V.S. Deshpande, J.
(1) Since we are concerned primarily with the construction of section 25 and secondarily with that of subsections (1) and (4) of section 50 of the Delhi Rent Control Act, 1958 (hereinafter called the Act) it would be best to begin by reading these provisions which are as follows:-
'25.Vacant possession to landlord.-Notwithstanding anything contained in any other law, where the interest of a tenant in any premises is determined for any reason whatsoever and any order is made by the Controller under this Act for the recovery of possession of such premises, the order shall, subject to the provisions of section 18, be binding on all persons who may be in occupation of the premises and possession thereof shall be given to the landlord by evicting all such persons there from : Provided that nothing in this section shall apply to any person who has an independent title to such premises. 50. Jurisdiction of civil courts barred in respect of certain matters.-(1) Save as otherwise expressly provided in this Act, no civil court shall entertain any suit or proceeding in so far as it relates to the fixation of standard rent in relation to any premises to which this Act applies or to evicting of any tenant there from or to any matter which Controller is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any civil court or other authority. (4) Nothing in sub-section (1), shall be construed as preventing a civil court from entertaining any suit or proceeding for the decision of any question of title to any premises to which this Act applies or any question as to the person or persons who are entitled to receive the rent of such premises.'
(2) The questions which arise for decision on the facts to be stated later are as below, namely :-
1.What persons are liable to be evicted from the premises for the possession of which the landlord has obtained an order against a tenant 2. Whether a person asserting to be a tenant of the landlord can resist the execution of the order for eviction on the ground that the order was not passed against him or against any person from whom he derives his title and 3. Whether the question if such a person is a tenant or not has to be decided first by the Controller under the Act and ultimately by the civil court ?
(3) One Pishori Lal was the tenant of the landlord Takan Dass in respect of these premises. Pishori Lal died in 1957. His heire under the Hindu law are the widow Vidyawanti (appellant herein), three sons of which the eldest was Tarlochan Lal and three daughters. The landlord filed a petition for eviction in 1964 against Tarlochan Lal alone alleging that he alone was the tenant. In the eviction petition, no reference was made to the fact that the original tenant was Pishori Lal. Nor was any reference made to the fact that Pishori Lal had left heirs other than Tarlochan Lal. On April 12, 1967, the landlord obtained an order for eviction against Tarlochan Lal. The first and second appeals filed by Tarlochan Lal against the order for eviction. were dismissed by the Rent Control Tribunal and the High Court. Time to vacate the premises had been given to Tarlochan Lal till June 12, 1970. On May 7, 1970 another son of Pishori Lal filed a civil suit for declaration and injunction against the landlord but the suit was dismissed, and the appeal and the revision against the dismissal also failed. The widow Vidyawanti then filed a civil suit against the landlord for injunction. It was averred that after the death of Pishori Lal, the tenancy was inherited by all his heirs including the widow Vidyawanti. As Tarlochan Lal did not pull on well with the other heirs, a partition took place by virtue of which Tarlochan Lal was allotted some other premises while the present premises fell to the share of the other heirs of Pishori Lal on September 9, 1958. The landlord was thus not justified in filing an application for eviction against Tarlochan Lal along in 1964 as at that time Tarlochan, Lal had no interest in the premises at all. Order for eviction obtained by the landlord against Tarlochan Lal was not, thereforee, binding on the other heirs of Pishori Lal who were the real tenants of the premises. During the pendency of the suit) an application for temporary injunction restraining the landlord from taking possession was made by the plaintiff Vidyawanti. That application was dismissed by the trial Court and the appeal against the said dismissal was also rejected by the first appellate Court. Vidyawanti then filed a revision under section 115 Civil Procedure Code in the High Court. The said revision came up for hearing before one of us (Deshpande, J.) and was dismissed with the following observation:-
'ONthe allegations made by the petitioner, her proper remedy was to make an application under the proviso to section 25 of the Delhi Rent Control Act, 1958. The dispossession of the petitioner is, thereforee, stayed for ten days to enable her to make the necessary application to the Controller.'
(4) Accordingly Vidyawanti filed an application under section 25 but it was dismissed in liming as being not maintainable by the Controller on the ground that Vidyawanti claimed a title to the premises independently of Tarlochan Lal against whom the order for eviction was passed but not independently of the landlord in favor of whom the order for eviction was passed. The Controller purported to rely upon the decision of one of us (Rangarajan, J.) in Dev Raj Gupta v. M/s. Daulat Ram Public Trust (1972) 11 Delhi 323 (1). According to the Controller, in that decision, an order for eviction had been passed in fovour of the landlord and the execution thereof was resisted by an objector under section 25 on the ground that the objector was itself the tenant of the landlord, but it was held that such an objection could not be filed under section 25 of the Act. The appeal against the dismissal of Vidyawanti's objection under section 25 was also dismissed by the Rent Control Tribunal on the ground that the objector Vidyawanti had not alleged a title to the premises which was independent of the landlord even though it may be independent of the tenant against whom the order for eviction had been passed. He also purported to rely on the decision in Dev Raj Gupta's case. Hence this second appeal by Vidyawanti which was referred to Division Bench in view of the importance of the questions relating to the proper construction of section 25 of the Act. We may now deal with the questions for decision set out above in the light of these facts.
(5) Question NO. 1 :- The scheme of the Act makes it clear that it deals with a pre-existing relationship of landlord and tenant. The relationship is not created by or under the Act. It is created under the Transfer of Property Act or under an agreement or any other relevant law under which an interest in the premises belonging to the landlord is created in favor of a tenant and such an interest amounts to a lease. The Act presupposes the existence of the relationship. This is why the contractual relationship of landlord and tenant has to be first terminated by the landlord by a notice to quit under section 106 of the Transfer of property Act before a petition for eviction under the Act can be filed by him. Batto Mal v. Rameshwar Nath (1970) 1 Delhi (748), (2). Section 14 of the Act dealing with the eviction of a tenant by the landlord presupposes that the relationship of landlord and tenant exists and then proceeds to lay down that the landlord shall not evict his tenant except on certain specified grounds.
(6) Section 37(2) of the Act provides that the Controller shall, in such a proceeding for eviction, follow, as far as may be, the practice and procedure of a Court of small Causes and section 42 of the Act provides that an order for eviction shall be executable by the Controller as a decree of a civil court and for this purpose the Controller shall have all the powers of a civil court. The basic principle of the procedure laid down in Order Xxi rules 35 and 36 Civil Procedure Code is that a decree or an order is binding only on the parties and not on a person who is not a party to the proceeding in which the order is passed. Similarly, such an order can be executed only against the person against whom it is passed including all persons who claimed through the said judgment-debtor. Under rule 99 of order Xxi of the Civil Procedure Code, a person in possession of the property on his own account and on account of some person other than the judgment-debtor can resist the execution of a decree for possession on the ground that he was not bound by the decree and cannot be dispossessed in execution thereof. If he is dispossessed, under rule 100 of Order Xxi he can claim to be put back into possession. In view of sections 37(2) and 42 of the Act. the analogy of the above provisions of the Civil Procedure Code has to be applied to a proper construction of section 25.
(7) Section 25 is divided into two parts. The substantive part of the section describes the persons on whom the order for the recovery of possession of the premises is binding and who are, thereforee, liable to be evicted in execution of this order. These are 'all persons who may be in occupation of the premises'. The word 'occupation' is neutral. It only signifies the physical occupation of the premises. It does not indicate, or imply any interest in or title to the premises or the lack of it in the occupant. It seems to be used in contradistinction with the words 'where the interest of a tenant in any premises is determined.' The interest in the premises had been of the tenant and that has been determined. The implication is that such an interest is not possessed by the persons in occupation. Similarly, the words 'vacant possession thereof shall be given to the landlord by evicting all such persons there from' also show that the landlord is entitled to possession because of the termination of the interest of the tenant. The occupants were not in legal possession of the premises and they have, thereforee, to be evicted. The word 'occupation' does not, thereforee, apparently amount to legal possession of the premises. The second part of section 25 consists of the proviso. The word 'occupation' used in the substantive part is general and wide. It has been well said that the purpose of a proviso is to be 'a qualification of the preceding enactment which is expressed in terms too general to be quite accurate' (Local Government Board v. South Stoneham Union (1909) A.C. 57 per Lord Maonaghten (HL)(3). Because the word 'occupation' can include occupation with or without title, it is clarified in the proviso that it is to be restricted only to occupation without 'an independent title'. A person who has an independent title to the premises would not be included in 'persons who may be in occupation of the premises'. It is by reading the two parts of section 25 together that we can ascertain as to who are the persons who are liable to be evicted from the premises. Since the order for possession is binding only on the tenant whose interest has been determined and against whom it has been passed it follows that it is not binding on a person who claims a title to the premises independent of the tenant. The word 'title' is also wide enough to include two different concepts, namely, (1) a right to or interest in property and (2) a right to obtain a relief from a court or from some other authority. Even in the first sense, the word 'title' is not restricted to the ownership of the property. It includes any interest in or right to property. Such interests may be that of a lessee or a mortgagee or of an owner. It is obvious that a person whose title is independent to the title of the landlord himself and against whom the order for eviction is not passed will certainly be covered by the proviso and will be excluded from the substantive part of section 25. This needs no argument at all. But the question is whether a person whose title to the premises is not that of an owner and is not independent of the landlord can be covered by the proviso and excluded from the substantive part of section 25. We are of the view that a person who claims to be the real tenant of the landlord as distinguished from the person against whom the order for possession has been passed in favor of the land lord claims a title which is 'independent' within the meaning of the proviso. For, the order is binding only on the person against whom it was passed on the assumption that such a person was a tenant of the landlord. It is not binding on a person who claims to be a tenant of the landlord in his own right and who does not claim through the person against whom the order was passed. For, the word 'title' can include the title of a tenant and is not restricted to the title of an owner.
(8) Shri K. L. Arya, learned counsel for the respondent No. 1 contended that the word 'title' should be restricted to ownership of the premises and, thereforee, only a person claiming a title to the premises independent of the landlord should alone be covered by the proviso to section 25. But a person who claims only to be a tenant of the landlord should not be held to have independent title to the premises within the meaning of the proviso. He argued that the word 'title' in the proviso to section 25 should have the same meaning as the word 'title' in sub-section (4) of section 50. According to him, the word 'title' in sub-section (4) of section 50 means only ownership of the premises and does not include only a tenancy of the premises. We are unable to accept this contention. The scheme of sub-sections (1) and (4) of section 50 appears to us to be as follows. Sub-section (1) specifies the questions which are to be within the exclusive jurisdiction of the Controller such as (1) fixation of standard rent, (2) eviction of a tenant and (3) 'any other matter which the Controller is empowered by or under this Act to decide'. These questions are excluded from the jurisdiction of the civil court. Subsection (4) describes the questions which continue to remain within the jurisdiction of the civil court and are not put into the exclusive jurisdiction of the Controller. These questions are 'any question of title to any premises to which this Act applies' and 'any question as to the person or persons who are entitled to receive the rent of such premises'. The true test as to a matter which is included in the exclusive jurisdiction of the Controller is that under the provisions of the Act, it must be within the exclusive jurisdiction of the Controller to decide. We have already stated above that the formation of the relationship of a landlord and tenant and the existence of such relationship is not to be decided by the Controller under any of the provisions of the Act. The same test was adopted by the Supreme Court in Mohammed Mehmood v. Tikam Das, : 1SCR128 , in construing the words 'title to any accommodation' in section 45(2) of the Madhya Pradesh Accommodation Control Act, 1961. In the words of Sarkar, J. who spoke for the Court, these words mean 'a right to or interest in property existing otherwise than under the Act and not those created by it'. It was, thereforee, held that these words did not include a sub-tenant's right created by the Act to be treated under certain circumstances as the direct tenant of the landlord. On the other hand. a person whose title had ripened into that of a tenant from that of a sub-tenant before the commencement of the Delhi Rent Control Act, 1958 in view of section 20 of the Delhi and Ajmer Rent Control .Act, 1952 on the termination of the tenancy of the tenant under whom he had held and who had, thereforee, automatically become a tenant in his own right was a person who had a title to the premises and, thereforee, a suit by him to establish his title to the premises as a tenant was competent in a civil court in view of sub-section (4) of section 50 as held by the Supreme Court in Nand Kishore v. Ram Kishan : 1SCR167 . These two decisions bring out the contrast between a title created by the Act which is to be decided exclusively by the Controller and a title which exists outside the Act and which can be decided by the civil court.
(9) The title which the appellant Vidyawanti claimed to the premises in her application made under the proviso to section 25 of the Act was that she was a tenant in her own right. The maintainability of her application had to be considered by the Controller on the assumption that her allegations were true. The truth or falsity thereof could be found later only by deciding the merits of the application. On her allegations, all the heirs of the deceased Pishori Lal inherited the tenancy. The question, thereforee, arose whether the heirs of Pishori Lal were joint tenants or only co-tenants. The answer to this question is given by section 19(b) of the Hindu Succession Act, 1956. The concept of joint tenancy is a peculiarity of the English common law. As observed by the Privy Council in Jogeswar Narain Deo v. Ram Chandra Dutt I.L.R. Cal 670 (6), 'the principle of joint tenancy appears to be unknown to Hindu law, except in the case of co-parcenary between the members of an undivided family'. This analogy with English law, though imperfect, has since been established as was recognised by the Federal Court in the matter of the Hindu Womens' Rights to Property Act . But joint tenancy was restricted in Hindu law to the relations between the coparceners. It had no application outside the coparcenery. thereforee, in India, the Courts strongly leaned against joint tenancy. As pointed out by Mulla in his commentary on the Transfer of Property Act, 6th Edition, pages 638-639-
1 'JOINTtenants have a unity of title............Tenants in common have unity of possession but not unity of title.'
Therefore, if one of the joint tenants dies, the other joint tenant takes his interest by survivorship. On the contrary, if one of the co-tenants -dies, his interest will pass to his own legal heirs and will not go to the other co-tenants by way of survivorship. In view of section 19(b) of the Hindu Succession Act, 1956, the heirs of Pishori Lal inherited the tenancy as co-tenants and not as joint tenants. They had unity of possession but no unity of title. The title of Tarlochan Lal was, thereforee, to his own share. It did not extend to the shares of the other co-tenants. It is a question of fact in each case whether one of the co-tenants is authorised by the other cotenants to represent them. It was not the case of the landlord, when he obtained an order for eviction against Tarlochan Lal, that Tarlochan Lal represented the interests of the other co-tenants. The presumption, thereforee, is that Tarlochan Lal represented his own interest. It would follow, thereforee, that the interests of the other co-tenants were not represented by Tarlochan Lal. The order for eviction against Tarlochan Lal was not, thereforee, binding on the other co-tenants. The reference by the Controller to the decision of the Supreme Court in Konji Manji v. The Trustees of the Port of Bombay, : AIR1963SC468 , was not appropriate. For, the Supreme Court had found that they were dealing with the case of joint tenants. That decision is explained by the. finding arrived at of joint tenancy. On the other hand, in the case before us, there is no such finding. That decision has, thereforee, no application. The question whether there was a partition between Tarlochan Lal on the one hand and the other co-tenants on the other hand is one of fact to be inquired into on merits by the Controller. Even if it is assumed that there was such a partition, the landlord was not a party to it and has not recognised it. The right of the landlord to hold all the co-tenants as liable to pay rent to him and, thereforee, as being liable to be evicted by the landlord is not, thereforee, effected by any internal partition among the co-tenants. [See Note 6 in the Air Commentaries on the Transfer of Property Act, section 108 (Fourth Edition)] Vidyawanti may not thereforee, be correct in asserting that Tarlochan Lal was not even a co-tenant. The decision against the other son of Vidyawanti in a civil suit between him and the landlord may also operate as rest judicata. thereforee, the landlord may have succeeded in establishing that the interests of Tarlochan Lal and his brother in the tenancy have been determined. Nevertheless, the interests of Vidyawanti and the other co-tenants does not seem to have been so determined. Vidyawanti, thereforee, could claim the right to be heard by the Controller under the proviso to section 25 of the Act. Her application could not, thereforee, be dismissed in liming, as being not maintainable, by the Controller.
(10) Question NO. 2: For the reasons given under Question No. 1 above, it is clear to us that a person who asserts to be a tenant of the landlord and who does not claim through the person against whom the order for eviction has been passed is a person having an independent title to the premises within the meaning of the proviso to section 25.
(11) Question NO. 3: As pointed out by one of us (Deshpande, J.) in Mrs. D. David v. Mrs. R. Makha 1972 R.C.R. 253 (9), the proper procedure under the Act is that in an application by the landlord for the eviction of a person alleged to be his tenant, the jurisdiction of the Controller is not lost merely because the alleged tenant denies the relationship of landlord and tenant. (See also Babulal v. Nandram, : 1SCR367 ). The Controller has to make an inquiry into such relationship and decide whether it existed from before the filing of an application for eviction by the landlord. But this decision binds the parties only for the purpose of the proceeding before the Controller. It is not, however, final. For, under sub-section (4) of section 50 of the Act, the person aggrieved by the decision can go to the civil court to get the question of title decided by the civil court. For instance, a person who alleges himself to be the tenant and whose tenancy is denied by the landlord as well as the landlord who alleges that the person is not his tenant, can go to the civil court to substantiate his contention. Ordinarily, only such a person will go to the civil court who has failed to get a favorable order from the Controller. In the present case, thereforee, the Controller will try the application of Vidyawanti on merits. After the decision of the Controller is known, the party against whom the decision is given will be free to go to the civil court under sub-section (4) of section 50. As Vidyawanti's suit is already pending in a civil court, she will pursue the suit only if she is unsuccessful in establishing her title before the Controller under section 25. If she succeeds before the Controller under section 25, it would be unnecessary for her to pursue the civil suit. In that event, it would be for the landlord to go to the civil court to rebut the title made good by Vidyawanti before the Controller.
(12) We are, thereforee, of the view that the observation made by one of us (Deshpande, J.) in dismissing the revision of Vidyawanti against the dismissal of her appeal against the rejection of her application for temporary injunction in the suit pending before the trial court, expressed the correct legal position, namely, that the proper remedy of Vidyawanti was to file an application under section 25 of the Delhi Rent Control Act, 1958 before the Controller. We are also of the view that the decision in Dev Raj Gupta's case (including the observation therein quoted by the Tribunal) has not been properly understood by the Controller an the Tribunal. What was decided therein was that the order of eviction passed by the Rent Controller, which has to be executed by recourse to a provision (section 42 of the Act), deeming it to be a decree or order passed by the civil court, cannot be invested with consequences graver than that of a decree or order passed by the civil court except to the extent specifically provided by this statute. The persons in possession under an 'independent title' could not be dispossessed in execution of an order of eviction not obtained as against them. Two different illustrations were given to explain what was meant by the expression 'independent title', (1) a person claiming independently of the landlord, and (2) a person putting forward a claim on behalf of or derived from one who was a tenant of the landlord. The former could, but the latter could not, apply under section 25 of the Act. These illustrations were obviously not exhaustive. The question which arises in the present case, of persons claiming to be in possession in their own right as tenants-in-common without their tenancy being determined and without their claiming any rights on behalf of or derived from the tenant/s against whom a decree for eviction was obtained, did not fall for consideration in that case; being not so common an occurrence the same was not added to the illustrations given.
(13) For the above reasons, the appeal is allowed, the decisions of the Controller and the Tirbunal are set aside and the application of Vidyawanti made under the proviso to section 25 of the Act is sent back to the Controller for consideration on merits. In the circumstances, there will be no order as to costs. Parties to appear before Shri V. S. Agrawal on 3-12-73 Case to be disposed of expenditiouly.