CHARLES REGO Vs. FATHER MULLERS

JUDGEMENT

(1.) ANAND Byrareddy, J: Heard the Counsel for the petitioner and the respondent.

(2.) THE facts of the case are that the petitioner is the owner of the schedule property described in Schedule-A and Schedule-B to the eviction petition. It is contended that the property originally belonged to the maternal grand-father of the petitioner. His grand-father had granted the same on Moolageni to one Joseph Pinto, under a registered deed dated 13. 9. 2001, which has been produced as Ex. P-1 before the trial Court. In terms of the said deed, the property could not transferred by the lessee without the written consent of the moolagar or the owner. Joseph Pinto had sold the moolageni right to Ms. Lilly Theresa machado and Antony Salvadore Machado, with the consent of the owner, in terms of Ex. P-2, a registered deed dated 5. 10. 1928. Lilly Theresa machado had released her rights in favour of Antony Salvadore Machado as per Ex. P-3 on 23. 5. 1930, again with the consent of the owner. Antony salvadore Machado, in turn, sold his moolageni under a registered deed dated 21. 9. 1945, which is marked as Ex. P. 4 in favour of the first respondent in this petition. This was again with the consent of the owner. It is not in dispute that in each of these transfers, the transferee would become the moolageni tenant under the original owner and the transferor would be directed of his right, on such transfer. It transpires that the first respondent has subleased a portion of the property, which is described in Schedule-B, to the second respondent, through a registered Volla moolageni deed, dated 19. 9. 1964, produced as ex. P-5. The second respondent, in turn, has transferred it to the third respondent as per Ex. P-6. The third respondent, in turn, has transferred it to the fourth respondent. The sub-lease by the first respondent and the subsequent transactions, referred to above, were without the consent of the moolagar, or the owner. It is further contended that from the year 1977, rent or moolageni had not been paid and therefore, it is in this background that an eviction petition under Section 21 (1) (a) and (f) of the Karnataka Rent Control Act, 1961 (hereinafter referred to as 'the 1961 Act' for brevity) came to be instituted. The petition was contested by the first respondent who had filed statement of objections. The other respondents, though represented, had not filed any pleadings. The defence of the first respondent was to the effect that in terms of Ex. R. l, the moolagar had granted permission to divide the property and to sell the lease-hold rights to third-parties. It is under the strength of the said Ex. R-1, that the property was sub-let to third parties. The first respondent, however, did not tender any evidence in support of the contention. The petitioner having tendered evidence before the trial court, he was cross-examined and upon consideration of the material evidence, the trial Court ordered eviction on both the grounds. The respondent had challenged the same by way of a revision petition before the District Judge, who has reversed the order of eviction. It is this which is under challenge.

(3.) THE Counsel for the petitioner would contend that the order of eviction has been set aside by the Court of the District Judge on the ground that sub-lessees were not impleaded, which is contrary to the requirement in law particularly, Section 34 of the Karnataka Rent Act, 1999 (hereinafter referred to as 'the 1999 Act' for brevity ). The reasoning of the Court that the transferors in terms of Exs. P-2, P-3 and P-4, were necessary parties is not tenable especially, when their right stood extinguished on such transfer. Insofar as one Lucy Quilo who is said to have purchased or is the sublessee of 23 cents of the schedule property is concerned, she is also not a necessary party, since a sub-tenant is not a necessary party to an eviction petition. In any event, this was not a ground on which the eviction petition could have been rejected in respect of Schedule B property. The further reasoning of the District Judge that the subsequent subleases were with the consent of the original Moolagar under Ex. R-1 is incorrect. Permission granted under Ex. R-1 was in respect of sale of the moolageni right which is not the same as permission to create a Volla moolageni or a sub-lease. This is a cardinal error committed by the District judge in proceeding on the wrong presumption that there was permission afforded to the first respondent to sub-let the property.