P.C Pandit, J.:— This is a landlord's petition against the decree of the learned Senior Sub Judge, reversing that of the Trial Court and dismissing his suit for ejectment of the respondent-tenant.
2. The petitioner brought the suit for the eviction of the respondent from the house in dispute, which is situated on plot No. 69 in Model Basti, Delhi. This suit was based on a number of grounds, but in the present petition we are only concerned with ore ground, because, on the others, the findings of the trial Court were against the landlord and the same were not challenged before the lower appellate Court. That ground is mentioned in the plaint in the following words.—
“That the defendant-tenant has built a suitable residence, house No. 122 in Ward XVIII, Moti Bagh Kucha, comprised of two rooms, a Saiban and a courtyard.”
3. In reply to this allegation, the tenant in his written statement pleaded as under—
“Clause (a) is denied. It is wrong that the defendant has built a house comprising two rooms, a saiban and a courtyard. The defendant has purchased only two small Kacha Kothas with total area of about 110 sq. fit. There is no light and water arrangement in the said premises Page: 916nor is there any provision for a latrine in the same. The said premises are neither suitable nor fit for human habitation.”
4. A replication was also put in by the landlord and this is what he stated therein regarding this plea of the tenant—
“It is submitted that defendant's reply is incorrect. The premises purchased by the defendant are spacious and comodious built on area 45′ × 53′. It consists of two living rooms and a tin saiban and is fit for habitation. It is incorrect that the house purchased by defendant is Kacha. On the contrary the house, is pacca, well built and suitable for human habitation. In fact the defendant has let out his own house to tenants at Rs. 20/- p.m besides, house-tax and is himself continuing in plaintiff's house at Rs. 7/7/- p.m, only, thereby he is making profit to himself. The premises purchased by defendant are far greater and superior to the premises in suit. It is not admitted that house purchased by defendant lacks any such essential amenities which make the house less convenient”.
5. The trial Court framed only one omnibus issue, namely,— “Whether the defendant is liable to be ejected on the grounds mentioned in the plaint?” After discussing the evidence, the trial Judge came to the conclusion that the allegation of the tenant, that the premises, which he had purchased, were unfit for human habitation, had not been proved. He also mentioned in his judgment that, during the arguments learned counsel for the tenant raised a new point that the premises purchased by him were not available to him, because they were in occupation of the tenants and, as such, he had not acquired their vacant possession within the meaning of section 13(1)(h) of the Delhi and Ajmer Rent Control Act (Act 38 of 1952). It was also urged by him that it was for the landlord to prove positively that possession of vacant premises had been acquired by the tenant and for that there was not enough evidence on the record. The trial Judge remarked that this objection was not taken by the tenant in his written-statement and, therefore, the landlord could not be expected to anticipate this objection and lead evidence on this point. He further held that no amount of evidence on behalf of the tenant could be looked into in support of this plea, which he had not put forward in the written-statement. On merits also, the learned Judge found that there was no evidence in support of the same. In this connection, he observed as under—
“……the two D.Ws, namely Bool Singh and Manohar Lal, who are the witnesses in this connection, are interested in the defendant. The alleged tenants have not been produced, even their names have not been disclosed. No rent deeds or counterfoils of any receipts for rent have been produced. The previous landlord has not been produced to show that these tenants were in occupation at the time the premises were purchased by the defendant. Even if I were to presume that now some tenants are living in newly acquired premises, there is no proof to show that they have been there since the purchase by the defendant”.
6. After holding that this ground for eviction had been proved, the learned Judge decreed the suit.
7. Against this decision, the tenant went in appeal to the learned Senior Subordinate Judge. He came to the conclusion, that since the landlord had specifically claimed ejectment on the ground of the tenant's having built a house, he could not succeed by showing that the tenant had acquired a house. Since there was no evidence to show that the Page: 917house in dispute had been built by the tenant, the claim of the landlord was liable to be dismissed on this finding alone. He also held that the trial Judge had travelled beyond the pleadings in examining the question whether the claim to ejectment could be founded on the ground that the tenant had acquired vacant possession of the premises. He further held that the trial Judge was wrong in placing the onus on the tenant to show that the house was not available to him for occupation at the time of its purchase by him. According to the learned Judge, the landlord had not been able to prove that the tenant had acquired vacant possession of the house purchased by him. On these findings, the learned Senior Subordinate Judge held that the landlord had not been able to establish this ground for ejectment of the tenant and, consequently, accepted the appeal and dismissed the suit. Against this decision, the landlord has come here in revision.
8. Learned counsel for the petitioner submitted that it had been fully established on the record that the tenant had built a suitable residence and, therefore, was liable to eviction. Learned counsel for the respondent, on the other hand, contended that the petitioner could succeed only if he could prove that the tenant had got vacant possession of the house purchased by him and that the same was a suitable one and fit for human habitation. This was the plea which the petitioner had taken in his replication and he had failed to prove the same. He also urged that since the house had been purchased by the tenant in 1952, this ground for eviction was not available to the petitioner, who had, admittedly, purchased the premises in suit in January, 1956. He further submitted that since the previous landlord of the premises in suit had not taken any action against the tenant and had accepted rent, the present landlord was debarred from evicting the tenant on this ground. In this connection, he relied on New Garage Limited v. Sardar Khushwant Singh (1951) 53 P.L.R 136, and Birdhichand Sobharam Pawar v. Manaklal Pyarelal Halwai A.I.R 1960 M.P 124. He also argued that the landlord himself was estopped from taking up this ground, because after the purchase of the premises in suit, he had been accepting rent from the tenant for about two years, that is, up to the date of the suit.
9. Section 13(1)(h) of the Act is in the following words—
“S. 13(1) Notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any Court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated):
Provided that nothing in this sub-section shall apply to any suit or other proceeding for such recovery of possession, if the Court is satisfied—
(h) that the tenant has, whether before or after the commencement of this Act, built, acquired vacant possession of, or been allotted, a suitable residence;.
A bare reading of this provision would show that the landlord can evict the tenant if he can prove that the tenant has, whether before or after the commencement of this Act, that is, 9th June, 1952, either built a suitable residence or acquired vacant possession of a suitable residence or been allotted a suitable residence. On the date of the suit, in order to succeed, all that the landlord has to show is (a) that he is Page: 918the landlord, (b) the defendant is his tenant, and (c) the tenant has, whether before or after the commencement of the Act, Either built a suitable residence, or acquired vacant possession of a suitable residence, or been allotted a suitable residence. In the present case, on the date of the suit, namely, 23rd December, 1957, the petitioner, admittedly, was the landlord of the premises in suit and the respondent was his tenant. Therefore, if he can prove that the tenant has built a suitable residence, or acquired vacant possession of a suitable residence, the tenant is liable to eviction. It is immaterial whether the tenant purchased the house in 1952 and the premises in suit were purchased by the landlord in 1956.
10. The learned Senior Subordinate Judge had remarked that the landlord could only succeed if he could establish the ground, which he had taken in his plaint, namely, that the tenant had built a suitable house Oil this point, there is the evidence of the defendant himself that he had taken the site measuring 100 yards in Moti Bagh and built two small kothas on the same. His own witness, D.W 1, Manohar Lal, had also stated that the site belonged to Smt. Shiv Devi and was given by her to the respondent had himself built the house. The question whether it is a suitable residence or not, has not been determined by the lower appellate Court.
11. It was the tenant's contention before the lower appellate Court that the landlord could succeed only if he could prove the ground for ejectment, which he had specifically taken in his plaint, namely, that the tenant had built a suitable residence, and this contention prevailed with the lower appellate Court. Moreover, the issue also mentions whether the defendant was liable to be ejected on the grounds mentioned in the plaint. Under these circumstances, the landlord can succeed if he can prove the grounds, which he put forth in the plaint.
12. As regards the question of estoppel, learned counsel for the respondent was unable to show from the record that the previous land lord of the premises in suit knew that the tenant had built a suitable residence. Therefore, there could be no acquiescence on his part, it he was accepting the rent in ignorance of this fact. It was held in Manak Lal v. Dr. Prem Chand A.I.R 1957 S.C 425—
“It is true that waiver cannot always and in every case be inferred merely from the failure of the party to take objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question.”
13. So far as the petitioner's acceptance of rent from the tenant for the last two years before the suit is concerned, it cannot be held that he is estopped from taking up this plea, unless there was a specific issue on this point. The plea of espoppel or waiver was neither taken in the pleading nor put in issue nor argued in the Courts below. It is undisputed that to sustain the plea of estoppel, which is a mixed question of fact and law, there should be distinct pleadings, stating the facts on which estoppel can be founded, the specific issue on the point and a proper trial of the same. In the absence of such pleadings and issue, the contention on the point of estoppel cannot be gone into (see in this connection Ram Gopal v. L. Mohan Lal A.I.R 1960 Punj. 226 and Kanhayalal Pyarelal v. Bhaiyalal Kishorelal A.I.R 1934 Nag. 51. In New Garage Limited's case Page: 919 (1951) 53 P.L.R 136), there was a specific issue with regard to estoppel. In Birdhi Chand Sobharam Pawar's case A.I.R 1960 M.P 124, it had been found that the landlord's predecessor-in title had waived the default on the part of the tenant and, therefore, the landlord amid not take advantage of the same.
14. In view of my finding that the landlord has succeeded in proving that the tenant had built a residence, it is necessary to determine whether that residence was a suitable one or not, as required under the provisions of section 13(1)(h) of the Act. As already mentioned above, no finding has been given by the lower appellate Court on this point. Both the counsel are agreed that the case should be remanded to the lower appellate Court for giving a finding on the same. The case is, accordingly, sent back to the learned Senior Subordinate Judge for giving a finding on this point and to decide it in the light of the observations made above. I may, however, mention that, in order to succeed, it is for the landlord to show that the tenant has built a suitable residence. The revision is, consequently, accepted, the decree of the lower appellate Court is set aside, and the case is remanded to the learned Senior Subordinate Judge for re-decision as mentioned above. In view of the peculiar circumstances of this case, the parties are left to bear their own costs throughout.
15. Parties have been directed to appear before the learned Senior Subordinate Judge on 4th September ???.
16. Revision accepted.