Pamidi Vedavalli Thayarammal by her power-of-attorney agent, R. Singanna Chetti vs Junus Chettiar

Krishnaswami Aiyangar, J.—The appellant in this appeal is the owner of a piece of land which was being let to tenants for running a

firewood depot from about 1912. It is unnecessary to go into the earlier history of the tenancy. It will be enough to refer to Ex. E, a registered

rental agreement executed by two persons V. Ratnavelu Mudaliar and T. Papiah Chetty brother of the respondent, in favour of the appellant on the

30th October, 1922. By that agreement the tenants took over the land which was described as vacant land of the extent of about twomanais, on

lease for a period of five years from 1st February, 1923, for opening and running a firewood depot ''after constructing a building on the said land''

with the permission of the appellant. The agreement winds up by saying that the appellant should take steps for recovering the property in case of

default in the regular payment of rent without reference to the period of the lease. This agreement as is clear, was one which was entered into

between the parties after the Madras City Tenants'' Protection Act, 1921, came into force which was on the 21st February, 1922. One of the

questions argued on behalf of the appellant is that this tenancy agreement being in the nature of a contract entered into after the Act came into force

the provisions of the Act cannot apply to it. It is unnecessary to decide this point for there is another and a clearer ground on which we think that

the appellant is entitled to succeed.

The learned Judge has found that the superstructure on the land does not belong to the respondent. He was inclined to think that that finding

made no difference to his decision though at the same time he expressed the opinion, that if it were necessary he would have called for a finding on

the question of the true ownership of the superstructure. We may at once say that we are unable to see any reason for taking this course, as both

parties were content to have the dispute settled on the documentary evidence placed before the Court without caring to adduce any oral evidence.

They had the opportunity, and if they did not avail themselves of it, it is their own fault. So we think that the case ought to be disposed of on the

evidence on the record as it stands.

The finding being that the respondent is not the owner of the superstructure the question is whether the appellant was bound before seeking to

eject him from the land and the super structure, to give him the three months'' notice required by Section 11 of the Act. The learned Judge is of

opinion that it is enough to attract the operation of this section that the respondent is a tenant, and that once it is found that be is a tenant the three

months'' notice is obligatory irrespective of the question whether the tenant owns the superstructure or not. Section 11 is in these terms:

No suits in ejectment or applications 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.

It is clear that the notice referred to in this section is one requiring the tenant to surrender possession of the land and building, and offering to pay

compensation for the building and trees if any. There is nothing in the section or in the Act which enables the tenant to ask for compensation, when

he does not own the building. In a case where the tenant is not the owner of the superstructure it is impossible to see how he can ask for

compensation in respect of something which does not belong to him, or why the landlord should offer by his notice to pay compensation for a

building which he himself owns. The entire scheme of the Act as the preamble shows it, is to afford protection to a tenant who has constructed a

building on another''s land and not to throw obstacles in the way of a landlord enforcing his rights, even where there are no rights of a tenant to be

protected. This is apparent from the language of the section itself, which seems to limit its operation to the case where the tenant is the owner of the

superstructure. Where he is not such an owner, the provisions of the Transfer of Property Act which require only a notice of fifteen days on the

footing of a monthly tenancy must be held to apply. We are unable to agree that this case is governed by Section 11 of the Act.

In this view it is unnecessary to discuss any other question for the disposal of this appeal. Differing from our learned brother, we must hold that

the notice to quit which had been given by the appellant before suit was sufficient. The appeal is allowed with costs here and in the Court below.

Alfred Henry Lionel leach, C.J.

I agree.