EMMANUEL PREM MASIH Vs. DELHI DIOCESAN TRUST ASSOCIATION

JUDGEMENT

(1.) Respondent No. 1, namely, Delhi Diocesan Trust Association herein had filed a suit for recovery of possession and mesne profits against three defendants which has been decreed by the Trial Court vide impugned judgment and decree dated 8th January, 1996. Suit was filed against three defendants out of which two defendants have filed the instant appeal against the impugned judgment. In the suit filed by respondent No. 1, it was, inter alia, pleaded that the primary function of respondent No. 1 is to hold and own properties etc. and use these for religious and charitable purposes. Appellant No. 1 herein was appointed as the Honorary Catechist-Basai Darapur with effect from 1st January, 1976 and as a privilege of his appointment, he was allowed the use of house No. WZ 315, Basai Darapur, New Delhi (hereinafter referred to as 'suit property') as residence. The property belongs to plaintiff/respondent No. 1. As numerous complaints were received against appellant No. 1, his services were terminated with immediate effect vide letter dated 30th October, 1986 and appellant No. 1 was requested to hand over the vacant possession of the suit property. However, as he did not vacate the suit property, plaintiff/respondent No. 1 filed the aforesaid suit. In the written statement filed by defendants 1 to 3, it was alleged that suit property was owned and built by father of appellant No. 1 who had been living in the suit property since his birth and on his death the suit property devolved on appellant No. 1 as his heir who was in occupation of the house as owner since then and living with his family members. Various issues were framed by the Trial Court on the basis of pleadings in the suit. The Trial Court found that it is respondent No. 1 /plaintiff who is the owner of the suit premises. The Trial Court further recorded the finding of fact that appellant No. 1 was appointed as Honorary Catechist and was permitted to use the suit premises for residence as a licensee who was bound to hand over vacant possession thereof after termination of his services as Honorary Catechist. Accordingly, the suit for possession and mesne profits was decreed with costs against the defendant. Mesne profits are awarded from 1st December, 1986 at the rate of Rs. 500/- till the suit property is vacated by the defendant.

(2.) The only point urged by the learned Counsel for the appellant is that the Trial Court had no jurisdiction to deal with the matter in view of the provisions of Section 50 of the Delhi Rent Control Act. Section 50 of the Delhi Rent Control Act bars a civil suit between landlord and tenant because in such cases the Act confers jurisdiction on the Rent Controller. According to the learned Counsel for the appellant, the appellant was a tenant in the premises as per respondent's own case. He submits that since the appellant was in service of the respondent, his service will be considered as rent paid by the appellant to the respondent as consideration for use and occupation of the premises in question. Thus appellant No. 1 was tenant in the suit premises and suit for possession was barred.

(3.) We are unable to agree with this submission made on behalf of the appellant. At the outset it may be observed that the appellants are taking totally different stand in this appeal as compared to the stand which was before the Trial Court. As already mentioned, before the Trial Court it was the case of the appellants that appellant No. 1 was the owner of the suit premises. In fact perusal of the written statement filed by the appellant before the Trial Court shows that it was even denied that appellant No. 1 was ever appointed as Honorary Catechist or his services were terminated or he was allowed to use the suit premises by virtue of his appointment. Rather appellant No. 1 only pleaded ownership in the suit premises and right to stay there in that capacity. In the appeal, however, the case which is sought to be projected is that the suit premises were allotted to the appellant No. 1 as consideration for rendering services as Honorary Catechist with respondent No. 1 and he is the tenant. The service rendered is said to be the rent paid by appellant to respondent for use and occupation of the suit premises. Such a plea was not taken before the Trial Court nor any issue was framed or evidence recorded in the absence of such plea having been taken by the appellants. For these reasons alone, the appellants cannot be allowed to raise this plea which is clearly an afterthought and appears to be malicious. Appellants are trying to take summersault by projecting appellant No. 1 as tenant after failing in their attempt to claim ownership of the suit property. The two pleas are clearly contradictory to each other as well. However, the appellants never objected to "the jurisdiction of the Trial Court on the ground of existence of relationship of landlord and tenant. We find nothing on record to show that there was relationship of landlord and tenant between the parties. In the plaint filed by respondent No. 1, it is very clearly mentioned that appellant No. 1 was a licensee. In our view, the contention raised on behalf of the appellant is totally misconceived and untenable. The appeal is dismissed.