( 1 ) THIS is a regular second appeal arising out of a suit for possession and recovery of damages for wrongful use and occupation. The property involved is a portion of building No. 2674 Bhagat Singh Street, Chuna Mandi, Paharganj, New Delhi which was acquired evacuee property auctioned to the plaintiff on 26th June, 1959. The highest bid of the plaintiff No I was accepted and a sale certificate effective from 28th December, 1960 was issued on 28th February, 1965. The claim was that the first defendant was in occupation of a portion of the property and his status was that of a trespasser becasuse his possession was never confirmed or regularised by the Custodian Evacuee Property/managing Officer. Alternatively it was pleaded that he was not protected as he had not paid the arrears of rent to the Custodian. As far as the second defendant was con cerned, it was claimed that she was in occupation on behalf of the first defendant and she had no independent right at all in the property. The court framed certain issues on which the decision was that the plaintiff was the owner of the property and that the defendant was not a tenant and accordingly the suit was decreed. On appeal the judgment and decree were confirmed by the Additional District Judge.

( 2 ) THE main controversy in the case was about the rights of the appellant in the property. Being an acquired evacuee properly, the lawful occupants in the property were protected by Section 29 of the displaced Persons (Compensation and Rehabilitation) Act, 1954. That section states that the class of persons notified under it would become tenants and would not be liable to ejectment for a period of two years Acting under this provision the Central Government issued SRO 2219 declaring the persons who were protected by the Act Those persons were (a) lawful occupants from whom no arrears of rent was due ; (b) lawful occupants who cleared the arrears of rent within sixty days of the transfer, (c) displaced persons having preferred claims in excess of the arrears of rent and (d) displaced persons having verified claim but in whose case the arrears of rent exceeded the amount of compensation. Then he had to pay the extra amount within sixty days of the transfer.

( 3 ) CLEARLY if the appellants were lawful occupants they will be protected under Section 29. So. the only point for consideration before the court is whether the appellants were lawful occupants. All other points are of minor importance.

( 4 ) THE case of the appellants is that in order to show that they were lawful occupants a survey report of 1-4-1949 was called for but was not produced. It was alleged that the Department s witness who had been summoned took the stand that the appellant was not shown in the survey report. An application was moved under Order 41 Rule 27 before the lower appellate court to show that the survey report showed that Baldev Raj was in occupation in 1949. The survey report appears to convey his occupation. This application was rejected by the lower appellatecourt. The counsel for the appellant urges that this application under Order 41 Rule 27 was wrongly rejected as the appellant was diligent and did everything possible to get the survey report before the court but due to some wrong information the Custodian Department never produced the survey report, lam inclined to hold that the appellant could not be denied the opportunity of reference to the survey report if it had to be seen for proving the nature of occupation. The report, however, is of 1949 and though it indicates that there was a move to give rent receipts to the persons shown in the survey report there is no evidence to show that any action was taken resulting in the acceptance of the persons as tenants.

( 5 ) THE real controversy in this case has to be settled following the provisions of Section 29. Though I am sifting the analysis which has been made by the Additional District Judge. In order to show what the gection