1. These two appeals arise out of further proceedings in C. S. No. 115 of 1947 the main appeal (O. S. A. No. 102 of 1949) from which we have just disposed of. As already mentioned, in this suit Sanjeevi claimed not only possession but also mesne profits, and Rajagopalan J. directed that mesne profits should be ascertained by the Official Referee in proceedings subsequent to the decree. The Official Referee accordingly ascertained the mesne profits and his report came up for consideration before Rajagopalan J. who accepted the figures arrived at by the Official Referee and granted a decree to Sanjeevi for mesne profits on that basis by his order dated 2-11-1950. O. S. A. No. 133 of 1950 is by Chittibabu against the order. The main ground of appeal is that he is not liable in mesne profits as he must be deemed to be a tenant.
2. Sanjeevi filed an execution petition, E. P. No. 34 of 1950 for delivery of possession. Chittibabu raised the objection that notwithstanding the decree he was not liable to be evicted because of the provisions of Section 7(1), Madras Buildings (Lease and Rent Control) Act of 1949. The Master before whom the execution petition came on for hearing first, upheld Chittibabu's contention and dismissed the execution petition. On appeal to the Judge in Chambers, Krishnaswami Nayudu J. confirmed the order of the Master and held that execution could not issue as Chittibabu must be deemed to be a tenant entitled to the protection of the Act. O. S. A. No. 70 of 1950 is by Sanjeevi against this order.
3. It will be seen that the question which has to be decided before these two appeals can be disposed of is whether the provisions of the Madras Buildings (Lease and Rent Control) Act of 1949 apply to this case. In that Act 'tenant' is defined as any person by whom or on whose account rent is payable for a building and includes a person continuing in possession after the termination of the tenancy in his favour. We are not concerned with the rest of the definition. Section 7(1) runs as follows:
'A tenant in possession of a building shall not be evicted therefrom, whether in execution of a decree or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section:
Provided that nothing contained in his section shall apply to a tenant whose landlord is the Provincial Government: Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect the landlord shall be entitled to sue for eviction of the tenant in a civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in this section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded.'
4. The contention on behalf of Chittibabu is that he came into possession of the building as a tenant under the lease executed by Mohanasundara in his favour on 15th April 1944 End that though that lease expired in 1947 he must be deemed to be holding over as a tenant, since his claim under the agreement to sell in his favour had been negatived by Court. On the other hand, Mr. Srinivasachari for Sanjeevi contended that though he might have come into possession as a tenant he subsequently set up title in himself as owner and denied his title to the property. On account of this disclaimer of his status as a tenant he could not after his failure in the suit be permitted to fall back upon his original position. According to learned counsel a person who has denied that he was a tenant could not, after such denial, be treated as a tenant within the meaning of the Act.
5. Undoubtedly Chittibabu denied the title of Sanjeevi who must be deemed to have succeeded to all the rights of Mohanasundara as landlord. The effect of a denial of title under the general law is set out in Section 111, T. P. Act:
'A lease of immoveable property determines
(g) by forfeiture, that is to say.........
(2) in case of the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself. ......and......the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease.'
On behalf of Sanjeevi his advocate did give such notice to Chittibabu through his advocate (Ex. P. 16). It was definitely stated in this notice that as Chittibabu had set up title in himself and had renounced his character as tenant Sanjeevi was giving notice of his intention to determine the lease under the provisions of Section 111(g), T. P. Act. So it may be taken as established that under the general law the tenancy in favour of Chittibabu had been duly terminated. But the definition of 'tenant' in the Rent Control Act expressly includes a person continuing in possession after the termination of the tenancy in his favour. Chittibabu would certainly be such a person. In accordance with the finding of the trial Court which has since been affirmed by us, Chittibabu did not have title to the property at any time. He must, therefore, be deemed to nave continued all along in possession as a tenant. He would be a tenant holding over. Under the general law a tenant holding over is deemed to be governed by the same terms as the terms of the tenancy under which he came into occupation. One of such terms would be the payment of monthly rent of Rs. 25. We, therefore, hold that Chittibabu was a tenant within the meaning of Section 2(4), Rent Control Act, as a person by whom rent was payable and as a person continuing in possession after the termination of the tenancy in his favour.
6. Section 7(1) expressly provides that a tenant in possession of a building shall not be evicted therefrom, whether before or after the termination of the tenancy, whether in execution of a decree or otherwise, except in accordance with the provisions of that section. This provision is a complete answer to the execution petition filed by Sanjeevi for eviction. In this view it is not necessary to consider the effect of the proviso because the procedure indicated in the proviso has not been followed in this case. That proviso contemplates first a petition before the Rent Controller himself for eviction and a denial of title in such proceeding. If the Controller decides that the denial of title is bona fide and records a finding to that effect, then the landlord will be entitled to sue for eviction of the tenant in a civil Court. But even here the decree for eviction can only be passed on any of the grounds mentioned in Section 7. Though the proviso in terms will not have any application to the facts of this case, the principle of the proviso supports the view which we have already taken as regards the status of Chittibabu as a tenant under the Act. The effect of the proviso is that even it a civil Court finds that the claim of the tenant is not well founded the tenant can be evicted only on any of the grounds mentioned in Section 7. In other words, even when, the tenant has denied the title of the landlord and his denial has been found to be without foundation, he will be entitled to the benefits of Section 7(2).
7. We, therefore, hold that Chittibabu cannot be evicted in execution of the decree for possession obtained by Sanjeevi. We also hold that as Chittibabu must be deemed to have continued to be in possession as a tenant he would be liable only for the rent fixed under the lease in his favour and would not be liable for mesne profits. Of course, this would not prevent the landlord or the tenant from approaching the Rent Controller with an application to fix the fair rent,
8. Mr. Srinivasachari for Sanjeevi raised a technical objection that the plea under the Rent Control Act should have been raised in the suit, it was in a manner raised in the written statement, but was not dealt with by the learn-ed trial Judge. But as the entire case was at large before us in appeal we see no point in this objection. It is open now to us to deal with this plea in appeal.
9. Another contention was raised on behalf of Sanjeevi Naidu which has no substance whatever, namely, that though Chittibabu might be a tenant within the definition in the Rent Control Act, still there is nothing to preclude the Court from decreeing mesne profits. We are unable to follow this contention. We have held Chittibabu to be a tenant because in our opinion he is liable to pay the rent as fixed under the lease deed in his favour. If that be so, how could he at the same time be made liable for a higher or different amount? The entire scheme of the Rent Control Act proceeds on the liability of the tenant to pay a definite rent. Mesne profits, on the other hand, should be ascertained from time to time and may vary.
10. In the result O. S. A. No. 70 of 1950must be dismissed. O. S. A. No. 133 of 1950must be allowed and the decree, instead ofdirecting Chittibabu to pay mesne profits,should direct him to pay rent at the rate ofRs. 25 per month till the date of this judgment.There will be no order as to costs in O. S. A.No. 70 of 1950. In O. S. A. No. 133 of 1930the appellant will get his costs from the respondent.