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2011 Supreme(Kar) 220
2011(3) KCCR 344
High Court of Karnataka
THE HONOURABLE MR. JUSTICE ASHOK B. HINCHIGERI
Mahanth Kumari & Another
Versus
S. Vijaya Kumar
R.F.A.No.389 of 2010 (RES)
Decided on : 28-03-2011
For the Petitioner:P.D. Surana, Advocate.
For the Respondent:Y.R. Sadashiva Reddy, Advocate FOR C/R.
The Court upheld the use of admissions made by the appellants in the H.R.C. proceedings and found that the Rent Act did not apply if the commercial premises exceeded 14 sq.mts. The Court also emphasized the obligation of the tenant to keep paying rent until vacating the premises.
Headnote:
The suit involved a dispute over the ownership of the property and the entitlement of the respondent to evict the appellants. The Trial Court decreed the suit in favor of the respondent. The issues considered by the Court included the jurisdiction of the Trial Court, the statutory protection of the appellants under the Karnataka Rent Act, the ownership of the suit property, the jural relationship between the parties, and the non-payment of rental arrears. The Court found that the appellants' admissions in the H.R.C. proceedings could be relied upon, and the Rent Act did not apply if the commercial premises exceeded 14 sq.mts. The Court held that the respondent was the lawful owner of the property and that the appellants could not deny the title of the respondent's vendors. The Court also found the appellants' justification for not paying rental arrears unacceptable. The appeal was dismissed, but the appellants were granted one year to vacate the property and directed to clear the arrears of rent and continue paying future rents until vacating the premises.
Key Points: - The Act discusses whether the Rent Act applies based on the premises’ plinth area and usage, noting exemption when area exceeds 14 sq.m and non-residential use (!) (!) . - The judgment analyzes the respondent’s title and the jural relationship, asserting the respondent’s ownership and vendor’s rights as the basis for tenancy relations (!) (!) . - The proceedings address whether admissions in earlier HR.C. proceedings can be used to sustain the ejectment suit and the requirement to confront prior statements under Section 145 and Order XII Rule 6 CPC (!) (!) (!) . - The court grants one year for vacating the premises and requires payment of arrears and ongoing rent until vacating (!) (!) (!) . - The court emphasizes tenant to continue paying rent until vacating and deposits of arrears where relevant (!) (!) (!) .
What is the jurisdiction of the Trial Court to entertain the eviction suit?
What is the applicability of the Karnataka Rent Act to premises used for non-residential purpose exceeding 14 square meters?
What is the status of the respondent as owner/lessor and the jural relationship between the parties?
1. This appeal is directed against the judgment and decree, dated 7.12.2009 passed by the Court of the VIII Addl. City Civil Judge (CCH.15), Bangalore in O.S.No.15077/2003.
2. The facts of the case in brief are that one Sri K.R.Nagappa Reddy was the owner of the suit schedule ‘A’ property. A portion of ‘A’ schedule property consisting of 2 shops and 4 houses were leased to the appellants. The leased portions constitute suit schedule ‘B’ property. In a family partition, the suit schedule ‘A’ property was given to Sri Nagappa Reddy’s sons, Sriyuts Dhanpal Reddy and Narayana Reddy. The said Narayana Reddy and Dhanpal Reddy filed H.R.C.No.109/2001 seeking the eviction of the appellants from the suit schedule ‘B’ property.
3. Meanwhile, Sriyuts Narayana Reddy and Dhanpal Reddy sold the suit schedule ‘A’ property to the respondent by a registered sale deed, dated 17.44.2002. As the said Narayana Reddy and Dhanpal Reddy did not have any surviving interest in the suit schedule property, they withdraw H.R.C. No.109/2001. The respondent filed O.S.No.15077/2003 seeking the recovery of vacant possession of the suit schedule ‘B’ property, damages, mesne profits, etc. The appellants filed elaborate written statement denying that the respondent is the owner or lessor of the properties in question. They disputed the genuineness of the partition deed and the sale deed. Based on the rival pleadings, the Trial Court framed the following issues:
“1. Whether the plaintiff proves that he is the absolute owner of the suit schedule property?
2. Whether the plaintiff proves that he has terminated the tenancy of the defendant?
3. Whether the plaintiff is entitled for the damages from the defendants with effect from 01.08.2002? If so, at what rate?
4. What order or Decree?
4. The respondent got himself examined as PW-1 marking the documents at Ex.P.1 to P.14. The appellant No.2 was examined as DW-1 marking 7 documents in Exhibit ‘D’ series. Based on the pleadings, oral and documentary evidence placed on its record, the Trial Court answered the issues in favour of the respondent and decreed the suit.
5. Aggrieved by the aforesaid judgment and decree, this appeal is preferred.
6. Sri P.D.Surana, the learned counsel for the appellants submits that the question of partitioning the self-acquired property of Sri Nagappa Reddy would not arise at all. Partition cannot confer any title on the so-called so-vendors of the respondent. In this regard, he brought to may notice, this Court’s decision in the case of ARALAPPA & ETC. v. JAGANNATH & ORS., reported in AIR 2007 KAR 91, wherein it is held that the partition does not amount to transfer and by partition nobody acquires the title to property for the first time. The partition deed only recognizes an existing right, which each party to the deed has in the joint property and no right springs from the deed of partition. Sri Surana pointedly brings to my notice what the second appellant has stated in his affidavit by way of chief-examination. He has stated that the suit schedule property was not a partitionable estate at all. On this point, there is no cross-examination of the appellants.7. Sri Surana submits that just because the appellants have not replied to the termination notice, it does not deprive them of anything and particularly the protection which they enjoy under the Karnataka Rent Act, 1999. The admission, unless clear and positive, cannot be relied upon, so contends Sri Surana. He submits that the previous statement made by the appellants that the suit schedule ‘B’ property exceeds 14 sq. mts. is only for the purpose of that case. He submits that the appellants have not been cross-examined on what they had stated in their statement of objections in response to the H.R.C petition. As the appellants are not called upon to confirm or contradict, it, no reliance can be placed on the said statement of objections. In this regard, the learned counsel read out the provisions contained in Section 1
