1. Non-residential premises tenancy — Death of original tenant — Claim of inherited tenancy as Joint Hindu Family manager — Eviction petition under Karnataka Rent Control Act, 1961. (Para 2 )
Back
Next 
1997 Supreme(SC) 1336
1997(9) Supreme 23
SUPREME COURT OF INDIA
Dr. A.S. Anand & S. Rajendra Babu, JJ.
Venkatesh Thimmaiah Gurjalkar -Appellant
versus
S.S. Hawaldar -Respondent
Civil Appeal No. 3727 of 1990
Decided on 15-10-1997
Counsel for the Parties :
For the Appellant : Ms. K. Sarada Devi, Advocate.
Important Points
IMPORTANT POINT
Where tenancy in regard to non-residential premises was not hesitable, petition for eviction under Rent Act against son of deceased tenant was not maintainable.
Where tenancy in regard to non-residential premises was not hesitable, petition for eviction under Rent Act against son of deceased tenant was not maintainable.
Subject
Property Law - Landlord and Tenant
Act Referred
Headnote
Karnataka Rent Control Act, 1961-Section 21-Eviction petition-Concurrent findings of Courts below that appellant had not inherited tenancy on death of his father since premises in question was non-residential-As appellant was not the tenant, petition for his eviction was not maintainable-Respondent had to take recourse to filing a suit for possession-High Court erred in allowing petition. (Para 5)
Legal Category Hierarchy
Table of Contents
2. Whether an eviction petition under Section 21 of the Rent Control Act is maintainable when the occupant is concurrently found not to be a tenant. (Para 4 )
3. Non-residential tenancy is not heritable under the Act; eviction petitions are not maintainable against non-tenants who have not inherited tenancy rights. (Para 5 )
4. Recovery of possession from a non-tenant requires a civil suit for possession rather than an eviction petition under rent control legislation. (Para 5 )
5. Appeal allowed — High Court order set aside — Order of the District Judge restored. (Para 5 )
6. Is tenancy of non-residential premises heritable under the Karnataka Rent Control Act, 1961?
No, there is no provision in the Act for the transmission of tenancy in regard to non-residential premises. (Para 5 )
7. Can a landlord file an eviction petition under Section 21 of the Rent Control Act against a person who is not a tenant?
No, if the occupant is not a tenant and has not inherited the tenancy, a petition under Section 21 for eviction is not maintainable. (Para 5 )
8. What is the appropriate legal remedy for a landlord to recover possession from a person who is not a tenant?
The landlord must take recourse to filing a suit for possession rather than filing an eviction petition under the Rent Control Act. (Para 5 )
ORDER
This Civil Appeal is directed against the judgment and order of the High Court of Karnataka dated 26.10.1983 in Civil Revision Petition No. 1091/81. The facts and circumstances in which the appeal arises need a brief notice at this stage.
2. The suit premises is a shop, which was let out by the father of the respondent-landlord, to one Thimmaiah, father of the appellant in or about 1940 for running a hair cutting saloon at a monthly rent of Rs. 40/-. There was a family partition and the suit premises fell to the share of the respondent-landlord, who thereafter became the owner and the landlord of the demised premises. According to the pleadings of the parties, in 1972, the original tenant Thimmaiah fell ill and stopped paying rent of the premises from January 1974 onwards. A notice was issued by the respondent-landlord to Thimmaiah terminating his tenancy and asking him to hand over the vacant possession of the suit premises. That notice was issued to him on 10.1.1974. Despite the notice having been received by Thimmaiah, he did not vacate the premises and hand over the possession to the landlord-respondent. Thimmaiah died on 12.7.1974. The appellant carried on the hair cutting business in the demises premises and sent rent of the premises to the respondent-landlord, who, however, refused to receive the same on the plea that the appellant was not his tenant and was in unlawful possession of the premises. A notice was issued by the landlord to the appellant on 29.7.1974 calling upon him to hand over the vacant possession of the demised shop. Since, the notice did not evoke any response, the landlord-respondent filed a petition under Section 21 read with Section 51(2) of the Karnataka Rent Control Act, 1961 for eviction of the appellant in the court of Principal Munsiff, Bijapur. The petition was resisted by the appellant. It was asserted that the appellant had been carrying on the hair cutting business along with his father and that the shop which had been taken on lease by his father was taken by him in his capacity as a Manager of the Joint Hindu Family of which the appellant was also a member. On that basis, he claimed that he had inherited the tenancy rights in the premises and that those rights did not come to an end on the death of Thimmaiah.
3. The Principal Munsiff, after recording the evidence came to the conclusion that the premises had not been taken by Thimmaiah as a Manager of the Hindu Joint Family and also that the appellant had not inherited the tenancy rights of Thimmaiah, who was a statutory tenant at the time of his death. Accordingly, on 18.11.1976, the petition for eviction was granted. The order of the Principal Munsiff was challenged by the appellant in revision before the learned District Judge, Bijapur. By a detailed order, the learned District Judge held that the appellant was not a tenant within the meaning of Section 3(r) of the Mysore Rent Control Act, 1961 (hereinafter referred to as the Act). The learned District Judge further held that the respondent-landlord had not established any of the grounds under Section 21(1) of the Act and, therefore, the petition for eviction was not maintainable. The revision petition was, accordingly, allowed and the order of eviction passed by the learned Principal Munsiff was set aside. The respondent-landlord preferred a revision petition in the High Court against the order of the District Judge. The High Court allowed the revision petition, set aside the order of the District Judge and restored that of the Principal Munsiff.
4. WE HAVE HEARD MS. K. SARADA DEVI,
learned counsel for the appellant. Learned counsel submits that since all the three courts have concurrently found that the appellant was not a tenant within the meaning of Section 3(r) of the Act, the courts ought to have held that the petition for eviction under Section 21 of the Act was not competent to recover possession from the appellant and should have dismissed the eviction petition filed by the re
