M. Natesan, J.
1. In this case our learned brother Veeraswami, J., while allowing the Second Appeal, granted leave, as he felt himself bound by certain decisions of this Court which required re-consideration in the light of the ratio decidendi of the decision of the Supreme Court in Dr. K.A. Dhairavawan v. J.R. Thakur : 1SCR799 . These decisions Ramaswami Pathar v. J.K. Devasthanam : (1963)1MLJ60 , Palaniappa Chettiar v. Vairavan Chettiar : (1963)1MLJ130 , and Palaniappa Chettiar v. Babu. Sahib : (1964)1MLJ110 , have since been held by the Supreme Court in A. R. Saley Mohamed Sail v. Jaffer Mohamed Sait's Memorial Dispensary Charity C.A. Nos. 880 and 881 of 1967, as not laying down the correct law. All that is necessary now is to apply the ruling of the Supreme Court to the facts of the present case and pass appropriate orders. For this it is necessary to set out briefly the facts leading to the dispute and the respective contentions of the parties.
2. The plaintiff in a suit for ejectment is the appellant before us. The 1st defendant in this case, on the 15th April, 1950, under Exhibit- A-l, took on lease 33 cents of vacant land belonging to the plaintiff on a rent of Rs. 165 per year. The lease period expired on the 14th April, 1960. But possession of the land was not surrendered by the defendant to the plaintiff. To the suit in ejectment by the plaintiff, various defences were raised. Inter alia, it was contended that the lease intended superstructures being erected on the land, and that, therefore, the Madras Buildings (Lease and Rent Control) Act, 1960 applied to the case. There was also a plea that the Madras City Tenants Protection Act that had been extended to the area, would apply to the case, notwithstanding Madras Act XIII of 1960 which exempted non-residential buildings in the area from the operation of the Act. The trial Court overruled the defence and decreed the suit for possession, granting the defendant six months' time to vacate the premises. The decree of the trial Court was confirmed in Appeal. In Second Appeal, following the decisions of this Court above referred to, under which even though the subject-matter of a lease was a vacant site, once a building was erected thereon the site became part of the building, the land and building becoming an integral whole making the lease of the site as one of the building also and attracting the provisions of the Madras Buildings (Lease and Rent Control) Act, our learned brother reversed the decrees and judgment of the Courts below and allowed the Second Appeal. The aforesaid decisions of this Court based their conclusion on an earlier decision of this Court in Irani v. Chidambaram Chettiar (1952) 2. M.L.J. 221 in the view that in The Irani case (1952) 2. M.L.J. 221 what was leased was a vacant site. In A. R. Saley Mohamed Sait v. Joffer Mohammad Suit's Memorial Dispensary Charity C.A. Nos. 880 and 881 of 1967 above referred to, the Supreme Court points out that what was let out in The Irani case (1952) 2. M.L.J. 221 was not a vacant site, and that there were certain stalls and structures on the land leased which came within the definition of ' building ' in the Madras Buildings (Lease and Rent Control) Act then in force. The Supreme Court remarks that, to determine whether the lease is of vacant land or a ' building ' within, the meaning of the Madras Buildings (Lease and Rent Control) Act, we must, take into account both the form and substance of the transaction. Counsel before us did not question the applicability of the decision to the instant case. It is not disputed that the subject of the original demise was only land. The landlord did not let out any building to the tenant. It follows that the defendant cannot rely upon the Madras Buildings (Lease and Rent Control) Act, 1960 to oust the jurisdiction of the civil Court to grant the plaintiff the relief of eviction.
3. But this does not conclude the case. It now transpires that in December, 1965 the Madras City Tenants Protection Act has been extended to the Municipal Town of Mayuram even in respect of non-residential buildings. The defendants have, in their written statement, indicated that they would be entitled to the benefits conferred on tenants under the Madras City Tenants Protection Act. In this Court in the Letters Patent Appeal, they have filed application C.M.P. No. 13049 of 1966 claiming the benefit conferred on tenants under Section 9 of the Act. This petition for directions to the plaintiff to sell the site under Section 9 of the Act has been presented in this Court on 21st November, 1966. The plaintiff has filed a counter affidavit contending inter alia that the petition is barred by limitation and being out of time it has to be rejected. The option under Section 9 of the Act is only one of the benefits conferred on tenants. It is neither convenient nor desirable to examine in this Court whether any and if so what benefits or rights the defendants could claim under the Act. In the application of the Act it may become necessary to assess the value of the superstructures or that of the site. It is better in the circumstances to remit the claims under the Madras City Tenants Protection Act for consideration and disposal by the Court of first instance, leaving it open to the parties to raise all available pleas in the matter of the applicability of the Act or any of the provisions therein to the case.
4. In the result the decrees and judgments in the suit are set aside and the suit is remanded back to the District Munsif, Mayuram, for disposal of the case under the provisions of the Madras City Tenants Protection Act. C.M.P. No. 13049 of 1966 is also sent to the District Munsif for disposal there. The date of presentation of the petition specifically for relief under Section 9 of the Act shall be the date on which the petition was presented in this Court and the trial Court will consider its maintainability having regard to that date. Parties shall bear their respective costs throughout.