SHANKAR RAO Vs. KHAJA SHABEERUDDIN

JUDGEMENT

(1.) This revision petition under Section 115, C.P.C. is directed against the order dated 18-9-1992 passed in Execution Petition No. 22 of 1991 by the Munsiff, Basavakalyan, dismissing the objections of the petitioner with regard to the maintainability of the execution petition and directing the petitioner to hand over vacant possession of the premises to the decree-holder by ordering issue of warrant for delivery.

(2.) The facts giving rise to the Revision Petition are that the decree-holder Khaja Shabeeruddin instituted Original Suit No. 142 of 1972 against the petitioner-defendant 1 and two others for recovery of possession of the premises alleging that the premises was leased out to the petitioner under lease agreement Exhibit P-1. The suit was dismissed on 30-3-1977. In the appeal Regular Appeal No. 53 of 1977 taken before the civil Judge, Bidar, the learned civil Judge allowed it and decreed the suit in favour of the plaintiff directing the petitioner and respondent 7 to deliver possession. This decree was passed on 22nd March, 1979. The second appeal against the judgment and decree of the learned civil Judge was preferred in Regular Second Appeal No. 376 of 1979 which came to be disposed of on 17-7-1991 confirming the decree of the First Appellate Court. When the decree obtained as stated above was put into execution by the legal representatives of the original decree-holder in Execution Petition No. 22 of 1991 before the Munsiff, Basavakalyan, the petitioner and his co-judgment debtor appeared and petitioner put-forth the contention that he was tenant in possession of the premises and the decree made by the Civil Court against him for eviction of the tenanted premises was inexecutable as the provisions of the Karnataka Rent Control Act, 1961 had been applied to Basavakalyan in the year 1984 and therefore the landlord had to obtain an eviction order as provided under the provisions of the Karnataka Rent Control Act, 1961 and therefore his contention was that the execution petition was not maintainable and the decree was inexecutable as the same was void. These contentions were disputed and the learned Munsiff by his order dated 18th September, 1992 considered the objections of the petitioner and taking into consideration the defence put-forth by him in the Trial Court he came to the conclusion that the petitioner was not a tenant in possession and he was not a tenant under the Karnataka Rent Control Act and there was no relationship of landlord and tenant between him and the decree-holder as contended by the petitioner and in that view he overruled his objections and passed the impugned order of delivery of possession by issuing delivery warrant.

(3.) The petitioner in this Court has submitted that it was the case of the decree-holder-respondent right from the institution of the suit Original Suit No. 142 of 1972 that the petitioner-defendant 1 was lessee in possession under the registered lease agreement Exhibit P-1 an there is no dispute about the applicability of the Karnataka Rent Control Act, 1961 to Basavakalyana town in which the disputed property is situated in the year 1984, by amendment of the Karnataka Rent Control Act by Act 17 of 1983 and the Civil Court could not have proceeded to pass a decree for eviction and the decree in question being without jurisdiction is void and inexecutable and therefore the order of the learned Munsiff. is unsustainable and the execution petition is not maintainable. The learned Counsel for the decree-holder disputes the submissions and contends that the second appeal was pending before the High Court from 1979 till 1991 for well over a period of 12 years and during this period when the provisions of the Karnataka Rent Control Act, 1961 were made applicable to Basavakalyan Town in 1984 the petitioner did not put forth any contention in that behalf before the High Court when the appeal came to be heard and disposed of on 17-7-1991. He next submitted that to set up a plea of tenancy, it was necessary for the petitioner to be in possession of the premises as tenant and throughout his defence he stated that he has not been in possession and therefore the plea of tenancy does not ensure to his benefit. He also submitted that there is a difference between suits for recovery of possession based on title and those instituted for eviction of tenants on the basis of lease agreement and according to him, his decree under execution in question arises out of a suit based on title. He further submitted that the common law concept of tenancy recognised in Transfer of Property Act is further dealt with under the Karnataka Rent Control Act, 1961 a special enactment and the landlord having concurrent remedies under general law as well as the Karnataka Rent Control Act proceeded to choose a remedy under general law and has so obtained a decree for eviction and therefore his right to execute the same is permitted under the general law and the contention to the contrary in that behalf is without any basis. It is submitted that under the Karnataka Rent Control Act, no new right is created and the landlord's right to act under the general law or Rent Control Act is not affected.