Skip to content


Janab E.M. Ghulam Dastagir Saheb Vs. Marudai Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectTenacy;Civil
CourtChennai
Decided On
Reported inAIR1948Mad409; (1948)1MLJ344
AppellantJanab E.M. Ghulam Dastagir Saheb
RespondentMarudai Pillai and anr.
Cases ReferredAchayya v. Hanumantarayudu I.L.R.
Excerpt:
.....109 was wrong. 126, a bench decided that a lessee in circumstances similar to those of the present case was entitled to enforce his right to obtain possession of the land leased to him so that he might enjoy its usufruct, because section 108 of the transfer of property act provides that a lessor is bound to put him in possession of the property and further that the benefit of the contract is annexed and goes with the lessee's interest as such, and can be enforced by him. ' here, i understand, (no copy is before me), the lease clearly says that the lessee is to pay a certain rent and that in addition he is to be responsible for payment of government cist......clause applies in the circumstances of this case.12. the next point relates to the question of rent. clause (xi) refers to ' the amount of the rent of immoveable property.' here, i understand, (no copy is before me), the lease clearly says that the lessee is to pay a certain rent and that in addition he is to be responsible for payment of government cist. no doubt in section 105 of the transfer of property act, ' rent ' means all payments which the tenant undertakes to make. perhaps logically therefore it may be argued that in the court-fees act the word ' rent ' includes everything. to do so, however, i think, overlooks the fact that the clause (xi) (cc) was intended to give landlords and tenants and those claiming under them a cheap remedy. the words used are ' the amount of the.....
Judgment:

Bell, J.

1. The petitioner was one of two defendants in a suit in the District Munsiff's Court, Tanjore, to eject him from possession of certain land. The second defendant in the suit was the Tanjore Municipal Council.

2. The first defendant had been for some years the holder of a lease, from the Council, of the land in question. It was a registered lease and valid in every respect. It came to an end by effluxion of time on 31st March, 1946. He had begun negotiations previously for renewal and by resolution, dated 16th January, 1946, the Council agreed to grant him a new lease for three years from 1st April, 1946 to 31st March, 1949. This resolution was confirmed by a Government memorandum, dated 21st May, 1946. Thereafter this Government order appears to have been cancelled and the Council believing that they had no authority to grant any lease to the petitioner, therefore determined to put up the lease of this land for auction in the ordinary way. On 12th April, 1947, the Council, having no doubt some previous knowledge of the ultimate intentions of the Government, informed the petitioner that he could not continue in possession after 30th June, 1947. At the public auction the plaintiff, respondent here, was successful and on 25th June, 1947, a lease for three years complying with all the formalities and to commence from the 1st July, 1947, was executed.

3. The position therefore was roughly this. The unfortunate petitioner by some unknown Governmental act had lost the opportunity of a renewal of his old lease and the equally innocent respondent by force of the above circumstances had acquired a lease to property which had been in the occupation of the petitioner for some years.

4. The new lessee on seeking to enter into possession found that the petitioner was there, despite the Council's notice and the fact that the old lease had terminated so far back as March, 1946. An application was therefore made by the new lessee to the Council in which he asked them to remove the petitioner and given him possession. I am told that the Municipality in reply told the new lessee that it was for him, if he liked, to take whatever legal action was necessary to eject the old lessee. He therefore filed the suit in question on 12th August, 1947, against the first defendant, the old lessee, and also against the Municipal Council who, I understand, have taken no helpful part whatever in the proceedings.

5. This petition arises under the Court-Fees Act. In the suit the plaintiff claimed at first that he could sue under Section 7 (v). The first defendant however objected that if the market-value were taken, the suit would be beyond the jurisdiction of the District Munsiff. Thereupon the plaintiff successfully sought to amend the suit and to value it as being one not for possession, but as a suit between landlord and tenant under Section 7 (xi) (cc).

6. In the lower Court when the propriety of this amendment was being discussed, it was argued on behalf of the plaintiff that he was in law an assignee of the reversion from the Council, the owner of the land, and as such could sue in the place of the landlord under Section 109 of the T.P. Act. His contention was upheld.

7. The first defendant contended that even so under Clause (xi) (cc) the valuation must be according to the amount of the rent payable for the year before the date of the plaint. In calculating that the fact |that the lease from the Council contained an agreement by the tenant to pay not only the rent but Government cist also must be considered and the actual figure of the rent plus cist would exceed the jurisdiction of the District Munsiff's Court. The contention was rejected and the District Munsiff allowed the suit to be valued under Clause (xi) (cc), a decision from which the first defendant now appears here in revision.

8. Mr. Venkatarama Ayyar who appears for the petitioner has argued with great force and so far as I am concerned with success that the basis put forward in the lower Court that the new lessee could be considered for the purpose of this case as an assignee under Section 109 was wrong. In fact there is very little of his argument on this point with which I am in disagreement.

9. But I feel that there is really something more than this in the case. It is a matter arising out of the Court-Fees Act. One is not therefore concerned so much with the merits or demerits of the plaintiff's case but to see whether the action in its present form can be brought within the ambit of the section or sub-section which the plaintiff has selected. Section 7 (v) applies generally to suits for possession. The new clause, viz., Clause (xi) was meant to ease the position of a landlord endeavouring to obtain his rights as between himself and his tenant and of a tenant endeavouring to obtain his from the landlord and to give both a quick, easy and cheap remedy. If Clause (v) were the only one to apply, it would involve very heavy court-fees. Sub-clause (cc) of Clause (xi) was intended to enable a landlord to bring a cheap suit against a tenant guilty of holding over after the determination of his tenancy. That the word ' tenant ' must not be taken too literally is to be found in numerous cases including Gobindakumar Sur v. Mohinimohan Sen I.L.R. (1929) Cal. 349, Manickam Pillai v. Ratnasami Nadar : (1917)33MLJ684 and the Privy Council case in the Kannan Industrial Bank, Ltd. v. Satya Niranjan Shaw (1928) 55 M.L.J. 464 : I L.R. 55 IndAp 344 : I.L.R. 56 Cal. 80 (P.G.). Although their Lordships were dealing with the Calcutta Rent Act, the analogy is not too distant.

10. Leaving this particular question aside for the moment and going back to the main contention in the lower Court as to the right of the new lessee to sue, authori-ties going back to Achayya v. Hanumantarayudu I.L.R. (1891) Mad. 269, show that a person in the position of a lessee can sue in ejectment a person whom he finds in occupation of the land leased to him. In Hakim Mohamad Fazihzzaman v. Anwar Husain (1931) 30 A.L.J. 126, a Bench decided that a lessee in circumstances similar to those of the present case was entitled to enforce his right to obtain possession of the land leased to him so that he might enjoy its usufruct, because Section 108 of the Transfer of Property Act provides that a lessor is bound to put him in possession of the property and further that the benefit of the contract is annexed and goes with the lessee's interest as such, and can be enforced by him. Reference was made to Achayya v. Hanumantarayudu I.L.R. (1891) Mad. 269, where the right of a lessee to sue was assumed because he claimed under the owner of the property. In that case the plaintiff sought to obtain possession of land leased to him by defendant No. 1 under a registered cowle. It was admitted that defendant No. 1 was an agraharamdar and was the owner of the land. Defendant No. 2 pleaded that he had occupancy rights, but in the lower Court these were not satisfactorily proved. The lower appellate Court, however, held that the lessee was not entitled to sue because he was a mere lessee and the owner had not been in possession up to the date of the lease. As stated, this Court had no hesitation whatever in holding that as the owner of the land was entitled to eject the second defendant on proof of title, so could the lessee, claim under him to obtain possession on proof of such title and of his own lease. These two cases have been approved in many others (see Pollock's Transfer of Property Act, second edition, page 599). The new lessee, in my opinion in the case before me, could properly bring an action to eject the first defendant.

11. Now, has he to bring this suit, as though it were an ordinary action for possession under Section 7 (v) and value the suit on the market value of the property or may he, as the lessor could have done, take advantage of Section 7 (xi) (cc)? It would, in my opinion, be unjust to hold that he may bring the action only under the former clause. Where a person obtains a lease, say, of a dwelling house, from a lessor and finds when he desires to take possession that some stranger is there, it would be monstrous to make him file a suit on the basis that he was doing anything else but stand in the shoes of the lessor. If the landlord can bring the suit cheaply under Clause (xi) (cc), why should not the lessee be entitled to do the the same? If the word ' tenant ', can be extended, as it has been extended by many different Courts, to include a person who is not in law a tenant at all, to say that the word ' landlord ' may cover a lessee who under Section 106, Transfer of Property Act, has every legal right to pursue such a remedy, does not seem at all difficult. I think that the decision of the lower Court can be supported, although for different reasons. It would be in my opinion a most artificial approach to the Court-Fees Act to say that a valid lessee could only exercise his undoubted rights under Section 108 of the Transfer of Property Act at great cost under Section 7 (v) of the Court-Fees Act, while the landlord, if he chose to bring the same suit in ejectment, could avail himself of Section (xi) (cc). I therefore hold that the latter Clause applies in the circumstances of this case.

12. The next point relates to the question of rent. Clause (xi) refers to ' the amount of the rent of immoveable property.' Here, I understand, (no copy is before me), the lease clearly says that the lessee is to pay a certain rent and that in addition he is to be responsible for payment of Government cist. No doubt in Section 105 of the Transfer of Property Act, ' rent ' means all payments which the tenant undertakes to make. Perhaps logically therefore it may be argued that in the Court-Fees Act the word ' rent ' includes everything. To do so, however, I think, overlooks the fact that the Clause (xi) (cc) was intended to give landlords and tenants and those claiming under them a cheap remedy. The words used are ' the amount of the rent of the immoveable property.' This is merely a rough and ready guide and in my opinion it would be against the intention of the Legis-lature to hold that into what was intended to be a rough and ready guide, the whole of the definition of Section 105 of the Transfer of Property Act should be imported. In the agreement to pay the Government cist the amount is not mentioned. No doubt the amount varies rarely by more than a few rupees, but I cannot bring myself to find that when this section speaks of' rent ' it means everything which the lessee agreed to pay, ascertained or ascertainable.

13. In the result, therefore, this petition is dismissed. The Council, as already stated, having refused to give any assistance to those unfortunate citizens, I think that the proper order to make about costs is to say that they will abide the result of the suit in the lower Court.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //