Harbans Singh vs Sohan Singh and Another

Shamsher Bahadur, J.—This is a petition for revision at the instance of the landlord directed against the appellate judgment of the learned Senior Subordinate Judge reversing the order of the ejectment passed against the tenants.

The suit premises consist of a residential house in Pahar Ganj which at one time was evacuee property. The respondent-tenants Sohan Singh and Joginder Singh were in occupation of this property and have been paying rent of Rs. 25/- per month to the Custodian. The property was acquired under the Displaced Persons (Compensation and Rehabilitation) Act of 1954 and was put up for auction on 9th January, 1957. The bidding closed in favour of the petitioner Harbans Singh for Rs. 19,600/- and symbolical possession was delivered to him on 16th of April 1957. The managing officer wrote to the tenants on the same day vide Exhibit D. 1, that they should attorn to the petitioner as landlord.

The landlord gave a notice to the tenants on 5th of August 1958 to pay up the arrears of rent from 16th of April 1957 to 31st of July 1958 amounting to Rs. 697/- at the rate of Rs. 45/- p.m. and it was further stated that the house should be vacated with effect from 31st of August 1958. The tenants did not pay up the arrears and the landlord felt obliged to bring the present suit on 17th of September 195.8 for ejectment on ground of non-payment of rent and the bona fide requirement of the house for personal residence. In the written statement of the tenants various pleas were raised and it was denied that the landlord had become an owner of the suit property. As regards the arrears of rent, it was pleaded that a sum of Rs. 450/- had been paid on account of rent and costs at the rate of Rs. 25/- per month. The landlord, however, had claimed rent at the rate of Rs. 45/- per month. As for the requirement of the landlord, it was traversed that the need was bona fide and genuine. The trial Court passed a decree in favour of the landlord on 28th of December 1958, the pleas of the tenants having been repelled. The contention of the tenants that the rent at the rate of Rs. 25/- had been paid was, however, accepted by the first Court and a decree was given on the ground that the landlord required the promises bona fide for his requirements.

On the tenants'' appeal it has been held by the lower appellate Court that the landlord has not been able to make good his case for ejectment. It has been found in the first instance that the sale certificate, Exhibit P.1, is not a registered document and, therefore, could not vest a valid title in the landlord. The certificate of sale, which was granted to the petitioner under Rule 90(15) of the Compensation and Rehabilitation Rules, was given on 14th of November 1959, but it was added that the sale was to take effect with effect from 16th of April 1957. This certificate under Rule 90(15) is issued in the prescribed form and a certified copy of it is to be sent to the Registering Officer within the local limits of whose jurisdiction the whole or any part of the property to which the certificate relates is situated. The certified copy was obtained by the landlord from this authority. It seems to me that it is not necessary for this document to be registered and the Senior Subordinate Judge had no warrant to hold that the sale certificate without registration could not vest a valid title in the landlord.

The lower appellate Court further found that the title to the property could not in any event vest with effect from 16th of April 1957 and the landlord could claim ownership in this property only from 14th of November 1959, when the sale certificate Ex. P.1 was issued after the suit had been filed. The sale certificate having been issued pendente lite could not therefore affect the validity of the title of the landlord. In taking this view the Senior Subordinate Judge has ignored the principle that a Court is bound to take into account the facts as they exist at the time of hearing of the appeal. In Amulya Rattan Sharma v. Pandit Harpershad (1950) 52 P.L.R. 211, it was held by a Division Bench of Harnam Singh and Kapur JJ. that Courts should take notice of events which happen subsequent to the institution of the suit in order both to avoid unnecessary litigation and to do complete justice between the parties. It was observed that "hearing of an appeal under the procedural law of India is in the nature of re-hearing and therefore in moulding the relief to be granted in a case on appeal, the appellate Court is entitled to take into account facts and events which have come into existence after the decree appealed against." The principle is also reiterated in the Supreme Court decision in Surinder Kumar and Others Vs. Gian Chand and Others, , where it was held that in deciding an appeal the Court has to take the circumstances as they were at the time when the appeal was being decided. In a recent case of Bishan Paul v. Mothu Ram (1961) 63 P.L.R. 471, Chief Justice Khosla held that "title in evacuee property put to auction by a competent officer passes when the sale is confirmed, because it is that date on which the auction purchaser is recognised officially as the owner and is entitled to obtain possession of the property". It was the duty of the lower appellate Court to see the purport and effect of the sale certificate which vested title in the landlord with effect from 16th of April 1957. The third point on which the lower appellate Court decided in favour of the tenants was that no proof had been adduced of the letting purpose. Under clause (e) of section 13 of the Delhi and Ajmer Rent Control Act, 1952, the premises "let for residential purpose, if required for bona fide purposes by the landlord, can be made a subject-matter of ejectment. It is contended on behalf of the respondents that it is essential for the landlord to establish that the premises had been let for residential purposes. It is true that no specific allegation has been made in the plaint but it has also to be borne in mind that no plea was raised in the written statement that the premises had not been let for residential purposes. The house had been treated for all practical purposes as one which had been in occupation of the respondents. It is stated in the plaint that the plaintiff is the owner of the house whose plan was annexed with it. In the written statement also the plea was that the house had been in occupation of the respondents. No plea was raised that the purpose of the letting was not residential. In the evidence we have the statement of Narain Singh as D.W. 1 to the effect that the defendants have been living in the house. Both the defendants also asserted their occupation of the house. In the face of such evidence, it was not open for the lower appellate Court on its own to say that the suit of the landlord could not succeed in the absence of a specific plea that the premises had been let for residential purposes. In my view, all that clause (e) requires is that the ejectment may be permitted in respect of the premises let for residential purposes, but it is not a requirement of law that pleadings to this effect are pre-emptory. From the tenor of the pleadings and the evidence, it seems obvious that the premises had been treated as residential by both parties and it was not open to the Court suo motu to take up a point on which no issue had been joined by the parties.

So far as the requirement of the landlord is concerned, the lower appellate Court did not disturb the finding of the trial Judge that the house was needed by the landlord bona fide. The suit of the landlord has been dismissed on the technical grounds which, in my opinion, cannot derive sustenance from the language of section 13 and the other provisions which have been adverted to.

Mr. Narula for the petitioner has finally urged that the case is governed by section 29 of the Displaced Persons (Compensation and Rehabilitation) Act. Though this matter has never been raised before, it is a question of jurisdiction and can be entertained even at this stage. Section 29 of the Act accords special protection from ejectment to certain persons in possession of evacuee properties which have been transferred by sale. In such cases, the tenant is entitled to remain in possession of the property for a period of two years on the condition that rent is paid. Rule 121 states that "the period during which persons to whom the provisions of section 9 of the Act apply, shall not be liable to be ejected from any immovable property other than agricultural land in their lawful possession shall be two years in all cases". The period of two years for which protection is given to the tenant expired on 16th of April 1959 and the tenants having been served with a notice can no longer claim to remain in the suit premises as a matter of right. This petition therefore succeeds, the decree for ejectment passed in favour of the landlord restored, and the suit decreed. There would, however, be no order as to costs in this petition.

At the request of the counsel for the respondents, I grant the tenants three months'' time to vacate the premises.