MANGALAMBA AND PAPULU Vs. SULOCHANA BAI

JUDGEMENT

(1.) Regular Second Appeal 860 of 1978 is by the plaintiff in O.S. 210 of 1967, whereas Regular Second Appeals 883 and 964 of 1978 are by the defendants in O.S. 10 of 1970. A common point that arises in these appeals is the question of law touching their right to the suit property being urban property from which the occupants be the defendants are now sought to be dislodged by the plaintiffs.

(2.) The question that arises for considertion in all these appeals is whether having regard to the case of the plaintiffs in all these cases, they ought to have been relegated to proceedings under the Rent Control Act and the Courts should not have investigated the controversy between them in the suits before the Courts below. The point with a little ramification and elaboration is as follows : In all these cases, the plaintiffs found their title to the suit properties being threatened - in one case namely R.S.A. 860/78 being a house property in K.G.F., and in the other case being an open site in the city of Bellary by the defendants in possession, who either sought to set up title in themselves or set up title in the third parties. The result was the plaintiffs being apprehensive of their rights and consequent jeopardy in virtue of the denial of the same by the defendant, who according to the plaintiffs were tenants in possession, filed the suits out of which these appeals arise, for a declaration that they were the owners of the suit property and for possession thereof from the defendants. RSA. 860 of 1978 arose out of the suit filed in OS. 210/67 on the file of the Munsiff, KGF, seeking for a declaration that the plaintiffs were the owners of suit property and for possession thereof from the defendants. Similarly the suit filed before the Munsiff, Bellary in O.S. 10 of 1970 by the plaintiff, currently the respondent in this Court, was also for a declaration that the plaintiff was the lawful owner of the suit property and for possession thereof from the defendants, who were his tenants. In the suit before the Munsiff at K.G.F., the defendants not merely denied that they were the tenants of the suit property, but asserted that they were owners thereof and had at no time parted with the title to the suit property, which continued to be theirs despite a sale in favour of the plaintiff by their father. They contended that the sale was in fact no sale at all and never affected their rights and interest in the suit property. Therefore, they denied the plaintiffs entitlement to the same and resisted the endeavour made for taking possession of the same from them. In a faint manner they also pleaded immunity from ejection on the basis of the Mysore Rent Control Act; which was then in force, in the town of Kolar Gold Fields the old Mysore Rent Control Act of 1951 was in force. Under the provisions of that Act, which are almost pari-materia with the Karnataka Rent Control Act, 1964, possession of the premises affected by that Act had to be secured only through the medium of a proceeding instituted under the provisions of the Act and not otherwise. The bar of the suit for ejection on the basis of the regulation of their rights by the Rent Control Act was faintly pleaded and on the basis of that plea, an issue had been framed suggesting the suit was not maintainable because the defendants had pleaded in para 10 of the written statement that in view of the defendants tenancy, as pleaded by the plaintiff, the suit was thereby not maintainable. The relevant issue reads ,

(3.) However, in the suit O.S. 10 of 1970 there appears to have been no plea touching the defendants' rights under the Rent Control Act and consequently there is no issue at all bearing on this point. The Court of the Munsiff at K.G.F., decreed the suit notwithstanding the objections raised and directed recovery of possession of the suit property by the plaintiff, after declaring their title thereto. On appeal the learned Civil Judge proceeded to non-suit the plaintiff on a short ground on non-issuance of a notice under Section lll(g) of the Transfer of Property Act, since the suit for ejection was based primarily on the denial of the defendants of the plaintiffs title to the suit property. The learned Civil Judge held possession being claimed on the basis of forfeiture of tenancy, it was only appropriate that there should have been a notice of forfeiture under Section lll(g) of the Transfer of Property Act. He then went on to hold that in the absence of such a notice possession on ground of forfeiture of tenancy could not have been ordered. It may be mentioned that the plaintiff in that suit had issued a notice under Section 106 of the Transfer of Property Act terminating the defendants' tenancy and as a matter of fact it was in the reply, which they issued as per Exhibit P.7, they set up title in themselves and in that process had denied the plaintiffs title. That was the reason why the plaintiff went to Court seeking declaration of his title and for recovery of possession.