D.K Kapur, C.J:— This is a regular second appeal arising out of a suit for possession and recovery of damages for wrongful use and occupation. The property involved is a portion of building No. 2674 Bhagat Singh Street, Chuna Mandi, Paharganj, New Delhi which was acquired evacuee property auctioned to the plaintiff on 26th June, 1959. The highest bid of the plaintiff No. 1 was accepted and a sale certificate effective from 28th December, 1960 was issued on 28th February, 1965. The claim was that the first defendant was in occupation of a portion of the property and his status was that of a trespasser because his possession was never confirmed or regularised by the Custodian Evacuee Property/Managing Officer. Alternatively it was pleaded that he was not protected as he had not paid the arrears of rent to the Custodian. As far as the second defendant was concerned, it was claimed that she was in occupation on behalf of the first defendant and she had no independent right at all in the property. The court framed certain issues on which the decision was that the plaintiff was the owner of the property and that the defendant was not a tenant and accordingly the suit was decreed. On appeal the judgment and decree were confirmed by the Additional District Judge.

2. The main controversy in the case was about the rights of the appellant in the property. Being an acquired evacuee property, the ‘lawful occupants in the property were protected by section 29 of the displaced persons (compensation & rehabilitation) act, 1954. That section states that the class of persons notified under it would become tenants and would not be liable to ejectment for a period of two years. Acting under this provision the Central Government issued SRO 2219 declaring the persons who were protected by the Act. Those persons were (a) lawful occupants from whom no arrears of rent was due; (b) lawful occupants who cleared the arrears of rent within sixty days of the transfer, (c) displaced persons having preferred claims in excess of the arrears of rent and (d) displaced persons having verified claim but in whose case the arrears of rent exceeded the amount of compensation. Then he had to pay the extra amount within sixty days of the transfer.

3. Clearly if the appellants were ‘lawful occupants’ they will be protected under Section 29. So, the only point for consideration before the court is whether the appellants were lawful occupants. All other points are of minor importance.

4. The case of the appellants is that in order to show that they were lawful occupants a survey report of 1-4-1949 was called for but was not produced. It was alleged that the Department's witness who had been summoned took the stand that the appellant was not shown in the survey report. An application was moved under Order 41 Rule 27 before the lower appellate court to show that the survey report showed that Baldev Raj was in occupation in 1949. The survey report appears to convey his occupation. This application was rejected by the lower appellate court. The counsel for the appellant urges that this application under Order 41 Rule 27 was wrongly rejected as the appellant was diligent and did everything possible to get the survey report before the court but due to some wrong information the Custodian Department never produced the survey report. I am inclined to hold that the appellant could not be denied the opportunity of reference to the survey report if it had to be seen for proving the nature of occupation. The report, however, is of 1949 and though it indicates that there was a move to give rent receipts to the persons shown in the survey report there is no evidence to show that any action was taken resulting in the acceptance of the persons as tenants.

5. The real controversy in this case has to be settled following the provisions of section 29. Though I am sifting the analysis which has been made by the Additional District Judge. In order to show what the section has intended to mean, I have to refer to the section itself. It provides as follows:—

“Where any person to whom the provisions of this section apply, is in lawful possession of any immovable property of the class notified under Sub-section (2) which is transferred to another person under the provisions of this Act, then, notwithstanding anything contained in any other law, such persons shall, without prejudice to any other right which he may have in the property, be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held the property immediately before the transfer”.

6. It is unnecessary to produce more of this section. The purpose of this section is to transform a person in occupation of the property into a tenant on specified terms and conditions. Such persons are to pay rent on the same terms and conditions as they were paying earlier. The question to be seen is as to who are the persons who become tenants under this provisions. Obviously, they had to be persons who were formerly paying some amount either as allottees or as tenants to the Custodian and subsequently became the allottee or tenants of the Government of India after the evacuee property was acquired. After the subsequent transfer outside the compensation pool, the legislature had to provide as to what their rights were to be. It is a matter of common knowledge that refugees and others were occupying the properties which belonged to the evacuees. Such persons might be tenants long before the evacuee left the country. All the refugees who occupied any evacuee property might have nothing to do with the original evacuee. In such cases, the Custodian either recognised the earlier tenants or recognised the refugees as his own allottees. If such persons became allottees, they were protected by Rule 14 of the Administration of Evacuee Property (Central) Rule 1950. That rule provided that a lease or allotment would not be varied except on certain specified terms. That is to say, on the ground is fraud allotment of more than one evacuee property or the occupation of more than necessary space or if the allottee, had built another residence and so on. In other words, the allotment was a kind of protected occupation guaranteed under the rules framed under the Administration of Evacuee Property Act. These two classes of persons, namely, the allottees and tenants were to continue during the continuance of the Administration of Evacuee Property Act, 1950. When such properties were acquired by the Central Government under the Displaced persons (Compensation & Rehabilitation) Act, 1954, provision regarding them was made in rule 102 of displaced persons (compensation & rehabilitation) rules, 1955. This enabled allotment and leases to be cancelled by the Managing Officer or the Managing Corporation. There are other provisions in the 1954 act showing how the managing officer, etc. were to deal with the allottees and lessees. There was, therefore, every reason to make a provision in Section 29 of the Act to provide for the ultimate fate of those protected persons after the property was transferred from the evacuee pool to the acquired pool and them to the private citizens. That is the history in short and purpose of Section 29.

7. This brings me back to the ultimate question whether the present appellants are protected, which in turn will depend on whether they are, in fact, allottee or tenants. It may be that they were shown in a report in 1949. It may be that they continued to occupy the property even thereafter but what was their status? On what kind of arrangement were they occupying this property? Were they tenants, were they licensee or were they merely continuing in occupation untouched by the strong arms of the Custodian? The answer to this has to depend on the nature of evidence produced.

8. The Court below has found as a fact that the appellants are not lawful occupants. They are not lawful occupants, not because they are not there but because there is no arrangements showing how much rent they were to pay and what was the order allotting the property to them and what was the arrangement between them and the Custodian. This is the query that remains unanswered.

9. Normally, we have a written document of some sort or at least a monthly receipt showing either the existence of the allotment or the lease. The only receipt showing any payment which is forthcoming on this record is Ex. D-1. Significantly, this document Ex-D-1 is dated 8-3-67. It shows that payment of Rs. 229.18 by Baldev Raj in respect of the property in question for “a/c”. It does not show any rate of rent, nor does it show any previous payment. It is impossible to find from this receipt that this sum was paid against any arrear and if so what was the rate. Significantly this payment was made seven years after the sale took place. So, it has little evidentiary value to establish the existence of allotment. There is no other document produced by the appellants during the trial to show their status.

10. As already mentioned, an application under Order 41 Rule 27 was filed by which it was sought to establish the survey report of 1949 and also the occupation of the appellants or at least of appellant No. 1. However, that document by itself does not show that he was recognised as an allottee or that he became a lawful occupant as opposed to a mere occupant. It is very important to notice the difference between occupants and the lawful occupants who become tenants. If there is an allottee at the rate of Rs. 15/- per month, he would become tenant @ Rs. 15/-. If there is a tenant of the Custodian at the rate of Rs. 15/- he will become a tenant of the purchaser at the same rate. If there is a mere occupant, i.e a person living in the property who is not removed by the Custodian on humanitarian grounds, he cannot become a tenant because there is no rate of rent or no protection. Such a person is only occupying and therefore he cannot be converted into a tenant. That is the status of the appellants that has emerged from the evidence. It may be unfortunate that perhaps some papers cannot be traced out but we have to decide the matter on the material there is, As long as there is no evidence of contract by which Baldev Raj became a tenant or an allottee, it follows that he is not a lawful occupant within the meaning of Section 29. Learned counsel has referred to cases where it has been held that the purpose of Section 29 is to protect the occupants by making them tenants but, though a reference is made in those case when even licensees are protected. An analysis of the cases show that the licensee is in reality an allottee. In this connection, the definition of allotment under Section 2(a) of the Administration of Evacuee Property Act 1950 can be reproduced with advantage. It reads:

“(a) “allotment” means the grant by a person duly authorised in this behalf of a right of use or occupation of any immovable evacuee property to any other person, but does not include a grant by way of lease.”

11. The cases have held that this allotment is not a conveyance of any interest in the property and is only a licence for utilisation of the evacuee property in question. This is the type of licence that makes a ‘lawful occupant’ who in turn it protected under Section 29 of the Act on transfer of the property outside the evacuee pool. At that stage he has to pay arrears of rent within sixty days which are outstanding in favour of the Custodian and the Central Govt. and if he does pay, he becomes tenant of the purchaser. One of the points decided in this case is that the appellant did not pay the amount within sixty days and therefore, he cannot become tenant under Section 29. As I have discussed, it is difficult to determine what the appellant had to pay because there was no agreement to pay anything but assuming there was the amount had to be paid within sixty days calculated from the date of the confirmation of the sale. Undoubtedly there is no notice to the appellant but how this operates is as follows.

12. There was an auction in July, 1959. The occupants would come to know that auction has taken place. Once the sale is confirmed they had to pay. Even if they had no notice they should have paid in abundant caution. But in view of the other discussion it seems that they had to pay nothing because they were not occupying the property under an allotment or lease. As there is nothing on record to show any payment between 1949 and 1967, I have to dismiss the appeal but leave the parties to bear their own costs.

13. Learned counsel for the appellant undertakes that the property will not be handed over to anyone else if some time is granted. On this undertaking, in the interest of justice, I would direct the respondent/decree-holder not to execute the decree for possession for three months to enable the appellants to move to their own house, which, according to the respondent, they have now acquired.