2005 Supreme(SC) 1499

2005(8) Supreme 656
Supreme Court of India
(From Karnataka High Court)
B.P. Singh & Arun Kumar, JJ.
E. Parashuraman (D) by Lrs. —Appellant
versus
V. Doraiswamy (D) by Lrs. —Respondent
Civil Appeal No. 3502 of 2004
With
Civil Appeal No. 3503 of 2004
Decided on 18-11-2005
Counsel for the Partes :
For the Appellant : R.S. Hegde, Ms. S. Pandey, Chandra Prakash and P.P. Singh, Ms. Kiran Suri, Advocates.
For the Respondent : Basava Prabhu S. Patil, A.S. Bhasme, B. Subrahmanya Prasad and S.K. Dubey, Advocates.

Headnote:(i) Karnataka Rent Control Act, 1961—Sections 21(1)(a), (h) and 29(4)—Eviction suit—Maintainability—Appellants were inducted as tenants by father of respondent, claiming to be the absolute owner of the property—Appellants had been paying rent to father of respondent—Appellants cannot take advantage of any dispute between the Corporation and the respondent as they were inducted as tenants by the predecessor-in-interest of respondent—Appellants derive their right to continue in possession of premises only through the respondent—Respondent has come on record as a legal representative of her father under a Will—Appellant’s case that eviction petitions were not maintainable as there was no jural relationship of landlord and tenant between the parties—Whether trial Court as well as the High Court were justified in holding that jural relationship of landlord and tenant was established between the parties—(Yes)—A ‘landlord’ under the Act can maintain a suit for eviction even without being the owner of premises.

       Held : The question as to whether Doraiswamy was the absolute owner of the property is not relevant in considering the question whether there existed the jural relationship of landlord and tenant between the parties. The appellants had been paying rent to Doraiswamy. These facts lead to the inescapable conclusion that relationship of landlord and tenant existed, and the several orders passed by the trial court and the High Court in this regard cannot be faulted. On facts, therefore, we find that the appellants cannot deny the fact that they were inducted as tenants by Doraiswamy, the father of the respondent and her predecessor-in-interest. (Para 15)

       The landlord under the Karnataka Rent Control Act need not be the owner of the premises. Secondly, the mere dismissal of the suit did not, as a consequence, confer title on the Corporation in respect of the property in question. In fact we have noticed that a subsequent suit filed by the Corporation for a declaration that the sale deed executed in favour of Doraiswamy was null and void was also dismissed. In these circumstances whatever may be the dispute between the Corporation and the respondent, the appellants certainly cannot take advantage thereof, once having admitted that they were inducted as tenants by Doraiswamy, the predecessor-in-interest of the respondent. It is also interesting to note that in the suit filed by the Corporation a prayer was made for a direction to the respondent as well as to the appellants herein to handover vacant possession of the premises to the Corporation. The appellants derive their right to continue in possession of the premises only through the respondent. (Para 17)

       Moreover, as we have noticed earlier, the suit filed by the Corporation for declaration of its title was dismissed. The sale deed executed in favour of the landlord by the court in the execution exceeding has not yet been declared by any court to be null and void. Counsel for the respondent was, therefore, justified in submitting that the question now sought to be urged, namely, whether title vests in the Corporation or not, would necessitate a finding on a jurisdictional fact, which must be pleaded and proved by the party raising the objection. The submission, therefore, based on lack of jurisdiction of the court in view of the provisions of Section 2(7) of the Act cannot, in the facts of this case, be entertained for the first time by this Court, and we accordingly reject the same. (Para 19)

       Lastly it was faintly submitted that the respondent has come on record as a legal representative of Doraiswamy under a Will, but she had no right to continue with the proceeding after the death of her father on the ground of ademption. It was submitted that the Will executed by late Doraiswamy did not confer the right of ownership of the premises on the respondent as Doraiswamy himself was not the absolute owner of the premises. Since he was not the owner of the premises, he could not bequeath that right in favour of the respondent. This submission has been considered by the High Court and rejected. In our view the High Court rightly took the view that the question which arises in the instant proceeding is not whether Doraiswamy was the owner of the premises, but whether he was the “landlord” who could sustain an eviction proceeding under the Act. Since a “landlord” under the rent Act can maintain a suit for eviction even without being the owner of the premises, the submission based on Section 152 of the Indian Succession Act, 1959 must be rejected. In any event, there is no finding that the testator, had got title to the premises in question at the time of his death. (Para 21)

       (ii) Evidence Act, 1872—Section 116—Rule of estoppel—Exception to the rule arises if it is shown that since the date of tenancy the title of the landlord came to an end or that he was evicted by a paramount title holder, or that even though there was no actual eviction or dispossession from the property, under the threat of eviction, the tenant had attorned to the paramount title holder and a new jural relationship of landlord and tenant had come into existence between them. (Para 18)