JUDGMENT
G.C. Jain, J.
(1) This second appeal is directed against the judgment and the decree of a learned Addl. District Judge dated May 9, 1983 confirming the judgment and the decree of a Subordinate Judge 1st class dated November 7, 1981.
(2) The dispute is in respect of property bearing No. 11/932, Haveli Aazam Khan. Chilli Qabar, Delhi It was admittedly an acquired evacuee property and was purchased by the respondent Mohd. lkhiaq in a public auction held on November 7, 1964. The sale certificate was issued in bids favor on July 30, 1965, the sale being effective from July 20, 1965.
(3) On September 1, 1971 Mohd lkhiaq brought a suit for possession of the said property against Mohd. Sadiq (since deceased and represented by the present appellants). The possession was claimed on the averments that the defendant was in possession of the said property unlawfully and had no- right to remain in the same.
(4) MOHD. Sadiq died on November 1, 1976 His legal representatives, the appellants, were brought on the record. They contested the suit. It was averred that Mohd. Sadiq was in lawful possession of the property in dispute and became a direct tenant under the plaintiff by virtue of the provisions contained in Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (for short ‘the Act’), on the transfer of the property in his favor, in case the sale was proved. It was also averred that the suit was barred by Section 50 of the Delhi Rent Control Act and was not properly valued for the purposes of court fee and jurisdiction.
(5) Learned Subordinate Judge by his judgment dated November 7, 1981 held that the suit was properly valued for purposes of court fee and Jurisdiction; Mohd. lkhiaq
had purchased this property in a public auction and that Mohd. Sadiq was not in possession of the property in suit as a tenant. He consequently passed a decree for possession of the property in suit in favor of the respondent and against the appellants. The appeal filed by the appellants was dismissed by the learned Addl. District Judge on May 9, 1983. Hence this second appeal.
(6) The substantial question of law framed by this court while admitting the second appeal reads : ‘ “THE substantial question of law which would require consideration in this appeal is whether in the circumstances of this case the appellants could be considered to be unauthorised occupants of the primacy in dispute and as such were not protected by Section 29 of the Act”.
(7) Two questions arise for determination in this appeal. The first question is whether Mohd. Sadiq was in lawful possession of the property in dispute. The second question is whether, he became attendant under the v transferee-Mohd. lkhiaq, by virtue of the provisions contained in Section 29 of the Act, on proof of the first question.
(8) 8. The question whether Mohd. Sadiq was in lawful possession of the property in dispute was necessarily a question of fact. This court in second appeal is not competent and, in any case, would not be justified in reversing the concurrent findings of the courts below on this point, unless the said finding was arbitrary, perverse or unreasonable.
(9) Admittedly Mohd. Sadiq occupied the premises in dispute some time in the year 1960 without any right. His status at the time when he occupied the property was that of a rank trespasser. Is there sufficient evidence to prove the change in his status later on ? DW-1 stated that in the survey report there was a note dated February 13, 1960 which described Mohd. Sadiq as a tenant. This evidence was of no value because the wit ness admitted that this note was added on the survey report dated August 30, 1949. There was no order on the basis of which such a note was added. This note was suspicious in nature and was not sufficient to confer the status of tenant when there was admittedly no order conferring tenancy rights or even recognising him as a lawful occupant. This evidence as rightly rejected.
(10) It has been proved that Mohd Sadiq paid Rs. 28.08 on June 27, 1961 vide receipt Ex. D-l. The receipt, however, clearly says that this amount was towards damage charges. This payment, therefore, would not make the possession lawful The fact that this amount was paid by means of a challan which must have been sanctioned by some authority, is of no consequence.
(11) DW-1, H.R. Srivastva, Udc, Account Section, Ministry of ‘Rehabilitation, deposed that Mobd. Sadiq had paid rent up to July 20, 1965. He proved letter D-2 from Accounts Officer informing Mobd. Sadiq that he hid paid Rs. 185.53 on account of rent. During the appeal, the appellants sought permission to produce additional documents. One of these documents is a notice dated July 11, 1965 calling upon Mohd. Sadiq to pay rent for June, 1965. In the absence of any order creating tenancy the word ‘rent’ used in these documents, in my view, has been loosely used and is not sufficient to hold that Mohd. Sadiq had, later on, been accepted as a tenant. This is clear from the fact that in the notice the managing officer has referred to the action for recovery of arrears of rent for the period up to June, 1965, already initiated separately. The notice served in this behalf on Mohd. Sadiq by the Assistant Collector describes this amount as payable towards rent/ license fee/damage charges. Nature of the amount was thus not clear. In these circumstances the description of the amount in the notice or letter is of no help. The most important document was the first receipt where it was specifically mentioned that the amount received was towards damages There was a presumption of continuity. No letter of allotment or order grant infirmity in the finding of fact regarding the status of Mohd. Sadiq, predecessor of the appellants.
(12) Even if it was presumed that Mohd. Sadiq was in. lawful possession then also it would not make any difference. Relevant portion of Section 29(1) of ‘the Act’ reads as under :- “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 person 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”.
From the opening words of this section it is clear that the person seeking the benefit of these provisions must, first, be a person to whom the provisions of this section apply. These provisions do not apply to all persons who are in lawful possession of the immoveable properties referred to in Section 29. That person must be a person to whom the provisions of this section apply.
(13) Who arc the persons to whom the provisions of this section apply ? The reply to this query is available in Sub-section (2) of Section 29 which says that the Central Government, may, from time to time by notification in the Official Gazette, specify the class of persons to whom, and the class of immoveable property in the compensation pool, other than agricultural land, in respect of which the provisions of section shall apply. Thus it is clear that the persons to whom the provisions of Section 29 would apply are persons specified in the notification which the Central Government may issue under Sub-section (2).
(14) In exercise of these powers the Central Government has issued notification Sro 2219. Under this notification provisions of Section 29 arc applicable to the following classes of persons :- (A)to the clan of persons specified in Schedule I other than those who have obtained by fraud or misrepresentation multiple allotments or two, in the case of residential premises, already own a residential property of their own ; (b) in respect of the class of properties described in Schedule II. Schedule I 1. Every person, against whom no arrears of rent in respect of the property in his lawful possession are outstanding at the date of transfer of property. 2. Every person, against whom any arrears of rent in respect of the property in his lawful possession are outstanding at the date of the transfer of the property, but who has paid up such arrears within sixty days of such date. 3. Every displaced person having a verified claim against whom any arrears of rent in respect of the property in his lawful possession are outstanding at the date of the transfer of the property, but such arrears of rent do not exceed the amount of compensation payable to him. 4. Every displaced person having a verified claim against whom arrears of rent in respect of the property in his lawful possession exceeding the amount of compensation payable to him arc outstanding at the date of transfer of the property, but who after adjustment of the compensation against such arrears pays up the balance of the arrears within sixty days of the date of such adjustment.”
Mohd. Sadiq admittedly was not a displaced person and was therefore not covered under categories No 3 & 4. He also would not fall in category No. I and 2 because admittedly arrears of rent (if the amount paid by him was treated as rent) were due on the date of transfer of property in favor of the respondent and had not been paid within sixty days of the transfer. These facts were otherwise clear from the notice of the Assistant Collector and the receipt dated September 23, 1986 produced by the appellants themselves.
(15) Learned counsel for the appellants, contended that the appellants or their predecessor-in-interest. had no knowledge and had no notice of the transfer in favor of the respondent and therefore sixty days should be counted from the date of the knowledge. This contention cannot be accepted because of clear provisions of the Notification which require payment of arrears within sixty days of the date of transfer. I cannot add words which do not exist. The appellants, therefore, were not entitled to the benefit of the provisions contained in Section 29 of ‘the Act’.
(16) I consequently find no merit in the appeal and dismals the same with costs. The appellants arc, however, allowed three months’ time to vacate the property in Suit.