(1) This revision is directed against the order of the appellate court allowing an application under Section 9 of the Madras City Tenants Protection Act 1921, hereinafter referred to as the Act. The landlord who is the petitioner before me instituted a proceeding in ejectment under Section 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 Thulakanathammal 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 superstructure thereon and than in January 1961, the present respondent came on the land as having been inducted thereon by her and started putting up a superstructure.
(2) In the enquiry that followed the application of the present respondent for relief under Section 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 1956 when the City Tenants Protection Act was amended. Thulukanathammal was originally a tenant under the plaintiff, the leased deed showing a tenancy being Ex. B. 1 dated 12-9-1953 itself from the said Thulakanathammal. 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 has 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 1921, as subsequently amended. The finding that the respondent is a tenant and that the structure has been on the land even long prior to 1955 being findings of facts are naturally not open to challenge.
(3) 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 bells which has some jurisdictional favour 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 can not 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 muse be an assignee not ant, 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 following another in occupation without break but without the tenancy itself being transmitted the change would destroys 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.
(4) I am unable to accept the subtle distinction in the devolution of rights. When protection is granted under a statue, 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 Section 4, 5, 6 and 7 meticulously maintain a distinction.
(5) 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 he was living on the site Whereon one Murugan 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. Even 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 owner ship in the superstructure and land remaining severed. No doubt as observed by a Division Bench of this court in Subramania Naicker v. Muthuvel Chetti. L. P. A. No. 11 of 1956 (Mad) 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 tenancy 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 attain 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."
(6) 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 under Section 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 subclass (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 subtenant of 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 principles 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 will 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 context compels or otherwise requires, will bear the same meaning throughout the Act.
(7) Dual and several ownership of land and building and tenancy of land without tenancy of the building are nor unknown. In this connection, reference may be made to the decision of the Supreme Court in Dr. K. A. Dhairyawan v. Thakur, , a case under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 Under that Act, occupation of land used for non-agricultural purpose was also protected. To set out the facts of the case in skeletal form the lessee has 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 convents in the lease the lessor become 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 observed 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 appellate until the lease had been determined which in law, could not be determined so long as the respondent 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 and end, the status of a statutory tenant. That is to say, although the lease had come to a bend but the lessee continued to remain in possession without the consent of the lessor, he would nonetheless 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.
(8) Learned counsel for the petitioner referred to the decisions of this court under the Madras Buildings (Lease and Rent Control) Act in Ramaswami Pathan v. J. K Devastanam, 1963-1 Mad LJ 60 and Palaniappa Chetti v. Vairavan Chetti, 1963-1 Mad LJ 130 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 lease of 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. 1921.
(9) Learned counsel referred to the observations in Narasram Naraindas v. Venkataswami Naidu. 1963-1 Mad LJ 140, 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 Lordship 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 the 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 under the Act and the facts in the present cases are different and secondly the Supreme Court has since in Venkataswami Naidu v. Narasaram Narian Das. reversed the decision.
(10) Counsel for the landlord referred to another unreported decision of this court in Kumari Tarabai v. Kanakavelu Mudaliar, S. A. 627 of 1962 (Mad). The learned judges 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 us a building through 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.
(11) The matter may be considered from another angle, and this is the approach which the Supreme Court has directed in . The person who is entitled to purchase under the provisions of Section 9 of the Act is the person who is entitled to compensation under Section 3 of the Act. The question really turns upon the determination whether the respondent could claim compensation under Section 3. The relevant portion of Section 9 runs thus:
"Any tenant who is entitled to compensation under Section 3 and against whom a suit in ejectment has been instituted or proceeding under Section 41 of the Presidency Small Cause Courts 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 any 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 under Section 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 he 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 Thulukanthammal. The respondent on the finding derives his title to the building from her. In Ramanatha Aiyer's Law 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 give state, position or office, and does not necessarily express any relation to the legal privity".
Applying this meaning it is not necessary that the tenant in occupation must come in as tenant by privity of interest in the tenancy with the prior tenant who put up the structure that the latter may be deemed to be a predecessor-in-interest.
(12) Language almost identical with the language of Section 3 is found in Section 5 of the Malabar Compensation for Tenpins Improvement Act (Madras Act 1 of 1950). 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, Thupran v. Mamad Kasmi Sait, (1912) 17 Ind Cas 433 (Mad) with reference to the said Sec. 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".
(13) In Kunjunni Nair v. Raman Menon, 59 Mad LJ 117: (AIR 1930 Mad 502) 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 Aiyer in his Malbar Law were accepted.
"The words cannot be said to adequately described 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 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 lad prior 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 under Section 9 of the Act.
(14) I see no reason to differ from the determination of the lower court that the respondent in entitled to the benefits of the Madras City Tenants Protection Act and that the is entitled to relief under Section 9 of the Act. The order remanding the matter of the Court of first instance for appropriate further steps under the Madras City Tenants Protection Act has therefore to stand. The revision petition fails and is dismissed and in the circumstances, there will be no order as to costs.
(15) Petition dismissed.