1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH HOUSE RENT REV. PETITION NO.10/2024 (EVI) BETWEEN: 1. H. NAGAMANI, W/O P.N.NARASIMHALLU, AGED ABOUT 38 YEARS. 2. H. MANJULAMMA, W/O P.N. NARASIMHALLU, AGED ABOUT 34 YEARS. BOTH ARE R/AT NO.24/39, 6TH MAIN ROAD, DATTATREYANAGAR, HOSAKEREHALLI, B.S.K. 3RD STAGE BENGALURU-560 085. … PETITIONERS (BY SRI RAGHAVENDRA V, ADVOCATE) AND: SRI. H. NARAYANA, S/O H. HANUMANTHARAYA, AGED ABOUT 41 YEARS, R/AT 24/39, GROUND FLOOR, SOUTHERN PORTION, 6TH MAIN ROAD, DATTATREYANAGAR, HOSAKEREHALLI, BSK 3RD STAGE, BENGALURU-560 085. … RESPONDENT (BY SRI. K. NARAYANA SWAMY, ADVOCATE FOR C/R - ABSENT) 2 THIS HRRP IS FILED UNDER SECTION 46(1) OF CPC, AGAINST THE ORDER DATED 02.03.2024 PASSED ON IA NO.1 IN HRC NO.2/2019 ON THE FILE OF THE CHIEF JUDGE, COURT OF SMALL CAUSES, BENGALURU, ALLOWING THE IA NO.1 FILED UNDER ORDER 43(2)(b) OF THE KARNATAKA RENT ACT R/W SECTION 151 OF CPC, TO STOP ALL FURTHER PROCEEDINGS. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 04.07.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH CAV ORDER Heard the learned counsel for the petitioners. 2. The respondent though represented through counsel, the learned counsel for the caveator/respondent did not appear before the Court. On 02.06.2025, 06.06.2025 and 17.06.2025 also the learned counsel for the caveator/respondent was absent. Hence, this Court vide order dated 17.06.2025 made it clear that if the learned counsel for the caveator/respondent does not appear on the next date of hearing, the matter will be heard in his absence and the learned counsel did not choose to appear before the Court on 04.07.2025 also. Hence, the matter was heard in the absence of the learned counsel for the caveator/respondent and reserved the matter. 3 3. This petition is filed challenging the allowing of the application filed under Section 43(2)(b) of the Karnataka Rent Act, 1999 read with Section 151 of CPC dismissing the eviction petition and directing the parties to approach the competent Court of civil jurisdiction for declaration of their rights. 4. The factual matrix of the case of the petitioners before the Trial Court invoking Section 27(2)(a) and (r) and Section 31(1)(b) of the Karnataka Rent Act, 1999, is that the petitioners filed the petition seeking an order of eviction against the respondent in respect of the petition schedule premises, which is morefully described in the schedule. It is contended that the petitioners are the joint and absolute owners in possession of the property, which is morefully described in the schedule and the same having purchased under the registered sale deed dated 16.12.2004. The said property was consisting of a 4 square house in the ground floor. Subsequently, the petitioners got constructed the first floor portion consisting of 4 square house. It is contended that the respondent is the elder brother of the petitioners and during the year 2007, the respondent was inducted as a tenant in the southern half portion premises situated at ground floor of the said property, 4 measuring east to west 11 feet and north to south 15 feet, on a monthly rental basis. The rent agreement is dated 13.05.2007 and was for a period of 11 months. The respondent had agreed to pay a rent of Rs.800/- per month and paid advance of Rs.8,000/- and the said rent was excluding the water and electricity charges. The petitioners subsequently extended the tenancy from time to time as per the verbal terms and conditions of the parties and accordingly the rent in respect of the schedule property was enhanced from time to time and during the year March 2017, the respondent was paying a rent of Rs.2,400/- per month. In the month of March 2017, the petitioners requested the respondent to vacate and deliver the vacant possession of the schedule premises as the same was required for their own use and occupation. However, the respondent evaded the same on one or the other pretext and not complied the said bonafide request of the petitioners. 5. It is contended that petitioner No.1 is a physically handicapped with deaf and dumb problem since birth. The petitioner No.2 is the younger sister of petitioner No.1 and petitioner No.2 is taking care of the affairs of the entire property. The copy of the physically handicapped certificate of petitioner 5 No.1 is also placed on record. When the respondent did not vacate, a legal notice was issued terminating the tenancy on 09.01.2018. The respondent issued reply dated 10.02.2018 denying the relationship between the parties. It is contended that in the month of March 2018, the respondent arranged a Panchayath with the parents of the petitioners and the respondent and other elders of their native, wherein the respondent has requested for some more time to vacate the schedule premises and assured that he will soon vacate and handover the vacant possession of the schedule premises without fail. The petitioners agreed for the said request of the respondent. However, taking undue advantage of the said gesture of the petitioners, the respondent started postponing the demand of the petitioners and squatting on the schedule premises. Hence, the petitioners were forced to file a petition for eviction. 6. The respondent appeared and filed objections denying the landlord and tenant relationship and contended that the petitioners and the respondent are the sisters and brother. It is also contended that the petitioners have not approached the Court with clean hands. The suit schedule premises is the part 6 and parcel of the joint family property. The respondent is entitled for equal share in the suit schedule property and other properties between the petitioners and the respondent. The respondent has not paid any rent at any point of time to the petitioners in respect of the schedule premises. The respondent denied the contention of the petitioners that they are the absolute owners, however, admitted the relationship. The respondent denied inducting as tenant in the year 2007 based on the rental agreement and on rent of Rs.800/- per month and paid advance of Rs.8,000/-. The respondent denied the payment of rent of Rs.2,400/- per month and periodical enhancement. It is contended that the petitioners and the respondent are jointly residing in the schedule premises for the last three decades. It is contended that the respondent and the petitioners’ father is H.Hanumantharaya and mother Narasamma and the parents had five children i.e., two sons and three daughters. The respondent is entitled for equal share in the suit schedule premises, which is the joint family property of the petitioners and the respondent and hence prayed the Court to dismiss the petition. 7 7. The petitioners in order to prove their case examined petitioner No.2 as P.W.1 and reiterated the averments of the petition and got marked the documents at Exs.P.1 to 6. P.W.1 was subjected to cross-examination. The petitioners also examined one witness as P.W.2 and through P.W.2 got marked the documents at Exs.P.7 and 8 and he was subjected to cross- examination. The respondent also examined himself as R.W.1 and got marked the documents at Exs.R1 and 2 and he was also subjected to cross-examination. The respondent also examined his mother as R.W.2 and the evidence of R.W.1 and R.W.2 is clear denial of the jural relationship between the parties and both R.W.1 and R.W.2 were also cross-examined. During the course of cross-examination of R.W.1, the petitioners confronted the documents of Exs.P.9 to 11 and R.W.1 admitted the documents. The respondent also filed an application under Section 43(2)(b) of the Karnataka Rent Act read with Section 151 of CPC, praying the Court to stop all the further proceedings in the matter and direct the petitioners to approach the Court of civil jurisdiction for declaration of their rights on the petition schedule premises. The said application was resisted by the 8 petitioners by filing objections reiterating the averments of the petition. 8. The Trial Court having considered the material available on record, passed an order on I.A.No.1 i.e., an application filed under Section 43(2)(b) of the Karnataka Rent Act read with 151 of CPC, allowing the application and stopped all further proceedings in the case and directed the parties to approach the competent Court of civil jurisdiction for declaration of their rights. Hence, the present revision petition is filed before this Court. 9. The main contention of the learned counsel for the petitioners before this Court is that the Trial Court committed an error in not considering the document of Ex.P.6. The signatures of the respondent found in Ex.P.6 and his admitted signatures found in Exs.P.8 to 11 are all same, however the said aspect has not been considered by the Trial Court. The Trial Court failed to note that the respondent intentionally changed the signature while entering his appearance before the Trial Court and no other documents are produced by him to prove his signature. The Trial Court not at all appreciated the evidence of P.W.1, 9 wherein she has categorically stated about the bonafide requirement of the schedule promises and also failed to consider the evidence of P.W.2 Nagaraj, who was the earlier tenant under the petitioners in respect of the very same schedule premises and P.W.2 had also witnessed the document of Ex.P.6 rental agreement. Though nothing was elicited from the mouth of P.W.2 to disprove his positive evidence, the Trial Court failed to appreciate his evidence. The Trial Court without properly appreciating the oral and documentary evidence led by the parties and by misreading the evidence, especially the evidence of R.W.2, has wrongly come to the conclusion that the petitioners have not proved the jural relationship of landlord and tenant with the respondent. The very approach of the Trial Court is erroneous. The Trial Court failed to take note of the fact that the property was purchased by the petitioners vide sale deed dated 06.12.2004 and the same remained unchallenged. The question of title of the parties to the suit premises is not relevant and the Trial Court failed to take note of the fact that P.W.2 was the earlier tenant in respect of the very same premises and in his presence only the respondent affixed his signature and the same is spoken by P.W.2 and did not suggest 10 P.W.2 that the respondent did not sign the document in his presence and committed an error and hence it requires interference of this Court. 10. Having heard the learned counsel for the petitioners and also on perusal of the material available on record, the points that arise for the consideration of this Court are: (i) Whether the Trial Court committed an error in allowing the application filed under Section 43(2)(b) of the Karnataka Rent Act, 1999 read with Section 151 of CPC, in stopping all further proceedings and directing the parties to approach the competent Court of civil jurisdiction? (ii) What order? Point No.(i): 11. Having heard the learned counsel for the petitioners and taking into note of the pleadings of the parties, no doubt, there is a dispute with regard to the jural relationship between the parties. The petitioners in order to prove their case reiterated the averments in the affidavit and relies upon the documents of Exs.P.1 to 6, including the rental agreement, notice exchanged between the parties, khatha certificate and 11 also notarized copy of the disability certificate of petitioner No.1. In the cross-examination, P.W.1 admits the relationship between the petitioners and the respondent as his elder brother and admitted that they were five children to their parents. P.W.1 stated that the petition schedule premises is the self-acquired property of their mother. It is suggested that after the mother had purchased the property, all of them were residing in the said premises and the same was denied, however, admitted that the plaint schedule premises was constructed by their parents. A suggestion was made that all of them have joined in construction of the house and the same was denied. It was suggested that the respondent contributed funds for construction of the house and the same was denied. P.W.1 admits that the petition schedule premises was constructed in the year 1989 and also admits that not issued any rental receipts to the respondent for having received the rents. It is suggested that Ex.P.6 is created for the purpose of this case to defraud the rights of their brother and the same was denied. 12. The petitioners also examined P.W.2, who filed an affidavit stating that he was a tenant under the petitioners in respect of the schedule premises from January 2005 to April 12 2007. The petitioners are the absolute owners of the suit schedule premises. It is also his evidence that subsequently when he has vacated the suit premises, the respondent has occupied the same as a tenant and entered into an agreement with petitioner No.2 by executing the document of rental agreement on 13.05.2007 and he has witnessed the said agreement along with one more witness Sri Nataraj. He says that P.W.2, respondent and the said Nataraj have signed the said rent agreement before him and he has affixed his signature. P.W.2 got marked the documents at Exs.P.7 and 8 i.e., Aadhar card and election identity card of his wife. In the address mentioned in Exs.P.7 and 8, they were residing in the petition schedule premises. This witness was subjected to cross- examination. 13. In the cross-examination, he admits that his residential address is No.45, 4th Main Road, Dattatreyanagara, Hosakerehalli, Banashankari III Stage, Bengaluru. He has produced the Aadhar card. For the same address, he has got voter ID card. As per Ex.P.7, his address is different i.e., earlier address. The address mentioned in Exs.P.7 and 8 are same. It 13 is suggested that even though as on today he is residing in the address mentioned in Exs.P.7 and 8, he is falsely deposing before the Court and the same was denied. It is his evidence that the respondent used to visit the house of the petitioners and they used to tell that he is their brother. When a suggestion was made that the respondent is also a co-owner of the petition schedule premises, he says that he is not aware of the same, but volunteers that petitioner No.2 had executed the lease agreement in his favour. Around 2007, there was an agreement between petitioner No.2 and the respondent with reference to handing over the possession of the petition schedule premises to him after he vacated the petition schedule premises. It is suggested that Ex.P.6 is a created document and the same was denied. The present suit is with reference to the property which was occupied by him as a tenant. The measurement of that property might be around 15 x 12 feet. It is suggested that Ex.P.6 is a created document in collusion with the petitioners and himself and the same was denied. A suggestion was made that as on today, he is in occupation of the petition schedule premises and deposing falsely and the said suggestion was denied. 14 14. R.W.1 in his evidence reiterated the averments of the objection statement and marked the documents at Exs.R1, R1(a) and R2. In the cross-examination, he admits that he is working in Bharath Electronics Ltd. after he completed his Diploma in Mechanical Engineering. When a question was put to him whether he can produce any document to show that the petition schedule premises is the joint family property, he answers that he is required to enquire his mother and says that he do not know at present in whose name the petition schedule premises is standing. A suggestion was made that the mother had sold the property in favour of the petitioners on 06.12.2004 and the same was denied, but admits that Narasamma is his mother. He admits that he has not paid the tax of the petition schedule premises, as it is not standing in his name. A suggestion was made that he is a tenant in the petition schedule premises and having no right or title over the petition schedule premises and the same is denied. With regard to his signature is concerned, he says that since beginning, he used to sign in the same manner, which is appearing in his chief examination affidavit. When the document of SSLC marks card was confronted, he admits the same and the same is marked as 15 Ex.P.9 and he also admits his signature. But, he volunteers that after II year PUC, he changed his signature. The hall ticket of his Diploma III year examination was confronted to him and he admits the same as Ex.P.10 and his signature is marked as Ex.P.10(a). He admits that on the back side of Ex.P.10, his photo is affixed and volunteers he changed his signature style. 15. The other document confronted to him is the signature made by him when the offer of employment was given to him on 31.12.2004 and he admits the same and the same is marked as Ex.P.11 and his signature is marked as Ex.P.11(a). He denies that the signature on Ex.P.6 belongs to him. He admits that he has not maintained any documents to show that he has spent amount for construction of the house and denied the investment made by him for construction. A specific question was put to him that he was inducted as a tenant in terms of Ex.P.6 and the same was denied. A suggestion was made that he made the payment of rent at the rate of Rs.2,400/- per month till March 2017 and the same was denied. He admits that petitioner No.1 is deaf and dumb. He admits that the petitioners have requested him to vacate the petition schedule premises. A suggestion was made that there was a 16 conciliation between the petitioners and himself before the elders in the year 2018 and the same was denied, however he volunteers that their parents came and there was a discussion, but there was no Panchayath. 16. The other witness is the mother R.W.2 and in her evidence she says that she acquired the petition schedule premises through a unregistered power of attorney. She says that she has registered nominal sale deed in the name of her daughters without receiving any sale consideration on 06.12.2004. She says that they have continued in joint possession and enjoyment of the property. The respondent has contributed his hard earned money for construction of residential houses and the premises is their joint family property and all are entitled for equal share. In the cross-examination, R.W.2 admits that after she has executed the sale deed dated 06.12.2004, the petitioners have become the owners of the petition schedule premises and however, admits that the respondent is in possession of the petition schedule premises. A suggestion was made that the respondent is in possession as a tenant and the same is denied. A suggestion was made that before filing the petition, she was requested to get the respondent vacated from 17 the premises and the same was denied. She admits that the ground floor was constructed by her and the first floor was constructed by the petitioners. She says that she is not having any documents to show that the respondent has also contributed for construction of the petition schedule premises. It is admitted that she was not residing in the petition schedule premises after execution of the sale deed in favour of the petitioners. 17. Having re-assessed the material available on record, it is not in dispute that the petitioners have purchased the property from their mother in the year 2004 and also the documents of Exs.P.1 and 2 stands in the name of the petitioners. It is not in dispute that petitioner No.1 is a deaf and dumb and to that effect, the document of Ex.P.3 is produced before the Court. The notice was issued to the respondent in terms of Ex.P.4 and reply was given in terms of Ex.P.5. The main contention of the petitioners is that there is an agreement between the petitioners and the respondent in terms of Ex.P.6 and the said document is marked and in order to prove this document, the petitioners examined P.W.2, who was the earlier tenant of P.W.1 in respect of the very same premises in which the respondent is residing. The Aadhar card of P.W.2, which is 18 marked as Ex.P.7, discloses the address of the petition schedule premises and also voter ID card of his wife Ex.P.8 also discloses the very same address i.e., petition schedule premises. These documents clearly evidence the fact that P.W.2 was a tenant in respect of the very same premises. It is important to note that P.W.2 deposes before the Court that after he vacated the premises, the respondent came to the very same premises and the document Ex.P.6 came into existence in his presence. His evidence is clear that in his presence only petitioner No.2, respondent and another witness Nataraj signed the document of Ex.P.6. In the cross-examination of P.W.2, nothing is suggested that R.W.1 did not make his signature in the presence of P.W.2, but only a suggestion was made that the document of Ex.P.6 is a created document. P.W.2 says that around 2007, there was an agreement between petitioner No.2 and the respondent with reference to handing over the possession of the petition schedule premises to him after he vacated the petition schedule premises. He admits that the present suit is with reference to the property which was occupied by him as a tenant and he also specifies the measurement of the premises. In the chief evidence, he categorically stated in the affidavit that petitioner No.2, 19 respondent and the said Nataraj have signed the said agreement before him and he also affixed his signature. Hence, the evidence of P.W.2 is very clear that he affixed the signature on the document Ex.P.6. 18. R.W.1 though denied his signature on Ex.P.6, in the cross-examination, he categorically says that since beginning he used to sign in the same manner, which is appearing in his chief examination affidavit. Having compared the signature on Ex.P.6, it is different from the signature on vakalath and affidavit. He admits that since beginning he used to sign in the same manner, but when the document of SSLC marks card is confronted to him, he admits his signature in Ex.P.9, but the same is different signature. He volunteers that after II PUC examination, he had changed his signature. When he gave such an answer, the other document of hall ticket of III year Diploma was confronted to him which is marked as Ex.P.10 and he admits his signature as Ex.P.10(a) and he volunteers that he changed his signature style. One more document was confronted to him dated 31.12.2004 i.e., offer letter for his employment and the same is marked as Ex.P.11 and signature of the witness on Ex.P.11 is marked as Ex.P.11(a). 20 19. Having considered these documents, SSLC marks card of R.W.1, which is marked as Ex.P.9 is dated 01.07.1994. Though R.W.1 contended that he had changed his signature after II PUC, but the signature in Ex.P.10 i.e., hall ticket of Diploma examination in the year 2001 and so also the signature in Ex.P.11 i.e., offer of employment in Aditya Horologicals Limited on 31.12.2004 are similar to the signature in 1994 and for a period from 1994 to 2004, his signatures are similar. The very explanation and voluntary evidence that he had changed his signature after II PUC falsifies his contention and all his signatures are similar from 1994 to 2004 and only in an ingenious method while appearing before the Court he had changed his signature while filing the vakalath as well as the evidence. These factors were not taken note of by the Trial Court that the respondent has adopted an ingenious method in giving a false evidence before the Court and he says that after II PUC he had changed the style of his signature, but even during the course of employment also, his signature is same. The Trial Court ought to have compared the present signature and earlier signature from 1994 to 2004 and the same is not done under Section 73 of the Indian Evidence Act, 1872 and nothing is 21 discussed about exercising of power under Section 73 of the Indian Evidence Act. 20. It is important to note that though R.W.2 mother comes before the Court and files chief affidavit that it is a joint family property, but categorically admits in the cross- examination that when she had sold the property in favour of the petitioners, the petitioners became the owners of the property. R.W.2 also admits that they have constructed only ground floor premises. R.W.1 admits that the same was done in the year 1989 and admits that the petitioners have constructed first floor portion. Though it is contended that the respondent has contributed money for construction of the petition schedule premises, both the respondent and R.W.2 have not produced any documents to prove the same. It is important to note that R.W.2 admits that she was not residing in the petition schedule premises after execution of the sale deed in favour of the petitioners. Though, it is stated in the affidavit that it is only a nominal sale deed of R.W.2, but categorically admits that the petitioners have become the owners of the property. 22 21. These admissions were not considered by the Trial Court while considering the material available on record. I have already pointed out that the signature identified in Ex.P.6 by P.W.2 is that of the signature of the respondent has not been suggested to P.W.2, who is one of the witness to the document of Ex.P.6. P.W.2 categorically says that in his presence only the respondent had affixed his signature. No doubt, the mother comes and deposes that it is a joint family property. If it is a joint family property, there is no explanation as to what made her to sell the property in favour of the petitioners. R.W.2 categorically admits that after selling the property, she did not continue in the possession of the said property, if really it is a nominal sale deed and this fact is also not considered by the Trial Court and the Trial Court erroneously comes to the conclusion that the jural relationship is not established. I have already pointed out that the Trial Court did not choose to compare the signature by exercising the power conferred under Section 73 of the Indian Evidence Act. There is no categorical denial by the respondent with regard to his signature on Ex.P.6 when the signature of the respondent was identified through P.W.2 and nothing is suggested that his signature not belongs to 23 him and instead of he has adopted an ingenious method making the signature in different way in the vakalath and chief evidence. When the documents are confronted, he categorically admitted the signatures in Exs.P.9 to 11 and those documents came into existence from 1994 to 2014 and similar signature is available in Ex.P.6 also. All these materials clearly discloses that the respondent took up a false defence and even he had gone to the extent of adopting an ingenious method of making the signature in a different way and when those documents were confronted, he admitted his signatures. The Trial Court ought to have taken note of the said fact into consideration and ought to have compared the signatures. Hence, the Trial Court committed an error in appreciating the material available on record and the respondent even denied the sale in favour of the petitioners, but mother R.W.2, who executed the document, admits the same. 22. It is the specific case of the petitioners that when the notice was issued, the respondent denied the tenancy and he postponed to vacate the premises and Panchayath was held. Though R.W.2 denies that no such request was made to vacate the premises, but R.W.1 categorically admits that no such Panchayath was held, but parents came and there was a 24 discussion. Hence, it is clear that the parents came and discussed the same. R.W.1 admits that the petitioners have requested him to vacate the petition schedule premises and the same is admitted in paragraph No.4 of the cross-examination and no doubt, he denies Panchayath, but the fact that the parents came and discussion was made to that effect is also admitted by R.W.1. All these materials discloses that after the issuance of notice in the month of January 2018 and when the Panchayath was held, the petitioners requested the respondent to vacate the petition schedule premises and the respondent agreed to vacate the same. But when he did not vacate the petition schedule premises, the petitioners were forced to file a petition in the month of January 2019 after the issuance of legal notice in the month of January 2018 as per Ex.P.4. The same is also clear that the respondent had agreed to vacate the premises and when he did not vacate the premises, the petitioners were forced to file a petition almost after one year of causing of notice. Hence, taking note of the material available on record and the averments of the petition, it is clear that the respondent agreed to vacate, but not vacated. The Trial Court committed an error in dismissing the petition by stopping all 25 further proceedings and allowing the application. Hence, it requires interference of this Court. 23. In view of the discussions made above, I pass the following: ORDER (i) The petition is allowed. (ii) The impugned order is set aside and it is held that there is a jural relationship between the parties in terms of Ex.P.6. (iii) The matter is remitted back to the Trial Court. (iv) The Trial Court is directed to consider the petition on merits in accordance with law. (v) The parties are directed to appear before the Trial Court on 04.08.2025, without expecting any notice from the Trial Court. (vi) The Trial Court is directed to dispose of the matter within three months from 04.08.2025. Sd/- (H.P. SANDESH) JUDGE MD