5. shad Gupta before the Rent Controller. That Petition was founded on two grounds: (1) non-payment of rent and (2) sub-letting of premises. The Additional Controller by his order dated March 12, 1968 dismissed the petition. Rent was paid. thereforee, that ground did not survive. Sub-letting was held not proved.
6. Against the order dismissing the Petition the landlord went in appeal to the Rent Control Tribunal. On May 7,
1988 the appeal was filed. As it happened the tenant Shiv Perahad died on July 30, 196& The landlord thereforee
'withdrew the appeal on Sept. 12. 1968. His counsel made a statement before the Tribunal that as nothing devolved heirs of the tenant he would like to withdrew the appeal. The appeal accordingly dismissed as withdrawn.
7. On Nov. 2, 1968, the present suit for Possession and mesne Profits was brought, as I have said. The plaintiff's case in the plaint is that Shiv Pershad Gupta was his tenant, that his tenancy was terminated by a notice to quit; that as Shiv Pershad became a- statutory tenant his heirs have no right to rein in possession of the premises. It is I'd that the defendants' possession being unauthorized the landlord is entitled to a decree for possession and mesne profits; this in substance is the claim.
8. The defendants contest the suit on a variety of grounds. The principal defense is that the defendants being the heirs of Shiv Pershad Gupta have inherited the tenancy and are entitled to continue as tenants. Other references have also been raised. The defendants defense is reflected in the following issues framed on Aug. 20, 1975.
1. Whether the plaint is properly valued for purposes of court-fee and jurisdiction?
2. Can the defendants challenge the valuation in view of the agreed valuation fixed by the Court of Commercial Sub Judge, Delhi ?
3. Had the tenancy of Shri Shiv Pershad Gupta been terminated, if so, its effect ?
4. Was Smt. Anchi Bai tenant of the plaintiff ?
5. Is the plea of the defendants covered by issue No. 4 barred by principles of rest judicata ?
6. Was any tenancy created by the plaintiff in favor of t he defendants after the death of Shri Shiv Pershad Gupta?
7. At what rate is the Plaintiff entitled to recover rent/mesne profits and for what period ?
8. is the Plaintiff entitled to the condensation/exclusion of the Period 2-1119U to 11-12-1972 in computing the period of limitation ?
9. What is the effect of the Property being in slum area on the present suit ?
9. Issues 1 and 2: These two issues need not detain us. In the Court of the Commercial Sub-Judge the valuation question was raised. It was settled by agreement. The defendants and their counsel made a statement '(P-7) agreeing to Rs. 51,000/- as the value of the shop. To this the plaintiff Goels agreed. The Local Commissioner appointed for the purpose of determining the valuation consequently made his report (F-8) Or the basis of the agreement On Sept I8 1971, the Court made an Order (P-9) fixing Its. 51,000/- as the value of the suit. The subordinate Judge directed the plaintiff to make up the court-fee which the plaintiff did The defending objected to this Procedure. They came in revision to this Court. In reviser the defendants contended that the Court had no jurisdiction to make an Order for payment of the court-fee. P. S. Safeer J. decided that the proper course was by return the plaint. On Dec. 11, 1972, the plaint was returned, and it was refiled in this Court.
10. I do not think the objection to the valuation of the suit is any longer open to the defendants. The Plaintiff had orginal1v valued the suit at Rs. 3,7261- for the relief of possession. The defendants objected to it Both the parties a9reeA that the correct valuation will be Rupees 51,000/-. The Court adopted it and passed an order. The defendants can challenge an order to which they had agreed, though it was passed by the Court of the Commercial Sub-Judge and not this Court. But that in my opinion win not make any difference. I hold that the question of valuation is concluded. The defendants can no longer object to the valuation of the suit.
11. Issues I and 2 are thereforee decided against the defendants.
12. Question Of CO-ownerSERP: This question is not put in issues as it was raised at a late stage. Counsel addressed arguments as I allowed it to be raised.
13. During, the pendency of the suit in this court the defendants made an applications on Jan. 21, 1917 Ua 293 of 1977) raising an objection to the Plaintiff Mohan Lal Goela's right to Me the suit as a sole Plaintiff. The objection is that in the suit originally instituted m Nov. 2, 19', the plaintiff claims himself to lee the sole owner of the property. According to the defendants Goela's will be his three sons are also co-owners of the suit property. It is said that the plaintiff is not the sole owner but Gow M owner to the extent of 1/5th sham The plaintiff admits that with effect from March 18, 1969 be, his wife and three sons have been shown as CO-owners. each having the e share and that he made statement to this effect before the Income-tax and Municipal authorities. The plaintiff contended that as a co-owner he is he is entitled to file the suit. He also moved an application for leave to amend Out plaint. I allowed the plaintiff to suit Plaint. The mile of Goela and his three sons have now been joined as the plaintiffs to the suit. They have adopted all the proceedings taken by Mohan Lal Goela as there is no dispute inter between the parties regarding this property.
14. The defendants' contention is that the joinder of the plaintiffs is not bonafide and that the suit is not maintainable. On Nov. 2 1963, when the suit the plaintiff Mohan Lal Goela the sole plaintiff Now it is contended that he could not bring the suit alone. Assuming, that he is a co-owner of the property, as is maw the admitted Mohan Lal Goela in my opinion had a right to bring the suit in his own name and was entitled to continue it without impleading: his wile are sow. A co-owner is as much an owner of the property as any sole owner Of the property as, Jurisprudentially it is not correct to say that a co-owner of a Property is not its owner. He owns every Port of the composite property alone with others and it cannot be said that is only a part owner or a fractional ovum of the property. The position will only change when partions takes place. It is thereforee not possible to accept the submission that the plaintiff Mohan Lai Goel is who is admitted the landlord and the co-owner of the property is not the owner of the premise& It is not necessary to establish that the Plaintiff is the only owner of the Property as long as he is a co-owner of the property being at the same time the acknowledged landlord of the tenant.
15. The defendant's contention cannot be accepted. Firstly, the plea pertains to the domain of the frame of the suit as if the suit is bad for non-joinder of the other plaintiffs. Such a plea should have been raised for whatever it is worth at the earliest opportunity. It was said it was raised on Jam 27, 197-7:U55' means of an application It was that the plaintiff has partitioned the property and that the plaintiff was not the sake owner of the property. In his reply the plaintiff Mohan Lai admitted that before the income-tax often made a statement that his wife and his three sons had interest in the property besides himself. But be denied that any partition was executed. On March 2, 1977, the plaintiff Mohan Lal Goela made an application under 0. 1, R. 10, Civil P. C. that he may be allowed to join his wife and three sons. I allowed this application on April 25, 1977. The Plaintiff has amended his plaint. The defendants have filed their fresh written statement to the amended plaint.
16. Secondly, the relation between the parties being that of landlord and tenant, only the landlord could terminate the tenancy and institute the suit for eviction. Shiv Pershad the tenant could not have denied that the landlord had no title to the premises at the commencement of the tenancy (See S. 116 of the Evidence Act). Under the general law in a suit between landlord and tenant the question of title to the leased property is irrelevant. The suit cannot be thrown out on account of non-impleading of other co-owners as such. There is no dispute that the plaintiff is the landlord. The defendants acknowledged this position. It was only on Jan. 21, 1977 that they pleaded that besides the Plaintiff, his wife and sons also had interest in the property. The plea that one co owner cannot sue for eviction even if the other co-owners have no objection is entirely without force. Mohan Lal Goela was admittedly the landlord of the premises. Shiv Pershad Gupta was admitted his tenant till his (Shiv Pershad's) tenancy was terminated. Mohan Lai Goela was thereforee entitled to institute the proceedings. The absence of other co-owners on record did not disentitle Mohan Lal Goela from suing. That this is the position in law has now been established beyond doubt by the two decisions of the Supreme Court: See Sri Ram Pasricha v. Jagannath, : 1SCR395 and Smt Kanta Goel v. B, P. Pathak, : 3SCR412 .
17. Counsel for the defendants referred me to a number of authorities in support of his submission that the suit by Mohan Lai Goela was not competent. I need not notice those authorities as the legal position has now been established beyond doubt by the two recent decisions of the Supreme Court to which I have made a reference. In any event now that the wife and sons have been imp leaded, the objection does not survive. I would thereforee hold that the present suit is properly constituted.
18. Issues 4 and 5: The defendants claim that An-chi Bai was a tenant of the plaintiff Mohan Lal' Goela. But in
the course of arguments, Mr. R. K. Makhija, learned counsel for the defendants, did not press these issues. Anchi Bai's claim was abandoned. Apart from this Anchi Bai's claim cannot be pressed in view of judgment of the Commercial Stib-Judge dated April 29, 1955 (R-3). In a suit instituted on June 4, 1954 Anchi Bai claimed that she was the tenant in the premises. The claim was rejected by the Court. The suit was dismissed. The judgment dated April 29, 1955 will operate as rest judicata. I would thereforee decide these Issues 4 and 5 against the defendants.
19. Issues 3 and 6: These are the central issues in the case. The first question is: Was the tenancy of Shiv Pershad Gupta terminated? If so how and to what effect
20. The tenancy in question was created in 1948. The rent note (13-18) dated December 18, 1948 executed by Shiv Pershad Gupta in favor of Mohan Lal Goela establishes it. On -Sept. 4, 1959, Mohan Lal Goela served a notice of increase of rent (P-19). The receipt of this notice, though it is denied in the pleadings, clearly stands acknowledged as the defendants in their list of reliance dated Feb. 14, 1974 themselves re1v on the 'letter dated 4-9-1959 for increase of rent from Mohan Lal Goela and Mohd. Yakub to Shiv Pershad of S. S. Gupta and Co..' This figures at item No. 15 in the list. Mohd. Yakub was the co-owner of the property and later on his interest m the property was purchased by Mohan Lal Goela. As a result of the notice the rent of the shop was increased from Rs. 270/- Per month to Rs. 310.50 poise per month.
21. On March 17, 1964, Mohan Lal Goela throuoh his counsel Shri H. S. Tyagi, Advocate served a notice to quit (P-12) on Shiv Pershad. by this notice the tenant's tenancy was determined. Shri H., S. Tyagi has appeared in the witness box to Drove the notice. That this notice was served on- the tenant Shiv Pershad is not open to doubt as his counsel Shri D. N. Raizada Advocate sent a reply to the notice on April 24, 1964 (P-13). Sbri Daya Narain Raizada has appeared in the witness box. He admitted that reply (P-13) was sent by him. He was also a counsel in the ejectment suit instituted on Aug. 22, 1964 by Mohan Lal Goela against Shiv Pershad. The I written statement was signed by Mr. Raizad.a and his clients Shiv Pershad Gupta and Smt. Anchi Bai. P-5 is the
certified copy of the reply to the ejectment application dated November 19, 1964.
22. The notice of termination of tenancy is dated March 17, 1'964. It is addressed to Shiv Pershad Gupta. It says that Shiv Pershad Gupta is a tenant under Mohan Lal Goela and Mohd. Yakub on a monthly rent of Rs. 270/- per month, that the tenancy commenced on lst of every calendar month and ends on the last date of that month. It further says that Mohan Lal Goela has purchased 1/3rd share of Mohd. Yakub on Aug. 24, 1961 and consequently Mohan Lal Goela was the landlord and entitled to recover the entire amount of rent. It also refers to the notice of increase of rent dated Sept. 4, 1959. Then a claim for rent is made. At the end it is said:
'Your tenancy is thereforee terminated and you are called upon to vacate the premises on 30-4-1964.'
23. The notice gives clear 30 days to the tenant to vacate the premises. It expires with the end of the month of tenancy. It is a valid notice. It complies with the requirement of S. 106 of the T. P. Act. Its service on the tenant was duly proved. The tenancy stood determined on the service of the notice in the manner provided by S. 111(h) of the T. P. Act. This meant the determination of the tenant's contractual interest. He became a statutory tenant. Till his death Shiv Pershad enjoyed the statutory protection.
24. In reply dated April 24, 1964 (P-13) sent by Shri D. N. Raizada, Advocate it was not disputed that Shiv Pershad Gupta was the sole proprietor of S. S. Gupta and Co. and tenancy was from month to month according to the English calendar.
25. Now the only objection raised to the validity of the notice is that this notice has exhausted itself as ejectment proceedings were brought on its basis before the Rent Controller on Aug. 22, 1964. Counsel says that this notice having 'been availed of once by the landlord it cannot be the basis of fregh proceedings in the present suit. It will be recalled that the Additional Rent Controller dismissed the ejectment petition on March 12, 1968. It is urged that the eviction case against Shiv Perghad Gupta having been dismissed by the Rent Controller the notice under S. 106 of the T. P. Act was exhausted and that a fresh suit requires a fresh notice. In this connection I was referred to Makhanlal v. Mst. Chandrawati, : AIR1976All321 Per Gopinath J. In that case the learned Judge observed (at P. 322 of AIR):
'The suit against Behari Lal havinR been dismissed by this court a notice under S. 106 of the T. P. Act ceased to have effect; see Halsbury's Laws of England, Third Edition, Volume 23. page 410, where the law has been stated thus:
If a landlord's application for possession fails, his notice determining the tenancy ceased to have effect.'
26. It was argued in that case that the earlier suit against Behari Lal for ejectment instituted after serving a notice terminating his tenancy having failed no fresh suit against the defendants could be filed without terminating their tenancy afresh. The 1earned Judge accepted this contention. He said (at p. 322 of AIR):
'I find force in this contention. The suit against Behari Lal having been dismissed by the Court the notice under S. 106 of the T. P. Act ceased to have effect.'
27. The learned Judge relied upon Shakir Hussain v. Siraj Beg, : AIR1974All193 in support of this view.
28. I respectfully dissent from this view. Once a valid notice is served it is never exhausted. No law says that a notice is exhausted if the proceedings end in failure. The tenancy once determined is determined for ever. The landlord and the tenant may come together again and may by agreement, express or implied continue the relationship of landlord and tenant. That is another thing but the doctrine that a notice is exhausted is in my opinion unknown to the law of India as laid down in the T. P. Act. As Shah J. in Calcutta Credit Corporation v. Happy Homes Ltd., : 2SCR20 said:
'Once a notice is served determining the tenancy or showing an intention to quit on the expiry of the period of the notice the tenancy is at an end, unless with the consent of the other party to whom the notice is given the tenancy is agreed to be treated as subsisting.'
29. Section 13 of the T. P. Act contemplates waiver of the notice by any act on the Part of the person giving! it, if such an act shows an intention to treat the lease as subsisting and the other party gives his consent--express or implied-therefor.
30. Once a valid notice is given, the tenancy will inevitably be determined upon its expiration. The parties can waive the notice. The Party to whom notice is given is entitled to insist upon it and it cannot be withdrawn without the consent of both. The consent of the parties makes a new agreement. The parties can nullify the operation of the notice as to quitting, by agreeing upon a new tenancy, whether on the terms of the former or not, to commence from the time of its expiration.
31. The proposition enunciated in Halsbury's Law of England is based on the statute law of that country. The statute law of England says that if landlord's application for possession fails his notice determining tenancy ceases to have effect. The foot-note (f) at page 410 refers to the Landlord and Tenant Act (1954), S. 14(3). In Halsbury's Statutes of England (3rd Edn.), Vol 18 this Act is reprinted at page 726. The relevant provision is as follows -
'If before the expiration of the said period the landlord has made an application under the last foregoing section, but the result of the application, at the time when it is finally disposed of is that no order is made the landlord's notice shall cease to have effect ... ... ... .....
32. thereforee, the proposition laid down in Halsbury's Laws of England (3rd) Ed., Vol. 23, p. 410 is inapplicable to India unless we have a similar statutory provision. If there is one thing certain in Indian law it is this, the notice is not exhausted.
33. I would thereforee hold that the notice dated March 17, 1974 validly terminated the tenancy of Shiv Pershad Gupta and the notice was not exhausted by reason of the fact that earlier eviction petition was dismissed.
34. The defendants also plead an agreement with Mohan Lal Goele and say that he agreed to accept them as his tenants. The defendants have -produced one Basant Kumar in support of the settlement. Basant Kumar D. W. I has deposed that 'his shop is situated next to the shop of S. S. Gupta and Co, and in his presence there was a settlement. His words are:
'There was a talk between Mohan Lal Goela and Shiv Shankar and his elder brother sometime in the end of 1968 regarding rent. At that time M/s. S. S: Gupta & Co. were paying rent at the rate of Rs. 270/- per month. Mohan Tel Goela wanted rent to be increased to Rs. 350/- per month. All the four or five, of us sat together and decided that the rent should be increased to Rs. 310/- per month. Some Payment vms also made through cheque. The cheque was given to Mohan Lal Goela by Shiv Sihankar'.
35. 1 am not prepared to place any reliance on the testimony of this witness. He is also a tenant under Mohan Lal Goela and proceedings against him have been filed by the landlord and are pending before the competent authority (slum) this is not denied. In his cross examination the witness admitted that the defendants did not obtain any receipt from Mohan Lal Goela for the rent paid to him. The defendant Shiv Shankar has also deposed about the settlement. He said that he agreed to pay Mohan Lal Goela at the rate of Rs. 310/- with effect from August 1, 1968. In his evidence he stated:
'I paid rent to the plaintiff up to 31st October 1968 at the above rates. I had issued him a cheque drawn on National and Grind lays Bank Ltd. That was a payee's account cheque. I had handed over that cheque to the plaintiff. I came to know from the hank officials that the Plaintiff had deposited that cheque in his account in the bank. The amount (A that cheque was debited to my account in the Bank. I never -withdrew that amount from the bank. Nor any reverse entry was made in respect of that amount. No request regarding making a reverse entry in respect of that -amount was made to my bankers.'
36. The settlement is sought to be Proved with the help -of a cheque for Rs. 2010/- dated Oct. 1,0, 1%9. This cheque was deposited in the account of Mohan W Goela in the Union Bank of India on Nov. 8, 1968. The namely was credited to his account on Nov. 9, 1AW8. When Goela came to know of cheque he wrote to his bankers an Nov. 2, 1970 that this cheque has been deposited in his account without his consent. The plaintiff Goela in his basement ban denied that there was any talk regarding settlement between him and the defendants in the presence of Rasant. He also denies the receipt of Rl 2,010/- from Shiv Shankar.
37. What appears to me Is that the defendants deposited the cheque in the account of Goela in the Union Bank without his knowledge and consent. Often the plaintiff came to knew of it he raised an objected.He protested in
writing to the bank. He refused to accept the champ. There was correspondence. The entry was later an reversed by the Bank.
38. I cannot accept the theory of settlement for the simple reason that from 1954 litigation has been going on between the parties and thereforee there was no question of the recognition of the defendants as his tenants. Anchi Bai Wed suit in 1954. In 1964 Goela launched eviction proceedings against Shiv Perskuid before the Rent Controller. These came to an end in 1968. The landlord wanted to fight to the bitter end. In the Tribunal he declared that he will have his remedy elsewhere. Then he opened smother front.
39. On the slender evidence of a solitary witness Basant Kumar it is difficult to accept that a settlement took place The plea of settlement is bogus. On October 10 it is alleged that there was a settlement The cheque for Rupees 2010/- is also dated Oct. 10, 196& It appears to have been deposited in the Union Bank on Nov. 9, 196& Merely deposit the cheque is not a recognition of a subsisting tenancy. What is important to note is that there is no write to wove the settlement. No receipt was obtained The entry in Goela's account was ultimately reversed. This shows that the story of settlement is spurious.
40. Mere acceptance of amounts equivalent to rent by a landlord from a tenant in possession after a lease had been determined by a notice to quit and who enjoys statutory immunity from eviction because of the Rent Act cannot be regarded as evidence of a new agreement of tenancy. If the tenant asserts at the landlord accepted the rent not statutory tenant but only as legal rent indicating his assent to the tenant's continuing in possession, it is for the tenant to establish it. See Bhawanji Lakhanisbi v Himatlal Jamnsdas, : 2SCR890 . n the facts of this case the defendants have failed to establish that the landlord assented to the creation of a new tenancy
41. Now I turn to the central question Involved in the case. The chief issue is: Do the heirs of the tenant .Shiv, Pershad Gupta inherit the tenancy rights in law
42. The Delhi Rent Control Act M9 of I' was passed in 1958 In 1976 It was amended. The Parliament passed' the
Delhi Rent Court (Amendment) Act 1976 which received the assent of the President on Feb. 9, 1976. The Statement of Objects and Reasons says.-:-
'There had been a persistent demand for amendments to the Act of 1958 with a view to conferring a right of tenancy on certain heirs/successors of a deceased statutory tenant so that they may be protected from eviction by the landlords'.
43. As the Parliament was not in session the Delhi Rent Control (Amendment) Ordinance, 1975 was promulgated on December 1, 1975. On Feb. 9, 1976 the Delhi Rent Control (Amendment) Act,1976 (Act 18 of 1976) replaced the Ordinance.
44. Section 2 of the Principal Act defined a tenant. The Amending Act broadened the scope of the definition so as to include the following persons within the definition of tenant.
(b) son or daughter, or where there are both son and daughter, both of them,
(d) daughter-in-law, being th6 widow of his pre-deceased son as had been ordinari1v living in the premises with the tenant as a member or members of his family up to the date of his death.
45. The amending S. 2 is a long section. It has three Explanationns; Explanationn I regulates the order of succession. Explanationn 11 deals with the case of a successor not financially dependent on the deceased person at the time of his death. Such a successor is given the right to continue in possession for a limited period of one year after the termination of the tenancy.
46. Then comes Explanationn 111. This Explanationn is rather important. It confers right on the enumerated successor to continue in possession after the termination of the tenancy.
47. The Explanationns show that the right of a successor to continue in possession after the termination of the tenancy is severely limited. It lays down,
'(1) A successor of the same category can continue in possession if the right of a member of his class to continue in -possession after the termination of the tenancy is extinguished. For example if , his death, the son's right to continue in possession is extinguished the -daughter can succeed. Both of them are of the 'same category'.
(2) If there is no other successor of the same category the right to continue in Possession is extinguished and does not pass on to any other successor specified In any lower category.
(3) The right of every successor mentioned in Explanationn 1, to continue in possession is personal and, on the death of the successor, does not devolve on his heirs.'
48. The object of the amendment is to widen the definition of tenant. It confers a right on certain persons mentioned in Explanationn I to continue in possession after the termination of the tenancy of the tenant.
49. It comes to this A tenant includes a person continuing in possession after the termination of his tenancy. Though his tenancy is terminated in one of the modes mentioned in S. 111 of the T. P. Act the Act of 1958 confers protection to him. During the lifetime he cannot be evicted on the ground that his tenancy has been terminated. The Rent Act protects him. He can be evicted if he is in breach of the statutory conditions enumerated in S. 14.
50. On his death the right of the tenant to continue in possession after the termination of the tenancy comes to an end. The right was personal and did not devolve on his heirs. This is what is understood by the term statutory tenancy. This meant that on the death of the tenant his heirs had to vacate. -This worked hardship. There was a cry, loud and clear, for changing the law.
The Act of 1958 was amended 'with a view to conferring a right of tenancy on certain heirs1successors of deceased statutory tenant so that they may be protected from eviction by landlords'. This is the avowed object of the amendment.
51. The amendment extends the protection to heirs and successors. But it is a restricted protection. It is not unlimited. There are several limitations on the right conferred by the amendment.
52, Firstly the heir must not be financially independent. If e.g he was not financially dependent on 'the deceased tenant he has a right to continue in possession only for a limited period of one year.
53. Secondly only these four class' of heirs (a) the surviving spouse, (b) son or daughter, (c) parents and (d) widowed daughter-in-law of a predeceased son have been conferred the right to continue in Possession.
54. Thirdly in the order of succession spouse succeeds to the exclusion of son or daughter. Son and daughter will exclude the parents. The parents will exclude the daughter-in-law. The first category excludes the second and so on.
55. Fourthly if there are two successors of the same category and one of them was financially independent and the other was financially dependent on the deceased then the one financially independent will enjoy the right to continue in Possession for one year but the financially dependent one will enjoy the right to continue in possession for his lifetime Provided he belongs to the f1same category' to which the financially independent successor belonged. Take for instance son and a daughter. The son, if financially independent, will extol the right for one year. But the daughter if financially dependent will have the right to continue in possession for her life.
56. Fifthly the successor the surviving spouse, son, daughter, parents, daughter in-law should 'ordinarily live in the premises with the deceased person as a member of his family up to the day of his death' in order to be entitled to right to continue in possession.
57. Sixthly if no successor of a category has enjoyed the right and there is no other successor of the same category the right to continue in possession comes to an end and does not pass on to the successor. in the lower category.
58. Seventhly, the right of a successor is personal to him and does not extend beyond the lifetime of the successor. It does not devolve on his heirs.
59. Eighthly the Amending Act is retrospective in operation. The draftsman of the Act has chosen to achieve its retrospective effect by the use of the word 'deem'. It is a well known drafting tool that he has used. He has made it plain by express language in one of the key definitions in the Act.
60. The Act provides for limited habitability. It is in a limited sense that the right to tenancy is conferred on cer14n successors of a deceased statutory tenant. It is not quite correct to call it 'a right to tenancy' as the Statement of Objects and Reasons describes it. It is no more than 'the right to continue in possession after the termination of the tenancy', -to use. the- words of the statute. The 'successor' is not a tenant in the sense that he has an estate. He has merely personal right of. occupation.
61. Now an important question at law arises. Does this definition of tenant apply on1j, to residential premises or to -both residential or non-residential? It appears to me that this definition applies only to residential Premises or perhaps to residential-cum-commercial. The reason is two-fold. Firstly it lays down that the specified successor in order to qualify to be entitled to the right to continue in possession must be such,
'as had been ordinarily living in the Premises with such person as a member or members of his family up to the date of. his death ... ... ..
62. The words 'in the premises' are quite expressive. They are clearly suggestive of the intent of the legislature viz. to confer a right to continue to live in the premises. Similarly the words 'ordinarily living' are a clear pointer. Of commercial Premises it cannot be predicated that one had been 'ordinarily living in the premises' with the deceased tenant as 'a member of his family.' The two expressions (1) 'living, in the premises' and (2) as a 'member of the (tenant's) family' give us a clear indication of the legislative intendment.
63. The same expression 'ordinarily live in the premises as a member of the family of - the deceased person up to the date of his death' has been used in Cls. (c) and (d) of Explanationn I. This reinforces the conclusion I have come to.
64.y second reason for this conclusion is that what the Amending Act seeks to confer is a mere right to continue in possession after the termination of the tenancy. But to continue in Possession of what It is 'the right to continue in possession' of those very premises where the specified successor was living with the deceased tenant as a member of his family up to the date of his death. The argument that 'the right to continue in possession' extends to another and different premises in absurd. .Take a case. The son was ordinarily living with the father (the tenant) of the premises as a member of his family up to the date of his death. The son has a right to continue in possession if he satisfies the conditions of the Explanationns. But he cannot claim that the tenancy of the. commercial premises of his father also devolves on him.
65. Suppose the son was not financially dependent on the deceased father. In that case his right to continue in Possession is for a limited period of one Year. This clearly refers to the residential premises. It cannot conceivably ',refer to the non-residential premises. The proposition that the son will have a right to continue in possession for one year in the commercial premises is reductio ad absurdum. This demonstrates that such a Position is impossible to maintain when carried to a logical conclusion.
66. In order to protect the members of the family residing with a tenant, the provision of Section 2 of the Act were amended. The amended provision lays down the manner of devolution of statutory tenancy. On the death of the statutory tenant it devolves on the enumerated members of the tenant's family as had been 'Ordinarily living in the premises with such person as a member or members of his family up to the date of his death'. This requirement clearly has reference to the premises which were occupied by the tenant and in which the member of the tenant's family was residing with the tenant 'up to the date of his death' * Section 2 cannot possibly apply to the case of premises which were used by the tenant as business premises and of which it cannot be predicated that the member of the tenant's family was residing with the tenant up to the date of his death Why should the legislature prescribe the requirement that the member should be residing with the tenant at the time of his death if the Legislature wanted to protect the member of a tenant's family in respect of a business premises There is no nexus between the requirement of the residence of the tenant's family with the tenant at the time of his death and creation of a statutory tenancy in respect of business premises in favor of such member.
67. The legislature is not prepared to go the whole hog. It passed the Amendment Act in 1976. The concept of statutory tenancy was administered by the Courts in what may be called as Chemicallv pure state for nearly two decades. Ever since the decision of Mehr Sinah.J. in Nihal Ohand v. Shiv Narain, the doctrine was applied with unmitigated rigour.
68. After 18 years the legislature has introduced a measure of reform. But it is a half-hearted measure. It is a half way house, a house made of I've insufficient statutory straw' to use a phrase of Scrutton L. J. (Keeves v. Dean .(1923) 93 Lj Kb 203 . Rating the residential accommodation higher than the place of business in the order of priorities the legislature has refused to take the tenant of commercial premises under its protective wings. Such in effect is the result of the amendment.
69. To sum up; the extension of statutory protection is confined to residential premises and, perhaps, to residential-commercial premises but does not ensure to the benefit of a tenant of a commercial premises. On a plain reading of the amended section this appears to me the proper interpretation. H. L. Anand, J. has also taken this view (See Smt. Gulab v., Ram Kishan Doss 1977 Ren Cr 217 .
70. The amending Act confers a, protected status on specified heirs. The State by statute has imposed restrictions on landlords who wish to terminate tenancies as it has imposed restrictions on the termination of contracts of employment.
71. Strong reliance was placed by the defendants' counsel on Damadi Lal v. Pares Ram, : AIR1976SC2229 . It is of the highest importance that Damadi Lal's case should be examined to see what law it lays down. There the landlords determined the tenancy of their tenants and thereafter filed a suit for eviction under S. 12(1)(a) and (f) of the Madhya Pradesh Accommodation Control Act 1961 on the ground of non-payment of rent and bona fide requirement. The trial Court dismissed the suit. On appeal the suit was decreed. The tenants appealed to the High Court. During the -pendency of the second appeal both the tenants died and their legal representatives were brought on the record. The High Court allowed the appeal setting aside the decree of the lower appellate Court and restoring that of the trial Court dismissing the suit. The landlords appealed to the Supreme Court. On their behalf it was argued that both the tenants were statutory tenants and on their death the right to prosecute the appeal did not survive to the legal representatives. The Supreme Court rejected this contention and held that the statutory tenant under S. 2 W of the M. P. Act 'retains an interest in the premises and not merely a personal right of occupation.'
72. This decision must be read as confined to the M. P. Act. It cannot be extended to other statutes. If the setting and framework of an Act clearly indicate a contrary intention, the reasoning of Damadi Lal's case : AIR1976SC2229 will not apply. Their Lordships were at pains to point out that in each case the relevant statute has to be examined and it has to be seen 'what his (statutory tenant's) rights are under the statute' (P. 2234). The provisions of an Act may convey a 'contrary intention' (P. 2235), Referring to the notion of statutory tenancy as understood in the English Rent Act the Court warned:
'In our opinion it has to 'be ascertained how far these notions are reconcilable with the provisions of the statute under consideration in any particular case'.
73. Dealing with the M. P. Act, the statute in question before it, the Court said :
'It is thereforee necessary to examine the provisions of the Madhya Pradesh Accommodation Control Act, 1961 to find out whether the respondent's predecessor in-interest retained inheritable interest in the disputed premises even after the termination of their tenancy' (P. 2235).
74. The concept of a statutory tenant is now well understood, Time and again it has been said that the statutory tenant has no estate or property as tenant at all, but has a merely personal right to retain possession of the property, The Supreme Court in Anand Nivas Pvt. Ltd. v. Anandji Kelyanjis Pedhi, : 4SCR892 , observed as follows:-
'A person remaining in occupation of the premises let to him after the determination of or expiry of the period of the tenancy is commonly though in law not accurately, called 'a statutory tenant'. Such a person is not a tenant at all. He has no estate or interest in the premises occupied by him. He has merely the protection of the statute in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other condition of the tenancy. His right to remain in possession after the determination of the contractual tenancy is personal: it is not capable of being transferred or assigned and devolves on his death only in the manner provided by the statute. '
And again at p. 426:
'A statutory tenant has-no interest in the premises occupied by him and he has no estate to assign or transfer ... .. ... A statutory tenant is as we have already observed, a person who on determination of his contractual right, is permitted to remain in occupation so long as he observes and performs the conditions of his tenancy and pays the standard rent and permitted increases. His personal right of occupation is incapable of being transferred or assigned, and he having no interest in the property. there is no estate on which sub-letting may operate.'
75. Anand Nivas : 4SCR892 was followed in Calcutta Credit Corporation v. Happy Homes Ltd. : 2SCR20 and J. C. Chatterjee v. Sri. Kishan Tondbn, : 1SCR850 . Palekar J. in J. C. Chatterjee's case (supra) said (at p 2528):
It is now settled that after the termination of the contractual tenanev the statutory tenant has onlv a personal right to continue in possession till evicted in accordance with the provisions of the Act.'
76. In Damadi Lai : AIR1976SC2229 their Lordships referred to their own previous decisions in Anand Nivas : 4SCR892 and J. C. Chatterjee : 1SCR850 . These decisions, have not been overruled. Ainand Nivas was a decision of three Judges. So was Calcutta Credit Corporation : 2SCR20 . So is Damadi Lal. The Supreme Court is not bound by its previous decisions. This is now clearly established. It can overrule its previous decisions if it finds them wrong or unjust. A larger bench can always do that. The -Supreme Court has not reversed Anand Nivas and J. C. Chatterjee. Following those two cases I would hold that the incident of a statutory tenancy is that the statutory tenant has only a personal right or privilege. It is nothing more than a status of irrmovability conferred by the statute. Statutory tenancy close not vest in the heirs unless the statute confers the right to pass it on to heirs. The incident of the contractual tenancy on the other hand is that the tenant retains an interest in the premises and not merely a personal right of occupation. The contractual tenancy vests in the heirs an death of the tenant. I am, thereforee, of the view that Anand Nives and J. C. Chatterlee are good law and binding on us. Following Anand Nivas case I would hold that Shiv Pershad Gupta was a statutory tenant and on his death the rights in the tenancy did not devolve on his sons or daughters. So long as he was alive he was Protected by the. statute.
77. Anand 'Nivas Jatr 1965 SC 414 considered the Bombay Rent Act, 1947 as amended in 1959. J. C. Chatteriee's case : 1SCR850 was concerned with the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. The statute considered in Damadi Lal : AIR1976SC2229 (supra) was M. P. Act, 1961. Here we are concerned with the Delhi Rent Control Act, 1958 as emended in 1976.
78. As was observed in a leading Canadian case 'there is always a perspective within which a statute is intended to operate' (Roncarelli v. Duplessis (1959) Scr 122 per Rand J.). The reasoning of Damadi Lalls case : AIR1976SC2229 cannot be applied to the Delhi Rent Act as amended. Here the perspective is different 'Me Amendment Act of 1976 clearly and unambiguously indicates a contrary intention. The legislature in the Amendment Act has made the statutory tenancy heritable to a limited extent. This is so in relation to residential premises. The limited habitability has not been extended to commercial premises. There the original concept of statutory tenant v continues to apply entirely unaffected by the recent amendment. This shows that the legislature was anxious to give relief by 'conferring a right to tenancy on certain heir successors of a deceased statutory tenant that they may be protected from eviction by landlords' in cases of residential premises but was 'not prepared to do same thing for the tenants of commercial premises. Why? It is not for this
Court to answer. The legislature in its. wisdom was prepared to go only that far and no further. The statute is the will of the Legislature. By enacting the Amendment Act the legislature has expressed its will in an unequivocal manner. The intention of the legislature is to be gathered by placing the statutory tenant of a residential premises in juxtaposition to the statutory tenant of a commercial premises. The legislature has conferred a right to continue in possession on certain heirs of the former; while it has not conferred any such right on the heirs of the latter. In residential premises the statutory tenancy has a limited transmissibility in commercial premises has none whatsoever. The legislature has left us in no doubt about this.
79. The concept of statutory tenancy Means different things in different statutes. A statutory tenant is a hybrid creature. It is a new animal in the legal bestiary. Not unjust1v has the statutory tenancy been called 'monstrum. horrendum' (See Damadilal's case (Supra) : AIR1976SC2229 ). It has been described as a 'jurisprudential curiosity' and the statutory tenant himself has been described as 'an anomalous legal entity' (Meggary-Rent Act 10th Edition P. 199). The modern tendency of trying to legislate in detail for everything results in Acts of unbelievable complexity. The latest example is the Rent Control Amendment Act of 1976.
80. This then is mv conclusion. The reasoning of Damadi Lal's case : AIR1976SC2229 (supra) does not apply to the Delhi Rent Act as there is a contrary intention indicated in the Amendment Act of 1976. The legislature has given relief to the statutory tenant of the residential premises. None to the statutory tenant of commercial premises. It is against this background that the Delhi Rent Act has to be construed. In the light of the Amendment Act 1976 it has to be understood. One can find the general purpose and policy of the Act by reading it as a whole in the light of the circumstances which existed when it was passed or of the mischief which it must have been intended to remedy.
81. The reasoning of the majority in Anand Nivas : 4SCR892 (supra) applies to the statutory tenant of the commercial premises. He has no estate or interest in the premises occupied by him but only a personal right to remain in occupation. As Shah J. said -
'His personal right of occupation is incapable of being transferred or assigned ... ... .....
82. It was urged upon me that the Provisions in the M. P. Act and the Delhi Act are analogous and thereforee I Ought to follow Damadi Lal's case : AIR1976SC2229 . 1 do not agree. The provisions in the two Acts are not analogous. The Amending Act 1976 has made all the difference. -
83. Counsel for the plaintiffs argued that the amended definition of the term 'tenant' applies only to residential and not commercial premises. In the alternative he submitted that if it is held that the definition applies to commercial Premises also then this Court can take notice of facts and events which have happened after the institution of the suit and mould relief accordingly. He said that Anchi Bai had died during the Pendency of the suit and I should take notice of that event. Undoubtedly, the Court has power to take notice of subsequent events. and mould relief according to the changed circumstances under 0. Vii, R. 7, C. P. C. That proposition is no longer in dispute. The basic ruling on the point is Lachmeshwar.Prasad Shukul v. Keshwar Lal Chaudhary , which has been followed recently by the Supreme Court in Pesupuleti Venkatswarlu v. The Motor and General Traders. : 3SCR958 . 1 need not mention the other authorities to which I was referred.
84. In my opinion, the question of moulding relief does not arise. I have held that the amended definition applies
only to residential premises. It does not apply to commercial premises. If that is so, there is no question of taking notice of subsequent facts or events.
85. Suppose I am wrong in this view. Suppose the amended definition applies to the premises in question. In that case I should not hesitate to mould the relief according to the changed circumstances. This course is advisable as it would shorten the litigation. Anchi Bai, a party to the suit, died after the institution of the suit. This is a subsequent event, though fortuitous. I ought to take notice of it. Anchi Bai being the spouse was at successor' and entitled to continue in possession in her lifetime. Now that she is dead sons and daughters has to continue in possession. The lower category. They do not succeed. The inevitable conclusion is that the defendants do not acquire any right under the Amendment Act of .1976.
86. Counsel for the defendants raised another point. He submitted that the Civil Courts have no Jurisdiction to try the suit. He founds his argument on the withdrawal of the appeal in the Rent Control Tribunal by the landlord. It will be remembered that against the order of the Additional Rent Controller dismissing his petition the plaintiff Goela filed an appeal before the Rent Control Tribunal on May 7, 1968. On July 30, 1968, Shiv Pershad died. The plaintiff's counsel withdrew the appeal on Sept. 12. 1968. He made a statement that since no such property, tenancy or other rights, were involved in the appeal as could devolve on. any legal heirs etc. the appeal had become infructuous. The tribunal thereupon dismissed the appeal.
87. Counsel for the defendants says that the jurisdiction of the Civil Courts is barred under S. 50 of the Delhi Rent Control Act and that on the death of the tenant Shiv Pershad the landlord ought to have continued the appeal in the Tribunal against his legal representatives. For this I was referred to a Full Bench decision of five Judges of this Court in Kedar Nath v. Mohini Devi, : AIR1974Delhi171 Basing himself on this authority counsel argued that the death of the tenant during the pendency of the proceedings before the Rent Controller does not terminate the proceedings and the eviction order can be passed against tenant's legal representatives. In my opinion, this argument is based on a complete misunderstanding of Kedar Nath's case (supra).
88. It is true that the bench of five Judges of this Court has held that the jurisdiction of the Rent Controller to deal with the application for eviction after the tenant's death remains unaffected. The legal representatives can be brought on the record and, the proceedings can be continued. The eviction order can be passed against the legal representatives V. S. Deshpainde J. speaking for the Full Bench of three Judges in K. G. Malhotra v. Vijav Kumar, : AIR1973Delhi265 had taken the view that on the death of a statutorv tenant an application for eviction under S. 14 of the 1958 Act cannot proceed further and the landlord will have to file a separate suit based on title in a Court having general jurisdiction as the legal representatives do not inherit the tenancy or the statutory Protection. The Full Bench of five Judges disapproved of this view. They held that under Clause (a) of S. 108 of the T. P Act,
'On the determination of the lease the lessee is bound to out the Lesser into dispossession of the property.'
89. thereforee. the bench of five Judges came to the conclusion that the proceedings under S. 14(1) of 1958 Act have to be continued against the legal representatives and if the Controller finds that 'the landlord has established the ground of eviction an order of eviction can be passed against the legal representatives who are duty bound to put the Lesser into Possession of the Property.
90. But here this is notP the case Mohan Lal Goela on the death of his tenant Shiv Pershad Gupta decided not to continue the proceedings which he had instituted before the Rent Controller and where he had failed to eablish the ground of eviction against the tenant Mohan Lal Goela had sued Shiv Pershad for eviction on the ground of non-payment of rent and subletting. The Additional Controller dismissed the aetition Mohan Lal Goela went in appeal. During the pendency of the appeal the tenant died. The appeal was withdrawn. The Civil suit was instituted. The suit is based on title. A decree for possession is claimed on the ground that the possession of the sons and daughters of Shiv Pershad Gupta is unauthorised and unlawful. The suit is based on a different cause of action.
91. Now a decree for eviction is passed on the grounds specified in S. 14 of the Act of 1958. If the landlord had decided to pursue the eviction case it was incumbent on him to continue the appeal and on the authority of Kedar Nath v. Mohini Devi : AIR1974Delhi171 (supra) he could have claimed an order for eviction against the legal representatives if he had succeeded in appeal. But the landlord abandoned the eviction proceedings. He decided to sue the persons in possession of the property on the footing that their possession was unauthorised and unlawful.
92. Section 50(1) of the Rent Control Act provides:
'Save as otherwise expressly provided in this Act, no Civil Court shall entertain any suit or proceedings in so far as it relates to the fixation of standard rent in relation to any premises to which this Act applies or to eviction of any tenant there from or to any other matter which the Controller is empowered by- or under
this Act to decide 1
93. It cannot be disputed that the Rent Controller has no jurisdiction to decide a claim for possession made on the ground that the defendant is in unlawful possession. The jurisdiction of the Controller is to order eviction if the landlord Is able to bring his case within one of the grounds specified in the proviso to S. 14(1) of the Act and is able to show that the ban on his right to evict the tenant should be lifted as the tenant has violated one or more of the statutory grounds enumerated in S. 14. P. N. Khanna, J. speaking for the Full Bench of five Judges in Kedar Nath's case : AIR1974Delhi171 said (at p. 180):
'In case the 'Controller comes to the finding that the landlord has not been able to establish any of the grounds which are mentioned in cls. (a) to (1) of the proviso to S. 14(1) then he would have no power to pass an order for recovery of possession for the reason that the conditions on which the power to order recovery of possession rests, do not exist. The landlord may then file, if so advised, a regular suit for possession in the Civil Court, which would be on a different cause of action.'
94. The landlord was not bound to continue the proceedings before the Tribunal in appeal as he was no longer interested in the eviction of his tenant under S. 14(1). The landlord thereforee brought the present suit after withdrawing the appeal. Now the ground of claim is that the defendants, possession is unauthorised and unlawful and they be ordered to deliver possession to the plaintiff. Section 50(4) provides:
'Nothing in sub-s. (1) shall be construed as preventing a Civil Court from entertaining any suit or proceeding for the decision of any question of title to any premises to which this Act applies ...............
95. The suit is thereforee competent in a Civil Court.
96. Issues 7 and 8:
This brings me to the plaintiffs claim for rent and mesne profits. They have claimed Rs. 2,173.50 from the estate of Shiv Pershad Gupta for the period from Jan. 1, 1968 to July 30, 1968 as Shiv Pershad Gupta died on July 30, 1968. The plaintiffs have also claimed Rs. 16,146[from the defendants for the period from July 31, 1968 up to Dec. 1972.
97. The agreed rate of rent was Rs. 270/- per month. A notice of increase was served on the tenant on Sept. 4, 1959. Increase of Rs. 40.50 was claimed. As the tenant did not pay eviction proceedings were launched against hira. Rent was deposited with the Additional Rent Controller up to Dec. 31, 1967 by the tenant. As no rent was paid for the subsequent period the claim was made in this suit for' rent from Jan. 1, 1968. The defendants made an application that they had deposited Rs. 81GY-1 on account of rent from Jan. 1, 1968 to March 31, 1968 with the Additional Rent Controller. On this application I made an order that the plaintiff could withdraw the amount from the Court if he so likes without prejudice to his rights.
98. Counsel for the defendants contended that the plaintiffs cannot claim rent or mesne profits at the rate of Rs. 310.50 as the agreed rate of rent was Rs. 270/- per month and if any increase is 'claimed the question must be decided by the Rent Controller. Counsel relied !on Dhan Rai Jayna v. S. P. Singh 1973 Ren Cr 29 : AIR 1973 Delhi 227. 1 Cio not think after service of notice of increase of rent under S. 8 to the Act of 1958 on the tenant it was necessary for the landlord to resort to the Rent Controller before he could lawfully claim an increase in rent. The case of Dhan Raj (supra) was a case of standard rent and not a case of increase of rent. That case thereforee does not apply. The landlord is entitled to the increased rent' of Rs. 310.50 per month. He can also adopt the same figure as a measurement of mesne profits.
99. The plaintiffs have claimed rent and mesne profits right from Jan. 1, 1966 to Dec., 1971 The suit was filed on Nov. 2, 1968.
100. The plaint in th1s suit has been amended as many as four times. On Jan. 17, 1973 the plaintiff made an application seeking amendment of the plaint so as to include the present two claims noted above - (1) against the estate of Shiv Pershad Gupta till his death and (2) against the defendants- By order dated July 16, 1973, T. P. S. Chawla, J. allowed the amendment. He took the view that it will be unjust to bar the plaintiff from having his claim for mesne profits adjudicated upon.
101. Now so far as the claim for rent and mesne profits is concerned the principal objective of the defendants 1'S' that it is barred by time and decree cannot be passed for any period beyond three years It wild be noted that the suit was filed in the Court of the Commercial Sub-Judge on Nov. 2, 1968. On Dec. 11, 1972, the plaint was returned to the landlord. It was presented in the High Court an that very date. The plaintiff Goela says that be has been prosecuting the suit diligently in the Court below. The proceedings in the trial Court were stayed by the High Court in revision against the order dated Nov. 1, 1971 of the Commercial Sub-Judge directing the plaintiff to make up the deficiency of Court-fee. The revi4on was decided on Nor. 13, 1972. The plaint was, ordered to be returned by the trial Court for presentation to this Court. On Dec. 11, 1972, the plaint was returned. It was refiled in this Court on the same date.
102. The plaintiffs now claim that the period irom Nov. 2, 1968 to Dec. 11,1972 should be excluded in computing the period of limitation for the suit. I think I ought to exclude from the period of limitation time during which the suit was being prosecuted in the Court below. The plaintiffs made an application JA2.0.W (A V72) under S. 14 of the Limitation Act. I am satisfied that the plaintiff Goela was prosecuting the suit with due diligence and in good faith. There iF nothing to indicate that he was acting ir bad faith. The Court of the Commercial Sub-Judge was unable to entertain the suit because the value of the suit exceeded the pecuniary jurisdiction on the Court after that Court had deter mined the Value of the property at R, 51,000'- based a, it was on an agreement of the parties. in fairness and just the period ought to be excluded. T.P.S. Chawla. J. took this view while allowing the amendment. I take the same View under S, 14 of the Limitation Act. I would thereforee hold that the plaintiffs are entitled to a decree for the amounts claimed on account of rent and :mesne profits. They are also entitled to the exclusion of the period from Nov. 2, 11468 to Dec. 11, 1972. Both these issues lure decided in favor of the plaintiffs.
103. The plaintiffs have also claimed a preliminary decree for mesne profits. Order 20, R. 12. C. P. C. empowers the Court to order an inquiry in respect of mesne profits due after the institution of, the suit till the expiration of three years, from the date of the decree or till the. delivery of possession to the decree'. holders. The final decree is then to be passed in accordance with the result of such an inquiry.
104. Issue No. 9.
Assuming that the in a slum area. no competent authority Areas (Improvement 1956 is required under S. 19 of that Act permission of the competent authority is required for 'any suit or proceedings for obtaining any decree or order for the eviction of a tenant from any building or land in a slum' area.', But this suit is not a suit for the eviction of tenant. It is a suit based on independent title against the defendants whose possession is said to be unauthorised and unlawful . Section 19 of the Slum Act has, no application to such a suit. This issue is thereforee decided against the ,
105. Issue No. 10 -
For the foregoing reasons the plaintiffs succeed, The suit is decreed. There shall be a decree for possession against the defendants. There shall also be a decree for Rs, 2.173.50 in favor of the plaintiffs against the defendants recoverable from the estate of Shiv Pershad Gupta. I also pass a decree for Rs. 16,146/- in favor of the plaintiffs against the defendants. A preliminary decree for mesne profits is also hereby passed under 0. 20, R. 12, C. P. C. in terms whereof an inquiry as to mesne profits shall be made from Jan., 1973 till the delivery of possession to the decree-holders. The plaintiffs shall also be entitled to the costs of the suit.
106. The defendants can withdraw the sum of Rs. 810/- deposited by them with the Additional Controller, if it has not been paid to the plaintiffs so far. If the plaintiffs have received Rs. 810/- from the Additional Controller they will give credit for this amount to the defendants, Suit decreed.