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CASE NO.: Appeal (civil)  3502 of 2004

PETITIONER: E. Parashuraman (D) by LRs.                                     

RESPONDENT: V. Doraiswamy (D) by LR.                                       

DATE OF JUDGMENT: 18/11/2005

BENCH: B.P. SINGH & ARUN KUMAR

JUDGMENT: J U D G M E N T  WITH

CIVIL APPEAL NO. 3503 OF 2004

G. Ramachandran                                                          \005 Appellant

Versus

V. Doraiswamy (D) by LR.                                          \005 Respondent

B.P. SINGH, J.

       These two appeals by special leave are directed against the  common judgment and order of the High Court of Karnataka at  Bangalore dated July 15, 2003 in H.R.R.P. Nos. 209 and 210 of 2000.  By its aforesaid judgment and order, the High Court dismissed the  revision petitions preferred by the appellants/tenants and upheld the  order  of the 15th Addl. Small  Causes Judge, Bangalore dated  January 27, 2000 in H.R.C. Nos.10700-10701 of 1991 thereby  affirming the order of eviction on the ground of bona fide need of the  respondent/landlord.  

       It is necessary to recapitulate the facts of the case.  According  to the appellants, the property in question, of which the rented  premises form part, was owned by the Bangalore Mahanagar Palike,  (hereinafter referred to as the ’Corporation’) which had leased out the  building to one Mr. Dhanpal for a period of ten years.  In O.S. No.  436 of 1964 on the file of the Munsif’s Court, Civil Station,  Bangalore, a decree had been passed in favour of Shri Dhanapal  directing the vendors to execute the re-conveyance deed in favour of  Shri Dhanapal and to deliver all the documents in their possession.  It  also appears from the deed of sale executed on 9th June, 1967 by the  Munsif, Civil Station Bangalore, on behalf of the aforesaid vendors  Smt. Lakshamma and others, that Shri Dhanapal had assigned the  decree in favour of Shri Doraiswamy.  The sale deed which was  executed by the Court on behalf of the judgment debtor and in favour  of Doraiswamy narrates the following :-          

"Now this indenture of sale witnesseth that in pursuance  of the Decree in OS No. 436 of 1965 and Ex. No. 425 of  1966 on the file of the Munsif, Civil Station, Bangalore,  the Vendors 1 and 2 by the Munsiff, Civil Station,

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Bangalore, doth hereby grant and sell and transfer,  convey and assign unto the use of the said purchaser,  free from encumbrance of the schedule property to have  and to hold the same with absolute liberty to own,  occupy, use, transfer, deal with and to dispose of the said  schedule property in any manner whatsoever the said  purchaser desires."  

       On a reading of the sale deed executed by the Court, it appears  that the vendors therein claimed absolute ownership of the land and  structures and building thereon, and the same was conveyed to the  assignee, namely \026 Doraiswamy, the predecessor-in-interest of the  respondent.            The said Mr. V. Doraiswamy filed a suit for the eviction of the  appellant in Civil Appeal No.3503 of 2004 under Section 21(1) (a)  and (h) of the Karnataka Rent Control Act which was allowed only  under Section 21 (1) (a) and the tenant was given one month time to  pay the arrears of rent.  The order was made on February 22, 1983.

       Pursuant to Doraiswamy purchasing the property in question in  execution proceeding, the Corporation initially entered the name of  Mr. V. Doraiswamy along with Mr. Dhanapal in its record, but later  realizing its mistake deleted his name by order dated June 16, 1986.   This was challenged by Doraiswamy who filed a suit being O.S.  No.10815 of 1986 for a declaration and for cancellation of the order  deleting his name.  The suit filed on October 10, 1986 was ultimately  dismissed on January 31, 1989 holding that the Civil Court had no  jurisdiction in view of the fact that the plaintiff was not the owner of  the property which was really a public premises.  Against the  dismissal of his suit Doraiswamy preferred Regular First Appeal  No.305 of 1989 before the High Court of Karnataka at Bangalore.   The said Regular First Appeal was dismissed for non- prosecution on  February 27, 2001 and, thereafter, a petition for restoration was also  dismissed for non-prosecution on January 10, 2002.

       While the aforesaid Regular First Appeal was pending in the  High Court, Doraiswamy claiming to be the landlord, filed   applications for eviction of the appellants herein under various  provisions of the Karnataka Rent Control Act including Section 21  (1) (h) thereof.  The said applications were numbered as H.R.C.  Nos.10700-100701 of 1991.  During the pendency of the said suit  Doraiswamy died.  In terms of the Will executed by him, his  daughter, the respondent herein, was brought on record as his legal  representative.

       It is important at this stage to refer to the proceedings initiated  by the appellants during the pendency of the eviction proceeding.  It  appears that the tenants preferred H.R.R.P Nos.1295-1296 of 1995  before the High Court contending that the eviction petitions were not  maintainable as there was no jural relationship of landlord and tenant  between the parties.  The said revision petition was disposed of by the  High Court directing the trial court to consider the question as a  preliminary issue.  The trial court, thereafter, considered the question  as a preliminary issue and held that jural relationship of landlord and  tenant was established between the parties.

       Aggrieved by the said order H.R.R.P. Nos.390-391 of 1998  were filed before the High Court and the High Court by its order  dated September 8, 1998 affirmed the finding of the trial court with  regard to the existence of jural relationship between the parties.  In  those revision petitions the High Court also noticed that once the  relationship of landlord and tenant was admitted, it continued to exist  until it was put to an end in a manner known to law.  The mere claim  of the Corporation claiming to be the owner, could not affect the

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rights and obligations of the parties as landlord and tenants.  Thus,  the High Court affirmed in revision that landlord-tenant relationship  existed and, therefore, the application for eviction was maintainable  under the Karnataka Rent Control Act.

       It appears that during the pendency of the proceeding before  the trial court an application under Section 29(4) of the Act was filed  by the landlord stating that he was willing to personally receive the  rent from the tenant.  The trial court directed that the rent be given to  the landlord directly.  This order of November 30, 1998 was  challenged by the tenants in H.R.R.P. Nos.14-15 of 1999 which were  also dismissed by order dated March 3, 1999.  

The trial court ultimately allowed the applications for eviction  on the ground enumerated in Section 21 (1) (h) of the Karnataka Rent  Control Act, 1961, by its order dated January 27, 2000.  The  appellants herein preferred H.R.R.P. Nos.209-210 of 2000 impugning  the eviction order passed by the trial court.

       Even at the stage of admission the appellants sought to urge  before the High Court that the eviction petition was not maintainable  in view of absence of landlord-tenant relationship. The High Court  noticing the earlier orders passed by the High Court in  H.R.R.P.Nos.390-391 of 1998 dated September 8, 1998 and the order  dated March 3, 1999 in H.R.R.P. Nos.14-15 of 1999 held that these  orders conclusively decided that jural relationship of landlord and  tenant existed between the parties with respect to the petition  premises, and it stood conclusively established that the tenants are the  tenants under the respondent/landlord and consequently a petition for  eviction under the Act was maintainable.  It was not open to the  appellants to challenge the decisions of the trial court aforesaid which  were affirmed by the High Court in revision, and which operated as  res-judicata against the tenants.  They could not be permitted in law  to re-agitate the same issue on one or the other pretext.  Having so  recorded its finding, the High Court directed the matter to be placed  for admission on the other questions involved in the two revision  petitions.  Ultimately, the matter came to be heard by the High Court,  and by its impugned common judgment and order the revision  petitions were dismissed.        One another aspect of the matter may be noticed at this stage.   The Bangalore Mahanagara Palike claiming to be the owner of the  premises in question had filed a suit being O.S. No. 15139 of 2000  against the respondent (defendant No.1 in the suit) and the appellants  herein, who were defendants 2 and 3 in the suit.  In the said suit the  Corporation prayed for a declaration to the effect that the sale deed  executed on 9th June, 1967 on behalf of Smt. Lakshmamma                   and others in favour of predecessor-in-interest of defendant No.1 was  null and void and unenforceable and that the same may be cancelled  with direction to the defendants to handover the vacant possession of  the suit property to the Corporation.  A further declaration was sought  that the schedule property belonged absolutely to the Corporation.   Other reliefs such as permanent injunction etc. were also prayed for.   

The suit was tried by the XXVIIIth Additional City Civil  Judge, Bangalore.  However, the Corporation filed a memo admitting  that it ought to have sought the relief under Karnataka Public  Premises (Eviction of Unauthorised Occupants) Act, 1974.  In view  of the admission of the Corporation aforesaid, the Court held that the  suit was not maintainable and accordingly the application filed by the  respondent herein under Order 7 Rule 11 read with Section 94 of the  Code of Civil Procedure was allowed and the plaint was rejected.  A  copy of the order of the Court dated March 1, 2004 was handed over  to us when the appeal was being heard.

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It thus appears that the sale deed executed by the Court on  behalf of the judgment-debtor in favour of the predecessor-in-interest  of the respondent  has not so far been set aside or cancelled.  The sale  deed purports to confer on the predecessor-in-interest of the  respondent absolute title to the property in question.

Even before us it was strenuously urged that there is no  relationship of landlord and tenant between the parties and, therefore,  an application for eviction under the Karnataka Rent Control Act was  not maintainable.  We have earlier noticed that this submission was  urged by the appellants at earlier stages in the proceeding.  When the  issue was tried as a preliminary issue and the trial court found that the  jural relationship did exit, a revision was preferred before the High  Court which was dismissed.  The material on record also discloses  that the same plea was taken in opposition to the application filed by  the landlord under Section 29(4) of the Act and the same was again  rejected.  A revision against the said order was also dismissed by the  High Court.  It is also admitted by the appellant in Civil Appeal No.  3503 of 2004 that earlier a suit for eviction had been filed by the  landlord under Section 21(1)(a) and (h) of the Karnataka Rent  Control Act which was partially decreed and the tenant  was directed  to pay the arrears of rent by order dated February 22, 1983.  The High  Court in its earlier order dated September 6, 2000 has also referred to  these facts and held that these orders having attained finality it was  not open to the appellants to reopen the issue and to reagitate the  same question over again.  Apart from the finding of the High Court,  the undisputed position is that the appellants were inducted as tenants  by Doraiswamy.  Doraiswamy claimed to be the absolute owner of  the property pursuant to the sale deed executed by the Court in his  favour in execution proceeding.  It is, therefore, apparent that the  appellants were inducted as tenants by Doraiswamy, their landlord.   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.   

It was then urged before the High Court that the need of the  respondent was fully met as she had come in possession of other  portions of the building which were earlier occupied by two other  tenants.  In any event, it was argued, the right to sue did not enure to  the benefit of the respondent since the requirement pleaded by  Doraiswamy, her late father, was not for the benefit of the present  respondent.  The High Court has elaborately considered this  submission and negatived it.  We have been taken through the  judgment of the High Court and we find no reason to take a different  view.  The question as to the existence of bona fide personal need is a  pure question of fact and, we find no reason to interfere with the  finding of the High Court on this issue.   

It was submitted before us that in the facts and circumstances  of this case the tenants were justified in challenging the claim of the  respondent to be the landlord.  It was argued that the tenancy, if any,  was created at an earlier stage and thereafter certain developments  took place which justified the appellants’ challenge to the right of the  landlord to seek their eviction.   In this context it was submitted that  after the court sale, though the name of Doraiswamy was added in the  record maintained by the Corporation, his name was subsequently  deleted.  Doraiswamy, thereafter, filed a suit for declaration and also  a decree for cancellation of the order deleting his name.  The suit was

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dismissed on the ground of want of jurisdiction and the appeal  preferred against the said judgment and order was also dismissed.   Therefore, it was submitted, that the order of the Civil Court  dismissing the suit filed by Doraiswamy attained finality.  On the  basis of these facts it was contended that Doraiswamy ceased to be  the owner of the property and consequently could not exercise the  rights conferred upon a landlord by the statute.  The submission must  be rejected \026 firstly, for the reason that 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.  The  judgment relied upon by the appellants in D. Satyanarayana  vs.  P.  Jagdish :  (1987) 4 SCC 424 is clearly distinguishable on the facts of  the case.  In our view there was no extinguishment of title of the  respondent, even though there may be some dispute about it with the  Corporation.  It is well settled that entries in the revenue record may,  at times, raise a presumption, but do not conclusively confer title.   

We have carefully examined the decisions of this Court in D.  Satyanarayana  vs.  P. Jagdish (supra) and A.V.G.P. Chettiar and  Sons and others  vs.  T. Palanisamy Gounder : (2002) 5 SCC 337 and  we are of the view that the principles laid down therein are not  applicable to the facts of this case.  The exception to the rule of  estoppel embodied under Section 116 of the Evidence Act arises if it  is shown that since the date of the 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 a 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.  Such a situation has  not arisen in the instant case.  In this case there is no finding that the  title of the landlord has come to an end.  The Corporation has not  established its title in any proceeding in accordance with law.  In  these circumstances the exception to the rule of estoppel embodied in  Section 116 of the Evidence Act cannot be pleaded by the appellants.   

It was then submitted before us that in view of the provisions  of Section 2(7) of the Karnataka Rent Control Act, 1961 the  proceeding under Section 21 thereof was not maintainable at the  instance of the respondent.  This argument again, assumes the  existence of title in the Corporation and proceeds on the basis that the  premises belong to the Corporation.  Such a submission was not even  advanced before the High Court.  Learned counsel submitted that in  an application under Order 6 Rule 17 of the Code of Civil Procedure,  the appellant in Civil Appeal No.3503 of 2004 had raised an  objection to the jurisdiction of the Court.  We have perused the  aforesaid application and we find that there is no mention of Section  2(7) of the Act nor is there any plea raised in the said application to  the effect that the court had no jurisdiction since the premises  belonged to the Corporation.  The only objection raised therein was  that there did not exist jural relationship of landlord and tenant  between the parties.  The objection however, was sought to be raised  before us for the first time.  In the proceeding giving rise to these

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appeals the Corporation was not even a party and, therefore, the  disputed question as to whether the title holder was the Corporation  or the respondent could not have been gone into, and no finding could  be recorded against the Corporation.  We do not, therefore, wish to go  into this question for the first time in these appeals particularly in the  absence of the Corporation.  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 proceeding 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.   

We may, however, notice the submission urged on behalf of  the respondent that the provision of Section 2(7) of the Act will not  apply because the provision was enacted to except the provision of  the Act from governing government premises and legal relationships  created by governments and other authorities and bodies mentioned  in the sub-section.   In the instant case the relationship between the  parties was not created by the government or corporation and hence  the appellants cannot derive any benefit and claim exemption under  Section 2(7) of the Act.  In this connection reference was made to the  decision of the Division Bench of the Karnataka High Court in  Bharat Coal Mines Ltd. and another   vs.  Kannappa and another :  1988 (3) Kar. L.J. 327 (DB).  Since we have not entertained this  submission, it is not necessary for us to express any opinion in this  regard.   

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.

We, therefore, find no merit in these appeals, and they are  accordingly dismissed. No costs.