R.S. Narula, J.
1. A two storeyed building including some shops on its ground floor bearing municipal Nos. 2228-30 in Katra Baggian, Amritsar, was evacuee property and subsequently vested in the Central Government in pursuance of a notification issued under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 44 of 1954. Dewan Chand, defendant-respondent (hereinafter referred to as the tenant) was a lessee of shop No. 2229/1 in the above-said property under the District Housing and Rent Officer-cum-Managing Officer. The entire property was transferred to the plaintiff who was in occupation of the residential portion of its first floor under Section 20 of the Compensation Act. The property was valued at Rs. 9,851. Out of the said sale price of the property, Rs. 6,188.13 were recovered from the plaintiff by adjustment of the compensation payable to him against his verified claims. By an agreement, dated 14-6-1963 the balance of Rs. 3,662.87 was undertaken to be paid by the plaintiff in seven instalments. On July 25, 1963 after the execution of the above-said agreement for the payment of the balance, the Managing Officer wrote letter Ex. P-1 to the tenant which is in the following words:--
'Property No. 2228-30/1 has been transferred to Shri Gulzari Lal. You should attorn in his favour and pay rent in future to him at Rs. 5 p.m., w.e.f. 1-10-55.
A sum of Rs. nil is due from you on account of arrears of rent upto 30-9-55 (the date of transfer of property). You will not be entitled for the special protection from ejectment under Section 29 of the D. P. (C. and R.) Rules, 1954, unless you clear the arrears of rent within 60 days from that date of the transfer of the property. You should, therefore, if nonclaimant deposit the amount in cash or if claimant produce the documents to provide that your rent arrears on the date of transfer do not exceed the net compensation payable to you.'
2. Exhibit P-l is the original signed copy of the above-said communication which was endorsed by the Managing Officer to the plaintiff-appellant, who, as stated above, is the intended transferee of the property in question. On or about 18-1-1964 the tenant remitted a sum of Rs. 300 by money order to the plaintiff.
3. The admitted coupon of that money order has been proved in this case and has been marked as Ex. P-3. On that coupon the tenant wrote as follows:--
'Mablag tin sad rupayia babat kiraya dukan No. 2229/1 waqia katra Baggian Amritsar arsal hai. Rasid se mutla karen.'
4. Translated into English it would read as follows:--
'A sum of Rs. 300 on account of rent of shop No. 2229/1 situated in Katra Baggian, Amritsar is remitted. Please acknowledge receipt.'
5. This money order was admittedly received by the plaintiff-appellant on or about 31st January 1964. On March 3, 1964 the plaintiff instituted a suit for ejectment and for recovery of Rs. 200 as the alleged balance of rent due to him for the period 1-10-1955 to 31-1-1964 at the rate of Rs. 5 p.m. against the tenant. While claiming Rs. 200 for the above-said period of 100 months the plaintiff had given credit to the tenant for the sum of Rs. 300 which he had remitted by money order, Ex. P-3.
6. The suit was contested by the tenant From the pleadings of the parties the trial Court framed the following eight issues:--
1. Whether the plaintiff has locus standi to bring the present suit ?
2. Whether the defendant had accepted the plaintiff as his landlord and had paid a sum of Rs. 300 to him out of the arrears of rent of the disputed shop as alleged in the plaint?
3. Whether the defendant is a tenant under the plaintiff in respect of the premises in dispute w.e.f. 1-10-55 ?
4. Whether the civil Court has jurisdiction to entertain the present suit ?
5. Whether any valid notice under Section 106 of the Transfer of Property Act had been duly served upon the defendant before the institution of the present suit ?
6. Whether the plaintiff is entitled to recover Rs. 200 as arrears of rent?
7. Whether the suit is within time ?
7. By judgment, dated 22-9-1964 the trial Court decided all these issues in favour of the plaintiff except the one relating to the quantum of rent and decreed the suit for ejectment and for payment of Rs. 170 (instead of Rs. 200 claimed by the plaintiff) on the ground that 34 months rent for the period ending February, 1964 was proved to be within time. Against the decree for ejectment, the tenant filed an appeal. This appeal was disposed of by the Court of Shri Sarup Chand Goyal, Senior Sub-Judge, Amritsar, on 24-11-1964. It was the finding of the trial Court on issues Nos. 2 and 3 alone which was questioned by the tenant before the first appellate Court. The finding of the trial Court on these issues was reversed by the learned Senior Sub-Judge on the ground that the instant case was distinguishable from Roshan Lal Goswami's case, 1963 Pun LR 852: (AIR 1963 Punj 532), on the ground that there was no evidence to prove the transfer of provisional possession in favour of the plaintiff in this case and on the further ground that the plaintiff had not yet paid the entire sale price to the Government. The learned Senior Sub-Judge further purported to hold that there was no evidence of the tenant having attorned in favour of the plaintiff. The ground on which the first appellate Court held that there was no attornment was that no overt act except mere payment of rent was attributed to the appellant and that the property being still evacuee property for want of execution of a conveyance deed, the plaintiffs were not owners of the property and the District Rent and Managing Officer had no authority to issue the letter of attornment as contained in Ex. P-1.
8. In this second appeal against the above-said judgment and decree of reversal by the learned Senior Sub-Judge, Amritsar, it has been contended by Shri Harbans Lal Sarin, the learned Senior Advocate appearing for the plaintiffs that the lower appellate Court was clearly in error in holding that the District Rent and Managing Officer had no authority to issue the letter of attornment. The learned counsel appears to be correct in this submission. The Managing Officer has all the powers of managing the property in the compensation pool under Section 17 of the Compensation Act. Moreover the letter of attornment issued by the Managing Officer has been held to authorise the intended transferee to file a suit for ejectment in an ordinary civil Court even prior to the issue of a sale certificate or a conveyance deed in favour of the intended transferee by a Division Bench of this Court in Roshan Lal Goswami v. Gobind Ram, 1963 Pun L R 852: (AIR 1963 Punj 532). The question of law, which was referred to Division Bench by Khosla, C. J. in that case, was in the following words:--
'....quite apart from the fact that the plaintiffs could fall back upon the ordinary law in the present case a Division Bench should consider the point whether an auction-purchaser of evacuee property, who has not yet obtained a sale certificate, but to whom the occupier has attorned, can under the ordinary law maintain a suit for ejectment.'
After discussing the case law on the subject the Division Bench answered the above-said question referred to it in the following words:--
'The question referred to the Division Bench must be answered in the affirmative. I am, therefore, of the view that an auction-purchaser of evacuee property, who has not yet obtained sale certificate but to whom the occupier has attorned, can, under the ordinary law, maintain a suit for ejectment.'
9. The only question that, therefore, calls for determination in the circumstances of this case is whether the Managing Officer had or had not the authority to attorn the tenant to the plaintiff before the full payment of the price of the property in question and before granting a safe certificate in respect thereof. In Roshan Lal Goswami's case, 1963 Pun LR 852: (AIR 1963 Punj 532), the Bench held in this connection as follows:--
'Reference to the above provisions relating to the powers and limitations of the managing officers serves no useful purpose in these proceedings, as the managing officer has already parted with possession to the auction-purchaser and has asked the tenants to attorn to the transferee. The rights and obligations formerly of the Managing Officer henceforward are of the auction-purchaser in possession.'
10. If things had rested with the above judgment, I was inclined to allow this appeal without any further trouble. Chaudhri Rup Chand, the learned counsel appearing for the respondent has pointed out that the correctness of the above-said observations in Roshan Lal Goswami's case, 1963 Pun LR 852: (AIR 1963 Punj 532), was doubted by a subsequent Division Bench (Dua and Mahajan, JJ.) while deciding Letters Patent Appeal No. 139-D of 1963 (Punj), Attar Lal v. Lakhmi Dass and Co. In the note appended by Dua, J. to that judgment, after discussing the above-said observations of Tek Chand, J. in Roshan Lal Gaswami's case, 1963 Pun LR 852: (AIR 1963 Punj 532), Dua, J. held as follows:--
'The sentence mentioned above must, in our view, be considered in the context of that case and confined to the question directly before that Bench. It does not represent the ratio of that decision.'
11. In Attar Lal's case, L. P. A. No. 139-D of 1963 (Punj), Mahajan, J. held as follows:--
'Letting is a positive act and mere acquiescence or acceptance of the existing state of affairs will not, in law, amount to letting. There could be letting only if the tenancy created by the Government had been determined by the plaintiff and thereafter he had leased out the premises to the respondents or had accepted the respondents as tenants by his conduct. In the present case, there was no determination of the tenancy created by the Managing Officer in favour of the respondents. All that has happened is that instead of paying rent to the Managing Officer they were required by the Managing Officer to pay rent to the plaintiff. The position of the plaintiff is that of a nominee who receives rents from the tenants at the behest of the owner; because till the sale certificate is granted the property in law still belongs to the Government. Merely because the right to receive rent has been transferred by the owner will not lead to the conclusion that the person to whom such a right has been transferred becomes the owner of the premises and thereby becomes entitled to let them out......
This matter can be viewed from another angle. Till a sale certificate is granted, there is nothing to prevent the Managing Officer from countermanding his directions asking the tenants to pay rent to the transferee of provisional possession, i.e., the plaintiff.....'
12. In Attar Lal's case, L. P. A. No. 139-D of 1963 (Punj), the question, which had arisen was whether the purported tenancy, which continues in favour of a tenant of the Managing Officer after the sale in favour of an auction-purchaser or an allottee of the property forming part of the compensation pool before the transfer of rights of ownership could be called 'lawful letting' for the purpose of deciding whether the protection afforded by the Delhi Rent Control Act, 59 of 1958, extended to the property in spite of its being still property belonging to the Government. The Division Bench (Dua and Mahajan, JJ.) held that unless the original tenancy created by the Managing Officer was determined and a new tenancy created by a contract between the original tenant of the Government and the intended transferee, there could be no 'lawful letting.'
13. If that view is correct the plaintiffs cannot eject the tenants in the instant case. As observed by Dua, J. in the note appended to the judgment of Mahajan, J. in Attar Lal's case, L. P. A. No. 139-D of 1963 (Punj), this shows a conflict between the view of Tek Chand, J. in Roshan Lal Goswami's case, 1963 Pun LR 852: (AIR 1963 Punj 532), and of Mahajan, J. in Attar Lal's case, L. P. A. No. 139-D of 1963 (Punj). That is why Dua, J, observed that some passages in Roshan Lal Goswami's case, 1963 Pun LR 852: (AIR 1963 Punj 532), should be confined to the facts of that case alone.
14. The question that there is a conflict between the views expressed by Tek Chand, J. in Roshan Lal Goswami's case, 1963 Pun LR 852: (AIR 1963 Punj 532), and by Mahajan, J. in Attar Lal's case, L. P. A. No. 139-D of 1963 (Punj), came up for consideration in Ram Parkash v. Sunder Das, 1965 Pun LR 558. In view of the fact that the tenant in that case had been inducted by the intended transferee himself, who had not yet obtained a sale certificate, Mehar Singh, J. observed that even if the judgment in Attar Lal's case, L. P. A. No. 139-D of 1963 (Punj), was correct the landlord would be entitled to eject the tenant in that litigation because Mahajan, J. had left the field open for a case where a new tenancy had been entered into after the attornment of the tenant to the prospective transferee. Pandit, J. appended a note to the judgment of Mehar Singh, J. in Ram Parkash's case, 1965 Pun LR 558, wherein the learned Judge observed as follows:--
'So far as this matter is concerned, there are two Division Bench decisions of this Court, The first is 1963 Pun LR 852: (AIR 1963 Punj 532), decided by Falshaw, C. J. and Tek Chand, J. on 21-2-1963. The other is L. P. A. No. 139-D of 1963, decided by Dua and Mahajan, JJ. on 4th May 1964 (Punj). According to the former, a person in possession can transfer his possession to another by lease and thereby create a relationship of lessor and lessee or landlord and tenant despite the fact that the rights of ownership had not been acquired so far by the transferor. The vesting of ownership rights of a landlord, according to this authority, is not a sine qua non of the relationship of the landlord and tenant. The latter authority, however, has taken a contrary view. According to this, the possession of such a person is that of a nominee, who receives rent from the tenants at the behest of the owner (Government), because till the sale certificate is granted, the property in law still belongs to the Government. Merely because the right to receive rent has been transferred by the owner will not lead to the conclusion that the person to whom such a right has been transferred becomes the owner of the premises and thereby becomes entitled to let them out. This authority further goes on to say that whatever rights such a person has are subject to the control of the Managing Officer till the grant of the sale certificate. In the very nature of things, there can be no question of such a person getting any right to let out the premises. It is argued by the learned Counsel for the appellant that Attar Lal's case, L. P. A. No. 139-D of 1963, dated 4-5-1964 (Punj), was distinguishable, because therein the premises had already been let by the Government and there had been no letting as such by the transferee after he had obtained the provisional possession of the property and the only change that had come about was that the tenants let in by the Government had stayed on and instead of paying rent to the Government, they started paying it to the transferee. It was submitted that during the course of the judgment, the learned Judges had observed that letting was a positive act and mere acquiescence or acceptance of the existing state of affairs did not in law amount to letting. In the present case, the respondent had, admittedly, let out the premises to the appellant and on that account Attar Lal's case, L. P. A. No. 139-D of 1963, dated 4-5-1964 (Punj), had no application. It is true that there was this distinction regarding the facts, but the point still remains that the learned Judges had clearly and unequivocally laid down in that authority the proposition of law which I have already set out above. That, undoubtedly, runs counter to the one mentioned in Roshan Lal Goswami's case, 1963 Pun LR 852: (AIR 1963 Punj 532). It is noteworthy that in Attar Lal's Case, L. P. A. No. 139-D of 1963, dated 4-5-1964 (Punj), the effect of the proviso to Section 3 was also considered. If this decision has to be followed, then under no circumstances could these premises be lawfully let by the respondent to the appellant and, therefore, the proviso to Section 3 would not be attracted. If, on the other hand, Roshan Lal Goswami's case, 1963 Pun LR 852; (AIR 1963 Punj 532), is followed, then the respondent could create a lawful tenancy in favour of the appellant. In this state of law, the only proper course, in my opinion, was that this matter should have been settled by a larger Bench.'
15. After going through the record of the instant case and hearing the learned counsel for both sides I have reached the following conclusions:--
1. That the property in question was part of the compensation pool and vested in the Central Government and the Central Government itself continues to be the owner of the property so long as conveyance deed or sale certificate in respect thereof is not granted to the plaintiffs.
2. That Dewan Chand was a tenant of the Central Government through the Managing Officer and has been attorned by the Managing Officer to the plaintiff as a tenant and Dewan Chand, defendant has accepted that position by voluntarily paying out part of the rent of the premises due to the plaintiff.
3. That actual physical possession of the first floor of the building was already with the plaintiff and symbolic possession of the shop in dispute was given to the plaintiff as evidenced by letter P. 1. Provisional possession of the entire property was given by the Managing Officer to the plaintiff. I have given this finding on a consideration of Ex. P-1 and the evidence of the official of the office of the Managing Officer who has said that the property was provisionally transferred to the plaintiff.
4. That relationship of landlord and tenant could come into existence between the plaintiff and the tenant even without rights of ownership being acquired by the plaintiff.
5. That on account of a notification under Section 3 of the East Punjab Rent Restriction Act, the protection of that Act would not be available to the tenant in this case till execution of a sale-deed of the property in favour of the plaintiff.
16. As stated above, if nothing had happened after the judgment in Roshan Lal Goswami's case, 1963 Pun LR 852: (AIR 1963 Punj 532), I would have accepted this appeal land decreed the suit for ejectment of the defendant. The ratio of the judgment in Roshan Lal Goswami's case, 1963 Pun LR 852: (AIR 1963 Punj 532), about the powers of the Managing Officer and about the effect of the Managing Officer attorning an existing tenant to an intended transferee having been doubted, it remains to be decided whether in such circumstances the intended transferee can without determining the previous relationship between the Central Government and the old tenant and without creating a new tenancy proceed to eject him or not. This is extremely doubtful if the judgment in Attar Lal's case, L. P. A. No. 139-D of 1963, dated 4-5-1964 (Punj), is correct. This is, however, unexceptionable if the judgment in Roshan Lal Goswami's case, 1963 Pun LR 852: (AIR 1963 Punj 532), is correct. In view of this divergence of opinion on one of the crucial questions involved in the above-said two judgments of two different Division Benches of this Court, I think, it is but proper to direct that the papers of this case may be placed before my Lord, the Chief Justice to consider the advisability of the following questions being referred to a Bench of at least three Judges so as to resolve the conflict between the above-said two Division Bench judgments of this Court:---
1. Whether before the grant of a sale certificate the Managing Officer can bestow on an intended transferee of the property from the compensation pool the right to deal with a tenant in matters other than for the recovery of rent and particularly for ejecting a tenant from the premises intended to be transferred to such a landlord by merely attorning a tenant to the intended transferee.
2. Whether the erstwhile tenancy under the Government, which continues as a result of attornment of the tenant by the Managing Officer can be called lawful letting by the intended transferee so as to entitle him to terminate the lease and eject the tenant.
17. The learned counsel for the appellant states that the property is in a somewhat dilapidated condition and the appellants are liable to suffer by the delay in the disposal of the appeal. I, therefore, direct that after the constitution of the larger Bench the case may be placed before that Bench as early as possible.