Molar Mal vs Shyam Manohar Lal and Another

Grover, J.—This judgment shall dispose of all the three appeals (Second Appeal from Orders Nos. 181-D of 1963, 197-D of 1960 and 11-D of 1964) which are connected.

Molar Mal, who is the appellant in Second Appeal from Order No. 181-D of 1963 created a mortgage in favour of Shyam Manohar Lal respondent. On the basis of that mortgage the respondent obtained a decree and the property in dispute was put to sale and after obtaining permission of the Court, it was purchased at a court auction by the respondent on 6th August 1959. The sale was confirmed on 11th December 1961 and the sale certificate was granted on 20th December 1961. On 24th July 1962 three applications for eviction were filed under the Delhi Rent Control Act, 1958, for eviction of the tenants on the ground of non-payment of rent, it having been alleged that notices of demand had been served on them in accordance with law. In the eviction application filed against Molar Mal appellant and Prag Dass, it was stated against column 3(b), according to which the name and address of the tenant or tenants have to be given, that Prag Dass and Molar Mal were the tenants. In the relief, which has been claimed in this petition it is stated-

Ejectment against respondent No. I as well as Molar Mal S/o Krishana Miser respondent No. 2 to whom respondent No. 1 has wrongly delivered possession in spite of the knowledge of the petitioner''s rights.

Before the Additional Rent Controller, the tenants raised the question that no relationship of landlord and tenant existed between the parties. The Additional Rent Controller acceded to that contention and dismissed all the petitions on 30th of March 1963. On appeal, the Rent Control Tribunal came to the conclusion that the relationship of landlord and tenant existed between the parties and remanded the case to the Additional Rent Controller for decision on the merits. It may be mentioned that although the other two tenants, namely, Lakshmi Narain and Niranjan Dass have filed appeals in this court against the order of the Rent Control Tribunal but Prag Dass did not file any appeal and it was Molar Mal alone who had filed the appeal.

The first contention that has been raised by the learned counsel for the appellants is that no appeal lay to the Rent Control Tribunal against the order of the Rent Controller in view of my decision in Balwanl Singh v. Sant Ram S.A.O. No. 2-D of 196 (Second Appeal from Order No. 2-D of 1961) decided on 9th January 1964. In that case the position was wholly different inasmuch as the Rent Controller had given a decision on a preliminary issue that the relationship of landlord and tenant existed between the parties and the question was whether that order was appealable. The eviction application had not been finally disposed of and an appeal had been taken to the Rent Control Tribunal against the order of the preliminary issue. In the present cases the position is altogether different inasmuch as the Rent Controller disposed of the eviction applications and not merely decided a preliminary issue, namely, whether the relationship of landlord and tenant existed between the parties. If the eviction applications were disposed of, surely an appeal could be taken against that and it could be urged in those appeals that the decision of the Rent Controller that the relationship of landlord and tenant did not exist between the parties was erroneous. The learned counsel for the appellants relies on my observations in the other case that whether a question arises in proceedings before the Rent Controller whether relationship of landlord and tenant exists between the parties, the order disposing of that issue is not one which is made under any of the provisions of the Act and that matter has to be decided for settling whether the Rent Controller would have jurisdiction to entertain and proceed with the application either for fixation of standard rent or for eviction, as the case may be, but in the present cases the order which is being appealed against, as has already been stated before, is one under the Act, namely, dismissal of the eviction applications. My previous decision, therefore, can be of no avail to the present appellants.

The next question on behalf of the appellants that has been raised is that after the auction had been confirmed in favour of respondent Shyam Manohar Lal, he did not proceed to obtain delivery of possession of the property in accordance with the provisions contained in Order XXI, Rule 96 of the CPC which is as follows :

R. 96. Where the property sold is in the occupancy of a tenant or other person entitled to occupy the same and a certificate in respect thereof has been granted under Rule 94, the Court shall, on the application of the purchaser, order delivery to be made by affixing a copy of the certificate of sale in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, that the interest of the judgment-debtor, has been transferred to the purchaser.

It is said that admittedly section 109 of the Transfer of Property Act would not be applicable to the present cases inasmuch as the sale was not by a private treaty but was by a Court auction. It is argued that Order XXI, Rule 96 is meant, apart from other matters, for fixing" the tenant with the knowledge that the property has changed hands and that the interest of the judgment-debtor has been transferred to the purchaser. Unless this is done, the tenant will not be in a position to know to whom to pay the rent whether to the judgment-debtor or to the purchaser. In this connection it is necessary to refer to section 65 of the CPC which provides that where immoveable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute. Order XXI, rule 94 provides for grant of a certificate specifying the property sold and the name of the person who at the time of the sale is declared to be purchaser. It has been held by a Division Bench of this Court in Hafiz Abdul Basit Vs. Abdul Alim and Others, , that the title of an auction purchaser becomes perfect not from the date of his getting symbolical possession but from the date when the property is sold. The property vests in the purchaser immediately after the sale is confirmed by the Court and vesting is not postponed until after the grant of the certificate. It is obvious, therefore, that the title of the purchaser in the present case became absolute as soon the property was sold to him and it does not appear that it was necessary for him to obtain symbolical possession for the perfection of his title. If his title was complete, then he was fully entitled to exercise all the rights of an owner which would include the right of realising rents from the tenants and of evicting them under the law if any grounds for eviction could be made out. I have, therefore, no manner of doubt that there is no force in the contention which has been raised on behalf of the appellants that the delivery of symbolical possession was necessary before the applications for eviction could be filed.

Finally, it has been contended on behalf of the appellants, Molar Mal, that according to the relief clause in the petition against him, he has not been shown to be either a tenant or a sub-tenant but it is said that he is in possession illegally which would mean that he is merely a trespasser. It is contended that in these circumstances no application for eviction is maintainable against him. On behalf of the respondent landlord it is pointed out that Prag Dass, the original tenant, has also been impleaded and if the eviction application succeeds, the order can be made against Prag Dass and in execution proceedings it would be open to the landlord to evict Molar Mal as he has no right to remain in occupation of the property and has been inducted illegally by Prag Dass. That is, however, not a matter which can be decided at this stage and it will be for the Additional Rent Controller to whom the cases have been remanded to decide this question if and when it is raised.

The appeals, however, fail and they are dismissed but in the circumstances I make no order as to costs.

The parties are directed to appear before the Additional Rent Controller on 23rd March, 1964.