1. The question for determination is whether the appellant has succeeded in establishing that he was a tenant and could as such institute the suit, out of which this appeal has arisen.
The appeal is directed against the decree dated the 19th of January, 1966, made by the Additional District Judge, Delhi, by which the plaintiff's appeal against the dismissal of his suit by the trial Court was dismissed.
2. The appellant instituted a suit on the 27th of February, 1963, describing himself in the heading of the plaint:-
"Shri Jawala Singh s/o. Sardar Bhagwan Singh Prop. Amrit Transport Co., Premises No.4693 to 4696-A Roshnara Road, Subzi Mandi, Delhi (six)."
Two defendants were imp leaded to the suit, but the plaint was amended later on and the amended plaint dated the 10th of August, 1963, shows that Haji Mohd, Naqi was added as defendant No.3.
The suit was filed on the allegation that the appellant acquired the premises Nos.4693 to 4696-A, Roshan Ara Road, Subzimandi, Delhi, as a tenant in 1942 and on the partition of the country continued as such under the Custodian of Evacuee Property till the 16th of January, 1962, when the management of the property was restored to Haji Mohd. Naqi. In paragraph 3 of the plaint the appellant stated that out of the premises comprised in his tenancy he had allowed defendant No.1 (respondent No.1 herein) to occupy as a mere licensee that portion of the premises which carried municipal No.4695 and was a godown shown as Abcd along with a tin-shed marked Defg in a coloured plan filed with the plain. It was alleged that on being asked to vacate the premises respondent No.1 requested for time till the 31st of December, 1961, but having not vacated by that date, became a trespasser. Defendant No.2 (respondent No.2 herein) was described as the person whom respondent No.1 had brought on the premises in order to harass the appellant. The appellant's right to bring the suit was based upon the assertion that the disputed premises being a part of those comprised in his tenancy, he had licensed them to respondent No.1.
The respondents filed separate written statements. Respondent No.1 asserted in paragraph 2 of his written statement:-
"The built accommodation with the adjoining open space in possession of the answering defendant does not bear municipal No.4695 and it was never in occupation of the plaintiff so far this defendant knows and the plaintiff was never a tenant in respect thereof."
In paragraph 3 he stated:-
"It is wrong that this defendant got the premises in his occupation from the plaintiff as a licensee as alleged by the plaintiff."
In paragraph 5 respondent No.1 emphasised:-
"The plaintiff is not the owner or a lawful tenant of the site in suit and he is not entitled to claim any damages and at any rate."
Respondent No.2 filed a written statement denying the allegations contained in the plaint and asserting that he never occupied any portion of the premises bearing No.4695.
The trial Court framed the following issues:-
"(1) Whether the plaintiff is a tenant of defendant No.2 in respect of properties Nos.4693 to 4696-A along with the courtyard? O.P.
(2) Whether defendant No.1 is a licensee of the plaintiff? If so, in what premises and on what terms? O.P.
(3) If issue No.2 is proved, whether the license of defendant No.1 was terminated? If so, when and its effect? O.P.
(4) Whether the suit is not properly valued for purposes of court-fee and jurisdiction? O.D.
(5) Whether defendant No.1 is a tenant of defendant No.3? if so, from what date? O.D.
(6) If issue No.1 is proved, whether defendant No.3 could create tenancy in favor of defendant No.1 without terminating the tenancy of the plaintiff? O.D.
(7) If issue No.2, is proved whether the plaintiff forfeited his tenancy rights on account of creating license in his favor? O.D.
(8) Whether defendant No.2 is in possession of any part of the suit premises? O.P.
(9) If issue No.2 is proved, what is the statue of defendant No.2? O.D.
(10) To what amount, if any, is the plaintiff entitled to damages and from whom? O.P.
(11) What amount of rent has been paid by plaintiff to defendant No.3, and for what premises?
3. Dealing with issues Nos.1 and 10 together, the trial Court came to the conclusion that the plaintiff was not the tenant under defendant No.3. it was found that the Amrit Transport Company was the tenant. It was noticed that defendant No.3 appearing as D.W.7 had stated that Amrit Transport Company was the tenant in a portion of the property bearing municipal Nos.4691 to 4697. The trial Court further held that respondent No.1 was not a licensee under the appellant. On those findings the suit was dismissed.
4. The appellant preferred an appeal against the decree dismissing his suit and while rejecting the appeal the Additional District Judge in the course of his judgment dated 19th January, 1966, observed:-
"It is thus proved by overwhelming evidence eon record that the plaintiff was not the sole proprietor of Messrs. Amrit Transport Company and he could not as such be said to be the tenant of the premises in dispute. It is proved by the admission of the plaintiff himself that he was only one of the partners of the firm."
He also found that the plaintiff-appellant had failed to prove as a matter of fact that he had inducted respondent No.1 as a licensee in the premises in dispute.
5. It is urged on behalf of the respondents that because of the aforequoted concurrent findings of fact by the courts below this second appeal is not sustainable under Section 100 of the Civil Procedure Code.
There is high merit in the contention but I may deal with the submissions by the appellants' counsel that the evidence regarding the existence of the partnership firm could not have been taken into consideration and that unwarranted inferences have been drawn from documents.
The appellant was to prove that he was a tenant under defendant No.3 in respect of the property covered by issue No.1. He never sought the amendment of that issue. In face of the finding that Amrit Transport Company was the tenant, the submission is that a firm as such was incapable of making a contract and becoming a tenant and that in fact and in law only the appellant could be held to have taken the premises on rent as a tenant. Reliance in this behalf is placed on Section 105 of the Transfer of Property Act and it is urged that the same may be interpreted in the light of Section 5 thereof. Both the provisions are:-
"S. 5. In the following sections "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living person, or to himself, or to himself and one or more other living persons, and "to transfer property" is to perform such act.
In this section "living person" includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals."
"S. 105. A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express of implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
The transferor is called the Lesser, the transferee is called the lessee, the price is called the premium, and money, share, service or other thing to be so rendered is called the rent."
In the instance cause a lease of immovable property was involved. The right of tenancy was the transfer of a right to enjoy the property and of necessity there had to be a transferor and a transferee.
6. With the aid of Section 5 of the said Act, reproduced above, the appellant's counsel urged that the transfer of property involved an act by a living person and it had to be to one or more other living persons. In the ultimate part of Section 5 "living persons" is, however, so defined as to include a company or association or body of individuals whether incorporated or not. The premises could have been rented out to a firm or a company. In view of the law laid down in Trojan and Co. v. RM. N.N. Nagappa Chettiar, it has to be seen as to what actually the plea was on the basis whereof a case could have been found in the appellant's favor. Having examined the plaint, I find that the suit was never instituted on the basis that the appellant had taken any premises on rent as a partner of any firm. It was not for respondent No.1 to plead through the written statement that any partnership concern was the tenant.
Issue NO.1, as it stands, negatives the contention.
There being no plea in the plaint to sustain it, the submission now made finds no support from Goverdhan Doss Takersey v. M.A. Abdul Brahman, Air 1943 Mad 634, or Kanahiya Lal Balkishan Dass v. Labhu Ram, . Although the suit had been instituted on the assertion that the appellant had taken the premises on rent in his individual capacity and it was never averred in the plaint that Amrit Transport Company had been a partnership concern, after the hearing of the appeal came to an end on the 19th of August, 1971, the appellant preferred Civil Miscellaneous No.1042 of 1971 under the date 20th of August, 1971. In paragraph 2 of the plaint the appellant had stated that he had been carrying on his Amrit Transport Company in the premises ever since 1941-42 but through the application dated the 20th of August, 1971, the appellant sought to introduce a new factor by urging that a partnership deed dated the 31st of May, 1962, be placed on the record as a piece of additional evidence. It was stated in paragraph 6 of the application that the lower appellate Court should have decided as to what was the constitution of Amrit Transport Company. In paragraph 10 of the application the appellant stated by him in the name of his business and even when the property came to be vested in the Custodian of Evacuee Property the lease was again obtained by Jawala Singh appellant in the name of his business "Amrit Transport Company."
Then in paragraph 11 it was stated:-
11. That thereafter, up to the revocation of the license, there was no partnership but on 7-4-1962 the applicant did enter into partnership with his two sons under the name of Amrit Transport Co., but only in respect of his business. The partnership deed was duly reduced to writing. The original had been submitted to the Income-tax Department which has retained the same."
In paragraph 13 it was stated that the partnership deed had been executed on 31st May, 1962. The appellant categorically stated in paragraph 15:-
"15. That the said partnership deed dated 31-5-62, under the circumstances, has come to be relevant in the proceedings. The said document was executed as long back as 1962, the original submitted in the Income-tax Department and a copy thereof was attested as true copy by Notary Public Delhi on 28-6-1962. This is carbon copy of the original and there is no suspicion about its genuineness. The interests of justice require that the said deed be admitted on the file and considered in decision of the case."
A notice of the application was issued and a reply dated the 26th August, 1971 was filed on behalf of the respondents to Civil Miscellaneous No.1042 of 1971. In paragraph 7 of the preliminary objections it was pointed out that in paragraph 5 of the appellant's application dated the 9th of October, 1962, filed in the course of the trial of the suit it had been stated by the appellant that a deed of partnership had been executed on 12th July, 1962, as the previous one had been lost and that the document sought to be produced was an alleged partnership deed dated 31st May, 1962. Respondents urged through the reply that no document could be allowed to be placed on the record which had no relevance to the pleas contained in the plaint and that the application was much belated and no relief could be given after the conclusion of the hearing of the appeal. The appellant's counsel sought an opportunity to file a rejoinder. With the rejoinder dated the 2nd of September, 1971, a copy of another partnership deed dated the 12th of July, 1962, was produced.
I gave a detailed hearing to the counsel for the parties and, finding on the 13th of September, 1971, that the document produced was of a suspicious nature, directed the Registrar of this Court to hold an inquiry. The Registrar held the inquiry in October and November, 1971, and after recording the evidence submitted his report dated the 18th of November, 1971.
I have considered the application as well as the documents. Civil Miscellaneous No.1042 of 1971 under O.13, Rule 2 and Order 41, Rule 27 read with Section 151 of the Civil Procedure Code is without merit. The original and the amended plaints having been scrutinised the suit is found to have been instituted on the basis that the appellant had taken the premises on rent in his individual capacity. There is no justification for allowing the production of any of the partnership deeds for considering a plea which is absent from the plaint. Even otherwise, the inquiry report by the Registrar has justified the suspicion that the appellant had made a condemnable attempt to place on the record the copy of a deed of partnership dated 31st May, 1962. On the second leaf of the document there appeared a notarial stamp which raised my suspicion. In his application in paragraph 15, quoted above, the appellant had asserted that the original of that document had been submitted to the Income-tax Department and a copy thereof attested as true copy by Notary Public, Delhi, on 28th June, 1962, was being produced. Before the Registrar it was stated by Jawala Singh that the notarial stamp had been affixed by him in September, 1971 as the typist had told him that a notarial stamp should be affixed. The application was supported by an affidavit. In paragraph I thereof Jawala Singh deponent (appellant) had affirmed:-
That the accompanying application is made under my introductions, I have been thoroughly made to understand the contends thereof. They are correct in all particulars to my knowledge."
The affidavit bearing the signatures of Jawala Singh in English was ill-advised. He knew that the notarial stamp had been put on the document which he was seeking to produce as a piece of additional evidence only in September, 1971, but he was even then affirming the statement contained in his application. The Notary Public could not have attested the document without a notarial stamp. I must record a warning that all persons concerned in a litigation must take care and refrain from indulging in acts which may be open to criticism. The production of the document unrelated to the pleas contained in the plaint is unmerited in the circumstances of the case. Civil Miscellaneous Application No.1942 of 1971 is dismissed.
7. Turning to the controversy in appeal, it may be noticed that the plaintiff appeared as P.W.20. His deposition in court was that he had taken the premises in controversy on rent from Haji Mohd. Ishfaq and Company in the year 1941-42. He admitted in his examination-in-chief that the owner of the property issued the receipts of rent in the name of Amrit Transport Company. Later on even when the Custodian took over the property, according to the plaintiff's admission, receipts were issued in the name of Amrit Transport Company. The plaintiff then proceeded to depose that in the beginning of 1951 Harbans Singh became a partner with him in the business known as Amrit Transport Company. The said partnership came to an end in 1955-56. Thereafter, according to the plaintiff, the company became a "limited company". He stated that in June, 1957, a portion of the property comprised in the tenancy was given on lease to Prem Singh defendant No.1 on the understanding that no rent was to be charged and he was to attend to the repairs which the trucks belonging to the plaintiff may need.
When cross-examined, the plaintiff had to admit that he had been obtaining receipts in the name of Amrit Transport Company. He was then shown the certified copy of the plain in suit No.529 instituted on the 31st of August, 1951, and after seeing the original, had no admit that the certified copy Exhibit p.W.20/1 was the true and correct copy of the plaint.
8. Apart from Exhibit P.W.20/1 the learned counsel was called upon to face an application made by the appellant on 9th of October, 1964, under Order 1, Rule 10 of the Civil Procedure Code during the trial of the suit. The application was filed for obtaining the substitution of "Amrit Transport Company, a partnership firm duly registered under the Indian Partnership Act, through Jawala Singh, Managing Partner" as plaintiff in the suit. The suit having been instituted on 27th February, 1963, it was stated in para 5 that prior to that Jawala Singh and entered into partnership on 1st April, 1962, and a deed of partnership had been executed on 12th July, 1962. Then averments in paragraphs 8 and 9 of the application were:-
"8. That on account of a bona fide mistake and with no motives, whatsoever, the suit was filed in the name of Shri Jawala Singh as proprietor Amrit Transport Company."
"9. That the suit should have been filed in the name of Amrit Transport Company, a partnership firm duly registered under the Indian Partnership Act through Shri Jawala Singh Managing Partner, premises Nos. 4693 to 4696-A, Roshan Ara Road, Subzi Mandi, Delhi."
In paragraph 10 it was stated that the mistake was bona fide and purely incidental and had occurred because Jawala Singh was not very much educated and could not imagine the legal difference between a proprietor and a managing partner of a family concern.
After contest that application was dismissed by the trial Court. The appellant did not rest his oars there, and filed a revision in the High Court, which being C.R.No.473-D of 1964, was heard and dismissed on the 23rd December, 1964. The appellant had urged before both the courts without success that the suit had been instituted in the name of the wrong plaintiff and that the Amrit Transport Company should have been allowed to be substituted as the plaintiff in order to continue the suit.
Asked as to whether a suit admittedly instituted in the name of a wrong plaintiff could be decreed, the appellant's counsel submitted that it could not be decreed and conceded that relief in a civil suit could only be given to the plaintiff who could have instituted the suit. It was, however, contended that the admissions contained in the said application did not bind the appellant. It was urged that on the dismissal of the application the suit was to be decided as originally instituted. The learned counsel contended that the sole question before the trial Court was a as to whether the substitution was to be allowed or not. The submission ignored that the application made during the trial of the suit for substitution of a new plaintiff contained significant averments. The effect of those assertions in the application, if in the nature of admissions, was a matter apart from the consequence of its dismissal. The application disclosed a conspicuous stand clearly adopted by Jawala Singh during the course of the litigation. He clearly affirmed that he had brought the suit in his own name due to illiteracy and that the mistake being there the substitution be allowed. The dismissal of the application did not mean that the admissions contained therein could not be taken into consideration for any other purpose.
The applicant's counsel, after referring to Order 6, Rule 18 of the Civil Procedure Code, cited, (1913) 19 Ind Case 472 (Lah). All that was laid down in that case was that the Court was not to reject the plaint or dismiss the suit but had to proceed to try the suit on the basis of the original plant. The has happened in this litigation.
9. While deciding a suit on the basis of the surviving plaint the Courts are not precluded form taking into consideration the effect of the admissions available on the record.
10. Reliance by appellants counsel is placed on Section 17 of the Indian Evidence Act, which defines admissions":-
"17. An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned."
The admissions in the application are documentary statements suggesting inference in respect of issue No.1. that issue required the determination as to whether the plaintiff was a tenant or not under defendant No.3. the admissions were covered by Section 17 of the Act. Sub-section (2) of Section 11 of the Indian Evidence Act makes facts which may otherwise be not relevant relevant to the controversy where by themselves or in connection with other facts such facts make the existence or non-existence or any fact in issue probable or improbable. It was in controversy whether the plaintiff was the tenant under defendant No.3 or not. The admissions in the said application became relevant facts within the meaning of Section 11 of the Indian Evidence Act because taken along with the rest of the evidence in the case the admissions affirmed that the appellant in his individual capacity was admitting that he had wrongly instituted the suit and the issue as to who could be held to be the tenant could be really proved in respect of "the company", which was sought to be substituted as a plaintiff instead of the existing plaintiff (the present appellant).
11. Section 31 of the Indian Evidence Act is:-
"31. Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions hereinafter contained."
The counsel for the appellant submits that the admissions would not operate as estoppels because of Section 115 of the Indian Evidence Act. The arguments suffers from an inherent fallacy. Whether the admissions would operate as estoppels or not, they remain evidence. They may not be "conclusive proof". It cannot be however, accepted that the admission are not "evidence" open to consideration with the rest of it.
Depending upon "Wahid Baksh v. Lalta Prashad, Air 1924 Lah 316, it is submitted that the submitted that the admissions in the application were not binding. In that case an agreement had been filed containing an admissions. It has found by the High Court that the agreement was illegal and the admission could constitute a fresh piece of evidence in the Court of appeal only if the document had been produced and admitted under Order 41, Rule 27 of the Civil Procedure Code. The admissions by the appellant in this case are not contained in any illegal document and the citation has no relevance.
The next case relied upon is Sita Ram v. Pir Baksh, Air 1931 Lah 6. There it was held that a decree-holder making an erroneous admission in an application accompanied by an affidavit, is entitled to retract that admission. The admissions in this case have never been retracted and the authority cited does not improve the argument.
It is lastly submitted that the appellant's application made under Order 1, Rule 10 was merely gratuitous. Reliance is placed on Mt. Ishar Fatma Bibi v. Mt. Ansar Fatma, . It was observed therein that in case a person makes a gratuitous admission, there is nothing to prevent him from withdrawing the said admission unless he is found under an obligation not to withdraw it. As observed earlier, none of the concerned admissions contained in the application under Order 1, Rule 10 has ever been withdrawn I am not inclined to hold that the application contained any gratuitous admissions. If the admissions were gratuitous why at all a revision was filed in the High Court urging that the order made by the trial Court dismissing the application be set aside and the suit be directed to be tried with the Amrit Transport Company as the plaintiff?
12. It is contended that an admission would not be conclusive as to the truth of the matter stated therein. My attention has been drawn to Nagubai Ammal v. B.Shama Rao, Air 1956 Sc 598. The Supreme Court observed that an admission was not conclusive as to the truth of the matters stated therein, and that it constituted only a piece of evidence. The weight to be attached to such evidence was to depend upon the circumstances under which the admission might have been made. It could be shown as erroneous or as untrue so long as the person to whom it had been made had not acted upon it.
Section 115 of the Indian Evidence Act is:-
"115, When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief neither be nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing."
If anybody had acted on the basis of the admission then the admission would have operated by way of estoppel. It may have then been urged that the admission constituted conclusive proof.
As I have observed earlier, the admissions in the application may not be conclusive proof, but they are evidence and have to be considered along with the evidence otherwise adduced in the case. In this case all the receipts of rent whether issued before or after the property came to be managed by the Custodian described the Amrit Transport Company as the tenant. As an instance, Exhibit P.W.5/1 is a receipt dated the 20th of January, 1960 describing that Messrs Amrit Transport Company had paid the amount mentioned therein in respect of the premises in dispute. The receipt was issued by the office of the Additional Regional Settlement Commissioner/Additional Custodian of Evacuee Property, New Delhi. The plaintiff who allegedly took the premises on rent, as far back as 1941-42 was not able to place on the record a single receipt issued in this name. The admissions in the aforesaid application have to be taken into consideration along with the rent receipts. Those admissions have also to be considered along with Exhibit P.W.5/2 which is a statement of account furnished by the Regional Settlement Commissioner, Jam nagar House, New Delhi. There in Amrit Transport Company is shown in possession of the property bearing, No.XII/6694/95/693-96, Sabzi Mandi, Delhi, in respect whereof the amounts were realised.
13. I may then proceed to consider Exhibit P.W.20/1 the certified copy of the plaint in a former suit which provides a complete answer to the controversy. Through the plaint dated 28th of August, 1951, a suit was instituted against two defendants. The first defendant was the Ministry of Relief and Rehabilitation, New Delhi. The second defendant was the Municipal Committee of Delhi. The suit was for perpetual injunction seeking that the defendants be restrained from interfering with the possession of the plaintiff. The plaintiff in the suit was:-
"M/s. Amrit Transport Company Roshan Ara Road, Sabzimandi, Delhi through S.Jawala Singh."
Paragraphs 1 to 4 of the plaint are:-
"1. That the plaintiff is a company and S.Jawala Singh is the principal officer of the plaintiff company and as such is able to depose.
2. That the plaintiff company is a tenant of Haji Mohammad Ishfaq and Co., of Delhi in respect of a building bearing Nos.4693-96 with an open site in front of it adjourning the road situated in Roshan Ara Road, Subzimandi, Delhi on a monthly rent of Rs.59/1 since 1943.
3. That since the property in the occupant of the plaintiff vested in the Official Receiver Delhi, therefore, he had been paying the agreed rent to him till February, 1950, when the plaintiff was asked not to pay to the O.R. as the property had then vested in the Custodian of Evacuee Property New Delhi.
4. That as the rent had accumulated and the company was not in a position to pay lumpsum therefore, a request was made to the Custodian to allow the plaintiff company to pay the rent by Installments and since then the plaintiff has paid the rent in Installments the last Installment having been paid for October, 1970, vide receipt No.A-402423 dated the (?) May, 51". As is clear from the paragraphs, quoted above, the property concerned, in suit No.529 of 1951, instituted on the 29th of August, 1951, through a plaint dated the 28th of August, 1951, was the same in respect whereof tenancy rights were claimed by Jawala Singh in terms of the averments contained in the original as well as the amended plain out of which this litigation has arisen. The assertion, in paragraph 2 of that plaint, was that the plaintiff-company was the tenant of Haji Mohd. Ishfaq in respect of the property mentioned therein since 1943. The same Jawala singh, who is the appellant before, me verified that plaint. He cannot now be heard to say that at the inception of the tenancy he individually took the premises on rent. He clearly stated in the afore quoted plaint that Messrs Amrit Transport Company was the tenant.
14. I find that the Courts below were justified in coming to the concurrent finding of fact that the appellant had failed to prove that he was the tenant in respect of the premises in dispute and had any locus standi to file the suit.
15. The appeal is dismissed with costs throughout.
16. Appeal dismissed.