Skip to content


Aftab Ahmed Etc. Vs. M. Abdul Kadir - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 284 of 1966
Judge
Reported in1973RLR4
ActsDisplaced Persons (Compensation and Rehabilitation) Act, 1954 - Sections 12; Rent Control Act - Sections 50
AppellantAftab Ahmed Etc.
RespondentM. Abdul Kadir
Advocates: H.L. Sabarwal,; Ravinder Sethi and; K.K. Mittal, Advs
Cases ReferredAttar Lal v. Messrs Lakshmi Dass and Company
Excerpt:
.....rent control act, 1958 - suit for eviction filed in civil court - respondent tenant contended that suit premises belong to government - title to premises did not pass to appellants - premises continued to belong to government - suit for eviction could be filed only before controller under delhi rent control act and not in civil court. - - alleging that they served notices, dated june 13, 1964, on the defendants terminating their tenancies and directing them to band over possession of the property to them, and that the defendants failed to do so, the plaintiffs filed the suit for eviction against the said defendants. , that the civil court had no jurisdiction to try the suit, that the notices alleged to have been served upon them were illegal, that the suit was bad for misguide of..........of any portion of the premises, and that although defendants 1 to 3 did not pay any rent to the plaintiffs defendants l and 2 became the tenants of the plaintiffs by operation of law viz. section 109 of the transfer of propert act. on issue no. 4, he held that the title to the property had not passed to the plaintiffs and the property was still owned by the government, that since there was no letting by the plaintiffs to the defendants, the proviso to section 3 of the delhi rent control act did not apply in view of the decision of the punjab high court in attar lal v. messrs lakshmi dass and company, l.p.a. no. 139-d of 1963, decided on may 4, 1964, and that the civil court had, thereforee, jurisdiction to try the suit for eviction. issues nos. 1, 3-a, 3-b, 5 and 6 were also decided.....
Judgment:

T.V.R. Tatachari, J.

(1) These two Regular Second Appeals (Nos. 284-D and 28 5-D of 1966) have arisen out of the same suit and can, thereforee, be disposed of by a common judgment.

(2) Aftab Ahmed and Zaki Ahmed filed a suit, No. 314 of 1964, in the Court of Shri Prem Kumar Jain, Subordinate Judge IInd Class, Delhi, for the eviction of five defendants, defendants 1 to 5 in the suit, from House No. XIII/995, situatedin Mohalla Kishan Ganj, Teliwara, Delhi. The said house was evacuee property acquired by the Central Government under section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, and formed a part of the common pool. According to the plaintiff., the said property was directed to be transferred to them by the Government and a part of the consideration was realised from them. No sale certificate, however, was issued in their favor as the full consideration for the transfer had not yet been paid. The plaintiffs alleged that with effect from July 24, 1962. provisional possession of the property was delivered to them. It is their case that defendants 1 and 2 were the tenants in respect of different portions of the property under the Custodian of Evacuee Property on a rent of Rs. 30.37 per month, and they were directed by the Managing Officer to pay the rent and deal otherwise directly with the plaintiffs with effect from July 24, 1962. The plaintiffs claimed that they became landlords of the said premises from the aforesaid date and defendants 1 and 2 became their tenants by operation of law. They however, admitted that no payment of rent was made by the said defendants to them. Defendants 3 and 4 were said to be sub-tenants in respect of the ground-floor of the property and defendant5, a society, was stated to have been claiming itself to be the tenant of the premises, which claim was denied by the plaintiffs. Alleging that they served notices, dated June 13, 1964, on the defendants terminating their tenancies and directing them to band over possession of the property to them, and that the defendants failed to do so, the plaintiffs filed the suit for eviction against the said defendants.

(3) Defendants 1 and 3 to 5 filed a joint written statement in which they asserted that it was defedant 5 who was the tenant of the entire house, that defedant who was then the Amir-e-Jamait of defendant 5 never tools the tenancy in his personal capacity, that defendant 3 was in occupation of the ground-floor and the defendant 4, who is the son of defedant ', was residing with his father. They pleaded that defendant 5 was an unregistered body and, thereforee, the suit against the said defendant was not maintainable. They raised various other pleas, viz., that the civil court had no jurisdiction to try the suit, that the notices alleged to have been served upon them were illegal, that the suit was bad for misguide of parties and causes of action, that the plaintiffs were not the owners of the property in dispute and as such had no right to file the suit, and that the property was not valued properly for purposes of court-fee and jurisdiction.

(4) Defendant 2 filed a separate written statement in which he pleaded that he never attorney to the plaintiffs, that there was no relationship of landlord and tenant between himself and the plaintiffs, that the civil court had no jurisdiction to try the suit in view of sections 3 and 50 of the Delhi Rent Control Act, 1958, that he was a tenant in respect of the first floor of the premises under the Custodian on payment of Ks. 9.37, and that he was not a joint tenant with defendants. He also pleaded that the notice alleged to have been served upon him was illegal and invalid.

(5) On the aforesaid pleadings, the trial court framed the following issues : -

1. Whether the suit is bad for misguide of parties and causes of action ?

2.Whether the plaintiffs have no locus standi to file the present suit ?

3.Whether there is no relationship of Lesser and lessee between the parties ?

3-AWhether the plaint is properly valued for purposes of court-fee and jurisdiction ?

3-BWhether the defendants are entitled to the benefit of section 29 of Act No. 44 of 1954 ?

4.Whether this court has no jurisdiction to try the suit ?

5.Whether the notice of termination of tenancy is bad at law ?

6.Whether the defendant No. 5 in the present form can be sued ?

7.Relief.

(6) By his judgment dated November 13, 1965, the learned Subordinate Judge held on issues 2 and 3 that since the plaintiffs had not paid the full consideration and no sale-certificate or sale deed had been executed in their favor, the title to the property did not pass to them but still vested in the Government, of India, that the plaintiffs, to whom provisional possession of the property was transferred by the Managing Officer, had acquired possessory title and, thereforee, had the right to let out or lease the property, and that they consequently had locus standi to maintain a suit for eviction against tenants or a suit for possession against unauthorised occupants that defendant 2 was an occupant of the first floor as a tenant under the Custodian, that defendant I was in occupation of the ground-floor as a tenant in his own right under the Custodian and he parted with the possession of or sub-let or assigned the same to defendant 3, that defendant 4 was living with defendant 3 being the son of the latter, that defendant 5 had no concern and was not in occupation of any portion of the premises, and that although defendants 1 to 3 did not pay any rent to the plaintiffs defendants l and 2 became the tenants of the plaintiffs by operation of law viz. section 109 of the Transfer of Propert Act. On issue No. 4, he held that the title to the property had not passed to the plaintiffs and the property was still owned by the Government, that since there was no letting by the plaintiffs to the defendants, the proviso to section 3 of the Delhi Rent Control Act did not apply in view of the decision of the Punjab High Court in Attar Lal v. Messrs Lakshmi Dass and Company, L.P.A. No. 139-D of 1963, decided on May 4, 1964, and that the civil court had, thereforee, jurisdiction to try the suit for eviction. Issues Nos. 1, 3-A, 3-B, 5 and 6 were also decided in favor of the plaintiffs and against the defendants. In the result, the learned Subordinate Judge decreed the suit.

(7) Against the said judgment and decree, defendant 2 preferred an appeal, R.C.A. No. 34 of 1966, and defendants 1 and 3 to 5 preferred an appeal, R.C.A. No. 32 of 1966, to the court of Shri D.R. Khanna, Additional Senior Subordinate Judge with enhanced appellate powers, Delhi. By his main judgment in R.C.A. No. 34 of' 1966, dated May 18, 1966, the learned Senior Subordinate Judge held on issue No.3 that the ownership of the property did not pass to the plaintiffs but still vestel in the President of india, that although provisional possession of the property was delivered to the plaintiffs with effect from July 24, 1962, and a letter was issued by the Government of India to defendants 1 and 2 directing them to attorn and pay rent to the plaintiffs from that date, it was clear from the agreement of transfer executed between the Government of India and the plaintiffs that so long as the ownership of the property was not transferred to them, they were to hold the property as licensees thereof, that the plaintiffs were, thereforee, holding the property only as licensees under the President of India, that the license in their favor did not create any interest in the plaintiffs in respect of the property and since the defendants did not attorn or pay any rent to the plaintiffs in pursuance of the letter written to them by the Government, no relationship of landlord and tenant could be said to have come into being between the plaintiffs and defendants 1 and 2 by operation of law viz. section 109 of the Transfer of Property Act, and that the plaintiffs had, thereforee, no locus standi to file the suit for eviction against the defend ants in the civil court. As regards the other issues, the learned Senior Subordinate Judge agreed with the findings of the trial court. In the view taken by him oil issue No.3, the learned Subordinate Judge allowed the two appeals, versed the judgment and decree passed by the trial court, and dismissed the suit for eviction.

(8) Before dealing with points which arise for consideration, it is necessary to recapitulate a few undisputed facts. The house in question was admittedly an evacuee property. It was acquired by the Government of India under section 12 of the Displaced Persons (Compensation and Rehabilitation Act, 1954, and thus formed part of the common pool. By an agreement (Exhibit P.I), dated July 31, 1963, the Managing Officer agreed on behalf of the President of India to transfer the property to the plaintiffs for Rs. 6,201.00. The plaintiffs paid only Rs. 1,242.00 at the time of the agreement and the balance of Rs. 4,968.00 was to be paid by the plaintiffs in two yearly Installments. Provisional possession of the property was given to the plaintiffs with effect from July 24, 1962. The Managing Officer wrote a letter (Exhibit P. 2) to defendants 1 and 2 directing them to pay rent to and deal with the plaintiff directly with effect from July 24, 1962. No sale deed or Certificate of Sale was executed in favor of the plaintiffs -by the Government of India as the balance consideration was not paid. Defendants 1 and 2 did not pay any rent to the plaintiffs. Out of the various issues framed in the suit, the material issues were issues Nos. 3 and 4. The learned Senior Subordinate Judge took the view that since the consideration was not fully paid by the plaintiffs and no sale certificate or sale-deed was executed in their favor, the title to the property did not pass to the plaintiffs but still vested in the Government. It was recited in the agreement (exhibit P.I) that so long as the ownership of the said property was not transferred to the plaintiffs, the latter were to hold the property as licensees thereof. In view of the said rectal, the learned Senior Subordinate Judge held that the plaintiffs were holding the property only as licensees, and that such license did not create any interest in them in respect of the property and, thereforee, the requirement in section 109 of the Transfer of Property Act was not satisfied. Also, the the defendants did not attorn or pay rent to the plaintiffs. On those facts, he held on issue No. 3 that there was no relationship of landlord and tenant between the plaintiffs and defendants 1 and 2, and that they had thereforee, no locus standi to file the suit for eviction against the defendants. As regards issue No. 4, viz. whether the civil court had jurisdiction' to entertain the suit for eviction, the learned. Senior Subordinate Judge did not give any specific finding. He apparently, proceeded, as was done by the trial court, on the footing that since according to the decision in Attar Lal's case (su-prd) the proviso 10 section 3 of the Delhi Rent Control Act did not apply as there was no actual letting by the plaintiffs, the main provision in Section. 3 excluded the premises in question from re applicability of the Rent Control Act, and consequently the suit for eviction could be filed in the civil court.

(9) Shri Sabharwal, learned counsel for the appellant (plaintiffs) contended that the conclusion of the learned Senior Subordinate Judge on issue No. 3 that there was no relationship of landlord and tenant between the plaintiffs and defendants1 and 2, and the plaintiffs had, thereforee, no locus standi to file the suit for eviction, was erroneous. It is, however, to be noted that even if the said contention is accepted, the appellants (plaintiffs) will still have to establish that the suit could be filed in the civil court. This question as regards the jurisdiction of the civil court was the subject matter of issue No. 4, the same has to be considered in the first instance.

(10) As stated earlier, the tills to the premises in question had not passed to the appellants (plaintiffs) and the premises continued to be owned by the Government of India. As the premises belong to the Government, the provisions in the Rent Control Act did not apply to the same .by reason of clause (a) of section 3 of the Act-But, there is a proviso to the section which reads under :-

provided that where any premises belonging to Government have been or are lawfully let by any person by virtue of an arrangement with the Government or otherwise, then, not with standing any judgment or decree or order of any Court or other authority, the provisions of this Act shall apply to such tenancy.',

as can be seen from the proviso quoted above, although the provisions in the Act do not apply to premises belonging to Government by virtue of clause (a) of the section, the said provisions in the Act would apply to premises belonging to the Government 'which have been or are lawfully let by any person by virtue of an arrangement with the Government or otherwise' by reason of the proviso to the section. In Atatr Lal's case (supro) a Division Bench of the High Court of Punjab at Delhi held an auction purchaser or evacuee property who has not yet obtained a sale certificate, but to whom the occupier has attorney, can under the ordinary law maintain a suit for ejectment. The Division Bench took the view that when title has not passed to the auction purchaser, he would not have either title or power 'to let the property', and that mere acceptance of rent under tie directions of the Government under which the tenant has been asked to attorn or pay rent to the auction purchaser does not amount to a letting of the property by the auction purchaser to the tenant within the meaning of the proviso to section 3. In other words, according to the Division Bench, the proviso to section 3 of the Act contemplates an actual letting by the auction purchaser himself to the persons who were tenants under the Custodian before. In view of the said decision, the trial court held on issue No. 4 in the present case that the proviso to section 3 was not attracted and consequently the suit for eviction was maintainable in the civil court. The lower appellate court did not record a specification finding on issue No. 4 but appears to have proceeded on the same basis. It, however, took the view that the suit was not maintainable in the civil court since the plaintiffs were only licensees and, as such, did not have any interest in the property, and since the defendants did not attorn or pay any rent to the plaintiffs in pursance of the letter written by the Managing Officer, no relationship of landlord and tenant could be said to have come into being between the plaintiffs and defendants 1 and 2 by operation of law and consequently the plaintiffs had no locus standi to file the suits.

(11) Subsequent to the filling of the present second appeals, the Supreme Court interpreted the proviso to section 3 of the Delhi Rent Control Act in Shiv Nath etc. V. Mela Ram etc. 1969 R.C.R. 494, and observed at page 498 as follows : -

'EVENif it were assumed that the premises belonged to Government it would have to be held in the circumstances of the case that it was lawfully let by the respondent to the appellants in as-much as the Managing Officer's giving ' provisional possession of the property to the respondent' would really mean delivering symbolical possession of the property to him with the result that a direction on the appellants to pay rent to him would in effect amount to a direction to attorn to him. We are not impressed by the argument that 'letting' within the meaning of proviso can only apply to 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 respondent to the persons who were tenants under the Custodian before.'

Thus, the view expressed in Attar Lal's case (supra) is no longer good law, and for the purpose of the proviso to section 3 of the Delhi Rent Control Act, there need not be actual letting to the persons who were tenants under the Custodian before, by the persons in whose favor an agreement to transfer the property has been executed and to whom provisional possession has also been handed over by the Managing Officer. The handing over of provisional possession to the transferees and the direction to the persons who are tenants under the Custodian before to pay rent to the transferees, would amount to letting by the transferees to said tenants for the purposes of the Delhi Rent Control Act. It is true that in the case before the Supreme Court there was attornment by the tenants as directed by the Managing Officer, while in the present case the tenants did not attorn or pay rent. But, that circumstance is not material because of the definition of the expressions 'landlord' and 'tenant' in the Rent Control Act; (After reproducing judgment proceeds)

(12) It is clear from the above definitions that the appellants (plaintiffs) to whom provisional possession of the premises in question was delivered by the Managing Officer became entitled to receive rent of the premises within the meaning of the definition of 'landlord' and as such they were 'landlords' for the purposes of the Delhi Rent Control Act. Similarly, the persons who were tenants under the Custodian and who were directed by the Managing Officer to pay rent to and deal with the appellants (plaintiffs) are persons by whom the rent for the premises is payale, and as such they were tenants for the purposes of the Act. It has to be noticed that in order to be tenants within the meaning of the Delhi Rent Control Act, it is sufficient if they were liable to pay rent for the premises in question and their liability to pay rent to the appellants (plaimiffs) cams into existence by reason of the direction to them by the Managing Officer to pay the rent to the appellants (plaintiffs). It did not depend upon their attornment or payment of rent to the appellants (plaintiffs). It has also to be noted that the definition of 'landlord' in section 2(e) does not require that he should be fie owner of the premises and, thereforee, the circumstance that title to the premises did not pass to the appellants (plaintiffs) in the present case and they were holding the property as licensees was also immaterial.

(13) Thus, by reason of the handing over of the provisional possession of the premises in question to the appellants (plaintiffs) by the Managing Officer and the direction of the Managing Officer to the persons who were tenants under the Custodian before to pay rent to and deal with the appellants (plain- tiffs attracts the applicability of the proviso to section 3 of the Delhi Rent Control Act. Consequently, although, the title to the premises did not pass to the appellants (plaintiffs) and the premises continued to belong to the Government, the suit for eviction filed by the appellants (plaintiffs) could be filed only before the Controller under the provisions of the Delhi Rent Control Act and not in the civil court. It thereforee, follows that the suit filed by the appellants (plaintiffs) in the civil court was not maintainable in that court, and the decrees of the learned Senior Subordinate Judge have to be maintained though for different reasons.

(14) For the foregoing reasons, the second appeals (Nos. 284-D of 285-D of 1966) fail and are dismissed, but in the circumstances without costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //