Delhi High Court
Sobha Singh vs Sant Dass on 16 May, 1988
Equivalent citations: 35(1988)DLT341, 1988RLR563
JUDGMENT
(1) This regular second appeal has been brought against the judgment and decree dated 22nd of November 1979 passed by Mohd. Sharnim, Additional District Judge, Delhi, by which he has dismissed the appeal filed by Shri Sobha Singh, appellant, against the judgment and decree dated 5th of March 1979 passed by Shri Satnam Singh, Sub Judge Delhi, by which he decreed the suit in favor of the plaintiff-respondent and against the defendant- appellant for recovery of possession of plot bearing No. XVI/8A/30, W.E.A., Karol Bagh, New Delhi, after removal of the super-structure. A decree for recovery of a sum of Rs. 1, 384.62 was also passed.
(2) Facts of the case are that this property vested in the custodian and that the petitioner had occupied this plot and had been granted a lease of this plot for a period of three years at the rate of Rs 37.25 per mensem as per Lease Deed a copy of which is Ex. PD. This Lease Deed is dated 23rd of January 1950. Clause 3 of the said Lease Deed reads as under : "THE lessee may use the plot for his residential or business purposes and may also construct temporary structures thereon according to the rules and directions which are or may hereafter be in force in Delhi under the Municipal Act or any by laws framed by the Improvement Trust Delhi for the said purpose, at his own cost and expenses, the lessee shall not be permitted to build any permanent structures on the said plot. All such temporary structures shall have to be removed by the lessee at the time of ejectment on account of the determination of the lessee by lapse of time or otherwise in accordance with the terms of this deed."
(3) It is admitted case of the parties that the petitioner had raised the superstructures over the said plot and continued to pay the said amount to the custodian even after the expiry of three years' period. The plot in question was sold by the Managing Officer for a consideration of Rs. 48.500.00 on 3rd of August 1959 to the respondent who was given provisional possession on 2nd of March 1962 with effect from 24th of December 1960. The respondent instituted the suit for possession of the said plot after serving a notice terminating the contractual tenancy of the appellant. It is not in dispute before me that the appellant was the tenant under the custodian and he became a tenant under the respondent and a valid legal notice terminating the contractual tenancy of the appellant stood served. The plea taken by the appellant in contesting the suit was that, in fact. premises had been let out to him and thus the civil court had no jurisdiction to try the suit and Section 50 of the Delhi Rent Control Act was applicable and that the respondent should have filed eviction proceedings against him. Plea was also taken regarding the suit being not properly valued for the purposes of valuation and jurisdiction. This appeal has been admitted only on two points which arc as under: "(1)Whether on the facts found by the courts below the proper conclusion in law ought to have been that the appellant became a tenant of the structures constructed on the land? (2) Under which provision of the Court Fees Act court fee should have been paid on the plaint ?
(4) I may mention that the lower court as well as first appellate court have given a finding that the appellant continued to be a tenant only in the plot and" bus civil court had the jurisdiction to try the suit as the property let out to the appellant is not covered by the definition of the premises given in Section 2(i) of the Delhi Rent Control Act and the suit has been properly valued on the annual rental value as the suit has been filed for possession against the tenant. So far as the question of valuation is concerned the counsel for the appellant did not in his arguments press this point and rightly so because under Section 7(xi)(cc) of the Court Fees' Act, 1870, the suit for recovery of immoveable property from a tenant, including a tenant holding over after the determination of a tenancy, has to be valued according to the amount of the rent payable for the next year before the date of presenting the plaint. So the plaintiff-respondent was right in giving the valuation at the annual rental value. In Sohan Lalv. Ramdayal and another 1979 (1) Rcr 229, it has been held that the owner is required to pay court-fees on the basis of annual rent and not on the basis of market value of suit premises and there is no distinction between tenant holding over and tenant at sufference. In 1978 Rlr 58,.Chuni Lal v. Sukh Devi etc., D.K. Kapur, J. (as his Lordship then was) held that even against the legal heirs of the deceased tenant in a suit for possession the court fees is payable on the annual rental value and not on the market value of the property. As a matter of fact, no citation is needed for interpreting the clear provisions of Section 7(xi)(cc) of the Court Fees' Act.
(5) Now the question which has been hotly contested before me by the learned counsel for the appellant is that, in fact, the appellant was the tenant in the premises and not merely in the plot; hence provisions of the Delhi Rent Control Act were applicable and civil courts had no jurisdiction to try the suit in view of Section 50 of the Delhi Rent Control Act. It is admitted fact by the appellant in his testimony that betook the vacant plot of land from the custodian and he had raised the structures with the consent of the custodian. Learned counsel for the appellant has, however, vehemently contended that as soon as the structure has been raised by the appellant on the plot with the consent of the custodian it should be inferred that now the structure has been let out to the appellant and not merely a plot as the structure and plot have become one and the same thing He has referred to the rent receipts, Ex. D-l to D-36 issued by the custodian wherein it is shown that the rent has been received from the appellant in respect of house No.XVI/8A/30,WE.A,Karol Bagh, New Delhi. But the learned counsel for the appellant forgets that on all the receipts a printed seal is fixed showing that the payment and acceptance of the amount is without prejudice and shall in no way effect the status of the contracting parties as to allotment or legal aspects. So these rent receipts issued by the custodian in routine in accepting the rent do not have the effect of changing the terms of the tenancy initially agreed upon between the custodian and the appellant. The lease deed under which the appellant got the premises in question on rent makes it clear that only a vacant plot of land has been let out to the appellant and the appellant was permitted to raise the temporary constructions on the said plot of land with the clear understanding that the appellant shall have to remove those structures on being ejected after termination of the tenancy. So at no point of time it is shown that the custodian had agreed to treat the appellant as tenant in any premises.
(6) Learned counsel for the appellant has cited 1964 (1) Mlj 110, Palaniappa Chettiar v .Babu Sahib alias Sheik Mytheen Sahib and others. It is true that this judgment supports the case of the appellant as it was held in the judgment that as soon as a particular vacant site is let out and the lessee is permitted to put up a building on the vacant site by the Lesser the plot and the building become an integral part of each other and it would be deemed that the building has been let out and not only the vacant plot and the provisions of Madras Buildings (Lease and Rent Control) Act, would become applicable. This judgment is followed by another D.B. judgment of Madras High Court reported in (1963) I Mlj 130, Palaniappa Chettiar v. Vairman Chettiar. However, both these judgments have been declared to be not laying down correct proposition of law by the Supreme Court. In A.R. Salay Mohamed Salt etc. v Jaffer Mohamed Sail's Memorial Dispensary Charity and others. (1969) I Mlj 16, The Supreme Court has held that in order to determine whether a lease is of a vacant land or of a 'building' within the meaning of the Madras Buildings (Lease and Rent Control) Act, 1960, both the form and the substance of the transaction must be taken into account and by the mere fact that there were structures on the demised land at the time of the original lease or at the time of renewal of the lease, which do not belong to the Lesser, the demise of the land cannot be construed as demise of a building on the ground that the land became an integral part of the building. (Italics supplied). This judgment of the Supreme Court was followed in 1971 Rcr 333. A Rangaswamy Naidu alias A.R. Naidu v. B-V. Venkatalakshmi Ammal and another. Learned counsel for the appellant has also cited , M/s Boda Narayana Murthy and Sana v. Valluri Venkata Suguna and others. This judgment is totally on different aspects. In the said case the mortgage by deposit of title deeds pertaining to a plot was created, but at the time the title deed was deposited building on the plot stood also constructed, it was held that the mortgage has been created not merely in respect but also in respect of building. In the present case what has to be seen is as to what is the contract of tenancy between the parties. If by the contract of tenancy only a vacant plot of land has been let out with the permission to the tenant to raise the superstructures at his own costs and with a stipulation that the tenant shall remove the super structures on termination of the lease, it cannot be held at all that any tenancy has been created in respect of the superstructures. For same reasons , Govindan Roman v. Govindan Kesavan is not apposite to the facts of the present case. Counsel for the appellant has made a reference to . MohanLal v. Sameer Kunwar. In this judgment only the effect of the provisions of Sec. 116 of the Transfer of Property Act, has been considered. There is no dispute that after the expiry of the term of the tenancy mentioned in the Lease Deed, appellant's continuing to be in possession and also continuing to pay rent which was accepted by the landlord the appellant became the tenant holding over on the same terms and conditions on which the appellant was inducted as a tenant. Lastly learned counsel for the appellant has drawn my attention to , Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden and another. This judgment also only deals with the provisions of Section 116 of the Transfer of Property Act and I do not understand as to how Section 116 of the Transfer of Property Act can come to the rescue of the appellant in showing that the appellant has become a tenant of the premises and has ceased to be the tenant of vacant plot of land.
(7) Learned counsel for the respondent has cited 1972 Rcr 475, Motilal Bhatia v. Yusuf Ail and others, which clearly lays down that once lease is created in respect of open plot and mere fact that the tenant has raised a hut on the said plot and the word 'hut' also appears in the rent receipt, would not have the effect of changing the terms of the tenancy and it was clearly held that only open plot would continue to be let out to the tenant. He also cited 1979 (2) Rcr 314, Shri Chittar Mal v. Shrimati Shanti Aggarwal. In this judgment a well-known established principle of law has been reiterated that the landlord purchasing the property already occupied by the tenant becomes landlord by operation of law on same terms and conditions. So mere fact that the respondent-plaintiff has purchased the property knowing very well that there existed structure constructed by the appellant on the said plot does not mean that he had agreed to any change in terms and conditions of the tenancy. The relationship of landlord and tenant between the appellant and respondent came into existence by operation of law on the same terms and conditions on which the appellant was holding the property as a tenant under the custodian. So there is no other conclusion possible from the facts appearing in this case that the appellant always remained in tenant in the plot and did become tenant in any premises. Hence the provisions of the Delhi Rent Control Act were not applicable to the property in question.
(8) I do not find any infirmity or illegality in the impugned judgments of the lower courts, which I endorse and dismiss the appeal with costs.
(9) Counsel fee Rs. 1,000.00 .