Tek Chand, J.
1. This Civil Revision and five other cases, R. S. A. 146-D of 1961, R. S. A. 162-D of 1961, R. S. A. 163-D of 1961 R. S. A. 164-D of 1961 and R. S.A. 165-D of 1961, can conveniently be disposed of by one order as the question of law, which was referred by Khosla C. I. to a Division bench is the same. The relevant passage from the order of reference is, as under :
'I, therefore, direct that 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.'
It was directed that this matter be placed before a larger Bench and if there were any other petitions of a similar type pending they may also be put up for hearing before the same Bench so that the counsel appearing in those petitions might have, if they so chose, an opportunity of representing their views before the Court. The facts of each casein certain particulars are different and as we are merely answering the question of law under reference, these cases will be disposed of by a Single Judge on their respective merits in the light of the answer which is being given by this Bench.
2. In all these cases, the plaintiffs were landlords who had instituted suits for the ejectment of their respective tenants, contending that the premises were required for their own use and the tenants had defaulted in making payment of rent. The suits were resisted by the tenants on the ground that a case for their eviction was not made out under the Rent Control Act, (Act 38 of 1952).
3. In Civil Revision No. 157-D of 1959, the defendant had denied being a defaulter or that the premises were required by the Landlords bona fide for their own use and occupation. A question was also raised that the landlords had no right to institute the suit and that the same was premature. In this case, the following issues were framed:
'1. Whether the plaintiffs have the locus standi to bring this suit?
2. Whether the defendant is liable to ejectment from the suit premises on the ground given in the plaint?
3. Is the suit of the plaintiff premature?
The property in this case--as also in other cases --was acquired by the Government of India under the Central Act 44 of 1954. The house was put up for sale by auction and the plaintiff in question was the highest bidder. After the purchase in auction, the Managing Officer addressed the parties stating that with effect from 14th of December, 1956, the Tent should be paid by the tenant to the auction-purchaser. The sale certificate had not yet been issued. Notices were given by the landlords to the tenant that the respondent was a defaulter in payment of rent and the house was required bona fide by the plaintiffs for their-own use. In these cases, the Managing Officer had addressed a communication to the tenants in the following form:
'No: XIII/D/1669, Government of India. Ministry of Rehabilitation, Office of the Additional Settlement Commissioner,Jamnagar House, New Delhi. Dated: the 19-3-1959.
Sub:-- Provisional Possession of Property No: XIV/352-54/291-93 Sold on -----in-----
Whereas it has been decided to give provisional possession of the above said property to Shri-Attar Lal S/o Murli Dass -----R/O----- the auction purchaser of the property, you are hereby directed to pay rent to him and deal otherwise with him direct with effect from 20-2-1959.
(2) You are further advised, in your own interest, to pay arrears of the previous period immediately to this office to avail yourself of the protection from ejectment in terms of the Provisions contained in Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, read with the relevant notification in this behalf, failing which you may render yourself, liable to eviction.
A copy of this communication was also sent to the auction-purchaser for information. The details of the property, the name of occupant and the monthly rent were given below.
4. Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, gave special protection from ejectment to certain classes of persons in lawful occupation of the property which has been transferred to another persona under the provisions of this Act. Such a person is deemed to be a tenant of the transferee on the same terms and conditions on which he was holding the property under the Central Government. This protection is, however, conditional on his not contravening the conditions given in the section. For facility of reference, Section 29 is given below in extenso :
'29. Special protection from ejectment to certain classes of persons.--(1) where any person to whom the provisions of this section apply, is in lawful possession of any immovable property of the class notified under Sub-section (2), which is transferred to another person under the provisions of this Act, notwithstanding anything contained in any other law, such person shall, without prejudice to any other right which he may have in the property, be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held the property immediately before the transfer:
Provided that notwithstanding anything contained in any such terms and conditions no such person shall be liable to be ejected from the property during such period not exceeding two years as may be prescribed in respect of that class of property, except on any of the following grounds, namely:
(a) that he has neither paid nor tendered the whole amount of arrears of rent due after the date of the transfer within one month of the date on which a notice of demand has been served on him by the transferee in the manner provided in Section 106 of the Transfer of Property Act, 1882, (IV of 1882) :
(b) that he has, without obtaining the consent of the transferee in writing :
(i) sublet or otherwise parted with the possession of the whole or any part of the property, or
(ii) used the property for a purpose other than the purpose for which he was using it immediately before the transfer :
(c) that he has committed any act which is destructive of, or permanently injurious to, the property.
(2) The Central Government may, from time to time by notification in the official Gazette, specify the class of persons to whom, and the class of immovable property in the compensation pool, other than agricultural land, in respect of which, the provisions of this section shall apply and in issuing any such notification the Central Government shall have regard to the following matters, that is to say :
'(a) the length of the period for which any such persons may have been in lawful possession of the property.
(b) the difficulty of obtaining alternative accommodation :
(c) the availablity of any other suitable residential accommodation for the use of the transferee; and
(d) such other matters as may be prescribed:,'
5. In the plaint, plaintiffs claim themselves to be the owners of the house as auction-purchasers and that they had been put in provisional possession and the defendant had been intimated to attorn to the plaintiffs and to pay rent to them. In the written statement, the plaintiffs' claim to ownership was denied and it was said that they were not yet the owners. It was admitted that the defendants had been tendering rent to the plaintiffs and on plaintiffs' refusal rent had been deposited in the Court of the Administrative Sub. Judge.
6. The contention of the landlords has been that since the sale certificate had not been issued in their favour, they had not become complete owners of the property and their rights were governed by the ordinary law relating to landlords and tenants as contained in the Transfer of Property Act. The main ground advanced by the landlords in support of their claim was that the tenants had attorned to them and there was the relationship of landlord and tenant between them. In that view of the matter, the landlords contested, they were entitled to a decree for ejectment as they had served upon the tenants a notice terminating the tenancy in accordance with the ordinary law and had asked them to vacate the premises within a month. They were, therefore, entitled to eject their tenants and to recover vacant possession.
7. The first question, which arises under reference, is whether the ordinary law is open to a person who has not yet become a complete owner of the property by issue of sale certificate in his favour. In Bombay Salt and Chemical Industries v. L. J. Johnson, AIR 1958 SC 289 which was also a case under the Displaced Persons (Compensation and Rehabilitation) Act, 1954, it was held that where in respect of the sale by auction of property of the class notified under Section 29(2) it is not shown that the sale certificate was issued to the highest bidder, nor that the balance of the purchase-money had been paid, it must be held that there has till then been no transfer of the property sold at the auction and the benefit of Section 29 could not be availed of. Rule 90 of the statutory Rules provides elaborate procedure for the sale of property by public auction and one-of the requirements is that when the purchase price has been realised in full from the auction-purchaser, the Managing Officer shall issue to him a sale certificate, in the specified form. Till such sale certificate is issued to the highest bidder and till the balance of the purchase money has been paid, rights of ownership do not vest in the auction-purchaser and the proprietary rights, therefore, do not stand transferred by the mere fact that the bid of the auction-purchaser being the highest has been accepted. Transfer of ownership depends on the conditions of the auction. In this case, the transfer has not taken place and, therefore, the provisions of Section 29 are not attracted. The protection from ejectment can be availed of where the immovable property is transferred to another person under the provisions of the Act. Apparently, there is a lacuna in the Act as the transitional stage after the acceptance of the highest bid at the auction and till the sale certificate is granted has not been visualized. The pro-lection applies against the transferee but not against the highest bidder at the auction who in contemplation of the formalities has been given provisional possession. The time lag between the acceptance of the bid of the auction-purchaser and the giving of the sale certificate may in conceivable cases be considerable.
8. After provisional possession has been given, the auction-purchaser, even though he does notpossess proprietary rights, has possessory rights. He has the right of possession which can exist independently of ownership. Possession and ownership may co-exist but in a number of cases a person may be the owner of a thing and not possess it; and conversely, a person may be the possessor without being the owner. A person, who is a possessor but not the legal owner, is entitled to certain rights by virtue of his possession alone. Thus, a person in possession may transfer his possession to another by lease and thereby create a relation of lessor and lessee or landlord and tenant, despite the fact that the rights of ownership have not been acquired so far by the transferor. The vesting of ownership rights in a landlord is not the sine qua non of relationship of landlord and tenant. Thus, a person having possession of land without yet being its owner can allow that land to be occupied by a tenant giving rise to creation of mutual rights and obligations as between the lessor and lessee. One of the chief duties of the tenant is to pay rent while he is in the beneficial enjoyment of the premises. If a tenant is evicted, he is released from the obligation to pay rent, or if he commits default in payment of rent, he is liable to be evicted. This is generally so, apart from special statutory inhibitions against eviction.
9. One of the important incidents of this relationship is, that a tenant is estopped from denying the validity of his landlord's title unless he first surrenders possession to him. When a lessee is sued for rent, he cannot escape payment by taking the plea of want of title in the lessor. To this general principle, there are, however, well known exceptions which are not relevant for purposes of these cases e.g., the termination of lease, or acquisition by the lessee of a title paramount or the relationship having been vitiated by fraud or mistake. The element of ownership does not enter in the creation of a lease which confers upon the lessee the benefit of occupation and profits of lands and tenements and in exchange the lessor is recompensed by rent, payable in cash or kind.
10. It is true that an owner of a thing has ordinarily the right of possession, unless it has been parted with expressly. A mere possessions without ownership is also protected by law, tho man in possession has a right to stay in possession, and where he has been deprived of it, except by the rightful owner, to be restored to possession. Just as jus possidendi is the right of the owner to possess, jus possession's is the right of the possessor to continue in possession. On course, there always are degrees of possession depending upon the relationship of a person to the thing under his control Highest degree of possession is imputed to the person who considers himself, rightly or wrongly, to be the owner of the thing held by him. In the lower rung of possession are lessee of land, a mortgagee, a borrower, a pledgee or a servant entrusted with the property of his master, A higher degree of control was called by the early civilans possessio and it was a lower degree of control when possession was on behalf of another, 'alieno nomine possidere'. The later civilians called the lower degree of possession by the name of detentio (vide Jurisprudence by Holland Page 199). In the case of a mere detention, as by a servant, lessee or bailee, there is, a recognition of the outstanding right of the other person, that is the lessor or bailer. The possession of the former is merely derivative. Law has given possessory remedies to persons in possession of land or who have the custody of thing regardlessof their title. To a limited extent, law protects even wrongful possession. A lessee who derives bis right to occupy the land of the lessor cannot question the latter's title or, in other words, he cannot set up a better jus tertii. Not even an owner can apparently disturb the possession of a person who is unlawfully there. The well accepted principle, that a tenant is estopped from denying the validity of his landlord's title, is based upon sound public policy, the reason being, that the tenant acquired his tenancy rights either because he has been inducted on the land by the landlord or that he has acknowledged the landlord's title by accepting the demise. A man in possession can exercise all the proprietary rights against everybody, except the rightful owner. The welt known attributes of title being jus utendi right of user, jus fruendi right to the fruit, jus disponendi right to transfer or dispose of the thing, jus vindicandi the power to assert in a Court of law a right in or to a thing. These rights come under three heads of possession, enjoyment and disposition. In the words of Holland, 'of the right to possess, little more need be said than that it includes, 'jus vindicandi.' The right to claim or challenge or to attorn as one's own, is available to a person entitled to possession as much as to a person claiming superior title of ownership. This leads to the inevitable conclusion that a person having such a status, as landlords in the instant case, can claim recovery of possession from a tenant, who commits, a breach of his tenancy obligations, subject, of course, to a statute which may bar the remedy of ejectment. Such a person's right to the remedy is not taken away simply because the landlord has not yet perfected his title to complete ownership.
11. At this stage, the effect of attornment may be considered. The word 'attornment' means to 'turn over' or to transfer to another. Under early Feudal Law in England the term was used when a Lord transferred the homage and service of his tenant to a new lord. In modern law, attornment signifies an acknowledgement or agreement by a tenant with the person to whom he is attorning as his landlord. On the alienation of land from the one landlord to another, the former tenant agrees to become the tenant of the new landlord. One of the modes of creating relationship of landlord and tenant is by attornment by the tenant
'when a person is already in occupation of property, the relation of landlord and tenant may be established between another person and himself by attornment. He who is in occupation attorns tenant, i. e. acknowledges that he is a tenant to him who is to be landlord. Where the occupier is a tenant and agrees to hold of a new landlord during the currency of the agreement without any change in the terms of the tenancy, this is a mere attornment....... Attornment estops thetenant from disputing the landlord's title,' (Vide Hill and Redrnsn's Law of Landlord and Tenant, Eleventh Edition, page 5.)
Upon an attornment taking place, the tenant continues to hold upon the same terms as he held of his former landlord. During the continuance of the relationship of landlord and tenant, the latter is estopped from denying the former's title. This doctrine has not merely antiquity in its support, but is founded on public policy and public convenience, and has for its basis good faith between landlord and tenant. Actual possession being of vital importance, the tenant is not allowed to trifle with the right of the landlord by questioning the latter's title. The estoppel does not rest on the validity of the landlord's title. It exists despite the landlord not having any title at all. Thus, the effect of estoppel cannot be avoided by saying that the landlord did not have any colour of title. The estoppel endures during the currency of the relationship of landlord and tenant, and the tenant is released from the estoppel only on surrendering possession to the landlord. A tenant, cannot question the character or the extent of the landlord's title or his power or capacity to lease the property. A tenant, cannot contend that the landlord is not the owner, or the sole owner of the demised premises, or that he is a mere trustee. These principles are embodied in Section 116 of the Indian Evidence Act. There is ample authority for the proposition that a tenant who: has been let into possession cannot deny his landlord's title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord. In the instant case, at the binding of the former landlord, i. e. the Government, the plaintiff, pending finalization of the sale, was given provisional possession and the tenant was asked to attorn to the plaintiff. After the attornment, the relationship between the contending parties is that of landlord and tenant regardless of the fact that the ownership rights have not yet vested in the landlord. The inchoate ownership is not a legal bar to the plaintiff exercising the rights of landlord against the tenant, and to the former, the remedy permitted by law against the tenant e. g. eviction cannot be denied on the ground of imperfect title because of the inchoate purchase.
12. The next question is, whether the protection, given to the tenant from eviction, under the Rent Restriction Act, avails, in a case like the present. Section 3 of the Delhi Rent Control Act, 1958, which is similar in wording as Section 3, of Delhi and Ajmer Rent Control Act of 1952, provides :--
'Nothing in this Act shall apply : --
(a) to any premises belonging to the Government or :
In so far as the ownership still vests in the Government and not in the auction-purchaser, the above provisions are attracted and, therefore, the provisions of Delhi Rent Control Act, 1958, cannot be invoked by the tenant in order to prevent his ejectment. If Delhi Rent Control Act is not applicable, then the Law applicable is the ordinary law, the principles of which are embodied in the Transfer of Property Act. Outside the Transfer of Property Act, there is no other provision upon which the tenant can lean in order to avoid the recovery of possession by the landlord. Section 19 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, gives certain powers to the managing officers regarding variation and cancellation of leases, subject to the provisions of the statutory rules. According to Rule 102 of the Displaced Persons (Compensation and Rehabilitation) Rules, a managing officer may in respect of the property in the compensation pool entrusted to him terminate a lease, where the lessee has sublet or parted with the possession of the property leased, or has used property for a purpose other than that for which it was leased, or has committed any act of waste, or for any other sufficient reasons to be recorded in writing. In all these cases, the lessee has to be given a reasonable opportunity of being heard, Reference to the above provisions, relating to thepowers 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.
13. This case, it is true, presents an anomaly. A tenant has certain protection under the Delhi Rent Control Act, where the premises do not belong to the Government. There are also some safeguards under Rule 102 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955, which a tenant can avail of if his eviction is sought by the Managing Officer. But in these proceedings which cover a transitional stage -- e. g. after the possession has been delivered to the auction-purchaser but before he becomes owner in the eye of law as he has not yet got the sale certificate--can it be said to be the intention of the legislature to take away all protection from the tenant against his ejectment? In construing statutes, it is a fundamental rule that the Courts have to find out the legislative intent. The rules of construction and interpretation of statutes are in the nature of guides for discovering the legislative intent. The question of probing into the legislative mind, will only arise, where the language, by reason of ambiguity leaves room for doubt as to the meaning of the words in the enactment. It is not unoften that there is a divergence between legislative purpose and the legislative meaning. The legislative purpose of Rent Control Acts, including Delhi and Ajmer Rent Control Act, 1952 and Delhi Rent Control Act, 1958, is to control the rents and to protect the tenants against eviction except in eventualities expressly provided in the Act. The Rent Control Acts and the rules made thereunder, override other laws to the extent of inconsistency therewith. So as far as the specific provision is concerned Section 3(a) of the Delhi and Aimer Rent Control Act 1952, excludes the operation of the Act in regard to any premises belonging to the Government. It was, therefore, not the legislative purpose to provide for the control of rents and evictions regarding lands belonging to the Government. Despite the sale of the land to the auction-purchaser, his title has not been perfected as the sale certificate has not yet been given. It is the purpose of the Act to control evictions of tenants provided the land belongs to the Government. It will be stretching the language of Section 3 if it were read to mean, that the Act shall not apply to any premises of which the landlord is the Government. The only difference that has now been made in the status of the auction-purchaser, is, that though the premises in the eye of law still belong to the Government, the Government has ceased to be the landlord.
14. To my mind, it is a case not so much of construction of the statute as of casus omissus. So far as the language of Section 3 is concerned, it is unambiguous. As the premises belong to the Government, in the sense, that the ownership is not transferred to the auction-purchaser, the Act cannot be held to apply. To give a different meaning to Section 3, would be tantamount to invasion by the judiciary on the powers of the legislature. The Court must also hesitate in substituting their opinion for the intent of the legislature. This is a case where the transitional stage was not in contemplation of the law makers, and therefore,no provision is made for the gap between the transfer of provisional possession to the auction purchaser, and the transfer of title to him on the delivery of the sale certificate. The only safe rule for ascertaining the legislative intent is to be found in the words the legislature has chosen to employ; and an attempt to get at the legislative meaning aliunde is fraught with risks. Where the meaning of the statute is plain, need for construing the words does not arise, and the statute, must be given the literal interpretation. The Courts set upon themselves the task of discovering the legislative intent where the words create doubt and admit of more meanings than one. For that purpose, the Courts resort to the relevant rules of construction.
15. It appears to be a case of an omission in a statute which cannot be supplied by construction. Even assuming that it was not the purpose of the Act to deprive the tenants of the auction purchaser, who had not yet become a complete owner, of the benefit of the Act which controls rents and evictions, the Court cannot supply the: lacuna, left by the legislature by inadevertence. Sometimes it happens, that legislature has not been able to foresee the missing case. The Courts, by supplying the omission in an Act of legislature, would be travelling far afield, and it would be open to serious objection, when the Courts deviate front their real function of construction and enter upon legislation which is obviously outside their purview. The Courts cannot say to themselves that through oversight the legislature has failed to provide for a particular situation and, therefore, what was not done by the legislature may be done by the Court. This does not lie within the judicial field. If the meaning of the statute is sensible without the omitted word, Courts will not be justified in making interpolations. The general rule in all such cases, is that a Court may interpret doubtful or obscure phrases in a statute so as to give effect to the presumed intention of the legislature and to carry out what appears to be the general policy of the law. Courts cannot by construction cure a casus omissus, however, just and desirable it may be to supply the omitted provision; and it will make no difference, if it appears that the omission on the part of legislature was a mere oversight; and even if there be no doubt, that the Act would have been worded otherwise, if the attention of the legislature had been drawn to the oversight at the time of the passing of the Act (vide Statutory Construction by Crawford page 272). I do not think it is possible for the Court to deflect from its course on the specious plea that the interpretation would cause hardship and suffering to the tenants and that the law as propounded, is not in tune with recent trends. In such a contingency, the hardship of the law should not be a consideration for the Courts but only for the legislature. The Courts are guided by the logic of the law where construction admits of no doubt; and for the hardship the relief can only be given by the Legislature. Romer, J. in Davies v. Parry, (1899) 1 Ch D 602 at p. 605, said :
'What I desire to point put is that I wish the law was not so but that being the law, I must follow it.'
Similarly, Lord Esher M. R. In Re Perkins, (1890), LR 24, QBD 613 at p. 618, said:
'I agree that is the law, though I think it is a hard law; but we have nothing to do with the question of hardship.'
In similar strain, Lord Coleridge, C. J. said :
'A Court has no right to strain the law be-cause it causes hardship.' (Body v. Halse, (1892) 1 QB 203 at p. 207.
A century earlier than the above cases, Buller, J. in Yates v. Hall, (1785) 1 Term Rep 73 at p. 80, remarked:
'All arguments on the hardship of a case, either on the one side or the other, must be reject-ed, when we are pronouncing what the law is; for such arguments are only quicksands in the law;and, if indulged, will soon swallow up every principle of it.'
16. If the language is unambiguous and not susceptible to more than one construction, the Court has no alternative but to accept the construction even if it appeared that if the legislature was alive to the question before the Court, it would have in all logic made a provision for such an event. In their search for the legislative intent, it will not be correct for the Courts to change the meaning of the statutory text. If there is scope, the Courts try to avoid a construction which may lead to injustice or oppression or which may turn out to be contrary to public interest, but the Court is helpless where the language employed is clear, leaving no room for flexibility. As long ago as 1584 Lord Coke formulated the rule which still remains the keystone. He said in Heydon's case, (1584) 76 ER 637, (at p. 638):
'And it was resolved by them, that for the full and true interpretation of all statutes in general(be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered : 'Ist. What was the common law before the making of the Act? 2nd. What was the mischief and defect for which the common law did not provide? 3rd. What remedy the Parliament hath resolved, and appointed to cure the disease of the commonwealth? And 4th. The true reasons of the remedy. And then the office of all the judges is always to make such construction as shall suppress the mischief, advance the remedy, and to suppress subtle invention and evasions for continuance of the mischief, and pro private commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the act pro bono publico'.
The above rule has been reformulated, expanded, restricted, explained and rephrased but the basic objective of judicial interpretation has remained the same. The gist of the principle is that a clear and unambiguous statute is not subjected to statutory interpretation. Lord Greene, M.R. in In ReA Debtor, (1948) 2 All ER 533 (at p. 536) said :
'......and if there is one rule of constructionfor statutes and other documents, it is that youmust not imply anything in them which is inconsistent with the words expressly used.'
The result of legislative omission, assuming it tobe inadvertent, may be unfortunate, and in the words of Craise 'a statute may not he extendedto meet a case for which provision has clearly and undoubtedly not been made' The Judicial Committee in Carawford v. Spooner, 6 Moo PC 1(at pp. 8 and 9).
'We cannot aid the legislature's defectivephrasing of the Act, we cannot add, and mend, and, by construction, make up deficiencies whichare left there.'
The above observation was cited with approval by the House of Lords in Howard De Walden v. Inland Revenue Commrs., (1948) 2 All ER 825. Iam persuaded by the above reasoning not to construe Section 3(a) of the Delhi and Ajmer Rent Control Act, 1952, in a manner so as to add an exception in the case of auction-purchasers to whom sale certificate has not yet been issued. The decision of the Supreme Court in AIR 1958 SC 289, leaves no room for doubt that an auction-purchaser in the condition of the present landlords is not transferee of the property sold at the auction.
17. 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 a sale certificate but to whom the occupier has attorned, can, under the ordinary law, maintain a suit for ejectment.
18. By this judgment, only the question referred to the Division Bench is being answered. It will be for a learned Single Judge to decide this and other connected cases on their respective merits in the light of the above answer.
Falshaw, C. J.
19. I agree.