1. This is a rule directed in a Revision against a decree for ejectment passed by the Senior Subordinate Judge, Delhi. It has been rather difficult for me to follow what exactly the Senior Subordinate Judge has held and where he has held it, but with the aid of counsel I have been able to get the facts and the findings.
2. On the 7th of February, 1948, Behari Lal, the Landlord, filed a suit against Bulaqi Singh for ejectment and arrears of rent on the ground that the rent of the demised premises was raised to Rs. 6/6/-- a month which had not been paid. He also alleged in the plaint that certain other premises had been encroached upon by the defendant, and he asked for damages for use and occupation for these premises; in paragraph 7 (d) of the plaint he described ii as 'rent by way of damages for use and occupation'. On the first date of hearing the defendant deposited Rs. 196/5/-- which was the rent due on the demised premises at the rate agreed upon, and he pleaded that the other premises for which damages were being claimed formed part of the demised premises and no separate rent was payable for them.
3. The trial Court held that the area encroached upon, which on the plan, Exhibit P.5, is shown as IJKL and OPQR, was not included in the lease, but the tenant was liable to deposit the damages which the owner was entitled to for use and occupation of these two portions and as that had not been paid he decreed the suit. He assessed the damages at Rs. 10/-- per mensem. On appeal the Senior Subordinate Judge held that the area encroached upon became part of the demised premises under the terms of the lease and therefore they were demised premises 'and that full rent plus damages should have been deposited at the first hearing and adopting the reasons given by the trial Court he dismissed the appeal.
4. Counsel for the petitioner submits that the findings of the Senior Subordinate Judge are contradictory. In one part of the judgment he has held that the portions IJKL and OPQR are not Included in the demised premises and the tenant has encroached upon them and therefore is liable to pay damages. In another portion he has held that according to the terms of the tenancy these portions are included and were to be considered as portions given on rent. 1 am unable to reconcile the two findings. In the plaint itself in paragraph 5 the plaintiff definitely alleges that the portions marked IJKL and OPQR were not within the demised premises and had been forcibly taken possession of by the defendant and therefore he asked for damages for the use and occupation of these premises. I have also gone through the rent deeds and I do not find that these portions were included in the demised premises and in my opinion these premises were not governed by the Delhi and Ajmer Rent Control Act. The word 'landlord' as defined in Section 2(a) of the Act is as follows :
' landlord' includes any person who for the time Being is receiving or is entitled to receive the rent of any premises, whether on his own account or as an agent, trustee, guardian or receiver for any other person, or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant.'
and the 'tenant' is defined in Section 2(d) of the Act which is as follows :
' 'tenant' means a person who takes on rent any premises for his own occupation or for the occupation of any person dependent on him but does not include a Collector of rents or any middleman who takes or has taken any premises on lease with a view to subletting them to another person.'
Reading these two together and also taking into consideration the preamble of the Act, it is quite clear to me that the Act is not applicable to the portions which have been forcibly taken possession of and of which the defendant is a trespasser and not a tenant. It was therefore not open to the Court acting under the Rent Control Act to order eviction of the tenant in this case from the portions trespassed upon.
5. As the only ground taken for eviction of the tenant was non-payment of rent and the rent was paid at the very first hearing, I am of the opinion that the tenant was not liable to be evicted. If there is any claim in regard to damages (sic) that could be taken into consideration in this suit.
6. I therefore allow this revision make the rule absolute, set aside the judgment and decree of the Courts below and dismiss the suit with costs throughout.