V.S. Deshpande, J.
(1) In this appeal we are concerned with the construction of proviso (h) to sub-section (1) of section 14 of the Delhi Rent Control Act, 1958 (hereinafter called the Act) which runs as follows :-
'(H)that the tenant has, whether before or after the commencement of the Act, built, acquired vacant possession of, or been allotted, a residence;'
(2) The premises were originally let to the appellant tenant by the father of the respondent landlord in 1946. The pleading of the landlord was that the premises were ancestral property of the joint family of which the father of the landlord was the manager. When the father died in 1951, the landlord, his mother and his brothers who were members of the joint family collected rent from the tenant till a decree for partition was passed in 1955 by which the respondent landlord became the sole owner and landlord of the premises. The landlord filed the petition for eviction in 1964 on the ground that the tenant had 'been allotted a residence' in 1952 within the meaning of the proviso (h) to section 14(1) of the Act.
(3) The defense of the tenant was that the premises were let in 1946 to the father of the tenant and not to the tenant at all. Alternatively, it was stated that as long back as in 1952 the tenant shifted to the residence allotted to him to the knowledge of the landlord and the landlord was, thereforee, estopped from evicting him in 1964.
(4) The Controller held that the premises were let to the tenant himself and not to his father. He also held that there could be no estoppel against the statute and the landlord was entitled to evict the tenant under proviso (h) to section 14(1) of the Act.
(5) In the first appeal by the tenant before the Rent Control Tribunal, an application for amendment of the written statement was made to take the plea that the tenant could not be evicted in the absence of the termination of the contractual tenancy by a notice to quit. The application was, however, disallowed by the Tribunal. The Tribunal otherwise upheld the order of eviction passed by the Controller.
(6) In this second appeal before me Shri S. N. Chopra learned counsel for the tenant appellant has urged three main grounds against the order of the Tribunal, namely :-
(1)That in 1955 there was a fresh tenancy between the respondent landlord and the appellant tenant. The cause of action which arose against the tenant in 1952 under the previous tenancy could not be availed of by the landlord under section 14(1)(h) of the Act; (2) That the landlord was not entitled to file the petition for eviction without terminating the contractual tenancy and that the tenant was not precluded from raising this plea before the Tribunal and in this Court and; (3) That the landlord did not take any steps to enforce his right to evict the tenant under section 14(1)(h) from 1952 to 1964 and he must, thereforee, be deemed to have abandoned his right or waived it and cannot be allowed to enforce it thereafter.
(7) These contentions form the questions for decision in this appeal and are dealt with below Serialtim.
(8) The language of proviso (h) to sub-section (1) of section 14 is quite clear. It requires that 'the tenant must have been allotted a residence. The question is, what is the meaning of the words 'the tenant' in this context. It seems to me that the words 'the tenant' must mean the tenant of the landlord who is seeking to evict him. The meaning of the words 'the landlord' is not, however, restricted to a single human being. For, the landlord is the holder of a title or an estate or a property. In respect of the rights of the landlord relating to the title or estate, a successor-in-title of the landlord steps into his shoes and is entitled to the rights of the landlord in relation to the property to which he has succeeded. He simply steps into the shoes of the landlord. Such a succession may be inter vivos or on the death of the landlord. In the present case, the original landlord in 1946 was the father of the respondent acting as the manager of the joint family. After the death of the father of the respondent the joint family as a whole was the landlord. By virtue of the partition decree in 1955, the respondent became the sole landlord. But the title to the premises possessed by the father of the respondent was held in his representative capacity as the manager of the joint Hindu family. The manager alone was entitled to collect the rent from the tenant and in that sense he may alone be regarded as the landlord within the meaning of section 2(e) of the Act. On his death, the joint family became the landlord in the same sense and had all the rights which the original landlord possessed. What was held by the joint family in commonality came to be held by the respondent in severally by virtue of the partition. It is well-known that partition is not even transfer but something much less. It is only a separate mode of enjoyment of property which was held and/or enjoyed in common. It also confers exclusive ownership on the respondent though prior to the partition also he was a joint owner of the property. The result is that the exclusive title to the property obtained by the respondent in 1955 was not something new but, on the other hand, was a continuation of and succession to the rights of the father and of the joint family to collect rent and the respondent became a landlord within the meaning of section 2(e) of the Act. When the rights of the landlord devolves on his successor, there is no creation of a new tenancy merely because of such succession or transfer.
(9) The creation of a new tenancy is to be sharply distinguished from the succession to a pre-existing tenancy. A new tenancy may come into being even without any succession or transfer from one landlord to another. Between the same landlord and tenant, a pre-existing tenancy can be substituted by a new tenancy if the terms of the tenancy are changed so substantially that the new tenancy is incompatible with the old one. This is illustrated by the Illustration to clause (f) of section 111 of the Transfer of Property Act, 1882 which has been recently considered in Mrs. Chinnamma Raini Guptara v. Dewan Harish Chand (S.A.O. 167 of 1968 decided by me on 24-9-1971) Shri Chopra then pointed out that the original rent for the premises was Rs. 25.00 including house-tax, water and electricity charges. But in 1955 it was changed to Rs. 20.00 as rent plus Rs. 2.00 as house-tax while water and electricity charges are to be paid separately by the tenant. Firstly, there is no real change in the rate of rent. Secondly, even if there is such a slight change in the amount of rent, this does not amount to such a substantial change in the nature or the terms of tenancy as to make the tenancy a new one from 1955 onwards. Shri Chopra then argued that even if the cause of action arises against the same tenant but in favor of a different landlord, a new landlord cannot take the benefit of such a cause of action under section 14(1)(h). This argument may be true when the premises held .by the tenant themselves were different and the cause of action arose in favor of a landlord of such different premises. If the tenant were to take a second set of premises from a new landlord, the new landlord can certainly not take advantage of the cause of action which had arisen in favor of the previous landlord in respect of different premises. But as pointed out above all the rights of a landlord including the right to evict the tenant under section 14(1)(h) devolved on the successor of the landlord by operation of law and this does not amount to the creation of a new tenancy or sustain the argument that the cause of action arisen in favor of a previous landlord cannot be taken advantage of by a subsequent landlord when premises remain the same.
(10) Shri Chopra relied upon the observation of the Supreme Court in Shiv Nath v. Mela Ram, 1969 R.C.R. 494 to the following effect :
'We are not impressed by the argument that letting within the meaning of proviso (to section 3 of the Act) can only apply to a voluntary act on the part of the landlord allowing the former tenant to continue in possession. Acting in pursuance of the direction of the managing officer after the property had been auctioned to the respondent would in law amount to a letting by the respondents to the persons who were tenants under the custodian before'.
(11) What the Supreme Court decided thereby is that the provisions of the Act became applicable to the premises when the premises were purchased from the Government by an auction purchaser even before the formal title was acquired by the purchaser by obtaining the sale certificate. Prior to the issue of the sale certificate there was an agreement between the Government and the auction purchaser by virtue of which the premises were let by the auction purchaser to the tenant who formerly held the premises from the Government. It was not necessary that the tenant should be physically inducted into the premises by the new landlord. Their Lordships of the Supreme Court did not imply thereby that a fresh tenancy had come into being between the auction purchaser and the tenant. That question was not at all considered by their Lordships.
(12) Shri Chopra then relied upon the Division Bench decision of this Court in Avinash Kaur v. Dr. Beli Ram, 1970 All Indi R C J 995 (3). In that case the residence had been acquired by Smt. Avinash Kaur on 18-1-1956 when she was not the tenant of Dr. Beli Ram. The premises were let to her by Dr. Beli Ram on 1-6-1962. It was argued for the landlord that the purchase of a residence by Smt. Avinash Kaur on 18-1-1956 enabled the landlord to evict her from the premises which he had let out to her on 1-6-1962. This contention was negatived on the ground that the acquisition or allotment of a residence within the meaning of section 14(1)(h) must take place during the tenancy and not prior to the commencement of the tenancy. The reason, in my view, is obvious. The acquisition of a residence has to be by the tenant. In Avinash Kaur's(3) case it was not by the tenant for the simple reason that she was not a tenant at all when she acquired the residence. On the contrary, in the present case, the appellant was a tenant when the residence was allotted to him in 1952. Proviso (h) to sub-section (1) of section 14, thereforee, squarely applies to the facts of this case.
(13) The plea of want of notice was not raised by the tenant before the Controller. As held by us in Battoo Mal v. Rameshwar Nath, 1970 R.C.R. 532, thereforee, the tenant was deemed to have waived it. He could not, thereforee, be allowed to raise it before the Rent Control Tribunal or in second appeal.
(14) Prima facie, it may appear strange that the application for eviction was filed in 1964 even though the tenant had been allotted a residence by the Government in 1952. If a landlord were to know of the allotment of the residence to the tenant but were to deliberately abandon .or waive his right to evict the tenant under section 14(1)(h) for such a long time as twelve years, it may be arguable that the landlord may be deemed to have waived his statutory right. But in the present case, the evidence of the landlord is that he came to know of the allotment of a residence to the tenant only in 1964 and, thereforee, the petition for eviction was filed soon after he obtained this knowledge. The evidence of the tenant is that he informed the landlord in 1952 itself that a residence had been allotted to him and he also shifted from the premises to the new residence to live there. The latter part of the evidence of the tenant has been disbelieved by both the Courts below who have held that the tenant did not shift to the residence allotted to him but continued to reside in the premises itself. This is why the landlord did not come to know of the allotment of a residence to the tenant. As the tenant has not been truthful in deposing that he had shifted to the residence allotted to him, his evidence that he informed the landlord about the allotment of the residence to him is also not believable being a part of the same statement. It would also not be natural conduct on the part of the tenant to have informed such an unfavorable thing to the landlord and thereby foolishly provoke the landlord to file an eviction petition. Further, the burden of proof was on the tenant to show that the landlord knowingly waived or abandoned the right to evict the tenant. This burden is not discharged by the tenant at all. The evidence of the landlord is preferable to that of the tenant. The landlord was not, thereforee, estopped from evicting the tenant on this ground.
(15) The appeal is, thereforee, dismissed with costs.