T.S. Devaraja Gramani vs Murugesan

M. Natesan, J.—This revision is directed against the order of the appellate Court allowing an application u/s 9 of the Madras City Tenants''

Protection Act, 1922, hereinafter referred to as the Act. The landlord who is the petitioner before me instituted a proceeding in ejectment u/s 41 of

the Presidency Small Cause Courts Act, impleading therein the present respondent who claims to be a tenant under the said Act and one

Thulukanathammal as defendants. The respondent was impleaded as the second defendant in the suit as a person unauthorisedly seeking to put up

a superstructure on the property. Thulukanathammal was shown as the first defendant and impleaded as a tenant of the land Under the plaintiff.

The plaint proceeded on the allegations that Thulukanathammal never put up any superstructure thereon and that in January, 1961, the present

respondent came on the land as having been inducted thereon by her and started putting up a superstructure.

In the enquiry that followed the application of the present respondent for relief u/s 9 of the Act, it has now been found that these averments of

the plaintiff are false. It is brought out in the evidence that the superstructure has been there from prior to September, 1955 when the City Tenants''

Protection Act was amended. Thulukanathammal was originally a tenant under the plaintiff, the lease deed showing the tenancy being Exhibit B-l

dated 12th September, 1953. The purpose of the lease was to enable the lessee to put up. a hut thereon. The present respondent, the applicant u/s

9 of the City Tenants'' Protection Act, became the purchaser of the superstructure on 12th September, 1953 itself from the said

Thulukanathammal. The Appellate Authority examining the evidence has come to the conclusion that it had been established beyond doubt that the

respondent was residing in the hut on the suit plot prior to 1955 from about the time of his purchase in 1953 and that he had been paying rent to

the plaintiff. The conclusion of the appellate Court is, that the respondent had been a tenant under the plaintiff from about 1953 and was therefore

entitled to relief under the Act. On this finding, the matter has been remanded to the trial Court for further steps and proceedings under the Madras

City Tenants'' Protection Act, 1922 as subsequently amended. The finding that the respondent is a tenant and that the structure had been on the

land even long prior to 1955 being findings of fact are naturally not open to challenge.

Learned Counsel Mr. V.C. Veeraraghavan, appearing for the plaintiff-landlord attacks the order of the Court below on a new basis not put

forward in the Courts below which has some jurisdictional flavour in it. The learned Counsel contends that as the respondent purchased only the

superstructure from Thulukanathammal, and had not got an assignment of the leasehold right from her, he cannot claim any benefit under the Act.

The argument is elaborated thus : Under the Act, only a tenant is entitled to the benefits under the Act. Assuming that subsequent to his purchase of

the superstructure, the respondent attorned to the landlord and he was treated as a tenant when this tenancy of the respondent came into existence,

there was already a building on the land and the land would therefore be a part of the building. The tenancy of the respondent, in the

circumstances, would not be a tenancy of the land and therefore he cannot claim to be a tenant of the '' land '' under the Act. Learned Counsel

would contend that for a succeeding tenant to be entitled to benefits under the Act, he must be an assignee not only of the superstructure from the

prior tenant, but must be an assignee of the leasehold interest also. It is contended that in such a case only, it could be held that a relationship of

landlord and tenant had continued unbroken. It is contended that even if one tenant follows another in occupation without break but without the

tenancy itself being transmitted the change would destroy the tenancy of the land sufficiently to make the Act inapplicable. This contention meets

only a case where the prior tenant leaves the structure whole to the next tenant. But I suppose it will yield to a case where the subsequent tenant

has dismantled the hut he had purchased and closely following on the heels of his predecessor re-erects it. It must be noted that no claim is put

forward that in the process of one tenant succeeding another without an assignment of the tenancy, the landlord has become the owner of the

superstructure despite its transfer between the tenants.

I am unable to accept the subtle distinction in the devolution of rights. When protection is granted under a statute, it could be taken away only on

substantial principles of law that could co-exist, with the rights conferred. True, if the respondent''s tenancy had not been recognised before the Act

was amended in 1955, he would only be an owner of the superstructure, and would not be entitled to any protection under the Act. But I cannot

understand how it could be contended that the landlord has leased a building when he had no ownership in the superstructure. There has been no

augmentation of his rights in the land by the building apart from what the Act has chosen to recognise or define and the several provisions of the

Act like Sections 4, 5, 6 and 7 meticulously maintain a distinction.

The question not having been raised in this form, the lower Court has not adverted to certain other vital evidence in this case, in the face of

which this contention may not even be tenable. The respondent has deposed that Thulukanathammal never lived in the hut and in fact one Murugan

who was living on the site thereon had originally put up a hut. It was during his occupation that Thulukanathammal got a lease of the land and

immediately he purchased from her the right to the superstructure. Ever since he was paying the ground rent to the landlord. Thulukanathammal has

given evidence as P.W. 2 and it is not her case that the respondent was her tenant. She speaks to selling the house to the respondent. It must also

be noticed that when Thulukanathammal sold the superstructure to the respondent, she was selling the superstructure as a house and not a brick

mortar, rubble and thatching materials. The document evidencing the sale refers to the fact that the ground was under lease. On the finding that the

landlord has recognised the tenancy of the respondent and as the landlord has no interest in the superstructure, the tenancy can only be of the land.

He has been receiving only the ground rent therefor. It may be that the land has become part of a building as the building cannot retain its character

as building without the land but the interests of the landlord in the premises is in the land, the ownership in the superstructure and land remaining

severed. No doubt as observed by a Division Bench of this Court in Subramania Naicker v. Muthuvel Chetty L.P.A. No. 11 of 1956 (unreported)

mere possession of the superstructure by a purchaser without any tenancy in respect of the land on which the superstructure stands cannot confer

on the appellant any right under the Act. The following observations of the Bench in my view, indicate that once the owner of the superstructure is

accepted as tenant by the landholder, the tenant would be entitled to claim the benefits under the Act. Their Lordships Rajamannar, C.J., and

Ramachandra Iyer, J., observed:

Mere possession of the superstructure without any tenant in respect of the land on which the superstructure stands cannot confer on the appellant

any right under the Act. Indeed it is clear that the appellant (second defendant) cannot claim to be legally a tenant of the land under anyone. He

attempted to attorn to the plaintiff but the plaintiff would not accept him as his tenant. There is, therefore, no valid defence open to the second

defendant-appellant to the claim of the plaintiff for possession of the land.

The question has to be considered with reference to the definition of ""landlord"" and ""tenant"" in the Act and the other provisions of the Act.

''Land'' is defined u/s 2(2) of the Act as not including buildings. The definition of landlord material for the present purpose runs thus:

Landlord means any person owning any land, and includes every person entitled to collect the rent of the whole or any portion of the land.

The definition of ""tenant"" relevant for our present purpose runs thus:

''Tenant'' in relation to any land-

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

(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 tenancy

agreement, and (b) the heirs of any such person as is referred to in Sub-clause (i) and Sub-clause (ii)(a); but does not include a sub-tenant or his

heirs.

The contention of the learned Counsel for the landlord before me that the land built upon must be deemed to be part of the building is not founded

on the basis of any agreement between the parties but is a purely legal submission. I cannot see how to accept the submission in the face of the

clear and unequivocal definition of the word ""land"" as not including building. The principle that a site built upon becomes part of the building is not

an abstract principle of law applicable under all circumstances. Its applicability will depend on the provisions of the Act under consideration in

relation to the facts and particularly the concept of building in the provision that has to be construed. The legislative intent emerging from the Act

read as a whole has to be kept in. the background. The '' land '' dealt with under the Act is land built upon with appurtenant land. Still it is provided

that land does not include building. The provisions of the Act relating to compensation for the building cannot in the nature of things embrace the

land built upon and wherever the Act refers to '' building '' it is proper to exclude from the conception of building the treatment of the site built upon

as part of the building. It is an accepted canon of construction that the same word, unless the contest compels or otherwise requires, will bear the

same meaning throughout the Act.

Dual and several ownership of land and building and tenancy of land without tenancy of the building are not unknown. In this connection,

reference may be made to the decision of the Supreme Court in K.A. Dhairyawan and Others Vs. J.R. Thakur and Others, a case under the

Bombay Rents Hotel and Lodging House Rates Control Act, 1947. Under that Act, occupation of land Used for non-agricultural purposes was

also protected. To set out the facts of the case in skeletal form; the lessee had put up the superstructure on the land which he had taken on lease

and had covenanted to surrender and yield up the demised premises including the building with its fixtures and appurtenances to the lessors without

any compensation for the same. Under the Act which was passed subsequent to the lease, the lessee got protection in respect of the land but not in

respect of the building thereon as he was not a lessee of the building. By the covenants in the lease the lessor became the owner of the building on

the expiry of the covenanted lease period. In these circumstances, the Supreme Court, while recognising the right of the lessee to continue in

occupation of the land recognised the right of the lessor to the building on the land and declared his rights to the rents and profits from the building,

observing at page 794:

It was next urged that even if there had been no demise of the building to be erected on the land, possession of it could not be given to the

appellants until the lease had been determined which in law, could not be determined so long as the respondents could not be evicted from the

demised land of which they were tenants within the. meaning of the Act. This contention is without force as the provisions of the Act do not

provide for the continuation of a lease beyond the specified period stated therein. All that the Act does is to give to the person who continues to

remain in possession of the land although the period of lease had come to an end, the status of a statutory tenant. That is to say, although the lease

had come to an end but the lessee continued to remain in possession without the consent of the lessor, he would none the less be a tenant of the

land and could not be evicted save as provided by the Act.

If the principle now pressed is generally available, it could with equal felicity have been argued there that the building was part of the land under

lease. Land under certain circumstances has been held to include buildings thereon.

Learned Counsel for the petitioner referred to the decisions of this Court under the Madras Buildings (Lease and Rent Control) Act in

Ramaswami Pathar Vs. Jayankondam Sri Kulumalairatnaswami Devastanam and Another, and M.P.S. Palauiappa Chettiar and Others Vs. V.E.

St. Vairavan Chettiar, where it has been held that though the actual lease was of the site alone, if the superstructure was in existence at the time the

lease was granted it can be regarded as a part of the building and not of a vacant site. Under the aforesaid Madras Act tenancy of land as such

was not protected, and land was not separately defined or considered. In my view, decisions under a different Act cannot be called in aid in

applying the provisions of the Madras City Tenants'' Protection Act, 1922.

Learned Counsel referred to the observations in Narasram Naraindas alias Purshotamdas Vs. R. Venkataswami Naidu and Others, a decision

of the Division Bench under the Madras City Tenants'' Protection Act wherein the building was put up when there were prohibitory covenants in

force against building on the land. While repelling the claim to protection under the Act on a presumed subsequent tenancy of the land by the

continuance in possession of the tenant after the termination of the old lease, their Lordships observed that a lease of the site after the construction

of the building will not amount to lease of the land as such and that land by that time had become part of the building and it will then be a lease of

the building. The observations are binding on me but the building in that case was held as one not entitled to protection tinder the Act, and the facts

in the present case are different and secondly the Supreme Court has since in Venkataswami Naidu v. Narasaram Narayan Das (1965) 2 S.C.J.

880 reversed the decision.

Counsel for the landlord referred to another unreported decision of this Court in Kumari Tara Bai v. Kanakavelu Mudaliar S.A. No. 627 of

1962. The learned Judge Veeraswami, J., has in that case no doubt following the aforesaid decision of this Court, relied on the principle that where

on the date of coming into existence of a tenancy there is a building though not belonging to the lessor, the lease has to be regarded as a lease of

the building and the site, because once the building is put up, it becomes part of the site. The case no doubt arose under the City Tenants''

Protection Act, but the case is distinguishable on facts. It is a case of a sub-tenant who had no locus standi under the Act that had put up the

superstructure. He was not a tenant of the owner of the land and would not be entitled to benefits under the Act against the owner.

The matter may be considered from another angle, and this is the approach which the Supreme Court has directed in Venkataswami Naidu v.

Narasaram Narayan Das (1965) 2 S.C.J. 880. The person who is entitled to purchase under the provisions of Section 9 of the Act is the person

who is entitled to compensation u/s 3 of the Act. The question really turns upon the determination whether the respondent could claim

compensation u/s 3. The relevant portion of Section 9 runs thus:

Any tenant who is entitled to compensation u/s 3 and against whom a suit in ejectment has been instituted or proceeding u/s 41 of the Presidency

Small Cause Act, 1882 taken by the landlord may apply to the Court for an order that the landlord shall be directed to sell the extent of the land to

be specified in the application.

Section 3 reads thus:

Every tenant shall on ejectment be entitled to be paid as compensation the value of any building, which may have been erected by him, by any of

his predecessors-in-interest, or by any person not in occupation at the time of the ejectment who derived title from either of them, and for which

compensation has not already been paid. A tenant who is entitled to compensation for the value of any building shall also be paid the value of trees

which may have been planted by him on the land and for any improvements which may have been made by him.

The first question for consideration would be whether the present respondent is entitled to be paid compensation on ejectment. If he is, then he

will be entitled to apply for purchase of the land u/s 9. Admittedly the tenant is the purchaser of the superstructure. He is a person liable to pay rent

only in respect of the land on which the superstructure has been raised. Section 3 speaks of compensation for the value of the building. As stated

earlier it can refer only to the structural part of the building and does not take in the land. Section 3 provides for payment of compensation to the

tenant even though the building might have been erected by his predecessor-in-interest provided compensation has not already been paid. With

reference to the construction of this section learned Counsel for the petitioner contends that the respondent herein not being an assignee of the

tenancy but only a purchaser of the building, it cannot be said that the person who put up the structure thereon was his predecessor-in-interest. I

see no reason for limiting the scope of the phrase ''predecessor-in-interest''. The person who put up the building in this case, according to the

finding, is Thulukanathammal. The respondent on the finding derives his title to the building from her. In Ramanatha Ayyar''s Lexicon ''Predecessor''

is explained thus:

One who has preceded another In the common acceptation '' Predecessor '' means one who goes before or precedes another in a given state,

position or office and does not necessarily express any relation to legal privity.

Applying this meaning it is not necessary that the tenant in occupation must come in as tenant by privity of interests in the tenancy with the prior

tenant who put up the structure that the latter may be deemed to be a predecessor-in-interest.

Language almost identical with the language of Section 3 is found in Section 5 of the Malabar Compensation for Tenants Improvements Act

(Madras Act I of 1900). The relevant part of that section reads thus:

Every tenant shall on ejectment be entitled to compensation for improvements which have been made by him, his predecessor-in-interest or by any

person not in occupation at the time of the ejectment who derived title from either of them and for which compensation has not already been paid.

In Thurpan v. Mamad Kasim Salt 17 I.C. 433 with reference to the said Section 5 of the Malabar Compensation for Tenants Improvements

Act it is observed by a Division Bench of this Court:

It is quite sufficient that the improvements are on the land even if they were made by some previous occupant and it was not the case of either

party that anybody except the second defendant was in occupation at the time of the suit.

In Kunhunni Nair v. Raman Menon (1929) 54 M.L.J. 179 another Division Bench decision while considering the meaning of the expression

''Predecessor-in-interest'' in the said Section 5, the following observations of Mr. Justice Sundara Ayyar in his Malabar Law were accepted:

The words cannot be said to adequately describe the class of persons for whose improvements the tenant in possession is entitled to claim

compensation. Unless the word '' Predecessor-in-interest'' is understood in a somewhat loose way, the section may not include many cases which

must obviously have been intended to come within it. To cover obvious cases it may be necessary to understand the word ''Predecessor-in-

interest'' as the derivation of the word suggests as meaning ''one that went before him in interest'' , some ''tenant'' as understood by the Act who

preceded him in occupation either immediately or immediately through others without the continuity being broken up by the intervention of the

plaintiff.

In my view, the same wide meaning should be given to the word ''Predecessor in-interest'' in Section 3 of the Act. The fact that it is not found

in this case that the respondent is not an assignee of the tenancy from Thulukanathammal is therefore immaterial. Both the definition of tenant as

well as the scope of Section 3 are wide in their terms and would clearly take in a person like the respondent who has been found to be the owner

of the superstructure, and a tenant of the land prior to the 10th of September, 1955. If that much is found, it follows that he will be entitled to apply

for sale of the land u/s 9 of the Act.

I see no reason to differ from the determination of the lower Court that the respondent is entitled to the benefits of the Madras City Tenants

Protection Act and that he is entitled to relief u/s 9 of the Act. The order remanding the matter to the Court of first instance for appropriate further

steps under the Madras City Tenants Protection Act has therefore to stand. The revision fails and is (dismissed and in the circumstances there will

be no order as to costs.