D.K. Kapur, J.
(1) This second appeal arises out of a suit to recover possession of a shop forming part of property No. 3405, Gali Hakim, Baqa, Hauz Qazi, Delhi. The suit property was an evacuee property, which was purchased by the plaintiff-respondent after it had been acquired by the Government. The appellant was the defendant in the said suit and he claims that he is in authorised possession of the shop. The property was sold by auction and at that time no reference to the occupants of the property was made in the sale-deed dated 30th January, 1965. Both the courts below have found that Phool Singh, the present appellant, was a trespasser and accordingly decreed the suit of the plaintiff-respondent.
(2) It is common ground that one Prem Behari was a tenant in the shop under the Custodian and was paying Rs. 5.00 per month as its rent. Phool Singh, the appellant, claimed that he was the heir and legal representative of Prem Behari and on his death he became a tenant under the Custodian and was, thereforee, entitled to remain in possession of the premises as a tenant and the decree of possession should not be passed against him. He also claimed that he was the son of a cousin of the late Prem Behari and had been adopted as his son. However, no proof of his having been adopted in any ceremony is forthcoming and his own documents show that he has been described as Lal Chand's son and not the son of the deceased Prem Behari. In this connection the license issued by the Chief Inspector of Shops and Establishments, Delhi, Exhibit D. 5, describes .the appellant as son of Lal Chand. In the circumstances, it was rightly held by both the courts below that Phool Singh was not the legal heir of Prem Behari and, thereforee, could not claim to have acquired the tenancy rights in the premises by succeeding to him after Prem Behari died.
(3) Mr. .V. B. Andley, appearing for the appellant, has based his case mainly on the four receipts, Exhibits D.I to D. 4, which have been issued by the Rehabilitation Department to the appellant. These receipts also give the numbers of other receipts, which have been issued in favor of the present appellant and it seems that Phool Singh remained in occupation of the shop after Prem Behari's death, which took place some time even before 1960. Hence, the circumstances show that Phool Singh has been in possession of the shop for nearly five years or even more before the property was sold by the Ministry of Rehabilitation to the plaintiff-respondent. In this connection two ocuments Exhibits D. 5 and D. 6, produced by the defendantappellant, show that he had been carrying on business in these premises even in 1960. Exhibit D. 5 shows that Messrs Phool Singh and Brothers were registered under the Delhi Shops and Establishments Act, 1954, on 20th December, 1960. In the certificate, the appellant is shown as the occupier/employer. In Exhibit D. 6, which is a license issued by the Central Excise Department, the said firm of Messrs Phool Singh and Brothers was authorised to manufacture wireless receiving sets in the year ending 31st December. 1961, in the premises in dispute. The said license also shows that it was renewed for the years 1962 and 1963. Hence, one can conclude that the appellant has been in occupation of the premises for a long time. The receipts Exhibits D.1 to D. 4, that I have already referred to, are a little contradictory. In one of them, Exhibit D. 4, it is shown that the amount paid has been paid as damages, whereas the other receipts Exhibits D-1 to D. 3 do not show that the amounts charged by the Ministry of Rehabilitation were in the form of damages. but the receipts show that the amounts charged were either on account of rent or lease money. As Exhibit D. 4 is a later document than Exhibits D. 2, and earlier than Exhibits D. 1 and D. 3, the exact position of the appellant in the premises is very doubtful. The learned Additional District Judge in disposing of the appeal has held that the words: 'rent/license fee/lease money' in Exhibits D. 1 to D. 3 meant nothing and Exhibit D. 4 by specifically stating that the charges were by way of 'damages' decide the question. The learned Additional District Judge also relied on the evidence of Saran Behari Lal, Public Witness 1, a Clerk of the Regional Settlement Office, to show that according to the records, Phool Singh was never in occupation of the premises as a tenant. From this finding, the learned Additional District Judge concluded that the finding of the trial court that the appellant was no more than a trespasser was correct and affirmed the same.
(4) However, the matter is not quite assimple as the learned-Additional District Judge has made it. Under section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, it is provided that:-
'WHEREany 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, then, 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:
NOWit is clear that if the appellant falls in the category of persons, to whom this section applies, he will become a tenant of the purchaser, i-e. the respondent. It is not necessary in order to apply this section that the appellant should have been a tenant of the Custodian or of the Ministry of Rehabilitation, because the words used are 'is in lawful possession'. It is further provided in sub-section (2) of section 29 of the Act, if shall dismiss the suit and if not it shall decree
'THECentral 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.
(5) The Central Government issued Notification S.R.O. 2219 some time in 1955 specifying the persons, who were governed by section 29 and specified in Schedule 1 thereof the persons to whom the section shall apply and also indicated that it would apply to the premises specified in Schedule 2 of the notification. There is no doubt that the premises in question are the premises to which the notification applies and the only question is whether the appellant is a person specified in Schedule 1. According to Schedule I, every person against whom no arrears of rent in respect of the property in his lawful possession are outstanding at the date of transfer of property, and every person, who clears up the arrears of rent within sixty days of the date of the transfer, or every person who is a displaced person having a verified claim, etc., who, either has compensation due to him, which is greater than the arrears or who adjusts his compensation and pays the arrears within sixty days of such adjustment, are persons to whom the provisions of section 29 apply. As there are no facts on the record to show that the appellant was or was not in lawful possession and nor are there any facts to show whether the arrears of rent were paid by him or not or even if any arrears were due from him, it is necessary that these facts should be ascertained by proper evidence.
(6) The appellant has himself produced a document which is a demand for certain rent from him for some years before the date of the sale, which would go to show that he is not a person governed by the said Schedule, but it is equally possible that those arrears of rent appertain to Prem Behari and a notice has been issued to Phool Singh to pay those arrears. As the said document has not been proved and has not been exhibited, it is not really possible to refer to the same as evidence, nor is it possible to ascertain its true legal effect. It is, thereforee, necessary for me to come to the conclusion that the facts necessary to decide the present suit were not before the court and it is, thereforee, in the interests of justice that a remand of the case should be made to the trial court under Order 41, rule 23A read with Order 42, rule I of the Code of Civil Procedure to determine whether the appellant was or was not in lawful possession and was or was not a person protected by the provisions of section 29 of the Act by virtue of the notification S.R.O. 2219 issued by the Central Government under Section 29(2) of the said Act.
(7) In view of the above discussion, I set aside the judgment and decree passed against the appellant and remand the case to the trial court for determining the question: 'Whether or not the appellant in the present case is protected by section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954'. I further direct that the onus of this issue will be on the present appellant and the parties will be entitled to lead evidence on this question. The suit will be decided by the trial court in accordance with the decision it comes to on the issue that I have indicated above. If the trial court comes to the conclusion that the appellant is protected by Section 29 of the Act, it shall dismiss the suit and if not it shall decree the suit and grant the respondent a decree for possession.
(8) The parties will appear before the trial court on 11th January, 1971. No costs in this Court.