Dr. Mukundakam Sharma, J.— The present suit was instituted by the plaintiff seeking for a decree of possession of the open plot with a boundary wall and flooring over half portions numbering WZ/36-A, (New Municipal No. 116-B), Ganesh Nagar Extn., Najafgarh Road, New Delhi) alongwith a decree for payment of Rs. 30,000/- as damages for use and occupation of the plot.

2. It is stated in the plaint that the predecessor-in-interest of the plaintiff namely, late Smt. Sushila Devi Bhalla, who is the mother of the plaintiff inducted the defendant as a tenant in respect of the aforesaid suit property at a monthly rent of Rs. 1,000/- payable in advance on or about 10th day of each English calendar months. The aforesaid lease was granted for 11 months in the first instance which was renewable at the option of the lessee for a further period of 11 months and thereafter with the mutual consent of both the parties on terms and conditions being agreed upon at that time. Clause 7 of the said deed provided that the lease could be terminated on two months notice by either side whereas Clause 8 thereof provided that the lessee would not carry out any structural additions or alternations to the said premises without the consent of the lessor but could make cabins, partitions etc. as mutually agreed upon from time to time by both the parties in writing. It is stated in the plaint that after execution of the aforesaid lease deed the same was never renewed and it came to an end by efflux of time. It is also stated that late Smt. Sushila Devi Bhalla, the mother of the plaintiff expired on 19.11.1982 and after her demise the aforesaid suit property vested absolutely on the plaintiff and that in respect of the same a Relinquishment Deed was also executed by the two sisters of the plaintiff but as a measure of abundant caution and without prejudice to the rights and contentions, a Registered notice dated 2.4.1985 was issued to the defendant by the plaintiff terminating the tenancy with effect from 9th day of May, 1985 or in any case with effect from 30.4.1985 It is further stated that in spite of receipt of the said notice, the defendant did not vacate the premises and failed to handover vacant possession of the suit property to the plaintiff and, therefore, the present suit was filed seeking for the aforesaid reliefs.

3. The suit was contested by the defendant by filing a written statement contending, inter alia, that the defendant had sent a cheque for entire arrears of rent including the amount of Rs. 30,000/- for the period from 10.12.1982 to 9.5.1985 which was encashed and, therefore, the amount of Rs. 30,000/- as claimed in the plaint is not due and payable any more.

4. It was also stated that the defendant is a tenant is respect of the entire suit property including pacca flooring, boundary wall and constructed roof thereon alongwith bath and latrine therein and, therefore, the said property would come within the ambit of the definition of ‘premises’ as laid down in Section 2(1) of the Delhi Rent Control Act and, therefore, the present suit filed in this Court was not maintainable. It was also stated that the mother of the plaintiff kept on receiving the rent from the defendant in respect of the said lease deed till she died on 19.12.1982 and, therefore, the lease deed could not have expired by efflux of time and that the tenancy continued, in terms of which for termination of the tenancy two months notice was required to be served on the defendant and in absence thereof the suit is liable to be dismissed. It was also stated that no suit for mandatory injunction could be filed in the year 1985 as constructions were made by the defendant some time in the year 1973-1974 and, therefore, the suit is barred by limitation and also by the principle of promissory estoppel,

5. In the light of the aforesaid pleadings of the parties, the following issues were framed in the suit:—

ISSUES

1. Whether the suit is properly valued for the purposes of Court fees and jurisdiction? OPP

2. Whether the property in suit is ‘Premises’ with the meaning of the said term in the Delhi Rent Control Act? OPP

3. If issue No. 2 is answered in the affirmative, whether this Court has jurisdiction to entertain the suit.

4. Whether the suit for damages is maintainable? OPP

5. Whether the predecessor of the plaintiff have waived their rights by their own conduct to file the suit? OPP

6. Whether the plaintiff can maintain the suit when admittedly there are other co-owners of the premises in dispute? OPP

7. Whether the plaintiff is estoppel by his own conduct of accepting rent and not raising any objection before service of notice of termination dated 2.4.1985? OPP

8. Whether the notice dated 2.4.1985 terminating the tenancy is bad in law? OPP

9. Relief.”

6. The parties led their evidence and on behalf of the plaintiff four witnesses were examined whereas the defendant examined only one witness. Having regard to the issues framed and ia the light of the evidence adduced by the parties, I proceed to dispose of the suit after hearing the learned counsel appearing for the parties. It is to be made clear at this stage that the Counsel for the defendant during the course of his submission restricted his arguments only in respect of Issues No. 2, 3, 4 and 8. Yet, I proceed to dispose of the suit issue-wise.

ISSUES No. 1, 2 & 3:—

1. Whether the suit is properly valued for the purposes of court fees and jurisdiction? OPP

2. Whether the property in suit is premises within the meaning of the said term in the Delhi Rent Controller Act? OPP

3. If issue No. 2 is answered in the affirmative, whether this Court has jurisdiction to entertain the suit.

7. The aforesaid three issues are inter-connected and, therefore, I propose to lake up and deal with the said issues together.

8. The lease deed which was proved in evidence as Ex. P-4 gives the description of the property which was leased out in favour of the defendant as open plot of land measuring 1000 sq. yds. founded by a boundary wall and a pacca flooring with bricks in half of the portion. The witnesses produced on behalf of the plaintiff have categorically stated in their depositions that at the time when the aforesaid lease deed was executed and the defendant was inducted as a tenant in respect of the said suit property, it was open plot of land bounded by wall with a paeca flooring with bricks in half of the portion of the suit property. The defendant could not bring anything contrary to the aforesaid facts during the cross-examination of the said witnesses and also in the examination-in-chief of the defendant's own witness. The only witness of the defendant examined in the suit said nothing contrary in his deposition. Rather the said witness in cross-examination has specifically admitted that when the property was leased out, there was boundary wall on three sides and there was brick flooring in half portion of the property and that Clause 2 of the lease deed Ex. P-4 was correct. He has also admitted in his evidence that the tenancy was for eleven months and that there was no further lease deed executed by the parties. It is thus established that at the time when the lease deed was executed in favour of the defendant by the mother of the plaintiff there was no building on the suit property as envisaged within the ambit of the definition of premises as given in the Delhi Rent Control Act. In terms of the clause of the lease, the lessee was not permitted to carry out any structuraladditions or alterations to the said premises without the consent of the lessor. The defendant has failed to bring on record any evidence showing that any such consent was given by the lessor for making any additions or alterations to the said premises. Therefore, in my considered opinion the suit property would not come within the ambit of the meaning of the word term “Premises” as defined in the Delhi Rent Control Act and, therefore, the said Act shall have no application to the facts and circumstances of the present suit. In terms of the definition of ‘Premises’ as occurring in the Delhi Rent Control Act there should necessarily be building or part of a building so as to bring the property within the ambit of the definition of ‘Premises’. Even if there was some construction by the tenant after the execution of the lease deed of the land the same would not confer or bestow any protection to the tenant and he cannot seek to state that the property is a ‘premise’ as defined in the said Act.

9. So far the issue with regard to the payment of court fee is concerned, no evidence was led nor any argument was made on behalf of the defendant to prove that required court fee is not paid in the present suit. Therefore, the aforesaid three issues are answered in favour of the plaintiff and against the defendant holding that the suit is properly valued for the purposes of court fee and this Court has jurisdiction to try and decide the present suit. It is also held that the aforesaid suit property is not a ‘Premise’ within the meaning of the definition as given in the Delhi Rent Control Act and, therefore, this Court has jurisdiction to decide the present suit.

ISSUE No. 4

Whether the suit for damages is maintainable? OPP

10. In the present suit the plaintiff has also sought for a decree for payment of damages to the extent of Rs. 30,000/-. It is an admitted position that subsequent to the finding of the suit the defendant has paid the aforesaid amount of Rs. 30,000/- to the plaintiff which was received by the plaintiff and, therefore, the prayer for decree for payment of damages of an amount of Rs. 30,000/- has become infruc-tuous. The issue is answered accordingly.

ISSUE No. 5:

Whether the predecessor of the plaintiff have waived their rights by their own-conduct to file the suit? OPP

11. The predecessor of the plaintiff was the lessor who had inducted the defendant as a'tenant in respect of the suit property with a stipulation that the tenancy is initially for eleven months in the first instance which was renewable at the option of the lessee for a further period of eleven months and, thereafter, with the mutual consent of both the parties on terms and conditions as agreed upon at that time. The aforesaid lease was not renewed. Rent for the period from 10.12.1982 to 9.5.1985 was also not paid by the defendant when the suit was filed. The predecessor-in-interest of the plaintiff, who was the lessor died on 19.12.1982 There is no evidence on record to show that the said predecessor-in-interest of the plaintiff in any manner consented to the defendant continuing in possession of the suit property in perpetuity. In that view of the matter it is held that there was no waiver of any nature by the predecessor of the plaintiff of her right and the issue is answered accordingly in favour of the plaintiff and against the defendant. This issue was also not pressed by the defendant at the time of argument of the suit.

ISSUE NO. 6:

Whether the plaintiff can maintain the suit when admittedly there are other co-owners of the premises in dispute? OPP

12. Upon the death of the predecessor-in-interest, who had inducted the defendant as a tenant, the property devolved upon the plaintiff and the two sisters of the plaintiff. The said two sisters of the plaintiff had executed a relinquishment deed in favour of the plaintiff which is proved in evidence as Ex. PW3/2. No rebuttal evidence could be led by the defendant to disprove the said fact. Even, otherwise, the defendant has recognised the plaintiff by making payment of the damages to the said plaintiff and, therefore, the aforesaid issue is also answered in favour of the plaintiff and against the defendant.

ISSUES No. 7 & 8:

7. Whether the plaintiff is estopped by his own conduct of accepting rent and not raising any objection before service of notice of termination dated 2.4.1985? OPP

8. Whether the notice dated 2.4.1985 terminating the tenancy is bad in law? OPP

Issues No. 7 & 8 being inter-connected, I propose to dispose of the said issues together.

13. As delineated above, the lease deed contained a clause that the aforesaid lease could be terminated by giving two months notice by either side for eleven months in the first instance which was renewable at the instance of the lessee for a further period of eleven months and thereafter on the terms and conditions as agreed upon by the parties. The aforesaid lease deed was executed on 7.1.1972 which was an unregistered document. After expiry of the period of eleven months as stipulated in the said lease deed, no renewal of the said lease deed took place between the parties by any other written document.

14. It was argued by the counsel appearing for the plaintiff that in view of the aforesaid position, the lease deed was determined by efflux of time and, therefore, no notice of termination of the tenancy was required, although by way of abundant caution such a notice was issued by the plaintiff without prejudice to his rights and contentions. Counsel appearing for the defendant, on the other hand, submitted that since the predecessor-in-interest of the plaintiff and the plaintiff himself accepted rent from the defendant even after termination of the tenancy, by efflux of time the defendant was holding over as envisaged under the provisions of Section 116 of the Transfer of Property Act and, therefore, notice under Section 106 of the Transfer of Property Act was required to bo issued and served on the defendant and the said notice should have been a notice of two months period as it was envisaged in the lease deed. In support of his contention, the counsel relied upon several decisions to which reference shall be made at the time of recording my findings on the aforesaid two issues.

15. The lease was for a period of eleven months whereafter no renewal in writing had taken place between the parties. Therefore, the tenancy was for a fixed term and was determined by efflux of time in terms of provision of Section 111 of the Transfer of Property Act. When a tenancy for a fixed term is determined by efflux of time, it is settled law that no notice under Section 106 of the Transfer of Property Act is required to be issued and served on the said defendant. It was contended on behalf of the defendant that even though the tenancy had expired by efflux of time, the predecessor-in-interest and the plaintiff accepted rent from the defendant and, therefore, it has to be presumed that the defendant was holding over the suit property in accordance with the provisions of Section 116 of the Transfer of Property Act. No evidence is led on behalf of the defendant to prove and establish that the aforesaid amount was received either by predecessor-in-interest of the plaintiff or by the plaintiff himself as rent and not by way of damages. Merely because an amount of Rs. 1,000/- per month was received by the said persons, it could not be said that they had consented to renewal of tenancy. It was held by the Supreme Court in theSardari Lal v. Pritam Singh, AIR 1978 SC 1518 that mere acceptance of rent from a lessee would not manifest the intention of the lessor to renew the lease and that acceptance of rent would be necessary to assert that the lessor assented to the lessee continuing in possession and the lessor intended renewal of the lease. In the present suit there is no evidence no record at all to show and prove that there was something more than even payment and acceptance of rent which would establish that the lessor assented to the lessee continuing in possession and the lessor intended renewal of the lease. Even if I accept the contention of the learned counsel for the defendant that the defendant was holding over as envisaged under Section 116 of the Transfer of Property Act, even in such a case the tenancy would be construed to be a monthly tenancy in accordance with the English Calendar month and a notice of only 15 days is required to be issued terminating the tenancy. In the present case, in terms of the written lease deed although two months notice was necessary for terminating the tenancy, the said tenancy was determined by efflux of time and thereafter if at all the defendant was holding over the said property in terms of Section 116 of the Transfer of Property Act, the tenancy was from month to month according to the English Calendar months and 15 days notice was sufficient to terminate the tenancy The submission of the learned counsel appearing for the defendant that the terms of the original tenancy would apply cannot be accepted in view of the provisions of Section 106 of the Transfer of Property Act. The said provisions stipulates the expression in the absence of a contract or local law or usage to the contrary. There was no contract entered into between the parties which required two months notice to be issued by the lessor for terminating the tenancy. When it is a month to month tenancy, 15 days notice expiring with the end of the month of tenancy was sufficient as enacted under the aforesaid provisions of Transfer of Property Act. In the present case, the notice which is proved on evidence had given 15 days notice to the defendant expiring with the end of the month of the tenancy and, therefore, the said notice is held to be legal and valid.

16. In view of the aforesaid discussions and findings it is held that the tenancy of the defendant was validly and legally determined and the notice served on the defendant for terminating the tenancy was valid and legal in the eye of law. In that view of the matter, the contentions of the learned counsel appearing for the defendant is found to be without merit and is rejected. Counsel appearing for the defendant relied upon the decision in Suiti Devi and Another v. Banarsidas Bhagwandas, AIR 1949 Allahabad 703, Lalman v. Mt. Mullo, AIR 1925 Oudh 173 (1), Chiranjit Lal v. Narain Singh, AIR 1972 Punjab & Haryana 432, Jacob Philip v. State Bank of Tranvancore and others, AIR 1973 Kerala 51 and Burma Shell Oil Storage and Distributing Co. of India Ltd., New Delhi v. State of Uttar Pradesh, AIR 1984 Allahabad 89. In this connection reference may also be made to the decision of the Supreme Court in Duttonpant v. Vithal-rao, AIR 1975 SC 1111. One of the points decided in the said case although was overruled in a subsequent decision namely in V. Dhanapal Chettiar v. Yesodai Ammal, AIR 1979 SC 1745 the aforesaid ratio was not overruled and, therefore, the ratio as stated hereinafter continues to be binding. In the said decision it was held that if the object of the lease is not a manufacturing one, then the holding over under Section 116 creates a month to month tenancy terminable by 15 days notice under Section 106. In Munni Devi v. State of U.P, AIR 1997 ALL 386 it was held that where a lessee remains in possession of immovable property after the expiry of the term of the lease, and the lessor accepts rent from him, the tenant becomes a tenant holding over and in the absence of an agreement to the contrary, the tenancy so created under Section 116 can be terminated in the manner provided by Section 106, depending on the purpose of the lease. In view of the aforesaid decision of the Supreme Court, reliance on the aforesaid decision by the counsel appearing for the defendant is misplaced. The position would also be clear when reference is made to provisions of Sections 106 and 116 of the Transfer of Property Act and particularly to Illustration (a) under Section 116 of the Transfer of Property Act which make the position crystal clear. The aforesaid two issues are, therefore, answered in favour of the plaintiff and against the defendant.

17. Counsel for the defendant submitted that no injunction could be granted against the defendant for demolition of the constructions raised, and as such the said prayer is barred by limitation. Constructions were made by the defendant in violation of stipulation of the lease deed which was determined by efflux of time. According to the defendant also he was also in possession of the suit property by holding over the same. Therefore, the said contention is also without any merit. Both the issues are decided in favour of the plaintiff and against the defendant.

18. In the result, a decree is passed in favour of the plaintiff and against the defendant for possession of the suit property and in terms thereof the plaintiff shall be given vacant and peaceful possession. The defendant is given two months time to remove structures, if any, on the suit property failing which the structure, if any, could be removed in accordance with law. The plaintiff shall also be entitled to cost of the suit.