SMT. HASEENA v. INAYATH

the grandmother of the petitioner by name Smt. Sydani Bi W/o Hayath Sab, who was the absolute owner of the petition schedule property. It is contended that after the death of the grandmother and mother of the petitioner, the petitioner became the absolute owner of the petition schedule property. It is contended that the respondent is a tenant under the petitioner on oral agreement and the tenancy between them commences from 1st of every month on a monthly rent of Rs.300/- during the period of the deceased mother of the petitioner and subsequently, it was enhanced to Rs.600/- per month as per the oral agreement. The rent has to be paid on or before 5th day of every month.

#3. It is further contended that the schedule premises has been let out to the respondent for running a petty beeda shop in HRC No.6/2014 and for running a shop/residence in HRC No.7/2014. The respondents committed default of payment of rent from last four months and the respondents are due of rent from October 2011 to the tune of Rs.28,800/- in both the cases and on demand also, they did not pay the amount. In both the petitions, it is contended that the petition schedule premises is required for bonafide use and occupation and to construct a new 5 renovated building, as the existing building is very old one and the petitioner has terminated the tenancy by issuing the notice to the respondents on 29.10.2011 and called upon to pay arrears of rent of Rs.21,600/- and to surrender the vacant possession within 15 days from the date of notice. Though the said notice was personally served to the respondent, the respondent in both the cases not surrendered the vacant possession and not paid the arrears of rent and hence sought for the eviction order.

#4. In HRC No.6/2014, the respondent appeared and filed the written statement and denied the claim of the petitioner by stating that there is no jural relationship of landlord and tenant between him and the petitioner. It is contended that the father of the respondent was a tenant under one Smt. Hanifa Bi, W/o Buden Sab. After the death of Hanifa Bi, the petition schedule property was under the ownership of one Rameeza Bi W/o Basha Sab and after the death of his father and also Smt. Rameeza Bi, he has been in occupation of the petition schedule premises as a tenant under one Smt. Shanaz Begum W/o Mohammad Rafiq under the lease deed. Further, the respondent denied the petition averments that he is a tenant and took the 6 schedule premises for running a beeda shop and contended that he is the tenant for ground and constructed a petty box shop on his own and the allegation of chronic defaulter was denied and also the petitioner is a landlady was also denied and for bonafide requirement the petition schedule premises is required was also denied.

#5. In HRC No.7/14 also, the respondent appeared and filed the written statement and denied the jural relationship and contented that he has occupied the petition schedule property in his own right as an heir of Ghouse Sab. It is contended that the said Ghouse Sab is the son of Hanifa Bi, who is the original owner of the petition schedule property and abutting premises. After her demise, her son Ghouse Sab was in occupation till he died. Thereafter, the respondent being the son of Ghouse Sab, has occupied the petition schedule residential house. The respondent denied the plaint averments that he is a tenant and contended that he has not paid the rent at any point of time and also the petitioner is not the landlady of the respondent.

#6. In HRC No.6/2014, the petitioner examined herself at P.W.1 and got marked the documents at Exs.P.1 to 31. In 7 HRC No.7/14, the petitioner got examined herself as P.W.1 and got marked the documents at Exs.P.1 to 33. The respondents in HRC Nos.6/2014 and 7/2014 examined themselves as R.W.1 and got marked the documents at Exs.R1 to 5. The Trial Court having considered the material available on record, answered point Nos.1 to 3 in the affirmative in coming to the conclusion in both the cases that the respondents are the tenants in respect of the petition schedule property and the same is required for bonafide use and occupation of the petitioner and the petitioner is entitled for the relief as sought.

#7. Being aggrieved by the allowing of the petitions in both the cases, Revision (Rent) Nos.3/2019 and 4/2019 are filed, respectively. The Revisional Court, having re-assessed the material available on the record in both the cases, formulated the points whether the landlord and tenant relationship exists between the petitioner Smt. Haseena and the respondent, whether the petitioner Smt. Haseena is entitled for the relief claimed in I.A.No.2 filed under Section 45 of the Karnataka Rent Act, whether the respondent is entitled for the relief claimed in I.A.No.3 filed under Section 43 of the Karnataka Rent Act, whether the impugned order under revision is contrary to law, 8 facts and evidence on record and whether it requires interference. The Revisional Court, answered point Nos.1 and 2 in the negative, but allowed I.A.No.3 filed under Section 43 of the Karnataka Act and set aside the order of the Trial Court. While setting aside the order, in paragraph No.33, in detail discussed regarding the jural relationship between the parties and also discussed the documents which have been produced by the respondents and observed that there is a dispute between the present petitioner and the legal heirs of Buden Sab with regard to the property in question. The petitioner has not produced any document in writing to establish the landlord and tenant relationship and she has not produced any rent receipt. An observation is also made that there is a serious dispute with regard to landlord and tenant relationship between the petitioner and respondent. On the other hand, the respondent has produced one rent agreement executed by him in favour of Smt. Shanaz Begam W/o Mohammed Rafiz in HRC No.3/2019 and hence comes to the conclusion that it is not safe to confirm the eviction order passed against the respondent holding that there exist landlord and tenant relationship between the petitioner and respondent. 9

#8. In Revision (Rent) No.4/2019, an observation is made that plaintiff No.5 Ramiza is the wife of late Mohammed Ghouse who is also son of Khatunbi in O.S.No.505/1997. Considering facts pleaded in O.S.No.505/1997 and O.S.No.272/2005, comes to the conclusion that the properties were divided between the branch of Hayath Sab and Buden Sab. Buden Sab got eastern portion measuring 16’ x 50’ and Hayath Sab got western portion measuring 15’ x 50’. But in the case on hand, the claim is made that Sydani Bi had executed a Will in favour of the petitioner Smt. Hasina and her mother Smt. Mehaboo Bi. The Revisional Court having considered that there is a dispute between the present petitioner and the legal heirs of Buden Sab with regard to the property in question and also the petitioner has not produced any document in writing to establish the landlord and the tenant relationship and also not produced any rent receipt, comes to the conclusion that not established the jural relationship between the parties.

#9. Being aggrieved by the order of the Revisional Court, these two H.R.R.Ps. are filed before this Court. 10

#10. The learned counsel the petitioner would vehemently contend that the relationship is disputed, but the Trial Court having considered the material on record, particularly the pleadings and the evidence, allowed the petitions and the same is reversed by the Revisional Court. The learned counsel would contend that the Revisional Court committed an error in entertaining the revision invoking Section 43 of the Karnataka Rent Act and ought not to have invoked Section 43 in the rent revision. The learned counsel would contend applications are filed under Section 43 of the Karnataka Rent Act in the Revisional Court. The learned counsel relied upon the judgment of the Apex Court in the case of ASHA RANI GUPTA v. VINEET KUMAR reported in AIR Online 2022 SC 983, wherein it is held that only basic requirement in suit of nature envisaged by Order 15 Rule 5 is character of tenant as being lessee in suit premises. Thus, it cannot be said that in every case of denial of relationship of landlord and tenant in suit for eviction and recovery of rent/damages could enjoy holidays as regards payment of rent. The learned counsel also brought to the notice of this Court the discussion made in paragraph No.12 of the judgment. 11

#11. The learned counsel also relied upon the judgment of this Court in the case of A.M. MALLOEGOWDA v. KARIYAPPA GOWDA reported in 2004 (1) KCCR 143, wherein discussion was made with regard to Section 43 of the Karnataka Rent Act,

#1999. Section 43 of the Act, which provides for stopping of further proceedings in case of disputed relationship of landlord and tenant, applies only to the proceedings before original Court and not to the proceedings pending in revision. The learned counsel also brought to the notice of this Court paragraph No.4, wherein discussion was made with regard to Section 43 of the Act. This Court held that, the Court as referred to in Section 43 has to be understood as the original Court and not the Revisional Court. Any acceptance of the submission of the petitioner would defeat an order of the Court after contest by the parties. That is not the intention of Section 43. Section 43 is an enabling provision in the matter of decision with regard to relationship between landlord and tenant. When parties go before the original Court and the original Court decides the relation issue after contest, it is not open to the tenant or the landlord as the case may be to stop the proceedings after an order passed after contest. In fact, this view of mine is supported by the wordings 12 of Section 43 itself. Section 43 provides for stoppage of all further proceedings before it and direct the parties to approach Competent Court etc. The Court in terms of the Act would mean the original Court. It would depend upon the area in terms of Section 3-C. The wordings of ‘Court’ and the stoppage of further proceedings before it would be in fact show the intention of the legislature in confining the stoppage of proceedings before the original Court. Only that stoppage cannot be extended to a Revisional Court. The learned Judge is therefore right in his findings with regard to the stoppage of proceedings.

#12. Per contra, the learned counsel for the respondent would vehemently contend that the two suits are filed in O.S.No.505/1997 and O.S.No.272/2005. It emerges that one Gidde Mohamed Sab had two sons namely, Hayath Sab and Buden Sab. Smt. Sydanibi referred in the present petition is the wife of Hayath Sab. Buden Sab had two wives namely, Zulekabi and Khatumbi. The plaintiff No.1 Abdul Wahid and plaintiff No.2 Pyarijan in O.S.No.505/1995 are the children of Zulekabi. The plaintiff No.3 Ramizabi and plaintiff No.4 Fathimabi O.S.No.505/1995 are the children of Khatunbi. The plaintiff No.5 Ramiza is the wife of late Mohammed Ghouse who is also son of 13 Khatunbi. The plaintiff No.2 Pyarijan had two children namely, Shanshad and Shahnaz Begam. As per the facts pleaded in the suit O.S.No.505/1997 and O.S.No.274/2005, the property situated at M.K.K. Road were divided between the branch of Hayath Sab and Buden Sab. Buden Sab got eastern portion measuring 16’ x 50’ and Hayath Sab got western portion measuring 15’ x 50’. But claim of the petitioners in both the cases is that, Sydanibi had executed a Will in the respect of property measuring 15’ x 135’ in favour of the petitioner Smt. Hasina and her mother Smt. Mehaboo Bi. Both the suits were decreed against the defendants and liberty was given to evict the tenants under due process of law.

#13. The learned counsel would contend that both the respondents are not the tenants of the petitioner and nothing is placed on record before the Court to establish the jural relationship and the same was noticed by the Revisional Court. The learned counsel would contend that the Revisional Court in paragraph No.33 of the judgment discussed the same in detail. The learned counsel would submit that the citations relied upon by the learned counsel for the petitioner are not applicable to the facts of the case on hand. 14

#14. In reply, the learned counsel for the petitioner would contend that the very rent revision filed before the Revisional Court is not maintainable and no jurisdiction to entertain the application filed under Section 43 of the Karnataka Rent Act, but erroneously passed the order.

#15. Having heard the learned counsel for the petitioner and the learned counsel for the respondent and also considering the material available on record, the points that would arise for the consideration of this Court are: (i) Whether the Revisional Court committed an error in coming to the conclusion that jural relationship is not established in both the cases. (ii) Whether the application filed under Section 43 of the Karnataka Rent Act, before the Revisional Court is not maintainable in view of the judgment of this Court the case of A.M.Malloegowda (supra)? (iii) What order? Point No.(i):

#16. Having heard the learned counsel for the respective parties and also considering the material available on record, 15 with regard to the jural relationship is concerned, specific pleading is made before the Trial Court that a Will was executed by Smt. Sydanibi in favour of the mother of the petitioner. The petitioner also contend that after the mother passed away, now she has become the absolute owner of the premises. The petitioner in HRC No.6/2014 relied upon Exs.P.1 to 31. Having considered both oral and documentary evidence placed on record, there is a clear admission on the part of P.W.1 that the respondent has not executed any rent agreement, but claims that there was an oral agreement. P.W.1 categorically admits that for having paid the rent also, not produced any receipt before the Court and also even with regard to the quantum of rent also, no document is produced. But says that even inspite of the respondent was called upon to come and execute the rental agreement, refused to execute the rental agreement. Except oral tenancy, no document. In the cross-examination, a suggestion was made that she was aware of Hanifa Bi, who is the wife of Buden Sab, was the owner of the petition schedule property and after her death, her son Ghouse Sab inherited the petition schedule property and after the death of said Ghouse Sab, the respondent being the legal heir of the said Ghouse Sab 16 is residing in the petition schedule property and the said suggestion was denied. A suggestion was made that the petition schedule premises belongs to Hanifa Bi and under Hanifa Bi, the respondent’s father was a tenant and the same was denied. It is elicited that in 2011, she has given the notice to make the payment of rent and the rents are not paid. A suggestion was made that no such notice was given and the same was denied and reiterates that there is no rental agreement.

#17. Having perused the material available on record and also the evidence of R.W.1, even in the cross-examination of R.W.1 also, nothing is elicited. But categorically says that his father had taken the premises from Hanifa Bi and claims that there was a written agreement and he can produce the same before the Court, but not produced the same. However, admits that notice was given, but do not remember giving any reply. In the cross-examination, though suggestions are made that they are the tenants under P.W.1, nothing is elicited.

#18. Having considered both oral and documentary evidence placed on record, in order to prove the factum of jural relationship, nothing is placed on record. There is a serious 17 dispute with regard to the property belongs to whom and they claim that they are the tenants under Buden Sab W/o Smt. Hanifa Bi. In the absence of any documentary evidence regarding relationship of the tenants and the landlord, the Revisional Court rightly comes to the conclusion that the same has not been established and there is a serious dispute with regard to the ownership is concerned. But claim is made that there was a Will.

#19. Now with regard to Revision (Rent) No.4/2019 and also HRC No.7/2014, P.W.1 reiterates the averments in the evidence that he was a tenant. In order to prove the tenancy also, specific question was put that he was a tenant under the petitioner and the same was denied. In this case also P.W.1 denies Hanifa Bi is the wife of Buden Sab and also denies the suggestion that after the death of Hanifa Bi, the property was allotted to her son Ghouse Sab and also clearly admits that there is no any rental agreement and when demanded to execute the rental agreement, they came forward to assault the petitioner and also no rent receipt. 18

#20. R.W.1 also reiterated the objection statement and relies upon Exs.R.1 to 5 i.e., suit documents and admits in the cross-examination that he has not filed any objections. But he claims that Buden Sab is his grandfather and the petition schedule property belongs to his grandfather Buden Sab and the same was given by the Government. He says he cannot tell in which year the property was given to Buden Sab. In the cross- examination, though suggestion was made that the petition schedule premises belongs to Sydani Bi, the same was denied. In the cross-examination, he admits the issuance of notice and the same was taken by one Sameena, but admits that no reply was given and also rents are not given in terms of the notice.

#21. The Revisional Court taken note of the dispute between the parties regarding jural relationship and no documentary evidence is placed before the Trial Court or the Revisional Court to establish the jural relationship between the parties. The Revisional Court also taken note of the serious dispute with regard to the ownership is concerned. It is also important to note that when there is no rental agreement and also no rental receipt, in the absence of establishing the jural 19 relationship, the question of granting any eviction order does not arise and the same was taken note of by the Revisional Court. Hence, I do not find any error committed by the Revisional Court in coming to the conclusion that relationship is not established and hence, I answer point No.(i) in the negative. Point No.(ii):

#22. The learned counsel for the petitioner brought to the notice of this Court that, an application is filed before the Revisional Court under Section 43 of the Karnataka Rent Act. This Court in the judgment in the case of A.M. Malloegowda (supra), has held that application could be invoked before the original Court and the same is discussed in paragraph No.4 and this Court would like to extract the same: “4. A careful reading of Section 43 would show that Section 43 is only applicable to the original proceedings and not to the revisional proceedings. The Court as referred to in Section 43 has to be understood as the original Court and not the Revisional Court. Any acceptance of the submission of the petitioner would defeat an order of the Court after contest by the parties. That is not the intention of Section 43. Section 43 is an enabling provision in 20 the matter of decision with regard to relationship between landlord and tenant. When parties go before the original Court and the original Court decides the relation issue after contest, it is not open to the tenant or the landlord as the case may be to stop the proceedings after an order passed after contest. In fact, this view of mine is supported by the wordings of Section 43 itself. Section 43 provides for stoppage of all further proceedings before it and direct the parties to approach Competent Court etc. The Court in terms of the Act would mean the original Court. It would depend upon the area in terms of Section 3-C. The wordings of ‘Court’ and the stoppage of further proceedings before it would be in fact show the intention of the legislature in confining the stoppage of proceedings before the original Court. Only that stoppage cannot be extended to a Revisional Court. The learned Judge is therefore right in his findings with regard to the stoppage of proceedings.”

#23. Having read the above paragraph, it is very clear that Section 43 is only applicable to the original proceedings and not to the revisional proceedings. An observation is made that any acceptance of the submission of the petitioner will defeat an order of the Court after contest by the parties and the intention of Section 43 is very clear that the same is an enabling provision 21 in the matter of decision with regard to relationship between the landlord and tenant. When parties go before the original Court and the original Court decides the relation issue after contest, it is not open to the tenant or the landlord, as the case may be, to stop the proceedings after an order passed after contest. Having taken note of the principles laid down in the said judgment, a specific observation is made that the wordings of Section 43 is pertaining to the original Court. The Court in terms of the Act would mean the original Court and not the Revisional Court and hence, I am of the opinion that the Revisional Court ought not to have entertained the application filed under Section 43 of the Karnataka Act, when the said application was not filed before the Trial Court either by the owner or by the tenant and committed an error in entertaining the same by allowing the I.A. filed under Section 43. Hence, it requires interference of this Court. However, taking into note in the original proceedings, in the absence of the application under Section 43 of the Karnataka Act, nothing is placed on record to establish the jural relationship between the parties and in the absence of any rental agreement, though the petitioner claims that there was an oral agreement, nothing is elicited from the mouth of R.W.1 in both the matters 22 that they were the tenants either under Smt. Sydani Bi or under the mother of the petitioner Smt. Mehaboo Bi and also under this petitioner. Under such circumstances, the question of entertaining the Karnataka Rent Act does not arise and hence, I do not find any ground to interfere with the findings of the Revisional Court in coming to the conclusion that relationship is not established, except answering point No.2 in the affirmative. Point No.(iii):

#24. In view of the discussions made above, I pass the following: ORDER Both the HRRPs are dismissed by confirming the order of the Revisional Court that the petitioner has not established the jural relationship. However, the application entertained under Section 43 of the Karnataka Rent Act before the Revisional Court is set aside. MD Sd/- (H.P. SANDESH) JUDGE