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Kailash Chand Vs. Hem Wati and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 153 of 1973
Judge
Reported in11(1975)DLT199; 1974RLR549
ActsDelhi Rent Control Act, 1958 - Sections 25
AppellantKailash Chand
RespondentHem Wati and ors.
Advocates: S.K. Taneja and; Arun Kumar, Advs
Excerpt:
.....surely within her knowledge and has been availing of its since 1962 while the proceedings for the eviction of the tenant started sometimes in 1964, and that even though neither a tenant nor a licensee, the appellant has had conneetion with the premises and there is no finding that his occupation of the premises had any connection whatever with the tenant because at no stage in the original proceedings was it alleged by e landlady that the appellant was one of the unauthorised sub terent otherwise a neither the controller nor the tribunal devoted any attention to the manner in which the appellant came to be in occupation of the premises and no finding has, thereforee, been recorded as to whether the appellant may be said to been occupation of the premises at the instance of or claiming..........pursuant to an order of eviction made against a tenant merely because such a person would be a person in occupation of the premises even though net under the tenant or at his instance would such a person be deemed to have an 'independent title, to the premises within the meaning ofthe provision even though, if the term 'title' is construed strictly, it could not be said that he hid any title to the premises becausa there may be no relationship of landlord and tenant or even the relationship of licensor or licensee may not be striclty established. such a person may. however, be in permissive possession which has relation to the landlord and has its genesis either in his consent, express or implied, or his permission in short, what would be the position of a person in occupation who is.....
Judgment:

H.L. Anand, J.

(1) This second appeal under Sections' of the Delhi Rent Control Act, 1958, hereinafter criled 'the Act', is directed against an order of the Rent Control Tribunal confirming that of the Rent Controller made in proceedings under Section 25 of the Act initiated by the appellant as a sequel to the threat of eviction from the premises in dispute by virtus of an order of eviction obtained by the respondant/landlady for the eviction of the tenant/respondent No 2 in the appeal. The order of eviction was obained by the landlady in proceedings under Section 14(l)(a) of the Act, inter alia, on the ground that the landlady, who was the owner of the premises, required the same for her residence and that the tenant had built, acquired vacant porseision or had been allotted a residence. The application for eviction .was also grounded.on the allegation that the tenant had unauthorisedly sublet a portion of the premises in favor of Raj Bahadur and lakshmi Chand. The application did not contain any allegation that the appellant was one of the unauthorised sub-tenants nor the appellant was even imp leaded as a party to the said procedings. The order of eviction was confirmed in appeal by the Tribunal and by this Court in Second Appeal.

(2) The application under Section 25 of the Act out of which the present Second Appeal has arisen was grounded on the allegation that the appellant had been in occupation of one room, two kothas, one kitchen with common latrine, common bath and common court yard on the ground floor of the house in dispute in his independt right as a tenant since 1940 originally under Shri Gujar Mal, father of the landlady and late.' after his death, under his widow Smt. Saro Devi, mother of the landlady and. after the letter's death, under the landlady/ respondent No. 1, and hid been paying rent regularly and had paid up to October 31, 1971 The appellant surther ftated that none of these owners had issued any receipt to the appellant but that the appellant had obtained a no-objection certificate in the year 1952 from the respondent/ landlady and had obtained an electric connection from the Delhi Electric Supply Undertaking on that basis. Ex.CW 4/' was alleged to be the no objection certificate purporting to have been signed by resoondent/ landlady and attested by Ram Babu Maheshwari who was a Municipal Councillor of Delhi.

(3) The application was resisted on behalf of the landlady and on a consideration of the oral and documentary evidence produced before it, the Rent Controller returned the finding that, although the appellant had been residing in the premises for many years before 1962 and bad even obtained an electric connection from the Delhi Electric Supply Undertaking in his name in the premises in dispute, it had not been proved that the no objection certificate Ex. CW4/2 was executed by the respondent/landlady and that the appellant had even otherwise failed to establish that he had been in occupation of the premises in dispute as a direct tenant under any of the owners. The-Rent Controller, however, did not give any definite finding, if assuming that the appellant was not a tenant under any of the owners independently in his own right, the appellant was a subtenant whether authorised or unauthorised under the tenant or could be considered to be a licensee or a person otherwise in possession of the authorisation of any of the owners ineluding respondent/landlady or in permissive possession. The Controller also did not consider if, having regard to the fact that in the original proceedings for the eviction of the tenant the respondent/ landlady had not allseed that the appellant was one of the unauthorised sub-tenant and had even given up the case for eviction on the ground of unauthorised sub-letting, it was open to the respondent/landlady to contend that the appell ant was an unauthorised sub-tenant as distinct from a contention that he was not in occupation in his own right as a tenant or otherwise than on an authorisation from any of the owners.

(4) On appeal, the finding of the Contorller has been confirmed by the Tribunal and it was held that the no objection certificate. Ex OW4/2 was not established as having been executed by the respondent/ landlady and that the appellant had not established that he had been a tenant under any of the owners and, thereforee, had independent title to the property as such. The learned. Tribunal also did not advert to the question if, even though not established to be a tenant under th' owners. the appellant could in the circumstances be considered to be a person not in possession claiming under the tenant but has been in possession either as a licensee or otherwise on an expess or implied authorisation from any of the owners including, the respondent/ landlady. and if, having regard to the fact that in the original proceedings for the eviction of the tanant the landlady had not averred that the tanant had unauthorisedly sub-let the premises in dispute or a part thereof in favor of the appellant, it was open to the respondent/ landlady to contend in proceedings under Section 25 of the Act for first time that the appellant was not a tanant under the owners independently in his own right but was an unauthorised inductee by the tenant.

(5) Aggrieved by the order of the Tribanal, the appellant has come up in second Appeal.

(6) The impugned order has bsen assailed on behalf of the appellant principally on the ground that on the documentary and oral evidence placed before the Tribunal and the inherent circumstances of the situation, the Courts below should have returned a finding that the appellant has been,in occupation of the premises in dispute as a tenant under tbc owners from time to time since over 30 yeari arid was, thereforee, not liable to eviction pursuant to the order of eviction made in the original proceedings

(7) After hearing the lea;ned counsel for the parties and after going through the records it appears to me that it is difficult to sustain this contention in the face of concurrent finding of fact on the question by the Controller and the.Tribunal both of whom have on a consideration of both oral and documentary, evidence, returned', a finding, that even though the appellant had been in occupation of a' part of the premises since over 30 years and had even got installed from Delhi -lectric Supply Undertaking an electric connection in the premises in his name, the appellant had failed to establish either by Ex.P W.4/2 or byoral evidence that the appellant had been in occupation of the premises as a tenant under any of the owners and had been paying rent. as such and was, thereforee, entited to the benefit of the provisions of Section 25 of the Act and avoid the rigour of the eviction order even though made in proceedings to which the appellant was not a party. Inarriving at the aforesaid conclusion, the Courts below have considered the entire evidence in its proper perspective and it is hardly possible to-reverse that concurrent finding of fact in Second Appeal and learned counsel for the appellant was unable to point 'out any infirmity in'the lower court's treatment of the entire evidence which may justify interference at this stage. Even otherwise, on the 'evidence placed on the record, it is not possible to return a finding.'- that either because of mere continued. occupation of a portion of a premises, even for as long.as a .eriod of 30 years or the installation of an etettric connection, since 1962, whether or not at the instance of or with. the permission of the .landlady and irrespective of whether EX. OW. 4/2,.. purported to descr.ibe her as landlady an-' referred to the appellant as being a person residing in the premises, could justify a finding that the appellant has been in occupation in his own independent light as a tenant under the owners. The proof of mere occupation for a long period or of assistant by the lai.d- lord in obtaining an electric or water connection in writing or otherwise would not per se be a substitute for proof of existence of relationship of landlord and tenant between the; parties in relation to premises and such evidecce, without anything:more, would, not be sufficient to reinforce the contention or susistecce of 'such a relationship.

(8) There is, however, an aspect of the matter which introduces serious infirmity in the orders of the Courts below and would justify the same set aside and the matter being remanded to the Controller for fresh decision under Section 25 of the Act either on the existing material or any other material that may be allowed by the Controller to be hereafter produced.

(9) Section 25 of the Act is in the following terms : 'Notwithstanding anything contained in any other law' where the interest of atenant in any premises is determined for any reason whatsoever and any order is made by the .Controller under this Act for the recovery of possession of such premises, the order shall, subject to the provisions of section 18, be binding on all persons who may be in occupation of the premises and vacant possession thereof shall be given to the landlord by evicting all such persons there from : Provided that nothing in this section shall apply to any person who has an independent title to such premises..

(10) On its plain reading, the Section is intended to bind not only the tenant 'who was a party to the proceedings, but ail persons who may be in occupation of the premises and the tenant and all such persons are bound to give vacant possession of the premises in dispute to the landlord and the landlord is entitled to such possession after all such persons have been evicted from there without having to resort to any further proceedings. The only exception engrafted in the section is contained in the proviso which protects from the rigour of the eviction order any person who has 'an independent title to such premises.' The administration of this provision would not present any difficulty with regard to the impact of an eviction order on persons who claim through the tenant either as sub-tenants, licensees or otherwise or may even otherwise be illegally inducted into the premises. Such persons would obviously have no protection of Section 25 because to extend, the protection to them would be inconsistent with the language of the pro vision and would also enable the tenant to render the order of eviction nugatory by transferring possession to other persons and would deviate from the object of Section 25, namely, to give finality to the order. Similarly, the provision would not present any difficulty where the protection is sought by a person who can establish that either he was holding the premises as a tenant under the landlord or even if tie had been inducted in the premises by the tenant, his derivative title to the e pre. mises got perfected by resort to provisions of Sections 16, 17 or 18 of the Act. The difficulty, however, arises in the administration of this provision with regard to a person may be in occupation of a part of the premises neither as a tenant under the landlord nor by virtue of induction, in whatever capacity, by the tenant and who, not being a trespasser, has been in occupation either as a licensee from the landlord or othewise with the authorisation of or permission of or with the consent of the landlord but without the relationship of landlord and tenant Could such a person be evicted pursuant to an order of eviction made against a tenant merely because such a person would be a person in occupation of the premises even though net under the tenant or at his instance Would such a person be deemed to have an 'independent title, to the premises within the meaning ofthe provision even though, if the term 'title' is construed strictly, it could not be said that he hid any title to the premises becausa there may be no relationship of landlord and tenant or even the relationship of licensor or licensee may not be striclty established. Such a person may. however, be in permissive possession which has relation to the landlord and has its genesis either in his consent, express or implied, or his permission In short, what would be the position of a person in occupation who is neither a tenant nor strictly a licensee under the landlord and yet in occupation by virtue of the possession of the premises by the tenant or at his instance and yet not a complete stranger to the premises or a trespasser.

(11) The question that, thereforee, has been posed above with regard to the ambit and scope of section 25 of the Act is not merely academic because on the material on record in this case, it is established that the appellant had been in occupation of the premises for over 30 years that he has failed to establish a relationship of landlord and tenant between him and any of the owners, that he had abtained an electric connection either with the assistance of the landlady or otherwise but surely within her knowledge and has been availing of its since 1962 while the proceedings for the eviction of the tenant started sometimes in 1964, and that even though neither a tenant nor a licensee, the appellant has had conneetion with the premises and there is no finding that his occupation of the premises had any connection whatever with the tenant because at no stage in the original proceedings was it alleged by e landlady that the appellant was one of the unauthorised sub terent otherwise a person in whose favor part of the premises in dispute had been parted with by the tenant. Neither the Controller nor the Tribunal devoted any attention to the manner in which the appellant came to be in occupation of the premises and no finding has, thereforee, been recorded as to whether the appellant may be said to been occupation of the premises at the instance of or claiming under the tenant or -be, thereforee, within the scope of first part of the Section The precise scope of the Section and the ambit of protection has also not been considered nor has it been determined if, having regard to the finding recorded by the Courts below, it could be said that the appellant would be entitled to the protection of Section 25 merely because his possession of the premises has not been related to the tenant and notwithstanding the fact that he has failed, according to the concurrent finding of fact recorded by the Courts below, to establish that he was a tenant claiming under the owners.

(12) I should have proceeded to define the scops of Section 25 of the Act in the context of the aforesaid controversy and to have determined if, on the material placed on record, the appellant could be said to. be a person bound to be evicted pursuant to the order of eviction, but it appears to me that such a course would be unreasonable because in the first instance, the question was not raised before me in that form and it was, thereforee, not argued from that angle. Secondly neither the Controller nor the Tribunal were called upon to consider the question in that context and have, thereforee, not returned any finding both on the question of law with regard to the ambit and scope of the provision and as to its impact on the facts of the present case.

(13) It appears to me that the proper course to follow in the circumstances would be to set aside the order and to remand the matter for fresh trial to the Controller with direction that the Controller would, after hearing the parties and giving them such , further opportunity as he may consider neccessary, consider the precise scope of the provisions of Section 25, the limits of the protection of the Sections and the protection given by the proviso, determine the precise nature of the appellant's possession of the premises, both vis-a-vis the tanant and vis-a-vis the landlady otherwise than from the point of view of relationship of land lord arid tenant and then decide if. the appellant would he entitled to protection of,Section 25 of. the Act .or is bound by the eviction order.

(14) Since the eviction order made by the Controller and since confirmed by the Tribunal in appeal and by this Court in Second Appeal has remained at least partly unexecuted, it would be reasonable and proper that the Controller would decioe the matter With such expedition asaiay,in the circumstances,be possible as any unn'ecessary delay in the decision of the matter would be unjustified

(15) In the result, I set aside 'be order of the Tribunal and of the Controll.;r and remand the matter to the Controller for decision in accordance with the direction given above.

(16) In the circumstances, parties would bear their own costs of this appeal. Appeal allowed.


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