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Jaimal Singh Vs. Jaswant Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 59 of 1986
Judge
Reported in37(1989)DLT76; 1989(16)DRJ55
ActsCompensation and Rehabilitation Act, 1954; Delhi Rent Control Act - Sections 2, 15(1) and 29; Transfer of Property Act - Sections 106 and 111; Improvements and Clearance Act; Improvement and Compensation Act - Sections 19(1); Rent Control Act - Sections 14( I ); Punjab Municipal Act, 1911 - Sections 18 and 47; Evidence Act - Sections 116; Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 5
AppellantJaimal Singh
RespondentJaswant Singh and ors.
Advocates: S.N. Marwah,; A.K. Marwaha,; S.N. Gupta,;
Cases ReferredMukat Behari v. Shri Siri Ram Basheshwar Nath and
Excerpt:
displaced persons (compensation and rehabilitation) act--section 29--held--that tenancy created by a statute is inheritable. in the instant case the tenancy of sawan singh was never terminated during his life time under the provisions of the tp act. hence the question of his tenancy rights being inherited being limited by the amended definition of the word 'tenant' in the delhi rent control act does not arise. the ratio laid down in earlier judgments of this court that tenancy rights of a deemed tenant are inheritable still holds the field. - - kapur, additional district judge by which he had allowed the appeal filed by the respondents against the judgment and decree dated february 28, 1985 of shri shiv charan, sub-judge and bad dismissed the suit brought by the appellant- plaintiff.....p.k. bahri, j.(1) this regular second appeal has been brought against the judgment and decree dated february 3, 1986 passed by sbri j.d. kapur, additional district judge by which he had allowed the appeal filed by the respondents against the judgment and decree dated february 28, 1985 of shri shiv charan, sub-judge and bad dismissed the suit brought by the appellant- plaintiff seeking possession of the premises in possession of the respondents.(2) the case has a chequered history. sawan singh, the predecessor- in-interest of the respondents, as a displaced person had occupied a room, verandah, kitchen open court-yards and latrine as shown in red colour in exhibit p-3 in house no. 2669, gali no. 2, beadonpura, karol bagh, new delhi and admittedly lived in that portion along with his family.....
Judgment:

P.K. Bahri, J.

(1) This Regular Second Appeal has been brought against the judgment and decree dated February 3, 1986 passed by Sbri J.D. Kapur, Additional District Judge by which he had allowed the appeal filed by the respondents against the judgment and decree dated February 28, 1985 of Shri Shiv Charan, Sub-judge and bad dismissed the suit brought by the appellant- plaintiff seeking possession of the premises in possession of the respondents.

(2) The case has a chequered history. Sawan Singh, the Predecessor- in-interest of the respondents, as a displaced person had occupied a room, verandah, kitchen open court-yards and latrine as shown in red colour in Exhibit P-3 in House No. 2669, Gali No. 2, Beadonpura, Karol Bagh, New Delhi and admittedly lived in that portion along with his family members. This house was an evacuee property.. The Plaintiff-Appellant, Jaimal Singh, was also an occupant of a part of the same house as a displaced person. Shri Sawan Singh was admittedly living as a statutory tenant under the Custodian of Evacuee property, Delhi in whose name the said evacuee property vested.

(3) The property was thereafter acquired by the President under the Displaced Persons (.Compensation & Rehabilitation) Act (hereinafter referred to as 'the Act') and it was sold to the Plaintiff-Appellant in public auction and the sale certificate dated November 26, 1962 was issued in favor of the plaintiff-appellant declaring him to be the owner of the said property with effect from February 9, 1961 and a letter of attornment-cum-provisional possession also came to be issued, copies of which are Ext. D.I and Ext. Public Witness 5/1, in favor of the appellant-plaintiff and which also required the occupants including Sawan Singh to attorn in favor of the plaintiff-appellant as a tenant and it was mentioned that the entire arrears of license-fee rent due to the Managing Officer be paid within 60 days of the issuance of the said letter if the occupant was to achieve the status of a tenant under the vendee.

(4) Sawan Singh had died on June 8, 1968 and prior to that there bad taken place litigation between Jaimal Singh and Sawan Singh under the Delhi Rent Control Act to which I will refer later on.

(5) Jaimal Singh, plaintiff-appellant, instituted the present suit on April 28, 1970 against the widow and iona of Sawan Singh with the averments that Sawan Singh was a statutory tenant at first under the Custodian of Evacuee Property, Delhi and thereafter under the Managing Officer in respect of the portion in question and on the sale of the said house in favor of the plaintiff-appellant, he became statutory tenant under him and continued to be so till June K, 1968. It was pleaded in this plaint that as Sawan Singh was only a statutory tenant and he held the tenancy rights in the premises in 57 question in his personal capacity till his death, his heirs and legal representatives in law had not succeeded to any tenancy rights and they are thus in unauthorised occupation of the said premises and are liable to surrender the possession of the premises to the plaintiff-appellant. The respondents contested the suit pleading that their predecessor in-interest, Sawan Singh and his father Jamait Singh had filed a suit against Union of India including the plaintiff-appellant for cancellation of the sale-deed in favor of the plaintiff-appellant and declaring them as the owners of the property in question and the present suit was liable to be stayed. I am told that the said suit has since been dismissed finally. It was pleaded that Sawan Singh was a tenant of the portion in question under the Government at the rate of Rs. 5.87P. It was denied that Sawan Singh was a statutory tenant. Rather it was pleaded that Sawan Singh was an ordinary tenant till his death and the heirs have inherited the tenancy rights and thus are the tenants under the plaintiff-appellant and the suit for possession was not maintainable. In replication, the plaintiff-appellant reiterated the plea pleaded in the plaint. After recording evidence Shri Brijesh Kumar, Sub Judge, gave the finding that Sawan Singh was a statutory tenant and on his death his legal representatives have not inherited any tenancy right and as the plaintiff-appellant is the owner of the property in question, he was entitled to have the possession of the suit premises from the heirs of Sawan Singh as they are in unauthorised occupation of the premises. The suit was decreed on March 17, 1975 appeal was filed by the respondents against that judgment and decree. During the pendency of the appeal the respondent filed an application seeking an amendment of the written statement with view to take the plea that the provisions of Delhi Rent Control Act are applicable and the Civil Court had no jurisdiction. That application was allowed on the basis of the two judgments of this Court reported as 1971 Rcr 375 Ram Rang v. N arain Singh and 1971 Rcr 561, Abdul Gaffoor v. Asa Ram where this Court had held that even if a person becomes a tenant under the deemed provisions of Section 29 of the Act, still he was deemed to be a contractual tenant and unless his contractual tenancy was terminated by serving notice as per the provisions of the Transfer of Property Act, the tenancy right are inheritable by his legal representatives on his death. After allowing the amendment, the Additional District Judge vide order dated April 28, 1977 had set aside the judgment and decree of the lower Court and remanded the case for fresh decision by the lower Court after taking the amended written statement and replication on record, and giving an opportunity to the parties to produce further evidence.

(6) The plaintiff-appellant moved an application seeking amendment of the plaint with a view to take a plea that in fact Sawan Singh had been in arrears of license-fee rent at the time the property was sold to the plaintiff- appellant which arrears of license-fee rent were not deposited by the Sawan Singh with the Managing Officer. Thus, Sawan Singh never became legal tenant under the plaintiff-appellant and so his legal representatives are also in unauthorised occupation of the premises. This amendment was allowed. The respondents in their written statement to the amended plaint while controverting this new plea of the plaintiff-appellant pleaded that in fact, plaintiff-appellant had accepted Sawan Singh as his tenant inasmuch as he had filed a petition seeking fixation of standard rent against Sawan Singh deeming him to be the tenant and had also filed a petition for the eviction of Sawan Singh on the ground of non-payment of rent under the provisions of the Delhi Rent Control Act treating Sawan Singh as his tenant and the plaintiff-appellant had obtained an order under Section 15(1) of the said Act requiring Sawan Singh to deposit the arrears of rent and month to month rent in accordance with the provisions of the said Section and Sawan Singh had deposited the rent in 58 accordance with the said order and the standard rent petition was dismissed and an appeal was filed before the Rent Control Tribunal and the appeal was also dismissed by the Tribunal and the plaintiff-appellant filed S.A.O. Nos. 260-D/65, 140-D/65 and 202-D/65, which were decided on September 10, 3970. The cases were remanded back to the Rent Controller and the standard rent petition came to be dismissed on May 11, 1972. An appeal was filed against that order and the case was again remanded back and thereafter the plaintiff-appellant bad withdrawn the petition seeking fixation of standard rent. So it was pleaded that the orders made in the said cases operate as rest judicata on the point of existence of relationship of landlord and tenant between the plaintiff-appellant and Sawan Singh.

(7) In replication to this amended written statement, the plaintiff- appellant had not controverter these facts. In the replication dated February 20, 1978 by the plaintiff-appellant there is no specific denials of the various cases instituted by the plaintiff-appellant under the provisions of the Delhi Rent Control Act against Sawan Singh and also the order made under Section 15(1) of the Delhi Rent Control Act requiring Sawan Singh to deposit the arrears of rent and month to month rent and the rent having been deposited by Sawan Singh. It so happened that the respondents again came up later on with an application seeking amendment of the written statement with a view to take an additional plea that premises in question are covered by the provisions of Slum Areas (Improvements & Clearance) Act and thus the suit was not maintainable without obtaining necessary permission from the Competent Authority. That amendment was allowed and the amended written statement was also filed but surprisingly enough in the replication to this amended written statement the plaintiff-appellant came to deny the factum of his having filed the eviction petition or standard rent petition. The replication could only confine to the point taken in the amended written statement. By filing a replication to the amended written statement obviously, the plaintiff-appellant could not have been permitted to withdraw the implied admission already made in the previous replication.

(8) At any rate, the Trial Court framed the following issues :

1. Whether the Civil Courts have no jurisdiction to try the Suit as alleged in preliminary Objection No. 2 of the Written Statement Opd 2. Whether the suit has not been properly valued for the purpose of Court-fee and jurisdiction Opd 3. Whether the suit is barred by principles of rest judicata as alleged in Preliminary Objection No. 8 of the W.S. Opd 4. Whether no notice is required to terminate the tenancy as alleged, if so effect Opd 5. Whether Sawan Singh was a Contractual tenant as died as such, if so its effect Opd 6. Whether Shri Sawan Singh lost the protection of Section 29 of D.P. (Comp. & Reh) Act as alleged in para 7(a) of the Plaint Opd 7. Whether the L.Rs.of Shri Sawan Singh become tenants in view of the Amendment in D.R.C. Ac' 8. Whether plaintiff is entitled to the relief as prayed Opd 9. Relief. Another issue after the amendment of the Written statement was framed to the following effect :- '10. Whether the suit is not maintainable in view of the fact that no permission under Section 19(1)(a) of the Slum Areas (Improvement & Compensation) Act has been obtained by the Plaintiff OPD'

After recording evidence Shri Shiv Charan, Sub-Judge, gave the finding that it is not proved that Sawan Singh had deposited the license fee and rent due to the Managing Officer within 60 days of issuance of letter of attainment and thus had not become a tenant under the plaintiff-appellant and thus his legal heirs also had not inherited any tenancy rights and thus they were in unauthorised occupation and so, neither the provisions of Slum Areas (Improvement & Clearance) Act and Delhi Rent Control Act were applicable. He also held that even if Sawan Singh is deemed to be a tenant under the provisions of Section 29 of the Act even then he was only a statutory tenant and his tenancy rights were not inheritable by his legal heirs and on that score, he held that the respondents were in unauthorised occupation of the premises. He also gave a finding that Sawan Singh being a statutory tenant during his life time, no notice terminating his tenancy was liable to be given under Section 106 of the Transfer of Property Act and even otherwise Sawan Singh had disputed the title of the plaintiff-appellant, his tenancy rights stood forfeited under Section 111 of the Transfer of Property Act. He decided Issues No. 1,4,5,6,7 and 10 against the respondents. In respect of Issue No. 2, there is no dispute being raised before me. So I need not refer to that issue because after the valuation report of the Architect assessing the market value of the property the necessary court-fee stood paid. In respect of Issue No. 3, the Court held that admissions made by the plaintiff-appellant in rent control proceedings regarding Sawan Singh having become a tenant are not conclusive and orders made in those proceedings did not operate as rest judicata. I may mention that widow of Sawan Singh had also died during the pendency of the suit and only the sons and daughters of Sawan Singh who were already on the record continued to contest the proceedings. The matter was taken up in appeal by the respondents and vide impugned judgment and decree Shri J.D. Kapoor, Additional District Judge, had given the finding that plaintiff- appellant was bound by his admission made in rent control proceedings that Sawan Singh was a tenant in ihe premises and as his contractual tenancy was never terminated during his life time so his legal heirs have inherited the tenancy rights and the suit of the plaintiff-appellant for possession was not maintainable and he allowed the appeal and dismissed the suit.

(9) Before I deal with the questions of law raised in this Second appeal, I may, in brief, refer to the evidence in the suit. Before the suit was remanded, the appellant-plaintiff had examined Public Witness I Shri S.B. Lal, Senior Clerk from the office of the Regional Settlement Commissioner, Delhi, who had brought some record from his office from which he had stated that the plaintiff-appellant had become the owner of the property in question and sale certificate stood issued in his favor and copy of which is Exp. P. I. In cross-examination. he stated that attornment letter was issued to Sawan Singh dated 14-5-62, a copy of which is Ext. Dl. The plaintiff-appellant examined Shri Gurmukh Singh, Architect to Civil Courts, as Public Witness 2 who had proved the estimate of the value of the property which is Ext. P. 2 and also proved plan, Ext. P. 3. of the property. Jaimal Singh, the plaintiff-appellant, came as Pw 3 and he stated that the suit filed by Sawan Singh had stood dismissed and an appeal was pending. In Cross-examination, he admitted that Sawan Singh had been residing along with his family members in the said premises since 1947.

(10) In rebuttal, the respondents examined Dw I Shri Jaswant Singh, Dw 3 Shri Ram Lal, who deposed about Sawan Singh had been paying the license fee/rent first to the Custodian and thereafter to the Managing Officer and getting receipts for the same. Dw 3, Shri H.R. Srivastava U.D.C. in the office of the Regional Settlement Commissioner had brought the file pertaining to the house in question and deposed that Sawan Singh had been in possession since 1947. In cross-examination no questions were put to him suggesting that Sawan Singh had not paid the arrears of license fee/rent due to the said office. I may mention that before the amendment of the plaint which took place after the case bad been remanded in appeal, there was no controversy between the parties regarding the status of Sawan Singh as a tenant in the premises till his death. Sawan Singh admittedly died in 1968 while the present suit was filed in 1970. Widow of Sawan Singh appeared as Dw 4. She deposed that she had been sending money orders to the Plaintiff. Ex. D. 2 and D. 3 and D.4 are the money order coupons. They are of no value because they do not show that the money orders were accepted by the plaintiff- appellant. However that is not very relevant for deciding the point in controversy arising in this appeal. At this stage, I must again emphasise that at a time when Dw 3 appeared in the witness box and the record of the property was available and was brought to the court and a testimony was given that Sawan Singh was the tenant in the premises. It appears that later on when again the same witness was summoned from that very office, after the plaint had been amended, it transpired that the relevant record was not available and never saw the light of the day and efforts were made by the respondents but it was stated in the court by the said official that the record had been destroyed. After the remand, plaintiff-appellant examined H.R. Srivastava, the same witness who appeared as Dw 2 and he deposed that there were four occupants in the house in 1960-61, namely. Saran Singh, Dharam Pal, Jamait Singh and Joginder Singh. He further deposed that till February 28, 1965 Rs. 758.01 were due from Saran Singh. He also made a reference of the amounts due from other occupants. He mentioned that in 1965-66, the name of Saran Singh had been shown as Soan Singh. In cross- examination he stated that he had not brought the file of the house in question and that the said file was in the record room. He also admitted that the rent file of every property was also being maintained which he had not brought. As a matter of fact, he did not disclose as to on what basis he was saying that the name of Saran Singh had been shown as Soan Singh and arrears of license fee are due from him. He had given a statement without the file. Admittedly, he had not brought the record of the property in question. So his testimony could not have been of any use to the plaintiff-appellant in order to show that Sawan Singh was in arrears of rent of the property at the time of sale of the property in his favor. Be as it may, Shri H.R. Shrivastava was required to bring necessary file on the next date and he appeared on October 3, 1979 and deposed that the record of the property in question stand destroyed. So it became impossible to prove whether Sawan Singh was in arrears of rent or not at the time when the property was sold to plaintiff- 61 appellant. The respondents who are legal heirs of Sawan Singh also had no record with them to show that entire license fee and rent before the property was sold to the plaintiff-appellant stood paid. The plaintiff-appellant again appeared in the witness box and made his brief statement regarding the respondents being in unauthorised occupation inasmuch as Sawan Singh had not achieved the status of a tenant under Section 29 of the Act. Significantly enough, the plaintiff-appellant had the gumption to make bald denial in cross- examination regarding his having filed petitions for fixation of standard rent and eviction case under the provisions of Delhi Rent Control Act and in which he had admitted Sawan Singh as his tenant whereas as mentioned by me above, in the replication, these facts remained uncontroverter.

(11) In rebuttal, Harjeet Singh and Jaswant Singh, respondents, appeared in the witness box and made oral statement with regard to their father being tenant under the plaintiff-appellant and they having become tenants by inheritance. The respondents also placed on record Ext. Dx and Dy, copies of the judgment of the Rent Control Tribunal by which he had decided the appeals filed by the plaintiff-appellant against the order made by Shri Jaspal Singh, Additional Controller in a petition filed by the plaintiff- appellant against Sawan Singh and Jamait Singh. These orders were made when the suit for possession already stood filed. It is pertinent to mention that even in original plaint in this suit, the appellant-plaintiff admitted Sawan Singh as tenant although he termed him as a statutory tenant in view of the fact that he became the tenant by the deeming provisions of Section 29 of the Act. The respondents had placed on record the carbon copy of petition seeking fixation of standard rent, a copy of the petition for eviction under Section 14( I )(a) of the Rent Control Act and the order made by the Rent Controller and the order made by the High Court in the S.A.OS, mentioned earlier. Shri S.N. Marwaha, Advocate, is shown to have represented the plaintiff-appellant in this Court. I would have called the files of S.A.OS. above-mentioned in order to see the original judgment made by this Court, but it is not necessary to see the same because as per discussion hereafter when it would become evident that the plaintiff-appellant cannot be allowed to wriggle out from his admission made earlier admitting Sawan Singh as tenant.

(12) Counsel for the appellant, Shri S.N. Marwaha, Senior Advocate, has vehemently argued that there was not an iota of evidence present on record to give a finding that Sawan Singh had become a tenant by virtue of the provisions of Section 29 of the Act. He has further contended that the admission made by the appellant-plaintiff being erroneous in fact and also in law could not be considered binding on the plaintiff-appellant and the plaintiff- appellant could withdraw by seeking amendment of the plaint in order to plead that Sawan Singh had not achieved the status of a tenant inasmuch as he never paid the arrears of license-fee rent to the Managing Officer within 60 days of issuance of letter of attornment in his favor. It has been further contended by him that even assuming for the sake of argument that Sawan Singh had become a tenant by virtue of Section 29 of the said Act and even then his tenancy was not inheritable as the status of tenant conferred on him by statutory provisions was a personal status and thus on his death only his widow could have inherited the tenancy rights for a limited period inasmuch as his widow was not financially dependent upon him and after the death of widow, other heirs of Sawan Singh could not inherit the tenancy rights. While admitting the appeal, following questions of law were formulated :-

1. Whether Sawan Singh, predecessor of the respondents had acquired the status of a tenant by virtue of the provisions contained in Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 2. Whether such Sawan Singh, become a tenant under the appellants by operation of law by virtue of the provisions contained in Section 111(g) of the Transfer of Property Act 3. Whether the admission by the appellant that Sawan Singh has become a tenant by operation of law could be allowed to be withdrawn in the facts and circumstances of the present case

(13) Before the death of Sawan Singh, the appellant had been admitting him as a tenant. It is true that it is settled law that any erroneous admission of a fact made by a party could be allowed to be withdrawn if it is shown that admission had been made under misapprehension. In the present case, the appellant has been taking inconsistent pleas as they suit him for purpose of succeeding in his mission to get the respondents dispossessed from the premises in question. As narrated above, the necessary records from the office of the Regional Settlement Commissioner which could have been the only evidence to show that Sawan Singh was in arrears of rent/license-fee at the crucial date of the transfer of the property in favor of the appellant-plaintiff had been destroyed and that prompted perhaps the plaintiff-appellant to seek amendment of the plaint belatedly after the first round of decision had been gone in this very suit. After all, the appellant-plaintiff had made an admission not only in this suit originally, but also in proceedings under the Delhi Rent Control Act that Sawan Singh bad become tenant under him in view of the provisions of Section 29 of the Act. So it was for the appellant to show that admission made by him in this regard was erroneous. In fact, the onus could have been placed on respondents only if the plaintiff-appellant had not made this vital admission consistently for over a number of years. It does not lie in the mouth of the appellant-plaintiff now to argue that as no evidence is available to show that Sawan Singh had paid the entire arrears of license-fee within 60 days of the issuance of attornment letter, the admission made by him was erroneous and the respondents must fail that they were in special knowledge of the facts. It is forgotten by the appellant-plaintiff that Sawan Singh who was having such special knowledge had died in 1968 much before the filing of the present suit and much before the appellant was advised to seek amendment of the plaint to bring about new fact on record to enable him to withdraw his admission already made. So in my view it was for the plaintiff-appellant to prove, as a matter of fact, that admission made by him was erroneous in fact which appellant-plaintiff failed to prove inasmuch as the records which could have thrown light on this material fact had been destroyed. The witness examined by him from the office of the Regional Settlement Commissioner never disclosed anything on the basis of which he could have made the statement. He never referred to the name of Sawan Singh. Moreover it is not understood that how he could make any deposition regarding arrears of license-fee of different occupants from 1965 when admittedly the Government ceases to be the owner of the property after issuance of the sale deed in favor of the plaintiff appellant. He did not make it clear as to what particular records he had brought. The testimony also does not show that it pertained to Sawan Singh. Moreover he admitted in cross-examination that he had neither brought the file of the property in question nor the rent account of the property in question. So in the absence of the relevant records, his bald testimony that arrears of license-fee to the tune of some amount till 1965 are due is neither here nor there. It could hardly be considered the evidence in the case.

(14) It is true that before a lawful occupant of evacuee properly could achieve the status of a tenant under section 29 of the Act, he had to show that within 60 days of the transfer of the property he had paid his entire arrears of license-fee. It was held so by Punjab & Haryana High Court in Gurcharan Singh v. Shri Devki Nandan and another, 1969 Rcr 1101 and reiterated by the same High Court in Dhana Ram v. Kishan Chand 1978 (2) Rlr 341 and by this Court in : 29(1986)DLT449 : Baldev Raj Batra and another v. Krishan Lal and others : and Sabra Begum and others v. Mohd. lkhlaq, reported as 1986 2 Dlt 113. It is also settled law that to prove the existence of relationship of landlord and tenant either the contract of tenancy should be proved or if the tenancy is sought under the statutory provisions then the compliance of ingredients of such statutory provisions prerequisite for conferring the status of tenant must be shown.

(15) In Dr. H.S.Rikhy and others v.The New Delhi Municipal Committee, : [1962]3SCR604 , it has been clearly held that the use of the term 'rent' cannot preclude the landlord from pleading that there is no relationship of landlord and tenant. The question must, thereforee, depend upon whether or not there is a relationship of landlord and tenant in the sense that there is a transfer of interest by the landlord in favor of the tenant. This was a case where the question arose whether the licensee or allottee of the N.D.M.C. under the provisions of Section 18 of the Punjab Municipal Act, 1911 could be deemed to have become tenant of N.D.M.C. The provisions of the said Act were examined and it was held that contract can be made by the N.D.M.C. only by strict compliance of the relevant provisions of Section 18 and Section 47 of the said Act and there is no estoppel against the statutory provisions. Counsel for the appellant had also made a reference to the decision in Nagubai Ammal and others v. B. Shama Rao and others, reported as : [1956]1SCR451 wherein it has been held that :- 'An admission is not conclusive as to the truth of the matters stated therein. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made. It can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppel.' Reference was also made to : AIR1983SC462 , Panchdeo Narain Srimstava v. Km. Jyoti Sahay and another where it was held that an admission made by a party may be withdrawn or may be explained away. There is no dispute about the principle of law enunciated above, but the question to be decided in the present case is whether the appellant-plaintiff has been able to show that the admission made by him that Sawan Singh had become his tenant is erroneous or not The plaintiff-appellant is estopped from withdrawing that admission on the principle of approbation and reprobation inasmuch as the plaintiff-appellant had not controverter the pleas of the respondents, in replication that an eviction case on the ground of non-payment of rent was filed and an order under Section 15(1) of the Delhi Rent Control Act was obtained by the plaintiff-appellant requiring Sawan Singh to deposit the arrears of rent and month to month rent and Sawan Singh had deposited the said rent. Once on an admission made by the plaintiff-appellant Sawan Singh had acted to his detriment, the appellant-plaintiff cannot be allowed to withdraw that admission on the principle of estoppel. A party cannot be allowed to approbate and reprobate and after admitting Sawan Singh to be a tenant the appellant to his own advantage obtained an order under Section 15(1) of the Delhi Rent Control Act. So the plaintiff-appellant could not be allowed later on to reprobate and take the plea that Sawan Singh was not his tenant.

(16) In view of the above discussion, Sawan Singh would be deemed to have become a tenant under the plaintiff-appellant by virtue of the provisions contained in Section 29 of the Act and the appellant-plaintiff is estopped from denying that Sawan Singh was not the tenant under him.

(17) An half-hearted argument was also advanced that as Sawan Singh had not been admitted the plaintiff-appellant as the owner and even the respondents also have not admitted the appellant-plaintiff as owner in the written statement, so they should be deemed to have forfeited their tenancy rights by virtue of the provisions of Section 111(g) of the Transfer of Property Act. Counsel for the appellant made a reference to Shiv Parshad v. Smt. Shila Rani, 1973 Rcr 548 in which it was observed that if a tenant denies the title of the landlady the tenancy would have to be deemed to have been terminated and no notice terminating such tenancy need be given under Section 106 of the Transfer of Property Act. Counsel for the appellant forgets that it was not the appellant who had inducted Sawan Singh as tenant of the premises in question. It is only in case where a particular landlord inducts a particular tenant in the premises that tenant is estopped under Section 116 of the Evidence Act from denying the title of the such landlords. In the present case, both the plaintiff appellant and Sawan Singh were displaced persons and had occupied the different portions of the evacuee property. Sawan Singh were displaced persons and had occupied the different portions of the evacuee property. Sawan Singh had set up the claim that he be declared owner of the property on the basis of the provisions of the statue and bad challenged the sale made in favor of the plaintiff-appellant. So, there could be no question of his forfeiting his tenancy rights which he acquired by virtue of the provisions of Section 29 of the Act by his challenging the derivative title of the plaintiff-appellant. Counsel for the appellant has argued that even if Sawan Singh was tenant in the premises his tenancy rights were not inheritable. In this connection, he has made reference to Bhavarlal Labhchand Shah v. KanaiyalalNathalal Intawala, reported as : [1986]1SCR1 . In the said case, the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 came up for consideration. Section 5 of the said Act restricted the inheritance of the Tight to the tenancy in respect of commercial premises. It was held that after the determination of the contractual tenancy in respect of non-residential premises, a tenant cannot bequeath under a will his right to such tenancy in favor of a person who is a stranger to the family being not a member of the family. I do not understand as to how anything said in that judgment would show that the tenancy rights of Sawan Singh were not inheritable. That is entirely a different case with different facts. There are two judgments of this Court, namely, Abdul Ghafoor v. Shri Asa Ram, reported as 1971 Rcr 561 and Indra Sharma v. Gopal Dass, reported as- 1984(2) All India Rent Control Journal 504, which clearly lay down that that tenancy rights achieved by virtue of Section 29 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954 have the same implications as tenancy rights based on a contract and unless and untill such tenancy is determined by resort to the provisions of the Transfer of Property Act, the tenancy lights are inheritable. Counsel for the appellant has however cited Ram Rang and another v.Narain Singh and others 1971 Rcr 375 wherein it has been held that a tenancy created under Section 29 of the Act being statutory in nature the tenancy rights are not inheritable. This judgment is in conflict with the judgments given by our High Court. I have gone through the judgments of this Court and find that the reasoning given in the judgments of this Court is more persuasive with which I entirely agree and I see no reason to differ with the reasoning given in the said judgment so as to necessitate the reference of this case to a larger bench. In the case of Abdul Gaffoor (supra) reference was made to the judgment' of the Supreme Court in Anand Niwas Private Limited v. Anandji Kalayanji's Pedhi eic., reported as : [1964]4SCR892 and it was explained that the Supreme Court was making reference to Rent Control Legislation in order to show that if contractual tenancy is terminated the tenant achieved the status of a statutory tenant, inasmuch as he is protected by the provisions of Rent Control Legislation by making a reference to the judgment in Nand Kishore v. Ram Kishan and another, (1967) I Scr 167 where a statutory right of such a tenant under the Rent Control Legislation was recognised to enable such a tenant to claim the right by filing a civil suit. It was held that a tenancy which came into existence by operation of law is an ordinary tenancy and such tenancy rights are inheritable, it was held that 'the expression 'statutory tenancy' appears to be capable of two meanings. On the one hand, it may mean a tenancy acquired by operation of law. Such tenancy would be the same as the tenancy acquired by contract. On the other band and in the context of Rent Control legislation only this expression means a tenancy which has been terminated already and the possession of the tenancy is being protected only by Rent Control legislation, and it was only in the latter sense that the expression 'the statutory tenancy' by the Supreme Court is applied in several decisions.'

(18) The view of the Punjab High Court that the tenancy created by statute is not inheritable was not found to be a sound view. In case of Indra Sharma (supra), a reference was made to Mukat Behari v. Shri Siri Ram Basheshwar Nath and others, reported as 1977 (2) RLR 348 wherein it was opined that after the transfer of the property, Section 29 makes an occupier of the property a 'deemed tenant' under the transfers. There is no distinction whatever between the 'deemed tenant' and an 'ordinary tenant'. The only difference is that a 'deemed tenant' is not consensual tenant or contractual tenant and he is a tenant by operation of law because statute makes him a tenant and the tenant by operation of law is as much entitled to the protection of his rights as an 'ordinary tenant' under the Rent Act. In the said case also notice terminating the tenancy was not served on attendant under Section 19 of the Displaced Persons Act and the tenancy rights were held to be inheritable. In the judgment of the Punjab High Court, these points have. not been noticed.

(19) Counsel for the appellant-plaintiff has argued that by virtue of the amended definition of the word 'tenant' under Section 2 of the Delhi Rent Control Act only limited inheritance rights have been given. The amended definition of 'tenant' has to be noticed in order to appreciate this contention, which reads as under :- 'Section 2(l)(ii) 'tenant' means any person continuing in possession after the termination of the tenancy ;' After a tenancy of an ordinary tenant is determined under the Transfer of Property Act, he would still be deemed to be a tenant for the purposes of the provisions of Delhi Rent Control Act. The crucial clause of the definition is Clause (iii) which reads as under :- 'Section 2(l)(iii)-In the event of the death of the person continuing in possession after the termination of his tenancy, 66 subject to the order of succession and conditions specified, respectively, in Explanationn I and Explanationn Ii to this clause, such of the aforesaid person's......' The inheritance in respect of tenancy rights is limited only of a tenant whose tenancy had been terminated during his life time. This is clear from the words underlined above. In the present case, the tenancy of Sawan Singh was never terminated during his life time under the provisions of the Transfer of Property Act. Hence the question of his tenancy rights being inherited being limited by the amended definition of the word 'tenant' in the Delhi Rent Control Act does not arise. It is true that it has been held by the Supreme Court that in respect of residential premises in Delhi, the tenancy rights of a tenant whose tenancy stood, terminated during his life time are to be inherited by the heirs as mentioned in the amended definition of 'tenant'. But that principle of law would not apply here because Sawan Singh was not a person whose tenancy stood determined during his life time. No such case was pleaded or proved. So, no benefit could be derived by the appellant- plaintiff by virtue of the amended definition of 'tenant'. The ratio laid down by our High Court in the aforesaid. two judgments that tenancy rights of a 'deemed tenant' under Section 29 of the Displaced Persons (Compensation & Rehabilitation) Act are inheritable still holds the field. So the respondents became tenant of the plaintiff-appellant by inheritance and they are not in unauthorised occupation of the property in question.

(20) In view of the above discussion, I conclude that this appeal has no merit. I dismiss the appeal, but in view of the peculiar facts, I leave the parties to bear their own costs throughout.


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