C.S. Nagamma Bai vs Thangavelu Naicker

Ismail, J.—This is a suit for a declaration of title to and for delivery of possession, after removing the superstructure thereon, of a plot of land measuring 6 grounds and 306 square feet in Thiagaraya Nagar, Mambalam, covered by Survey Nos. 7091/1 and 7091/2. Admittedly the suit property originally belonged to the Corporation of Madras, having been purchased as part of a huge block of land from one Vasu Naidu under exhibit P-1. According to the Plaintiff, the Corporation of Madras plotted out this land and subsequently the Plaintiff''s mother, Kamala Bai purchased from the Corporation the said plot of land bearing No. 25 in block No. 19 covered by Survey Nos. 74/2 (part) and 86 (part) of an extent of 6 grounds and 306 square feet for a consideration of Rs. 2,469 under exhibit P-2. According to the Plaintiff, her mother Kamala Bai even during her life time got a fencing erected round the entire plot and a well dug in the western portion of the plot. Kamala Bai died on 9th June 1939 leaving a Will, dated 21st November 1938 which was probated by this Court in Original Petition No. 24 of 1942 under which the suit property amongst others was bequeathed to the Plaintiff. The further case of the Plaintiff is that the Defendant herein used to supply milk to the Plaintiff a family and in that connection he used to borrow money from the Plaintiff and her husband for the purpose of purchase of cattle and for other purposes connected therewith. While so, he requested the Plaintiff to grant him permission to occupy the land for the purpose of tying and keeping his milking cattle in the suit land and the permission was granted in about 1947. The further case of the Plaintiff is that subsequently the Defendant put up a hut at the northern end of the eastern half of the land occupying an extent of 200 square feet. Later according to the Plaintiff, the land was surveyed and it was given two Survey Numbers 7091/1 of an, extent of 3 grounds and 1147 square feet, and 7091/2 of an extent of 2 grounds and 2100 square feet, and, since the portion referable to Survey No. 7091/2 formed part of the Mambalam Zamin, the Plaintiff [was given patta therefore by order of the Final Settlement Enquiry Tahsildar, dated 29th November 1959 (exhibit P-21). The Plaintiff avers that a year prior to the filing of the suit the Defendant began to set up a hostile title and repudiate the title of the Plaintiff in the suit land and, further, claimed title by adverse possession; on 20th January 1962 the Plaintiff through her Advocate sent a notice to the Defendant setting forth the facts and determining the lease and licence to occupy the land given to the Defendant, and called upon the Defendant to deliver vacant possession of the suit land to her after removing the superstructure thereon and restoring the land to its original condition. The Plaintiff''s further averment is that the hut put up by the Defendant in the northern end of the eastern portion of the land was demolished by him in or about July 1961, and he put up a hut for the; first time in the western portion of the suit land, i.e., on the land, bearing Survey No. 7091/1, without the knowledge or permission of the Plaintiff, and later on the Defendant also constructed a cattle shed of thatched materials on the suit land by the side of the hut. According to the Plaintiff, after the receipt of the notice, dated 20th January 1962, the Defendant, through his lawyer, Row and Reddy, sent a reply, dated 31st January 1962, whereby, inter alia, it was stated that the Plaintiff is not the owner of the entire extent of 6 grounds and 306 square feet, that a portion of the land formerly bearing Survey No. 74/2 situate in block No. 19, plot No. 28 of T. Nagar, belonged to one Sivasubramania Chettiar, son of Manicka Chettiar, that the Defendant has been in possession of this land for over twenty years continuously, that he claimed title by adverse possession, that the Plaintiff had no right, title or interest to this part of the property which measures 9 grounds and 2,000 square feet and corresponds to the present Survey No. 7091/1, that the remaining part of Survey No. 84 belonged to the Plaintiff and that the Plaintiff could take possession of the same. On receipt of this letter, the Plaintiff caused another letter to be written to the Defendant on 1st April 1962 calling upon him to deliver possession of that portion of the land which the Defendant admitted to belong to the Plaintiff and expressed readiness to hand over to her, while reserving the right to take appropriate proceedings against the Defendant to vindicate her rights to the rest of the land. But the Defendant failed to hand over possession of even that portion of the land. The Plaintiff has filed the suit contending that the Defendant was only a licencee under the Plaintiff, and the Defendant having been let into occupation of the land for the purpose aforesaid is estopped from denying the title of the Plaintiff. The Plaintiff contends that the Defendant haying denied the Plaintiff''s right and title to the land and having claimed adverse title has, in any event, forfeited his right to occupy the suit land whether as a licensee or even as a tenant and hat become a trespasser. The Plaintiff, therefore, filed the suit for declaration of her title to the property and for recovery of possession from the Defendant after removal of the superstructure. She has also claimed that subsequent to the determination of the leave and licence granted to the Defendant, he was liable to pay damages for use and occupation of the suit land which the Plaintiff estimated at Rs. 60 per mensem. On this him she has also prayed for a decree against the Defendant to pay damages for use and occupation of the land at Rs. 60 per mensem from 1st February 1962 up to the date of delivery of possession.

In the written statement filed by the Defendant he contends that the land bearing block No. 19, plot No. 28 and Survey No. 74/2, measuring about 3 grounds and 2,000 square feet belonged to one M. Sivasubramania Chettiar, he having purchased the same under a document, dated 4th Jane 1938 from the Corporation of Madras in or about 1942 the said Sivasubramania Chettiar handed over possession of the suit property measuring 3 grounds and 2,000 square feet in block No. 19, plot No. 28, of T. Nagar, and corresponding to Survey No. 7091/1, to the Defendant and ever since that date, i.e., the year 1942, the Defendant has been in possession of this portion of the property absolutely as owner and has been paying ground rent, property tax, etc., in respect of the suit land and hence the Defendant has perfected title to the suit property by adverse possession. The Defendant had put up valuable structures in the suit property ever since 1942 as owner. The case of the Defendant with regard to Survey No. 7091/2 was that he acknowledged the title of the Plaintiff to the said property, but claimed that he had been a tenant of the Plaintiff in respect of the said plot. In that capacity he claimed that he was entitled to the rights conferred on a tenant under the Madras City Tenants'' Protection Act, 1922, as amended by Act XIX of 1955. He denied the case of the Plaintiff that the hut put up by him in the eastern portion of the property was demolished by him in July 1961, and, on the other hand contended that be had put up valuable structures as cattle shed, and that superstructure continued. He denied the other claims of the Plaintiff in detail in his written statement.

For the purpose of completing the events that have taken place, I must also refer to one or two other facts even at this stage itself, since they happened during the pendency of the suit. I have already referred to the fact that the Plaintiff has claimed in the, plaint that the Pinal Settlement Enquiry Tahsildar on 29th November 1959 had granted patta to the Plaintiff in respect of Survey No. 7091/2. That order of the Tahsildar has been marked as exhibit P-21. In that order the Tahsildar had stated that Survey No. 7091/1 was a land acquired by the Government for the Corporation under the Land Acquisition Act and patta for the acquired land had been already issued by the Revenue Department and that patta was then being issued only for Survey No. 7091/2. In view of this order of the Tahsildar, on 22nd July 1961, the Plaintiff''s husband addressed the Tahsildar, South Madras Division, for the purpose of grant of patta for Survey No. 7091/1 (exhibit P-23). In reply to this application, the Tahsildar on 4th November 1961 stated that the land bearing Survey No. 7091/1 with an extent of 3 grounds and 1147 square feet, stood registered in the name of Sivasubramania Chettiar, and called upon the Plaintiff''s husband to produce^ documentary link connecting the registered holder with the vendor in this document, and he also pointed out that it was reported that &e Plaintiff was not in possession of the property, that one Thangavelu Naicker (Defendant) was living in the land for the last twenty years without paying rent to any one and that, in those circumstances, the transfer of registry applied for by the Plaintiff''s husband could not be complied with. A copy of this communication was sent to the Defendant with reference to his objection petition, dated 26th September 1961. On 16th April 1962 the Tahsildar sent a notice to the Plaintiff asking her to produce evidence to show that she was the owner of the land and this notice has been marked as exhibit P-29. The Plaintiff''s husband appeared before the Tahsildar on 21st April 1962 and gave a statement by the Plaintiff stating her case with regard to the title to Survey No. 7091/1 and this statement has been marked as exhibit P-30. Afterwards by a communication, dated 28th June 1962 (exhibit P-34) the Special Tahsildar for Urban Taxation, intimated to the Plaintiff that the land covered by Survey No. 7C91/1 of block No 115 had been registered in the, name of the Plaintiff and, if she so desired, an extract from the T.S. Land Register would be furnished to her on payment of Re. 1 into the Taluk Treasury, and the extract granted to her, dated 9th July 1962 is marked as exhibit 1(sic)35. Against this order of the Tahsildar the Defendant herein preferred an appeal to the Collector of Madras on 11th July 1962 and the Plaintiff received a notice, dated 29th August 1962 marked as (exhibit P-36) of this appeal. The Plaintiff in reply to the appeal set out her case in a statement which has been marked as exhibit P-37. Ultimately, since the suit has been filed before the authorities could complete their enquiry an intimation dated 2nd December 1963 was sent to the Defendant stating that he might renew his petition for the transit of the registry in respect of the abate field, i.e. Survey No. 7091/1 after establishing his claim in a Court of law, and this communication which is found in the file summoned from the office of the Collector has been marked as exhibit D-15.

One other event to which reference has to be made at this stage is that on 12th October, 1963, toe Counsel for the Plaintiff sent a communication to the Counsel for the Defendant stating that on that date the Defendant was erecting a hut in the eastern portion of the suit property which bears Survey No. 7091/2 which was a vacant site then, and that communication requested the Counsel for the Defendant to advise the Defendant not to act in a high-handed manner, especially when a suit was pending, and this communication is marked as exhibit P-39. In reply to that, on the same date, the Counsel for the Defendant sent a communication to the Counsel for the Plaintiff, which has been marked as exhibit P-40. In that communication the statement contained in exhibit P-39 was denied and it was contended that $he superstructure on the suit property had been there already for a number of years and that the Defendant would be able to prove the same at the appropriate time and as the leaves of the shed had been disturbed due to recent rains and winds, the Defendant was merely attempting to put up fresh leaves wherever necessary. It is also the admitted case that on that date the Plaintiff gave a police complaint against the Defendant in respect of the alleged construction on the eastern portion of the land on 12th October 1963 and in that connection the Defendant was taken to the police station and a writing was taken from him with reference to the construction and the Defendant was sent away. Since I shall have to make reference to this part of the case as revealed in the evidence of the Defendant himself, it is unnecessary to say anything further at this stage.

On these pleadings of the parties the following issues were framed by this Court:

Is the Plaintiff the owner of S. No. 7091/1?

Was the Defendant let into occupation of the suit property with leave and licence of the Plaintiff?

Is the Defendant estopped from denying {ha title of the Plaintiff?

Has the Defendant been in adverse possession of the property bearing Survey No. 7091/1 and has he perfected title by adverse possession as against the Plaintiff of Surrey No. 7091/1?

Is the Defendant a tenant of Survey No. 7091/2 or is he only in permissive occupation of the said Surrey No. 7091/2?

Has the Defendant forfeited his tenancy, having deemed the Plaintiff''s title to the suit land?

Is the Defendant entitled to any rights under the Madras City Tenants Protection Act in respect of Survey No. 7091/2?

Is the Defendant entitled to purchase any extent of Survey No. 7091/2 and if so what extent?

Is the suit not maintainable?

To what damages, if any, is the Plaintiff entitled?

To what relief, if any, is Plaintiff entitled?

As will be seen from the pleadings and the issues, the principal points that arise for consideration are: (i) whether the Plaintiff is the owner of Surrey No. 7091/1 and, if so, whether the Defendant has perfected his title to the same by adverse possession; (ii) the title of the Plaintiff to Survey No. 7091/2 having been conceded by the Defendant, whether the Defendant is a tenant coming within the scope of the Madras City Tenants Protection Act, 1922, as amended in 1955, and, if he is such a tenant, whether he is entitled to any benefit as claimed by him. As a matter of fact, I may point out immediately, that, claiming to be a tenant coming within the scope of the Act and entitled to the benelts conferred by the Act, the Defendant has filed an application u/s 9 of that Act, for the purpose of a direction to the Plaintiff to sell the land to him and that application has been numbered as Application No. 2231 of 1963. In view of the fact that the Defendant has conceded the title of the Plaintiff in respect of Survey No. 7091/2, it may not be necessary to discuss the question of the Plaintiff''s title in respect thereof. However, while discussing the question of Plaintiff''s title which is challenged, in respect of Survey No. 7091/1, it is inescapable that the question of the Plaintiffs title to both the survey numbers will have to be discussed, since, according to the plain tiff, both the survey numbers constitute one block and her mother purchased the same from the Corporation under a single document of title as a single block of land.

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Taking all these circumstances into consideration, I have no hesitation in concluding that Survey No. 7091/1 formed part of the original plot No. 25 purchased by Kamala Bai from the Corporation of Madras. Consequently, the Plaintiff is the owner of the land.

Before parting with this part of the case. I want to mention one fact. Exhibit P-43 is a plan referable to Madras Town, Thiagaraya Nagar, Mambalam Extension, Mylapore Division No. 29, of Block No. 115. This plan shows Survey Nos. 7091/1 and 7091/2 together as being comprised in a single block of land of 158 feet from west to east in the north and 150 feet from west to east in the south, 114 feet from north to south in the east and 80 feet from north to south in the west. The significant thing to notice is that the plan, exhibit P-2 A which is a plan annexed to exhibit P-2, which is the sale deed in favour of Kamala Bai, the identical dimensions have been given as the dimensions of plot No. 25 except for the difference that in exhibit P-2-A the length from North to South on the East is given as 113 feet, while in exhibit P-43 it is given as 114 feet. At the time when this document was marked no objection was taken either as regards its admissibility or the mode of proof. However at the time of arguments Mr. N.C. Raghavachari, the learned Counsel for the Defendant contended that the said document was not admissible since it has not been certiled as required by Section 76 of the Indian Evidence Act. X must point out that Mr. Raghavachari made it clear that he was not disputing the genuineness of the document, but he was only insisting that the document has not been edified as required by law. In answer to this Mr. V. Thiagarajan the learned Counsel for the Plaintiff contended that the learned Counsel for the Defendant not having taken any objection to the marking of the document or not even having allowed it to be marked subject to proof, it was not open to him to raise the objection in the course of the arguments. According to the learned Counsel, if an objection had been taken at the time when the document was marked, he would have summoned the original and the officers to come and give evidence or he would hare got the copy certified as required by law and that opportunity the Plaintiff has been deprived of because of the Defendant''s Counsel not taking any objection at that stage when the document was marked. For this purpose the learned Counsel relied on the decision of the Privy Council in Gopal Das v. Sri Thakurji (1943) 2 M.L.J. 51. On the other hand, Mr. Raghavachari contended that the matter in controversy does hot relate to the mode of proof to which alone that decision would apply, but that he was contesting the admissibility of the document itself. I am inclined to agree with the learned Counsel for the Plaintiff that the point raised by the learned Counsel for the Defendant is covered by the decision of the Privy Council referred to above However, since I have arrived at the conclusion that. Survey No. 7091/1 forms part of plot No. 25 purchased by Kamala Bai from the Corporation of Madras and, therefore, the Plaintiff is the owner thereof, independently of this document it is unnecessary for me to give any definite opinion on this controversy. I must make it clear that even without any reference to exhibit P-43, the other piece of evidence, which are overwhelming, clearly and inexorably point to the fact that Survey No. 7091/1 does form part of plot No. 25 only and, therefore, the Plaintiff is the owner thereof.

In this suit, of course the onus is On the Plaintiff to establish her title to Survey No. 7091/1. and I have held that she has discharged that onus and established her title; still I must point out that it is unthinkable that Sivasubramania Chettiar, who had purchased plot No. 28 of an extent of 3 grounds and 2,000 square feet in the City of Madras would have left it uncared for and allowed the Defendant to occupy the same claiming it adversely to him, as alleged by the Defendant. It is impossible to believe that he ceased to take any interest in such a valuable property, as stated by the Defendant. On the other hand, the evidence of P.W. 2 and exhibits P-3 and P-5 clearly show that Sivasubramania Chettiar, who had purchased not only plot No. 28 from the Corporation of Madras but aim plot Nos. 26 and 27 sold away all the three plots in 1913 to N.T. Patel. Therefore, the story of the Defendant tout Survey No. 7091/1 constituting plot No. 28 belongs to Sivasubramania Chettiar who has put the Defendant in possession thereof, is absolutely false.

This takes me to the other aspect of the question relating to Survey No. 7091/1, namely, whether the Defendant has perfected his title by adverse possession to this piece of land. I shall consider this question along with the other question as to whether the Defendant is a tenant coming within the scope of the Madras City Tenants'' Protection Act, 1922, as amended in 1955, in respect of Survey No. 7091/2, and, therefore, entitled to the benefits conferred by that Act. The case of the Plaintiff was that in respect of the entire plot No. 25, i.e., both with regard to Survey No. 7091/1 and 7091/2, the Defendant was in occupation only under the leave and licence of the Plaintiff. On the other hand, the case of the, Defendant was that in relation to Surrey No. 7091/2 he was in occupation as a tenant. Therefore, the first question to be considered is the character in which the Defendant came to occupy either Survey No. 7091/2 or both the survey numbers. Admittedly there is no written instrument evidencing the circumstances and the conditions subject to which the Defendant was permitted to occupy the land. Mr. N.C. Raghavachari, the learned Counsel for Defendant, wanted me to draw the inference, that the transaction entered into between the Plaintiff and the Defendant was one of tenancy, from the evidence of P.W 1 himself. His argument was that P.W. 1 admitted that the Defendant was authorised to put up the hut for his cattle in any part of the entire land of 6 grounds odd, and as consideration for the permission the Defendant was liable to pay a sum of Rs. 10 per month and that Rs. 10 per month was being adjusted against the amount payable by the Plaintiff to the Defendant for the milk supplied by the Defendant to the Plaintiff''s family. From this evidence Mr. Raghavachari wanted me to draw the inference that the nature of the transaction was one of tenancy. Mr. V. Thiagarajan, on the other hand, contended that it was only a permissive possession which the Defendant had and that he was never in possession as a lessee of the land and he relied, for the distinction between a lease and licence, on the decisions of the Supreme Court in Associated Hotels of India Ltd. Vs. R.N. Kapoor, and Mrs. M.N. Clubwala and Another Vs. Fida Hussain Saheb and Others, . As far as the first decision is concerned, that dealt with the construction of a written document, whether it constituted a lease or licence. In the latter decision, the Supreme Court pointed out:

Whether an agreement creates between the parties the relationship of landord and tenant or merely that of licensor and licensee, the decisive consideration is the intention of the parties. This intention has to be ascertained on a consideration of all the relevant provisions in the agreement. In the absence, however, of a formal document the intention of the parties must be inferred from the circumstances and conduct of the parties...Even if it had passed to a. person, his right to exclusive possession would not be conclusive evidence of the existence of a tenancy though that would be a consideration of first importance. The fact, therefore, that a stall holder has exclusive possession of the stall is not conclusive evidence of his being a leasee.

Consequently, all that we have find out in this case is whether, from the facts as revealed by the evidence, is it possible to gather that the intention of the parties was to create a lease between the Plaintiff and the Defendant, and not merely to permit the Defendant to be in possession as a licensee? In my opinion, however, the features in this case go to show that the Defendant herein was not a leasee of the Plaintiff in respect of Survey No. 7091/2.

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Therefore, my conclusion is that in relation to Survey No. 7091/1 the Defendant has not perfected his title by adverse possession, and in respect of Survey No. 7091/2 the Defendant was not a tenant of the premises under the Plaintiff, but was in occupation only with the leave and licence of the Plaintiff.

In view of my conclusion that the Defendant was not a tenant of the Plaintiff in respect of R.S. No. 7091/2, no further question can possibly arise with reference to the Madras City Tenants'' Protection Act,

Section 2(4) of the Madras City Tenants'' Protection Act, defines "tenant" as a person liable to pay rent in respect of such land, under a tenancy agreement express or implied. Consequently for a person to fall within the scope of this definition, the existence of a tenancy agreement is a sine qua non Arid as far as the present case is concerned, I have come to the conclusion that there was no tenancy agreement between the Defendant and the Plaintiff in respect of R.S. No. 7091/2.

In any event, even on the assumption that the Defendant is a tenant of R.S. No. 7091/2, I now proceed to consider the question whether he is entitled to, any protection or the benefit conferred by the Act. For this purpose the crucial question to determine is, whether the Defendant had owned any structure on R.S. No. 7091/2, when he was sought to be evicted. As I pointed out already, the case of the Plaintiff was that he had a hut in the northern portion of R.S. No. 7091/2 and removed or demolished that hut in July 1961 and put up a hut in R.S. No. 7091/1 and only on October 12, 1963, he started erecting a fresh hut in R.S. No. 7091/2. The question for consideration is whether this case of the Plaintiff that the Defendant had demolished the hut which he had in R.S. No. 7091/2 in July 1961 and put up a fresh hut only on October 12, 1963, that is, subsequent to the filing of the suit is true or not.

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However, with reference to the other evidence I have discussed already, I have no hesitation in. coming to the conclusion that the hut put up by the Defendant in R.S. No. 7091/2 was demolished by him in July 1961 and he started putting up a new hut on this survey number only on October 12, 1963.

On this finding, the question that arises is whether the Defendant, even on the assumption that he is n tenant of the Plaintiff, is entitled to the benefits of the Madras City Tenants'' Protection Act. The learned Counsel for the Defendant contended that even if, on the dare of the suit, the structure was not there go long as the Defendant became a tenant of the land for the purpose of putting up the structure, he would be entitled to the benefits of the Act. I am unable to accept this argument. Sections 3, 9 and 11 of the Act make it abundantly clear that for a tenant to be entitled to the benefits of the Act, he must be the owner of a superstructure or building standing ors the land. Section 3 of the Act says that every tenant shall on ejectment be entitled to be paid as compensation the value of any building, which may have been erected by him, etc. Certainly the tenant will not be entitled to compensation for a non-existing building. He must be the owner of a building, when he is sought to be ejected. If the building is not there, then the question of his claiming compensation does not arise and therefore Section 3 of the Act cannot apply. The learned Counsel himself admitted that Section 3 of the Ad can apply dually if Section 3 applies and if Section 3 does not apply, a fortiori Section 9 cannot apply. The further contention of the learned Counsel in this case was that whether the Defendant is entitled to the protection and the benefits of the Act or not, because of the non-existence of the building, still the suit must fail, as the notice contemplated by Section 11 of the Act has not been admittedly given. In my opinion, Section 11 can apply only, when there is a building in existence, and if there is no building in existence Section 11 cannot apply. That section says that:

application or ejectment in suit No u/s 41 of the Presidency Small Cause Courts Act, 1882, shall be instituted or presented against a tenant until the expiration of three months next after notice in writing has been given to him requiring him to surrender possession of the land and building, and offering to pay compensation for the building and trees, if any, and stating the amount thereof.

If there is no building, the question of calling upon the tenant to surrender the building cannot arise and equally the offer to pay compensation for the building cannot arise.

In this context, a Beneh decision of this Court in Annamalai and Co. Ltd. v. Sibgathulla AIR 1956 Mad. 98 is instructive. In that case Sri Parthasarathiswami Temple, Triplicane, had purchased a block of lands forming part of Mambalam Zamindari and had leased them to one Balu Mudali and after his death they were in the occupation of his son, Ramaswami Mudali, after whose death the lands same to be occupied by his cons. Subsequently, the sons evidently as a result of a partition, were in separate occupation and enjoyment of portions of the said block. Sri Parthasarathiswami temple, Triplicane, Madras, filed a suit against the descendants of Balu Mudali for recovery of possession of the entire block of 8 cawnies and odd. Several objections were taken by the Defendants in the suit. One of them was that they were entitled to the protection under the Madras City Tenants'' Projection Act. That defence was finally upheld by a judgment of this Court in Rao Bahadur V. Ranganatham Chettiar and Others Vs. Mariappa Mudali and Others, . Therefore the Plaintiffs in the subsequent suits purchased the property from Parthasarathiswami Temple and filed suits against the alienees from the sons of Ramaswami Mudali for eviction. Some of them were in possession of portions of the land on which there were buildings and some others were in possession of portions of land on which there was no building. An objection was taken by the Defendants that they were entitled to the benefits of the Madras City Tenants'' Protection Act and in. view of the earlier judgment of this Court that protection had become final and could not be denied to them. In rejecting that contention this Court pointed out that on the earlier occasion since the suit was filed in respect of the entire block of lands, and as there were buildings on portions of the block of lands, it was held by this Court that the Defendants in that suit were entitled to the protection of the Madras City Tenants'' Protection Act and on the subsequent occasion the suit was filed against the several individuals, in occupation of different portions of that block of land, on some of which there were buildings and on some of which they were no buildings and in respect of those portions of the land in which there was no building, the Defendants could not claim protection under the City Tenants'' Protection Act. In this context this Court observed:

Admittedly, there is no building on the land in the occupation of either the 2nd Defendant or the 5th Defendant. So there can be no question of either of them, being paid as compensation the value of the building u/s 3.

It is equally clear that the landlord could not have given a notice u/s 11 offering to pay compensation for any building, when there is none. So Section 11 cannot apply. And Section 9 in terms confers a right only on a tenant who is entitled to compensation u/s 3. It is therefore clear that neither the 2nd Defendant nor the 5th Defendant can today claim to be entitled to the benefit of either Section 3 or Section 11, and consequently of Section 9.

One other passage in relation to the claim of the Defendants that in view of the earlier decision of this Court they were entitled to the benefits of the Act will be particularly instructive. The actual passage is:

The rule of ret judicata cannot apply to cases where the applicability of an Act would depend upon the circumstances actually present at the time when the Act is sought to be applied. Taking the very Defendants who were parties to the prior suit, if sometime after that litigation owing to some reason or other all the superstructures had been destroyed or removed from the land, then could it be contended on the strength of that decision they would nevertheless be entitled to the benefit of the Act?

Thus, on the finding that the Defendant had removed the hut which he had put up earlier, in July, 1961 and started putting up a new hut on October 12, 1963, subsequent to the filing of the suit, I hold that even if it is assumed that the Defendant is a tenant falling within the scope of the Act, he is not entitled to the benefit of either Section 3 or Section 9 and Section 11 of the Act, does not apply.

Consequently, my findings on the issues are:

Issue No. 1: The Plaintiff is the owner of Section No. 7091/1 and she has discharged her cnus in establishing the same.

Issue No. 2: The Defendant was let into occupation of the suit property with the leave and licence of the Plaintiff.

Issue No. 3: The Defendant is estopped from denying the title of the Plaintiff, having occupied the suit property with the leave and licence of the Plaintiff.

Issue No. 4: The Defendant had not been in adverse possession of S. No. 7091/1 and has not perfected title to the same by adverse possession as against the Plaintiff.

Issue No. 5: The Defendant is not a tenant of S. No. 7091/2 and he was only in permissive occupation of the same.

Issue No. 6: This issue does not arise in view of my finding that the Defendant was not a tenant of the Plaintiff and he was occupying S. No. 7091/2 only by leave and licence of the Plaintiff.

Issue No. 7: The Defendant is not entitled to any right under the Madras City Tenant''s Protection Act in respect of S. No. 7091/2.

Issue No. 8: Consequent upon my finding on issue No. 7, my finding is that the Defendant is not entitled to purchase any extent of S. No. 7091/2.

Issue No. 9: Obviously this issue was settled on the contention of the Defendant that in the absence of notice u/s 11 of the Madras City Tenants'' Protection Act, the suit was not maintainable. On my finding that the Defendant was not a tenant of the Plaintiff in respect of S. No. 7091/2, the question of the Applicability of the Act itself does not arise and therefore the suit is maintainable. I find this issue accordingly.

Issue No. 10: In the plaint, the Plaintiff has claimed damages for use and occupation at the rate of Rs. 60 per month. However, no evidence has been let in on behalf of the Plaintiff to substantiate this claim. On the other hand, the Defendant''s case was that he was paying a rent of Rs. 10 per month for S. No. 7091/2. If that be the case, the rent for both the survey Nos. must be definitely higher than Rs. 10 per month. However, in view of the absence of any evidence on the part of the Plaintiff, I hold that the Plaintiff is entitled to claim damages for use and occupation only at the rate of Rs. 10 per month. I find this issue accordingly.

Issue No. 11: As a consequence of the cumulative effect of my above findings, the suit is decreed as prayed for except for the extent that instead of Rs. 60 per month, the Plaintiff is entitled to damages for use and occupation only at the rate of Rs. 10 per month from. 1st February 1962 till the Defendant delivers possession of the same. Time for vacating the land-- one month. The Plaintiff is entitled to costs from, the Defendant to the extent to which she has succeeded.

Application No. 2231 of 1963.

In view of my conclusions as above, the application made u/s 9 of the Madras City Tenants'' Protection Act also fails and it is dismissed. There will be no order as to costs in this application.