Pandrang Row, J.
1. This is an appeal from the decree of the City Civil Judge, Madras, dated 2nd February, 1935, in O.S. No. 783 of 1934 a suit for ejecting the defendants and for recovery of possession of the plaint property. According to the plaintiff the site on which the plaint superstructure stands belonged to one Abdul Huq and the defendants were the tenants of the site who had put up the suit superstructure thereon and were paying a rent of Rs. 1-13-0 per month. The plaintiff purchased the site from Abdul Huq on 15th October, 1934. Some months earlier in execution of a decree of the Small Causes Court the superstructure belonging to the defendants had been sold and purchased by the plaintiff himself on 5th May, 1934. The plaintiff therefore claimed to be the owner of the house as well as the site and on the strength of this title to the house and the site he claimed to recover possession of both. The superstructure was purchased by the plaintiff on 5th May, 1934, and immediately thereafter on the strength of this purchase, in Court-auction, of the superstructure, he instituted a suit for ejecting the defendants, namely, O.S. No. 346 of 1934. In that suit the lower Court held that the plaintiff had not become, by reason of the purchase of the superstructure, the purchaser of the leasehold right of the defendants and that his only right was to pull down the superstructure and take away the materials. That finding-is res judicata as no appeal was filed from the judgment of the lower Court in that suit, and it may be mentioned here that it was only a few days before the judgment in that suit was pronounced that the site itself was purchased by the plaintiff on 15th October, 1934. It is clear therefore that the plaintiff is not entitled by reason of his purchase of the superstructure in Court auction in execution of a Small Cause Court decree, to eject the defendants and his claim to eject the defendants must therefore be rested on the rights which he acquired by reason of the purchase of the land itself from the owner Abdul Huq.
2. This is indeed clear from a consideration of Section 28 of the Presidency Small Cause Courts Act. In any case the matter is now res judicata by reason of the decision of the lower Court in O.S. No. 346 of 1934. A number of issues were framed by the lower Court in the present suit and the suit was decreed, all the issues being found against the defendants and in favour of the plaintiff.
3. In the present appeal by the defendants it is sufficient to consider only one question, namely, the question covered by issue No. 2 in the Court below which runs as follows:
Is the suit not maintainable for want of proper notice?
4. In order to determine this question it is necessary to decide whether the defendants are tenants as defined by the Madras City Tenants Protection Act (III of 1922), because it is only under Section 11 of that Act that three months' notice is required to be given before a suit for ejectment can be instituted against the tenant as defined in the Act. The word 'tenant' is defined in that Act as follows:
'Tenant' means tenant of land liable to pay rent on it, every other person deriving title from him, and includes persons who continue in possession after the termination of the tenancy.
5. There can be no doubt that the defendants are 'tenants' as defined above, and this cannot be seriously questioned. They are tenants of land and the fact that the superstructure put up by them was sold in Court auction does not terminate their tenancy. It cannot be pretended that because the superstructure is sold or burnt down the tenancy ceases to exist, or that the tenancy under the Act becomes an ordinary tenancy. By virtue of the decision in the former suit O.S. No. 346 of 1934, it must be held as established between the parties that the leasehold right of the defendants still inheres in the defendants in spite of the sale of the superstructure. In other words it is clear, that the defendants continued to be tenants even after the sale of the superstructure. This is res judicata. They were tenants within the meaning of the Act before the sale, and I do not see how it can be contended seriously that the sale of the superstructure has the effect in law of changing the nature of the tenancy from a tenancy under the Act into an ordinary tenancy to which the Act does not apply.
6. The Act nowhere contemplates any change in a tenancy to which it applies being brought about except in accordance with the provisions of the Act.
7. The learned City Civil Judge appears to think that a tenant under the Act cannot be regarded as being really a tenant under the Act if he is not entitled to get compensation under Sections 3, 4 and 5 of the Act or is not entitled under Section 9 to compel the landlord to sell the land to him; and he concludes that where a tenant has no building of his own on the land he is not a tenant within the meaning of the Act. This view is in my opinion clearly wrong. It is obvious that where a tenant has no improvement or building of his own no compensation can be due to him or if he does not want to purchase the land, the question of compelling the landlord to sell the land does not arise. Whether the right to get compensation or to purchase the land exists or not the tenancy under the Act remains, at least so far as Section 11 of the Act is concerned, which gives him the benefit of three months' notice instead of notice for a shorter time under the ordinary law.
8. The learned City Civil Judge's view, that the spirit of the Act shows that where the tenant has no improvements he cannot claim that three months' notice should be given to him under Section 11 of the Act, is in my opinion not supported by any reason and certainly not supported by any authority. The provisions of Section 11 are certainly provisions in favour of the tenant and not in favour of the landlord, and to that extent it is one of the benefits conferred on the tenants by the Act, and if the defendants are tenants under the Act they cannot be deprived of the benefit of the protection given by Section 11 simply because they are not entitled to other benefits given by the Act. Even if by reason of certain circumstances other benefits conferred by the Act may not be available to them there is no reason to deny such benefits as are available to the tenant under the Act.
9. I have therefore no doubt that this question, namely, whether the defendants are tenants within the meaning of the Act must be answered in the affirmative. Section 11 of the Act provides that no suit in ejectment shall be instituted until after the expiration of three months after notice in writing has been given requiring the tenant to surrender possession. That such notice has not been given in the present case is admitted and therefore this suit for ejectment is not maintainable, and on this ground alone the appeal has to be allowed. It is therefore unnecessary to consider the question whether if the suit were maintainable the defendants would be entitled to proceed under Section 9 of the Act. The decree appealed from is set aside and the suit is dismissed with costs in this Court and in the Court below.