JUDGMENT J.K. Mehra, J.
(1) This is a suit filed by the plaintiff against the defendants for recovery of possession of 1st Floor of D/49 Paschimi Marg, Vasant Vihar, New Delhi, and for recovery of arrears of rent, damages/mesne profits on the ground of unauthorised use and occupation of the said premises by defendants.
(2) Summons of the suit were served upon the defendants and the defendants filed their written statements to which the plaintiff filed replications.
(3) In the written statement of defendant No.2, it had claimed to be the tenant of the plaintiff in respect of the premises in dispute, i.e. the first floor of D-49 Pashchimi Marg, Vasant Vihar, New Delhi. Therefore, a statement of the plaintiff before framing of issues was recorded in the following terms:- "STATEMENT of Mrs. Sushila Prasad wd/o Sh. Rejeshwar Prasad, Age 76 years, R/o 49-D, Paschimi Marg, Vasant Vihar, New Delhi-110057 on S.A. :- The rent which we received from M/s Harsha Tractors Ltd. was Rs.l400.00 . We sometimes received Rs.l400.00 from Mr.C.P.Gupta. I could not use my legs and cannot see properly so I requested M/s Harsha Tractors to have Mr. Gupta shifted to the first floor On my request, M/s Harsha Tractors had Mr.Gupta shifted to the first floor. On the day Mr.Gupta shifted to the first floor, the rent received from M/s Harsha Tractors was Rs.l400.00 . Mr. Gupta was in possession of the ground floor from 1972 to 1978. In 1978, he shifted to the first floor. I do not remember who paid the rent for April 1975."
(4) After recording the aforesaid statement of the plaintiff on 6th December 1985, the following issues were framed on the same day:- 1.During what period was the defendant No.2 tenant of any part of D-49, Paschimi Marg, Vasant Vihar, New Delhi? When did such a tenancy annexed (commenced) and when did the same come to an end? 2. What is the effect of the tenancy agreement between the plaintiff and M/s Sylvania Laxman Ltd.? 3. What is the effect of tenancy agreement between the plaintiff and defendant no.1, M/s.Harsha Tractors Ltd.? 4. Whether the plaintiff is entitled to possession of the premises in terms of the tenancy agreement between the parties, i.e. defendant No.1 and the plaintiff, if so, from whom? 5. Whether defendant No.2 is a tress-passer in the first floor of D-49, Paschimi Marg, Vasant Vihar, New Delhi? 6. Whether this court has jurisdiction to entertain this suit in view of the provisions of Section 50 of the Delhi Rent Control Act? 7. Whether proper court fee has not been paid on the plaint? 8. Whether the plaintiff is entitled to recover any arrears of rent, if so, from whom? 9. Whether the plaintiff is entitled to recover damages and/or mesne profits, if so, from whom and for what period? 10. Whether the agreement between the parties .regarding D-49 Paschimi Marg, Vasant Vihar, New Delhi admissible in evidence? 11. Relief.
(5) Before the evidence could be concluded in this case the plaintiff who was an old lady aged 80 at the time her statement in evidence was recorded died and her legal representatives were brought on record.
(6) Both the parties led their respective evidence.
(7) My findings on various issues are as under:- Issue No. 10 (8) I will first take up Issue No.10. In the course of evidence recorded on behalf of the plaintiff, a document purporting to be a document creating lease was tendered in evidence. Since it was nut adequately stamped and registered, the Court passed a formal order impounding the document under Stamp Act imposing penalty for being understamped. On the penalty amount being paid and the deficiency in stamp duty being made up, the document was sought to be tendered in evidence, but on account of certain objection in respect of non registration, the court allowed the said document being Lease Deed dated 1.5.78 to be marked as "PX". I find that under law, such a document could be used for a collateral purpose or as evidence of the collateral transactions as provided in the proviso to Section 49 of the Registration Act, which reads as under:- "SEC.49.Effect of non-registration of documents required to be registered - No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall - (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter Ii of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of Section 53-A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument. (emphasis supply)"
(9) In the light of the above proviso and the law on the point as laid down in the cases reported as Air 1919 Pc 44 followed in Padma Vithoba Chakkayya Vs. Mohd. Multani and Anr. reported as Air 1963 Sc 70 (pages 71 & 73) and Rai Chand Jain Vs-.Chandrakanta Khosla, reported as . The document can be received in evidence though for the limited purpose. The aforesaid decision in the case of Padma Vithoba Chakkayya (supra) has also been followed by this Court in the case of Mangal Singh Vs. Takeram reported as . To the same effect are further rulings of cases reported as Devi Dayal Metal Industries (P) Ltd Vs. Girnari Devi, , M.Mohan Vs. Malleshwari Seth, , Rajesh Wadhwa Vs. Dr. (Mrs.) Sushma Govil, Roshan Singh & ors Vs. Zilla Singh and others 34(1988) Dlt 317.
(10) In the light of the above discussion on the law, the said document purporting to be a tenancy agreement between plaintiff and defendant No.I execution whereof is witnessed, inter alia, by Defendant No.2 himself, is exhibited as Exhibit-PX. It can be looked into and be admissible in evidence to the limited extent as mentioned above including finding out the nature of possession of each of the defendants. The issue is answered accordingly. Issues No. 1 and 2 (11) It is contended by the plaintiff that the present suit premises were occupied by defendant No.2 only after the lease Ext. Px on 1st May, 1978. Prior thereto, the plaintiff had let out the ground floor premises to M/s Harsha Tractors Limited. That lease came to an end and the ground floor which was earlier occupied by defendant No. 1 was handed over to the plaintiff. On the expiry of the earlier lease, peaceful possession of the ground floor premises was delivered to the plaintiff, therefore, the earlier lease will be totally irrelevant for the purposes of the present proceedings since it related to different premises i.e. ground floor of the said property.
(12) Likewise, the lease entered into with M/s.Sylvania Laxman Limited w.e.f. 1.11.1972 which came to an end with effect from 31.3.75 would also be irrelevant, because subsequent to that lease, the premises were let out to M/s Harsha Tractors Limited from May 1975. It is settled law that two leases cannot co-exist in respect of the same premises, therefore, when the premises were let out to M/s Harsha Tractors Limited in the year 1975, the lease or tenancy operating prior thereto automatically came to an end and there was a fresh lease created in favor of M/s Harsha Tractors Limited. A lot has been made out in the arguments for the defendant No.2 who, it is alleged, had paid the rent for one month, between the expiry of the notice period of the earlier lease with M/s Sylvania & Laxman Pvt Ltd and fresh lease entered into between the plaintiff and defendant No. 1, M/s Harsha Tractors Limited. It is quite apparent that Defendant No.2 never paid rent for the premises in dispute i.e. 1st floor. Payment of a month's rent for ground floor premises cannot ensure to the benefit of defendant No.2 since thereafter such tenancy/license, if any, automatically came to an end with the creation of a fresh lease that was entered into between the plaintiff and defendant No.1. No receipt of rent has been produced before court showing Defendant No.2 as tenant. In the light of the aforesaid legal position. This plea also has no substance and is rejected.
(13) In the light of the above, on issue No.1, I hold that the Defendant No.2 was never a tenant of the property in dispute and that even if any relation of Landlord and tenant came to exist by virtue of payment of rent for April 1975 that stood extinguished on the execution of fresh lease with Defendant No.1 w.e.f. 1.5.1975 and on Issue no-2,'I hold that the effect of agreement of lease/tenancy between plaintiff and Sylvania Laxman Ltd regarding ground floor was to bring about a relationship of landlord and tenant between the plaintiff and M/s Sylvania Laxman Ltd during the subsistence of that lease and creation of fresh lease with Defendant No.1. Issues No.1 and 2 are decided accordingly. Issues No.3 & No.5 (14) On the plaintiff letting out the suit premises i.e. the first floor consequent upon such fresh lease, the lessee i.e. Harsha Tractors Limited were put into possession and defendant No.2 occupied the demised premises (1st floor) as claiming under Harsha Tractors Limited.
(15) In the light of the above discussion, I hold that the leases in favor of M/s Sylvania Laxman Limited as well as defendant No.1 which had expired prior to 1.5.78 are of no consequence or avail as those related to different demised premises then the suit premises i.e. the Ground Floor of D-49 Pashchimi Marg, Vasant Vihar, New Delhi and not 1st floor. As already. held hereinabove that the document Ext.PX can be looked into as evidence for a limited purpose such as to ascertain nature of possession of a party as to whether a party is a tenant/tress-passer or licensee. A perusal of the said document clearly establishes that Defendant No.1 alone and not defendant No.2 was the tenant right up to the time of Defendant No.1 terminated the tenancy of its own volition. The execution of this document is duly witnessed by Defendant No.2 who has signed it in token of his being a witness to the execution. In this view of the matter also if is not open to the defendant No.1 to urge anything to the contrary. I have perused the statement of Defendant No.2 and find that a perusal thereof does not inspire confidence. Defendant No.1 has not led any evidence. As such all the allegations in its written statement remain unproved. I, therefore, hold that the effect of Ex.PX is that it established that Defendant No.1 alone was the tenant and defendant No.2 was only occupying it Under Defendant No.1 as its employee and after the termination of tenancy by Defendant No.1, the possession of defendant No.2 became unauthorised and continues to be so. Issues No.3 and No.5 are also decided accordingly. Issue No.4 (16) I have already held hereinabove that document Ext. Px can be read in evidence only for the limited purpose of establishing the nature of possession and that its terms as such cannot be enforced on account of lack of registration. In that view of the matter. Issue No.4 is decided accordingly. Issue No.6 (17) It is contended by the defendants that the Civil Court does not have the jurisdiction to entertain and try the present suit in view of the provisions of Section 50 of the Delhi Rent Control Act, which reads as under:- "SEC.50: Jurisdiction of civil courts barred in respect of certain matters - (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. (2) If, immediately before the commencement of this Act, there is any suit or proceeding pending in any civil court for the eviction of any tenant from any premises to which this Act applies and the construction of which has been completed. after the 1st day of June 1951, but before the 9th day of June 1955, such suit or proceeding shall, on such commencement, abate. (3) If, in pursuance of any decree or order made by a court, any tenant has been evicted after the 16th day of August 1958, from any premises to which this Act applies and the construction of which has been completed after the 1st day of June 1951, but before the 9th day of June 1955, then, notwithstanding anything contained in any other law, the Controller may on an application made to him in this behalf by such evicted tenant within six months from the date of eviction, direct the landlord to put the tenant in possession of the premises or to pay him such compensation as the Controller thinks fit. (4) Nothing in sub-section (1) shall be construed as preventing a civil court from entertaining any suit or proceeding for the decision of any question of title to any premises to which this Act applies or any question as to the person or persons who are entitled to receive the rent of such premises."
(18) The aforesaid provision makes it abundantly clear that the jurisdiction of a civil court to entertain and try a suit or proceeding relating to the fixation of standard rent or to eviction of any tenant or to any other matter which the Controller is empowered by or under the Delhi Rent Control Act to decide is barred.
(19) This question has arisen in various cases and has been dealt with and answered by Courts.
(20) A reference be made to the following judgments in this connection:- (I)In Sanwarmal Kejriwal Vs. Vishwa Cooperative Cooperative Housing Society Ltd & others reported as , the Hon'ble Supreme Court held as follows:- "But the jurisdiction of the court in which the action is originated must be determined on the avertments in the plaint or claim application and not on the defense taken by the adversary party. For example, if the plaintiff goes to court alleging that the defendant is a trespasser, the ordinary court will have jurisdiction and its jurisdiction will not be taken away merely because the defendant pleads tenancy." (ii) In another judgment in the case of O.N. Bhatnagar Vs. Smt. Rukibai Narsindas & others, , Hon'ble Supreme Court observed - "that the Rent Controller's Court has no jurisdiction to try questions of title, such as between rightful owner and a trespasser or a licensee, for such questions do not arise under the Rent Control Act." ".........If, therefore, plaintiff in the plaint does not admit a relationship which would attract any of the provisions of the Act on which the exclusive, jurisdiction given in S.28 depends, the defendant cannot by his plea force the plaintiff to go to a forum whether (where?) on averments the claim does not lie." (iii) In Ram Singh etc. Vs. Ajay Chawla, reported as 34(1988) Dlt 70, the Hon'ble Supreme Court held as under- "If these facts, i.e. to say the respondent is the owner of the premises and the appellants are in unauthorised occupation of the premises then only the Civil Court will have jurisdiction to order eviction of the premises in question and no other court. On such a plea and on such finding the respondent could not have gone to any court but the Civil Court for eviction".
(21) Counsel for the plaintiff has also relied upon the decisions in Mohd. lbrahim Vs. Mohd. Hanif reported as Delhi High Court Digest, 1975(5), Page 132, Item No. l05, Mohan Lal Goela & others Vs.Siri Krishan and Mahavir Prashad Vs. Sukhdev Mongia & another reported as .
(22) In the present case, the plaintiff has not admitted any relationship of landlord and tenant with the defendants, defendant No. 1 ceased to be a tenant.
(23) In view of the above discussions, I hold that this court has the jurisdiction to try the present suit. Accordingly, issue No.6 is decided in favor of the plaintiff and against the defendants. Issue No. 7 (24) This issue is decided in favor of the plaintiff and against the defendants since it has not been shown as to how the plaint is not properly stamped and adequate court fees has not been paid. Issues No. 8 & 9 (25) Even during the pendency of the suit, plaintiff had died and she was not able to enjoy the premises during her life time. After her death, her legal representatives vide orders dated 12th July 1993 were brought on record. Ten years have passed and the vacant possession is still alluding the owners of property. Defendant No. I terminated the services of the defendant No.2 w.e.f. 9.2.1984 and defendant No.2 informed the plaintiff vide letter dated 7.3.1984 that defendant No.2 is no more in its service and terminated the tenancy agreement Ex.PX on its own volition w.e.f. 7th March 1984. But the defendants despite such termination of lease did not hand over the vacant possession of the premises to the plaintiff. Having failed in her efforts to get the vacant possession, the plaintiff filed the present suit on 29th September 1984. Now it is 1994.
(26) Since the lease was entered into between M/s Harsha Tractors Limited and plaintiff, I hold that the relationship of landlord and tenant had come into existence only between the plaintiff and the defendant No. 1 and defendant No.2 was having its permissive use under defendant No. 1 which became unauthorised after termination of the lease of defendant No.1 and services of Defendant No.2. Defendant No.1, however, terminated the lease and disclaimed any right to continue as a tenant which it could do as has been held in a full Bench decision of this court in the case of D.C.M. Ltd and another Vs. Lt.Govemor and others 1993 Drj in C.M.Nos.5695 & 6482/93 in F.A.O.(OS) No.217/90 decided on 1.10.93. The Court in that case held, inter-alia, that "this act does not bar a tenant surrendering voluntarily his tenancy to the landlord". After surrendering his tenancy voluntarily the said defendant cannot claim any right akin to tenancy rights in the said premises and in the event of delay in delivering peaceful vacant possession it would be liable to pay damages for use and occupation. Payment, if any, for the month of April 1973 which is alleged to have been made by defendant No.2, that by itself will not make him a tenant under the plaintiff. Further such payment even if made by Defendant No.2 was made in respect of ground floor premises and not for the suit premises i.e. 1st floor. Failure to hand over possession also renders him liable for eviction and payment of damages for use and occupation. I hold that both defendants I and 2 are liable to pay damages for use and occupation after the date of termination of the tenancy w.e.f. 13.1984. Consequently, issues No3 and 9 are decided infavor of the plaintiff and against the defendants.
(27) In the light of the aforesaid discussion, I hereby pass a decree in favor of the plaintiff and against the defendants for recovery of possession of the demised premises i.e. 1st Floor, D-49 Paschimi Marg, Vasant Vihar, New Delhi. I further pass a decree in favor of the plaintiff and against defendant No.1 for payment of arrears of rent from 1.12.83 to 29.2.84 at the rate of Rs.l400.00 p.m. and further pass a decree in favor of the plaintiff and against the defendants No.1 and 2, jointly and severally, for payment of dam ages for use and occupation from 1.3.84 up to the date of handing over of the vacant possession of the premises at the same rate, i.e. Rs.l400.00 per month. Plaintiff shall also be entitled to the costs of the suit.