Lov Raj Kumar vs Dr. Major Daya Shanker and Others

G.R. Luthra, J.—By way of this judgment, a number of applications (E.A. Nos. 68, 71, 68,(sic) 134 and 135 of 1985) are being decided. They are connected with Execution Case No. 27/80.

Major Daya Shankar (now deceased) executed an agreement dated February 27, 1960 to sell property No. 77, Sunder Nagar, New Delhi in favour of Shri Lov Raj Kumar (hereinafter referred to as the decree-holder). As Major Daya Shankar did not execute the sale deed in favour of the decree-holder, in accordance with the agreement to sell, the latter instituted a suit on January 3, 1962 in the court of the Senior Sub Judge, Delhi. That suit was entrusted to a Sub Judge for trial and decision. The suit was still pending when Delhi High Court Act came into force and in accordance with its provisions, Delhi High Court came into existence on November 1, 1966. In view of the provisions of Delhi High Court Act, the suit was transferred to Delhi High Court and was registered as Suit No. 28 of 1967.

The prayer in the original plaint was to the following effect:

(a) That a decree for specific performance of the agreement for sale of the building known and styled as No. 77, Sunder Nagar, New Delhi, along with the lease-hold rights in the site of the said property leased by Defendant No. 1 from the President of the Union of India, be passed in favour of the Plaintiff and against the Defendants, and the Defendants be directed to apply for permission to the Chief Commissioner and convey the property on receipt of permission and in case the Defendants refuse to apply for permission and convey the property to the Plaintiff by executing the sale deed and getting the same registered and delivered to the plaintiff, proper procedure prescribed under the law, may please be adopted.

(b) That all rents and profits of the property during the pendency of the suit may also be allowed to the plaintiff.

(c) That in case specific performance be not allowed, a decree for Rs. 15,000/- on account of refund of the amount and Rs. 50,000/- damages be passed in favour of the Plaintiff and against the Defendants.

Afterwards Brig. Bhawani Shanker was added as a Defendant and the plaint was amended by adding paragraph 8(a) and 8(b), because Brig. Bhawani Shanker claimed that the property No. 77, Sunder Nagar, New Delhi did not exclusively belong to Major Daya Shanker, that the said property was joint Hindu family one of which the former was also a member and that in partition, the said property fell to the share of the former.

On March 8, 1979, the suit was decided. The learned Single Judge who decided the suit held that property No. 77, Sunder Nagar, New Delhi was not joint Hindu family one, that the same was self acquired property of Major Daya Shanker and that Brig. Bhawani Shanker had no right or interest in the said property. The decree which was passed was in the following terms:

A decree for specific performance of the agreement for sale of the building known and styled as No. 77, Sunder Nagar, New Delhi, along with lease-hold rights in the site of the said property by Defendant No. 1 from the President of the Union of India, is passed in favour of the Plaintiff and against the Defendants. The Defendants are allowed two months'' time to apply for permission to the concerned authority for conveying the property to the Plaintiff and convey the property to the Plaintiff immediately on receipt of the requisite permission. In case the Defendants fail to apply for permission and convey the property to the Plaintiff by executing the sale deed and getting the same registered and delivered to the plaintiff, the Registrar of this Court is directed, on the expiry of two months from the date of the decree, to apply for permission to the concerned authority for conveying the suit property to the Plaintiff and convey the property to the Plaintiff immediately on receipt of the permission by executing the sale deed and getting the same registered and delivered to the plaintiff.

The prayer of the decree-holder for grant of decree for rents and profits of the property during the pendency of the suit was rejected.

Major Daya Shanker did not file any appeal against the aforesaid decree. Brig. Bhawani Shanker went in appeal which was dismissed by a Division Bench of this Court on January 21, 1980. The decree-holder on February 7, 1980 filed an execution petition (No. 27 of 1980) which sought relief in the following words:

The decree for Specific Performance was passed by this Hon''ble Court on 8-3-1979. The said appeal was also dismissed by this Hon''ble Court on 21-1-1980 with costs. That after the dismissal of the appeal, the judgment-debtors were required to execute the Sale Deed after complying with the formalities on the receipt of the balance sale consideration but they have refused to obey and comply with the decree. The two bank drafts totalling Rs. 1,87,500/- being the balance sale consideration (after deducting Rs. 15,000/-already paid as earnest money from the sale consideration of Rs. 2,02,500/-) are enclosed herewith. The drafts have been made in the name of Registrar of this Hon''ble Court. The Decree Holder is entitled to recover costs from the judgment-debtors and to adjust the same towards and against the balance sale consideration. The decree-holder is also entitled to recover and adjust the amount of rent which has been received by the judgment-debtors from the tenants of the property in suit namely, 77 Sunder Nagar, New Delhi with effect from 8-3-1979 as ordered by the Division Bench of this Hon''ble Court while granting stay. The Decree-Holder, however, at present for abundant precaution is tendering the entire balance sale consideration subject to his right to receive back the amounts of costs and rent payable by the judgment-debtors from the property in suit since 8-3-1979.

Brig. Bhawani Shanker filed Special Leave Petition, in the Supreme Court which was dismissed on July 17, 1984. During the pendency of the said appeal, the execution remained stayed. After the appeal was dismissed, the decree-holder filed on July 27, 1984 an application (dated July 23, 1984) which was registered as E.A. 189/84. In that application, after narrating as to how the decree had become final on account of dismissal of the appeal by the Supreme Court, the decree-holder prayed that a sale deed in his favour be got executed throughout the Registrar of the court because in spite of the fact that judgment-debtors Daya Shanker and Bhawani Shanker had been given ample opportunity to execute the sale deed in terms of decree dated March 8, 1979, they had failed to do so. On receipt of that application it was ordered 6n August 9, 1984, that the Registrar of this Court should write to the Land and Development Officer for grant of permission for conveying the property to the decree-holder. Permission of the Land and Development Officer was received on January 17, 1985, the Registrar was directed to execute a sale deed of the property on behalf of Brig. Bhawani Shanker as well as the heirs of Major Daya Shanker, who in the meantime had died. The heirs of Maj. Daya Shanker were Smt. Har Pyari, Dr. Sudhir Kaicker, Dr. Sushma Kapur and Ms. Sobha. The sale deed was executed by Registrar of this Court on January 28, 1985 and got registered on February 3, 1985 with the Sub-Registrar, Asaf Ali Road, New Delhi.

On February 4, 1985, the decree-holder filed an application registered as E.A. No. 39 of 1985. After narrating the entire facts, the decree-holder prayed that physical possession of the property be directed to be delivered to him in accordance with the provisions of Order 21 Rules 32 and 35 and Section 151 CPC. On February 8, 1985, following order was passed on the said application:

Original file has been put up. Issue warrants of possession in favour of the decree-holder and against the judgment-debtors i.e. heirs of Major Daya Shanker, namely, Smt. Har Pyari (2) Dr. Sudhir Kaicker, Dr. Sushma and Mrs. Shobha and Brig. Bhawani Shanker, returnable for 20th March, 1985. Process fee within a week. Dasti.

Warrants of possession were issued but possession could not be delivered on account of resistance of M/s. Batliboi & Co. Ltd. (hereinafter referred to as ''Batliboi'') and M/s. S.M.S. Investment Corporation Pvt. Ltd. (hereinafter referred to as "SMS Corporation'') who came up with the objection petitions.

The objections of Batliboi are contained in the application registered as E.A. 68/85. During the pendency of those objections, that company filed an application (registered as EA. 134/85) for permission to urge further grounds mentioned therein, which was allowed.

The objections of SMS Corporation are contained in the application registered as E.A. 71/85. During the pendency of those objections, the said company also filed an application (registered as E.A. 135/85) for permission to urge further grounds mentioned therein, which was allowed.

Batliboi is in possession of ground floor of the property in dispute i.e. 77, Sunder Nagar, New Delhi. That floor is actually occupied by Mr. B.M. Lal, a director of Batliboi. It is stated by the said objector that the ground-floor was obtained on rent from Brig. Bhawani Shanker and that when the decree-holder became the owner, the said objector became the tenant under the decree-holder and is not liable to be evicted.

SMS Corporation is in possession of first floor of 77, Sunder Nagar, New Delhi. It is in occupation of Col. Bhawani Singh, chairman of the said company. According to SMS Corporation, the first-floor of the property was let out to it by Brig. Bhawani Shanker and after decree-holder became owner, it became tenant of decree-holder.

It is also alleged by both the objectors that by means of a letter dated February 23, 1983 written by the decree-holder to Col. Bhawani Singh, chairman of SMS Corporation, the decree-holder had accepted the objectors as the tenants of the property 77, Sunder Nagar, New Delhi. It was further alleged that during the pendency of the appeal against the decree for specific performance filed by Brig. Bhawani Shanker in the Supreme Court, the decree-holder brought an application for grant of an injunction restraining Brig. Bhawani Shanker from taking possession of the property in suit from the tenants on account of which also the aforesaid objectors were accepted as tenants. According to them, the writing of the aforesaid letter and the application for issue of injunction constituted waiver of rights of the decree-holder to claim physical possession of the property, that he is estopped to claim such possession and that only symbolic possession can be given to him.

The dates of letting out of the first and ground-floors to SMS Corporation and Batliboi respectively were not given in the objection petitions. The decree-holder brought an application under Order 6 Rule 5 CPC for obtaining better particulars. In reply to that application, the dates of tenancy were mentioned as 1st June 1979 in respect of ground-floor in favour of Batliboi and 23rd January, 1976 in respect of first-floor in favour of SMS Corporation.

The objections were contested by the decree-holder. He denied the existence of any tenancy. It was alleged that even if they were tenants of Brig. Bhawani Shanker, the tenancies were not binding on him because Brig. Bhawani Shanker had no right or title with respect to the property on account of which he could not have let out the same. It was also contended that in view of Section 52 of Transfer of Property Act, the creation of tenancies during the pendency of suit, for specific performance were not binding on the decree-holder. Following issues were framed on March 29, 1985:

Are the tenancies of the objectors created by Brig. Bhawani Shanker binding on the decree-holder? OP Objectors.

Are the tenancies created by Brig. Bhawani Shanker on 1st June, 1979 in respect of ground-floor in favour of M/s. Batliboi & Co. Ltd., New Delhi and on 23rd January, 1976 in respect of first-floor in favour of M/s. S.M.S. Investment Corporation Pvt. Ltd. not hit by Section 52 of the Transfer of Property Act and are binding on the decree-holder? OP Objectors.

Is the decree-holder estopped from challenging the right of the objectors to hold possession as alleged by the objectors? OP Objectors.

Is the decree-holder not entitled to actual possession and is entitled to merely a symbolic possession from objectors? OP Objectors.

Relief.

learned Counsel for the decree-holder stated that let the allegations of the objectors be taken as correct for the purpose of deciding these issues, that then those issues become purely legal and that the same be decided by way of hearing arguments.

The judgment-debtors (Brig. Bhawani Shanker as well as heirs of Maj. Daya Shanker) also brought an objection petition registered as E.A. 98/85. It is contended that the sale deed executed in favour of the decree-holder was a nullity because according to the provisions of Code of Civil Procedure, first of all the judgment-debtors should have been called upon to execute the sale deed and get the same registered and only in the event of their refusal, the Registrar of this Court could execute the sale deed in favour of the decree-holder, hence procedure was never followed as the judgment-debtors were never called upon to execute the sale deed They, therefore, prayed that it be declared that the sale deed executed and registered in favour of the decree-holder was a nullity and that, therefore, the decree-holder was not entitled to possession of the property. Those objections were also contested by the decree-holder and following issue was framed on March 29, 1985:

Was the sale deed executed and registered in favour of the decree-holder a nullity and has no effect in law? If so what is its effect?

The new grounds taken up in E.A. Nos. 134 and 135 of 1985 are being mentioned and decided while dealing with issue No. 4.

I have heard the learned Counsel for the parties at length. My findings on different issues are as under:

Issue No. 1.

It has been held in this very case that Brig. Bhawani Shanker had no title or right with respect to the property in question. He had set up a case that the property was a joint Hindu family one and that he had become owner on account of partition. But his that plea was found to be wrong. The net result is that Brig. Bhawani Shanker, being himself not possessed of any right or title in the property, he could not pass any.

In Rentala Latchaiah and Others Vs. Chimmapudi Subrahmanyam, , it was held that tenancy rights could not be created by a person who had no title in the properly. In that case, an adopted son of a person brought a suit against widow of that person for a declaration that he was the owner of a certain land and he be also delivered possession. That suit was decreed in favour of the adopted son in 1951. In 1952 the widow leased out the land subject matter of that suit. The widow filed an appeal which was dismissed in 1954. It was held that after the passing of the decree in 1951, the possession of the widow could only be that of a trespasser and that she could not create any right in the land in favour of anybody. Similarly, in the present case, Brig. Bhawani Shanker who had no right whatsoever in the property in dispute, could not create any tenancy in favour of any of the objectors.

The learned Counsel for the objectors submitted that Brig. Bhawani Shanker was recognised as a lessee of the Govt. of India u/s 3 of the Government Grants Act, 1895 and that, therefore, he was fully competent to create tenancy in the premises. He added that in any case he was a landlord within the meaning of Section 2(e) of the Delhi Rent Control Act and that, for being a landlord, it was not necessary that a person should be owner. He in this respect placed reliance on a judgment of the Supreme Court in Dr. H.S. Rikhy and Others Vs. The New Delhi Municipal Committee, .

However, the aforesaid argument is not tenable. It was never alleged in the objections that Brig. Bhawani Shanker was recognised as a lessee u/s 3 of the Government Grants Act. Therefore, such contention cannot be allowed to be raised. There is no difficulty that Brig. Bhawani Shanker was a landlord of the objectors because he had let out the premises to them. But the mere fact that he was a landlord qua tenants does not mean that he can have any rights against a true owner when he had no right or interest or title in the property. The judgment of the Supreme Court AIR 1962 SC 554 has absolutely no relevancy because that was in respect of interpretation of Section 47 of the Punjab Municipal Act. It was held that no person could be a tenant under New Delhi Municipal Committee without formal agreement in writing in accordance with the provisions of Section 47 of the Punjab Municipal Act.

The issue is, therefore, decided in favour of the decree-holder.

Issue No. 2.

Section 52 of the Transfer of Property Act reads as under:

During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise, dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.

Explanation. -- For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.

There is no doubt that according to Section 52 of the Transfer of Property Act, the tenancy in favour of the objectors could not be created during the pendency of the suit in the present case. In Nand Lal Patel v. Shiv Saran Lal ILR (1984) 1 Delhi 913 it was held that a lease of any portion of a property during the pendency of a suit for partition is not binding on the other owners. In Joginder Singh Bedi Vs. Sardar Singh Narang and Another, , a Division Bench of this Court held that sale of property to a third party during the pendency of a suit for specific performance of an agreement to sell is not binding on the Plaintiff in that suit in view of Section 52 of the Transfer of Property Act.

The learned Counsel for the objectors contended that when the suit was instituted on January 3, 1962, the provisions of the Transfer of Property Act were not extended to the Union Territory of Delhi, that it was from December 1, 1962 that those provisions came into force in the said Union Territory by means of a notification dated November 17, 1962 and that, therefore, the provisions of the said Act could not affect the substantive rights of the judgment debtor to create valid tenancies at any time, even during the pendency of the suit.

The learned Counsel contended that when the provisions of Section 52 of the Transfer of Property Act were not applicable, the tenancies in favour of the objectors could be validly created and the same were binding on the decree-holder. In support of his contention to the effect that it was law prevailing at the time of institution of the suit which was applicable, the learned Counsel relied upon a number of authorities. In Alley Rasul Ali Khan and Another Vs. Balkishun and Others , it was held that when a new Act was passed subsequent to the filing of a suit,; the right to file an appeal and execution application were governed by the old Act unless the new Act provided that they would be governed by the new Act. In Sylhet Loan and Banking Co. Ltd. v. Syed Ahmad Majtoba AIR 1946 Cal 337, the proposition of law laid down is that the ordinary rule is that rights of litigants are to be governed by the law in force when the action was commenced unless provided otherwise by the new law. Similar was held in Ningappa Balappa and Others Vs. Abashkhan Gouskhan, ; Mahender Nath Gupta Vs. Moti Ram Rattan Chand and Another, ; Katikara Chintamani Dora and Others Vs. Guntreddi Annamanaidu and Others, ; Ram Singha and Another Vs. Shankar Dayal and Another and Parameshwaran Pillai Vasudevan Pillai v. Jacob Perumal AIR 1956 KER 236.

The proposition of law aforesaid is well settled and there is no difficulty about the same. But that proposition of law has no application in the present case. The rights of the parties which were involved in the suit were in respect of the specific performance of agreement to sell. Those rights are to be determined in accordance with law (Specific Relief Act, 1877) in force on the date (January 3, 1962) of the institution of the suit. The specific performance aforesaid did not involve anything about the power of letting out by the judgment-debtors. Therefore, that power of letting or the validity of the tenancies could be determined with reference to the law which was in force at the time of the creation of the tenancies. There is no dispute that Transfer of Property Act had come into force when the tenancies were created in the present case. The tenancy in favour of SMS Corporation was created on 23rd January, 1976 while the tenancy sin favour of Batliboi was created on 1st June 1979. The creation of both these tenancies was much after December 1, 1962 on which date Transfer of Property Act came into force. Hence Transfer of Property Act applied and invalidated the creation of the aforesaid tenancies.

The learned Counsel for the objectors contended that notwithstanding application of Section 52 of the Transfer of Property Act, the objectors after the decree in favour of decree-holder became statutory tenants under the decree-holder and thus they cannot be dispossessed. The learned Counsel relied upon judgments in Mt. Aziz Fatma Vs. Mukund Lal and Others, , reasoning of minority decision in Anand Nivas (Private) Ltd. Vs. Anandji Kalyanji Pedhi and Others, and in Smt. Sefali Roy Chowdhary and Others Vs. A.K. Dutta, . This matter is being dealt with while dealing with issue No. 3. Briefly speaking none of the authorities is applicable to the facts of this case and are in respect of law not applicable to Delhi. Mt. Aziz Fatma Vs. Mukund Lal and Others, was in respect of Agfa Tenancy Act AIR 1965 SC 414 was on Bombay Rents, Hotel and Lodging House Rates Control Act (No. 57 of 1947) and Smt. Sefali Roy Chowdhary and Others Vs. A.K. Dutta, was on Section 16(3) of West Bengal Premises Tenancy Act.

Even if it is taken for granted that the provisions of Section 52 of the Transfer of Property Act were not applicable as such, the principles contained in it were applicable. It is well established that wherever Transfer of Property Act is not applicable, such principles in the provisions of the said Act, which are based on justice, equity and good conscience, are applicable. A Supreme Court judgment in this respect is in the case of Namdeo Lokman Lodhi Vs. Narmadabai and Others, . In that case, the following was held in paragraph 20 at page 232:

In our opinion, the provision as to notice in writing as a preliminary to a suit for ejectment based on forfeiture of a lease is not based on any principle of justice, equity or good conscience and cannot govern leases made prior to the coming into force of the Transfer of Property Act, 1882, or to leases, executed prior to 1-4-1930. The rights and obligations under those leases have to be determined according to the rules of law prevailing at the time and the only rule applicable seems to be that a tenant cannot by his unilateral act and by his own wrong determine the lease unless the lessor gives an indication by some unequivocal expression of intention on his part of taking advantage of the breach. On no principle of equity is a tenant entitled to a notice in writing telling him that the lease has been determined. The High Court was, therefore, right in the view that it took of the matter and there are no valid reasons for taking a contrary view.

In that case it was held that giving of notice in writing as a preliminary to a suit for ejectment based on forfeiture of a lease was not based on any principle of justice, equity or good conscience and that therefore giving of such a notice was not necessary in areas where Transfer of Property Act did not apply. However, it was clearly laid down that such provisions of the Transfer of Property Act which were in accordance with the principles of equity, justice or good conscience were applicable even in those areas where Transfer of Property Act had not been enforced.

The principles contained in Section 52 of transfer of Property Act are in accordance with the principle of equity, good conscience or justice, because they rest upon an equitable and just foundation, that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. Allowing alienations made during pendency of a suit or an action to defeat rights of a Plaintiff will be paying premium to cleverness of a Defendant and thus defeat the ends of justice and throw away all principles of equity.

In Mool Chand v. Ganga Jal AIR 1930 Lah 356, a Full Bench of the Lahore High Court held that although the Transfer of Property Act was not in force in Punjab, the principles underlying the provisions including Section 52 were applicable to the said province. learned Counsel for the objectors contended that the aforesaid authority merely applied to preemption cases and was not applicable to the grant of leases or creation of tenancy. But that is obviously wrong. It was clearly laid down that principles underlying the provisions of Section 52 of the Transfer of Property Act were applicable where provisions of such Act were not in force.

In Milkha Singh v. Mst. Shankari AIR 1947 Lah 1 (FB), it was held that even though Transfer of Property Act was not in force in Punjab, the principles underlying the provisions of Section 53-A of the said Act were applicable.

In Mela Ram & Sons v. Firm Ram Das Joshi and Sons AIR 1942 Lah 275 it was held that the principles underlying u/s 55 of the Transfer of Property Act were applicable even though the said Act as such was not in force in the province of Punjab.

In Mt. Shankari v. Milkha Singh AIR 1941 Lah 407 (FB), it was held that although Transfer of Property Act was not in force in Punjab, the principle enunciated in Section 55(6)(b) being a general rule of English law, applied as being in accordance with justice, equity and good conscience.

In Nainu and Others Vs. Kishan Singh and Another, , similar view was expressed in respect of the principles underlying Sections 1,60 of the Transfer of Property Act although Transfer of Property Act, as such was not applicable to Bilaspur State before 1949.

Under the above circumstances, the tenancies created by Brig. Bhawani Shanker in favour of the objectors are hit by the principles underlying the provisions of Section 52 of the Transfer of Property Act and they were void and ineffective as against the decree-holder even if it were held that the Transfer of Property Act was not in force.

The issue is, therefore, decided in favour of the decree-holder.

Issue No. 3.

As already mentioned the reliance of the objectors is on a copy of letter dated February 23, 1983 written by the decree-holder to Shri B.M. Lal, Chairman of SMS Corporation and a copy of a Civil Misc. Petition No. 8256/83 filed in the Supreme Court by the decree-holder (during the pendency of civil appeal No. 958/80 of Brig. Bhawani Shanker) whereby the decree-holder prayed for issue of a temporary injunction restraining Brig. Bhawani Shanker from taking possession of property No. 77, Sunder Nagar, New Delhi from the tenants till the disposal of the appeal. The letter dated February 23, 1983 was to the effect that the decree-holder had already obtained a decree for specific performance of agreement to sell, that he had come to know that Brig. Bhawani Shanker wanted to take possession of the property, that he was not entitled to do so and that, therefore, the tenants should not deliver possession to Brig. Bhawani Shanker. The relevant portion of the letter on which great emphasis was laid by the counsel for the objectors reads as under:

In these circumstances, I call upon you not to please vacate the premises and deliver possession to Brig. Bhawani Shanker as he has absolutely no right to the same. You are and shall remain liable to vacate the premises and deliver possession to me as and when I call upon you to do so.

(Emphasis supplied)

The learned Counsel for the objectors contended that by way of the said letter not only that the decree-holder did not dispute the existence of tenancy rights of the objectors but on the other hand accepted and admitted the objectors as tenants and that is why called upon them not to deliver possession to Brig. Bhawani Shanker. The learned Counsel also contended that by way of approaching the Supreme Court for issue of an injunction, the decree-holder wanted to perpetuate the possession of the objectors as tenants which meant that he accepted the objectors as his tenants. The learned Counsel continued that in that way the decree-holder had waived his right to claim physical possession and was also estopped from challenging the right of the objectors to hold possession. He concluded that on account of acceptance of the objectors as tenants, the objectors had become tenants under the decree-holder and were not liable to be dispossessed.

In connection with the aforesaid arguments, the learned Counsel relied upon a number of authorities. In Sen and Co. Vs. Sm. Mani Mala Sadhu, , it was held that a landlord who had received rent without objection had waived his right of striking out of written statement of tenant u/s 17(3) of West Bengal Premises Tenancy Act, 1956. In Mst. Jagaribai Vs. Ramkhilawan and Others, , facts were as follows: A Hindu widow filed a suit challenging the alienation by her son of her half share in a property. It was held that although in view of Section 14 of the Hindu Succession Act she had become full owner of that half share, but since she was found to have consented to the transfer, she was estopped from claiming the property. In Raghunath Pradhani Vs. Damodra Mahapatra and Others, , a decree-holder was held to be estopped from denying that judgment debtor belonged to a Scheduled Tribe and that on that account his immovable property could not be attached and sold in auction without permission of a competent authority under ''Orissa Scheduled Areas Transfer of Immovable Property by Scheduled Tribes Regulation No. 2 of 1956''. The facts of the case were as follows. The decree holder applied for realisation of his decretal amount by execution of his decree and got an Immovable property of the judgment-debtor attached. He then filed an application to the effect that as the judgment debtor belonged to a Scheduled Tribe, permission to sell his property be obtained from ''competent authority''. The Executing Court wrote a letter to the competent authority for according permission but before such permission could be given, the judgment-debtor, after obtaining such permission privately, sold the property to another person for Rs. 4,000/-. The decree-holder by producing a copy of the permission issued for selling the property to that another person, got the property sold in auction. The purchaser by private sale from judgment debtor applied for getting the sale set aside, inter alia, on the ground that the attachment and sale of the property was void as the same was without permission of the ''competent authority''. The decree-holder contended that the judgment-debtor did not belong to any scheduled tribe. It was held that the decree-holder himself having first intimated the executing court that judgment-debtor belonged to scheduled tribe, he was later on estopped from denying that fact. The learned Counsel contended that in the present case also, the decree-holder was estopped from denying the tenancy of the objectors.

The reliance was also placed on a judgment of the Supreme Court in Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and Others, in which the Doctrine of Promissory Estoppel was enunciated and it was stated as to what constituted a waiver.

In AIR 1949 124 (Federal Court) , it was held that when a landlord accepted rent from a sub-tenant, the latter became a tenant.

Neither the letter dated 23rd February, 1983 nor the application of the decree-holder filed in the Supreme Court constitutes any acceptance of the objectors as tenants. The letter does not say that the decree-holder was accepting the objectors as tenants. The letter and especially the portion relied upon by the learned Counsel for the objectors clearly indicates that the decree-holder was not recognising the objectors as tenants and that is why he was emphasising that they should hand over the possession to him rather than to Brig. Bhawani Shanker. Had the decree-holder recognised the objectors as tenants, he would have called upon them to go on living in the premises and would not have demanded possession of the same as and when called upon to do so. Subsequently that letter was also withdrawn and the objectors themselves have placed on record a copy of letter dated March 21, 1983 which shows the withdrawal of letter dated February 23, 1983.

The application filed before the Supreme Court was an endeavour to maintain the status quo till the disposal of the appeal. The decree-holder did not want that the possession should pass over to some other person. There is not even a single sye (sic) in application that the decree-holder was recognising the objectors as tenants.

In Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and Others, , it was enunciated as to what constituted a waiver:

Waiver means abandonment of a right and it may be either express or implied from conduct but its basic requirement is that it must be an intentional act with knowledge. There can be no waiver unless the person who is said to have waived is fully informed as to his right and with full knowledge of such right, he intentionally abandons it.

I have already held above that there is nothing in the letter dated February 23, 1983 and the application of the decree-holder that he wanted to waive his rights to obtain physical possession of the property. Under these circumstances there was neither any waiver nor any estoppel nor objectors became tenants under the decree-holder. The authorities relied upon by the learned Counsel are obviously not on the facts of this case.

The learned Counsel also urged that objectors had, even otherwise become statutory tenants as soon as decree-holder became owner of the property and that as tenants they could not be evicted in view of the provisions of Delhi Rent Control Act. Reliance of the learned Counsel was on a number of authorities for supporting his aforesaid contention. In Mt. Aziz Fatma Vs. Mukund Lal and Others, , it was held that a lease granted during the pendency of a suit was binding under the Agra Tenancy Act on a purchaser in an auction held in execution of a money decree and that, therefore, a tenant could be evicted only by means of proceeding of ejectment taken in a revenue court under the aforesaid Act. In Calicut Bank Ltd. in Liquidation by Official Liquidators Vs. Smt. C. Radhalakshmi, , it was held that a purchaser in an auction held in execution of a decree could be given only symbolic possession as against a tenant let in by a receiver appointed by a court. In Anand Nivas (Private) Ltd. Vs. Anandji Kalyanji Pedhi and Others, , it was held that a person remaining in possession after determination of tenancy became a statutory tenant under the Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947). In Manujendra Dutt Vs. Purendu Prosad Roy Chowdhury and Others, was held by the Supreme Court:

To summarise the position: The Thika Tenancy Act does not confer any additional rights on a landlord but on the contrary imposes certain restrictions on his right to evict a tenant under the general law or under the contract of lease. The Thika Act like other Rent Acts enacted in various States imposes certain further restrictions on the right of the landlord to evict his tenant and lays down that the status of irremovability of a tenant cannot be got rid of except specified grounds set out in Section 3. The right of the Appellant therefore to have a notice as provided for by the proviso to Clause 7 of the Lease was not in any manner affected by Section 3 of the Thika Act. The effect of the non obstinate clause was that even where a landlord has duly terminated the contractual tenancy or is otherwise entitled to evict his tenant he would still be entitled to a decree for eviction provided that his claim for possession falls under any one or more of the grounds in Section 3. Before therefore the Respondents could be said to be entitled to a decree for eviction they had first to give six months'' notice as required by the proviso to Clause 7 of the lease and such notice not having been admittedly given their suit for eviction could not succeed.

None of the authorities is on general law. They are on special laws prevailing in different States of India. AIR 1932 All 480 is on Agra Tenancy Act. AIR 1965 SC 414 was in respect of Bombay Rents, Hotel and Lodging House Rates Control Act. (1967) I SCR 475 : (AIR 1967 SC 1419) was on the provisions of ''Thika Tenancy Act''. AIR 1945 Mad 65 was on the provisions of Madras House Rent Control Order, 1941. Obviously, none of the aforesaid statutes (applicable to different States) has any application to Delhi. None of them laid down any proposition that a tenant under a person against whom a decree of specific performance of agreement to sell has been passed will become a statutory tenant under the decree-holder. In fact, no statutory rights are conferred in this manner.

In any case it is also of great importance to emphasize that the objectors never had any valid tenancy in their favour because they derived such rights from, a person (Brig. Bhawani Shanker) who had no right, title or interest in the property and who, as I have already held, could not pass any rights whatsoever to the objectors. When the objectors were not tenants at all, how could they acquire tenancy rights.

The learned Counsel for the objectors contended that even if the objectors had not become tenants of the decree-holder and the decree-holder was not estopped from challenging the right of the objectors to hold possession, the objectors were not liable to be dispossessed. He explained that qua the decree-holder the objectors were trespassers, that even the trespasser was entitled to hold possession till evicted in due course of law and that, therefore, the decree-holder must bring a suit for eviction of the objectors and could not dispossess the objectors in execution of the present decree. According to the learned Counsel as trespassers, and that too when decree-holder in letter dated February 23, 1983 had called upon the objectors to hold on possession and not to give it to Brig. Bhawani Shanker, they were not bound by the decree and that, therefore, they were not liable to be dispossessed.

But the aforesaid argument clearly has no force. The objectors are not holding any right independently of the judgment-debtors. It is true that they are trespassers because they derive interest through a trespasser, namely, Brig. Bhawani Shanker. But we must not forget that Brig. Bhawani Shanker is also a judgment-debtor and the sale deed in favour of the decree-holder was executed on his behalf also by the Registrar of this Court. Therefore, the objectors who derive their rights from Brig. Bhawani Shanker are bound by the decree and they are also liable to be dispossessed in the same manner in which Brig. Bhawani Shanker is liable to be dispossessed.

As already held, the decree-holder never consented to objectors remaining in possession in the letter dated February 23, 1983 or application filed before the Supreme Court. He merely called upon the objectors not to deliver possession to Brig. Bhawani Shanker and rather they should give possession to him.

Issue is, therefore, decided accordingly in favour of the decree-holder.

Issue No. 4.

The sum and substance of the reasons for not delivering the physical possession and delivering only symbolic possession (which were taken up in the original objection petitions as well as E.A. 134 and 135/85) are given as under:

(1) The decree-holder did not make any prayer in the plaint for recovery of possession. He was not granted any decree for possession. According to Section 22 of the Specific Relief Act 1963 which came into force during the pendency of the suit, the decree-holder is debarred from getting possession unless he had prayed for delivery of possession in the plaint. According to proviso to Section 22, court can allow amendment of the plaint with a view to include the relief of possession. But the decree-holder never prayed for any amendment. Therefore, he is not entitled to physical possession.

(2) The original execution application No. 27/80 was for obtaining a sale deed. There was no prayer at all for obtaining possession. Hence as soon as sale deed was executed and registered, the said execution application stood fully satisfied on account of which no further action in execution is permissible and no further execution application for obtaining possession is maintainable.

learned Counsel for the objectors relied upon judgments in Smt. Swaranalatika Sarkar Vs. Smt. Prativa Rani Sarkar, and Rukmini Devi Vs. Pawan Kumar Gupta, . In the case before the Calcutta High Court, a decree for specific performance was passed and an application for execution of that decree praying for executing of a sale deed was brought. The sale deed was executed and the application was disposed of on the basis that the decree stood fully satisfied. Thereafter, the decree-holder brought an application for delivery of possession. It was held that the second application for execution of decree by way of delivery of possession was not maintainable. In the case before the Patna High Court, a decree for specific performance was passed against the original owner. In the meanwhile the original owner transferred the property to another. The decree holder applied for amendment of the plaint for including a prayer for grant of decree for recovery of possession. It was held that the application for amendment was not maintainable and that the decree-holder was not entitled to possession of the property. learned Counsel for the judgment debtor contended that the aforesaid authorities covered both the grounds, that in the present case the decree-holder was neither entitled to recovery of possession in execution of the decree nor he was entitled to even amendment of the plaint with a view to include a prayer for recovery of possession and that, therefore, the decree-holder is entitled only to symbolic possession as against the objectors.

The arguments of the learned Counsel for the objectors have no force and the authorities relied upon by him are no longer good law in view of the Supreme Court judgment in Babu Lal Vs. Hazari Lal Kishori Lal and Others, . In that case, the owner of an immovable property after executing an agreement to sell in favour of one person, sold the property to others. The person, in whose favour there was an agreement to sell, brought a suit and obtained a decree for specific performance which did not contain any direction of delivery of possession. The High Court held that not only that that person was entitled to possession from the original owners but also from the transferees. The Supreme Court upheld that view. In that case, the effect of Section 22 of the Specific Relief Act, 1963 was considered and it was held that the same was not applicable for the reasons mentioned as follows. Firstly, when the agreement to sell was made, the old Specific Relief Act, 1877 was in force which did not have any such provision and under which the delivery of possession was inherent and included in the decree for specific performance. Secondly the expression ''in an appropriate case'' occurring in Section 22(1) indicated that it was not always incumbent upon the Plaintiff to claim possession in cases where specific performance was claimed as the relief of possession was inherent in the relief of specific performance of agreement to sell. Thirdly because Section 28(3) of the Specific Relief Act 1963 clearly contemplated that if a purchaser paid the purchase money or other sum which he was ordered to pay under the decree for specific performance, the court could deliver possession of the property. It is clear that the aforesaid authority overrules all the objections of the objectors in this respect. The same view was expressed by the Delhi High Court in Mahender Nath Gupta Vs. Moti Ram Rattan Chand and Another, and that view was approved by the Supreme Court in paragraph 18 of the aforesaid judgment.

The aforesaid judgments are fully applicable in this case. Suit for specific performance was brought before Specific Relief Act 1963 came into force. The decree holder deposited amount in accordance with decree thereby attracting provisions of Section 28(3) of Specific Relief Act and entitling decree-holder to get possession.

The learned Counsel for the objectors, however, contends that the aforesaid authority of Supreme Court was based on the provisions of Section 55 of the Transfer of Property Act (which provides that the seller is bound to give, on being so required to the buyer or such person as he directs such possession of the property as its nature admits), that the Transfer of Property Act was not applicable when the suit was brought on January 3, 1962 and that, therefore, the judgment of the Supreme Court has no application in the present case.

The argument of the learned Counsel is fallacious. Firstly, as I have already held, even when the provisions of the Transfer of Property Act were not in force in the Union Territory of Delhi, its principles, which were in consonance with the principles of equity, justice or good conscience were applicable. The provisions of Section 55 are based on principles" of equity, justice and good conscience inasmuch as it is equitable and just that when a person pays the price of an immovable property, he is entitled to possession of the said property. It will be most unjust if price is received (sic) by the buyer but the possession is not given to him. Secondly, the Supreme Court considered the legal position independently of Section 55 of the Transfer of Property Act and came to the same conclusion.

Even otherwise the authorities relied upon by the learned Counsel have no application in the present case. In the case before the Calcutta High Court after execution of the sale deed, the application for execution of the decree was held to be fully satisfied". That is not so in the present case. Execution No. 27 of 1980, which was the original application for execution of the decree, remained and was pending when the application for delivery of possession was made on February 4, 1985.

For the foregoing reasons I decide the issue in favour of the decree-holder and hold that he is entitled to physical possession of the entire property in question.

Issue No. 5.

In view of the aforesaid discussion, there is no manner of doubt that the decree-holder is entitled to physical possession of the entire house No. 77, Sunder Nagar, New Delhi and the objections of the objectors are liable to be dismissed. The issue is decided accordingly in favour of the decree-holder.

Issue framed on the objections of the judgment debtors.

Shri Mukul Rohtagi, learned Counsel for the judgment-debtors relied upon the provisions of Order 21 Rules 32 and 34 CPC which, inter alia, provide for the execution of a decree for specific performance. It says that if the judgment-debtor had an opportunity of obeying the decree and has willfully failed to obey the same, the decree can be enforced by way of detention of the judgment-debtor in civil prison or by attachment of his property or by both. In addition to the aforesaid remedies, a further remedy is given in Sub-rule (5) of Rule 32 which reads as under:

(5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.

The relevant portion of Rule 34 of Order 21 CPC reads as under:

(1) Where a decree is for the execution of a document or for the endorsement of a negotiable instrument and the judgment-debtor neglects or refuses to obey the decree, the decree-holder may prepare a draft of the document or endorsement in accordance with the terms of the decree and deliver the same to the Court.

(2) The Court shall thereupon cause the draft to be served on the judgment-debtor together with a notice requiring his objections. (if any) to be made within such time as the Court fixes in this behalf.

(3) Where the judgment-debtor objects to the draft, his objections shall be stated in writing within such time, and the Court shall make such order approving or altering the draft, as it thinks fit.

(4) The decree-holder shall deliver to the Court a copy of the draft with such alterations (if any) as the Court may have directed upon the proper stamp-paper if a stamp is required by the law for the time being in force; and the Judge or such officer as may be appointed in this behalf shall execute the document so delivered.

The learned Counsel for the judgment, debtors contended that according to the aforesaid provisions it was obligatory that the judgment-debtors; should have an opportunity to execute the sale deed, that if they failed to do the needful within a time to be fixed by the court, a draft of the sale deed should have been prepared by the decree-holder, objections of the objectors should have been invited, that that was never done and that, therefore, she execution of the sale deed being not in accordance with the procedure laid down by law was a nullity and not binding on the judgment-debtors as well as the objectors.

I, however, do not agree with the Learned Counsel. Firstly, everything was done in accordance with the decree. The decree (operative portion of the judgment has been reproduced in paragraph 5 above) gave time of two months to the judgment-debtors to execute a sale deed in favour of the decree-holder and it was provided that on the expiry of those two months, the Registrar of this Court shall obtain permission of the authorities concerned and execute the sale deed on behalf of the judgment-debtors in favour of the decree-holder. The judgment-debtors never executed any sale deed within a period of two months. Therefore, in accordance with the decree it became obligatory that the Registrar of this Court should write, to the authorities concerned for obtaining permission and then execute the sale deed. The decree did not provide that the objections of the judgment-debtors must be obtained before approving the draft of the sale deed. Secondly, the omission to obtain objections of the judgment debtors in respect of draft of the sale deed submitted by the decree-holder was merely a technical and formal defect. It has not been staled if the judgment-debtors had any objection with respect to the same or they had been prejudiced in any manner.

Under the above circumstances I do not find any force in the objections of the judgment-debtors and the issue is decided accordingly in favour of the decree-holder.

The net result is that I dismiss all the objection petitions of the objectors as well as the judgment-debtors and hold that the decree-holder is entitled to the physical possession of the property, 77, Sunder Nagar, New Delhi.

E.A. Nos. 68, 71, 98, 134 and 135 of 1985 stand disposed of.

Execution Case No. 27/80, E.A. 189/84 & E.A. 39/85.

I give 15 days'' time to the objectors to vacate the premises (77, Sunder Nagar, New Delhi) and hand over physical possession of the same to the decree-holder. On 8th October, 1985 (unless the decree-holder gives a statement that he has already received the possession) issue warrants of possession with the direction that physical possession be delivered to the decree-holder by dispossessing M/s. Batliboi & Co. Ltd. from the ground floor and M/s. SMS Investment Corporation Pvt. Ltd. from the first floor of 77, Sunder Nagar, New Delhi and also by dispossessing Shri B.M. Lal, from the ground floor and Col. Bhawani Singh from the first floor.

A direction be sent to the police that they shall aid in the delivery of possession. The delivery of possession, if need be shall be given by breaking open the locks and doors. Warrants of possession, if issued, shall be returnable by 29th October, 1985.