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This is defendant's appeal against the judgment and decree dated 10th November 1970 passed by the District Judge, Guna in Civil Appeal No 2iAof 1961 confirming the judgment and decree dated 30th July 1976 by the Civil Judge Class II Guna in Civil Suit No 34A of 1964 whereby be decreed the plaintiff respondent's suit for ejectment of the defendant from the suit premises and for recovery of a sum of Rs.1,578 being the amount of arrears of rent/hire charges and mesne profits.

2. The short facts giving rise to the present appeal are these: The suit premises, which are admittedly owned by the Municipality Guna, were on 21 11-60 takes on rent by the plaintiff; they were let out by the plaintiff to defendant as also some utensils and other articles of the hotel were given on hire at the time of letting out and the composite amount agreed to be paid by the defendant to the plaintiff was Rs.90 p.m. in respect of the rent as well as the hire charges of the utensils.

3. The plaintiff by his notice dated 30-1-63 determined the tenancy of the defendant and made a demand for the arrears of rent/hire charges. The defen­dant having failed to vacate the suit premises and to pay the arrears, the plain­tiff filed the suit. The defendant while admitting that the suit premises were initially let out to him by the plaintiff inter alia contended that according to the rules of the Municipality, the plaintiff was not competent to sub-let the suit premises; that the plaintiff had defaulted in payment of arrears of rent due to '.he Municipality; that a dispute was going on between the plaintiff and the Municipality and that the defendant had applied to the Municipality for grant of lease to him of the suit premises on his paying full arrears of rent and the Municipality had agreed to do so and as such the defendant had become tenant of the Municipality since about the year 1962.

4. The defendant also pleaded payment of arrears of rent/hire charges and thus controverter the right of the plaintiff to eject him and claim the suit amount from him. He also contended that the suit of the plaintiff suffered from the defect of non joinder of necessary party as according to him the Municipality Guna was a necessary party.

5. During the course of the trial the order of the President of the Municipality dated 20-1-66 (Ex. D 7) was produced whereby the suit premises were allotted to the defendant. This order reads as under:-

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The contentions of the plaintiff did not find favour with both the Courts below and the suit of the plaintiff was decreed by the trial Court and that decree was maintained by the lower appellate Court. Hence this appeal.

6. Learned counsel for the appellant raised two contentions before this Court, viz. (1) that the accommodation control act (hereinafter referred to as the 'Act') applies to the present suit and the question of ejectment should have been examined in the light of the provisions of that Act as to whether a ground for ejectment under that Act was made out by the plaintiff or not; and (2) that the Municipality was a necessary party, which having not been joined, the suit should have been dismissed for non-joinder of necessary parties. Learned counsel also disputed the amount decreed by way of arrears of mesne profits against the defendant.

7. As regards the amount of arrears and mesne profits, an agreed submis­sion has been made by the learned counsel For both the parties that the amount due end pay able by the defend ant by way of arrears of rent and/or mesne profits up to the date of suit was Rs.1200 and not Rs.1,578 as found by the Court below. In view of this agreed submission on the question of amount due, this Court is not required to dilate on the question as to what was the amount due.

8. With regard to applicability of the Act, learned counsel for the respondent submitted that by virtue of section 3 (1) (b) of the Act, the suit premises were exempted from the purview of the Act and that the Municipality was neither a necessary nor a proper party to the suit. It is an admitted posi­tion between the parties that the suit premises are used exlusively for non-residential purposes and are owned by the Municipality, Guna. which is a local authority. The argument of the learned counsel for the appellant was that for the following two reasons, the provisions of the Act did apply to the present suit and section 3 (1) (b) of the Act cannot be brought into play. Firstly, the suit is based on contract of tenancy in respect of the suit premises between the plaintiff and defendant, who are private parties. It is not a suit between the Municipality as a landlord and its tenant. Secondly, the contract of tenancy between the parties is a composite contract relating to the tenancy of the suit premises and giving on hire of the utensils and other hotel articles. The rent/hire charges for them is also a composite amount and the contract regarding tenancy is not extricable from the contract regarding the hire of utensils and other hotel articles.

9. Having heard the arguments on both sides, I am of the firm opinion that the Act does not apply to the suit premises and its provisions cannot be brought into play for the decision of the present suit. The first part of the reasoning of the learned counsel for the appellant deserves to be repelled on the short ground that immunity from the operation of the Act is in respect of the premises and is not with respect to the parties as is evident on a plain reading of the expression "Nothing in this Act shall apply.........(b) Accommodation

which is the property of a local authority used exclusively for non residential purposes ' This question is fully covered by the decision of their Lordships of the Supreme Court in Messrs Bhatia Co-operative Housing Society Ltd v. D. C. Patel AI R 1953 S C 16, In this case, a question had arisen with respect to the applicability of the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act (47 of 1947) (hereinafter referred to as the 'Bombay Act') wherein section 4 of that Act came up for construction and while construing the language of this section their Lordships of the Supreme Court held that exemption from the operation of the Act was with respect to the premises. The provisions contained in Section 4 (1) of the said Act are pari materia to the provisions contained in section 3 of the Act. This section is quoted in the same decision and the relevant observations of their Lordships of the Supreme Court are reproduced herein below:-

"The contention of the appellant Society is that the demised premises belonged to the Trustees for the improvement of the city of Bombay and now belong to the Bombay Municipality both of which bodies are local authorities and, therefore, the Act does not apply to the demised premises. Learned counsel for the respondent, however, urges that the object of the Act, as recited in the preamble, is inter alia, to control rent. It follows, therefore, that the object of the legislation was that the provisions of the Act would be applicable only as between the landlord and tenant. Section 4 (1) provides for an exemp­tion from or exception to that general object. The purpose of the first two parts of sec­tion 4 (J) is to exempt two cases of relationship of landlord and tenant from the operation of the Act, namely, (1) where the Government or a local authority lets out premises belonging to it, and (2) where the Government lets out premises taken on lease or requisi­tioned by it. It will be observed that the second part of Section 4 (1) quite clearly exempts "any tenancy or other like relationship" created by The Government but the first part makes no reference to an tenancy or other like relationship at all but exempts the premises belong­ing to the Government or a local authority. If the intention of the first part were as formulated in item (1), then the first part of section (4), like the second part, would have run thus:

This Act shall not apply to any tenancy or other like relationship created by Govern­ment or local authority in respect of premises belonging to it.

The Legislature was familiar with this form of expression, for it adopted it in the second part and yet it did not use that form in the first part. The conclusion is, therefore irresis­tible that the Legislature did not by the first part intend to exempt the relationship of land­lord and tenant but intended to confer on the premises belonging to Government an immunity from the operation of the Act.

"If that were the intention then the Legislature would have used phraseology similar to what it did in the second part, namely, it would have expressly made the Act inapplicable '•as against the Government or a local authority". This it did not do and the only inference that can be drawn from this circumstance is that this departure was made deliberately with a view to exempt the premises itself."

10. It may be mentioned here that in the Bombay Act, the words are "Premises belonging to the Government or a local authority" whereas in the Act, the words used are "accommodation which is the property of the Govern­ment or the local authority", which leaves no room to doubt that the exemption is of the accommodation.

11. Now I turn to the consideration of the second reasoning of the learn­ed counsel for the appellant. The argument of the learned counsel was that as the contract between the parties is a composite one and the contract regarding tenancy cannot be separated from the contract of hire of the utensils, section 3 which exempts the accommodation from the operation of the Act, cannot be brought into play. Learned counsel argued that the provision relating to exemption in an Act has to be strictly construed and, therefore, section 3 has to be construed to mean that the exemption would apply only if the contract was of tenancy regarding the suit premises, and not otherwise.

12. It cannot be gainsaid that the suit is for ejectment of the defendant from the suit premises which admittedly he took on rent from the plaintiff and that property is of the Municipality. The contention of the learned counsel that the provisions of the Act apply to the present suit is pregnant with the fact that it is a suit between landlord and tenant for ejectment from an accommo­dation. The question, therefore, crops up whether it is an accommodation which is covered or exempted from the operation of the Act, which is to be determined with reference to the ownership of the premises and the provisions of section 3 of the Act. In the light of this discussion, the other part of the reasoning of the learned counsel deserves to be repelled.

13 It cannot be disputed that the provisions of the Act apply if it is a suit for ejectment between a landlord and a tenant at a place to which this Act is extended and the accommodation is not the one which is exempted from its operation. Thus the reasoning of the learned counsel for the appellant that because it is a suit to enforce a composite contract of tenancy and of hire of utensils section 3 of the Act does not apply, but the Act would apply is unintelligible and un under stand able. There appears to be no logic behind it. The very reasoning of the learned counsel that section 3 of the Act does not apply because it is a suit to enforce a composite contract to tenancy and hire of utensils where­as the exemption of section 3 applies only when it is a suit for ejectment purely on the basis of a contract of tenancy of an accommodation only, recoils against his contention that the Act applies. On his own showing he wants to contend that the present suit is not a suit between a landlord and tenant and if this is so, then there is no question of applying the provisions of the Act including sec­tion 12 of the Act. Thus examining the case from a different reasoning as indicated herein above also the conclusion remains the same that the Act does not apply to the present suit.

14. In view of the foregoing discussion the contention of the learned counsel that the provisions of the Act apply to the present suit is repelled.

15. Now adverting to the second contention of the learned counsel regard­ing non-joinder of the Municipality, I am of the opinion that the Municipality was neither a necessary nor a proper party for the decision of the suit. The whole argument of the learned counsel for the appellant was based on the premises that when it is contended by him that he has become tenant of the Municipality, the question whether he is a tenant of the Municipality or not cannot be decided in the absence of the Municipality, more particularly when the question of the validity of Ex. D-7 is involved.

16. In a suit between the landlord and tenant for possession on determi­nation of tenancy, the tenant is bound to hand over possession to the landlord. He cannot escape from his obligation of delivering possession to his landlord by contending that he has entered into a contract of tenancy with a person who has paramount title over his landlord. Section 108 (q) of the Transfer of Property Act, clearly indicates that the tenant is bound to put his landlord into possession of the property, which was taken on rent by him and he cannot escape from this obligation by voluntarily entering into contract with a person from whom his lessor was holding the lease. It may be mentioned here that the case of the defendant is that he made an application to the Municipality for grant of the lease to him directly and consequently he was granted lease vide Ex D-7. In other words, he voluntarily became the tenant of the Municipality and that too not with the consent of the plaintiff. It is neither alleged in the written state­ment, nor proved, nor argued that the Municipality had determined the tenancy of the plaintiff, much less validly and it was thus entitled to get possession of the suit premises from the plaintiff. I am supported in my conclusion by a decision in Pusaram Maniklal Izardar v. Deorao Gopalrao Mali 1946 N L J 602=AIR 1947 Nag. 1887, the relevant observations are as under:-

''If A lets land to B and B enters into possession under the lease, B is to return possession to A on the expiry of the lease and he will not be allowed to set up the right or title of a third party C "

"The limits to a defence of eviction by title paramount are set out in I L R (1948) Pat. 513, The holder of the paramount title must in such cases have a good title and the adornment by the tenant him must be under compulsion and not voluntary as lure. There­fore, the defendant's plea that tie has attorned to Sohanlal is no answer to the plaintiff's claim."

17. The learned counsel for the appellant relying of the decision of this Court in Raghvender Singh and others V- Marhu Basant and another 1971 M P L J 4, contended that in view of the decision in this case, the defendant is not estopped from raising the pelf that he has become the tenant of the Municipality and therefore that plea has to be examined and for that purpose Municipality is a necessary part, in this decision what has been held is that a tenant is not estopped in a suit by the transferee of his lessor from questioning the competency of his lessor to transfer the property and also that since after the lease his lessor's title is lost, as would be evident from the principle laid down in the case summed up in the head note (b), which reads as under:-

"A tenant is not estopped from questioning in a suit by the transferee from the lessor, the capacity of she lessor to rnske the transfer. Nor is he estopped from pleading that the title o'"

The Malguzar in 1947 leased out the abadi site in dispute to defendant for building on condition that defendant would deliver vacant possession on fifteen days' notice. In 1948 the Malguzar transferred without consideration all abadi sites in the village to his wife. In 1961 wife's heirs sued defendant for possession after necessary notice. In 1948 defendant had on one occasion paid rent to Malguzar's wife. It was contended that defendant was estopped under section 116 of Evidence Act from disputing wife's title.

Held, that defendant was not estopped from questioning the capacity of the Malguzar to transfer and that though when a sifting tenant attars to the transferee by paying rent there does not arise an estoppel, the defendant was not estopped from pleading that because of the subsequent Abolition of Proprietary Rights Act the title of the original lessor had come to an end,"

In the instant case as already observed, the defendant's plea is not that the Municipality has determined the tenancy of the plaintiff and, therefore, the plaintiff had lost the tenancy right he had in the suit premises and which he had sub-let to him. Thus, the aforesaid decision cannot be pressed into service.

18. There is yet another reason on account of which the defendant is not able to save his possession on the basis of his having allegedly become the tenant at the Municipality. The order Ex. D. 7 is dated 20-1-66, that is, during the pendency of the suit The alleged contract of tenancy between the defendant and the Municipality during the pendency of the suit, even if accepted to be true, it amounts to transfer of possession by the defendant to the Municipality and as such would be hit by the provisions of section 52 of the Transfer of Pro­perty Act end is not binding on the plaintiff. The defendant being in actual physical possession of the premises is bound to deliver possession to the plaintiff (see 1968 J L J 698).

19. It is in the background of the aforesaid legal position that the ques­tion of defect of non-joinder of Municipality has to be determine.'1. The suit between the parties is based or the contract of tenancy and the plaintiff- landlord is seeking possession on determination of the lease of the suit premises. Merely because the defendant has set up a plea of Jus tertian in his defence, the Munici­pality would not become a necessary party. The plaintiff claims no relief against the Municipality, nor is it a case where in absence of the Municipality, the con­troversy between the parties cannot be decided. The Municipality may at the most, in view of the case set up by the defendant, be an important witness in support of his defence, but not a necessary party. The question of necessary party has necessarily to be decided with reference to the averments made in the plaint and the question in controversy.

20. For the foregoing reasons, this contention of the learned counsel is also repelled.

21. In the result, the appeal is partly allowed. The decree with regard to arrears of rent and mesne profits is modified and the amount is reduced from Rs.1,578 to Rs.1,200 as agreed to by the learned counsel for the parties. The rest of the decree of the Courts below is confirmed. I make no order as to costs in the circumstances of the case.

Appeal pertly allowed.