Padmanabha Mudaliar vs E.B. Purushothaman

P.R. Gokulakrishnan, J.—The respondent in E.P. No. 251 of 1982 is the petitioner herein. The respondent herein filed the execution petition

for delivery of possession after removing the superstructure standing on the vacant land comprised in R.S. No. 353/29 and 353/53 measuring

about 2,767 sq. ft. It is the case of the respondent herein that he filed Ejectment Suit No. 206 of 1966 against one P.S.M. Shanmugam and at that

time, the said Shanmugham had constructed a superstructure at No. 43-C, Perambur High Road, Madras, which is now known as 43-B/l and

now numbered as 60, Perambur High Road. In that ejectment suit, the said Shanmugham filed an application u/s 9 of the City Tenants Protection

Act in M.P. No. 2979 of 1966 for purchasing the land on which the superstructure has been put up. The trial Court held Shanmugham is entitled to

protection under the City Tenants'' Protection Act and has also directed the respondent therein to deposit a sum of Rs. 50/- towards the

Commissioner''s fee for ascertaining the value of the suit property. Thereafter, the respondent herein filed an appeal before the Chief Judge, Small

Causes Court, Madras. The present petitioner was impleaded as a party-respondent on the ground that he has purchased the superstructure from

Shanmugham under a registered sale deed dated 10-3-1969. The Appellate Court, by its order dated 18-6-1969, sent back the matter to the trial

Court on the ground the Door Nos. 43-C and 43-B are different properties in view of Ex. P.12. The trial Court, after remand, found that the suit

property is Door No. 43-C and that the petitioner herein is not a direct tenant of the property in question. Subsequently, an ejectment order was

obtained by the respondent herein and E.P. No. 251 of 1983 was filed for delivery of possession of the property after the removal of the

superstructure thereon. It is clear from the facts of the case that the petitioner herein is only an assignee of the right in the superstructure under the

sale deed dated 10th day of March, 1969. The executing Court, after observing that the assignee, in the absence of proof that he has become the

tenant of the landlord, cannot claim the rights u/s 9 of the City Tenants'' Protection Act, also found that there is no evidence that the petitioner

herein was paying any rent to the landlord who in turn recognised him as his tenant. Accordingly, the execution petition was allowed holding that

the petitioner herein is not a tenant entitled to the benefits of Section 9 of the City Tenants'' Protection Act. It is as against this order, the present

revision petition is filed.

Mr. R.S. Venkatachari, the learned Counsel appearing for the petitioner herein, submitted that the petitioner is a lawful assignee of the leasehold

interest in the superstructure from its previous lessee and owner under the sale deed dated 10th day of March, 1969, and as such, he is entitled to

the protection u/s 9 of the City Tenants'' Protection Act, since he has to be construed as a tenant under the respondent. The learned Counsel

further submitted that the subsequent amendments referred to in respect of Section 2(4) of the Tamil Nadu City Tenants'' Protection Act, 1921,

had not taken away the devolution of the right on the assignee except on the sub-tenants and hence, the right u/s 9 is available to the petitioner

herein. It is further submitted by Mr. R.S. Venkatachari, that the respondent, by virtue of his attestation of the sale deed dated 10-3-1969,

recognised the tenancy of the petitioner herein and as such, he is estopped from contending that the petitioner is not a tenant entitled to the

protection of the Act. In any event, the learned Counsel submitted that the predecessor-in-title having been inducted into possession in the year

1947, the amendments to Section 2(4) which came subsequently will not have any impact on the right which accrued to Shanmugham, the original

tenant of the respondent herein. Mr. D. Raju, the learned Counsel appearing for the respondent, contended that subsequent to the amendment to

the definition of the term ''Tenant'' u/s 2(4) of the Act in 1960, the petitioner is not entitled to get benefits under the Act and that the sale deed in

favour of the petitioner is only on 10th March, 1969. According to Mr. Raju, the petitioner was never recognised as a tenant by the respondent

herein and as such, he will not be entitled to agitate for the right u/s 9 of the City Tenants'' Protection Act.

Number of decisions were pressed into service by Mr. R.S. Venkatachari to substantiate his contention. The decisions rendered in C.K.

Krishna Rao Vs. R. Krishna Dos Lalah and Another, , and Nataraja Iyer v. Subramania Iyer, 75 L.W. 679, are earlier to the amendment in

question. In this connection I can usefully refer to two decisions which were placed before me to substantiate the respective contentions of the

parties herein. Mr. R.S. Venkatachari, submitted that the decision in Azizunnissa Begum v. Govindan Nair, 85 L.W. 23, squarely applies to the

facts of his case and as such, the petitioner, as assignee, is entitled to the benefits of the Act. Mr. D. Raju, on the other hand, relied upon the

decision rendered in Y. Abdul Mallik and Another Vs. St. Francis Xavier''s Church, , and states that this decision squarely applies to the facts of

the present case and that on the basis of the reasoning of this decision, the petitioner is not entitled to the benefits of Section 9 of the City Tenants''

Protection Act. In Azizunnissa Begum v. Govindan Nair, 85 L.W. 23, Sadasivam; J., after distinguishing the decision rendered in Kuppa Bai Vs.

A. Rajagopal Nadar and Another, , held that the party in that case is a tenant entitled to the benefits of the City Tenants'' Protection Act. The

learned judge has not discussed or referred to the right of the assignee in relation to the definition u/s 2(4) of the Act. On facts the learned Judge

found that the party in that case paid the rent and became the tenant within the meaning of Section 2(4) of the Act. In Y. Abdul Mallik and Another

Vs. St. Francis Xavier''s Church, , Ramaswami, J. had occasion to consider the effect of the amendment by Act 13 of 1960 which came into force

on 27th July, 1960. That is the definition which is applicable to the tenant as on date. According to the said definition,

Tenant"" in relation to any land

(i) means a person liable to pay rent in respect of such land, under a tenancy agreement express or implied, and

(ii) includes;

(a) any such person as is referred to in Sub-section (1) who continues in possession of the land after the determination of the tenancy agreement,

and

(b) the heirs of any such person as is referred in Sub-Clause (i) or Sub-Clause (ii)(a); but does not include a subtenant or his heirs.

This definition was further- amended by substituting Clause (ii) by the following Clause by Act XXIV of 1973.

(ii) includes--

(a) any such person as is referred to in Sub-clause (i) who continues in possession of the land after the determination of the tenant agreement,

(b) any person who was a tenant in respect of such land under a tenancy agreement to which this Act is applicable under Sub-section (3) of

Section 1 and who or any of his predecessors in interest had erected any building on such land and who continues in actual physical possession of

such land and building notwithstanding that-

(1) such person was not entitled to the rights under this Act by reason of the proviso to Section 12 of this Act as it stood before the date of the

publication of the Madras City Tenants'' Protection (Amendment) Act, 1972 (Tamil Nadu Act IV of 1972), or

(2) a decree for declaration or a decree or an order for possession or for similar relief has been passed against such person on the ground that the

proviso to Section 12 of this Act as it stood before this date of the publication of the Madras City Tenants'' Protection (Amendment) Act, 1972

(Tamil Nadu Act IV of 1972), disentitled such persons from claiming the rights under this Act, and

(c) the heirs of any such person as is referred to in Sub-Clause (i) or Sub-Clause (ii)(a) or (ii)(b) but does not include a sub-tenant or his heirs.

After extracting the definition, the learned Judge held that by the substituted definition of the word ''Tenant'' by the Tamil Nadu Act 13 of 1960, the

heirs of the tenant alone were included in the definition and the assignees were excluded. The position subsequent to the amendment of the

definition in 1960 was that the assignee of the superstructure and the tenant right will not be entitled to the benefit of the Act irrespective of the fact

whether the assignment was prior to 1960 or subsequent to 1960. Continuing, the learned Judge observed in his judgment as follows:

The definition itself has been extracted already in the earlier part of this judgment. It is seen from Sub-clause (b) of Clause (ii) or Clause (4) of

Section 2 that three conditions will have to be satisfied in order that a person may come under that Clause One is, under the first part of that

provision, he must be a tenant in respect of the land under a tenancy agreement to which the Act is applicable under Sub-section (3) of Section 1.

That means, the tenancy agreement in respect of the land in his favour should have been prior to the coming into force of Tamilnadu Act XIX of

1955, namely, 12th September, 1965. The second condition is, such a tenant or any of his predecessors-in-interest shall have erected the building

on such land. These conditions clearly show that not only the tenancy and the erection of the building should be prior to 12th September, 1965 but,

in cases where the tenant has assigned, the assignment must also be prior to 12th September, 1955. The third condition is the person who claims

the right under the Act should have continued in actual physical possession of such land and building. These three conditions, in my opinion, clearly

show that the definition of the term ''tenant'' is intended to include an assignee of such tenant of the land and superstructure provided the assignment

was prior to 12th September, 1955 and the assignee continued to remain in possession thereafter. The non-obstante Clauses 1 & 2 of this sub-

clause gave the benefit of the protection to such an assignee inspite of the fact that the lease deed executed by the assignor contained a provision

with reference to the erection of the building within the proviso to Section 12 which was deleted in 1972 or a decree had been granted, when the

proviso was in operation, disentitling the tenant or the assignee from claiming the rights under the Act. I am therefore of opinion that though an

assignee is now given protection under the Act, it is not all assignees that will get the protection, but it is those assignees of lands and buildings who

got the assignment prior to 12th September, 1955 and continued in possession thereafter, that will be entitled to the benefit of the protection under

the amended definition of the term ''tenant''. In this case, the assignment in favour of the appellant''s predecessor, viz., the second defendant, was

on 15th July, 1965 and therefore, he will not be entitled to the protection of the City Tenants'' Protection Act.

Thus, this decision rendered by Ramaswami, J., on all fours, applies to the present facts of the case. The mere attestation of the sale deed in

favour of the petitioner herein by the respondent cannot be construed to mean that the respondent has accepted the petitioner herein as his tenant.

It could at best be construed as an acknowledgment of his witnessing the transaction that took place between the petitioner and his vendor. It is the

definite case of the respondent that he never received any rent from the petitioner herein. Unless the petitioner is able to establish that he was a

tenant at some point of time at least, he cannot derive the benefit u/s 9 of the City Tenants Protection Act. The conclusion arrived at by the

executing court, in my view, is correct and for all the reasons I have stated above, I do not find any ground made out to interfere with the order

passed by the executing court. In these circumstances, the revision petition is dismissed. No costs.

Taking into consideration the fact that the petitioner is running an industry at the place in question, the request of Mr. R.S. Venkatachari, for

grant of time to vacate can be considered. Mr. D.-Raju submits that if an undertaking is given by the petitioner that he will vacate at the stipulated

time fixed by this Court, he has no objection for giving six months time for vacating the property in question. But Mr. R.S. Venkatachari is not

prepared for the same since, according to him it will prohibit his client from going to the Supreme Court. In view of the fact that the parties are not

agreeable for grant of time, I feel that in the interests of justice, the petitioner has to be granted some time for vacating and delivering vacant

possession of the suit property since he is running an Industry there. For all these reasons, the petitioner is granted four months time from this date

for delivering vacant possession.