Sultan Singh, J.
(1) This second appeal under Section 100 of the Code of Civil Procedure (hereinafter called 'the code)') on behalf of Manohar Singh, defendant No. I is directed against the judgment and decree dated 20th January, 1978 of the Additional District Judge, Delhi confirming the decree and judgment dated 25th March, 1975 of the Subordinate Judge, 1st Class, Delhi whereby a decree for possession and mesne profits was passed in favor of Shri Ram Nath Chitkara, Advocate-plaintiff against the appellant and respondent No. 2 Smt. Geeta.
(2) The plaintiff purchased the property known as 'Light Building' situated at 58, G. B. Road, Delhi bearing Municipal No. 5377 by means of a sale deed dated 10th August 1964. One Smt. Jamna was a tenant at Rs. 23.00 per mensern in a portion of the second floor of the said property. She used to carry on the business of dancing and singing in the said premises. Defendants I and 2 were her employees and agents for the purposes of the said business. The plaintiff by notice dated 22nd January, 1969, terminated the tenancy of Smt Jamna requiring her to vacate the premises by 28th February, 1969. This notice was duly served. She however, died on 23rd January, 1970. The plaintiff on 24 March, 1970 filed the present suit out of which this second appeal has arisen for possession of the said premises and 46.00 as damages at the rate of Rs. 23.00 per month for a period of two months up to the date of the suit. The plaintiff alleges that the defendants are in unauthorised possession of the premises and carrying on the business of dancing and singing therein although they have no right, title and interest after the termination of tenancy of Smt. Jamna and her death. The defendants i.e. appellant and respondent No. 2 by a common written statement plead that the premises were let to the appellant and Smt. Jamna, that the appellant was the husband of Smt. Jamna, that they were carrying on business of dancing and singing in the suit premises and that after the death of Smt. Jamna, the appellant alone has been carrying on the said business. It is further pleaded that the defendants have been residing in the premises as members of the family of Smt. Jamna. It is alleged that the tenancy of Smt. Jamna was never terminated. It is further pleaded by the appellant that as the tenancy of Smt. Jamna was never terminated he being her husband, is entitled to inherit the tenancy rights. The plaintiff in his replication specifically denied that Smt. Jamna was the wife of the appellant. In other words, it is alleged by him that the appellant was not the husband of Smt. Jamna, that Smt. Jamna alone was tenant in the suit premises and her tenancy was duly terminated. It is further alleged by the plaintiff that the appellant is not the tenant and and is not entitled to in her it the tenancy rights as Smt. Jamna was a statutory tenant. The trial court by judgment dated 25th March, 1975 held that the plaintiff is the owner of the suit property, that the tenancy of Smt. Jamna was validly terminated during her life time, that the appellant was not a tenant along with Smt. Jamna, that he was not the husband of Smt. Jamna and thereforee he was not entitled to inherit the tenancy rights, that he was not residing with Smt. Jamna in the suit premises. The trial court, thereforee, passed a decree for possession against the defendants with respect to the suit premises and a decree for Rs. 46.00 on account of mesne profits with costs besides future mesne profits @ Rs. 23.00 per month till 'the date of delivery of possession of the premises to the plaintiff.
(3) The defendants filed the first appeal on 5th June, 1975. On 1st December, 1975 the definition of the word 'tenant' in the Delhi Rent Control Act, 1958 (hereinafter called 'the Act') was amended with retrospective effect by means of ordinance which was subsequently replaced by Act 18 of 1976. The defendants thereforee on 15th January, 1976 filed an application before the lower appellate court under Order 6 Rule 17 of the Code and proposed to plead facts so that the appellant may be held to be a tenant under the amended definition. In the proposed amendment it was pleaded that the appellant was the husband of Smt. Jamna, that he had been residing with her as member of her family up to the date of her death and that he was financially dependent upon her since she was the dancer and singer. This application was opposed by the plaintiff on the ground that the proposed amendment was not necessary for the decision of the case. The plaintiff submitted that the appellant had already pleaded in the written statement that he was the husband of Smt. Jamna and that he was residing with Smt.Jamna in the suit premises. The plaintiff further submitted that the amendment was not necessary as the trial court had already held that the appellant was neither the husband nor was he residing with Smt. Jamna in the suit premises. The lower appellate court confirmed the findings of the trial court and also held that the amendment of the written statement was not necessary.
(4) In this second appeal, it is contended on behalf of the appellant that the lower appellate court had no jurisdiction to dismiss his application for amendment of the written statement, that the appellant was the husband of Smt. Jamna that he was living with her in the suit premises, that he was financially dependent upon her and thereforee if the tenancy of Smt. Jamna was terminated, he is entitled to inherit the tenancy rights and that the suit was liable to be dismissed. It is also 'contended that notice terminating the tenancy was not duly proved, and that persons living as husband and wife are presumed to be married and the onus to prove the contrary was upon the plaintiff who has failed to discharge the same.
(5) The tenancy of Smt. Jamna was termin
(6) In Anannd Nivas (Private) Ltd. v. Anandji Kalyanji Pedhi & others, : 4SCR892 it has been held, 'A person remaining in occupation of the premises let to him after the determination of or expiry of the period of the tenancy is commonly though in law not accurately, called a 'statutory tenant'. Such a person is not a tenant at all : he has no estate or interest in the premises occupied by him. He has merely the protection of the statute in that he cannot be turned out so long as he pays the standard rent and permitting increases, if any, and performs the other conditions of the tenancy. His right to remain in possession after the determination of the contractual tenancy is personal : it is not capable of being transferred or assigned, and devolves on his death only in the manner provided by the statute. The right of a lessee from a landlord on the other hand is an estate or interest in the premises and in the absence of a contract to the contrary is transferable'.
(7) Thus it has to be seen whether the tenancy rights after the death of Smt. Jamna devolved on her heirs and if so, who are her heirs. It is to be determined under Section 2(1) of the Delhi Rent Control Act, 1958 as amended by Act 18 of 1976. Under clause (iii)(a) of Section 2(1) of the Act, tenancy rights devolve upon the spouse of the tenant provided he or she fulfills other conditions as mentioned in Explanationns I and Ii of the said clause. The spouse has also to prove that he had been ordinarily living in the premises with the tenant whose tenancy has been terminated as a inember of his family up to the date of his death. Further he has to prove that he was financially dependent upon him on the date of his death. Thus the appellant in the present case has to prove that he was the husband of Smt. Jamna, that he had been ordinarily living in the suit premises with Smt. Jamna as a member of her family up to the date of her death and that he was financially dependent upon Smt. Jamna on the date of her death. The appellant is required to prove all the three ingredients to claim protection under the Delhi. Rent Control Act, 1958. Learned counsel for the plaintiff contends that the amended definition of the word 'tenant' as contained in Section 2(1) of the Act does not apply to the appellant because the premises were used for non-residential purposes by Smt. Jamna. It is admitted by the appellant that the premises were used for carrying on the business of dancing and singing up to the date of death of Srnt. Jamna and that after her death he has been carrying on the same business. In Haji Mohammed Din and another v. Narain Dass, : AIR1979Delhi186 , it was held that the benefit of amendment is available only when the tenancy was lor residential purpose. In other words, it was held that after the death of a tenant, the right to continue in occupation of the premises is only available in respect of residential premises to the limited heirs specified in the aforesaid section if the heirs fulfill other conditions stated there in. Thus it seems to me that as the premises were used for non-residential purpose i.e. the business of dancing and singing, the amended definition of the word 'tenant' does not cover the case of the appellant. Further it is contended that the appellant is not the husband. The appellant claims that he was the husband of Smt. Jamna. The plaintiff claims that he was an employee of Smt. Jamna. The date of marriage between the appellant and Smt. Jamna was not disclosed by the appellant which was a fact within his special knowledge. The evidence in support of the relationship of husband and wife between the appellant and Smt. Jamna, according to the appellant, consists of statement of the appellant as his own witness where he says that he and Smt. Jamna were living together as husband and wife for 14 years till her death. In cross-examination, the appellant, however, admits, 'I am living with her for the last 18 years till her death in this house for business purposes. At night lime I did not stay there. I had another house where I used to go at night and stay there. Smt. Jamna sometimes stayed in this house and sometime accompanied with me in my house...........................After the death of Smt. Jamna I sometimes stayed in the premises in suit and sometimes in the premises at Azad Market'. Besides the statement of the appellant there is statement of D.W. 1 Ram Chander who is the purchaser of immovable property from the appellant and Smt. Jamna vide sale deed dated 12th February, 1969 (Ex. D. 2). In this sale deed the executants are mentioned as Manohar Singh and Smt. Jamna wife of SardarManohar Singh. There is also another sale deed dated 11th November, 1964 Ex. D. I by one Hira Lal in favor of Manohar Singh and Smt. Jamna where in she has been described as wife of Sardar Manohar Singh. It appears that Smt. Jamna w.s admitted in G.B. Pant Hospital in 1968 and on 4th November, 1968, D.W. 2/1 her admission card in the said hospital shows her name as Smt. Jamna and her husband's name as Manohar Singh. The official of Pant Hospital deposed that he had no personal knowledge of the contents of the admission card. Thus he could not say that Manohar Singh was the husband of Smt. Jamna Devi. Ram Chander, D.W. I who purchased the property from Manohar Singh, appellant and Smt. Jamna, however, stated that Smt. Jamna was the first wife of Manohar Singh. This is the only evidence on record. On the bass of this evidence on record, the trial court and the first appellate court have returned the finding that the appellant was not the husband of Smt. , Jamna and that he was not residing with her in the premises. In Muttu Lal v. Radhe Lal, : 1SCR127 it was held that in the finding reached by the first appellate court on an appreciation of evidence is a finding of fact and it cannot be interferred with by the High Court in the second appeal unless it is shown that in reaching it a mistake of law is committed by the first appellate court or it is based on no evidence or is such as no reasonable person can reach, It appears to me that the finding of 'non-existence of relationship of husband and wife between the appellant and Smt. Jamna is a question of fact. No error appears to have been committed by the courts below in arriving at the said finding and thereforee I am of the view that the binding of the courts below to the effect that the appellant was not the husband of Smt. Jamna cannot be interfered in this second appeal under Section 100 of the Code. Learned counsel for the appellate, however, submits that there is presumption of marriage between the appellant and Smt. Jamna and relies upon the statement of law contained in para 1323 of Halsbury's Laws of England, Third Edition, Vol. 19 page 812. It reads as under :
'1323:Presumption from cohabitation: Where a man and woman have cohabited for such a length of time and in such circumstances as to have acquired the reputation of being man and wife, a lawful marriage between them will generally be presumed, though there may be no positive evidence of any marriage having taken place, and the presumption can be rebutted only by strong and weighty evidence to the contrary'.
In Gokal Chand v. Parvin Kumari, Air 1952 S.C. 231 it is observed, 'It is well settled that continuous cohabitation for a number of years may raise the presumption of marriage. In the present case, it seems clear that the plaintiff and Ram Piari lived and were treated as husband and wife for a number of years, and, in the absence of any material pointing to the contrary conclusion, a presumption might have been drawn that they were lawfully married. But the presumption which may be drawn from long cohabitation is rebuttable, and if there are circumstances which weaken or destroy that presumption, the court cannot ignore them. We agree with the learned Judges of the High Court that in the present case, such circumstances arc not wanting and their cumulative effect warrants the conclusion that the plaintiff has failed to prove the factum of his marriage with Ram Piari.........Then again, neither the parents nor any of the relations of Ram Piari have been examined in support of the plaintiff.' Thus it appears to me that first there must be evidence on record that the appellant and Smt. Jamna cohabited in such circumstances as to have acquired the reputation of being husband and wife. Further this is a rebuttal presumption. In the case before me the date of alleged marriage between the appellant and Smt. Jamna is not disclosed, mother and brother of Smt. Jamna are alive and they have not been produced by the appellant to depose about the alleged marriage between the two. The appellant at one place disclosed the name of her mother-in-law as Smt. Moonga and that of his father-in-law as Shri Kalia in his statement as his own witness. In an affidavit dated 4th March, 1974 the appellant deposed the nature of her mother-in-law as Durga Devi and that of his father-in'-aw as Jeet Singh. In cross-examination he explained that by mother-in-law in his affidavit dated 4th March, 1974 he meant the sister of his mother-in-law. It is also admitted by him that the brother of Smt. Jamna is alive but he has not been produced as a witness. Further it is in evidence that Smt. Jamna had a ration card at the suit premises while the appellant had no ration card at the suit premises The name of the appellant docs not appear in the voters' list of the suit premises but in the voters' list of his another property at Paharganj. There is no independent evidence on record to depose that the appellant and Smt. Jamna were living as husband and wife in the suit premises or anywhere else. As already stated, Smt. Jamna was a dancing and singing girl which business she used to carry on in the suit premises. Ram Chander, D.W. I purchased the property from the appellant and Smt. Jamna and he has no special means of know- ledge about the relation between the appellant and Smt. Jamna. It appears that he deposed the alleged relation between the two on the basis of the sale deed in hi favor. I do not find any ground to interfere with the concurrent finding of fact of the two courts below that the appellant was not the husband of Smt. Jamna and that he was not ordinarily living with her in the suit premises. Thus it seems to me that if the appellant was not the husband and had not been living with Smt. Jamna in the suit premises, he does not satisfy the conditions mentioned in Section 2(1) of the Delhi Rent Control Act, 1958. Further, as already observed, this amended definition of the word 'tenant' does not apply to non-residential premises and the suit premises as already observed, and as admitted by the defendants are non-residential where Smt. Jamna used to carry on the business and dancing and singing girl. Learned counsel for the appellant contends that it must also be determined that the appellant was financially dependent upon Smt. Jamna within the meaning of Section 2(1) of the Act. Learned counsel for the plaintiff however submits that in the facts and circumstances of the present case it is not necessary to determine the financial dependency of the appellant. He says that the premises are non-residential. The appellant is not the husband and he had not been residing ordinarily in the suit premises with the deceased tenant Smt. Jamna, thereforee he is not entitled to claim himself as a tenant. He says that to claim tenancy rights under the amended definition all the ingredienti must be fulfillled before a person can claim himself to be a tenant. It is submitted on behalf of the plaintiff that the proposed amendment is not necessary at all for the purpose of determining questions in controversy between the parties. The controversy is whether the appellant is the tenant within the meaning of the amended definition as contained in Section 2(1) of the Act. If the appellant has been held to be not a husband and not residing in the premises, he cannot claim himself to be a tenant. Thus it seems to me that it was not necessary for the lower appellatle court to allow amendment of the written statement. The questions in controversy between the parties were already in the issue before the trial court. The appellant claimed himself to be a tenant after the death of Smt. Jamna on the basis that her tenancy had not been terminated and he was the husband of the deceased-tenant and that he was residing with her in the suit premises. The decision of these pleas of the appellant was necessary to grant relief to the plaintiff. It appears that if the issues raised by the proposed amendment are already covered by the issues framed in the case it is neither necessary to allow amendment nor to record any evidence on the questions of financial dependency. It would be a waste of time without serving any useful purpose.
(8) The plaintiff submits that the appeal filed by the defendants before the first appellate court was barred by time. The trial court judgment is dated 25 3.75. The application for obtaining the certified copy of the decree and judgment was made on 7th April, 19/5 and the copy of the judgment and decree was ready on 23rd April, 1975 but the copy of the Plan Ex. P. 1 which is a part of the decree was ready on 24th May, 1975. The appeal was filed on 5th June, 1975. After excluding the time taken in obtaining the certified copies of the judgment decree and the plan, the appeal is within time. Learned counsel for the plaintiff however submits that the appellant was not entitled to exclude the time taken in obtaining the certified copy of the plan. I do not agree. when the plan is a part of the decree, the appellant was entitled and in law was required to file a complete decree sheet including the copy of the plan. I find no merit in the contention that the appeal before the first appellate court was barred by time.
(9) Lastly, the plaintiff submits that future mesne profits were awarded by the courts below at Rs. 23.00 per month which was the rent payable by Smt. Jamna and that he is entitled to claim more than that. He claims future mesne profits at Rs. 23.00 per month and for that purpose he has filed cross-objections C.M.No 462 of 1978. The first appellate court has held that there is no warrant for allowing higher rate to the plaintiff. I do not find any ground to interfere with the decree of the trial court confirmed by the first appellate court allowing future mense profits Rs. 23.00 per month to the plaintiff till the date of delivery of possession of the suit premises to him.
(10) There is no merit in the appeal or the cross-objections and both are dismissed with no order as to costs.