Delhi High Court
Dayal Singh vs Shanti Swaroop on 13 February, 1979
Equivalent citations: 1979RLR197
JUDGMENT S.S. Chadha, J.
(1) This order will dispose of Cr 119/76 and Cr 69/78 arising out of 2 suits by Dr. Shanti Swaroop Saini for recovery of arrears of rent. The one suit relates to (he period 9.10.1970 to 31.8.1973 and the other suit relates to the period from 1.9.1973 to 31.31976. The judgment and decree dated: 10.1.1978 in the second suit, being subject' matter of C. R. 69 of 1978, is based entirely on the judgment and decree dated 5.11.75, being subject matter of C. R. 119 of 1976.
(2) Dr. Shanti Swaroop Saini. (plaintiff) in the first suit claimed a sum of Rs 500 as arrears of rent from 1.9.70 to 31.8.73 alleging that Shri Dayal Singh, defendant is a tenant in a shop of the premises bearing Municipal No. 796, Kamra Bangash, Darya Ganj, New Delhi on a rent of Rs. 25 per month since 1949. One of the preliminary objections in the written statement is that there is no relationship of landlord and tenant between the parties and that the tenant in the premises from 1.4.4966 is Sardar Surian Singh, son of Dayal Singh The entire evidence is comprised of Shant. Swaroop, plaintiff. Surjan Singh, son of thei Defendant, and that of Dayal Singh. The Judge, Small Causes Court in its judgment dated 5.11.75 came to the conclusion that Dayal Singh is the tenant under the plaintiff in suit premises on a monthly rent of Rs. 75 and decreed the suit as prayed.
(3) In arriving at this finding, the learned Judge expressed on three counts. It was observed firstly that the defendant has not produced any document showing that he had surrended the tenancy in favor of the plaintiff and that a fresh rent agreement had been entered into between the plaintiff and Surjan Singh, secondly, it is settled law that mere payment of rent by a person does not create relationship of landlord and tenant between them and thirdly, it is essential to prove that an agreement has been arrived at between the parties to this effect and there is no writing that the plaintiff has entered into a fresh agreement of tenancy with Surjan Singh, son of Dayal Singh.
(4) With the help of the counsel for the parties, I went through the entire record of the case including the documents placed on the record by the parties. I would not have 199 interfered on a mere re-assessment of the evidence because a different conclusion is possible. I find that the trial Court has failed to keep in view relevant law contained in Section 111(f) of the Transfer of Property Act, 1882 and has not considered the documentary evidence contained in Exs. D-1 to D-17 in arriving at a finding of fact.
(5) Implied surrender or surrender by operation of law occurs firstly by creation of new relationship or secondly by relinguishment 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 parties. The principle underlying section 111(f) of the T.P.A. is that gwhatever relationship exists between two parties in respect of particular premises and new relationshfp 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 not change of possession but the doing of an act which is inconsistent with the continuance of the lease or tenancy. This is so expressed by Deshpande, J. in Mrs. Chinnamma Baini v. Dewan Harish Chand, relied npon by the learned counsel for the plaintiff himself. |t was held :- What is a new lease would of course be a question to be decided on the circums-, tances of each case. But a convenient test is that when the terms of the existing lease are so changed that the new lease is incompatible with the existing lease, then the existing lease would be deemed to have been impliedly surrendered within the meaning of Section 111(f) of the Transfer of Property Act," In view of the expression of the correct view of law by this Court, I am not referring to the authorities relied upon by Mr. H. S. Dhir, learned counsel for the petitioner before me for the same view.
(6) The trial Court was, therefore, not conscious of the law relating to implied surrender when it observed that the defendant has not produced any document showing that he had surrendered the tenancy in favor of the plaintiff'.
(7) It is no doubt true that mere payment of rent does not create relationship of landlord and tenant between them. In Sheodhari Rai v. Suraj Prasad Singh, it was held that payment of rent does not necessarily establish relationship of landlord and tenant. Similar is the view expressad in Sm. Parbati Devi v. Kashmiri Lal, that mere fact that some rents were received, would nof create a monthly tenancy in favor of the person paying rents. In the case before me, the defendant had produced the documentary evidence contained in the receipts, Exs. D-1 to D-17 showing that from 1.4.1S66 till for the period ending 31.5.1970, all the 17 receipts are in the name of Surjan Singh. The evidenciary value of these rent receipts has not been' taken note of by the trial Court which has resulted into miscarriage of justice. I am not expressing my opinion on the merits of the controversy as I am inciined to set aside the judgment and decree of the Courts below and remand the case back to the Judge, Small Causes Court for decision of the two suits in accordance with law after affording the parties an opportunity of leading additional evidence, if any. The expression of any opinion on the merits of controversy might prejudice any of the parties and therefore. I am refraining from the same.