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1. The present suit has been filed for Mandatory Injunction, Perpetual NEHA by NEHA GARG GARG 2022.01.11 16:04:14 +05'30' Injunction and mesne profits. The brief facts of the case as culled out from the plaint are that shop No. 3686, Phool Mandi, Darya Ganj, Delhi, also known as Dargah Hazrat Sayed Shah Sabari Ali Chisti, Daya Ganj, Delhi (hereinafter referred to as "suit premises") was taken on rent by Shaikh Kallan (now deceased) and the suit premises was devolved upon legal heirs of late Sh. Sheikh Kallan as joint tenancy after his death. That after the death of Sheikh Kallan, title in the undivided joint tenancy of 50% share of the suit premises devolved upon his two sons, namely, Abdul Majeed and Abdul Gaffar (now both deceased). That the present suit relates to the dispute between the legal heirs of Abdul Gaffar who died in 1949. That Abdul Gaffar had two sons, namely, Abdul Salam who died in 1988 and Haji Allahwala who died in 1995. That 50% share in the undivided joint tenancy of late Sh. Abdul Gaffar devolved upon his two sons, namely, Haji Allahwala and Abdul Salam @ 25% each. That after the death of Haji Allahwala his 25% undivided joint tenancy right devolved upon his legal heirs i.e., the present defendants while the other 25% share of undivided joint tenancy rights devolved upon the plaintiff Sh. Mohd Islam, being the son of Abdul Salam. That on 11.06.1997, the mother of the present defendants filed a suit No. 359/97 titled as 'Nafisa Begum and Mohd Quddus vs Mohd Islam' along with application u/O 39 Rule 1 & 2 r/w Section 151 CPC for interim stay and that the said suit came up for hearing before Sh. R.S. Arya, the then Additional District Judge/Vacation Judge, Delhi on 17.06.1997 and interim order was passed on the said application directing that the parties shall continue working as per terms and conditions of the partnership deed, filed by that plaintiff in that suit. That Smt. Nafisa Begum w/o late Haji Allahwala failed to get any favourable order against NEHA Digitally signed by NEHA GARG GARG Date: 2022.01.11 16:04:30 +05'30' the plaintiff in her suit and that she filed another suit on the same allegations later on and the same was listed before the Court of Ms. Kaveri Baweja, the then Ld. Civil Judge, Delhi vide Suit No. 35/1997 titled as 'Nafisa Begaum and another vs Mohd Islam'. That the said later suit was filed with motive to obtain an adverse order against the plaintiff in order to dispossess him from the suit premises but their application for interim injunction was dismissed by Shri Shahbuddin, Civil Judge, Delhi on 11.12.1997. That after failing to obtain any favourable interim order against the plaintiff (herein), Smt. Nafisa Begum filed an appeal before the Court of Ld. Senior Civil Judge, Delhi and succeeded in obtaining ex parte order from the Ld. Appellate Court on 27.08.1998 and the same was set aside vide order dated 09.02.1999. That by obtaining the said ex parte order, the plaintiff was dispossessed from the suit premises. That the plaintiff herein filed an appeal being EFA No. 2/2005 titled as 'Mohd Islam vs Nafisa Begum & Anr.' before the Hon'ble High Court of Delhi and the same was accepted vide order dated 24.08.2006 and the plaintiff was reinstated and put in possession of the suit premises with the police aid. That proceedings regarding restoration of possession of suit premises recorded by the bailiff on 29.11.2006 in pursuance of warrants of possession issued by the Court of Sh. Sunil Kumar Aggarwal, the then Ld. Additional District Judge, Delhi, in Ex. No. 1834/06. That Since Smt. Nafisa Begum, mother of the present defendants and other co legal heirs of late Haji Allahwala had disputed the title of tenancy of the plaintiff also, therefore, he filed a suit for mandatory injunction bearing No. 26/2007 before the Court of Sh. Sonu Agnihotri, the then Ld. Civil Judge, Delhi. That in that suit Shri Badar Hussain/landlord (defendant in that suit) appeared in the Court of Sh. Sonu Agnihotri, the then NEHA Digitally signed by NEHA GARG Date:

NEHA GARG Date: 2022.01.11 ISSUE NO. 4: Whether the father of the plaintiff had surrendered his tenancy rights as alleged in para No. 8 of the Preliminary objection? OPD

11. The premise of the present issue rests on establishment of the fact that the father of the plaintiff was a tenant in the suit premises. It is only when it is established conclusively that the father of the plaintiff was a tenant in the suit premises can the question of surrender of tenancy rights by the father of the plaintiff can be gone into. It is the case of the plaintiff that after the death of his ancestor Sheikh Kallan i.e., the original tenant, the tenancy with respect to the suit property devolved on his two sons Abdul Majeed and Abdul Gaffar (now both deceased). That 50% share in the undivided joint tenancy of late Sh. Abdul Gaffar devolved upon his two sons, namely, Haji Allahwala and Abdul Salam @ 25% each. That after the death of Haji Allahwala his 25% undivided joint tenancy right devolved upon his legal heirs i.e., the present defendants while the other 25% share of undivided joint tenancy rights devolved upon the plaintiff Sh. Mohd Islam, being the son of Abdul Salam. In other words, plaintiff claims to have inherited the tenancy rights from his father, which was originally granted to his great grandfather. So far as the averments of the plaintiff that Sheikh Kallan was the original tenant in respect of the suit premises goes, the same is denied by the defendants in their written statement. It is the case of the defendants the father of the defendants i.e., Haji Allahwala and Mohd Sultan were co- tenants in the suit property and have been paying rent to the landlord since 1967 without any objection being raised by the father of the plaintiff. That after the death of Haji Allahawala, rent receipts were being issued in the name of Mohd. Sultan and widow of Haji Allahawala i.e., Nafisa Begum.

GARG 2022.01.11 16:09:00 +05'30' inheriting the business and they are entitled to run and enjoy the same. We have earlier held that mere termination of the contractual tenancy does not bring about any change in the status of the tenant and the tenant by virtue of the definition of the "tenant" in the Act and the other Rent Acts continues to enjoy the same status and position, unless there be any provisions in the Rent Acts which indicate to the contrary. The mere fact that in the Act no provision has been made with regard to the heirs of tenants in respect of commercial tenancies on the death of the tenant after termination of the tenancy, as has been done in the case of heirs of the tenants of residential premises, does not indicate that the Legislature intended that the heirs of the tenants of commercial premises will cease to enjoy the protection afforded to the tenant under the Act. The Legislature could never have possibly intended that with the death of a tenant of the commercial premises, the business carried on by the tenant, however flourishing it may be and even if the same constituted the source of livelihood of the members of the family, must necessarily come to an end on the death of the tenant, only because the tenant died after the contractual tenancy had been terminated. It could never have been the intention of the Legislature that the entire family of a tenant depending upon the business carried on by the tenant will be completely stranded and the business carried on for years in the premises which had been let out to the tenant must stop functioning at the premises which the heirs of the deceased tenant must necessarily vacate, as they are afforded no protection under the Act. We are of the opinion that in case of commercial premises governed by the Delhi Act, the Legislature has not thought it fit in the light of the situation at Delhi to place any kind of restriction on the ordinary law of inheritance with regard to succession. It may also be borne in mind that in case of commercial premises the heirs of the deceased tenant not only succeed to the tenancy rights in the premises but they succeed to the business as a whole. It might have been open to the Legislature to limit or restrict the right of inheritance with regard to the tenancy as the Legislature had done in the case of the tenancies with regard to the residential houses but it would not have been open to the Legislature to NEHA Digitally signed by NEHA GARG GARG Date: 2022.01.11 16:09:11 +05'30' alter under the Rent Act, the law of succession regarding the business which is a valuable heritable right and which must necessarily devolve on all the heirs in accordance with law. The absence of any provision restricting the heritability of the tenancy in respect of the commercial premises only establishes that commercial tenancies notwithstanding the determination of the contractual tenancies will devolve on the heirs in accordance with law and the heirs who step into the position of the deceased tenant will continue to enjoy the protection afforded by the Act and they can only be evicted in accordance with the provisions of the Act.

25. In H.C. Pandey v. G.C. Paul MANU/SC/0209/1989, it has been held as follows:

"4. It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable thereof. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants...."