G.C. Jain, J.
(1) This second appeal under Section 39 of the Delhi Rent Control Act 1958 (for short 'the Act') is directed against the order dated September 5, 1983 passed by the Rent Control Tribunal, Delhi, dismissing the appellants' appeal in liming against the order dated August 19, 1983 made by the Additional Rent Controller, Delhi under Section 15(1) of the Act whereby the appellants were directed to deposit the arrears of rent at the rate of Rs. 1700.00 per month with effect from September 1, 1978 up to the end of the month previous to that in which the deposit was made, after adjusting a sum of Rs. 28,600.00 , within one month of the order and to continue to deposit the future rent month by month by the 15th of each succeeding month at the same rate.
(2) In April, 1981, K.L. Suri, respondent herein, filed an application for eviction of the appellants from the premises in dispute bearing Municipal No. 882, East Park Road, Karol Bagh, New Delhi, inter alia, on the allegations that the appellants were in occupation of the said premises as tenants under the respondent on a monthly rent of Rs. 1700.00 and had not paid the rent for the period September 1, 1978 onwards in spite of service of notice of demand. The appellants resisted the application. It was not disputed that the premises had been let out to them by the respondent but it was averred that the respondent had ceased to be the landlord because the Delhi Development Authority, who had leased out the land under the premises in favor of the respondent had terminated the said lease and had obtained the possession of the property. It was also averred that the Municipal Corporation of Delhi had attached the rent of the premises in dispute towards the recovery of arrears of house-tax and the appellants had complied with the said attachment order but the exact paid amount which had been paid was not readily available with them due to a substantial part of the record having been destroyed in the fire which broke out in the premises on January 11,1981.
(3) The learned Additional Rent Controller for the purposes of passing an order under Section 15(1) of the Act prima facie, came to the conclusion that the rent was due from September 1, 1978, the appellants had paid only a sum of Rs. 28,600.00 to the Municipal Corporation of Delhi and that there was nothing on record to show that the Delhi Development Authority had entered the premises and had taken possession of the same bringing an end to the relationship of landlord and tenant. With these findings an order under Section 15(1) of the Act in the terms mentioned above was made. The appeal filed by the appellants against the said order ; as observed earlier, was dismissed by the learned Rent Control Tribunal in liming on September 13, 1983.
(4) Learned counsel for the appellants vehemently assailed the prima facie finding of the Additional Rent Controller and the Rent Control Tribunal regarding the existence of relationship of landlord and tenant between the parties. It was urged that the possession certificate annexure 'A' proved beyond any doubt that the Delhi Development Authority bad taken the actual possession of the premises in dispute on June 24, 1981 and consequently the lease in favor of the appellants stood determined by virtue of the provisions contained in Section 111(e) of the Transfer of Property Act and the respondent had no right to recover the rent and was not the landlord within the definition given in S. 2(e) of 'the Act'. Reliance was also placed on a copy of jamabandhi filed in this Court containing a note that the lease in favor of the respondent had been cancelled and the possession of the premises vested in the Government.
(5) On the other hand the learned counsel for the respondent argued that as held by the Rent Control Tribunal the possession certificate simply showed that Sectional Officer had been vested with powers to take possession of the premises and actual physical possession had been not taken. Relying on the affidavit of the respondent and one Shri Bishan Dass Kohli it was pointed out that they were in physical possession of substantial portion of the building constructed on the plot leased out to the respondent by the Delhi Development Authority the persons holding a paramount title.
(6) It is admitted that the appellants were inducted in the premises as tenants by the respondent. Broadly speaking by virtue of the provisions contained in Section 116 of the Indian Evidence Act the appellants could not be permitted to deny the respondent's (landlord) title till they openly restored the possession of the premises to the respondent. True, the tenant is not estopped from denying his landlord's title where the title of the landlord has been put to an end by a person holding a paramount title and the tenant has been evicted by him. It is also not necessary that the tenant should be actually physically dispossessed. But it must be proved that not only the tenant had attorney in favor of the person holding a paramount title but also that he had attorney against his will. In the present Case, so far there is nothing on the record to show that the Delhi Development Authority was armed with a legal process for eviction which could not be lawfully resisted or that there was any threat to put the appellants out of possession and in these circumstances they had attorney in favor of the Delhi Development Authority. Prima facie there is no evidence that the appellants had even attorney in favor of the Delhi Development Authority. Mere notice to the appellants by the Delhi Development Authority asking them not to pay the rent to the respondent in itself would not amount to attornment in favor of the Delhi Development Authority. The appellants have admittedly not paid any amount towards rent to the Delhi Development Authority in pursuance of the notice dated June 24, 1981. In such circumstances prima facie at this stage it cannot be said that the respondent had lost his right to receive the rent from the appellants or was not a landlord as defined in Section 2(e) of the Act.
(7) It was then argued that the appellants had paid the rent up to March 31, 1981 and there was no justification for a prima facie finding that only a sum of Rs. 28.600.00 had been paid to the Municipal Corporation of Delhi.
(8) This contention is devoid of any merit. The appellants in the written statement had not given the specific amount alleged to have been paid by them to the Municipal Corporation of Delhi. The mere fact that the records were not available is not sufficient to raise a presumption that the rent up to March 31, 1981 had been paid. The facts that they had paid Rs. 28,600.00 up to December 17, 1980 and thereafter paid a sum of Rs. 5000.00 on March 19, 1981 are not sufficient to raise a presumption that the rent up to December 1980 or March 1981 had been paid.
(9) The prima facie findings recorded by the Additional Rent Controller and the Rent Control Tribunal call for no interference in the second appeal.
(10) In conclusion, I find no merit in the appeal and dismiss the same. Keeping in view the fact that the operation of the impugned order had been stayed by this Court on September 16, 1983 on the appellants' depositing rent due from April 1, 1981 till date, it would be appropriate to allow time to the appellants to deposit the arrears of rent. I, consequently, direct the appellants to deposit the arrears of rent with effect from September 1) 1978 at the rate of Rs. 1700.00 per month up to the end of the month previous to that in which the deposit is made, after adjusting a sum of Rs. 28,600.00 and the amount deposited by them, if any, in pursuance of the order of this Court dated September 16, 1983 within one month of this order and to continue to deposit future rent month by month by the 15th of each succeeding month at the same rate. No order as to costs.