{"id":121681,"date":"1985-06-18T00:00:00","date_gmt":"1985-06-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/thimmappa-vs-kousalya-on-18-june-1985"},"modified":"2015-06-30T23:40:08","modified_gmt":"2015-06-30T18:10:08","slug":"thimmappa-vs-kousalya-on-18-june-1985","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/thimmappa-vs-kousalya-on-18-june-1985","title":{"rendered":"Thimmappa vs Kousalya on 18 June, 1985"},"content":{"rendered":"
Karnataka High Court<\/div>\n
Thimmappa vs Kousalya on 18 June, 1985<\/div>\n
Equivalent citations: ILR 1985 KAR 2664<\/div>\n
Author: C Urs<\/div>\n
Bench: C Urs<\/div>\n<\/p>\n
<\/pre>\n
ORDER <\/p>\n
Chandrakantaraj Urs, J.<\/p>\n
1.This Re-vision Petition is by a tenant who has suffered an order of eviction of the Munsiff, Mandya in the
\nproceedings initiated under the Karnataka Rent Control Act (herein-after referred to as ‘the Act’). The respondent-landlord presented the eviction Petition on two grounds available to her under the Act. One was that the premises in question was bone fide required for use of her son to start his business. It was pleaded that the building was 50 years old and it has only a
\ncountry tile roof. It was further pleaded that the landlord’s son was at loggerheads with his father who was a fairly wealthy person and the two could not get on together in joint family business and therefore, they intend to start a business for their son away from the family business carried
\non by her husband and the second son. The Petitioner-tenant denied that the building was old, that it required immediate demolition and that it was required for bona fide use of the landlord. He, in fact, disputed her title to the property alleging that the real owner was the husband of the respondent and the whole transaction of sale was benami in order to get vacant possession of the building because the husband of the respondent had numerous shops and buildings in that town.\n<\/p>\n
2. Learned Munsiff formulated two points for consideration. They were :\n<\/p>\n
(1) Whether there is relationship of landlord and tenant ?\n<\/p>\n
(2) Whether   the   land-lord   has   made out  a case  under Section 21(l)(h) and (j) of the Act, that is, for her own use  and  occupation and for immediate demolition respectively.\n<\/p>\n
After determining those points, the learned Munsiff also considered the comparative hardship of the tenant and the landlord. What has been unfolded in the evidence pro-duced by the landlord is that her first son had left the family and joined as driver for sometime having
\nquarreled with his father. But later on had left the job of driver and wants to start his own business and he is now married and living with his wife and child. It is for that purpose that the premises was purchased and they intend to re-model the premises to suit the business proposed for the 1st son. The evidence in defence by the tenant was in support of the benami nature of the transaction and that the husband of the respondent was already in business and the family was joint and there was no need for a separate business for her first son and the family owns sufficient buildings to carry on. Learned Munsiff, after elaborately discussing the evidence came to the conclusion that there is relationship of landlord and tenant and the schedule premises was required by the landlord for bona fide use and occupation of her first son to start a separate  business.   On that basis, he has held in
\nfavour of the landlord and directed eviction after considering the comparative hardship particularly with regard to the 1st son’s condition of not being able to live compatibly with his father and brother. Learned District Judge affirmed those findings     Hence this Civil Revision Petition.\n<\/p>\n
3. Before me three grounds were urged by Sri M. Shivappa Learned  Counsel for the  Petitioner tenant.  He contended that there  is jurisdictional error committed by the Munsiff and the  District Judge  alike in not raising a point specifically for consideration  as to  whether there  was a bona fide intention on the part of the landlord to demolish the building for the   purpose  of reconstruction.    He  placed strong reliance on  the decision of this Court in the case of Abdul Subhan v. Sathyanarayana Setty, .  In the said decision, it has been pointed  out that when the two grounds, as in the instant case, that is one under clause (h)  and another under clause (j) of Section 21 of the Act are simultaneously urged by the landlord,  then bona fide requirement for  immediate demolition  as  well  as  for  use  and  occupation   must  be together  considered, failure  of which  would result in not exercising jurisdiction properly.   Undoubtedly it may be so. But, whether such  consideration  should   be simultaneous depends upon the  pleadings  and the manner in which the resistance   has been  put  forward  by the   tenant. I have carefully gone   through the pleadings.    There is expression of clear intention  to  demolish  the building after purchase made out  by the landlord.    The  tenant has baldly denied that statement  asserted  in the Petition.    He has no where averred  that the landlord has no intention to demolish the building and  construct one more    building  in  its   place suitable for business.    When  there is no specific plea, then no issue or point can be raised for consideration. By  vague pleading it must be taken that the tenant has not seriously contested the intention of the landlord. If a specific point on that account was not raised for consideration, this Court only has to see whether the same has been considered while passing the order. I have seen that they have taken that aspect also into consideration. Non-formation of a specific point in that behalf, does not, in my opinion, constitute error of jurisdiction. In any event, 1 must notice that in para-34 of the Judgment of the Division Bench, the Bench has taken care to add that they were interfering only because the approach of the Trial Court on the facts and
\ncircumstances of that case was not correct. I do not think it lays down any law more than what has already been stated. Therefore, it is not of much assistance to the tenant.\n<\/p>\n
4. The second point urged was that there is no evidence for the bona fide requirement for use and  occupation of the 1st son of the landlord. It is found that the landlord has got herself examined together with three other  witnesses  who have spoken to the conditions  prevalent  in the family and need for establishing an  independent  business  for  the 1st son. Nothing in their cross-examination  has been useful to the tenant. In  that  circumstance,  there  is no  reason why the bona fide requirement should not be held to have been established. In any event, this is a finding of fact  recorded by the Trial Court and affirmed by the Learned District Judge with which this Court ought not to interfere  unless the
\nconclusions reached or the findings recorded are  perverse or based on no evidence  at all,  while exercising jurisdiction under Section 115 of C.P.C.\n<\/p>\n
5. It was lastly urged that the Courts should have referred the matter to a competent Civil Court in regard to the status of the  respondent  (landlord). I  do   not  think  that third parties get any legal right to assert whether  the landlord is only a benami or an ostensible owner and not the real owner. Once the sale deed is produced  in  Court which   prima-facie establishes the ownership of the purchaser mentioned there in, it is only for the true-owner to question such a kind of ownership of the ostensible owner and not third parties. In any event, it is in evidence that the  vendor of the property in question had personally talked with the tenant and requested him to at torn to the new purchaser which was agreed and later refused to do so when the legal notice was issued. In that circumstance, to merely go by the self serving testimony of the tenant who claims that the transaction is benami, to deny the ownership would not be permissible. I, therefore, do not see any merit in this Revision and the petition is liable to be dismissed and  it is so  dismissed.\n<\/p>\n
6. Sri  M. Shivappa,    Learned Counsel   for  the tenant requested time for vacating the premises. The litigation upto date has lasted for 4 years. He has even  cited an  authority to support the proposition  that this  Court  has  power to grant extension of time.   However  that  may  be,  assuming that this Court has power to grant  time beyond  what has been given by the District Judge, this Court  has to exercise that power with due caution, due  regard to all the circumstances of the case.    In the Court the tenant, has taken every possible defence not only to resist eviction  but also to deny title of the landlord and the need of her first son to establish his own business. Such conduct does not deserve sympathy from this Court or the landlord.  However, I am of the view that the landlord who has acquired a legal  right under the orders of the Court below cannot  be  put at  disadvantage without  giving  an   opportunity of being heard  over the matter of extension of time. As this case has been dismissed without notice to  the other side, it is not a fit case where this Court should lean in favour of the tenant.<\/p>\n","protected":false},"excerpt":{"rendered":"
Karnataka High Court Thimmappa vs Kousalya on 18 June, 1985 Equivalent citations: ILR 1985 KAR 2664 Author: C Urs Bench: C Urs ORDER Chandrakantaraj Urs, J. 1.This Re-vision Petition is by a tenant who has suffered an order of eviction of the Munsiff, Mandya in the proceedings initiated under the Karnataka Rent Control Act (herein-after […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,20],"tags":[],"class_list":["post-121681","post","type-post","status-publish","format-standard","hentry","category-high-court","category-karnataka-high-court"],"yoast_head":"\nThimmappa vs Kousalya on 18 June, 1985 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/thimmappa-vs-kousalya-on-18-june-1985\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Thimmappa vs Kousalya on 18 June, 1985 - 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