SABYASACHI MUKHARJI - (1.) THE appellant a co-operative society (hereinafter referred to as 'the Society'), resists a suit for possession laid by the respondent, contending that the property in question is a 'building' within the meaning of the Delhi Rent Control Act, 1958 ('the Act'), the eviction of a tenant from which can be sought by the landlord only from a rent controller on grounds specified in the Act and not by a suit in a Civil Court under the Transfer of Property Act read with the Code of Civil Procedure (C.P.C.). This contention of the appellant has been rejected. concurrently, by the Assistant District Judge, the Additional District Judge and the High Court. In this appeal, counsel for the appellant seeks to persuade us that all the three Courts have decided erroneously a substantial question of law raised by it and that they ought to have dismissed the suit instead of decreeing it. To get a cogent idea of the history of the litigation concerning this property and to properly appreciate the contentions urged, it is necessary to set out the relevant facts at some length.
(2.) (a) The property in question originally belonged to one Khan Din Hussain Din but it came to be vested in the Custodian of Evacuee Property on the owner being declared an evacuee on the eve of the partition of the country. The Custodian leased it out to one Pritam Chand who occupied it in September, 1947. There is on record an undated survey report in a "proforma for residential premises" which pertains to the period when Pritam Chand was in occupation. It described the property covered by it thus : JUDGEMENT_69_2_1989Html1.htm (b) Subsequently, the allotment in favour of Pritam Chand appears to have got cancelled and the Society applied for the allotment of the property to it for starting a factory. The application was granted and the property was allotted, by way of a lease, to the Society by an order dated 28-3-1949. It is necessary to extract this order in full : ORDER Subject : Allotment of industrial premises. With reference to your application dated ....I have to inform you that Industrial Establishment known as open compound at Hamilton Road (Portion of Jai Hind Motor Works) with 25' Front and 50' Deep together with all the machinery and accessories kept therein has been allotted to you. Possession of the factory/workshop/Industrial establishment will be delivered to you immediately after your fulfilling the following conditions namely : 1: Delivering at this office a communication addressed to the Custodian undertaking to pay such deposit and rent as may be assessed and required to be paid and to execute the lease on the prescribed form. 2. Filling a duly attested affidavit as per form 'A' attached herewith. 3. Possession of stocks of consumable goods and other stores and material, if any, will be given to you for safe custody as caretaker until the disposal thereof. Assistant Custodian (Industrial) is hereby required to deliver the possession of factory/ workshop/Industrial Establishment and other moveable property kept therein (to) the above named allottee after satisfying himself that he has fulfilled conditions laid down above. If necessary, the enforcement section will help the Assistant Custodian and the allottee of the property in accordance with the procedure prescribed under law." (c) A report on the use of the allotted plot submitted on 9-1-1951 is of some relevance. It clarifies that no machinery had been allotted to the Society and that power was being fitted. It says then : "I have found nobody at the premises except a Gorkha Chowkidar. I remember it very well that in his presence, I gave the possession of the abovesaid plot to allottee who promised that they want to start a factory very soon, but it is regretted that no advantageous use of the premises is being made by the co-operative. However, I have seen new power connection being fitted on the premises, The work might have (then) set back due to non- availability of power. Any-how we must consult the file and subsequently call the allottee." (d) It appears that Pritam Chand was attempting to get the allotment to the Society cancelled on the allegation that it had unauthorisedly sublet the property. A letter was written, in this context, by the Assistant Registrar of Co-operative Societies to the Custodian on 15-5-1954. This letter, on the subject of "Allotment of Industrial Premises reads as under : "Kindly refer to your order No. DC/IV/A/ 185 dated the 28/03/1949 on the above subject under which the house No. 2939-111/ 1403-1406 on Industrial Establishment known as open compound at Hamilton Road (Portion of Jai Hind Motor Works with 25' front and 56' deep) together with all machinery and accessories kept therein, was allotted to the Prabhat Manufacturing Co-operative Industrial Society Ltd. Before allotment one Shri Pritain Chand was occupying the whole premises. He is now again trying to take the premises allotted to the Society. He therefore filed an application to the Asistant Custodian against the Society alleging that the premises had been sublet to Shri Ajit Singh Duni Chand and Banwari Lal. The Assistant Custodian served the Society with a notice for cancellation of allotment of the said premise. The fact is that Shri Ajit Singh is the Secretary of the Society and Shri Duni Chand and Banwari Lal were its members. The question of subletting does not arise. A Government loan of Rs. 4,000.00 was also advanced to the Society under the Rehabilitation Scheme. Under the above circumstances I would request you to allow the Society to function in the allotted premises, so that it may be able to repay the Government loan advanced to it." (e) The Society made an attempt to have the assessment of rent reduced. The order of the Deputy Custodian dated 31-5-1955, under which this relief was granted reads thus : "This is revision petition by M/s. Prabhat Mfg. Co-operative Socio- Industrial Society Ltd.. against the assessment of rent. The petitioner has got a plot. There is a small shed on this plot also. The petitioner was assessed on the rental of Rs. 50.00 on the basis of the M.A.R. It is contended before me that there is no M.A.R. for property No. 2939 but there is joint M.A.R. for house No. 1403-6. From the copy of the assessment sheet. (it) appears that 1403-6 is equivalent to 2939-40. It is not clear therefore whether new number has got an assessment of Rs. 50.00 or there are several numbers included in this assessment. I find that I inspected this house on 20/03/1953 and asked the S.D.0, to let me know the value of the plot and probable rent. At that time he had assessed the value of the plot at Rs. 10,970.00. The present value of course will be more than that. However, on the basis of this valuation, the rent of the petitioner's plot if it were a vacant plot would work out to Rs. 327.00 per month exclusive of house tax. There is a small shed also which is alleged to be self-constructed. Considering therefore all the circumstances I fix the rent of the petitioner's plot at Rs. 35.00per month. As the petitioner is a co-operative society, I direct that rate should have retrospective effect. The petitioner is, however, directed to clear the arrears within fortnight." (f) After this order was passed, a survey report was made on 15-7-1955 which describes the property in the occupation of the Society thus : JUDGEMENT_69_2_1989Html2.htm 3. (a) Having thus got the plot on lease, the Society tried to acquire the property for itself. There is on record a letter of the Society dated 21-1-1957 requesting that the "industrial plot" may be permanently allotted to it. However, the Custodian chose to sell the property by auction on 15-7-60 in favour of one Dina Nath (the predecessor-in-interest of the present respondent Banwari Lal). The upset price was Rs. 21,000.00 and the sale was for Rs. 23,000.00. Unfortunately, however, except the information that sale deed in favour of Dina Nath was executed on 13-7-61, there is no document on record about the exact nature and condition of the property thus sold. (b) The Society moved to have the sale set aside on the ground that, as the value of the property was less than Rs. 10,000.00, it should have been sold to the Society itself as the allottee and not to an outsider. In the course of these proceedings, it made an application on 15-10-60 to the concerned authority for a copy of the order declaring the property to be saleable, the first paragraph of which reads thus : "The abovementioned property an Industrial Plot on Hamilton Road No. 2939 (old No. 1403-1406) was sold by auction on 15-7-60." (c) The application of the Society was, eventually, rejected by the Chief Settlement Commissioner on-25-8-61 and so the appellant filed a revision petition before the Government of India. In this petition, it is seen, the Society tried to take advantage of a Press Note of the Government which enabled an allottee who had invested more than Rs. 30,000.00 in a property to get a priority when the property came to be allotted but this attempt was also unsuccessful. Certain reports submitted by the concerned authorities in the context of the Society's application have been placed on record. On 21-3-1962, the Executive Engineer reported : "The land under property in question has been assessed at Rs. 17,500.00 while the structure value of it has been assessed at Rs. 3,883/- giving a total value of Rs. 21,383.00. The reserve price of this property has been fixed at Rs. 21,000.00." Reports submitted by one T. C. Dewan contain the following observations : "I have been to the premises and obtained a list of machinery now installed in the premises. The copy of the letter dated 21-3-56 addressed to the C.S.C. is also attached. M/s. Prabhat Mfg. Co-op. Industrial Society want to have the premises transferred to them as Industrial concern. The property has already been auctioned on 15-7-60. The sale certificate has been issued in favour of Dina Nath s/o Charan Das on 13-6-61". "I have to submit further that a part of the superstructure was evacuee. and was valued with the plot. Some portion has been made as a temporary shed etc. The position can be made clear by consulting the valuation schedule of the property. The portion which was included in the valuation at that time means at the time of auction as noted, it was definitely an evacuee structure. The rest is non-evacuee raised by the occupant." It also appears that, in the course of these proceedings, Ajit Singh, on behalf of the Society made a statement to the following effect in May, 1962 : "The above Society is in occupation of the premises since the year 1949. There was only a shed built on the premises but the other portion was open plot when it was allotted to us. The entire machinery has been installed by the Co-op. Society. I can supply inventory of the machinery which has been installed by the Society would be produced on 8-5-62." (d) The Society's revision petition was rejected on 6-8-62. The order of the Joint Secretary to the Government of India starts with a recital that the Custodian had allotted "an open plot of land" to the society, for industrial purposes, and that the Society had erected "a temporary structure on this plot and also installed some machinery." In Para 3, the contention of the Society is stated to be "that the plot was allotted to the Society for industrial purposes and they erected a building and installed machinery worth about Rs. 30,000.00 in it." The order proceeds : "... ....the valuation officer was asked to assess the value of the land, building and machinery. After a spot inspection he reported that the value of land and building was about Rs. 21,000.00, whereas the value of the machinery installed in March, 1956, according to the vouchers produced before him by the Society came to only Rs. 6,585.00. Hence, the value of the machinery did not exceed that of the land and building. Further, the Press Note of the 22/03/1956 required such allottees to submit applications to the Regional Settlement Commissioner concerned with a certificate from the Director of Industries of the State that they had established factories under the Commissioner, New Delhi. It is, therefore, clear that this case is not covered by the Press Note of 22/03/1956. The property in their occupation was rightly auctioned." 4. Now we come to the third chapter of the story. Dina Nath, the purchaser, of the property filed suit No. 1551/62, in the Court of Rent Controller, Delhi seeking eviction of the appellant society from the property in question on the ground of subletting, misuser, default in payment of rent and requirement of the premises for the bona fide use of the owner. The Rent Controller dismissed the petition. It is seen from the order of the Rent Controller that the owner had alleged that a portion of the demised premises had been sublet, assigned or otherwise parted with to M/s. Malviya Industries after 9-6-1952 without obtaining the written consent of the landlord. The respondent had shown that Malviya Industries was a proprietary concern of Ajit Singh, who was in possession of the whole premises as a Secretary of the appellant society and that, apart from the fact that the goods manufactured by the society were sold through Malviya Industries, there was nothing to show that any particular portion of the property in question was exclusively used by Malviya Industries. It also appears that the owner alleged that he required the premises in question for purposes of rebuilding it, The Controller held that as the property had been given to the tenant for residential purposes and the proposed reconstruction would change the character of the premises, this was not permissible under the Act, and therefore, the landlord could not be said to require the premises bona fide for rebuilding. On behalf of the appellant it is urged that the fact that the landlord filed a rent control eviction petition as well as a finding in the order of the Rent Controller dated 16-1-1967 clearly show that the property in question was a 'building' falling within the scope of the Delhi Rent Control Act. It is also pointed out, from a copy of the application for eviction placed on record, that in Para 5 of the application it was stated that a workshop was situated on the piece of land and about 20 people (approx.) were working therein and the details of the accommodation were shown as comprising of one tin shed as shown in the attached plan. (b) In 1964 the society filed suit No. 294 of 1964 against Dina Nath and others. In this suit it prayed for an injunction restraining the defendants from interfering with its possession and lawful enjoyment of the property, inter alia, by preventing the plaintiff from carrying out the necessary repairs to the premises in question. This suit was filed during the pendency of the earlier suit filed in the Rent Controller's Court. It was alleged that the portion of the roof had started leaking and that, when the plaintiff began to make the necessary repairs to the premises, the defendants began to interfere illegally with its possession with the ulterior motive of securing the possession of the premises otherwise than in due course of law. The defendants resisted this suit. It appears that this suit was eventually dismissed but further details are not available. (c) It also appears that Banwari Lal had filed a suit for permanent injunction against the Society restraining it from erecting any new structure on, or making any additions or alterations to the property in question. It is said that in one of the affidavits filed in the course of these proceedings Banwari Lal stated as follows : "3. That the defendant is tenant of ground floor consisting of a tinshed in house No. 2939 Hamilton Road, Delhi at a monthly rent of Rs. 35.00 which is a single storeyed property. 4. That the defendant has got no right, title and interest to erect any new structure on the first floor or to make any additions and alterations in the aforesaid property without the consent of the plaintiff." There is no further information available regarding this suit. (d) One more proceeding instituted by the appellant society has also to be referred to : On 15-2-1968, the appellant filed an application under S. 44 of the Delhi Rent Control Act, 1958 (Suit No. 169-M of 1968-69), seeking permission to make repairs to the premises in question. This application was resisted by the owners on a preliminary objection that the petitioners were not tenants of any premises within the meaning of Delhi Rent Control Act. This application was dismissed on 9-3-1972. It is necessary to extract Para 5 of this order since it is relevant to the controversy presently in question : "5. I also find it established on record that the petitioner society is a tenant only with respect to an open site and the structure thereon namely, the shed itself constructed by the tenant. It is admitted (that) by Ajit Singh, who states himself to be the Secretary of the Society by the custodian, as it was an evacuee property. A reference to the allotment order Ex. RW 1/1 which was produced by the clerk of the office concerned, examined as R.W. 1 shows that the subject-matter of the allotment of the petitioner society was an Open Compound'. It is further clear from the copy of an order Ex. R.W. 11 that it was stated by the tenant, namely the petitioner society before the custodian that the shed was self constructed and the rent was got reduced from Rs. 50.00 per month to Rs. 35.00 per month. This continues to be the rent up to date, according to that the petitioner society continues to be in occupation of the same property, as it was, when it was allotted to them by the Custodian, and it is established from the evidence of the clerk of the office of the Custodian. R.W. 1 and the orders produced by him, namely R.W. 1/1 and R.W. 2/2, as well as the survey report Ex. R.W. 1/3 that what was allotted to the petitioner society was only a plot and that the shed was self-constructed. The petitioner has failed to substantiate, the contention that the respondent himself has treated him as a tenant because no certified copy of the previous pleadings has been placed on the file. The petitioner, therefore, being a tenant only with respect to open site, which does not come within the definition of a 'premises', as contemplated by the Delhi Rent Control Act the petition under S. 44 of the Act is not entertainable."
(3.) THE suit out of which the present appeal arises has to be understood in the context of the above previous history. In 1977 Banwari Lal instituted suit No. 318/77 against the Society seeking eviction of the Society from "the plot of land in question." It was alleged that the plaintiff was the owner of the abovesaid plot and that the defendant had put up a shed thereon. It was alleged that the Society had been occupying the property much earlier and that the plaintiff who came to the scene much later had mistakenly thought that the defendant was the tenant of both the land and the shed put up thereon and accordingly filed the petition under the Rent Control Act for evicting the Society. Subsequently it was said, after examining the records of the Custodian and allotment letter in favour of the defendant he had come to know that the shed had been constructed by the defendant and that, as such, the property from which the eviction was to be sought was only a plot of land and not 'premises' within the meaning of the Delhi Rent Control Act. In these circumstances, it was claimed that the plaintiff had terminated the tenancy of the defendants and that the suit was being filed to recover possession of the property from the tenants. As mentioned earlier, the plaintiff has succeeded in all the three Courts and hence the present appeal. Shri S. K. Mehta, learned counsel for the Society, contends that in this case both the parties had taken up inconsistent stands at different stages of the litigation and that, in that state of affairs, the Courts below should have ignored the past conduct of both the parties and gone by the contents of the documents of title in order to decide the matter. Instead, he complains, the Courts have held the conduct of the Society in some of the prior litigation as negativing its claim but, when it came to a consideration of the like conduct on the part of the plaintiff, they have chosen to make light of it, accepting the lame excuses put forward on his behalf. We shall, therefore, consider, at the outset, the impact, if any, of the earlier proceedings in this case on the question at issue.;