Panna Chand Jain, J.
1. This appeal under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 24th January, 1976, passed by the learned District Judge, Jaipur City, Jaipur, in first appeal No. 176 of 1975 by which the judgment and decree passed by the learned Addl. Civil Judge, Jaipur City, Jaipur, dated 21st March, 1975, was modified dismissing the plaintiff's claim for ejectment from the suit premises and decreeing the suit for use and occupation.
2. Briefly stated the facts of the case are that the plaintiff is the owner of a bungalow known as Kalyan Villa, situated at Subhash Marg, C-Scheme, Jaipur. The said premises was let out by the plaintiff appellant to the British India General Insurance Co., Ltd., for a period of one year at Rs. 350/- per month with effect from 1st July, 1965. In addition to the rent, the defendant was also required to pay house tax amounting to Rs. 21.88P. The plaintiff-appellant filed a suit for eviction and recovery of damages for use and occupation against the United India Fire Insurance Co. Ltd. on the ground that British India General Insurance Co. Ltd., (here in after referred to as the Company) ceased to exist with effect from 31st December, 1973 and its business along with other General Insurance Companies had been taken over by the United India Fire and General Insurance Co. Ltd. (here in after referred to as the defendant). The plaintiff submitted that the tenancy of the company was determined by efflux of time after the expiry one year of tenancy on 30th June, 1966. The Company continued to be in possession even after the determination of the tenancy as it could not have been ejected without taking recourse under the provisions of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (here in after referred to as the Act) It is the case of the plaintiff that the defendant wrote a letter on 8th Jan., 1974, to the plaintiff that the Company has ceased to exist with effect from 31st December, 1973 and the new Company United India Fire.& General Insurance Co. Ltd. has been formed under the General Insurance Business (Nationalization) Act, 1972 here in after referred to as the Nationalization Act). In the said letter it was also informed that the tenancy rights have devolved on the defendant and the defendant would be liable to and undertakes to pay the rent of the disputed premises to the plaintiff. The plaintiff further pleaded that the defendant is not his tenant and the tenancy of the defendant was determined by one month's notice as per the terms of the lease-deed, as the defendant gives out that they were the tenants of the plaintiff. The plaintiff also claimed ejectment of the defendant from the suit premises on the ground of reasonable and bonafide necessity for the use by his son and his family. The grounds about sub-letting etc. were also taken.
3. The suit was contested by the defendant on the ground that under the Scheme of Merger framed under Section 16(1) of the Nationalization Act, the undertaking of the company has been transferred to and vested in the defendant with effect from 1st January, 1974. The defendant further contended that they are the legal successors and legal representatives of the Company for the purpose of the tenancy. In short, the defence of the defendant is that the defendant continues to be the tenant of the plaintiff in the suit premises. A plea was also raised by the defendant that in case the defendant is not admitted by the plaintiff to be his tenant, then the present suit is not maintainable as the proper remedy for the plaintiff would be to file a suit for possession based on title and after paying the requisite court-fees.
4. On the pleadings of the parties, the learned trial Court framed as many as 8 issues, which have been translated into English, read as follows:
(1) Whether the plaintiff is in reasonable and bonafide necessity of the premises in dispute for his own and the members of his family P.
(2) Whether the defendant is not entitled to protection under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950? P.
(3) Whether the defendant has sub-let the premises to Jamnalal Porwal resident of Udaipur, with effect from May and June 1974 If so, what is its effect on the suit P.
(4) Whether the notice of the plaintiff dated 22-3-1974 determining the tenancy of the defendant is not sufficient P.
(5) Whether the defendant has shifted its business from the premises in dispute to some other premises and on this account the plaintiff is entitled to get the premises vacated from the defendant P.
(6) Whethet the court-fee paid is not sufficient D.
(7) Whether the defendant is the successor and legal representative of British India General Insurance Company If so, what is its effect on the suit ?
(8) Relief?
5. From the record, it appears that when the arguments on issue No. 6 were being heard, the plaintiff stated that he would not produce any evidence on issues No. 1,3 and 5. He also made it clear that as issue No. 2 was legal issue, therefore, it also required no evidence. In these circumstances, the plaintiff did not lead any evidence and closed his evidence on 26th February, 1975. The defendant on the same day declared that he would not produce any evidence. Thus, it is a case where both the parties adduced no evidence.
6. While dealing with issue No. 6, the learned trial Court held that the court-fee paid is proper and the learned first appellate Court also confirmed the said finding. The main contention submitted by Shri B.L. Mandhana, learned Counsel for the appellant, is that after the termination of the tenancy, the Company was protected from being ejected from the suit premises on account of the protection provided by the provisions of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950. But the defendant cannot claim any right what so ever as a statutory tenant to remain in possession of the property. It was urged by the learned Counsel for the appellant that defendant is not a tenant in the disputed premises. It was further submitted by Shri Mandhana, learned Counsel for the appellant, that as the Company ceased to exist, the defendant cannot be held to be the legal representative of the Company. Shri Mandhana also referred to the definition of 'tenant' as laid down under Section 3 of the Act, which is as follows:
3(vii) 'tenant' means--
(a) the person by whom or on whose account or behalf rent is, or, but for a contract express or implied would be payable for any premises to his landlord including the person who is continuing in its possession after the termination of his tenancy otherwise than by a decree for eviction passed under the provisions of this Act; and
(b) in the event of death of the person as is referred to in Sub-clause (a), his surviving spouse, son, daughter and other heir in accordance with the personal law applicable to him who had been in the case of premises leased out for residential purposes, ordinarily residing and in the case of premises leased out for commercial or business purposes, ordinarily carrying on business with him in such premises as member of his family upto his death.
7. In order to substantiate his submission, Shri Mandhana relied on J.C. Chatterjee v. S.K. Tandon : [1973]1SCR850 . It was a case under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 and it considered the definition of 'tenant' as it existed before the amendment of the definition by virtue of the Rajasthan Premises (Control of Rent and Eviction) Ordinance, 1975, which was subsequently replaced by the Rajasthan Amending Act No. 14 of 1976. The material point that was considered by their Lordships of the Supreme Court, in that case, was that after the contractual tenancy of the tenant, B.N. Chatterjee was terminated by notice, the tenant remained a statutory tenant and was liable to be evicted in accordance with the special law, namely the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. It was contended before the Supreme Court that the protection given by the Act was personal to the statutory tenant B.N. Chatterjee; but on his death, it was no longer necessary for the landlord to show that he required the premises bonafide and reasonably. The Hon'ble Supreme Court, in that case observed as under:
9. It was not settled that after the termination of the contractual tenancy the statutory tenant has only a personal right to continue in possession till evicted in accordance with the provisions of the Act. It is pointed out by this Court in Anand Niwas (Pvt.) Ltd. v. Anandi Kalyani Pedhi : [1964]4SCR892 : 'A person remaining in occupation of the premises let to him after the determination of or expiry of the period of the tenancy is commonly though in law not accurately, called a 'statutory tenant'. Such a person is no' a tenant at all; he has no estate or interest in the premises occupied by him. He has merely the protection of the statute in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His right to remain in possession after the determination of the contractual tenancy is personal; it is not capable of being transferred or assigned, and devolves on his death only in the manner provided by the statute.' These observations have been made with reference to the provisions of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947. But they equally apply to the provisions of the Act with which we are concerned.
8. After discussing the definition of 'tenant' as it stood at that time, the Hon'ble Supreme Court made the following observation:
When B.N. Chatterjee died, he was only a statutory tenant with a personal right to remain in possession till eviction under the provisions of the Act, and the heirs were incapable of inheriting any estate or interest in the original tenancy. It was also not shown to us that they fell within any other part of the definition of 'tenant' produced above. Therefore, the heirs and legal representatives of the deceased B.N. Chatterjee could not in their own right claim to be 'tenant' within the meaning of the Act. Therefore, the only contentions that they could put forward in the appeal were the contentions appropriate to their representative character and not one which was personal to the deceased. The contention based on the ground of bona fide requirement by the landlord was personal to the statutory tenant and on his death the same is not open to his legal representatives unless there is anything in the provision of the Act which makes the legal representatives statutory tenants to the same extent as the deceased. It is not the case that there is any other provision of the Act which gives protection to the legal representatives of the deceased statutory tenant.
9. Thus, the Hon'ble Supreme Court in the above referred case, clearly laid down that after the determination of tenancy the right of the tenant is personal; it is not capable of transferred or assigned, and devolves on his death only in the manner provided by the statute. It was also clearly held that though technically such a person is called a statutory tenant, but such a person is not a tenant at all, hence no title to or interest in the premises occupied by him. It is also held by the Supreme Court in that case that after the death of the statutory tenant, his heirs and legal representatives are not tenants. The right of statutory tenant to continue in possession under the provisions of the Act being personal to him, cannot be claimed by them.
10. Shri R.C. Kasliwal, learned Counsel for the respondent, urged (hat the defendant is a tenant. He submitted that a perusal of the provisions of Section 16 of the Nationalization Act and Clause 3 of the Scheme will make it clear that all rights including the right to possess as a tenant his stand transferred to the defendant on the merger of the Company with the defendant. In order to appreciate the contentions of the parties, it would be necessary to consider the definition of 'lease' as is given under Section 105 of the Transfer of Property Act:
A lease of immovable property is a transfer of a right to enjoy such property; made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
11. Thus, a lease is the out come of the rightful separation of ownership and possession. The lease is, therefore, not a mere contract, but is a transfer of interest in land. It creates a right in rem. It is also clear from the definition that in order to create or bring a new tenancy into existence there must be a bilateral act. There is no dispute between the parties that tenancy created by the tenant by holding over is a statutory tenancy and, it continues till it is terminated or determined. From the proposition laid down by the Hon'ble Supreme Court it is also clear that the statutory tenancy under the Act is a personal right which comes to an end upon the death of the tenant. The only defence that is available to the legal representatives of the statutory tenants is that they can put forward such contentions which are appropriate to the representative character and not one which are personal to the deceased. The contention based on the ground of personal and bonafide requirement by the landlord was personal to the statutory tenant and on his death the same is not open to the legal representatives.
12. The relevant provision of the Scheme is Clause 3, which is as under:
3. Transfer of undertakings--(1) On and from the specified day, the undertaking of every merged company shall stand transferred to and vested in the transferee company;
(2) The undertaking of every merged company shall be deemed to include all assets, rights, powers, authorities and privileges and all property, movable and immovable, cash balances, capital and reserve funds, investments and all other rights and interest in or arising out of such property, as were immediately before the specified day in the ownership, possession, power, or control of such company, whether within or without India and all books of accounts, registers, records and all other documents of whatever nature relating thereto; and shall be deemed to include all borrowings, liabilities and obligations of whatever kind then subsisting of the merged company.
13. Thus, a careful study of Section 16(1) of the Nationalization Act and Clauses 3 and 4 of the Scheme would indicate that after the passing of the Nationalization Act all the deeds, bonds, agreements, power of attorney, grants of legal representation and other instruments of whatever nature subsisting or having effect immediately before the specified day and to which any merged company is a party or which are in favour of such merged company shall be of as full force and effect against or in favour of the transferee company and may be enforced or acted upon as fully and effectually as if in the place of such merged company the transferee company had been a party thereto as if they had been issued in its favour. In fact, it also provides that suits, appeals or other proceedings may be continued, prosecuted or enforced by or against the transferee company. It also provides the transfer to and vesting in the acquiring company of the undertaking (including all the business, properties, assets and liabilities) of any Indian Company which cease to exit by reason of the scheme. It is also provided in the scheme that on or from the specified date, the undertaking of every merged company shall stand transferred to and vested in the transferee company. The scheme also further provides that the undertaking of every merged company shall be deemed to include all assets, rights, powers, authorities and privileges and all property, moveable and immovable, cash balances, capital and reserve funds, investments and all other rights and interest in or arising out of such property, as were immediately before the specified day in the ownership, possession, power, or control of such company. In this view of the matter, after the passing of the Nationalization Act the defendant acquired all the rights and interests in or arising out of the properties which were in the ownership, possession, power or control of the Company and for all practical purposes, it will be deemed that instead of the British India General Insurance Company, the new body by the name the United India Fire & General Insurance Co. Ltd. was substituted.
14. The main contention of Shri Mandhana is that the right to possess the property as a tenant after the termination of the tenancy was personal to the company and it could not stand transferred to the defendant and, he mainly placed reliance on J.C. Chatterjee's case (supra). In case, the proposition of law laid down by the Hon'ble Supreme Court in J.C. Chatterjee's case is held to be applicable to the facts and circumstances of the case, I am of the view that the submission made by Shri Mandhana is sustainable. It appears that the definition of 'tenant' was amended in the year 1975, on account of the proposition of law laid down by the Hon'ble Supreme Court in J.C. Chatterjee's case and, by incorporating Sub-clause (b) in Section 3(vii) in the definition of 'tenant,' protection was given to the heirs of the tenants which were not recognised by the Hon'ble High Court in the above referred case, which arose under the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. But the position no more remains as such. In Damadi Lal v. Parash Ram : AIR1976SC2229 , again the question of heritable interest in the premises, of the statutory tenant was considered by the Hon'ble Supreme Court. That was a case under the provisions the MP. Accommodation Control Act, 1961. The Hon'ble Supreme Court considered the previous judgments given by it in Anand Niwas (Pvt.) Ltd. v. Anandji Kalyanji Pedhi : [1964]4SCR892 and J.C. Chatterjee v. Shri Khhan : [1973]1SCR850 . The statute considered in Anand Niwas' case was the Bombay Rents, & Lodging House Rates Control Act, 1947, as amended in 1959. In J.C. Chatterjee's case it was held by Hon'ble Grover & Palekar, JJ. relying on Anand Nivas's case that after the termination of contractual tenancy, a statutory tenant enjoys only a personal right to continue in possession and on his death his heirs do not inherit any estate or interest in the original tenancy. The Hon'ble Supreme Court in Damadi Lal's case (supra) after considering the two judgments referred to above, was of the opinion that both these cases, Anand Nivas & J. C. Chatterjee proceeded on the basis that a tenant whose tenancy has been terminated, described as statutory tenant, has so estate or interest in the premises but only a personal right to remain in occupation. The Hon'ble Supreme Court further observed that it would seem that as if there is a distinct category of tenants called statutory tenants having separate and fixed incidents of tenancy. The term 'statutory' tenancy' is borrowed from the English Rent Acts. This may be a convenient expression for referring to a tenant whose tenancy has been terminated and and who would be liable to be evicted but for the protecting statute, but courts in this country have some times borrowed along with the expression certain notions regarding such tenancy from the decisions of the English courts. The Hon'ble Supreme Court after considering this aspect of the matter observed that in their opinion, it has to be asserted how far these notions are reconciliable with the provisions of the statute under consideration in any particular case. After considering various authorities of the English law, the Hon'ble Supreme Court observed as follows:
Courts in England have held that a statutory tenant has no estate or property in the premises he occupies because he retains possession by virtue of the Rent Acts and not as being entitled to a tenancy; it has been said that he has only a personal right to remain in occupation, the statutory right of 'irremovability' and nothing more.
15. Commenting upon the meaning of the expression 'statutory tenancy, as rendered by the Courts in England, the Hon'ble Supreme Court observed as follows:
We find it difficult to appreciate how in this country we can proceed on the basis that a tenant whose contractual tenancy has determined but who is protected against eviction by the statute, has no right of property but only a personal right to remain in occupation, without ascertaining what his rights are under the statute. The concept of a statutory tenant having no estate or property in the premises which he occupies is derived from the provisions of the English Rent Acts. But it is not clear how it can be assumed that the position is the same in this country without any reference to the provisions of the relevant statute. Tenancy has its origin in contract. There is no dispute that a contractual tenant has an estate or property in the subject-matter of the tenancy, and heritability is an incident of the tenancy.
16. The definition of 'tenant' in Madhya Pradesh Accommodation Control Act, 1961 and in the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, though not exactly the same, but more or less is on the same line. The relevant part of the definition as given in the Madhya Pradesh Accommodation Control Act, 1961, reads asunder:
2(i) A person by whom or on whose account or behalf the rent of any accommodation is, or, but for a contract express or implied would be payable for any accommodation and includes any person occupying the accommodation as a sub-tenant and also any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act; but shall not include any person against whom any order or decree for eviction has been made.
17. In the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, this part of the definition of 'tenant' is as follows:.including the person who is continuing in its possession after the termination of his tenancy otherwise than by a decree for eviction passed under the provisions of this Act.
18. After considering the definition of 'tenant,' the Hon'ble Supreme Court made the following observations:
The definition makes a person continuing in possession after the determination of his tenancy a tenant unless a decree or order for eviction has been made against him thus putting him on par with a person whose contractual tenancy still subsists. The incidents of such tenancy and a contractual tenancy must therefore be the same unless any provision of the Act conveyed a contrary intention. Thus under this Act such a tenant retains interest in the premises, not merely a personal right of occupation....
19. After considering the relevant provisions of the Act, the Hon'ble Supreme Court clearly laid down that a contractual tenancy is an estate or interest in the premises and held that the predecessor-in-interest of respondents had an inheritable interest in the premises. The case of Damadilal v. Parashram (supra) was also considered in Hargovind Dharamsey and Co. and Ors. v. Ruby and Co. (1979) (1) RCR 477. The Hon'ble Bombay High Court considered all the above referred three cases of the Hon'ble Supreme Court, i.e. (1) Anand Nivas Pvt. Ltd. v. Anandji Kalyanjt Pedhi (2) Jagdish Chander Chatterjee v. S.K. Tandon; and (3) Damadi Lal v. Parash Ram and observed that the Hon'ble Supreme Court has distinguished its previous decision in Anand Nivas and Damadi Lal's case and observed as under:
The judgment of the Supreme Court in Damadi Lai's case is a later judgment. Hence it should be preferred to the earlier judgment in Anand Nivas's case : [1964]4SCR892 . The later judgment is also a unanimous judgment of three Judges of the Supreme Court. The earlier judgment was a majority judgment of two Judges with one Judge dissenting. This dissenting judgment has been cited with approval by the learned Judges in the later decision in DamadilaPs case. Hence the views expressed in Damadilal's a case should prevail.
20. Damadi Lai's case was also considered by the Full Bench of the Delhi High Court in Haji Mohammed Din v. Shri Narain Das (1979) (1) RCR 317. The Full Bench also considered Anand Nivas and J.C. Chatterjee's cases and observed that the decision in Damadilal is subsequent to the decision in Anand Nivas and J.C. Chatterjee. Though all these decisions are by Benches of three Judges, the latest decision has to be preferred to the earlier ones. It was also observed that legal representatives of the transferee who continued to be in possession after the termination of his tenancy were entitled to inherit the tenancy and statutory protection against eviction etc. attached to it. However, the Full Bench of the Delhi High Court observed that so far as the Delhi Rent Control Act is concerned, the applicability of Damadilal's case in Delhi was prevented by the fact that before the said decision was announced by the Supreme Court, the law in Delhi was so changed that it became materially different from the law in Madhya Pradesh in respect of the definition of 'tenant'. The ratio decidendi of Damadilal's case could, therefore, apply only to cases covered by the Madhya Pradesh Act because the person continuing in possession after the termination of tenancy was equated with the contractual tenant only id that Act. On the contrary, in the Delhi Act this equation had come to an end by the effect of the amending Act of 1970.
21. In view of the proposition of law laid down by the Supreme Court in Damadilal's case, there remains no controversy so far as the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, is concerned that with the determination of tenancy, it cannot be assumed that the estate must necessarily disappear and the statute can only preserve his status of irremovability and not the estate he held in the premises in his occupation. Thus, statutory tenant under Section 3(vii) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, has inheritable interest in the premises. Whatever right the statutory tenant could enjoy, the same rights are also enjoyable by the legal representatives of the statutory tenant. As I have already stated that all the rights which the British India General Insurance Company had before the merger, the same rights are transferred to the defendant on merger because of the effect of Nationalization Act. In this view of the matter, the finding of the trial Court that the tenant is not a legal representative of the company and the tenancy right of the company do not devolve in the defendant is not correct and the view expressed by the learned first appellate Court is correct. The defendant continues to be a tenant of the plaintiff in the disputed premises and has right to possess the premises as a tenant and hi cannot be evicted save by following the due process of law laid down under the Act.
22. The plaintiff sought eviction on various grounds i.e. the ground of personal requirement, sub-tenancy and that the defendant has shifted its business from the premises in dispute to some other premises. But there is no evidence to prove such allegations on the basis of which eviction is sought by the plaintiff against the defendant. The parties did not produce any oral evidence. Thus, there is no evidence to prove Issue Nos. 1, 3 and 5. Consequently, there is no option left but to dismiss the suit of the plaintiff as the defendant is entitled to the protection of the Act.
23. In the premises aforesaid, there is no merit in the appeal and the same is dismissed with no order as to costs.