D.P. Wadhwa, J.
(1) The appellants, who are two in number, and claim to be the owners of property bearing No. IX/619, Moballa Churiwalan, Delhi, filed a suit for possession and damages and mesne profits in respect of a portion of first floor of the property against respondents Nos. I to 6. The suit of the appellants-plaintiffs was decreed by the trial court by judgment and decree dated 14.10.70. Respondents Nos. I to 6 appealed and by the impugned judgment and decree dated 20.3.1973 their appeal was accepted and they were held to be the tenants of the property in question. The learned Addl. District Judge, who heard the appeal, however, upheld the decree for recovery of Rs. 360.00 but only on account of arrears of rent. The trial court had granted this amount towards damages. Now, the plaintiffs have come in second appeal.
(2) The appellants-plaintiffs claim through their father Nathu Ram who was the owner of the property in question. Respondents Nos. 7 to 10 are other heirs of Nathu Ram. Right of the appellants to the property is stated to be on the basis of a will left by Nathu Ram. Respondent Nos. 7 to 10 do not dispute the claim of the appellants. Reference in this judgment to the respondents would, thereforee, mean respondents Nos. I to 6 only. As a matter of fact, respondents Nos. I to 6 claim through Mazru-ul-din, who was earlier the tenant of the suit premises. Respondents No. I is his widow and respondents Nos. 2 to 6 his children.
(3) . The property in question was purchased by Nathu Ram in public auction, it being an acquired evacuee property forming part of the compensation pool under the Displaced Persons (Compensation and Rehabilitation) Act 1954 (for short 'the Act) The auction was held on 1.7.1959 and provisional possession of the property was given to Nathu Ram with effect from 23.10.1959 from which date he was held entitled to realise rents from the tenants who were attorney to him (Ex. Public Witness 6/2). Tenants of this property including Mazru-ul-din were informed by the managing officer by a letter sent in 1960 (Ex. Public Witness 6/3) to attorn to Nathu Ram. Tenants were informed by this letter that provisional possession of the property was given to Nathu Ram and the tenants were directed to pay rents to Nathu Ram and deal otherwise with him direct with effect from 23.10.1959. They were also advised to pay arrears of the previous period in the office of the Regional Settlement Commissioner to avail protection from ejectment in terms of the provisions of S. 29 of the Act read with relevant Notification. Sale certificate of the property was issued to Nathu Ram on 3.6.1961 (Ex. Public Witness 6/1). Nathu Ram died on 2.6.1963. Mazru-ul-din had earlier died on 5.11.1961. The appellants treated the respondents as unauthorised occupants of the suit premises and filed the suit for possession and recovery of damages at the rate of Rs. 30.00 per month. The respondents contested the suit and stated that Mazru-ul-din was tenant of the suit premises, firstly, of the Muslim owners, and thereafter of the Custodian under the Administration of Evacuee Property Act 1950, (for short 'the Evacuee Act') and that the rent of the premises was Rs. 10.00 per month. Appellants filed their replication. On the pleas of the parties, the following issues were framed :
1. Whether defendants No. I to 6 are tenants under the plaintiffs? 2. Whether defendants are unauthorised occupants of the suit property as alleged in paras No. 7 to 9 of the plaint 3. Whether this suit is property valued for purposes of court fee and jurisdiction 4. To what amount of damages, if any, are the plaintiffs entitled 5. Whether the plaintiffs are the owners of the property in suit 6. Relief.
For dealing with the present appeal, the issues which survive for consideration are issues Nos. I and 2 only. These two issues were held in favor of the appellants by the trial court and in first appeal, the finding of the trial court was reversed and these issues were he'd in favor of the respondents. With these two issues is linked the question as to whether Rs 10.00 per month would be rent or damages for use and occupation of the suit premises.
(4) Before filing the suit the appellants served a notice on the respondents (Ex. Public Witness 7/2). It was stated that Mazru-ul-din was an allottee of the Custodian of Evacuee Property and was consequently a licensee and on the transfer of the property in question the license of Mazru-ul-din stood revoked by operation of law as well as on account of his death in 1961. The respondents were thus described as unauthorised occupants. The respondents denied the allegations of the appellants in their reply (Ex. D-25). They stated that Mazru-ul-din was a lawful tenant of the suit premises prior to its having been declared as an evacuee property and that Mazru-ul-din continued to be a tenant under the Custodian of Evacuee Property. In the plaint, it was contended that Custodian of Evacuee Properly allotted on rental basis the suit premises to Mazru-ul-din and that Mazru-ul-din 'was the allottee of the property rented out to him at a rental of Rs. 10.00 per mender excluding water charges and house tax'. It was also contended that Mazru-ul-din continued to be an allottee till his death in the year 1961 and that by operation of law he became a licensee of Nathu Ram. It was further averred that the license was personal to Mazru-ul-din and it died with his death. It was also pleaded in the alternative that if it was held that Mazru-ul-din was a tenant then his tenancy being statutory tenancy, it came to an end on his death. The respondents asserted what they had said in reply to the notice of the appellants. They said that Mazru-ul-din took the premises in question on rent from previous Muslim owner, mother of Anis-ul-Rehman, in the beginning of 1947 at a monthly rent of Rs. 10.00 inclusive of house-tax but exclusive of water charges. The property having been declared as evacuee property on 28.5.1949 and Gazettee notification having been issued on 17.6.1950 to that effect, Mazru-ul-din became tenant under the Custodian of Evacuee Property and had been paying rent at the rate of Rs. 10.00 per month. It was submitted that after the purchase of the property by Nathu Ram. Mazru-ul-din became his tenant. The respondents denied that Mazru-ul-din was a statutory tenant. They said that after the death of Mazru-ul-din the respondents became lawful contractual tenants in respect of the suit premises and were occupying the same in that capacity.
(5) Mr. Makhija, learned counsel for the appellants, has. raised two agreements before me in this appeal which, he says. require determination : (1) whether the evacuee owner of the property let out the suit premises to Mazru-ul-din at any time before the property was declared as evacuee property; and (2) since the property formed part of the compensation pool and on its purchase by Nathu Ram, Mazru-ul-din assuming himself to be a tenant, had to pay the arrears of rent within 60 days of the date of transfer of the property to Natbu Ram as required under Notification No. S.R.0.- 2219 issued under sub-s. (2) of S. 29 of the Act. This argument is based on Ex. Public Witness 6/13, being a letter dated 24.4.1962 written by the Assistant Accounts Officer to Natbu Ram wherein it was shown that Mazru-ul-din come to occupy the suit premises in October 1947 at a monthly rate of Rs- 10.00 as rent and that rent due up to 22.10.1959 when provisional possession of the property was handed over to Nathu Ram. was Rs. 1447. 10 and Mazru-ul-din had paid Rs 1110.00 leaving a balance of Rs. 337.10. It was contended that since there was no evidence if Mazru-ul-din had paid the arrears shown against him within 60 days of the date of the transfer of the property, he could not claim to be the tenant of the suit premises.
(6) Evidence both oral and documentary shows that Mazru-ul-din was the tenant of the suit premises under the Muslim owners and before the property was declared as evacuee property. Thereafter, Mazru-ul-din became tenant of the Custodian under the Evacuee Act and when property formed part of the compensation pool under the Act, of the managing officer. It is not necessary even to refer to whole of the documentary evidence on this aspect which consist of receipts of rent issued by the Muslim owner, house-tax record of the erstwhile Delhi Municipal Committee, survey reports of the Custodian and receipts issued by the Custodian and the managing officer for having received rent at the rate of Rs 10.00 per month from Mazru-ul-din. It will suffice to refer to the statement of Mudan Gopal(DW 1) Clerk from the office of the Regional Settlement Commissioner, New Delhi. He had brought the record and on that basis stated as to when the property was declared as an evacuee property and when the gazette notification was issued. He also referred to the survey reports in respect of the property and the order assessing the rent of the suit premises. He said that Mizru uldin was a tenant prior to the property being declared as an evacuee property. He said since Mazru-ul-din was an old tenant, no allotment letter was issued to him. He also said that rent of the suit premises from August 1949 to 22.10.1959 at the rate of Rs. 10.00 per month had since been received by the department. This witness also stated that no rent note was got executed from Mazru-ul-din by the Custodian as Mazru-ul-din was an old tenant. Receipt Ex. D-9 was the first receipt issued by the Custodian in respect of the suit premises evidencing receipt of rent for the months of August and September 1949 by the Custodian from Mazru-ul-din at the rate of Rs. 10.00 per month At this stage, reference may also be made to another witness Sharan Bibari Lal (Public Witness 6), also a Clerk from the office of the Regional Settlement Commissioner, New Delhi. He also stated that as per statement of account on record in the file summoned through him, rent at the rate of Rs. 10.00 per month from August 1949 to 22.10.1959 totalling Rs. 1227.34 had been received from Mazru-ul-din and that on 22.10.1959 no rent was due from Mazru-ul-din.
(7) In spite of all this evidence, Mr. Makhija yet contended that there was no evidence that arrears of rent had been paid by Mazru uldin within 60 days of the date of transfer of the property to Nathu Ram for Mazru-ul-din to claim protection under S. 29 of the Act. This is for the first time that such an argument has been raised. There is no such plea in the plaint. The case of the appellants bad all through been that Mazru-ul-din was an allottee of the Custodian under the Evacuee Act and that he was a mere licensee and that the license was personal to Mazru-ul-din and could not be inherited or transferred. This plea itself runs counter to the provisions of S. 29 of the Act on which Mr. Makhija relies. S. 29 of the Act gives protection to a person who is in lawful possession of the property as mentioned in that section. It cannot be said that a licensee or an allottee is not in lawful possession of the property. The alternative plea in the plaint was that if Mazru-ul-din was held to be a tenant he was merely a statutory tenant and that this tenancy came to an end on his death. No plea that provisions of S. 29 of the Act were inapplicable in the present case was ever raised. Still, as arguments were addressed in considerable detail on this aspect, I may as well refer to the provisions of S. 29 of the Act. The person to whom the provisions of this section apply is protected on the transfer of the property from the compensation pool if at the time of transfer that person was in lawful possession of the property. That person becomes tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held the property immediately before the transfer. Under sub-s. (2) of this section, the Central Government issued a notification specifying the persons to whom the provisions ofS. 29 would apply. It is not disputed that the property is covered under S. 29 of the Act. Two categories of persons, who are relevant to this case, are : (1) Every person against whom no arrears of rent in respect of the property in his lawful possession are outstanding at the date of transfer or property; and (2) Every person, against whom any arrears of rent in respect of the property in his lawful possession are outstanding at the date of the transfer of the property, but who has paid off such arrears within 60 days of such date. It is on this second category of persons that the argument of Mr. Makhija has been built. It is true that it will be for the tenant to show that rent had been paid and that too within a period as required, but he can do so only when a plea to that effect is raised by the plaintiff-landlord. As noted above, no such plea was ever raised by the appellants that there were any arrears of rent or that these were not paid within 60 days of the transfer of property to Nathu Ram. The appellants, thereforee cannot be permitted to raise this plea at this stage to the prejudice of the respondents. Even otherwise, I do not find that there is any legal evidence on record to show that Mazru-ul-din was in arrears of rent on the date of the transfer of the property in question to Nathu Ram. Both the witnesses from the department have stated that there were no such arrears on 22.10.1959 when provisional possession of the property was given to Nathu Ram. Letter Ex. Public Witness 6/13, which has been referred to above and on which strong reliance has been placed by Mr. Makhija to contend that Mazru-ul-din was in arrears of rent on 22.10.1959, to my mind, is of no consequence. Statement of Sharan Bihari Lal (Public Witness 6) of the office of the Regional Settlement Commissioner merely shows that this letter was issued from his office. No record was shown as to on what basis the calculations in letter Ex Public Witness 6/13 were made. Mere proof of signatures on a document of a person cannot amount to proof of contents of the document as to its correctness. This, thereforee, could only be hearsay evidence and I will not place any reliance on the same particularly when the two witnesses from the department were categorical that no arrears of rent were due from Mazru-ul-din on 22.10 1959 and they were making statements on the basis of the record brought by them in court.
(8) Mr. Mohd. Ahmed, learned counsel for the respondents, submitted that S. 29 of the Act protected only the licensees and allottees and did not apply to the tenants who would become tenants of the purchaser automatically after sale of the property in the compensation pool. This contention, however, does not appear to be correct. Mr. Ahmed said that be was supported by a few decisions of various High Courts, and in that connection he referred to a Bench decision of the Punjab & Haryana High Court in Bhagwan Singh v. Bachhitter Singh AIR 1981 R.C.R. 299 which was followed in BalrajKrishan v. Hari Singh (1986(2) All IR 506 by a single Judge of that very High Court, and then to a decision of this court in Indra Sharma v. Gopal Dass 1984 (2) R C R. 443. In Bhagwan Singh's case, the court recorded the concession of the counsel that S. 29 of the Act was not applicable in that case and the court thereforee, did not deal with the question as posed by Mr. Ahemd in the present case. The court in that case did record that there was conflict of decisions S. 29 of the Act but as to what was the conflict was not set out and the court also did not examine the conflicting decisions in view of the fact that S. 29 of the Act was not found applicable to the case before the court. I need not refer to the decision in Balraj Krishan's case as that merely followed the earlier Bench decision. The principal dispute in the case of indra Sharma was if ownership rights could be 'conferred from a back date in view of the various provisions of the Act and the Rules made there under. In fact, this decision does not support contention raised by Mr. Ahmed. The court in this case held that when the title of the property conveyed under the Act passed to the transferee the tenant Shoan Lal was in occupation of the property and, thereforee 'immediately on transfer, by virtue of section 29 of the D.P. Act, he became the tenant of Gopal Dass (the (transferee and the relationship of landlord and tenant came into existence.' The court also held that Shoan Lal was not a statutory tenant under S. 29. of Act but a tenant by operation of law and when he died his heirs became tenants of the transferee- This judgment, thereforee, rather supports the view which I have taken. I may also note that since the transfer of ownership rights in the property in the compensation pool under the Act and the Rules could be retrospective, the payment of arrears of rent under the second category mentioned earlier could well be within 60 days room notice of the date of transfer of the property, but then that is not a question which I have to consider in the present case. A tenant thus, in view of Notification No. S.R.O. 2219 issued under sub-s. (2) of S. 29 of the Act, would be covered by sub-s. (1) of S. 29 of the Act. The section uses the expression lawful possession' of a person and that would include in its ambit licensees, allottees, tenants and the like. I will also note that rule 14 of the Administration of Evacuee Property (Central) Rules 1950 provides for cancellation or variation of leases and allotments and the custodian is not ordinarily to vary the terms of a lease subsisting at the time he takes possession of the immovable property or cancel any such lease or evict a person who is lawfully in possession of such property under a lease granted by the Lesser before he became an evacuee. Then under rule 102 of the Displaced Persons (Compensation and Rehabilitation) Rules 1955, a managing officer may in respect of the property in the compensation pool cancel an allotment or terminate a lease or vary the terms of any such lease or allotment if the case fell under any of the clauses (a), (b), (e) and (d) thereof. thereforee, also, by virtue of all these rules Mazru-ul-din would be tenant in the suit premises before the transfer of the property to Nathu Ram and would be protected under the provisions S. 29 of the Act. I may also refer to a decision of this court in Baldev Raj Batra & am v. Krishan Lal & Ors. : 29(1986)DLT449 which was referred to by Mr. Makhija, but to me it appears it rather supports the case of the respondents. In this case, the trial court had found as a fact that the appellants before the. High Court were not lawful occupants. They were not lawful occupants, not because they were not there but because there was no arrangement showing how much rent they were to pay and what was the order allotting the property to them and what was the arrangement between them and the Custodian. In support of their contention, the appellants therein had produced one receipt for having made certain payments to the Custodian but it was held of little evidentiary value to establish the existence of allotment. It was held that document by itself did not show that the appellant was recognised as an allottee or that he became a lawful occupant as opposed to a mere occupant. The court observed that it was very important to notice the difference between occupants and lawful occupants who become tenants. In the present case before me I have held that Mazru-ul-din was a tenant and was thus a lawful occupant within the meaning of S, 29 of the Act.
(9) Accordingly, finding of the lower appellate court on issues Nos. 1 and 2 is affirmed. This appeal, thereforee, fails and dismissed. In the circumstances of the case, however, there will be no order as to costs.