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Jyotiba Shankar Karole Vs. Gajanan Channappa Angolkar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberC.R.P. No. 2428 of 1982
Judge
Reported inILR1986KAR1859; 1987(1)KarLJ271
ActsKarnataka Rent Control Act, 1961 - Sections 3, 21, 21(1) and 61
AppellantJyotiba Shankar Karole
RespondentGajanan Channappa Angolkar
Appellant AdvocateN.A. Mandgi, Adv.
Respondent AdvocateNarendrakumar Gunaki, Adv.
DispositionRevision dismissed
Excerpt:
.....of the word 'landlord' is so wide that it includes any person not being a tenant who from time to time derives title under a landlord. thus, the definition includes all those persons who derive title from the original landlord. thus, it covers all those persons who are successors-in-interest to or transferees of interest from, the original landlord. right to seek possession of the property is a right which goes with the property. it is not personal to the owner so long as it is not based on the ground of bona fide personal use and occupation.; - section 21(1)(f) -- right to seek possession not personal right but goes with property -- no distinction under section 21 whether person seeking eviction was landlord at the time of letting or commission of breach or became landlord on..........of the word 'landlord' is so wide that it includes any person not being a tenant who from time to time derives title under a landlord. thus, the definition includes all those persons who derive title from the original landlord. thus, it covers all those persons who are successors-in-interests to or transferees of interest from the original landlord. right to seek possession of the property is a right which goes with the property. it is not personal to the owner as long as it is not based on the ground of bonafide personal use and occupation. thus, the right to seek possession on the ground of unlawful sub-letting is not a personal right. it goes with the property as it arises out of sub-letting of the premises. in the instant case, the first respondent has derived title from the.....
Judgment:
ORDER

K.A. Swami, J.

1. This Civil Revision Petition under Section 115 of the Code of Civil Procedure, is directed against the order dated 31-5-1982 passed by the learned Principal District Judge, Belgaum, in HRC. Re vision No. 177/80 affirming the order dated 20-8-1980 passed by the learned First Additional Munsiff, Belgaum, in HRC. No. 323 of 1976 directing eviction of the petitioners from the schedule premises on the ground of sub-letting

2. The premises in question is a non-residential premises (a shop) bearing C.T.S. No. 110/A, Shahapur, Belgaum. The father of the 2nd respondent, who was the owner of the premises in question, mortgaged it under a possessory mortgage to the first respondent. At the time of execution of mortgage, the first petitioner was the tenant. After becoming mortgagee of the schedule premises, the first respondent, initiated the proceeding for eviction of the petitioners on the ground that the first petitioner has sub-let the premises in question to the 2nd petitioner. In addition to the ground of sub-letting, there were other grounds pleaded. It is not necessary to refer to the same because the Court of first instance has negatived those grounds, and in the revision before the District Judge, those grounds are not pursued; therefore, for our consideration, only the ground of subletting survives.

3. It is contended on behalf of the petitioners that there is no subletting of the premises ; that though the first petitioner initially took the premises in question on rent and was conducting the business in furniture, but subsequently due to the loss suffered by him in the business, he formed a partnership along with the 2nd petitioner for conducting a stationery shop and as such, it was the partnership firm consisting of the petitioners that was in occupation, and as such, there was no question of sub-letting. It is also further contended that the first respondent is not entitled to seek possession on the ground of sub-letting because he has become the mortgagee in possession of the premises subsequent to the formation of the partnership ; therefore, as per the definition of the word 'landlord' found in the Karnataka Rent Control Act, 1961 (hereinafter referred to as the 'Act'), he is not entitled to rely upon the ground of sub-letting which existed prior to the date of mortgage and it was not taken advantage of by the then landlord. It is submitted that it is only such ground which comes into existence after the mortgage is executed by the 2nd respondent, is available to the first respondent; that as the ground of sub-letting was available even prior to the mortgage and the 2nd respondent did not take advantage of it, the first respondent is not entitled to seek eviction of the petitioner from the premises in question on that ground.

4. As far as the mortgage in question is concerned, on reading the document, the Trial Court has held that it is a possessory mortgage because it has authorised the first respondent to receive rent and to be in enjoyment of the property; therefore, it is not possible to hold that the mortgage in question is not a possessory mortgage. This question has also not been urged before the learned District Judge.

5. That there was a sub-letting is found by both the Courts below. On the facts and circumstances of this case, it becomes a pure finding of fact. The petitioners set up a partnership in order to prove that there was no subletting, and they were together carrying on business in the schedule premises as partners. But, the oral evidence adduced by the petitioners and several admissions made by them go to show that the partnership was only a make believe theory and in fact the first-petitioner had parted with possession of the entire premises to the 2nd petitioner and it was the 2nd petitioner who was in exclusive possession of the schedule premises. It is on this basis, the Courts below have found that there is sub-letting of the premises by the 1st petitioner to the 2nd petitioner. Therefore, I do not see any justification to interfere with the said finding of fact, in revision under Section 115 of the Code of Civil Procedure. The Courts below were entitled to arrive at that finding on appreciation of the evidence on record ; therefore, such a finding even if it is found to be erroneous, cannot be held to affect the jurisdiction of the Courts below to record such a finding.

6.1) The next question for consideration is as to whether the first respondent is entitled to put forth the ground of sub-letting.

6.2) Learned Counsel for the petitioners places reliance on a decision of the High Court of Bombay in Shantinath S. Gongade v. Rajmal Uttamchand Gugale, : AIR1979Bom269 and contends (hat as the definition of the word 'landlord' found in Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, is similar to the one occurring in the Act ; the aforesaid decision applies to the present case. There is no doubt that in the aforesaid decision, stress is laid on the words found in the definition 'for the time being in force' and it has been held that the transferee of the premises is not entitled to base his claim for possession on breaches alleged to have been committed by the tenant in occupation at the time prior to vesting of title in the transferee. It has also been further held that the fact that those breaches continued up to the date of the suit would not be material because the breaches had already occurred and there was no question of breaches being continued. It appears to me that it is not possible to agree with the aforesaid decision on more grounds than one. In that decision, the effect of the entire definition of the word 'landlord' has not been taken into consideration. The stress is laid only on the words 'for the time being in force'. The definition of the word 'landlord' is so wide that it includes any person not being a tenant who from time to time derives title under a landlord. Thus, the definition includes all those persons who derive title from the original landlord. Thus, it covers all those persons who are successors-in-interests to or transferees of interest from the original landlord. Right to seek possession of the property is a right which goes with the property. It is not personal to the owner as long as it is not based on the ground of bonafide personal use and occupation. Thus, the right to seek possession on the ground of unlawful sub-letting is not a personal right. It goes with the property as it arises out of sub-letting of the premises. In the instant case, the first respondent has derived title from the father of the 2nd respondent by obtaining the possessory mortgage in respect of the premises in question. The sub-letting of the premises unlawfully has taken place without the consent of the mortgagor-original landlord. Further, the original landlord has not waived his right to seek possession on the ground of sub-letting. Thus, the possessory mortgagee will be entitled to seek possession of the premises on the ground of sub-letting ; as such a right which goes with the property stands transferred to the possessory mortgagee on the execution of the deed of mortgage. If the stress is laid on the words ''for the time being' then the latter portion of the definition will be rendered nugatory. In addition to this, Section 21 of the Act, does not make any distinction, whether the person who seeks eviction is the one who was the landlord at the time of letting out the premises or at the time of commission of the breach on the basis of which the eviction of the tenant is sought or whether the person has become landlord on the date of filing the petition. Section 21(1) (f) makes it clear that the tenant who has unlawfully sub-let the whole or part of the premises or assigned or transferred in any other manner, his interest therein and where the sub-letting assignment or transfer has been made before the coming into force of Part-V of the Act, except in respect of sub-letting, assignment or transfer to which the provisions of Section 61 of the Act, are applicable, and such sub-letting, assignment or transfer has been made contra/7 to any provision of law then in force. Such tenant is liable to be evicted. Thus, in the instant case, on the date the 1st respondent-landlord became, the mortgagee in possession, the tenant in occupation of the premises had incurred a liability to be evicted and the right to evict the tenant on that ground had accrued to the original landlord mortgagor and such a right is transferable. Accordingly, it stood transferred to the mortgagee in possession on the execution of the deed of mortgage. Therefore, I am of the view that the first respondent who has derived the title from the landlord is entitled to rely upon the fact of subletting which had taken place earlier to his becoming the mortgagee in possession. In addition to this, it is also relevant to notice that the aforesaid decision of the Bombay High Court in Shantinath's case, : AIR1979Bom269 is over-ruled by a Division Bench of that High Court in Radhabai Bapurao Shelar & ors. v. Trimbak Madhvrao Shirole & ors, : AIR1983Bom303 . Therefore, the decision in Shantinath's case, : AIR1979Bom269 is no more a precedent. Accordingly, I do not see any ground to interfere with the orders of the Court below.

7. For the reasons stated above, this Revision Petition fails and the same is dismissed. However, it is contended that as the second petitioner is conducting the business in schedule premises and as it is not possible to secure an alternate accommodation especially in a city like Belgaum, sufficient time for vacating the premises may be granted. As a matter of fact, the 2nd petitioner is not entitled to grant of any time. He is a sub-lessee. His possession is unauthorised. To grant any time to the 2nd petitioner is to put a premium on the unauthorised occupation Even then, taking into consideration of the fact that the business is being conducted by the 2nd petitioner in the premises in question, he is granted time till the end of December, 1985 on conditions that he deposits the rent at the rate of Rs. 40/-per month for the use and occupation of the premises, on or before the end of September, 1985 covering the period up to December, 1985 and files an undertaking within thirty days from to-day before the Trial Court that he will hand over vacant possession of the premises in question to the 1st respondent on or before the 31st of December, 1985 ; and that he will not cause damage, or make any alterations in the premises in question.


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