R.C. Jain, J.
1. Plaintiffs have filed this suit for ejectment of defendant no. 1 company from the suit premises fully detailed in the Plans D, F and G annexed to the plaint, situated in L-Block, Connaught Place, New Delhi, and for recovery of Rs.60,70,000/- on account of mesne profits/damages for unauthorised use and occupation of the premises from 5.11.2003 till the date of institution of the suit and for pendente lite and future mesne profits. The averments in the plaint are that by a registered lease deed dated 30.4.1974 (effective from 5.11.1973) the suit premises were leased out to defendant no. 1 for a period of 30 years at a monthly rent of Rs.4,500/- per month with a stipulation for 10% increase after every decade and also for payment of additional rent at the specified rate for certain additional constructions which could be raised by the lessees after obtaining permission from the local authorities. Though the lease came to an end on 4.11.2003 but despite the termination of the lease by efflux of time, the defendants failed to vacate the suit premises and hand over the actual physical possession thereof to the plaintiffs. According to the plaintiffs, the leased premises are situated in a premier locality of Delhi i.e. Connaught Place and can easily fetch market rent of Rs.50,000,00/- (Rupees Fifty lacs) per month.
2. The suit is being contested by the defendants, inter alia, on the strength of certain preliminary objections about the existence of an earlier lease of the year 1959 by which the premises were leased out by the predecessors of the plaintiffs to the defendants for a period of 15 years and so it is claimed that the present lease deed dated 30.4.1974 is in continuation of the said lease; there has been no partition of the property by metes and bounds between the plaintiffs, their predecessor-in-interesand other co-owners, in whose favor the perpetual lease was granted by the President in the year 1934; the lease granted to the defendants is a lease in perpetuity and not a fixed term lease by virtue of the provisions of Section 105 of the Transfer of Property Act and Section 60 of the Easement Act, and the defendants having made huge constructions and additions and alterations in the leased premises at heavy cost; the suit is not maintainable as no notice to quit under Section 106 of the Transfer of Property Act was served on the defendants; the defendants have acquired the ownership of a part of the property in suit by purchase and so the suit is not maintainable. The main plank of the defense of the defendants, however, is that the lease dated 30.4.1974 though purported to be a single lease, but in effect and in terms of the lease deed, two or more separate tenancies, one in respect of the premises at the ground floor with mezzanine and garage floor and other for the premises at First, Second andartial Third floor were created by the separate Lessers in favor of lessees. The rent was to be divided in respect of these two distinct set of premises as well as in respect of separate Lessers. The rent for the ground and mezzanine floor with garage lock was fixed @Rs.1200/- per month and the rent for the First, Second and partial Third floor was fixed at Rs.3300/- per month. As such, both the tenancies were covered by the provisions of Delhi Rent Control Act, 1958. Even after the increase of rent in terms of the lease deed after ten years, the rent in respect of the first tenancy would still be less than Rs.3500/- per month and so the tenancy would be covered by the provisions of the Delhi Rent Control Act. It is denied that the plaintiffs are titled to maintain the present suit either for ejectment or for award of mesne profits/damages for the alleged unauthorised use and occupation and in any case it is disputed that the suit premises can fetch a rent as high as Rs.50,000,00/- per month.
3. In the replication, plaintiffs have controverter the preliminary objections raised by the defendants in their written statement and have reiterated the averments made in the plaint. An attempt has been made to explain and clarify each and every objection taken by the defendants in their written statement. It is not disputed that before the grant of the present lease, an earlier lease was executed in favor of the predecessor of the defendants, but it is pleaded that once the lease deed dated 30.4.1974 was executed, all rights in law under the earlier lease of 1959 stood surrendered. It is denied that the lease dated 30.4.1974 has the effect of creating more than one leases either on account of mentioning of different rents for different portions for the reason that the rent was payable to the plaintiffs according to their specified share in the suit property as specified in the lease deed or by virtue of the defendants having been allowed to raise additional constructions on the second floor apart of the terrace floor after obtaining permission of the Local Bodies. As the pleadings in the suit were being completed, the plaintiff with the permission of the Court served a set of interrogatories on the defendants to answer certain questions which have a direct bearing on the stand of the parties as also to narrow down the controversy at the trial. The interrogatories have been answered by the defendants, but not to the satisfaction of the plaintiffs because it is alleged that answers to most other interrogatories are vague and unspecific and tend to create confusion in the matter.
4. No later than the trial of suit reached the stage of framing of issues, a vehement plea was made on behalf of the plaintiffs for passing a judgment and decree of ejectment against the defendant from the suit premises under the provisions of Order 12 Rule 6 CPC on the strength of certain admitted facts viz. (1) There being no denial of the relationship of landlord and tenant; (2) the 30 year period for which the lease was granted to the defendant had expired on 4.11.2003 by efflux of time; and (3) theses/contentions sought to be raised by the defendant in their written statement are sham and do not raise any friable issues so far as the relief of possession of the suit premises is concerned. On the other hand, Mr. V.K. Makhija, learned senior counsel appearing for the defendants contended that there are no unconditional and unequivocal admissions made by the defendants which can entitle the plaintiffs to a decree of ejectment without trial. He sought to resist the plea of the plaintiffs for passing judgment and decree for ejectment on the basis of the following pleas:
1) Lease deed dated 30.4.1974 creates more than one distinct tenancies. Rent of some of the tenancies is less than Rs.3500/- per month so those tenancies are covered by the provisions of the Delhi Rent Control Act, 1958 and the present suit for ejectment is not maintainable before this Court;
2) By virtue of the provisions of Section 105 of the Transfer of Property Act and Section 60 of the Easement Act, the lease of 30 years fixed term has become a lease in perpetuity and defendants are not liable to be ejected.
3) Defendants have acquired a part of the property by purchase vide sale deed of March, 1997 and have filed a suit for partition against the co- owners including the plaintiffs.
4) There has been no partition of the suit property either amongst the plaintiffs or other co-sharers of the suit property and, therefore, the suit is not maintainable.
5) The lease has not been determined by serving a notice under Section 106 of the Transfer of Property Act.
5. The first and foremost contention put-forth by Mr.Makhija, learned senior counsel for the defendants is that the lease deed dated 30.4.1974 purports to create one tenancy but in effect there are contained within it several tenancies, some of which carry rent less than Rs.3500/- per month and so those tenancies will be governed by the provisions of Delhi Rent Control Act, 1958 and, therefore, the suit for ejectment is not maintainable in the Civil Court. This defense of the defendant is based on the following submissions.
(i) The lease deed dated 30.4.1974 is in continuation/extension of the previous agreement to lease deed dated 5.8.1959 executed between Shri Shyam Sunder Garg, Smt. Man Kumari, widow of Late Shri Srimandar Das Jain and Usha Rani for the period of 15 yeas w.e.f. 5.11.1998 and so the terms of the said previous lease deed be read into the present lease deed ;(ii) The rent for different portions of the leased premises i.e. one in respect of premises on the ground floor and mezzanine floor with garage block and the other for the premises at the first, second and partial third floor have been separately fixedt Rs.1200/- per month and Rs.3300/- per month respectively and even by taking into account the decadely increase of rent, the rent for the first tenancy i.e. ground floor area including mezzanine and garage block will be less than Rs.3500/- per month;(iii) The rent of the premises was apportioned to each set of Lessers separately and the rent was being paid separately in the name of each Lesser according to his/her apportioned share;(iv) A separate tenancy was created in respect of the additional constructions and extensions made by the defendants in terms of clauses 2(b), (c) , (d) and (e) because the rent as well as the premises have been apportioned on the basis of additional construction/extension and provided for payment of additional rent for each additional construction / extension. The said additional / new constructions / extensions being not the subject matter of the lease, will be deemed to have created a fresh lease.
6. As regards the submission that the lease deed dated 30.7.1974 is in continuation of the previous lease deed dated 5.8.1959 and the term of the previous lease deed should be read into the present lease deed in order to determine whether the said lease deed created one single lease or more than one leases, suffice it would be to mention that having regard to the terms and conditions of the lease deed of 1974, it is manifest that though the defendants continued to be in possession of the suit premises after the expiry of the previous lease, still for all intents and purposes, a fresh lease was created by means of the lease deed dated 30.7.1974 effective from April, 1973. On the execution of fresh lease deed, defendants would be deemed to have surrendered all or any of their rights flowing from the previous lease deed. Reference of the previous lease deed in the present lease deed is for historical reasons only and has no other relevance. The reliance of the defendants on clause 2(b) of the 1959 lease the effect that 'the Lesser shall not be entitled to increase the rent as allowed by the Act of 1958, but shall be entitled to any increase or decrease that may be allowed by any law or laws that may be enacted hereinafter' cannot be availed of by the defendants. Even if for the sake of argument it is assumed that the said clause has any relevance or meaning to the present lease, this would on the contrary show that the parties have not bound themselves strictly by the provisions of Delhi Rent Control Act, 1958 so far as the increase in rent was concerned.
7. In support of their respective contentions both sides have extensively referred to and relied upon the various terms/stipulations contained in the lease dated 30.4.1974. The relevant covenants/stipulations are extracted below for the facility of reference:
NOW THIS DEED WITNESS-ETH as under
That in consideration of the agreement and the rent hereby reserved the Lessers according to their several interests to each of them hereby demise the premises detailed hereinafter in Schedule 'A' and 'B' and delineated on the plan annexed hereto and marked by words G1 to G13, G14 to G17, M1 to M13, T1 to T8, FF1 to FF11, SF1 to SF9, shown in RED, to the said Lessees from 5th November, 1973 on the terms and conditions hereinafter set forth and the said Lessees have agreed to take on lease the said premises on terms and conditions set forth below:
1. That the premises have been let for a period of thirty years with effect from 5.11.1973 to 4.11.2003.
2. That the lessees shall pay the rent regularly by 10th of every month as and when they fall due as detailed below:
That the total rent of the premises shall be computed as follows:-
a) That the total rent of the premises shall be Rs.4,500/- p.m. The lease is one but for the sake of convenience the payment of rent is bifurcated as mentioned below. That the first, second and partial third floors' rent shall be Rs.3,300/- p.m. and the rent of the ground floor of the main block including mezzanine and the garage block as per plans annexed shall be Rs.1,200/- p.m., and that for the purpose of this lease the rent shall be treated as one of Rs.4,500/- p.m. That this rent includes any alterations, modifications, renovations carried out without any increase of present covered area. This rent of Rs.4,500/- p.m is the standard rent. That the lessees agree that the rent thereby reserved is in accordance with law. They further agree not dispute the rate of rent, and the lessees are debarred from raising any pleas of standard rent in any court of law. This rent will be increased by Rs.1,200/- p.m. with effect from 5th November, 1983 i.e. from 5.11.1983 to 4.11.1993, rent will be Rs.5,700- p.m. and from 5.11.1993 to 4.11.2003 the rent will be Rs.6,900/- per month.
b) When the Lessees carry out and construct or extend the mezzanine floors on the ground floor with toilet facilities etc. if allowed by the authorities, rent of the increased carpet area from date of its completion shall be Rs.0.50 paise per sq.foot, per month.
c) That when the lessee construct additional building on the Chinese Kitchen block then from the date of its completion the rent of this portion on the first, second and third floors or other additional floors, if allowed, by the authorities, subject to sanction of the plan, shall be calculated at 50 paise per sq.ft. p.m. for the additional carpet area on such constructions being carried out.
d) That the lessees shall be entitled to carry out further and additional constructions on the garage block and on the terrace thereon and add new floors above the garages, subject to the approval of the sanctioned plans by the authorities. The rent of such additional building on the garage block shall be 60 paise sq.ft. per month for the additional carpet area so constructed.
e) That the lessees shall be entitled to carry out and construct such additional building on the 3rd floor and on the terraces of the main building which may be allowed by the authorities and the rent of such additional building shall be 75 paise per sq.ft. per month for the additional carpet area so constructed.
f) That the maximum rent under clauses 2(b), 2(c), 2(d) and 2(e) according to present calculations would be Rs.3000/- (Rupees three thousand) per month. This rent will be operative as and when the construction is completed in terms of the lease.
g) That the rent hereby reserved under clauses 2(a) shall not be increased even if any increase is allowed by any law at any time, the Lessers shall be entitled to rent only hereby reserved.
h) That in case of construction carried out as provided in clauses 2(b), (c.), (d) and (e) and rent is charged as provided in these clauses, then the rent under these clauses will be increased by 10% after ten years of their completion and another increase of 10% on the original rent will be made after twenty years of their completion. The lease in respect of new construction9s) shall also terminate on 4th November, 2003 and the terms and conditions of this lease deed will also apply to the new constructions.
3. That the Lessees shall be entitled to construct connecting ramps, and effect changes with facades, and provide additional lifts and stairs without any increase in rent.
6. That the Lessees shall spend their own money for the purposes of carrying out such renovations and new constructions and additions etc. as provided herein in clause 2(a) to 2(e) and the Lessers will not reimburse the Lessees any amount so spent. All new constructions, additions and alterations carried out by the Lessees will be the property of the Lessers and the Lessees shall not be entitled to any compensation.
11(iii) That on determination of present Lease, unless released from compliance, the Lessees will handover to the Lessers all such minor additions and alterations in good condition and repair and the Lessees shall not be entitled to any compensation or payment for the value or cost of such alterations.
17(d) If any parts of the demised premises are destroyed or damaged by fire, so as to become unfit, for use for the purposes for which it has been let, the rent hereby reserved or a fair and just proportion thereof according to the nature and the extent of the damage sustained by the property shall on the date of such damage and until the premises shall have been rebuilt or reinstated (which the Lessers shall be bound to do from out of the insurance claim money for such use) be suspended, and cease to bepayable and such abatement of rent shall be in full satisfaction of the claim by the lessees against the Lessers in respect of such destruction or damages.
(e) The lessees in case of fire will be entitled to claim and receive their damages under their own insurance policy taken out by them with regard to their furnishings, fittings etc. etc.
(f) The lessees shall notify the Insurance Company of the Lessers in regard to additions and alterations mentioned above, that may be intended by the lessees to be made in the premises, in order that the policy may not become void.
19(a) That the lessees shall keep the premises in good tenantable condition and shall on termination of the lease handover the vacant possession of the premises to the Lessers or their successors in title in sound condition, fair wear and tear accepted.
(b) That on vacating the premises the lessees shall be entitled to remove all their fixtures, fittings (including sanitary and electrical) air-conditioning unit, lifts, machines, water boilers, furniture etc. but shall not be entitled to remove the constructions additions and alterations of permanent nature as carried out under the terms of the Deed of Lease, and the lessees shall transfer two water connections and two electrical connections (8.26 KW and 4.012 KW) to the Lessers, and the lessees shallnot be entitled to any compensation.
23. That the total rent of Rs.4,500/- p.m. as calculated under clause 2(a) and the tenancy is one but for the sake of convenience and at the desire of the Lessers the lessees have agreed to pay the rent in following proportions:
Shrimati Bhagwati Devi 16-2/3 %Shri Adishwar Dayal Garg 16-2/3 %Shri Ravi Chand Garg 16-2/3 %Shrimati Usha Rani Jain 50%
29. That the rent paid by cheque and sent to the Lessers by registered post at the addresses as given above shall be sufficient proof of payment to the Lessers. In case the cheques are dishonored by the Bank, then it is proof of non-payment of rent to the Lessers.
34. That the proposed company 'Nirula's Corner House Pvt. Ltd., shall become tenants of the Lessers on same terms and conditions as mentioned in this instrument, on their being incorporated with the Registrar of Companies and the interest of the promoters shall pass on to the said company.
8. Clause 2(a) of the lease deed clearly states that the total rent of the premises shall be Rs.4500/- per month. The lease is one but for the sake of convenience the payment of rent is bifurcated as provided and that the first, second and partial third floors will carry rent of Rs.3300/- per month and rent of the ground floor and the main block including mezzanine and the garage block as per Plans annexed shall be Rs.1200/- per month and for the purpose of this lease, the rent shall be treated as one ofRs.4500/- per month. On the face of these specific stipulations in the lease, can it be said that the lease deed dated 30.7.1974 has created more than one tenancies either because it provides for separate rent for separate portions or on account of theent being divisible amongst and payable to the Lessers as per their defined shares. The answer has to be in negative having regard to the intention of the parties at the time of creation of lease and their subsequent conduct. With a view to pin-point the defendants qua their above defense of more than one tenancy, the plaintiffs have served the defendants with a set of interrogatories to elicit the answer of the defendants on certain crucial aspect of the matter. A reference in this regard may be madeo interrogatories Nos. 20, 21, 22, 23, 24 and 25 and replies thereto filed by the defendants, which are as under:-Interrogatory No. 20.In L-Block, Connaught Circus, New Delhi, during the 10-year period next preceding 5.11.2003, how many tenancies (of separate premises) did you have? Please state the number of such tenancies and the description of each including area in sq. feet/metres, the name/s of the owners and the rent per month.
Reply of defendants in the last 10 years preceding 5.11.2003 the defendants had 6 tenancies in L Block, Connaught Circus, Five tenancies under the present plaintiffs and one tenancy with the legal heirs of Late Shri Basheswar Nath. The exact description of the area in square feet cannot be given but approximately the following is the break up of the tenancies. The exact original plans are not in the possession of the defendants.
Break up of the tenancies is:
a. Shri R.C. Garg Rs. 3378/-
b. Late Shri A.D. Garg Rs. 3378/-
c. Smt. Usha Rani Jain Rs. 6756/-
After the demise of Shri A.D. Garg on 27.12.1997, his legal heirs were paid rent as per the Orders of the High Court of Delhi as under:
iv. Smt. Vidya Rani Garg (Wife) - Rs.1756/-(including the share of Shri Sharad Kumar (son) and Smt. Nupur (daughter)
v. Shri Akhil Kumar Garg (son) - Rs.810.72
vi. Shri Sushil Kumar Garg (son)' Rs.810.72
Tenancy with Shri Vijay Sareen, Karta of HUF of Late Shri Basheshar Nath and sons for Flat No. 35-36 and 55-56 Along with attached bathrooms, verandhas on front and back, roof terrace and other appurtenances, common staircase, balcony and also their proportionate share in the open land and garage in the L-Block Building. The same was having a Rent of Rs.3461/-. Subsequently, this portion/share has been purchased by us.
Interrogatory No. 21. In respect of the premises in suit-as described in Lease Ex.P-1 and also in the Plaint-how many separate tenancies (in number) you claim to have held in the 10-year period next preceding 5.11.2003?
Reply of defendants In respect of the lease Exhibit P-1 there are five separate tenancies covered in the lease in the period 10 years preceding 5.11.2003.
Interrogatory No. 22. For each of the (separate) tenancy premises that you allege or claim from any of the plaintiffs in any portion of L-Block, Connaught Circus, New Delhi, please:
1. Describe the premises, including area in sq. feet/metres;
2. Name/s of all the owner/s of the tenancy premises;
3. Document/s in relation to creation and subsistence of the tenancy;
4. Rent payable per month; and
5. Details of amount and mode of payment of rent for the 1 year period next preceding 5.11.2003.
The five sub-questions be answered for each of the tenancy premises (as claimed by you) separately. To illustrate, if you claim that there are four separate tenancies, then the aforesaid five questions will have to be answered in respect of each of those four alleged tenancies (so as to make 20 separate answers.) Reply of defendants. The clause 23 of the lease deed dated 30.4.1974 read with the description of the properties and the agreement dated 19.3.1937 executed by the lease holders amongst themselves shows that the properties under the lease have been divided amongst the Lessers and accordingly they apportioned the rent in the ratio prescribed herein below:
a. Shrimati Bhagwati Devi 16-2/3%
b. Shri Adishwar Dayal Garg 16-2/3%
c. Shri Ravi Chand Garg 16-2/3%, and
d. Shrimati Usha Rani Jain 50%
Interrogatory No. 23. In para 12 of the written statement you say that separate cheques were issued. Were these separate cheques for the undivided interest in the rent for one whole premises or the whole rent for a single and separate premises of a single owner?
Reply of defendants. The answering defendant relies on the contents of para 12 of the written statement. Separate cheques were given under one lease and this was not to be considered as whole rent as the interests of the plaintiffs are separate under one lease.
Interrogatory No. 24. Is it or is not a fact that the various cheques issued to the plaintiffs and their predecessors bore the following percentage to the total monthly rent:
i) Usha Rani 50%
ii) Ravi Chander 25%
iii) Adishwar Dyal Garg 25% till 1997 December where after the 25% of Shri Adishwar Dyal Garg was divided amongst his legal heirs? If not, please point out what according to you was amount paid by you to each of them individually every month, and what percentage it (the amount paidto each) bore to the total rent of the premises?
Reply of defendantsThe separate cheques bearing a percentage of 50% of Usha Rani, 25% for Ravi Chand Garg and 25% for Adhishwar Dyal Garg were given every month as per their ownership status. From December, 1997 25% of the share of Shri Adhishwar Dyal Garg was further divided by a partition suit. Making it five cheques/leases.
Interrogatory No. 25 Take as a sample, cheques paid during any month in the year 2002 and state: (1) the premises in respect of which it was paid, (2) who was the owner/s (whether of part or whole and if so, of what share) of those premises and (3) what was the rent per month for those premises."
Reply of defendants During the period 2002 rent was paid to the plaintiffs as under:-
(i) R.C. Garg Rs.3378/- for his 25% share in the premises which was leased out to the defendants. Rs.6756/- which was 50% share in the premises of Usha Rani Jain. Rs.1756.56 which was 13% share in the suit premises of Vidya Rani Garg. Rs.810.72for 6% share of Akhil Kumar Garg and Rs.810.72 for 6% share of Sushil Garg the amounts mentioned above also include the enhance rental of the separately constructed areas.
(ii) and (iii) Please refer to our reply to interrogatories no. 22. 'As would be seen from the reply, the defendants have either avoided to give a clear cut answer or have given evasive, non-specific and confusing answer to the interrogatories in a vain attempt to show that more than one tenancy was created. This Court ona perusal of the replies of the defendants to the said interrogatories has no hesitation in holding that the parties always treated the lease as one and only one.
9. Mr. Makhija, learned senior counsel on the strength of clauses 2(b), 2(c), 2(d) and 2(e) of the lease deed (supra) has next urged that the lessees have carried out and constructed additional building on third floor and the terrace of the of the main building which were allowed by the authorities and the rent of such additional premises/constructions would come to Rs.3000/- calculated @75 paise sq.foot. On the basis of sub-clause (g) he urged that the rent for this additional construction was beyond te terms of the lease and so a separate lease/license of the said premises will be deemed to have been created.
10. The question as to whether and under what circumstances a single indivisible contract of tenancy can be split and can be said to create more than one tenancy or when the two contemporaneous lease deeds executed between the parties can be deemed to create a single lease, has been the subject matter of various decisions of the Apex Court and various High Courts. In the case of Habibunnisa Begum and Ors. v. Doraikannu Chettiar (Dead) By Lrs., , the Supreme
Court held that 'the lais that where there is a single indivisible contract of tenancy, it cannot be split by a court unless there is a statutory provision to that effect. In the present case it is not disputed that the contract of tenancy is a single indivisible contract to Doors Nos. 27 and 28. It is also not disputed that there is no provision in the Tamil Nadu Buildings (Lease and Rent Control) Act empowering the court to order partial ejectment of a tenant from the premises by splitting the single indivisible tenancy For these reasons it was not open to the High Court to split the tenancy and order partial ejectment of the tenant from the premises. 'In the case of Charanjit Lal Mehra and Ors. v. Kamal Saroj Mahajan and Anr. 118 (2005) DLT 396 (SC) the Supreme Courtheld that in the case of a joint and composite tenancy it was not open for the tenant to split the rent into four portions so as to bring the leased premises within the fold of the Rent Control Act. In the case of Mercury Travels (India) Ltd. v. Mahabi Prasad and Anr., (DB), a Division Bench of this Court held that merely because there are two lease deeds in respect of premises, it will not necessarily follow that intention was to create two tenancies and that even for creating one tenncy, in a given case, two lease deeds can be executed. The Supreme Court in the case of SK. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate, dealing with a converse situation held as under:
"A co-sharer cannot initiate action for eviction of the tenant from the portion of the tenanted accommodation nor can he sue for his part of the rent. The tenancy cannot be split up either in estate or in rent or any other obligation by unilateral actof one of the co-owners. If, however, all the co-owners or the co-Lessers agree among themselves and split by partition the demised property by metes and bounds and come to have definite, positive and identifiable shares in that property, they become searate individual owners of each severed portion and can deal with that portion as also the tenant thereof as individual owner/Lesser. The right of joint Lessers contemplated by Section 109 comes to be possessed by each of them separately and independenly. There is no right in the tenant to prevent the joint owners or co-Lessers from partitioning the tenanted accommodation among themselves. Whether the premises, which is in occupation of a tenant, shall be retained jointly by all the Lessers or they would partition it among themselves, is the exclusive right of the Lessers to which no objection can be taken by the tenant, particularly where the tenant knew from the very beginning that the property was jointly owned by several persons and that, even the was being dealt with by only one of them on behalf of the whole body of the Lessers, he cannot object to the transfer of any portion of the property in favor of a third person by one of the owners or to the partition of the property. It will, however, be open to the tenant to show that the partition was not bona fide and was a sham transaction to overcome the rigors of Rent Control laws which protected eviction of the tenants except on specified grounds set out in the relevant statute."
It also lays down that it is open to the owners to apportion the rent inter se, but if no such apportionment is made, the obligation of the tenant remains single and in that situation, the Lesser will not be allowed to split the tenancy by recovering the rent of a part only; nor can a purchaser of a part of the property insist on payment of his part of the rent to him.
11. Bearing in mind the legal position flowing from the above decisions and having regard to the totality of the facts and circumstances of the present case and the terms and conditions of the lease deed, and that the defendants all through have treated the lease of the entire premises as one though having paid rent to the Lessers separately according to their apportioned share. Merely because the lease deed provided for separate rents for different portions of the leased premises or that the rent was disable and has been apportioned to the Lessers according to their shares and interest in the suit premises or that the lease deed provided for separate rent for additionally constructed portions after the execution of the lease deed are no grounds to presume that the lease deed created more than one tenancy. The inescapable conclusion is that the lease deed dated 30.4.1974 created one and only one joint, composite and indivisible lease by the Lessers in favor of the lessees. Consequently it cannot braid that any of the alleged tenancy is covered by the provisions of the Delhi Rent Control Act and the present suit of ejectment is not maintainable.
12. Another plea of the defendants is that they have become statutory tenants within the meaning of Section 105 of Transfer of Property Act and Section 60 of the Easements Act, and, therefore, they are not liable to ejectment. For this, the defendants wants to rely upon and take advantage of the position that they were instrumental in getting the suit premises de-requisitioned from the Ministry of defense, Government of India, and have incurred a huge expenditure amounting to Rs.1.76 crores in developing the suit property to the present status and the plaintiffs had declined to reimburse the defendants of the said amount and still a part of the amount is outstanding against the plaintiffs. It is alleged that the defendants had spent such a huge amount on a clear-cut understanding that either the amount would be reimbursed or the property would be sold to the defendants. It is stated that the construction and renovation carried out by the defendants are of permanent nature and, therefore, it is rid culous to suggest that the defendants should dismantle the same and take it somewhere else. Further that the constructions so raised and renovation so carried was after taking sanction of the local authorities. In support of this above contention, Mr. Mahija has relied upon a number of Supreme Court and High Courts decisions. Section 60 of the Easements Act puts an embargo on the right of the licensor to revoke a license under two circumstances viz (i) if the license is coupled with a transfer of property and such transfer is enforced; (ii) the licensee acting upon the license has executed a work of permanent character and incurred expenses in the execution. In the case of Thakur Prasad v. The State of Iron and Steel Co. Ltd. AIR 1976 PATNA 156,he court answered a basic question about the difference between a lease and license as under:
"In case of lease, interest in the property is transferred but in case of license the right to enjoyment in the property in a particular manner and for a particular purpose is only given. It is further well settled that exclusive possession coupledwith transfer of a right to enjoy the property is the test for determining as to whether the disputed right is a leasehold or is merely a license. If the defendant has taken the property only to use it without any exclusive possession coupled with a trasfer of right, to enjoy the property then certainly it will amount to a license. But if, on the other hand, control of the property has been given exclusively to the defendant in the disputed property and exclusive possession has been parted with transfr of interest in it, then it will amount to a lease.
Whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor or licensee the decisive consideration is the intention of the parties. This intention has to be ascertained on a consideration of all the relevant provisions in the agreement. In the absence, however, of a formal document the intention of the parties must be inferred from the circumstances and conduct of the parties."
13. The next authority relied upon is in the case of Sukhbasi Lal v. Durjan Singh where on the facts of the said case, the Court took a view that if the irrevocability of the license in favor of the defendant was limited to the actual site on which his construction stood and not to the whole of the open land which was the subject matter of the lease. Reliance is also placed on two Supreme Court decisions one in the case of Capt. B.V. D'Souza v. Antonio Fausto Fernandes and the other in the case of Smt. Rajbir Kaur and Anr. v. M/s S. Chokosiri and Co. . In these cases the Supreme Court laid down that it is the operating intention of the parties which determines the question as to whether particular grant is a lease or license. Reliance is also placed on yet another decision of the Supreme Court in the case of M.N. Clubwala and Anr. v. Fida Hussain Saheb and Ors. where once again the
question arose as to whether the grant constituted a lease or license and the Court on the consideration of the terms and conditions of the grant and various other factors held that the stall holders were licensees of the appellant because the intention of the parties was to bring intoxistence merely a license and not a lease and the word 'rent' was used loosely for 'fee'.
14. Mr. Arun Mohan, learned senior counsel representing the plaintiffs has not disputed the legal proposition flowing from these authorities but has vehemently urged that none of these authorities can be applied to the facts of the present case inasmuch as the lease deed itself takes into account the aspect of any additions, alterations or renovations by the defendants which would form an integral part of the lease granted by the plaintiffs to the defendants vide lease Agreement dated 30.7.1974. It is pointed out that the additional construction raised by the defendants are to the extent of 2,486 sq.ft. in all and would constitute less than 9% of the area originally leased. The question as to whether the subsequently raised construction by the defenants can be said to create a license more particularly on the face of the terms and conditions of the lease deed is not open to any controversy. The additional construction though made by the defendants at their expense and with the sanction of the local authorities were made strictly in accordance with terms of the lease and the express approval and consent of the plaintiffs contained in the said lease deed. On the face of this, it is too far-fetched to hold that any irrevocable license was created favor of the defendants in respect of the subsequently constructed area. Therefore, this court has no hesitation in so holding that no license can be said to have been created by the plaintiffs in favor of the defendants of the premises/constructions which came to be raised by the defendants. Those constructions would form an integral part of the lease created by the plaintiffs in favor of the defendants. Therefore, provision of either Section 105 of the Transfer of Property Act or Section 60 of the Indian Easements Act are not at all attracted. The defense is totally bereft of any merits.
15. The next plea put forth by the defendants in their attempt to resist the passing of the ejectment decree from the suit premises is that the plaintiffs have no right to maintain the present suit for ejectment of the defendants because the entire property of which the suit property is a part has not been partitioned by metes and bounds either amongst the plaintiffs themselves or with the co-owners of the property e.g. Sareens and Khannas and the present defendants have also become co-owners. This pleas based on a submission that the partition deed referred to in the plaint has never been implemented as the Land and Development Officer did not accept the said partition and therefore the plaintiffs themselves had filed a suit inter se seeking partition of the suit property and other co-sharers. It is also pointed out that defendant has also filed a suit for partition (Suit No. 1172/04) against the plaintiffs and other co-sharers of the property and, therefore, till the decision of that suit, plaintiff cannot seek ejectment of the defendants. In the opinion of this Court, this plea holds no water and is liable to be rejected because as far back as in the year 1937, by means of a registered partition deed dated 19.3.1937, the land stood partitioned between the perpetual lesses i.e. predecessor-in-interest of the present plaintiffs, Sareens and Khannas which is apparent from the sale deed dated 26.3.1997 executed by Sareen in favor of the present defendants transferring the specified share constituting a part of the entire property in favor of the defendants. The partition suit filed by the defendants after the filing of the present suit appears to be nothing but a clever device on the part of the defendants to create an artificial defense for the purpose of the present suit. Assuming for the sake of argument that the property of which the suit premises are a part is not partitioned by metes and bounds amongst the co-owners, that is of no legal consequence because by means of the lease deed date 30.4.1974 specified premises were leased out to the defendants for a specified term of 30 years and the defendants cannot be allowed to say at this stage that they will not hand over back the possession of the suit premises to their landlords because there has been no partition by metes and bounds amongst the co-owners of the whole property of which the suit premises formed part of.
16. Mr. V.K. Makhija, learned senior counsel representing the defendants has next urged that no decree of ejectment of the suit premises can be passed at this stage or in any case till the decision of Suit No. 1172/2004 filed for partition of the property on the ground that they have become co-owners of the suit property based on a sale deed of March, 1997 through which they have purchased a certain part of the share of Mr. Sareen of the entire property. In the opinion of this Court, this subsequent suit filed by the defendants is not of any legal consequence because the sale deed pertains to the specific portion and super-structure sold to the defendants. Assuming for the sake of arguments that 1937 partition has not legally effectuated, the sale deed of 1997 will only have the effect of granting of only impartible interest in the land sufficient to support the transfer of super-structures. They cannot be considered to have acquired the suit premises which are the subject matter of the present lease. The defendants cannot resist its ejectment from the suit premises on this ground. Such a plea is otherwise incongruous because if a person who is a tenant of 10,000 sq.ft. purchases an adjacent 100 sq.ft. of area, he cannot be allowed to hold on to the 10,00 sq.ft. of area on the premises that he has become the owner of 100 sq.ft.
17. Though a plea was taken in the written statement about non determination of the lease because no notice to quit as envisaged under Section 106 of the Transfer of Property Act has been served on the defendants before filing of the present suit, but this aspect was not pressed at the hearing. Even otherwise, it is a well settled proposition of law that when the term of the lease has expired by efflux of time, there is no need for a landlord to determine the lease by serving quit notice This has beeno held by this Court in the cases of Delhi Jal Board v. Surendra P.Malik 2003 (68) DRJ 284 (DB) and Canara Bank v. Smt. Shanti Vaish (DB).
18. The object of Order XII Rule 6 CPC is to enable a party to obtain a speedy judgment, at least, to the extent of the admissions of the defendant to which relief the plaintiff is entitled to. The rule permits the passing of the judgment at any stage without waiting for determination of other questions. It is equally settled that before a Court can act under Order 12 Rule 6, the admission must be clear, unambiguous, unconditional and unequivocal. Admissions in pleadings are either actual or constructve. Actual admissions consist of facts expressly admitted either in pleadings or in answer to interrogatories. In a suit for ejectment, the factors which deserves to be taken into consideration in order to enable the Court to pass a decree of possession favor of the plaintiff primarily are:
1) Existence of relationship of Lesser and lessee or entry in possession of the suit property by defendant as tenant;
2) Determination of such relation in any of the contingencies as envisaged in Section 111 of the Transfer of Property Act.
19. The law as to when a decree of possession can be passed in favor of the plaintiff on the existence of the above factors is well laid down by a catena of judgments of the Supreme Court and various High Courts. In the case of Uttam Singh Duggal and Co. Ltd. v. United Bank of India and Ors. the Supreme Court held that when a statement of admission is brought before the Court, as long as the party making the statement is given sufficient opportunity to explain such admission, judgment admission can be passed if the explanation is not accepted by the Court. The Supreme Court reiterated the legal position that no court should unduly narrow down the scope of Rule 6, the object of which is to enable a party to obtain a speedy judgment. It also ruled that admissions generally arise when a statement is made by a party in any of the modes provided under Sections 18 to 23 of the Evidence Act, 1872 and this may be considered as actually made if they are either in the pleadings or in answer the interrogatories or implied from the pleadings by non-traversal.
20. A Division Bench of this Court in the case of Delhi Jal Board v. Surendra P. Malik (DB) approved a decree for recovery of possession of a certain premises passed by the trial court under Order 12 Rule 6 CPC though a dispute was raised in regard to the service of quit notice by the tenant which the trial court had negatived by holding that there was service of notice. The court also held that mere acceptance of rent by landlord could neither renew tenancy nor create a new tenancy. Another Division Bench of this Court in the case of Rajiv Sharma and Anr. v. Rajiv Gupta, (DB) held that if a tenant took vague and inconsistent pleas in written statement and reply to application under Order 12 Rule 6 CPC and failed toadies any dispute or friable issue, a judgment and decree for possession could be passed.
21. Mr. V.K. Makhija, learned senior counsel for the defendants has not disputed the legal position emerging out of the above decisions but has vehemently urged that on the basis of several pleas and disputed questions raised by the defendants, several friable issues arise in the present case which can only be answered after a full-fledged trial and so, this is not a fit case where this Court should pass a decree of possession at this stage of the proceedings without any trial. Undoubtedly the defendants ad set up several pleas which could at first sight appear to give rise to some issues also but the core question for consideration is as to whether the pleas so put-forth are sham or have any substance or can be said to raise any friable issues. It is will settled that sham pleas cannot raise a friable issue. It is not uncommon that tenants facing a suit for ejectment raise several irrelevant/non-existent and sham pleas with an oblique motive of delaying and defeating the relief of ejectment, which haotherwise accrued in favor of the landlord. In the present case defendants have not disputed the existence of relationship of landlord and tenant created by the lease deed dated 30.4.1974 and that they occupied the suit premises in terms of the lease deed as also the factum of the said lease deed having expired in 2003, i.e. after the expiry of the 30 years period for which the lease was created. These are the basis facts/admissions which by no stretch can be said to have been controverter or disputed by the defendants. The defendants are, therefore, not entitled to resist the suit, at least, so far as the relief of possession is concerned by raising those pleas and by filing subsequent suit for partition.
22. This Court on a consideration of all the relevant facts and circumstances of the case, material obtaining on record and in view of the foregoing discussion on various pleas raised by the defendants, has no hesitation in holding that there is no dispute between the parties in regard to the existence of relationship of Lesser and lessee and that the lease created by the plaintiffs-Lessers in favor of the defendants has expired/stood determined by efflux of time within the meaning of Section 111 of the Transfer of Property Act thereby entitling the plaintiffs to a decree of possession of the suit premises forthwith and without undergoing the exercise of the trial. The only issue which will be left out for trial/enquiry would be in regard to the quantum of damages/mesne profits, if any, to which the plaintiffs may be entitled from the defendants for the period during which they remained in unauthorised occupation of the suit premises after the determination of the lease. That would be a subject matte of enquiry under the provisions of Order 20 Rule 12 CPC.
23. In the result, a decree of possession is hereby passed in favor of the plaintiffs and against the defendants in respect of the suit premises fully detailed in Plans D, E, F and G annexed to the plaint, situated in L-Block, Connaught Place, New Delhi.
The defendants are, however, allowed two months time to remove all fixtures, fittings (including sanitary and electrical), air-conditioning units, lifts, machines, water boilers, furniture's etc., but not the constructions (additions and alterations to firmament nature as carried out by them) under the terms of the lease deed and hand over the vacant and peaceful possession of the suit premises. The defendants shall also transfer two water connections with two electrical connections as per the conditions of the lease deed at the time of handing over the vacation possession.