Nayar Varada Pillai vs Ghulam Dastagir and Others

King, J.—This is an appeal by the landlord of certain property in Madras who filed a suit to evict the tenant. The tenant, claimed protection

under the City Tenants'' Protection Act on the ground that his tenancy originated before the Act came into force. The actual document of lease

between the parties was executed in May 1924 which was after the Act came into force. It was held by the learned Additional City Civil Judge

that in spite of the fact that there was no rent deed until 1924, the tenancy, nevertheless, originated at the time when the first defendant entered into

occupation of the premises.

The only point that has been made in appeal by the landlord is that this case falls within the principle of the decision of the Privy Council

reported in Ranga-nadham Chettiar v. Ethirajulu Naidu (1940) 1 M.L.J. 24 : L.R. 67 IndAp 35 : (1940)I.L.R. Mad. 172 (P.C.). It was held in

that case that in spite of the physical continuity of tenancy, the execution of a particular rent deed in 1923 marked the beginning of a new tenancy.

There is, however, one significant fact in the Privy Council case which has no parallel in this case, and that is that the tenancy created by the lease

of 1923 was at an increased rate of rent from that payable previously. In the present case the rate of rent has remained the same both before and

after--the execution of the lease deed in 1924. It seems to me that if there had been no difference in the terms of the two leases which were being

considered by their Lordships of the Privy Council, the decision would not have been that a new tenancy was created by the second lease but that

the tenancy originated with the first lease. There is no oral evidence in this case as to the precise terms upon which the tenancy of the first

defendant originated. We have the important fact that the rent was the same. The other terms of the tenancy except those which the Act invalidates

are of minor importance, and I think I may fairly presume that those terms suffered no change or modification in 1924. It seems to me that if there

is any question here of burden of proof it lies upon the plaintiff and not upon the first defendant. In the natural meaning of the word, the first

defendant''s tenancy obviously began before the Act came into force, and it is upon the plaintiff, in my opinion, that the burden lies to show that

what occurred in 1924 was the creation of a new tenancy. He cannot merely show this by falling back upon a decision of principle upon

distinguishable facts. On these grounds I am of opinion that the learned City Civil Judge was right in dismissing the plaintiff''s suit.

In the result, the appeal fails and is dismissed with costs, one set.