the respondents, which

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has been rightly appreciated by the learned Trial Judge in dismissing the Eviction Petition and sought for dismissal of the Revision Petition as well.

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Having heard the arguments of both sides, this

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Court perused the material on record meticulously.

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On such perusal of the material on record, it is no doubt true that the petitioner has purchased the property bearing No.52/3 (old No.117) situated at 8th Main, 7th Cross, Vasanth Nagara, Bangalore, together with one third undivided land interest in the site measuring east to west 20 feet, north to south 34 +30/2 feet and bounded on East by road, West by property belongs to Laloo sab, North by Property belongs to Ali Sab and South by private property (earlier portion of the same property No.52/3, now bearing independent number).

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However, under Ex.R1, which is the Will executed by Zainabbee, the schedule of the property that has been subject matter of the bequeath reads as under:

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“SCHEDULE OF PROPERTY

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Residential premises built on site No.117 in Vasantha Nagar Built up Area, bearing present

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Municipal No.52/A, Old No.52/3, situated in 7^th Cross, 8^th Main Vasantha Nagar, Bangalore 560 052 comprising of Ground Floor, First Floor, Second Floor and one room in 3^rd Floor, bounded on the East by 7^th Cross west by Private property North by private property and south by private property.”

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On comparison of the schedule of the Sale

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Deed as well as the schedule of the Will, there lies serious difference with regard to the number of the petition property.

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Further, in order to establish that there existed a landlord and tenant relationship, Rent Agreement - Ex.P6 is placed on record.

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In Ex.P6, LTM of Abdul Gafar and signature of Sarfunnisa is found. Nobody has identified whose LTM is found on Ex.P6. Mere production of a document where there is no identification as to the Left Thumb Impression, Rent Agreement itself stands not established. Further, no witnesses are examined to prove Ex.P6, inasmuch as one Javed and another person have witnessed the said Rent Agreement.

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Further, father name, address of the witnesses are also not forthcoming. What prevented somebody to

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identify the alleged Left Thumb Impression of Abdul Gafar,

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is a question that remains unanswered.

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In the absence of any proper proof of the fact that the respondents were tenants under the petitioner at any given point of time, the learned Trial Judge dismissing the Eviction Petition for want of landlord and tenant relationship as well as on the ground of discrepancy in the description of the suit petition property, is just and proper.

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By dismissal of the Eviction Petition, the rights of the petitioner would not get extinguished in toto. It is always open for the petitioner to file a suit for possession before the Civil Court and establish his right and obtain necessary relief.

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