R.D. Tulpule J.
1. These two petitions arise out of the suit filed by Cavas Patel and another-the petitioners in Writ Petition No. 2744 of 1978, hereinafter referred to as Patel, against twelve defendants for possession of a property described as City Survey No. 307-A/4A-A on Shivaji Road in the City of Nasik. This property is also known as Municipal House No. 1370-I. In the judgment, hereinafter the property would be referred to as House No. 1370(1) in Patel Colony in which this house is situated.
2. It was the plaintiff Patel's contention that this property was originally let out to Abdul Hussein Adamji Bohori and Roshanalli Badruddin Bohori by a registered lease which was to commence on 1st January, 1954. That lease was for the period of three years and would have expiry on 31st December, 1956. However, before expiry of the lease period, Roshanalli, who was co-tenant of Abdul Hussein, surrendered his rights in the lease-hold and left and vacated the premises in question. After the expiry of lease period Abdul Hussein became a statutory tenant of Patel.
3. It is then the contention of the plaintiff Patel that this Abdul Hussein also on 31st Match, 1961 surrendered his tenancy right in the property in question. Thereafter, with effect from 1st April, 1961 Patel rented out those premises to Mohamed Hussein Abdul, who happened to be the son of Abdul Hussein Adamji. Mohamed Hussein was defendant No. 1 in that suit and according to Patel, the other defendants viz., defendant Nos. 2 to 12 were sub-tenants introduced by Mohamed Hussein subsequent to his entry in the premises on 1st April, 1961. Those persons, according to Patel, were unlawful sub-tenants and were not entitled to protection of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the 'Bombay Rent Act'). A number of other contentions and grounds to recover possession from Mohamed Hussein, who was tenant from 1st April, 1961 were raised. That the sub-tenants to whom the premises have been let out by Mohamed Hussein, according to Patel, disentitled to continue in possession of the premises and were liable to be evicted under the provisions of the Bombay Rent Act. Among these contentions were that Mohamed Hussein was profiteering by sub-letting to these defendants and some of the defendants had altered the use for which the premises were leased out and were using the same for the purpose other than the purposes ; that they have erected permanent construction without the consent of the landlord. That some of the sub-tenants have also acquired suitable alternate residential accommodations and were also not entitled to remain in possession. It was also contended that the first defendant had not paid the rent from 1st April, 1965 to October 1970 and also not paid the education cess and other dues from him.
4. Various defences were taken by the defendants who appeared in different sets. The first defendant filed his written statement at Exhibit 62, defendant Nos. 3, 4, 5 and 10 at Exhibit 63, defendant Nos. 6, 7 and 8 at Exhibit 64, defendant No. 11 at Exhibit 65, while defendant No. 2 filed his written statement at Exhibit 66. For the purposes of the present petitions, it is not necessary to refer to all the contentions which were raised by these defendants except to say that these defendants denied the adverse allegations made by the plaintiffs Patel in their plaint. The material contentions which were raised by the first defendant as well as the other defendants were that Mohamed Hussein had not introduced these persons as sub-tenants but that the premises were initially taken on behalf of the various defendants belonged to Bohori Community for their use in order that there should be only one person responsible to Patel for recovering the rent. It was Roshanalli, who was the first person in which favour the rent note was executed. That Roshanalli left Nasik. It was Abdul Hussein who started locking after the premises collecting the rent from these various persons and paying it to Patel. All these defendants who had filed their written statements contended that they were in occupation of the premises as before 1959 and were, therefore, entitled to the protection of the Bombay Rent Act.
5. The learned trial Judge held that defendant Nos. 3 to 10 were protected and could not be evicted by the plaintiff Patel. It will be mentioned that the dispute as between Patel and defendant Nos. 1, 2, 11 and 12 was compromised and, therefore, the decree passed against them was as a result of the compromise. In substance, therefore, Patel failed in getting any relief and his suit was dismissed substantially by the trial Judge.
6. Against this decision Patel filed an appeal to the District Judge being Civil Appeal No. 142 of 1975. That appeal was partly allowed. The learned District Judge held that defendant Nos. 3, 8 and 9 were sub-tenants who were introduced in the premises prior to 22nd May, 1959 before the amendment of section 15 of the Bombay Rent Act; while the rest of the defendants were not entitled to any such protection. He held that there was unlawful subletting in favour of these defendants. That the first defendant had profiteered in the transaction. So far as defendants Nos. 5, 6 and 7 were concerned, there is an additional finding that they had acquired suitable alternate accommodations and also on that ground the plaintiffs were entitled to the possession of the premises. He also recorded a finding that permanent structures were erected by the tenants without the consent of the landlord, and therefore, passed a decree for possession against all the defendants excepting defendant Nos. 3, 8 and 9.
7. Aggrieved by the decision of the learned District Judge, Nasik, Patel filed a petition which is Writ Petition No. 2744 of 1978, challenging the dismissal of the suit against defendants Nos. 3, 8 and 9. The other defendants who were ordered to be evicted viz. defendants Nos. 4 to 7 and 10 preferred another petition which is Writ Petition No. 1448 of 1978. Since both these petitions raise common questions of law and facts and since these petitions have been urged together and arising from a common judgment, they have been disposed of also by a common judgment. Reference would be made hereinafter in this judgment to the defendants as the original defendants in the suit and not as petitioners or respondents separately in these two petitions.
8. Before proceeding to deal with the questions which were raised, it may be mentioned that an additional affidavit was filed at the time of the hearing of these petitions on 13th February, 1983 by the son of Cavas Patel. Cavas Patel, during the pendency of the petitions, having died his heirs were brought on record. Similarly, original defendant No. 3 Fidahussein Bohori also died. Similarly original defendant No. 9 Asgarali died and the heirs or these two persons were brought on record.
9. By this affidavit, Patel sought to contend that these original defendants Nos. 3, 8 and 9 and their heirs have acquired suitable alternate accommodations and, therefore, apart from other reasons on that ground also a decree ought to have been passed against them and should be passed now and they should be directed to hand over possession of the premises.
10. In answer to this affidavit, the heirs of Fidahussein and Asgarali original defendants Nos. 3 and 9 and defendant No. 8 have filed their affidavits in reply denying the contentions of Patel. They have also raised other contentions such as the petition against them has abated since all the heirs have not been brought on record. That this contention cannot be allowed to be raised for the first time at the stage of this petition. It involved investigation of facts and leading of evidence and should, therefore, not be considered at this stage.
11. In the circumstances, the question as to whether defendant Nos. 3, 8 and 9 had acquired suitable alternate accommodation for their residence, not having been investigated and not having been alleged and not having been refuted a there was no allegation made by Patel against these defendants, it seems to me improper to allow this petition to be used as a forum for obtaining a decree against these defendants on grounds which were never the subject matter of the suit. In the circumstances, the affidavit of Patel will have to be ignored and circumstances which may entitled Patel to a decree against his tenants for possession under section 13(1)(I) of the Bombay Rent Act, cannot be permitted to be raised for the first time in this petition and cannot be considered.
12. Two principal contentions were urged in the present case. For Patel it was urged that all these persons including defendants Nos. 3, 8 and 9 were not sub-tenants prior to 1959 and that the learned District Judge was in error in accepting the evidence adduced on their behalf and holding them as sub-tenants entitled to the protection of the Bombay Rent Act. On behalf of the petitioners in Writ Petition No. 1448 of 1978 the original defendants Nos. 4 to 7 and 10, it was urged and contended that the story of surrender by Abdul Adam is a concoction. That there was evidence which established that not only defendants Nos. 3, 8 and 9 were sub-tenants but that all the defendants viz. defendants Nos. 4 to 7 and 10 were also sub-tenants prior to 1959.
13. Since there is no surrender by Abdul Adam and since there could not be a surrender in law, in the circumstances, that they were sub-tenants even according to the learned District Judge, the learned Judge should have dismissed the suit on the ground that Abdul Adam was a necessary party to the suit and was a head-lessee without whose presence in the suit, the landlord Patel is not entitled to recover possession from any of the defendants in the suit. It was urged that when Abdul Adam's tenancy would get terminated, the sub-tenants who were lawfully in the premises and were entitled to the protection of the Rent Act would become direct tenant of Patel. Against them though the suit may be maintainable such a suit had to be filed also against the original head-lessee. If the head-lessee was not joined as party to such a suit, no decree could be passed against the sub-tenants who were lawfully inducted in the premises prior to 1959. It was also further urged that so far as such sub-tenants were concerned, the decree could be passed against them only in the circumstances where the landlord would be entitled to possession on any of the grounds provided under section 13(1) and no other. It was pointed out that so far as original defendants Nos. 4 to 7 and 10 were concerned, it was only as against defendants Nos. 5, 6, and 7 that finding has been recorded that they have acquired suitable alternate accommodation. Leaving apart the case of defendants Nos. 5, 6 and 7, it was urged that the suit against defendants Nos. 4 and 10 ought to have been dismissed as no other grounds enabling the landlord to obtain possession under section 13 have been found or established in the appeal.
14. As regards the finding that defendants Nos. 5, 6 and 7 had acquired suitable alternate accommodation, the finding was seriously challenged. It was urged that these defendants did not have notice of any such contention. Patel in his plaint had not specified that these defendants have acquired suitable alternate accommodation. The requisite pleading was missing from the plaint. Defendants Nos. 5, 6 and 7 could not be, therefore, on the basis of the evidence which was adduced not supported by any pleading evicted from possession on a case which they had no opportunity to meet.
15. It was also urged that so far as these defendants Nos. 4 to 7 and 10 are concerned, the learned District Judge erroneously left out of consideration certain documents viz. certified copies of assessment register of the Nasik Municipality for the years 1953-54 to 1957-58 produced in the case and should not have adopted a standard or requirement of production of documentary evidence in support of the case of tenancy or occupation prior to 1959. The suit was filed in the year 1970. It was not possible, in the circumstances of the case, and not something ordinary to expect of the people to retain documentary evidence and documents in their possession showing their occupation of the premises from 1956 to 1959. Documentary evidence was only one kind of evidence and not the only evidence which would entitled a party to succeed.
16. So far as the certified copies of the assessment register were concerned, the learned District Judge did not make any reference to them. The learned trial Judge has not exhibited these documents and there is no reason why these documents have not been exhibited. These documents which were pointed out, were required to be maintained in the ordinary course of business by officials of the Municipality in the discharge of their duty enjoined by the law. The entries in such documents were, therefore, entitled to be considered as evidence. These documents are public documents and, therefore, should have been exhibited. These documents, according to the defendants, go to show that defendants Nos. 4 to 7 and 10 were also in possession of the premises and not only defendants Nos. 3, 8 and 9. If that evidence had been considered, which ought to have been considered also as documentary piece of evidence, even on the test applied by the learned District Judge, defendants Nos. 4 to 7 and 10 were entitled to be protected as sub-tenants. The suit as against them also should have been dismissed as no such ground under section 13 of the Bombay Rent Act against them has been found.
17. It was, in this context urged, that the learned District Judge was in error in refusing to consider the documentary evidence showing that these defendants were in possession which was of a period subsequent to 1961, it was urged that these documents coupled with the oral evidence given by the defendants went to show that these defendants were in occupation of the premises since a long time. Their oral evidence supported by the documents of subsequent date should have been together considered for the purpose of their claim of sub-tenancy. It was in this context submitted also that Mohamed Hussein, the first defendant, being the son of Abdul Adam and Abdul Adam having become ill for a considerable time was managing the property. If Mohamed Hussein, therefore, had received the rent that was not in his capacity as head lessee but as the manager of Abdul Adam, if the rent was accepted by Abdul Adam, and Mohamed Hussein merely passed the receipts for Abdul Adam then it would go to show, coupled with the other circumstances and material in this case, that these person were in possession of the premises even before. Further it was urged that notwithstanding the first defendant's compromise with Patel, the contentions and averments in his written statement can be availed of by the defendants to submit and contend that these defendants were in occupation from Abdul Adam and that Mohamed Hussein had not accepted the lease as contended by Patel, but was merely managing the property of his father Abdul Adam. If there was no lease or creation of tenancy in favour of Mohamed Hussein as alleged by Patel, the entire story of surrender by Abdul Adam must fail, resulting in the dismissal of the suit against all the defendants. It was therefore, urged that the story of surrender in this case could not be accepted and was not true and is not borne out by the evidence. The theory of implied surrender by Abdul Adam has been put forward by the plaintiffs at the appellate stage. It was urged that such an implied surrender was invalid and inoperative, particularly when at lease some persons were held to be sub-lessees prior to 1959 and entitled to the protection of the Bombay Rent Act. By reason of this, it was then pointed out that such sub-lessees automatically become direct tenants of the landlord on the termination of intervening estate of the tenant. It was implicit in the case of Patel, it was pointed out that these sub-lessees must have been to the knowledge of Patel in occupation of the premises prior to 1959. These had not attorned to Patel nor was there anything to show that Abdul Adam had informed them of the so-called surrender. Surrender of a part of the premises and surrender in such circumstances when there was nothing to surrender and the tenant had nothing in his possession would be legal or valid. If the so-called surrender in the circumstances by Abdul Adam could not be effected, then it was urged that the suit was destined to fail.
18. Though I have reproduced the above contentions urged before me on behalf of Patel and the tenants, somewhat extensively, it will be seen that the principal question in this case turns upon the finding as to whether there was and there could be an implied surrender by Abdul Adam of the property in suit. That question really turns to some extent upon a finding of fact and upon drawing appropriate legal inference therefrom, and application of the law relating to implied surrender, to the circumstances and facts established in the present case. The other question which also is material is that who were the sub-tenants or persons in occupation and paying rent prior to 1959 to the tenant, whether it was Abdul Adam or any other person who had surrendered, and who were the persons who had been inducted in the premises subsequent to 1959 or in respect of whom there is nothing cogent and acceptable evidence to hold that they were in the premises as sub-tenants prior to 22nd May, 1959. Inasmuch as the contention in regard to the validity of the surrender by Abdul Adam is closely connected and intermixed with the question as to whether there were any sub-tenants prior to 22nd May, 1959, it would be convenient to take up the question as to who were the persons or sub-tenants in occupation of the premises prior to 22nd May, 1959. Here it may mentioned that defendants Nos. 3, 8 and 9 were sub-tenants is also challenged by Patel in Writ Petition No. 2744 of 1978. The first question in this behalf which requires to be considered is admissibility of the certified copies of the extracts of the Revision Register produced in the trial Court. These documents appear to have been produced along with list Exhibits 64 at Serial Nos. 5 and 6. It pertains to the years 1947-48 to 1953-54. Mr. Abhyankar, learned Counsel for Patel contended that these were rightly not admitted in evidence and not exhibited by the learned trial Judge. His contention also was that before the learned District Judge the contention that these documents ought to have been considered and exhibited and were improperly left out of evidence does not seem to have been pressed. He urged that there is no reference to any such arguments or contentions raised before the learned District Judge by the appellants.
19. It is true that judgement of the learned District Judge does not reflect that this question was raised before him. Nevertheless if a documents is produced in evidence and the documents is tendered and evidence adduced in support of its proof, then merely from the absence of any reference to it, it cannot be said that the document was proper and could be properly left out of consideration. It is not submitted that it was inquired and its consideration in evidence was not pressed. If, therefore, these documents were tendered in evidence as will be seen from the evidence adduced of the Record Keeper from Municipality, witness Yusuf D.W. 3, Exh. 280 who had brought the original register and produced these certified copies, it cannot be easily said that the documents were not tendered in evidence and could be left out of consideration. It is not possible to know the reasons why these documents were not exhibited and were left out of consideration, by both the learned trial Judge and District Judge.
20. Mr. Abhyankar, however, contended that these documents which are extracts of the Revision Register are not public documents. His further contention was that even assuming that these documents are public documents, the entries therein could not be accepted and could not be considered as evidence of the facts stated therein. In this context, Mr. Abhyankar contended that the entries therein would not go to show that these persons were sub-tenants of Abdul Adam and were paying the rent which was stated therein. Besides, it was urged that those entries and statements in the documents are in conflict with the contentions of the defendants and the rent they were paying. Even if, therefore, the assessment register is a public document which is kept and maintained by the Municipality under the provisions of the Municipalities Act, nevertheless all the entries therein are not evidence of whatever is stated. They would be relevant and would be evidence for the purpose for which the register is kept viz. fixation of rateable value of the property and not for any other purpose. Besides, he urged that the probative value of such documents in the absence of the person giving evidence, who prepared them would be not only doubtful but scanty. He referred in this connection to Halsbury's Laws of England, Third Edition, Volume 15, Paragraph 672 at page 376. The statement therein of the law in that behalf is to the following effect :---
'Although the document may be properly of a public nature, it is not admissible to prove any facts therein stated which do not fall within the scope of the writer's authority. Moreover, documents falling under 'Public Surveys, Inquiries, Assessments and Reports' are not necessarily admissible to prove the facts therein stated against all the would and for every purpose.'
He also referred to Phipson on Evidence, 12th Edn., Page 517, para. 25, wherein reference was made to the electoral roll and purpose for which it was kept and used. It says an entry in the electoral roll to the effect that a person other than the tenant was residing in rented premises was not prima facie evidence of breach by the tenant of covenant forbidding the sharing of the premises. Merely because, therefore, a person's name was found in the electoral roll an inference that the premises were shared or in this case a sub-tenant was introduced cannot be drawn.
21. For defendants 4 to 7 and 10, on the other hand reliance was sought to be placed upon the provisions of the Maharashtra Municipalities Act, 1965 and Chapter IX Part 2 thereof. Those provisions relate to revision of assessment and procedure for valuation. Section 115(2) was particularly referred as implying and providing for preparation of assessment list and visits to the buildings for purposes of inspection and preparation of the record therefrom. It was therefore, urged that the assessment register is a public document and is a public record required to be kept by the Municipality under the law for the purposes of determining the liability of assessment of the properties, which in turn is determined on the basis of the rateable value of such properties. Reliance was then placed upon a decision of the Madhya Pradesh High Court reported in : AIR1975MP223 which held that the assessment list register entries were admissible in evidence.
22. It cannot be seriously disputed that an assessment register is required to be kept in law and the entries therein are made for the purposes of compilation of an assessment list in cases of revision of assessment of the properties within a Municipal area. This is clearly permitted and required under the relevant Act. The documents, therefore, were clearly admissible and it was not right to keep them out of the record and not to exhibit them. It is, however, an entirely different matter as to the probative value of that document and in particular as to whether from the statements therein by themselves a particular fact is established. That depends upon various other facts and circumstances. The extracts, therefore, are directed to be exhibited.
23. Coming to the question now as to what the entire established and heir probative value, the relevant Columns are Columns 8 and 13. Column 8 provides for recording the names of persons who are in occupation and to indicate whether they are owners or tenants. In column 13, the actual rent in cases where the tenants were occupiers and estimated rent in case of owners thereof is required to be recorded. In the present case, when two documents are considered, then it is found that the name of defendants 3, 7, 9 and 10 appear in the extracts for the year 1953-54 as also for the year 1957-58. They are Fidahussein Kamaralli-defendant No. 3, Fakruddin Maru-defendant No. 7, Asgaralli Sulemanalli-defendant No. 9 and H.M. Master-defendant No. 10. There is some controversy as to whether H.M. Master is the same person as defendant No. 10, but that controversy must be answered in favour of defendant No. 10 since his evidence goes to show that he was also known as H.M. Master, which evidence stands unchallenged.
24. Shri Abhyankar, the learned Counsel for Patel, contended that the amount of rent mentioned against the names of persons is different from what is stated by them in Court as to the rent which they were paying to Abdul Adam. It was also pointed out that Abdul Adam himself was shown as a person paying rent as also Roshanalli Badruddin. The rents paid either by Abdul Hussein Adamji or Roshanalli to Patel was much large and not the small amounts noted against their names. It is quite clear, therefore, that these entries though made sometime prior to 1953-54 and 1957-58 may not indicate the rent which was being paid actually, or the inter se relationship between all these persons and Patel or inter se relationship as between persons shown as occupiers. Nevertheless, it cannot be disputed that defendants Nos. 3, 7, 9 and 10 were found to be occupying both in the year 1953-54 ad 1957-58 the premises in question. It is not possible to get rid of this conclusion and the conclusion of facts emerging from out of these two documents even if they cannot be accepted as evidence for the reason stated and which followed. It has already been held that defendants Nos. 3 and 9 were sub-tenants prior to May, 1959. The only dispute and question, therefore, is with regard to defendant No. 10. The case of defendants Nos. 3 and 9 is supported by other evidence. I will, therefore, consider the cases of defendants Nos. 3, 7, 9 and 10 but consider the cases of defendants Nos. 3 and 9 and that of defendants Nos. 7 and 10 separately.
25. On behalf of defendant No. 4, the learned Counsel contended that the name of defendant No. 4 Kamruddin appears. Defendant No. 4 is Fatimabai. It was also further urged on her behalf that her name appears in the Voters' List Ex. 281 for the Assembly Election for the year 1957. The name of her husband Kamruddin also appears in the extracts of the assessment register. A reference to the assessment register however, does not disclose the name of Kamruddin Bohori, who was admittedly the brother of Roshanalli Bohori. In Ex. 281 at Serial No. 6061, the name of Kamruddin Bohori appears. It is true the said name appears against House No. 1372, which is not the house number of the suit house. The house in suit is House No. 1375. It was, however, contended that against this house number even the names of Patels landlords are mentioned and, therefore, merely because the house number is erroneous, it would not mean that Kamruddin Bohori was not in occupation of the suit house. It is nobody's case that he was in occupation of any other property in Patel Colony.
26. Shri Shah, therefore, strenuously contended that defendant No. 4 should also be held to be a sub-tenant. There are two difficulties in the way of accepting this contention. Kamruddin Bohori is admittedly the brother of Roshanalli. The mere circumstance that he was occupying a portion of the suit premises assuming to be so, would not by itself establish that either Kamruddin Bohori or his wife Fatimabai was a sub-tenant either of Roshanalli Bohori or Abdul H. Adamji prior to May, 1959. It is not merely enough for a person to claim protection under the Bombay Rent Act to show that he was in occupation at a particular time. He must also show that not only he was in occupation prior to May, 1959, but that there was a relationship of landlord and tenant between the lessee and the person concerned. Unless that is established, it would not be possible to contend so. Such person cannot claim the protection under the Act merely because he was in occupation as a sub-tenant protected under the Act. Defendant No. 4 clearly has not succeeded in establishing that he was a sub-tenant, or her husband was a sub-tenant in suit premises. The name which appears in the revision register extract is not Kamruddin Bohori, but Kamal Bohori.
27. That takes me to the case against defendants 3 and 9. Before proceeding to consider the evidence adduced by defendants Nos. 4 to 10 in this case, a reference may be made to the document which was discarded by the Appellate Court as suspicious and produced as Exh. 158. That purports to be a counter-foil book or counter-foil sheet of receipts which have been exhibited from Ex. 220 onwards. Various exhibits were given of the defendants to those counter-foils as and when they were shown during the evidence. Having considered these so-called counter-foil book and the receipts which are produced, relating to the various payments by the various defendants, I am satisfied that the conclusion that the document produced as Ex. 158 and the counter-foils therein exhibited at various Exhibits 220 onwards is suspicious document and no reliance can be placed thereon. This document has been admittedly produced by defendant No. 10 Asgarali who admittedly has signed it at various places before producing it. I would, therefore, completely ignore this exhibit and the counter-foil thereto. A bare book of these counter-foils and the original receipt would go to show that it could not form parts of the same and could not be part of receipt book which was maintained by the landlord in question. Similarly, I do not see any reason to come to a different conclusion reached by the learned District Judge relating to defendants 3 and 9. Defendant No. 3 produced rent receipts at Exh. 88(1) & (2) which are for the year 1954 and proved having been signed by Abdul Adamji. In the circumstances, it must be held that defendants Nos. 3 and 9 who were in occupation and possession of the premises in question, as also the relationship of a landlord and tenant as between themselves and Abdul Adamji is clearly established by the evidence adduced by defendant Nos. 3 and 9 viz., Exh. 88(1) and (2) and Exh. 259 coupled with the entries in the extract of assessment register to which I have referred. Defendant No. 8 similarly produced receipts at Exs. 239 to 243 for the years 1954 to 1955 and considerable other documentary evidence to show that he has not only been in possession and occupation from 1954, but was continuing to be in occupation and was paying rent to Abdul Adamji. The finding, therefore, that defendant No. 8 was also a sub-tenant who was inducted in the premises prior to May, 1959 must also be upheld. The result, therefore, is so far as defendants Nos. 3, 8 and 9 are concerned, the order passed by the learned District Judge will have to be affirmed and petition filed being Petition No. 2744 of 1978 dismissed and rule made therein discharged.
28. That takes me to the case of defendant No. 7. The remaining person from amongst the persons whose name appeared in the Assessment Register Extract and the respective entries. A contention was raised that they are sub-tenants entitled to protection of the Rent Act. So far as defendant No. 7 is concerned, the decree directed that he was liable to hand-over possession on the ground that he had acquired suitable alternate accommodation. Defendant No. 7 has acquired possession of block No. 6 in Anupam Society at Nasik. The fact and circumstance that defendant has acquired suitable alternate accommodation is not seriously disputed. In the circumstances, the question as to whether defendant No. 7 was a sub-tenant or not really recedes in the background. For the reasons which will follow in the following part of the judgment even if defendant No. 7 were to be held to be a sub-tenant and was introduced in the premises prior to May, 1959, if he has acquired thereafter suitable alternate residential accommodation whatever protection he had under the provisions of the Bombay Rent Act will disappear and he will be liable to be evicted. So far as he is concerned, the decree must also stand and will have to be affirmed.
29. That leaves the question of defendant No. 10 only to be considered. So far as defendant No. 10 is concerned, it was fairly conceded that defendant No. 10 has no other evidence except his own testimony to show that he was sub-tenant of the premises in question. The only other document upon which reliance was placed was a receipt Ex. 221. That receipt purports to be a receipt issued by Patel in favour of defendant No. 10 Asgarali Karamali on 29th October, 1953. The rent charged therein is Rs. 7/- for the month of September, 1953. Now it is not the case of defendant No. 10 that he had at any time paid Rs. 7/- as rent. His case was that he was paying Rs. 32/- as rent. The house number given is also different. This document was produced on the 17th of August, 1973 when Patel was under cross-examination. In the cross-examination, he denied that he signed this document. Even otherwise, it is quite clear that Ex. 221 can be of no assistance to defendant No. 10 to prove that he was a sub-tenant of Abdul Adam. It does not show any receipt of rent by Abdul Adamji from defendant No. 10 and on the contrary shows if accepted that the rent was paid by defendant No. 10 directly to Patel which is nobody's case. Ex. 221, therefore, does not assist defendant No. 10 in any way to establish that he was a sub-tenant. The mere appearance of name of defendant No. 10 in the Revenue Register Extract by itself, would not make him a sub-tenant who had been inducted in the premises prior to May, 1959. As pointed out, even if the document is admitted it will not be evidence of relationship of sub-tenant or landlord and tenant as between a tenant and sub-tenant from mere appearance of the name of that person as occupier, or any amount of rent shown as being recovered from. In the circumstances defendant No. 10 has failed is showing that he was a sub-tenant inducted in the premises prior to 22nd May, 1959 and, therefore, his case must also similarly fail.
30. Relating to the other defendants viz. defendants 5 and 6, the only remaining claims to the status of the protected sub-tenant, it was conceded that there was no documentary evidence to show that they were sub-tenants in the premises prior to 22nd May, 1959. It is no doubt true that they have produced a large number of receipts and money order coupons also showing payments of rents subsequent to 1961 or in one case even of the year 1960. That would not, however, go to show that these defendants viz. defendants 5 and 6 were in occupation of the premises in the year 1959, or that prior to 22nd May, 1959 they had been inducted in the suit premises as sub-tenants by Abdul Adamji or anybody. It is not enough for a person claiming to be a sub-tenant that he was a sub-tenant at some time in order to claim protection of the Act, he must show that it was prior to 22nd May, 1959 that he was in possession as a sub-tenant, in which case only he would be entitled to claim protection. Relying upon Exhibit 259 and subsequent possession continued in the same capacity may then supply material. Such proof and evidence is lacking in the case of defendants Nos. 5 and 6. They must, therefore, be held to be also not entitle to any protection. Similarly, defendant Nos. 5 and 6 have also been found to have acquired suitable alternate accommodation. Defendant No. 6 has acquired possession of an ownership block No. 5 in Anupam Society while defendant No. 5 has obtained possession of a place known as 'Rose Cottage' situate also in the City of Nasik. Even if, therefore, defendant Nos. 5 and 6 were held to be sub-tenants protected under the Rent Act even then they would not have been able to avail of that protection for the purposes of denying the delivery of possession to Patel on the ground that they have acquired suitable alternate accommodation after the coming into the force of Act. It may be mentioned that in this connection, the learned Counsel for defendants Nos. 4, 7 and 10 contended that the pleading delivered by the plaintiff in this behalf was very vague. It is true that all that the plaintiff stated in the plaint was that some of the defendants have acquired suitable alternate accommodation after the coming to force of the Act. He did not mention which were those defendants who have acquired alternate residential accommodation. Nevertheless, it is quite clear that the evidence was adduced at the earliest stage during the course of the trial with regard to the acquisition of suitable alternate accommodation by defendant Nos. 5, 6 and 7. The parties went to trial on that issue. They did not seem to have also been in any way prejudiced by the non-specification in the plaint as defendants 5 to 7 as persons who have acquired suitable alternate accommodation. They cannot be now heard to say that the pleading of the plaintiff was vague and, therefore, they were in any way prejudiced. It was contended that no issue was also framed by the learned trial Judge and no finding recorded. That may also be true. Nevertheless, since this finding and facts appear to be incontrovertible and were gone into by the learned District Judge, who did not find any prejudice caused to defendants 5 to 7. I do not think in this writ jurisdiction under Article 227 on the ground defendants 5 to 7 should be allowed to contend that no decree could have been passed against them. The order for possession, therefore, as against defendants 4, 5 to 7 must stand, as also against defendant No. 10 on merits.
31. That leaves the question and contention urged with regard to surrender and liability of the suit to be defeated on the ground that there was no valid surrender and there was no surrender in fact. It is also urged that no surrender could be effected when there were sub-tenants already in the premises. In view of the finding at least that defendant Nos. 3, 8 and 9 were sub-tenants entitled to protection of the Rent Act and were in the premises prior to 22nd May, 1959 no surrender could or did take place or can be a valid surrender at all.
32. I do not think that this contention is either sound or can be of assistance on the basis of the material and the law in that behalf. The contention of Patel in this behalf is that Abdul Adamji terminated his statutory tenancy in respect of the premises in question by a voluntary surrender of the premises in favour of Patel with effect from 1st April, 1961. Patel leased these premises different terms to Abdul Hussein who happens to be the son of Abdul Adamji. Now section 111 of the Transfer of Property Act, provides for termination of tenancy and their determination. Clauses E and F thereof provide for determination of a lease by express surrender or by implied surrender. We are, in the present case, concerned with Clause F alone as it is not the case of Patel that there was any express surrender.
33. An implied surrender is surrender by operation of law or surrender considered in law to be such a surrender. By implication, the lease is held to be determined in the circumstances the lessee having surrendered his tenure. In the present case it is common ground that Abdul Adamji was a statutory tenant. The original contractual lease having expired what Abdul Adamji had in the property was not a transferable or heritable interest, but a protection under the Rent Act to be entitled to continue in the pr0emises unless he was evicted by reasons of any of the provisions of sections 12 or 13 of the Rent Act.
34. The contention, therefore, was that in order to effect such a surrender, even assuming by implication it was necessary that physical possession be handed over to the lessors. It was urged that unless physical possession was handed over in the case of the statutory tenant there being nothing else to surrender except physical possession, there would be no surrender. In the case of the statutory tenant, it would be deemed that there was an implied surrender only if there is evidence of parting with possession
35. So far as physically parting with possession it was contended that in any event the possession defendant Nos. 3, 8 and 9 was not and could not have been taken and handed over by Abdul Adamji to Patel. It was also urged that under section 14 of the Bombay Rent Act, where the interest of a tenant in any 'premises is determined for any reason', then the sub-tenant of the premises would be lawful tenant. In that case, defendant Nos. 3, 8 and 9 would automatically acquire the status of a direct tenant and such sub-tenant would be deemed to be holding the land or premise as direct tenant of the landlord 'on the same terms and conditions on which they hold the premises from the erstwhile tenant or landlord'. It was, therefore, urged that upon the premises put forward by Patel, on Abdul Adamji surrendering possession or surrendering his tenancy, defendants 3, 8 and 9 would become direct tenants of Patel. Besides, since Abdul Adamji could not physically and actually hand over possession to defendant No. 3, 8 and 9, and since there was absolutely no evidence to show that Abdul Adamji in fact handed over possession, there could be no surrender. It was urged in this connection that the case of Patel was that Abdul Adamji was in occupation of the entire premises and what he did on 31st March, 1961 was not only to notionally come out of the premises, but to hand them over in their entirety to Patel, and Patel in his turn, giving them to Mohamed Hussein with effect from 1st April, 1961. My attention was invited to the evidence in this behalf given by Patel who merely stated that there was exchange of hot words between Abdul Adamji and Patel and that Mohamed Hussein later came to him and told him that if the premises were given to him he would grant vacant possession thereof after a period of one year after the tenancy. It was, therefore, urged that no actual physical transfer of possession took place either of any premises by Abdul Adamji to Patel, or even of premises excluding those in the possession of defendant Nos. 3, 8 and 9 to Patel. Consequently, it was contended that Abdul Adamji did not come out of the property in suit and did not bring about an end of relationship of the tenant of statutory tenant between him and Patel. Consequently, it is urged that in the absence of Abdul Adamji being a party to the suit, the suit could not be maintained and since the lease of the head lessee not having been determined those of the under lessee could not also be determined and suit was liable to fail.
36. There cannot be any exception to the contention that on a determination of a statutory tenancy, if there were sub-tenants entitled to protection under section 14, they would become direct tenants of the landlord. But if it is found that there was in fact surrender in law of the tenancy rights and can be held that there was an implied surrender by Abdul Adamji in favour of Patel as recognised bye-law, then I do not see how there would be any difference in the matter of institution of the suit, and affect it as against defendants 3, 8 and 9 and the other defendants and Mohamed Hussein, who, according to Patel become the successor tenant.
37. The doctrine of implied surrender is a legal principle evolved for purpose of recognising a state of facts or a transaction relating to which there is no express document. Such an implied surrender in law is presumed where the new state of facts are inconsistent and incompatible with the continuation or existence of a former relationship. If the new facts and relationship found is inconsistent and incompatible and if the two cannot stated together viz. the new relationship found and the former relationship which existed then the law presumes that thee was an implied surrender by the holder of the former status of his rights in the property in question. Such an implied surrender is presumed where a new relationship which is incompatible and inconsistent is created by a simple relinquishment of possession.
38. We are not here concerned with a situation where there is remainder of the lease existing or surviving in favour of the lessee who yielded that remaining term. Here, we have a case of a statutory tenant. The only thing which he could yield and deliver or part with, was possession. Now it is settled law that parting with possession does not necessarily mean actual physical delivery of possession.
39. Mulla in his Transfer of Property Act, 6th Edition, Page 745 observed :---
'There must be a taking of possession, not necessarily a physical taking, but something amounting to a virtual taking of possession.'
If, therefore, an inference that possession must have been taken and parted with is possible and if the conduct of the parties is inconsistent with such an hypothesis, then in such circumstances it will have to be held that possession of the kind which it was possible was parted with and delivered. Even a notional parting of possession would become surrender of possession. For rendering validity to a surrender, physical delivery of possession is not an absolute must, if a person is notionally in possession. If a person hands over possession of the kind which he can deliver and of which he was possessed, which he had then in law, even such parting of possession or character would clothe the transaction with an implied surrender.
40. In the present case, we have Exhibit 109 which goes to show that Abdul Adamji paid rent for the period 1st January, 1961 to 31st March, 1961. We also have evidence to show that Mohamed Hussein, his son, paid rent for the period 1st April, 1961 to 30th June, 1961. It was urged that both these receipts are not passed on 1st of April, 1961 or 31st of March, 1961 and that in favour of Mohamed Hussein on 15th of January, 1962, much later than the alleged talk surrender and the lease in favour of Abdul Adamji on 1st April, 1961. It was, therefore, contended that Patel is taking an advantage of the circumstances that receipts upto a certain time stand in name of Abdul Adamji and those subsequent to 1st April, 1961 stand in the name of defendant No. 1, Mohamed Hussein.
41. There is some substance in this contention particularly since there is no document to show that Abdul Adamji did surrender his statutory tenancy right and Mohamed Hussein, defendant No. 1 was accepted as a new tenant by that document or a particular transaction, which took place on a particular date. If the transaction took place on 1st April, 1961 or 31st March, 1961 it is more likely that the documents would have indicated that the transaction took place on that particular date. However, it is equally possible that the transaction though it took place on a particular date receipts for payments received were in fact made later. The passing of a receipt on a particular date is not a sine quo non of the transaction. If two versions are possible and if one of the versions is accepted and is consistent with the other circumstances and the conduct and behaviour and the documents on record and that is preferred, then it cannot be said that there was anything wrong with such conclusion. In the circumstances and the evidence available in the present case, to which I shall presently refer, that conduct and behaviour and documents are more consistent with the theory that there was a creation of new relationship of landlord and tenant between defendant No. 1 Mohamed Hussein and Penal with effect from 1st April, 1961.
42. Those circumstances and evidence and documents are the passing of rent receipts in the name of Mohamed Hussein subsequently to 1st April, 1961 to a much later date say upto 1968. It is true that defendant No. 1 had disputed in his written statement the contention that he was a tenant. It cannot, however, be overlooked that defendant later entered into a settlement and compromised all the dispute between himself and Patel which compromise has now been held to be good and valid. In the circumstances, defendant No. 1 must be held to have become the tenant of Patel with effect from 1st April, 1961. Besides, the various rent receipts which are produced by the defendant, the payment by money order by the defendant to Mohamed Hussein also go to lend support to the case of Patel that with effect from 1st April, 1961 it was defendant No. 1 Mohamed Hussein who became his tenant in place of Abdul Adamji. It must not be forgotten that the case of the other defendants was that of sub-tenant of Abdul Adamji. Nevertheless, they accepted receipt from Mohamed Hussein indicating therein who was entitled to receive rent. That conduct is inconsistent with the present story that they were sub-tenants of Abdul Adamji, and that there was no such parting possession or surrender by Abdul Adamji as contended by Patel. Even assuming that Abdul Adamji was ill for some time and Mohamed Hussein who was his son, was looking after the matter of collecting rent, one cannot think that this continued for such a long number of years, or further inconsistent with that position that receipts would be passed by Mohamed Hussein as a landlord to the other defendants, or that these defendants would accept such receipts from Mohamed Hussein. The circumstance that these defendants accepted these receipts from Mohamed Hussein would indicate on the other hand that they were fully aware of the change in the situation, and were appraised in the circumstances tat it was Mohamed Hussein who had become a tenant with effect from 1st April, 1961.
43. On 1st April, 1961 Abdul Adamji was in possession of some portion of the premises. In any event, he was not in possession of the portion occupied by defendant Nos. 3, 8 and 9. As to what other portion he was in possession of, it is not possible in the absence of clear evidence to say and find. It is true that the other defendants have contended that they were in possession of the portion which is in their possession at present also at that time. Such a finding is not possible to be recorded in their case in the absence of anything to show that prior to 1st April, 1961 and in particular as on 22nd of May, 1959, they were sub-tenants from Abdul Adamji. Even if they have been inducted in the premises between 22nd May, 1959 and 1st April, 1961 by Abdul Adamji, still as much as their tenure was precarious and was lawful, they could not claim that possession. If the landlord is willing to accept notional possession and was willing to take another person as his new tenant, and if that relationship was adverse and adopted and accepted by all parties and persons concerned, then it is difficult to see how merely because there was no physical taking and giving possession, the transaction could not be termed as on implied surrender. It has again to be held that as and from 1st April, 1961 a new relationship came into existence and was created between Patel and defendant Mohamed Hussein. That relationship undoubtedly is inexistent with Abdul Adamji remaining a statutory tenant or otherwise continuing to be a statutory tenant. It must also not be forgotten that Abdul Adamji and Mohamed Hussein are father and son. The possibility, therefore, that Abdul Adamji was a consenting party to the transaction cannot be ruled out and is more probable than any other.
44. What remains then is to deal with some of the decisions which have been referred and cited at the bar. Though a number of cases were referred and pointed out, I do not think it necessary to refer to all of them. I will firstly refer to a decision upon which reliance was placed by both the petitioners as well as the respondents reported in : 4SCR892 , Anand Nivas Private Ltd. v. Anandji Kalyanji's Pedhi and others., The head note therein says :
'A statutory tenant has no interest in the premises occupied by him, and he has no estate to assign or transfer.'
Then dealing with the provisions of section 14, it was said :---
'A statutory tenant has an interest in the premises and when the section talks of the interest of a tenant being determined, it obviously means in the case of a statutory tenant determined by a decree or by such a tenant giving up the protection of the Act.'
It would thus be seen that in the case of a statutory tenant, it is the passing of a decree against him, which would determine his status as a statutory tenant of his own voluntary surrender of his status as a statutory tenant. It is then only that the provisions of section 14 can be attracted. Defendants 3, 8 and 9 in this case can only become direct tenants of Patel upon determination of the statutory tenancy of Abdul Adamji which in this case took place by his surrender on the 31st of March, 1961. This does not, however, fairly lay down the proposition that a statutory tenant cannot determine his tenancy by a surrender unless he actually physically delivers possession of the entire premises to the lessor.
45. The next case to which a reference could be made is that reported in Hiralal Vallabhram v. Sheth Kasturbhai Lalbhani and others, : 3SCR343 . The facts in that case were that the premises were let to defendant No. 1 Defendants 2, 3 and 4 were persons in actual occupation. Defendants 2 and 3 claimed that they were partners of defendant No. 1 and further that defendant No. 1 had ceased to be a partner and in his place defendant No. 4 had been introduced as a partner in the partnership. On dissolution of the partnership, the right of the premises was assigned to defendant No. 4. The only question with which we are concerned in the present case appears at page 1856. It says :---
'The interest of a tenant who for purposes of section 14 is a contractual tenant comes to an end completely only when he is not only no longer a contractual tenant but also when he has lost the right to remain in possession which section 12 has given to him and is no longer even a statutory tenant. In other words section 14 would come into play in favour of the sub-tenant only after the tenancy of the contractual tenants has been determined by notice and the contractual tenant has been ordered to be evicted under section 28 on any of the grounds in section 12 or section 13. Till that event happens or till he give up the tenancy himself the interest of a tenant who may be a contractual tenant for purposes of section 14 cannot be said to have terminated i.e. come to an end completely in order to give rise to a tenancy between the pre-existing sub-tenant and the landlord.'
The other decisions to which a reference may be made is that reported in H.A. Karim Sait (deceased) and others v. Myath Basha : (1976)1MLJ225 and in particular the observation therein relating to Reynolds v. Bannerman, 1922 Volume 1 Kings Bench Division page 719. In that case Bannerman who was a tenant had introduced one Mrs. Baldwin as a sub-tenant. Bannerman surrendered his tenancy right in favour of Reynolds, but could not succeed in handing over possession of the portion which was in occupation of Mrs. Baldwin, who refused to hand over possession. Mrs. Baldwin was protected under the Rent and Mortgage interest (Restrictions) Act, which was then in force. Reynolds sued Bannerman for rent and it was held that Bannerman could and did hand over possession as he was capable of, the sub-tenant having been protected under the Rent and Mortgage Interest (Restrictions) Act, a case which is similar to ours. It was observed :---
'There was nothing more that the tenant could have done to get possession of the premises for the landlord and the thing which prevented him from doing so was the statute.'
In the circumstances to which I have made a reference, the inability of Abdul Adamji to hand over possession of the premises including those in the possession of defendants 3, 8 and 9 was the circumstances tat they were protected like Mrs. Baldwin. In regard to the others, there is no evidence that Abdul Adamji was not in a position to hand over possession. Beside it, it is always possible for landlord to accept a kind of possession which was offered and take it ad create a relationship in favour of another person who then enters into possession and becomes responsible to pay rent to the landlord. I may also further point out the observation in that decision to the following effect:
'The principle of the sub-tenant acquiring certain statutory rights is indeed as exception to the principle that :
When a lease has expired, the tenant's responsibility is not to an end; for if the premises are in possession of an under-tenant, the landlord may refuse to accept the possession and hold the original lessee liable.'
If there were sub-tenants entitled to protection and if the landlord was prepared to accept the surrender when the lessee was prepared and able to give, then there could be and would be a valid surrender.
46. In Shah Mathurdas Maganlal and Co. v. Nagappa Shankarappa Malaga and others, A.I.R. S C 1565, a mortgage was executed in favour of the tenant and the question arose as to whether there was a merger and upon redemption whether the right of the tenant as tenant revived. It was held that :---
'Implied surrender by operation of law occurs by the creation of a new relationship, or by relinquishment of possession. If the lessee accepts a new lease that in itself is a surrender. Surrender can also be implied from the consent of the parties or from such facts as the relinquishment of possession by the lessee and taking over possession by the lessor.'
47. On behalf of the landlord, the learned Counsel Shri Abhyankar placed reliance upon a decision reported in Noratmal v. Mohanlal A.I.R. 1966 Raj 89 wherein it was observed that :---
'It may be a surrender by acceptance of a new lease or a surrender by unequivocal giving of possession or a surrender by re-letting to another person by the landlord. Even acceptance by the landlord of the sub-lessee as his tenant would amount to surrender.'
It is, therefore, clear that where there was re-letting to another person by the landlord, there would be implied surrender. As I have pointed out the basis for the application of this legal doctrine is incompatibility and impossibility of existence of two inconsistent situations together. In such an event, law holds that the first has impliedly surrendered his interest and rights in the property when rights were created in favour of another person. All the circumstances in the present case indicate that this was so. The result, therefore, is that Writ Petition No. 1448 of 1978 must be dismissed and Rule discharged. Writ Petition No. 2744 of 1978 is also dismissed and Rule discharged therein. Since both the petitioners in this petition have partly filed and partly succeeded, I would direct that parties would bear their own costs.