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(1) This is plaintiff's appeal. His suit for possession of shop premises bearing No. 534, Katra Ishwar Bhawan, Khan Baoli, Delhi, and also foramens profits was dismissed by the judgment and decree dated 30/01/1980of the Additional District Judge, Delhi. The suit was filed on 23/08/1993against defendant Bhagwat Pershad. Later his brother Rishikesh was also imp leaded as second defendant. Both the defendants are real brothers of KishanGopal who was tenant of the shop premises as alleged by the plaintiff and was having business there in the name of M/s. Ganpat Rai Kishan Gopal ('the firm' forshort) as its sole proprietor. Kishan Gopal died some time in August 1968. the plaintiff, who is the owner and landlord of the shop, contended that defendant Bhagwat Pershad occupied the shop after the death of Kishan Gopal without any authority and his possession was, thus, unlawful and unathorised. The plaintiff also claimed mesne profits, but for determining the mesne profits he prayed for appointment of Local Commissioner. The defendants contested the suit. There are various pleas in the alternative. They said the firm was a Joint Hindu Family firm,and for this firm the premises were taken on rent in the year 1946 by Kishan Gopal and his brother Rishikesh. They also said that proceedings were filed earlier by the plaintiff under the provisions of the Delhi Rent Control Act against the firm but these were compromised and Kishan Gopal and Rishikesh were accepted as tenants of the shop. An objection was raised that Rishikesh was a necessary party.As noted above, Rishikesh was ordered to be imp leaded as a defendant as a subsequent stage. Defendants said that another petition for eviction filed under Section 14(l)(b) of the Delhi Rent Control Act by the plaintiff was also dismissed and that the firm had been sued through its partners Rishikesh and Kishan Gopal.Then the defendants said that defendant Bhagwat Pershad was the younger brother of Kishan Gopal and Rishikesh and he had been sitting in the shop and conducting the business on behalf of his brothers for the last many years. It was stated that the rent of the shop was being deposited by Bhagwat Pershad on behalf of his brothers and that the compromise in eviction proceedings was also signed by Bhagwat Pershad on behalf of his brothers. It was, therefore, contended that the plaintiff could not call Bhagwat Pershad as unauthorised occupant. Then it was stated, though in the alternative, that tenancy of Kishan Gopal had not been terminated during his life time and these tenancy rights after the death of KishanGopal devolved upon his legal heirs and those legal heirs, it was contended, were necessary parties in the proceedings. An objection was, thus, raised that the suit was not maintainable in law for want of non-joinder of necessary parties.

(2) The fact that Kishan Gopal had legal heirs had not been disputed by the plaintiff. These included his mother, his wife and children. It was the case of the plaintiff that since the tenancy of Kishan Gopal had been terminated during his lifetime, the tenancy rights did not devolve upon his heirs or anybody else, and further that heirs of Kishan gopal were not in possession of the shop, and they were,therefore, neither necessary nor proper parties. On the pleadings of the parties, the following issues were framed:- PRELIMINARYIssue:1. Whether the suit is barred under Section 50 of the Delhi Rent ControlAct, 1958?Issues:2. Whether the plaintiff is the owner of the shop in dispute ? 3. Whether the tenancy of M/s. Ganpat Rai Kishan Gopal has been duly terminated ?4. Whether the defendants are tenants in the suit property as alleged ?5. To what amount on account of mesne profits, if any, is the plaintiff entitled ?

(4) That is all the evidence of the plaintiff.The defendants in their evidence examined only the defendant Bhagwat Prashad; brought on record certain documents and closed their evidence. Bhagwat Prashad said Kishan Gopal died on Janmashtami day in August 1968 and was survived by his mother, wife and children. He admitted that it was he who was sitting in the sho (5) The learned Additional District Judge by the impugned judgment held issues 2and 4in favor of the plaintiff and against the defendants.lssue No. 3 was held in favor of the defendants holding that tenancy of the firm had not been dulyterminated. Issues 1 and 5 were discussed together and these were decided in favor of the defendants. Consequently, the suit was dismissed. It is issue No. 1which is the subject-matter of serious contest between the parties. The learned Trial Court after holding issue No. 3 in favor of the defendants held that since the tenancy of Kishan Gopal had not been terminated in his life time and the contractual tenancy devolved upon his heirs and the contractual tenancy being heritable,the plaintiff was not entitled to bring the suit for possession or mesne profits, and that the suit was, therefore, barred under Section 50(1) of the Delhi Rent ControlAct. Section 50(1) of this Act bars the jurisdiction of the civil Court and is asunder:- "JURISDICTION of civil Courts barred in respect of certain matters:-50(1) Save as otherwise expressly provided in this Act, no Civil Court shall entertain any suit or proceeding in so far as it relates to the fixation of standard rent in relation to any premises to which this Act applies or to eviction of any tenant there from or to any other matter which the Controller is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any Civil Court or other authority."

The Trial Court held that since the question of mesne profits was necessarily interlinked with the question of unlawful possession, the plaintiff was not entitled to mesne profits from the defendants.

(6) The plaintiff has challenged the impugned judgment. He said the Trial Court erred in holding that earlier notice dated 3/04/1961 (Ext. PW4/3)terminating the tenancy of Kishan Gopal stood waived by a subsequent notice dated 28/08/1971 (Ext. D-l). Plaintiff says in his grounds of challenge that the Trial Court made out a new case for the defendants not pleaded by them and that the case set up by the defendants was not taken into account. He says that the defendants had pleaded that Kishan Gopal and Rishikesh were the joint tenants and on the death of Kishan Gopal the tenancy rights had devolved on Rishikesh and in-any case on the legal heirs of Kishan Gopal, and again the defense was that it was Bhagwat Sarup who was sitting on the shop in question on behalf of his brothers Kishan Gopal and Rishikesh and on the death of Kishan Gopal he was sitting on the shop now on behalf of Rishikesh and the legal heirs of Kishan Gopal. Plaintiff says that the, Trial Court also failed to take into consideration the case of Bhagwat Sarup that he was only in occupation of the shop as a licensee on behalf of his two brothers and he never claimed to be the tenant of the shop. That being so, plaintiff says the suit for possession should have been decreed against both the defendants, i.e.,Bhagwat Sarup and Rishikesh. The principal attack in the grounds by the plaintiff is on the notice Ext. D-l which, he says, could not be relied upon by the Trial Court.He says when notice Ext. D-l was sent to the firm it was only by way of abundantcaution. When on the date when the notice was issued Kishan Gopal had already died and as such this notice could not have waived the earlier notice (Ext. PW4/3)which had validly terminated the tenancy of Kishan Gopal, and that Kishan Gopal was a statutory tenant at the time of his death. It was, therefore, pleaded that once the contractual tenancy has been terminated during the life time of Kishan Copal,notice Ext. D-l was of no effect. It was submitted that notice Ext. D-l was never pleaded by the defendants in their written statement and .was merely put to a witness during cross-examination, and that it did not come from the lawful custody and the plaintiff was not asked any question relating to this notice and even thedefendant Bhagwat Sarup in his statement did not referred to this notice at all. We think this argument by the plaintiff on the admissibility of Ext. D-l is an act of desperation on his part. It cannot be disputed that notice Ext. D-l is a relevant piece of evidence and supported the case of the defendants even on the first issue.