1. As these two revision petitions are connected, they are dealt with together.
2. Palaniappa Chettiar, the petitioner in C. R. P. 502 of 1967 is a lessee of a vacant site of land of 21 cents in Bhavani Village from the year 1947 and the lease in his favour was for a period of 10 years under Ex. A-1 and the original owner was one Peer Batcha Sahib. In 1948 he sub-leased a portion of the site to one Janakiram under Exhibit A. 2. Janakiram put up a superstructure and was paying the ground rent to the lessee, Palaniappa Chettiar. In 1949 he sub-leased another portion of the leasehold property to one Baldev Prasad under Exhibit A. 3. The sub-lessee, Janakiram, after he put up the superstructure assigned his rights to Baldev Prasad in September 1948, as a result of that assignment the sub-lessee Baldev Prasad came to possess two vacant sites under Exhibits A. 2 and A. 3 Baldey Prasad died in the year 1952 leaving behind his wife, Thulasi Bai and a daughter Paravathi Bai who are in occupation of the site leased out under Exhibits A. 2 and A. 3. In October 1949, Peer Batcha Sahib, the owner of the property settled the property in favour of his near relations Babu Sahib the owner of the property settled the property in favour of his near relations Babu Sahib and Abdul Khader. The said Babu Sahib and Abdul Khader filed O. S. 803 of 1958 for possession of damages for use and occupation as against Palaniappa Chettiar and his sub lessees. The suit was decreed by the trial court and against the decreed by the trial court and against the decree Palaniappa and in those appeals the decree of the trial court was confirmed. There were two second appeals S. A. No. 1153 of 1960 (Mad), (Palaniappa Chettiar v. Babu Sahib alias Sheik Myteen Sahib) and S. A. No. 1171 of 1961 (Babu Sahib v. Palaniappa Chettiar) to this court and it was held therein that Babu Sahib and Abdul Khader, the plaintiffs in the suit had no right to sue for possession and that they have to seek their remedies only under the provisions of the Madras Buildings (Lease and Rent Control) Act, 1960 and that the suit for possession was not maintainable. Thereafter Palaniappa Chettiar filed H. R. C. O. P. 36 of 1964 before the Rent Controller for eviction against the sub-lessee and the grounds for eviction were that they have committed wilful default ion payment of the monthly rents and that they had also denied his title and that they had also denied his title and that they had also sub-let the premises to third parties without his consent. The eviction petition was resisted by the legal representatives of Baldev Prasad and other Sub-tenants contending that the denial of title was bona fide as Palaniappa Chettiar's right to possession was negatived in second appeals Nos. 1153 of 1960 and 1171 of 1961 (Mad) by this Court and that after that decision there was no relationship of landlord and tenant between Palniappa Chettiar and the sub-lessees. The Rent controller as well as the appellate authority by the sub-lessees and ordered eviction giving two months time for vacating the premises.
There were two revisions to the revisional authority and the revision authority had held that the denial of title by the sub-lessees was not bona fide and that there exists the relationship of landlord and tenant between Palaniappa Chettiar and the sub-lessees. Before the revision authority it was urged by the sub-lessees that the proceedings for eviction under the provisions of the Madras Buildings (Lease & Rent Control) Act, 1960 would be without jurisdiction as the subject-matter of the sub-lease was only a vacant site and that it is only the Civil Court which has the jurisdiction to elect them. The learned District Judge, however, felt that as it has been held in S. A. 1153 of 1960 and 1171 of 1961 (Mad) that the provisions of the Madras Buildings (Lease and Rent Control) Act 1960, alone would apply and the suit for possession was not maintainable, the question whether the subsequent change in the case law would be a ground for reopening the former decision rendered in accordance with the case law then in force is a matter to be decided in these proceedings and that as that vital issue had not been urged before the authorities below a remand of the matter to the Rent Controller was justified with a direction that if he finds the question of jurisdiction for eviction have to be dismissed and that if he finds otherwise the eviction petitions will have to be allowed. With those observations he remanded the matter to the Rent Controller for fresh disposal. As against the said decision of the revision authority the above two revisions have been filed, one by the sub-lessees against the finding of the courts below holding that there existed the relationship of landlord and tenant and their denial of title of their lessor was not bona fide and that the ground of eviction had been made out, and the other by Palaniappa Chettiar against the direction remitting the matter to the Rent Controller for fresh disposal after deciding the question of jurisdiction of the Rent Controller.
3. The only question that is urged by the learned counsel for the sub-lessees, the petitioners in C. R. P. 1393 of 1967 is that the proceedings for eviction initiated by Palaniappa Chettiar under the provisions of the Rent Control Act in relation to a vacant site are without jurisdiction in view of the decision of the Supreme Court in Salai Mohammed v. J. M. S. Charity, 1969 1 MLJ 16 (SC) wherein the earlier view of this court holding that the Rent Controller will have jurisdiction to entertain an eviction petition even in respect of the vacant site if the vacant site had been built upon by the tenant has been overruled and that notwithstanding the decision of this court in S. A. Nos. 1153 of 1960 and 1171 of 1961 (Mad) holding that the suit for possession will not lie in a Civil Court and that the provisions of the Rent Control Act had to be invoked in the case. the Rent Controller has no jurisdiction to entertain the eviction petition against them. It is not in dispute that the original lease in favour of Palaniappa Chettiar was only in respect of a site and that the sub-lease in favour of Palaniappa Chettiar was only in respect of a site and that the sub-lease in under Exhibits A. 2 and A. 3 were also of vacant sites and the liability of the sub-lessees is only to pay rent in respect of the vacant sites. In view of this admitted position as per the above decision of the Supreme Court the Rent Controller will have no jurisdiction to entertain the eviction petition.
But the question is whether the earlier decision of this court in S. A. Nos. 1153 of 1960 and 1171 of 1961 (Mad) as between the same parties will stand in the way of the sub-lessee questioning the jurisdiction of the Rent Controller. This question has been considered by this court in C. R. P. No.1390 of 1970 (Mad) (Kathirvel v. Babu Sahib alias Sheik Myteen Sahib) and this court has held relying on the observations of the Supreme Court in C. A. No. 1061 of 1966-(Mathura Prasad Sarjoo Jaiswal v. Dossibai N. B. Jeejeebhoy) : 3SCR830 that a lease of a vacant site will not come within the provisions of the Madras Buildings (Lease and Rent Control) Act and that the question relating to the jurisdiction of the Rent Controller cannot be deemed to have been finally determined by an erroneous decision of the court and that such a question of jurisdiction cannot be barred by the principle of res judicata, and that if the decision of the court as regards jurisdiction of the Rent Controller in the previous proceeding is regarded as conclusive and binding between the parties, it will assume the status of a special rule of law applicable to the particular parties in question in relation to the jurisdiction of the Rent Controller in derogation of the rule declared by the Legislature. Following the decision in the case I hold that the petitioners in C. R. P. 1393 of 1967 are entitled urge the question of jurisdiction of the Rent Controller notwithstanding the decision of this court in S. A. Nos, 1153 of 1960 and 1171 of 1961 (Mad) and that the Rent Controller has no jurisdiction to entertain an application for eviction in respect of a vacant site and that the eviction petition in this case filed by the respondent cannot be maintained. Hence that civil revision petition has to be allowed.
4. In view of the fact that I have held that the eviction petition is not maintainable, the order of the revisional authority remitting the matter to the Rent Controller for fresh disposal cannot be sustained. I therefore, set aside the entire order of the revisional authority as also the order of the Rent Controller and the appellate authority as also the order of the Rent Controller and the appellate authority ordering eviction and dismiss the application for eviction filed before the Rent Controller. In view of the order passed in C. R. P. 1393 of 1967, C. R. P. 502 of 1967 is dismissed as unnecessary. No costs in either of the cases.
5. Order Accordingly.