Rajammal Achi vs Govindasami Pillai

Ramachandra Iyer, J.—These appeals arise out of a common order of the learned Subordinate Judge of Kumbakonam in A. S. Nos. 11 and 15 of 1957, setting aside the order in E. A. Nos. 480 and 603 of 1956 on the file of the District Munsif, Kumbakonam. The plaintiff-decree holder is the appellant. The plaintiff filed O. S. No. 110 of 1954 on the file of the District Munsif, Kumbakonam, for the recovery of the suit mentioned site after removal of the superstructure with past and future mesne profits. According to the plaintiff, the defendant was a tenant who was let into possession of the property, and who had during the currency of the lease put up the superstructure on the property. The suit was contested by the defendant who denied the title of the landholder. Ultimately a decree was passed directing delivery of possession to the plaintiff. That decree was appealed against and the appeal came up before the learned Subordinate Judge of Kumbakonam on 17th March 1956. Meanwhile Madras Act 3 of 1922 was extended to the town of Kumbakonam on 14th December 1955. The benefits of that Act were claimed by the tenant when the appeal was heard by the learned Subordinate Judge. The learned Subordinate Judge, however, declined to consider that claim at that stage but left the matter open for being agitated in the trial Court. The appeal was dismissed with a liberty to the tenant to apply to the executing Court. It is unnecessary to consider as to how far that order is correct. Sometime after the disposal of the appeal, the plaintiff decree holder filed E. A. No. 480 of 1956 for a valuation of the superstructure on the property so that he can pay the tenant the value found by the Court and obtain possession of the land and the superstructure. That application was filed on 19th June 1956. Notice of that application was at first sought to be served on the Advocate for the tenant. The Advocate refused to receive the notice, and under the orders of Court notice was personally served upon the tenant on 14th July 1956. The tenant thereupon filed an application E. A. No. 603 of 1958 on 1st August 1956 claiming relief under S. 9 of the Act to purchase the site from the landlord. Both the applications were contested and were heard together by the District Munsif of Kumbakonam. He held that the tenant was not entitled to the relief under S. 9 of the Act but that landlord could on payment of the compensation take the superstructure. He fixed the value of the superstructure in the sum of Rs. 100. Against the order of the District Munsif two appeals were filed before the Subordinate Judge, Kumbakonam. The learned Subordinate Judge held that the periods of time mentioned in S. 9 of the Act should be computed from the date when the decree was sought to be executed and that the tenant was in time in regard to his application for the purchase of the land. In that view, he allowed the tenant''s application and dismissed the landlord''s. The plaintiff has come forward with the present appeal. S. 9(1) says thus:

Any tenant who is entitled to compensation under S. 3 and against whom a suit in ejectment has been instituted or proceeding under S. 41 of the Presidency Small Cause Courts Act, 1882, taken by the landlord, may within one month of the date of the Madras City Tenants'' Protection (Amendment) Act, 1955, coming into force or of the date with effect from which this Act is extended to the municipal town or village in which the land is situate or within one month after the service on him of summons, apply to the Court for an order that the landlord shall be directed to sell the land for a price to be fixed by the Court.

In the present case, there is no question of service of any summons in a Suit for ejectment, because such a suit was filed even before the Act came into force. Therefore, the only period of time within which the tenant could have applied for the benefit under S. 9 was within one month of coming into the operation of the Act. There is no second period given to him because the suit for ejectment had already been filed. There is nothing in the Act to warrant the view of the learned Subordinate Judge that the tenant would have a right every time an execution application is filed. The tenant in the present case not having filed any application within one month of the Act coming into force would not be entitled to the relief under S. 9 though he would be entitled to the relief by way of compensation. The order of the learned Subordinate Judge could not, therefore, be supported and is set aside and that of the District Munsif is restored. There will be no order as to costs in any of the Courts.