(1) This appeal is directed against the decree dated the 20th of November, 1962 made by Shri M.L. Mirchia, Sub Judge 1st Class, Delhi by which he dismissed the appellants, suit for possession, raises the short question whether the respondent was a tenant in the property in suit and could avail of the protection enuring out of that status.
(2) The appeal arises out of a suit instituted by Shukhdev Raj Nanda and Smt. Lila Nanda against the present respondent for the possession of house No. 1112-12 (new) situated at Gail No. 12, Naiwala, Karol Bagh, Delhi and for the recovery of Rs. 75,0000 as damages and mesne profits or license fee for the period 12-5-1958.
(3) The plaintiffs alleged that they were the owners of the property in suit which had originally belonged to Chaudhari Noor Mohd. who had mortgaged the same with possession with M/s. Ideal Bank Ltd., Fatehpuri, Delhi for a sum of Rs. 15,000.00. Chaudhary Noor Mohd. had subsequently created further mortgages on the said house in favor of M/s. Ideal Bank Ltd. for various loans advanced to him. The mortgagor having left for Pakistan the house was declared as evacuee property and on the application preferred by the Ideal Bank Ltd. the Competent Officer held that it was a composite property which was to be sold by public auction. The plaintiffs alleged that they had purchased the house on the 18th of March, 1958 at the auction held by the Competent Officer for a sum of Rs. 23,200.00 and the sale was confirmed on the 12th of May, 1958. It was asserted in paragraph 6 of the plaint that defendant the respondent herein) was in unauthorised occcupation of the house and had no right, interest or whatsoever to remain in possession. It was emphasised that the defendants's possession was that of a trespasser and at any rate not more than that of a licensee. Paragraph 7 stated that the plaintiffs had given registered notices dated the 15th of October, 1958 and the 25th of October 1958 to the defendant calling upon him to vacate the house and deliver its possession to them with which he had not complied.
(4) The plaintiffs have not kept the court in the dark about the stand of defendant and clearly stated in paragraph 8 of the plaint that the defendant was falsely claiming that his possession was that of a tenant. So, in paragraph 9 of the plaint the plaintiffs had taken an alternative plea that in case the defendant was to take the stand that he was in possession as a tenant and the Court was to come to that conclusion even then they were entitled to eject him for the three reasons stated therein. They claimed damages and mesne profits for the period May 12, 1958 till November 11, 1958 at the rate of Rs. 125.00 per month.
(5) The defendant filed a detailed written statement. The plea with which we have become concerned and in respect whereof arguments have been addressed was contained in paragraph 8 of the written statement. The averments in the plaint required of him to adopt a precise plea regarding his status. The defendant stated in the afore-mentioned paragraph that the house in suit was auctioned in execution of a derece abtained by Chhuttan Lal against Chaudhari Noor Mohd. At the auction one Shri R.M. Mehta was stated to have purchased the house for a sum of Rs. 9,300.00 subject to the mortage of Rs. 8,000.00 in favor of the Ideal Bank Ltd. It was then asserted that the defendant had entered into an agreement dated the 27th of May, 1950 with the auction purchaser in terms whereof he obtained the possession of the house as an intending purchaser. The defendant admitted that the Custodian of evacuee property made an application on the 4th of October, 1950 impugning the auction sale in favor of Shri R.M. Mehta and by an order passed on the 10th of February, 1950 the sale was set aside. According to the defendant he had occupied the house in dispute in the end of May, 1953 and started using the premises for his professional business as well as for his residence. The defendant then proceeded to state that when the Custodian became entitled to recover the rent he was recognized as a tenant and the house continued to be used by him principally for his professional business.
(6) The defendant denied that the plaintiffs had become his landlords. He, however, pleaded that even if it was found that they had become the landlords they were not entitled to eject him from the house on the grounds contained in paragraph 9 of the plaint. In several places the written statement stated that at all material times the defendant was a tenant, It is significant that while making the said assertions the defendant never averred that on any particular date anyone had let out the premises to him. It was nowhere pleaded that the house in dispute had been allotted or leased out by the Custodian.
(7) Taking into consideration the subject matter in controversy the trial Court framed the following issues :-
(1)Whether the plaintiff is the owner of the premises in dispute O.P.P.
(2)Whether the defendant was in lawful possession of the premises in dispute at the time of the alleged transfer in favor of the plaintiff (Onus objected to) O.P.D.
(3)If issue No. 2 is proved, whether the defendant is not a tenant in the premises in dispute? O.P,P.
(4)Whether the defendant is liable to be ejected from the premises in dispute per grounds alleged in the plaint O.P.P.
(5)What is the effect of Act No. 52 of 1958 on the present suit O.P.D.
(6)To what amount is the plaintiff entitled on account of rent or mesne profits ?
(7)What is the standard rent of the premises in dispute O.P.D.
Shri Balwant Singh Sekhon, the Sub Judge who was dealing with the case on the 23rd of May, 1959 deleted issue No. 2 and issue No. 3 was recast as under :--
'WHETHERthe defendant is a tenant in the premises in suit as alleged in the written statement ?
THEissue so recast placed the burden on the defendant to prove that he was a tenant in the premises in suit. The trial Court found under issue No. 1 that the plaintiffs had become the owners of the property in question as evidence by the sale certificate Exhibt P. I. Shri S. L. Bhatia. who has appeard for the defendant-respondent before us has not challenged that finding.
(7A) Arguments have been mainly addressed by the counsel appearing for the parties in respect of the finding recorded under issue No. 3. The trial Court took the view that Shri R. M. Mehta who had purchased the house at the auction had agreed to sell the same to the defendant and had delivered its possession in anticipation of the sale and that the possession of the defendant so obtained was regular in the beginning. We cannot agree with the finding of the trial Court that the initial possession of the defendant was regular. Once the auction sale was set aside, all actions of Shri R.M. Mehta, including his handing over the possession of the property to the defendant, cease to be valid or binding in the eye of law. The possession of the defendant become that of a a person who had occupied the premises without the authority of law. The setting aside of the sale dis
(8) The tal Court referred to the proceedings for fixation of standard rent and held that by the admissions made on behalf of the Custodian of Evacuee Property the defendant became allotee. Taking into consideration that the defendant had been asked to deposit rent as evidenced by Ex. D. 1 and holding that Ex. D. 2 was the receipt in respect of the deposit of rent the trial Court after referring to Ex. D. 13 and Ex. D. 15 and after discussing the oral testiony furnished by the depositions of Shri O.P. Bhalla and the defendant concluded that the defendant had succeeded in establishing that he was a tenant in the premises in suit. On that basis the Court below proceeded to deal with issue No. 4 and held that the plaintiffs had failed to establish that they could on the grounds stated in paragraph 9 of the plaint ask for the eviction of the defendant. As observed earlier the counsel for the appellants has challenged the finding that the defendant-respondent was a tenant and the arguments have remained confined to that controversy.
(9) It is clear that the Custodian of Evacuee Property at no time made any order allotting the property in dispute to the defendant. According to the assertions in the written statement, the defendant had obtained possession from Shri R.L. Mehta whose ownership acquired through the purchase at the auction, was extinguished by the order setting aside the sale itself. Shri R.L. Mehta had not let out the premises to the defendant. According to the defendant he acquired possession because of an agreement with Shri R.L. Mehta which postulated that the property will be sold to him. Shri R.L. Mehta lost the right to sell the property. The Custodian of Evacuee Property in the said situation found a person in occupation of Evacuee property and exercising the right to manage the same assessed 'rent' which the defendant alleged was deposited in terms of Ex. D. 2. The document as printed at page 336 of the paper book contains omissions. We have seen the original in which after the word 'rent' the words 'license fee/lease money' occur. By itself the document does not show that the Custodian accepted the amount of Rs. 1809-7-0 as rent. The learned counsel appearing for the defendant-respondent places reliance on several documents to urge that the Custodian had determined the rent in respect of the property in dispute and the deposit made through Ex. D. 2 was that of rent and it should be concluded that because of the demand and deposit of rent respondent had acquired the status of a tenant. Ex. D. 1 is a letter which purports to have been written by Shri O.P. Bhalla, Assistant Custodian to the respondent. It is stated therein that the rent had been reduced from Rs. 115.00 to Rs. 65-13.00 per month and that the reduction was to take effect, from the date of occupation. We are also referred to the order passed by Shri Tara Chand Aggarwal, Deputy Custodian General on the 29th of June, 1955 by which a revision filed by the respondent regarding the fixation of rent was disposed of. The rent had been fixed at Rs. 65/13.00per month which according to the language used in the order was to be charged from the tenant from the date of his occupation and the arrears were to be recovered in small number of suitable Installments. The Deputy Custodian General refused to interfere with the quantum of rent fixed and in the opening part of the order Deputy Custodian General did not observe the distinction between rent and license fee. Reliance has been placed on behalf of the respondent on Ex. D. 12 and Ex. D. 13. It is pointed out that in proceedings initiated for fixation of standard rent with which Shri Basant Lal Aggarwal. Sub Judge 1st Class, Delhi was then dealing, the Custodian of Evacuee property had filed the written statement in paragraph 4 whereof it was stated :-
'IT is further submitted that the present respondent has since then become entitled to collect rent of the house from the applicant'.
ONthe basis of the said quotation it is urged that the Custodian had at one time admitted that he had become entitled to collect rent from the respondent.
(10) In Ex. D. 13 there are facts admitted by Shri D.N. Nijhawan as attorney for the Custodian for the purpose of the particular application. The six admissions have been persed by us. Out of them reliance is placed on the sixth, which is :-
'6.That the Custodian has now become entitled to recover rent of the house from the applicant.'
In none of the documents relied upon by the respondent the Custodian made any averment that the premises had been at any time let out to him and any lease had ever been granted. Apart from the aforesaid document the learned counsel appearing for the respondent ha.s drawn our attention to Ex. D. 4 and Ex. Cw 1/1. Ex. 1/1 is dated the the 31st of July, 1957 and the subject of it is the property in dispute. Shri O.P. Bhalla, Assistant Custodian dealt with the occupation of the premises, particularly with the rent due in respect thereof, but while doing that observed at the end ;-
'ASregards the question whether his occupation can be recognised he should be summoned again'
It is clear that on the 31st July, 1954 the nature of the occupation was in controversy. The Custodian had not regularised the occupation of the defendant nor had he recognised the defendants status as claimed. It is also manifest that defendant respondent was making an effort to establish his status. The second document Ex. D. 4 is dated the 8th January, 1956 and is subsequent to Ex. CW1/1. It was addressed by the respondent to the Custodian of Evacuee Property. Its subject was the grant of lease of the House in dispute. It clearly made the request :-
'ASrequired by the Government of India's Press Note 1 hereby apply for formal grant of lease of the above house in my favor by your goodself.'
In another part the respondent stated in the same document :-
'I have as directed by Shri O.P. Bhalla, Assistant Custodian, made arrangements to pay the entire balance of Rs. 1809/7.00under protest so that I may be entitled to the benefit under the Press Communique of the Government of India for the formal and regular grant of lease of the house in my favor.'
(11) It may be noticed that Ex. D. 2 is dated the 13th of January, 1956 and the posit was made after about 5 days of the writing of Ex. D. 4. At that time as the questions from Ex. D. 4 show the respondent was urging that he should be granted a formal and regular lease of the house. He knew that he did not possess the status either of an allottee or tenant. A combined consideration of Ex. CW1/1 and Ex. D.4 leads us to the conclusion that although the deposit was made as shown by Ex. D. 2 the Custodian of Evacuee Property had not recognized the status of the defendant respondent and the defendant- respondent was very much urging that he should be granted a lease. It is not pleaded in the written statement that any lease was ever granted. It remains unestablished that the property was ever let out to the respondent. The status of the respondent could not, at the best be more than that of a license. The acceptance of the amount while issuing the receipt Ex. D. 2 was not as 'rent'. The original document contains the words 'rent/ license fee/lease money'. It was open to the official issuing the receipt to cut out superfluous words and confine the receipt to the recovery of rent. That was not done. If it be visualised that on accepting the amount from the respondent on account of his occupation of the house in the absence of an order of allotment and without the grant of lease the Custodian of Evacuee Property allowed him to remain in possession then the license, if any, came to an end when the property was transferred to the plaintiffs-appellants. Section 59 in the Indian Easements Act, 1882 is :-
'S. 59. When the grantor of the license transfers the property affected thereby, the transferee is not as such bound by the license.'
(11A) The plaintiffs-appellants after acquiring ownership of the property issued notices to the respondent on the 15th of October, 1958 and on the 25th of October, 1958 demanding possession of the property on the ground that he was in illegal and unlawful occupation. Section 61 of the Indian Easements Act prescribes that the revoction of a license may be express or implied. The notices issued by the plaintiffs-appellants amounted to clear revoction of the license. Taking into consideration sections 59 and 61 of the Indian Easements Act we come to the conclusion that even if the defendant respondent was occupying the property as a licensee, the license stood revoked because of the transfer of the ownership of the property to the plaintiffs-appellants and the issuing of the two notices by them demanding possession from the respondent.
(12) We may notice that in terms of section 8(4) of Act 31 of 1950 after the vesting of the Evacuee Property in the Custodian the person in occupation thereof was to be deemed to be holding it on behalf of the Custodian. Such a person was liable to surrender the possession of the property to the Custodian whenever the Custodian was to make the demand. In this case the house in dispute had unquestionably become evacuee property and the respondent who was holding the possession on behalf of the Custodian of Evacuee Property was liable to surrender the same. Such a person was in no view of the law a tenant in the property in dispute.
(13) The learned counsel appearing for the appellant has placed reliance on the observations contained in Dr. H.S. Rikhy v. The New Delhi Municipal Gammittee, : 3SCR604 and has urged that the acceptance of the amount for occupation of the premises even though it may have been called 'rent' did not create any tenancy in favor of the respondent. In paragraph 6 of the judgment while dealing with the consequence of the use of the word 'rent' the Supreme Court, observed :-
'ITmay be used in the legal sense of recompense paid by the tenant to the landlord for the exclusive possession of premises occupied by him. it may also be used in the generic sense, without importing the legal significance aforesaid of compensation for use and occupation. 'Rent' in the legal sense can only be reserved on a demise of immovable property. Reference may be made in this connection to paragraph 1193 and 1194 of Halsbury's Laws of England (Third Edition, Vol. 23) at pages 536-537. Hence the use of the term 'rent' cannot preclude the landlord from pleading that there was no relationship of landlord and tenant. The question must thereforee depend upon whether or not there was a relationship of landlord and tenant in the sense that there was a transfer of interest by the landlord in favor of the tenant.'
(14) In this case the respondent never pleaded that the property had ever been let out to him by any landlord. A consideration of Ex. D. 4 & Ex. CW1/1 affirm what the nature of his occupation of the disputed house in controversy was. No order passed by the Custodian has been shown to us by which the property may have been leased out or allotted to the respondent. The use of the word 'rent' could not by itself confer under the law the status of a tenant on an occupant of any kind of immovable property including evacuee property. In each case the occupant will have to establish the nature of his occupation. Issue No. 3 as recast required the respondent of necessity to prove that he was a tenant in the property. In our view he has failed to establish the same. The suit for possession of the house in dispute is thereforee decreed and the appeal is allowed with costs.