Delhi High Court
Sushil Kumar vs Bhagwanti Devi And Anr. on 28 November, 1988
Equivalent citations: 1989(16)DRJ289, 1989RLR61
JUDGMENT P.N. Nag, J.
(1) This judgment will dispose of both the appeals as these are inter-connected and facts involved in them are almost the same and concern the same premises.
(2) The facts in S.A.O. 374/78 briefly are that respondents-landlords in the present appeal along with Jagdish Chand Sharma (since dead) first brought an eviction petition No. 667/72 against Sushil Kumar, tenant, in respect of shop bearing No. 29/3943, Rehgarpura, New Delhi-110005 on the ground of non-payment of rent under Section 14(l)(a) of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act') on 28th November, 1972. In that eviction, petition (No. 667/72) Sushil Kumar asserted himself to be the tenant of the premises @ Rs. 58.44 p.m. The Additional Rent Controller allowed the petition and passed an order under Section 15(1) of the Act against the appellant-tenant. However, the appellant-tenant complied with that order, availed the benefit of Section 14(2) of the Act and as such that eviction petition was dismissed.
(3) Thereafter, again, the appellant Sushil Kumar did not pay the arrears of rent with effect from May, 1973 in spite of service of notice and defaulted in payment of rent for three consecutive months and the landlords filed the second eviction petition No. 668/75 against the appellant-tenant Sushil Kumar under Section 14(l)(a) and 14(2) of the Act on the ground that the appellant-tenant Sushil Kumar had defaulter in payment of rent for three consecutive months and thus he was not entitled to the benefit of Section 14(2) again. It was further stated that the contractual tenancy of the appellant-tenant Sushil Kumar was terminated by the notice dated 2-9-1972 but in order to obviate any technical objection, he had been served with another notice dated 24-2-75 without prejudice to the earlier notice. In this second eviction petition No. 668/75 the appellant-tenant Sushil Kumar filed a written statement alleging mainly that his father Chaman Lal was the tenant in the premises in dispute and he died on 11-1-1965 leaving behind himself, Smt. Pushpa Rani, (widow), Vijay Kumar, Sanjiv Kumar (sons), Smt.Veena Kumari, Sashi, Sangeeta and Anu Radha (daughters) and, that the tenancy of Chaman Lal was not terminated during his life time and, therefore, after his death, all the heirs of Chaman Lal aforementioned became co-tenants by inheritance and as such the second eviction petition No. 668/75 was not maintainable. The respondents-landlords, however, in replication pleaded that after the death of ChamanLal Sushil Kumar only attorney as a tenant and he alone has been paying the rent all these years and in the earlier eviction petition No. 667/72 no such plea of co-tenancy was taken. It was further pleaded that the appellant-tenant Sushil Kumar is debarred from raising such a plea of co-tenancy on the principle of constructive resjudicata.
(4) The Additional Rent Controller held that the appellant-tenant Sushil Kumar was in arrears of rent and had committed default in payment of rent for more than three consecutive months due from him despite the service of notice of demand and passed an order of eviction from the premises against the appellant-tenant on 17-7-1976.
(5) Being aggrieved against the order of the learned Additional Rent Controller dated 17-7-1976 the appellant-tenant Sushil Kumar preferred an appeal before the Rent Control Tribunal (RCA 790/76) which was also dismissed by him on 23rd October, 1978 upholding the judgment of the learned Additional Rent Controller.
(6) Being aggrieved against the judgment of the Rent Control Tribunal in Rca 790/76 dated 23-10-1978 the appellant-tenant Sushil Kumar has preferred this present second appeal (SAO 374/78).
(7) The facts in S.A.0. 375/78 in brief are that after the Additional Rent Controller passed the order of eviction on 17-7-1976, the other legal heirs, namely, Pushpa Rani, Veena Kumari. Vijay Kumar Sanjeev Kumar, Shashi Sangeeta and Anu Radha on 24-7-1976 filed objections under Section 25 of the Act claiming independent right/title in the premises. In substance the same objections were reiterated by Pushpa Rani and others as were taken by Sushil Kumar that after the death of Chaman Lal on 11-1-1965 Pushpa Rani & others Along with Sushil Kumar have inherited the tenancy of the premises and continued to be the co-tenants in the demised premises and the eviction order passed against Sushil Kumar alone was not binding on them as no notice either terminating contractual tenancy or demanding the rent had been served on them. The respondents-landlords contested the objections mainly on the same grounds as pleaded by them in the second eviction petition No. 668/75 referred to above that after the death of Chaman Lal Sushil Kumar alone was attorney as the tenant of the said premises and had been paying rent and obtained the receipts in his name alone and further pleaded that they had first filed an eviction petition No. 667/72 against Sushil Kumar on the ground of non-payment of rent and Sushil Kumar in those proceedings had enjoyed the benefits of Section 14(2) of the Act and saved himself from eviction. The Additional Rent Controller on 21-2-1978 allowed the objections holding that the objectors were in occupation of the premises in their own independent rights and the order of eviction in question passed against Sushil Kumar alone could not be executed against them.
(8) Feeling aggrieved against this order the respondents-landlords preferred an appeal (RCA 399/78) before the Rent Control Tribunal which was allowed by the Tribunal on 23-10-1978 holding that Pushpa Rani and others never became the tenants in the demised premises after the death of Chaman Lal and it was only Sushil Kumar who attorney in favor of the respondents-landlords as a tenant and ordered the Additional Rent Controller to proceed with the execution application with law.
(9) Being aggrieved against this order dated 23rd October, 1978 of the Rent Control Tribunal that Pushpa Rani and others have preferred S.A.O. 375/78 under Section 39 of the Act. This is how both these appeals which arise in respect of the same premises have been filed in this court and are being disposed of by a common judgment.
(10) Shri Sunil Malhotra, learned counsel for the appellants in both the appeals, vehemently contended that Chaman Lal died on 11-1-1965 who was a contractual tenant of the demised premises and on his death also the appellants in both the appeals who are the legal heirs of deceased Chaman Lal have inherited the tenancy rights of Chaman Lal and all continued to be the co-tenants as no notice either terminating the contractual tenancy of Chaman Lal or demanding the rent had been served on them. According to him the legal heirs of deceased tenant, in the absence of any provisions in the Act on the contrary, will step into the position of the deceased tenant and all the rights and obligations of deceased tenant including the protection afforded under the Act will devolve on the legal heirs of the deceased tenant. Since no proceedings have been taken by the landlords against the other heirs of Chaman Lal except Sushil Kumar under the Act, the order of eviction passed against Sushil Kumar cannot be binding on the other legal heirs who are co-tenants in the premises. In order to demonstrate that tenancy is heritable and will devolve on all the heirs of deceased tenant, he has relied upon Gian Devi Anand v. Jeewan Kumar, and Ganga Pershad v. Tribeni Devi.
(11) On the other hand, Shri S.C.Nigam, learned counsel for the respondents-landlords, equally vehemently contended that after the death of Chaman Lal it is only Sushil Kumar alone who became the tenant of the premises and other heirs of Chaman Lal by their conduct/acts have impliedly surrendered their tenancy rights, if any, in the premises in favor of Sushil Kumar. Therefore, it was not necessary to implead all the legal heirs of Chaman Lal in the second eviction petition No. 668/75 or resort to the provisions of the Act against them as they were not tenants of the premises. He further submitted that the conduct of the parties clearly demonstrated and established that after the death of Chaman Lal other heirs had impliedly surrendered their tenancy rights, if any, inherited by them in favor of Sushil . Kumar and they have ceased to be co-tenants of the premises and there was neither any necessity for impleading them as parties nor resorting to the provisions under the Act against them and as such the learned Tribunal has correctly dismissed/allowed the appeals. He further vehemently argued that under Section 39 of the Act no appeal would lie in the High Court unless the appeal involved some substantial question of law. Since finding of the Tribunal that the tenancy after the death of Chaman Lal has impliedly been surrendered to Sushil Kumar and it was only Sushil Kumar who attorney tenant in favor of the respondents-landlords is essentially a finding of fact, and appeal as such was not maintainable.
(12) In order to appreciate the real contention of the parties some facts which were not disputed before me by the counsel for the parties, during the course of arguments may be noticed, (a) Chaman Lal died on 11-1-1965; (b) that Chaman Lal left Smt. Pushpa Rani, Vijay Kumar, Sanjeev Kumar, Sushil Kumar, Veena Kumari, Shashi, Sangeeta and Anu Radha as heirs ; (c) that the eviction petition No. 667/72 was filed by the respondents-landlords against the appellant-tenant Sushil Kumar alone on the ground of non- payment of rent alleging Sushil Kumar as a tenant in the demised premises: (d) the rent receipts were issued in the name of Sushil Kumar alone after the death of Chaman Lal. The other heirs of Chaman Lal except Sushil Kumar never came forward to assert their tenancy rights in the premise-s ; i.e) other heirs of Chaman Lal have failed to produce any rent receipt issued by the respondents-landlords in their favor which clearly showed that tenancy has not been created in their favor; (f) Sushil Kumar alone has been carrying on business in the shop after the death of Chaman Lal; (g) in eviction petition No. 667/72 for ejectment an order under Section 15(2) was passed against Sushil Kumar alone and he alter having complied with the order passed under Section 15(2) of the Act the eviction petition was dismissed holding that Sushil Kumar enjoyed the benefits of Section 14(2) of the Act.
(13) I have given careful consideration to the rival contentions of both the parties, and in my opinion there is good deal of force in the submission of learned counsel for the respondents-landlords It is no doubt true that the heirs of deceased tenant will step into the position of the deceased tenant and all the rights and obligations of the deceased tenant including the protection afforded to the deceased tenant under the Act will devolve on the legal heirs of the deceased tenant. Had the plea of implied surrender of tenancy rights not been taken and found in favor of the respondents-landlords by the court below, certainly all the heirs would have become the co-tenants of the premises and would have been entitled to the protection of the Act. But in the present appeals, the learned Tribunal has clearly held that on the principle of implied surrender the tenancy rights, if any, of the other heirs of Chaman Lal are deemed to have been impliedly surrendered in favor of Sushil Kumar and that Sushil Kumar was attorney as a tenant .of the premises after the death of Chaman Lal. In view of this it will neither be open nor permissible to the heirs of Chaman Lal to plead that ail the heirs of the deceased Chaman Lal are entitled to inherit the tenancy rights and to the protection under the Act and are the co-tenants of the premises. Such a finding of implied surrender of tenancy in favor of Sushil Kumar by other heirs of Chaman Lal cannot be said io be either perverse or manifestly erroneous in view of the admitted facts enumerated above.
(14) It is settled principle of law that implied surrender or surrender by operation of law occurs firstly by creation of new relationship or secondly by relinquishment of possession. Implied surrender does not depend on the intention of the parties, like express surrender. It has to be implied from the conduct of the parties. The principle underlying Section 111(f) of the Transfer of Property Act is that whatever relationship exists between two parties in respect of particular premises and new relationship arises, if two sets of relationships cannot exist as being inconsistent and incompatible that is to say, if the latter can come into effect only on termination of earlier, that would be deemed to have been terminated in order to enable the latter to operate. The essence of implied surrender is net change of possession but the doing of an act which is inconsistent with the continuance of the lease or tenancy.
(15) In view of the admitted facts that after the death of Chaman Lal, Sushil Kumar alone was issued rent receipts in respect of the premises by the respondents-landlords ; other heirs never asserted their tenancy rights and could not produce any rent receipts issued by the respondents-landlords in their favor ; Sushil Kumar was alone carrying on business in the shop ; and other facts, the only inevitable conclusion which can be drawn is that the conduct of the parties is in inconsistent with the continuance of lease of the other heirs of Chaman Lal after his death and is in conformity with creation of new relationship of tenant and landlord between Sushil Kumar and the respondents. Therefore, I uphold the contention of the learned counsel for the respondents-landlords and endorse the finding of the learned Tribunal that Sushil Kumar was alone attorney as tenant after the death of Chaman Lal and by conduct other heirs would be deemed to have surrendered their tenancy rights, if any, impliedly.
(16) Further question that would arise for consideration is whether the finding of the Tribunal to the fact that Sushil Kumar who was alone attorney as tenant after the death of, Chaman Lal, and by conduct other heirs would be deemed to have surrendered their tenancy rights, if any. impliedly is a finding of fact or a substantial question of law. It is no doubt true that under Section 39 of the Act the scope of challenge is restricted by Sub-section (2) thereof which shuts out a second appeal unless some substantial question of law is involved therein. A substantial question of law, it is again beyond dispute, does not mean a mere question of law. In order to be "substantial", a question of law must at least be such that there is some doubt or difference of opinion or there is room for difference of opinion on the legal aspect, though generally a question of law of general public importance or even one which may affect materially the rights of the parties has been considered to be substantial in some decisions. However, the law is well settled that the mere application of the settled principles to a particular set of facts would scarcely constitute a substantial question of law. In view of this it cannot be said that any question of law/substantial question of law is involved in these appeals.
(17) As mentioned above that on the basis of material on record the Tribunal has given a finding that the tenancy rights of legal heirs of Chaman Lal other than Sushil Kumar, if any, stood impliedly surrendered in favor of Sushil Kumar and the respondents-landlords created a fresh tenancy in favor of Sushil Kumar. Such a finding what to talk of substantial question of law is not even a question of law. It is a finding of fact only and as such cannot be interfered with in the second appeal. This view has also been taken by Goswamy, J. in Shri Dalam Chand v. Dr. M.C. Sharma, in almost similar case that such a finding is essentially a finding of fact and cannot be interfered with in the second appeal.
(18) The learned counsel for the appellants further argued that there are no pleadings regarding implied surrender of tenancy by other heirs of Chaman Lal in favor of Sushil Kumar, and it was not legally permissible for the courts to examine this question in the absence of pleadings. I have carefully looked into the pleadings of the parties. If the pleadings are taken as awhole, they clearly show that such a plea has been taken by both the parties. The objection has been taken by the objectors in their objections under Section 25 of the Act in paragraphs 2 & 5 as under :
"2.That the Objectors Along with Shri Sushil Kumar inherited tbe tenancy premises as co-tenants and arc in occupation of the same in the same position."
"5.That the Objectors even never relinquished their tenancy and are still tenants. This fact even was admitted by one of the landlords Shri Ravinder Nath Sharma while he appeared as a witness before this Hon'ble Court in the main petition for eviction so filed by the landlords against Sushi Kumar alone."
In other words the appellants have taken the plea that they have not impliedly surrendered the tenancy rights. Even otherwise the point of controversy between the parties that Sushil Kumar alone is not a tenant but other heirs of Chaman Lal are also co-tenants clearly shows that there are definite pleadings to the fact whether or not the other heirs of Chaman Lal have relinquished their tenancy rights on the death of Chaman Lal. Even if it is assumed that there are no pleadings for arguments sake, the parties have gone on trial with full knowledge about the plea of implied surrender and adduced evidence and as such no prejudice has been caused to anybody. Therefore, the Tribunal was absolutely legally justified in finding on such issue.
(19) Learned counsel for the appellants further contended that the appellants in S.A.O. 375/78 have never waived their independent rights of tenancy as waiver is an intentional relinquishment of a known right. There can be no waiver unless the person against whom the waiver is claimed has has full knowledge of his right and of facts enabling him to take effectual action for the enforcement of such rights. In support of this argument he has relied upon Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh. Respondents-landlords have not set up a case of waiver but have made out a case of implied surrender, as discussed above, and as such a plea of waiver is hardly of any consequence and help to the appellants.
(20) No other points have been urged by the learned counsel for the appellants.
(21) For the foregoing reasons, in my view, the impugned orders in both the appeals passed by the Rent Control Tribunal dated 23rd October, 1978 are fully justified and there is no cogent ground for interference. The appeals are, therefore, dismissed with costs.