1. This appeal is directed against the order of the Rent Control Tribunal dated July 14, 1969, affirming the order of the Additional Rent Controller directing eviction of appellant Boota Ram.

2. Balmukand the respondent in this appeal purchased evacuee property No.1785/1798, situated at Hardhian Singh Road, ward No. XVI, Karol Bagh, New Delhi by means of a salecertificate granted in his favour by the Rehabilitation Deptt. On July 29, 1959 declaring him to be an owner with effect from November 4, 1957 On January 23, 1965, he filed an application under Section 14(2) (h) of the Delhi Rent Control Act claiming eviction of the tenant appellant from the premises in is occupation which formed a part of the above property on the ground that the tenant had built a residence in Kiriti Nagar on plot No. 81, Block F and that the tenant had denied the relationship of landlord and tenant between the parties even though after the purchases of the property by him (Balmukand) the respondent, Boota Ram who occupied the premises as an allottee of the Custodian had become his tenant by operation of Section 29 of Displaced Persons (Compensation & Rehabilitation) Act, 1954, hereinafter called the Displaced Persons Rehabilitation Act. Boota Ram contested this application. In the first written statement filed by him he did not raise the plea that a notice terminating his tenancy was necessary and the eviction application without notice was incompetent but on November 27, 1967, he prayed for permission to amend his written statement to raise this plea. The application was accepted by the learned Additional Rent Controller, on December 3, 1967, he thus filed an amended written statement incorporating this plea. The learned Additional Rent Controller, after recording evidence came to the conclusion that Balmukand had succeeded in proving that Boota Ram had built a construction on plot No. F. 81 , Kirti Nagar, as alleged by him and that by operation of Section 29 of the Displaced Persons Rehabilitation Act, Boota, Ram had become a statutory tenant and was not contractual tenant. With these findings, on May 28, 1968, he granted an order for recovery of possession against Boota Ram. Aggrieved from this Boota Ram went up in appeal. The learned Rent Control Tribunal by the impugned order concurred with the finding of fact arrived at by the learned Additional Rent Controller that Boota Ram had acquired another residence for himself, but disagreed with the view that he was a statutory tenant. He however, held that no notice for determining his tenancy was required because the tenancy in his favour had been created before the Transfer of Property Act, 1882 came into force and in this view maintained the order of eviction and dismissed the appeal. This second appeal is directed against this order.

3. Mr. Ravinder Sethi, the learned Counsel appearing for Boota Ram has urged that the learned Tribunal was in error in holding that the notice for eviction was not necessary. He placed strong reliance on the Division Bench decision of this Court in Batto Mal v. Rameshwar Nath etc., 1970 RCJ 635; where it has been held that though the provisions of Section 106 of the Transfer of Property Act, 1882, were made applicable to the Union Territory of Delhi with effect from 1st December, 1962, but even before that date the principle underlying it was applicable to Delhi and as a rule of justice equity and good conscience a reasonable notice of about 15 days (even if it did not expire by the end of the month of tenancy ) was essential to determine a monthly tenancy.

4. The submission of Mr. Sethi has force previously , the law on the point whether a notice terminating the tenancy was or was not necessary before filing of the application of eviction of the tenant appeared to be little obscure in view of a line of decisions taking the view that the Rent Acts were a complete code in themselves and termination of tenancy before seeking eviction of the tenant from the Tribunal constituted under the Act was not necessary Relying on the observations of the Supreme Court in Northen India Cateress Private Ltd. v.State of Punjab and Another, (1967) 69 PLR 781 [LQ/SC/1967/114] ; the Division Bench in Batta Mals case held that Rent control legislation did not derive the tenant of the pre-existing protection, enjoyed by him under Section 106 of the Transfer of Property Act, 1882. On the basis of Bhajya Punjalal Bhagwandin v. Dave Bhagwat Prasad Prabhuasad, 1963 SCR 312; it further said that right to possession was to be distinguished from the right to recover possession. The right to possession, it was observed arose when the tenancy was determined and then followed the right to recover possession which accrued when the tenant failed to hand over possession as he was bound to do under law on the termination of his tenancy and the necessity arose to recover possession through Court . After referring to the other decisions of the Supreme Court, the Bench in conclusion held that no distinction could three be made between the tenancy which commenced before the provisions of Section 106 of the Transfer of Property Act came into force in the Union Territory of Delhi and the tenancy that came into being after the coming into force of this provision. In both cases, it was necessary for the landlord to terminate the tenancy of the tenant before the right to recover possession through Court could accrue to him. The authority fully supports Mr. Sethis contention.

5. Mr. K.R. Gupta, appearing for Balmukand, respondent, however, strenuously urged that in this case Boota Ram was only a statutory tenant and not a contractual tenant and no notice of eviction was, therefore, necessary to terminate his tenancy. He also urged that in the fact of this case, the appellant should have been held to have waived his right to the notice of ejectment because he did not take this objections in the first written statement filed by him and that it was only after the lapse of over two years that he moved the Additional Rent Controller for amendment of his written statement, to incorporate this plea. In these circumstances, the learned Counsel urged, even if it be assumed that such a notice was necessary it should be held to have been waived by the tenant appellant.

6. In support of the first condition, the learned Counsel placed reliance on Kesar Das v.. Jaisa Ram, (1967) 69 PLR 499; and Harbans Lal v. Ram Dhan, 1967 68 Supplementry PLR 582;. In Kesar Dasss Case the house of which the premises in suit formed part was an evacuee property which was originally allotted to the respondent Jaisa Ram on his undertaking to pay Rs. 6/8-per mensem to the Custodian. Subsequently , the portion shown in red in the plan filed in this case was taken out of his possession and allotted to Kesar Dass, appellant, in consideration of Rs. 2/7 per mensem. The remaining portion continued with Jaisa Ram and the became its owner. An appeal preferred by Kesar Dass against this order of transfer in favour of Jaisa Ram was dismissed by the Settlement Commissioner. Jaisa Ram duly intimated Kesar Dass of these facts but he refused to recognize the title of Jaisa Ram and also refused to pay him anything by way of rent or for use and occupation of the premises. In this situation Jaisa Ram, on December 26, 1969, applied for ejectment of Kesar Dass under Section 13 of the Urban Rent Restriction Act on several grounds including non-payment of rent. Kesar Dass pleaded that there was no relationship of landlord and tenant between him and Jaisa Rai. On this plea, Jaisa Ram withdraw his application for ejectment and served a notice on Kesar Dass that the licence in his favour in respect of the premises stood terminated and called upon him to hand over its vacant possession. On the failure of Kesar Dass to comply with notice, he filed a suit for possession of the property with the plea that Kesar Dass had no right or interest in the property and was not entitled to remain in its possession as he had originally entered into possession as a licence under the Custodian and his licence stood revoked. He also pleaded that this licence in favour of Kesar Dass also stood revoked because of the latters repudiation of Jaisa Rams title in the property . An argument was advanced in this case before the Court that Kesar Dass had originally occupied the property not as a tenant under the Custodian but as an allottee who, according to the definition of the word given in the Evacuee Property Act meant nothing more than a licensee. Dealing with this plea, on page 503 of the report, the Court observed as under: even if it be accepted that before the property was purchased by the respondent. Kesar Dass was in its possession as a mere licensee, his case will still be covered by Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, and he can claim the status of a tenant under the purchaser of the property as this provision is not confined to a tenant under Custodian, but to every person who is in lawful occupation of the transferred property, and such a person in lawful occupation is to be deemed a tenant.

7. In this case the Court observed in para 12 that after Jaisa Ram had acquired property from Rehabilitation Department Kesar Dass being previously in possession as an allottee or a licensee under the Custodian by virtue of Sub-section (1) of Section 29 of the Act, became a tenant under Jaisa Ram but since he persistently refused to acknowledge Jaisa Ram as his landlord and never paid rent to him, his status remained that of a statutory tenant only in the sense that he was entitled to the protection under Section 29 for two years. These observations do not at all help Balmukand because in the instance case it is not denied that after the purchase of this property by him Boota Ram did actually pay rent to him. Besides the above observations strenuously relied upon were made in the judgment only in the context of the facts of the case and for determination of the question whether eight could be inherited by the legal representatives of Kesar Dass. Jaisa Rams case thus cannot be relied upon for the proposition set up. The same considerations apply in the second case of Harbans Lal v. Ram Dhan, cited by Mr. Gupta. In this case, Jaisa Rams case was simply followed.

8. Mr. K.R. Gupta, then urged that Boota Ram was simply a licensee in respect of the premises and not a tenant of the Custodian and therefore, the provisions of Section 29 of the Displaced Persons Rehabilitation Act will not make him a tenant. Relying on Dr. H.S. Rikhi v. New Delhi Municipal Committee AIR 1962 SC 554 [LQ/SC/1961/308] ; the learned Counsel urged that the concept of tenancy is wholly different from that of a licence and distinction should, therefore, be made between the two. I am unable to see how this difference is of any relevancy in the context of the point in issue. Section 29 covers the case of all persons in lawful possession of any immovable property of the class notified in Subsection (2) of Section 29 which is transferred to another person under the provisions of this Act and makes no distinction between a licensee or an allot tee. Both these persons are lawful occupants of property within the meaning of Section 29 of the Displaced Persons Rehabilitation Act. After the transfer of the property in their occupation this provision says that they would be deemed to be tenants of the transference in respect of the property in their respective occupation. The word deemed in the Section creates a legal fiction and the Court it bound to give full effect to it. Reference in this connection may be made to State of Bombay v.. Pandurang Vinayak and Others,7 where it was held that when a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purposes between what persons the statutory fiction is to be resorted to and thereafter full effect must be given to the statutory fiction and it should be carried to its logical conclusion.

9. I am, therefore, of the opinion that the appellant had become a tenant of the respondent by operation of law and had been paying rent to him as such and the respondent was bound to terminate his tenancy before the right to claim eviction could accrue to him.

10. Coming now to the second contention of Mr. Gupta, I find that the plea of waiver urged was no where taken by the respondent either before the Additional Rent Controller or before the Rent Control Tribunal. Waiver is essentially a question to fact. It has to be conscious and deliberate. The submission that because the appellant had not taken the plea of want of notice in the first written statement and that the same was taken by him only after the lapse of over two years in the amended written statement does not by any stretch lead to the conclusion that there was waiver of this plea on the part of boota Ram. The word waive according to whartons Law Lexin means to forego, decline to take advantage of . Until and unless it is clearly proved to the satisfaction of Court that the person having the right conclusively decided to foreio it or take advantage of it waiver is not to be inferred. Waiver is a deliberate and conscious act no distinguished from estoppel which may be created by law. Whether the objection has been waived or not in a given case is a question which has to be decided on the direct as well as circumstantial evidence available on the record. The fact that Boota Ram sought to get his written statement amended to incorporate this plea specifically is an indication to the contrary and shows that he did not waive this plea even at the stage of trial. Reference in this connection may also be made to Manohar Lal v. Sadhu Ram, 1970 RCJ 724;. It is, therefore, not possible to sustain the submission of Mr. Gupta that Boota Ram had waived the plea of notice.

11. In view of the above discussion I have no hesitation in holding that a notice terminating the tenancy of the appellant was necessary before the application claiming his eviction and the order passed in this case is not sustainable in law.

1. S.A.O. 341 of 1969 is, therefore, accepted but the parties are left to bear their own costs.