Ganga Narain alias Kakko vs Balkishan Das and Another

Dua, J.—This Letters Patent Appeal is directed against the order of a learned Single Judge of this Court dismissing the appellant''s second appeal from the judgment and decree of a learned Additional District Judge allowing the appeal of Balkishan Dass and Narain Dass from the judgment and decree of a learned Subordinate Judge dismissing the plaintiffs'' suit for ejectment and possession. It may be mentioned that the trial Judge had while dismissing the plaintiffs'' suit for ejectment and possession decreed the suit for Rs. 171/14/- as arrears of rent against defendant No. 1, Ganga Narain (appellant in this Court).

The facts briefly stated, are that Balkishan Dass and his brother Narain Dass had instituted the suit in question against Ganga Narain alias Kakko alias Pappo and Suraj Mal for possession of the shops in dispute and for the recovery of Rs. 171/14/- by way of mesne profits. The plaintiffs case was that Ram Saran Dass was the tenant of the shops in question but his tenancy had been terminated by means of a notice dated 14th April, 1953 to vacate the premises. On 31st August, 1956, a suit was instituted for his eviction and for recovery of arrears of rent. During the pendency of the suit, Ram Saran Dass died on 14th September; 1956 and Ganga Narain was brought on the record as a defendant because he was alleging himself to be the adopted son of the deceased. Ganga Narain paid the arrears of rent to the plaintiffs with the result that the suit.was dismissed on 10th December, 1956. The present suit was instituted on 10th June, 1958 on the allegation that Ganga Narain was a trespasser and that he had also sublet the shop to Suraj Mal, defendant No. 2; mesne profits were also claimed between the period 7th August, 1956 and 19th May, 1958.

This suit was contested by Ganga Narain on various grounds including the plea that being the adopted son of Ram Saran Dass he was in possession of these premises as a tenant in his own right. Defendant No. 2 did not choose to appear and the suit proceeded against him ex-parte.

The pleas of the parties gave rise to several issues. The trial Court held the plaintiffs to be the owners of the suit property and defendant No. 1 to be the adopted son of Ram Saran Dass and, therefore, the tenant of the shops in dispute under the plaintiffs, with the result that he was held not liable to eviction on the ground of subletting and non-payment of rent. As already observed, the suit for possession was dismissed, but a decree for Rs. 171/14/- was passed in the plaintiffs'' favour; this amount is stated to have been tendered in Court but the plaintiffs had declined to accept it as they did not recognise defendant No. 1 as their tenant.

On appeal, the learned Additional District Judge reversed the conclusion of the trial Judge on this point which, it may be stated, is subject-matter of issue No. 3, holding that Ganga Ram was not the tenant of the shops in dispute. A decree for possession was accordingly passed and consistently with it, the amount of Rs. 171/14/- was decreed not as arrears of rent but as mesne profits.

Before the learned Single Judge, the appellant Ganga Narain did not controvert that the tenancy of Ram Saran Dass had been determined by means of a notice dated 14th April, 1956 during the pendency of the suit filed for his eviction and for recovery of arrears of rent. That Ganga Narain was impleaded as a defendant and he paid up the arrears and the suit was then dismissed on 10th December, 1956 were also not disputed. The further uncontroversial fact before the learned Single Judge was that the tenancy of Ram Saran Dass was contractual. The learned Judge observed that it had came to an end when the notice to quit was given to him on 14th April, 1956 and the mere fact that arrears of rent were tendered by Ganga Narain and accepted by the plaintiffs could not make him their tenant, for mere acceptance of rent does not serve to operate as waiver of notice to quit. Indeed, it was conceded before the learned Single Judge by the appellant''s counsel that this proposition of law could not be challenged. The submission urged was that since Ram Saran Dass had remained in possession of the premises even after the termination of the tenancy in his favour, he had become a statutory tenant and after his death his adopted son Ganga Narain inherited his tenancy rights with the result that he should be deemed to be the plaintiff''s tenant. This contention did not find favour with the learned Single Judge who repelled it with the observation that the statutory tenancy is a personal right enjoyed by the tenant when he ceases to be a contractual tenant, and that the right so created is not heritable. For this proposition, reliance was placed on Nihal Chand v. Shiv Narain (l958) 60 P.L.R.247, and Niadre v. Nanhe (1960) 62 P.L.R. 451, two decisions of this Court. The State of Bombay Vs. Virendra Motabhoy and Others, and Eruch J. Bapasola and Another Vs. B.D. Mirchandani, were also found to support the view taken by this Court. The correctness of the decisions of ibis Court was challenged before the learned Single Judge but without success.

On Letters Patent Appeal, before us, the appellant''s learned counsel has submitted that in December, 1956, the earlier suit was compromised and that, therefore, the compromise must be considered to amount to a fresh tenancy. I am afraid this was not the case of the appellant in any of the Courts below; nor was it disclosed in the grounds of appeal. Being a matter requiring evidence, this point cannot be permitted to be raised on Letters Patent Appeal, Reference has next been made to a decision of the Supreme Court in Ganga Dutt Murarka Vs. Kartik Chandra Das and Others, . It was observed there by Shah J., who spoke for the Court, that where a contractual tenancy to which the rent control legislation applies has expired be. efflux of time or by determination by notice to quit and the tenant continues in possession of the premises, acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy would not afford ground for holding that the landlord has assented to a new contractual tenancy, in that judgment, some passages were also quoted from am earlier decision of the Federal Court in AIR 1949 124 (Federal Court) which throw light on the circumstances in which a tenant in the language of English law becomes a tenant in sufferance, having no lawful title to the land, but holding it merely through the laches of the landlord. I am unable to appreciate how this decision helps the appellant. The ratio of these decisions seem to suggest that it is only by means of a bilateral agreement that a fresh tenancy can be created; of course apart from an express contract, conduct of the parties may also justify an inference that after determination of the contractual tenancy the parties had entered into a fresh contract, but whether the conduct justifies such an inference must necessarily depend upon the facts and circumstances of each case. The rent control legislation appears merely to protect the possesson of the tenant after the termination of his tenancy in certain circumstances, but it does not by itself give rise to any contractual relationship between the parties. The contract having been terminated, as soon as the protection granted by the statute ceases to exist, the rights and liabilities of the parties are determined by the ordinary law of the land. Nothing urged at the bar has persuaded us to hold that the view taken by this Court in the decisions, on which the learned Judge in Single Bench has relied are erroneous.

On behalf of the respondents our attention has been invited to a decision by another learned Singe Judge in Daulat Ram v. Smt. Bhagwanti (1963) 65 P.L.R. 606, where it is laid down that a tenant as defined under the E.P. Urban Rent Restriction Act does not envisage an heir of a tenant who dies intestate for, the right of a statutory tenant is personal and cannot be transmitted to his heirs. We have also been referred to an earlier Bench decision of this Court in N.H. Thadani Vs. Chief Settlement Commissioner, taking the same view as mentioned above. It was observed there by Bhandari C.J., speaking for the Bench, that a tenant who continues to remain in possession of the leased premises after the expiry of the lease does not continue to be a tenant unless the landlord consents to his holding over as a tenant such consent may be express or implied but it must be clearly established before the relationship of landlord and tenant can continue. It may undoubtedly be evidenced by payment and unconditional acceptance of rent, though such payment merely raises a presumption which may be rebutted by other facts and circumstances.

The view taken by the learned Single Judge, therefore, has not been shown to be erroneous, with the result that this appeal must fail and is hereby dismissed but with no order as to costs. The premises must be vacated within one month, though it would be open to the decree-holder to initiate execution proceedings before the expiry of one month; eviction, however, should not take place till one month has expired.

D.K. Mahajan, J.

I agree.