Judgment

MOHAN, J.- The facts leading to the civil appeal are as under.

2. One Ahmedi Begum was the owner of Dharampur Lodge situated near Clock Tower, Sabzi Mandi, Delhi. She leased out the entire property to one S. Sardul Singh Caveeshar. The lease was for a period of 5 years evidenced by registered lease deed dated 12-4-1948. On expiry of the said lease another lease dated 3-4-1953 was executed for a further period of 5 years which was also duly registered.

3. Both these lease deeds empowered the lessee S. Sardul Singh Caveeshar to sublet the whole or a part of the demise property. S. Sardul Singh Caveeshar sublet various portions of the property to several subtenants. One such subletting was in favour of the appellant, Manphul Singh Sharma in April 1948 and another portion to Yog Raj Goswami in August 1956.

4. On 1-9-1956 the tenant S. Sardul Singh Caveeshar by a registered lease deed sublet the entirety of the property in favour of Surinder Kumar Sharma. That, in turn, authorised Surinder Kumar Sharma to sublet. Thereafter S. Sardul Singh Caveeshar called upon all the subtenants to attorn in favour of Surinder Kumar Sharma. The appellant and Yog Raj Goswami started paying rents to Surinder Kumar Sharma.

5. Consequent to the failure of the head tenant S. Sardul Singh Caveeshar to pay the rent, in spite of the notice of payment by the landlady on 23-7-1957, the tenancy in his favour came to be terminated. Ahmedi Begum filed a suit for recovery of arrears of rent and ejectment, after obtaining the necessary permission under the Slum Areas Improvement and Clearance Act of 1926. That suit ended in a decree in favour of Ahmedi Begum. Those execution proceedings stood transferred to High Court. Surinder Kumar Sharma, the subtenant, filed objections to the effect that he was a lawful subtenant and became a direct tenant under the decreeholder by virtue of Section 20 of the Delhi & Ajmer Rent Control Act, 1952(hereinafter referred to as the 1952 Act). His claim was negatived both by the learned Single Judge and the Division Bench of the High Court.

6. The appellant and Yog Raj Goswami filed similar objections that the subletting in their favour was with the consent of the landlady and Section 20 of the 1952 Act would enure to their benefit. The objection was overruled by a learned Single Judge of the High Court. He reasoned that the appellant had attorned to Surinder Kumar Sharma under written direction of S. Sardul Singh Caveeshar. This would tantamount to surrender of tenancy under S. Sardul Singh Caveeshar and creation of tenancy in favour of Surinder Kumar Sharma. Therefore, he was not a lawful subtenant. Similar objection of Yog Raj Goswami was also dismissed. Aggrieved by this, appeals were preferred in EFA(OS) 7 of 1971 and 9 of 1972 by the appellant as well as Yog Raj Goswami.

7. Ahmedi Begum died in February 1980, pending appeal. One M.A. Khan claimed that Ahmedi Begum had created a wakf and he was the Mutawalli.

8. The Delhi Wakf Board further instituted a suit for declaration that M.A. Khan had nothing to do with the property nor was he a Mutawalli. On the contrary, the property stood vested in the Board as wakf. In the appeals filed by the appellant and Yog Raj Goswami both M.A. Khan as well as the Delhi Wakf Board came to be impleaded as legal representatives of Ahmedi Begum. The Appellate Bench held that there was no lawful surrender in favour of Surinder Kumar Sharma. Notwithstanding this finding, the appeals came to be dismissed by the impugned judgment dated 31-7-1981, on the only ground that under Section 17 of the Delhi Rent Control Act, 1958 (hereinafter referred to as the 1958 Act), the appellant had not served notice on the owner Ahmedi Begum. That being so, the protection available under Section 18 of the 1958 Act, making a subtenant a statutory tenant was unavailable to him. Questioning the correctness of this judgment the present appeal has been preferred.

9. The only submission of Mr B.B. Sawhney, learned counsel