Jagjit Singh, J.
(1) This second appeal arises out of a suit which was instituted, on April 20, 1966 by Shri Premjus Roy against Shrimati Lila Sardana and Surinder Kumar. The suit was for possession of a flat on the second floor of building No. 6/3, Original Road (DeshBandhu Gupta Road), Paharganj, New Delhi, and for recovering Rs. 940 as dam ages.
(2) On February 28, 1967 Shri R. L. Gupta, Subordinate Judge First Class, Delhi, decreed the suit for possession of the flat in dispute and allowed damages to the extent of Rs. 675.00 on account of use and occupation of the flat from the 3rd July 1965 to 3rd April 1966 at the uniform rate of Rs. 75.00 per month. The defendants filed an appeal against the decree of the Subordinate Judge which was dismissed by Shri J. D. Jain, Additional District Judge, Delhi. Thereafter the present second appeal was preferred in this Court.
(3) According to the averments contained in the plaint the flat in dispute was given on lease for a period of three months, commencing from the 4th September 1952, to Shri Charanjiv Lal Sardana. Even after the expiry of the period of lease Shri Charanjiv Lal Sardana did not vacate the flat but continued to occupy it. By a notice dated the 26th August 1956 the landlord called upon him to vacate the premises by the end of the 3rd October 1956. Even then he continued to occupy the flat.
(4) It was further stated in the plaint that the plaintiff had 'now come to know that Shri Charanjiv Lal died sometimes in 1964' leaving behind his widow Shrimati Lila Sardana and their son Shri Surinder Kumar. A notice for vacating the premises was as well mentioned to have been given to the said defendants on the 7th December 1965 requiring them to vacate the flat by the end of December in that year. The flat not having been vacated the relief of possession besides damages at Rs. 75.00 per month from the 4th July 1965 to the 3rd January 1966 and at Rs. 150.00 per month from the 4th January 1966 to the 3rd April 1966 was claimed.
(5) The basis for the relief of possession was that the contractual tenancy in favor of Shri Charanjiv Lal Sardana had come to an end on the 3rd December 1952 by efflux of the time limited thereby and in any event on the 3rd October 1956 by virtue of the notice of eviction dated the 26th August 1956. Thereafter the occupation of Shri Charanjiv Lal Sardana was stated to be as 'a statutory tenant' and as statutory tenancy was not inheritable the possession of the widow and son of the tenant after his death was contended to be merely as trespassers. The rent of the premises having been received up to the 3rd July 1965 damages for its use and occupation were claimed for a period of nine months from the 4th July 1965 to the 3rd April 1966.
(6) The stand taken by the appellants was that, as there was relationship of landlord and tenant between the parties the jurisdiction of Civil Court was barred by the provisions of section 50 of the Delhi Rent Control Act, 1958. It was also pleaded that the lease in favor of Charanjiv Lal Sardana was renewable at the option of the tenant and in any case Shri Sardana never became a statutory tenant and his tenancy continued to be contractual. Another objection raised was that after the death of Shri Sardana the plaintiff had been recovering rent from them and issuing receipts and for that reason also the relationship of landlord and tenant subsists between the parties.
(7) Both the courts below held that the tenancy of Shri Charanjiv Lal Sardana had come to an end by efflux of time for which the lease was granted and in any event as a result of the notice (Exhibit P/4) requiring the said tenant to vacate the premises by the end of October 3, 1956. Thereafter the position of Shri Charanjiv Lal Sardana was considered to be that of a statutory tenant and statutory tenancy not being inheritable the appellants were no better than trespassers. The contention that a new contractual tenancy had come into existence between the parties due to the plaintiff-respondent receiving rent from the appellants till the 3rd July 1965 was as well negatived. The damages for use and occupation of the premises were, however, calculated at the uniform rate of Rs. 75.00 per month for the entire period of nine months.
(8) The learned counsel for the appellants submitted that the lease deed (Exhibit P.I) infavor of Shri Charanjiv Lal Sardana contained a term that the tenant had option to renew it further from time to time as desired by him. As the tenant was paying rent even after the 4th December 1952 which was being accepted by the landlord it was tried to be interred that the tenant had been exercising his option of renewing the period of lease from time to time. The notice served by the respondent on the 26th August 1956 was urged to have been waived by acceptance of rent up to October 1963 from Shri Charanjiv Lal Sardana and thereafter from his widow and son. Some stress was as well laid on the provisions of sections 113 and 116 of the Transfer of Property Act, 1882. It was pointed out that section 113 provides that a notice given to determine the lease is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as . subsisting. It was further stated that the effect of holding over by the tenant and acceptance of rent by the Lesser was renewal of the lease from month to month in terms of section 116. Jagannath Karanani and another v. Abdul Wahed and. others A.I.R. 1962 Ass 148. Bhagat Ram and others v. Keshab Deo and others A.I.R. 1965 AsS 55 and Ram Dayal v. Jawala Prasad A.I.R. 1966 All 623 were cited in support of the submission that payment of rent after the expiry of the notice may show the intention of the Lesser to treat the lease as subsisting.
(9) The transfer of Property Act was not in force in Delhi when the lease in favor of Shri Charanjiv Lal Sardana came into existence or when notice requiring him to quit the premises by the end of October 3, 1956 was given. Sections 113 and 116 of the Transfer of Property Act, which excepting Section 129 were extended to the Union territory of Dehli on December 1, 1962 had, thereforee, no application.
(10) Moreover the case is covered by the decision of the Supreme Court in Ganga Dutt Murarka v. Kartik Chandra Das and others : 3SCR813 . Their Lordships of the Supreme Court after noticing the provisions of section 116 of the Transfer of Property Act observed that it was well settled that where a contractual tenancy to which the rent control legislation applies has expired by efflux of time or by determination by notice to quit and the tenant continues in possession of the premises, acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord has assented to a new contractual tenancy. The following passage from the judgment of Mukherjea, J. (as his Lordship then was) in Kai Khushroo v. Bai Jerhui was cited with approval:-
'......INcases of tenancies relating to dwelling houses to which the Rent Restriction Acts apply, the tenant may enjoy statutory immunity from eviction even after the lease has expired. the landlord cannot eject him except on specified grounds mentioned in the Acts themselves. In such circumstances, acceptance of rent by the landlord from a statutory tenant whose lease has already expired could not be regarded as evidence of a new agreement of tenancy and it would not be open to such a tenant to urge, by way of defense, in a suit for ejectment brought against him under the provisions of Rent Restriction Act that by acceptance of rent a fresh tenancy was created which had to be determined by a fresh notice to quit.'
(11) It is true that ther is no prohibition against a landlord to enter into a fresh contract of tenancy with a tenant whose right of occupation is determined and who remains in occupation by virtue of the statutory immunity provided by the rent control legislation.
(12) In the present case there is no evidence or indication to show that the landlord, Shri Premjus Roy, had entered into a fresh contract of tenancy with Shri Charanjiv Lal Sardana after the latter's right of occupation was determined though he continued to remain in occupation due to the statutory immunity at First provided by the Delhi & Ajmer Rent Control Act. 1952 in so far as it applied to the Union territory of Delhi and thereafter by the Delhi Rent Control Act, 1958. Acceptance of rent by the respondent after the expiry of contractual tenancy and its determination by notice to quit could afford no ground for holding that the respondent had assented to a new contractual tenancy or in any way waived the notice which had been served on Charanjiv Lal Sardana. As held by a Bench of this Court in Shri Roop Narain Goela and others v. Smt. Krishna Devi Bagadia (1969) Del LT 127 mere continuance in possession for a long period under a statutory protection does not have the effect of creating a fresh tenancy. The cases relied upon by the learned counsel for the appellants can be of no assistance.
(13) Another contention raised was that receiving rent by the respondent from the appellants after the death of Shri Charanjiv Lal Sardana amounted to recognition by him of the fact that Shri Charanjiv Lal Sardana was a contractual tenant at the time of his death or that he was accepting the appellants to be his tenants. There is no force in this contention. The rent was being recovered by one Ashok Kumar on behalf of the respondent. The respondent's version was that he came to know of the death of Shri Charanjiv Lal Sardana towards the end of 1965. Significantly the receipts issued throughout were in the name of Shri Charanjiv Lal Sardana and not in the name of the appellants. If the respondent had treated Shri Charanjiv Lal Sardana to be a. contractual tenant or had independently accepted the appellants to be his tenants then the receipts after the death of Shri Charanjiv Lal Sardana would have been in the names of the appellants.
(14) After the death of Shri Charanjiv Lal Sardana the possession of the appellants was as trespassers as the statutory tenancy of Shri Charanjiv Lal Sardana was not inheritable (see Shama Charan v. Ved Paul and another, 1966 P.L.R. 69). No fresh contract of tenancy was also entered into with them by the respondent. The respondent could, thereforee, sue the appellants, who were mere trespassers, for possession and damages in a civil court. The decree passed against them was justified. There being no merit in the appeal the same is dismissed with costs.