Ganesa Naidu and Others vs C. Mallaram Singh

Pandrang Row, J.—This is an appeal from the decree of the City Civil Judge, Madras, dated 2nd February, 1935, in O.S. No. 783 of 1934

a suit for ejecting the defendants and for recovery of possession of the plaint property. According to the plaintiff the site on which the plaint

superstructure stands belonged to one Abdul Huq and the defendants were the tenants of the site who had put up the suit superstructure thereon

and were paying a rent of Rs. 1-13-0 per month. The plaintiff purchased the site from Abdul Huq on 15th October, 1934. Some months earlier in

execution of a decree of the Small Causes Court the superstructure belonging to the defendants had been sold and purchased by the plaintiff

himself on 5th May, 1934. The plaintiff therefore claimed to be the owner of the house as well as the site and on the strength of this title to the

house and the site he claimed to recover possession of both. The superstructure was purchased by the plaintiff on 5th May, 1934, and immediately

thereafter on the strength of this purchase, in Court-auction, of the superstructure, he instituted a suit for ejecting the defendants, namely, O.S. No.

346 of 1934. In that suit the lower Court held that the plaintiff had not become, by reason of the purchase of the superstructure, the purchaser of

the leasehold right of the defendants and that his only right was to pull down the superstructure and take away the materials. That finding-is res

judicata as no appeal was filed from the judgment of the lower Court in that suit, and it may be mentioned here that it was only a few days before

the judgment in that suit was pronounced that the site itself was purchased by the plaintiff on 15th October, 1934. It is clear therefore that the

plaintiff is not entitled by reason of his purchase of the superstructure in Court auction in execution of a Small Cause Court decree, to eject the

defendants and his claim to eject the defendants must therefore be rested on the rights which he acquired by reason of the purchase of the land

itself from the owner Abdul Huq.

This is indeed clear from a consideration of Section 28 of the Presidency Small Cause Courts Act. In any case the matter is now res judicata by

reason of the decision of the lower Court in O.S. No. 346 of 1934. A number of issues were framed by the lower Court in the present suit and the

suit was decreed, all the issues being found against the defendants and in favour of the plaintiff.

In the present appeal by the defendants it is sufficient to consider only one question, namely, the question covered by issue No. 2 in the Court

below which runs as follows:

Is the suit not maintainable for want of proper notice?

In order to determine this question it is necessary to decide whether the defendants are tenants as defined by the Madras City Tenants

Protection Act (III of 1922), because it is only u/s 11 of that Act that three months'' notice is required to be given before a suit for ejectment can

be instituted against the tenant as defined in the Act. The word ''tenant'' is defined in that Act as follows:

''Tenant'' means tenant of land liable to pay rent on it, every other person deriving title from him, and includes persons who continue in possession

after the termination of the tenancy.

There can be no doubt that the defendants are ''tenants'' as defined above, and this cannot be seriously questioned. They are tenants of land and

the fact that the superstructure put up by them was sold in Court auction does not terminate their tenancy. It cannot be pretended that because the

superstructure is sold or burnt down the tenancy ceases to exist, or that the tenancy under the Act becomes an ordinary tenancy. By virtue of the

decision in the former suit O.S. No. 346 of 1934, it must be held as established between the parties that the leasehold right of the defendants still

inheres in the defendants in spite of the sale of the superstructure. In other words it is clear, that the defendants continued to be tenants even after

the sale of the superstructure. This is res judicata. They were tenants within the meaning of the Act before the sale, and I do not see how it can be

contended seriously that the sale of the superstructure has the effect in law of changing the nature of the tenancy from a tenancy under the Act into

an ordinary tenancy to which the Act does not apply.

The Act nowhere contemplates any change in a tenancy to which it applies being brought about except in accordance with the provisions of the

Act.

The learned City Civil Judge appears to think that a tenant under the Act cannot be regarded as being really a tenant under the Act if he is not

entitled to get compensation under Sections 3, 4 and 5 of the Act or is not entitled u/s 9 to compel the landlord to sell the land to him; and he

concludes that where a tenant has no building of his own on the land he is not a tenant within the meaning of the Act. This view is in my opinion

clearly wrong. It is obvious that where a tenant has no improvement or building of his own no compensation can be due to him or if he does not

want to purchase the land, the question of compelling the landlord to sell the land does not arise. Whether the right to get compensation or to

purchase the land exists or not the tenancy under the Act remains, at least so far as Section 11 of the Act is concerned, which gives him the benefit

of three months'' notice instead of notice for a shorter time under the ordinary law.

The learned City Civil Judge''s view, that the spirit of the Act shows that where the tenant has no improvements he cannot claim that three

months'' notice should be given to him u/s 11 of the Act, is in my opinion not supported by any reason and certainly not supported by any

authority. The provisions of Section 11 are certainly provisions in favour of the tenant and not in favour of the landlord, and to that extent it is one

of the benefits conferred on the tenants by the Act, and if the defendants are tenants under the Act they cannot be deprived of the benefit of the

protection given by Section 11 simply because they are not entitled to other benefits given by the Act. Even if by reason of certain circumstances

other benefits conferred by the Act may not be available to them there is no reason to deny such benefits as are available to the tenant under the

Act.

I have therefore no doubt that this question, namely, whether the defendants are tenants within the meaning of the Act must be answered in the

affirmative. Section 11 of the Act provides that no suit in ejectment shall be instituted until after the expiration of three months after notice in writing

has been given requiring the tenant to surrender possession. That such notice has not been given in the present case is admitted and therefore this

suit for ejectment is not maintainable, and on this ground alone the appeal has to be allowed. It is therefore unnecessary to consider the question

whether if the suit were maintainable the defendants would be entitled to proceed u/s 9 of the Act. The decree appealed from is set aside and the

suit is dismissed with costs in this Court and in the Court below.