SAMIULLA SHARIFF Vs. KHIZER AHAMED

JUDGEMENT

(1.) the premises in question was originally occupied by late gaffar shariff as a tenant under the father of respondents 1 to 9. After the death of gaffar shariff the eviction petition was filed by the father of respondents 1 to 9 against respondents 10 and 11 i.e., widow of gaffar shariff and the first son of gaffar shariff. It appears, eviction was sought under sections 21(1)(a)(f) and (h) of the Karnataka Rent Control Act, 1961 ('the act' for short). This was in the year 1982. After contest the petition was allowed on all counts.

(2.) aggrieved by the order of the trial court, it seems, respondents 10 and 11 preferred revision under Section 50 of the act to the district court, mysore. The first revisional court confirmed the order of the trial court both under sections 21(1) (f) and (h) of the Act, but rejected the petition under Section 21(l)(a) on the ground that the statutory notice issued was defective. This court in hrrp 32 of 1994 preferred by respondents 10 and 11, by order dated 7-1-1994 dismissed the revision petition granting time to them upto 30th september, 1994 subject to respondents 10 and 11 filing an undertaking, in the form of an affidavit, to vacate and deliver vacant possession of the premises in question on or before the said date. It appears, no such undertaking was given by respondents 10 and 11. Therefore, respondents 1 to 9, the legal representatives of deceased landlord, took out execution of the decree. In execution, the present petitioners made an application purporting to be under Section 47 read with order 21, Rule 101, CPC, stating that they are the other two sons of the original tenant late gaffar shariff and they ought to have been impleaded in the eviction proceedings. According to them, they were residing with gaffar shariff in the year 1977 when he died and therefore they are tenants of the premises in question. The executing court has rejected the application of the petitioners after holding an enquiry and has held that there was no evidence on record to show that these two sons were also residing with gaffar shariff as on the date of his death.

(3.) Mr. M. Papanna, learned counsel for the petitioners, submitted that the executing court has completely overlooked the voters list of the years 1975 and 1990 produced by the petitioners in which the name of the first petitioner is found. He submitted that since the petitioners were residing with late gaffar shariff when he died, in terms of the definition of "tenant" in the Act, they are to be treated as tenants and they ought to have been impleaded in the original eviction proceedings.