SABITHA DEVI Vs. S K SHREEDEVI

JUDGEMENT

(1.) HEARD the learned Counsel for the petitioners and the respondent.

(2.) THE facts as are necessary for the disposal of this petition are as follows : it was contended by the respondent that, she was the owner of the petition schedule property having purchased the same from syecla Fathima, who in turn said to have purchased the property from one A. P. Shankar. A. P. Shankar was the husband of the first petitioner and the father of the second petitioner. It was contended by the respondent that, she had purchased the property as aforesaid and that her husband was a tenant in respect of the very property and was running a wine store therein; that after the purchase of the property it transpired that, she had filed a civil Suit in O. S. No. 8108/1998 on the file of the 14th Additional City Civil Judge, seeking possession of the premises on the ground that the petitioners were unauthorised occupants. The petitioners were placed ex parte in the said suit and the Civil Court on consideration of the pleadings of the petitioners and her evidence, dismissed the suit with an observation that, the present petitioners were tenants of the said property and in view of the fact that there existed a jural relationship of landlord and tenant, a suit for possession was not maintainable. It is in this background that, the respondent on the basis of the findings arrived at in the said suit, filed an eviction petition under Section 27 (2) (r) of the karnataka Rent Act, 1999 against the petitioners herein. The petitioners entered appearance and contested the proceedings on the footing that, they are in occupation and possession as owners of the property and that, there is no jural relationship of landlord and tenant and that there is no agreement, to their knowledge, entered into between the parties namely the respondent herein and A. P. Shankar or in their own favour. It is the further case of the petitioners that, A. P. Shankar was estranged from the 1st petitioner and he had deserted the 1st petitioner and he is said to have sold the property in favour of one syeda Fathima but the petitioners have continued to be in possession of the property and that, they have not been disturbed from the premises. In this regard, there is reference to the matrimonial proceedings between A. P. Shankar and the 1st petitioner and A. P. Shankar having died, the petitioners have continued in possession of the property undisturbed, and there is no jural relationship of landlord and tenant as between petitioners and the respondent. The petitioners have filed a suit in O. S. No. 6439/1996 restraining Syeda fathima, who is alleged to be purchaser of the property from A. P. Shankar, from interfering with their possession. After having learnt that the respondent having allegedly purchased the property from Syeda Fathima, she has been impleaded in the said suit and the same is pending as on today and it is. in this way that the petitioners contended that, there is no relationship of landlord and tenant established in order that a petition for eviction could lie. The trial Court, however, on the basis of the pleadings and the evidence that was tendered held that, in view of the findings in O. S. No. 8108/1998 that A. P. Shankar after having sold the property in favour of syeda Fathima, had entered into an agreement of tenancy and had continued to be in possession of the property as a tenant and had also suffered an order of eviction, in proceedings that were brought by Syeda Fathima and thereafter having died during the pendency of the execution proceedings, the present petitioners had continued as tenants, claiming as legal representatives of A. P. Shankar and therefore, there was a finding of relationship of landlord and tenant and that the case for eviction had been made out and accordingly, the court below had allowed the eviction petition. It is in this background that the present petition is filed.

(3.) THE learned Counsel for the petitioner would urge that as can be seen from a plain reading of the impugned order, there is no reference to any material produced in the course of the proceedings to establish that there was relationship of landlord and tenant as between the petitioner and respondent. The entire findings in this regard is with reference to the findings of Civil Court in O. S. No. 8108/1998. The said judgment of Civil Court was on the basts that there was no jurisdiction, if the court has dismissed the suit on the ground that it did not have jurisdiction, any findings of fact recorded therein were a nullity insofar as the petitioners are concerned. The HRC court, therefore proceeded on the basis that those findings in O. S. No. 8108/98 would bind the petitioners, is an error of law and the hrc Court could not have proceeded on those findings and this is a settled principle of law as laid down in a series of cases. The learned counsel would seek to place reliance on the judgment in the case of Upendra Nath Bose v. Lall and others (AIR 1940 Privy Council 222) where in on facts it was found that the court having found to be without jurisdiction, any findings arrived at by the said Court would not have any binding force on the parties and laid down that a Court which declines jurisdiction cannot bind the parties by its reasons for declining jurisdiction; such reasons are not decisions and are certainly not decisions by a court of competent jurisdiction