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Ram Singh Vs. Nathi Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 12 of 1972
Judge
Reported inAIR1983Delhi114; 23(1983)DLT35; 1983(4)DRJ20; 1982RLR774
ActsCode of Civil Procedure (CPC), 1908 - Sections 47
AppellantRam Singh
RespondentNathi Lal and ors.
Advocates: Rishikesh and; B.I. Singh, Advs
Cases ReferredIn Ganga Dutt Murarka v. Kartik Chandra Das and
Excerpt:
.....applied for the execution of the decree for ejectment and thereforee no question of execution, discharge of satisfaction of the decree arises. payment and acceptance of rent doe's not confer the status of tenant unless the landlord has asserted to a contractual tenancy.;slum areas (improvement & clearance) act, 1956 - section 39 ;in a suit for possession on the basis of independent title against legal representatives of a statutory tenant from premises situated in a slum area, permission of the competent authority is not necessary. - - i, son-in-law of the deceased is also a trespasser as he has failed to prove his right to remain in possession of the premises. he thereafter moved the high court in revision but was unsuccessful. the suit was tried after remand by the trial..........the single judge held that on the death of lal chand during the pendency of the flist appeal the legalrepresentatives of the deceased to continue the appeal. the legal representatives of lal ghand and the other two defendants by special leave appealed to the supreme court wherein it has been held that if a joint eviction decree for possession is passed against several defendants and after the filing of the appeal one of them dies, the appeal by the remaining defendants remains maintainable as their challenge was against the whole decree. it has been observed that assuming lal chand being a statutory tenant left no surviving cause of action to his heirs, the two other defendants-appellants had a real and substantial interest in prosecuting the appeal in their own right, and the first.....
Judgment:

Sultan Singh, J.

(1) The question in this second appeal is whether the suit for possession on the basis of title is maintainable against the heirs and legal representatives of a statutory tenant or such a suit is barred under Section 47 of the Code of Civil Procedure.

(2) Briefly the facts are that one Shri Beni Pershad Soni, was owner of the house bearing Municipal No. 8443-45/XV Arya Nagar, Paharganj, Delhi. Sita Ram was his tenant in one room and a verandah on the ground floor. The tenant was in arrears of rent, and had sublet the premises without his consent. A suit for ejectment under Section 13(1) of the Delhi and Ajmer Rent Control Act, 1952 (hereinafter referred to as 'The Act of 1952') was filed against him on 31st May, 1957. A decree for eviction was passed on 14th January, 1958 and a period of one year was granted for vacation of the premises.

(3) The said house was declared as Slum Area within the meaning of Section 3 of the Slum Areas (Improvement & Clearance) Act, 1956 (hereinafter referred to as 'the Slum Areas Act'). The decree-holder, it appears, did not take steps to obtain permission to execute the decree for eviction under Section 19 of that Act. On 5th August, 1960 Shri Beni Pershad Soni sold the said house to Shri Ram Singh, the plaintiff. Shri Sita Ram judg- ment debtor died in April, 1966.

(4) On 13th September, 1967 the plaintiff-appellant filed a suit for recovery of possession of the said room and verandah against the defendants- respondents i.e. the widow, sons, daughters and son-in-law of the deceased. Sita Ram out of which this second appeal has arisen. The plaintiff after pleading about the decree for ejectment dated 14th January, 1958 and the purchase of the suit house by him on 5th August, 1960 alleged that the decree for ejectment terminated the tenancy of Sita Ram and thereforee the defendants, who were his heirs and legal representatives, did not inherit any right, title or interest in the suit premises, that their possession after the death of Sita Ram was without any right, title or interest and they had no right to remain in possession. The defendants in their written statement pleaded that Sita Ram died as a contractual tenant under the plaintiff, that they being his heirs and legal representatives inherited the tenancy rights, that the tenancy of Sita Ram was never terminated during his life time and that the suit for possession was not maintainable. The trial court by judg- ment dated 24th September, 1969 decreed the suit for possession, holding that the tenancy of Sita Ram stood determined on the passing of the decree for ejectment ; Sita Ram was a statutory tenant, and the defendants were not tenants in the suit premises. On appeal the Additional District Judge by his judgment dated 11th August, 1971 held that the suit was not maintain- able and was barred under Section 47 of the Code of Civil Procedure (herein- after referred to as 'the Code'). The suit was dismissed. Hence this second appeal.

(5) Learned counsel for the appellant submits that passing of the decree for ejectment against Sita Ram on 14th January. 1958 under the Act of 1952, terminated his tenancy and after his death in April, 1966 his heirs and legal representatives did not inherit any right, title or interest in the suit premises and they were mere trespassers, and such as the suit for possession on the basis of title against them was maintainable. He further submits that the plaintiff was not executing the decree for ejectment but was claiming possession on the basis of title and as such Section 47 of the Code was not applicable.

(6) The first question is : Whether contractual tenancy was terminated The decree for ejectment against Sita Ram tenant was passed on 14th January, 1958 and he died in April) 1966. The respondents Nos. 2 to 6 are his heirs and legal representative and respondent No. I is the son-in- law of the deceased in possession of the premises. It appears that notice of eviction under Section 106 of the of the Transfer of Property Act was not issued to the tenant Sita Ram prior to filing of the suit for his ejectment on 31st May, 1957. But the action of his landlord Beni Pershad Soni in instituting the suit for his ejectment on the grounds mentioned in Section 13 oF the Act, 1952 and obtaining the decree for ejectment on 14th January, 1958 amounts to termination of his tenancy. In V. Dhanpal Cheitiar v. Yesodai Ammal : [1980]1SCR334 it has been held that no notice to quit was necessary under Section 106 of the Transfer of Property Act to enable the landlord to get an order of eviction against the tenant and jurel relationship of Lesser and lessee would come to an end on the passing of an order or decree for eviction. In other words, it was held that termination of contractual tenancy came into effect when a case was successfully made out for eviction of the tenant under the Rent Control Act. Thus in the instant case the contractual tenancy of Sita Ram was determined on 14th January, 1958 when the decree for his ejectment under Section 13 of the Act of 1958 was passed.

(7) The next question is : What are the rights of the heirs and legal representatives of a tenant whose tenancy had been determined during his life time In Anand Nivas Private Limited v. Anandji Kalyanji's Pedin and others, : [1964]4SCR892 it has been observed as under :

'Aperson 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 permitted 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'

In J.C. Chatterjee & others v. Shri Sri Kishan Tandon and another, : [1973]1SCR850 following the judgment in Anand Nivas Private Limited (Supra) it has been held that on the death of a statutory tenant pending eviction suit or appeal, his heirs and legal representatives brought on record cannot claim the status of tenant, that they could urge all contentions which the deceased could have urged except only those which were personal to the deceased. Thus it must be held that after determination of tenancy by the passing of a decree or order for eviction, the right of the tenants to remain in possession thereafter is personal to him, and not heritable by his heirs and legal representatives. Such right will devolve upon the heritable in the manner provided by the statute. In other words, the heirs and legal representatives of the statutory tenant remain in occupation of the tenancy premises without any right, title or interest and they may be called trespassers, unless the statute confers any right upon such heirs and legal representatives.

(8) Under the Act of 1952, Section 2(j) defines 'tenant' as follows :

'(J)'tenant' means any person by whom or on whose account rent is payable for any premises and include such sub-tenants and other persons as have derived title under a tenant under the provisions of any law before the commencement of this Act.'

(9) According to this definition there is no provision for devolution of tenancy rights upon any of the heirs and legal representatives of the deceased tenant. Under the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act of 1958) the definition of 'tenant' does not include a person against whom an order or decree for eviction has been made. In the instant case a decree for eviction was passed against Sita Ram on 14th January, 1958 and as such he was not a tenant within the meaning of Section 2(1) of the Act of 1958. His heirs and legal representatives also thereforee did not inherit any right. Thus respondents Nos. 2 to 6 though heirs and legal represen- tatives of Sita Ram deceased a statutory tenant do not inherit any right with respect to the suit premises and thereforee they are held to be trespassers in possession of the suit premises. Respondent No. I, son-in-law of the deceased is also a trespasser as he has failed to prove his right to remain in possession of the premises.

(10) The further question is : Whether the suit for possession is maintainable against the defendants The plaintiff has claimed possession on the basis of his title, he having purchased the property by means of the sale deed dated 5th August, 1960 registered on 8th August, 1960 executed by the previous owner Shri Beni Prasad Soni in his favor. The plaintiff has not applied for execution of the decree for ejectment dated 14th January, 1958 obtained by his vendor against Sita Ram, and no question of execution, dis- charge or satisfaction of the decree arises. Section 47 of the Code is thereforee not a bar to the present suit for possession.

(11) In Kedar Nath and another v. Smt. Mohani Devi and others, : AIR1974Delhi171 the Full Bench decision of Five Judges did not repel the right of the landlord to file a suit for recovery of possession against the legal representatives of the deceased tenant in a civil court on the basis of title. In that case the landlord after terminating the contractual tenancy by notice to quit filed a petition under Section 14(1) of the Act of 1958. During the pendency of the eviction petition the statutory tenant died and his legal representatives were brought on record. The question was : Whether the suit would ahate or would continue against the legal representatives of the deceased The Full Bench answered that the jurisdiction of Controller to continue the petition against the legal representatives of the tenant subsisted and the legal representatives were bound to deliver possession to the landlord if the ground of eviction is established. Further the Full Bench in para 30 observed as under:

'INcase the Controller comes to the finding that the landlord has not been able to establish any of the grounds which are mentioned in clauses (a) to (1) of the proviso to Section 14(1), then he would have no power to pass an order for recovery of possession for the reason that the conditions on which his power to order for recovery of possession rests, do not exist. The landlord may then file, if advised, a regular suit for possession in the civil court, which would be on a different cause of action.'

In Durga Devi etc. v. Brijmohan Lal, 1975 Raj. Law Rep 560 it has been held that if a statutory tenant dies during eviction proceedings, then landlord may continue eviction petition against his legal representatives but his relief would remain limited to the grounds in the Act, that he may withdraw the eviction petition and file a civil suit against them on the basis of his title. In Mohan Lal and others v. Shri Krishan and others, 1977(2) R.C.J. 505 the landlord hied a petition for eviction of a statutory tenant which was dismissed by the Controller. An appeal was filed before the Rent Control Tribunal but the tenant died during the pendency of the appeal. The landlord withdrew the appeal and filed a suit for possession against the legal representatives of the statutory tenant on the basis of title, lt was held that the suit for possession based on title was on a different cause of action and was competent in civil court. InSmt.Kauran Devi v. LalChand, 1961 (66) P.L.R. 836 the Division Bench held that the existence of an ejectment decree under the Rent Control Act was not a bar to the institution of the suit for possession in the civil court. In that case, Lakhmi Chand Khemani was a tenant under Bakshi Mehtab Singh Bakshi Mehtab Singh obtained a decree for his ejectment under the Act oF 1952 on 11th October, 1956. The tenant filed an appeal which was dismissed. He thereafter moved the High Court in revision but was unsuccessful. The Slum Areas Act came into force in February, 1957 and the area in which the properly in suit was situate was notified as Slum Areas winder Section 3 of that Act. The landlord filed an application under Section 19 of the Slum Areas Act for permission to execute the decree for eviction but his application was dismissed The appeal before the appellate authority was also rejected. Bakshi Mehtab Singh on August '21, 1961 sold the building to Kauran Devi who filed a suit against the tenant for .possession alleging that his possession was unauthorised and he was tres- passer. The tenant contended that the civil court had no jurisdiction to entertain, the suit in view of Section 50 of the Act of 1958. The trial court dismissed the suit for want of jurisdiction. Kauran Devi appealed to the High Court. It was held by the Division Bench that Section 50 of the Act of 1958 did not take away the jurisdiction of the civil court to trv the suit as Lakhmi Chand was no longer a tenant after the decree for his ejectment. The appeal was accepted by the High Court and the case was remanded to the trial court for further proceedings in accordance with law. The tenant by special leave appealed to the Supreme Court. In Lakhmi Chand Khemani v Kauran Devi, : [1966]2SCR544 , Section 550 of the Act of 1958 was held not to bar the Civil Suit against the tenant as he was found to be not a tenant under Section 2(1) of the Act of 1958. In the result the Supreme Court dismissed the appeal. The suit was tried after remand by the trial court and a decree for possession, was passed which was confirmed by the first appellate court as well as by this court in R.S.A. No. 103-D of 1966 Lakhmi Chand v. Kauran Devi decided on 12th December, 1968.

(12) Learned counsel for the respondents however submits that the present suit is barred under Section 47 of the Code He refers to Mohammed Idris and others v Mehar Illahi , 1971 Delhi 262 which is also a division bench decision of this court. It was held in that case that the question for dispossession of the legal representatives of a statutory tenant was a question relating to the discharge or satisfaction of the earlier decree for eviction against the tenant and had to be determined by the court executing the decree. With great respect, I may observe that the earlier Division Bench judgment of the Circuit Bench of the Punjab High Court in Smt Kauran Devi (supra) confirmed by the Supreme Court in Lakhml Chand Khemani (Supra) holding that such a suit was maintainable was not brought to the notice of the Division Bench deciding the case of Mohammed ldris and others (supra). The Supreme Court judgment is binding upon me.

(13) Learned counsel for the respondents then refers to Lal Chand v. Radha Kishan : [1977]2SCR522 in support of his submission that the present suit for possession is not maintainable. In that case Radha Kishan respondent owner of the property let out five rooms on the ground floor and two rooms on the second floor to Lal Ghand. He filed a suit for his eviction and four other persons on the ground of non-payment of rent, subletting, bona fide requirement and re-building. The trial court decreed the suit for ejectment on ground of bona fide requirement. On appeal the decree was con- firmed by the Senior Sub Judge. The circuit Bench of the Punjab High Court upheld the decree for ejectment. The property was situated in a slum area. An application for permission to execute the decree for eviction was filed. The permission to execute the decree with respect to two rooms on the second floor only was granted by the competent authority but permission was refused in regard to the premises situated on the ground floor. The respon dent obtained possession of the two rooms on the second floor with respect to which the permission was granted by the competent Authority. He later on filed a suit for possession against Lal Chand and two other persons in occu pation of the ground floor. The suit was decreed by the trial court. The tenant Lal Chand and the other two defendants filed an appeal before the Addl. Senior Sub Judge. During pendency of the appeal Lal Chand died, whereupon his sons and widow applied for being brought on record. The Additional Senior Sub Judge held that by reason of ejectment decree Lal Chand ceased to be a tenant and upon his death during the pendency of the appeal the right to sue did not survive to his heirs. The appeal was there- fore dismissed by the Additional Senior Sub Judge. The legal representatives of the tenant and the other two defendants filed second appeal in the High Court. The single Judge held that on the death of Lal Chand during the pendency of the flist appeal the legalrepresentatives of the deceased to continue the appeal. The legal representatives of Lal Ghand and the other two defendants by special leave appealed to the Supreme Court wherein it has been held that if a joint eviction decree for possession is passed against several defendants and after the filing of the appeal one of them dies, the appeal by the remaining defendants remains maintainable as their challenge was against the whole decree. It has been observed that assuming Lal Chand being a statutory tenant left no surviving cause of action to his heirs, the two other defendants-appellants had a real and substantial interest in prosecuting the appeal in their own right, and the first appellate court ought to have heard and decided the appeal. Further it has been observed that La] Chand was tenant for the purposes of Section 19 of the Slum Areas Act, 1956 and the owner ought to have obtained permission under that Section. The suit of the owner on other grounds also was dismissed. The facts of that case arc different from the facts of the instant case. The appellant or his predecessor never sought the permission to execute the decree for eviction dated 14th January, 1958 against Sita Ram under the Slum Areas Act. The appellant did not file the suit for possession against the statutory tenant, Sita Ram during his life time. Had Sita Ram been a party to the suit for possession it could have been argued that he was a tenant for purposes of Section 19 of the Slum Areas Act and no suit for possession against him was maintainable without permission of the Competent authority. The present suit is for possession against the heirs and legal representatives of the statutory tenant. The defendants were never tenants under the plaintiff and thereforee no permission under Section 19 of the Slum Areas Act, 1956 before the institution of the present suit was necessary. In Mohan Lal and others (Supra) it has been held by this court that in a suit for possession on the basis of independent title against legal representatives of a statutory tenant from premises situated in a slum area, permission of the competent authority under Section 19 of the Slum Areas Act is not necessary. Similar observations were made by this court in Smt. Raj Rani v. Smt. Moolan Bai and others, 1972 R.C.R.428.

(14) Learned counsel for the respondents next submits that even after the passing of the decree for ejectment against Sita Ram the plaintiff appel- lant had been accepting rent. The respondents mere by payment of rent, do not acquire the status of tenants after the passing of the decree for eject- ment. In Ganga Dutt Murarka v. Kartik Chandra Das and others, : [1961]3SCR813 it has been held that after the determination of the contractual tenancy if the tenant continues in possession of the premises, payment and acceptance of rent docs not confer the status of a tenant upon him, unless the landlord has assented to a new contractual tenancy. Further in Bhawanji Lakhmshi and others v. Himatlal Jenadas Dani and others, : [1972]2SCR890 it has been held that mere acceptance of amounts equivalent to rent by a landlord from a tenant in possession after a lease had been determined can- not be regarded as evidence of a new agreement of tenancy and if the tenant asserts that the landlord accepted the rent indicating his assent to the tenant's continuing in possession, it is for the tenant to establish it. In the instant case there is no plea that after the decree of ejectment dated 14.1.58 any new contract of tenancy was entered into by the respondents or their predecessor or that the plaintiff accepted the rent from Sita Ram not as a statutory tenant but as the rent indicating his assent to the creation of the tenancy.

(15) I, thereforee, hold that the first appellate court was not correct in holding that the suit for possession on the basis of title against heirs of statutory tenant was not maintainable or was barred under Section 47 of the Code of Civil Procedure. The present suit is not barred and is maintainable. The judgment and decree of the first appellate court are set aside restoring the decree of the trial court. The plaintiff-appellant is granted a decree for possession with respect to the suit premises against the defendants-respondents with costs throughout.


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