1. In this civial revision petition at the instance of the defendant in Ejectment Suit No. 72 of 1981, II Judge, Court of Small Causes, Madras, the only question that arise for consideration is whether the courts below were right in negativing the claim of the petitioner to the benefits of Section 9 of the Tamil Nadu City Tenant's Protection Act (hereinafter referred to as the about 2 grounds and 2027 sq.ft situate in R.S.No.1693/1 in Thulasi Naicken Street, Perambur Baracks, Madras belonged to one Mohamed Ismail Sahib. This property was let out to one T.P.Ramaswami Pillai and on his death, th epetitioner claimded to have the deceased Remaswami Pillai, Mohamed Ismail Sahib dies on 29-12-1961, and the respondents issued a notice on 8-12-1980 terminating the 31-3-1981 and sought the ejectment of the petitioner. In the written statement filed by the petitioner, the plea the petitioner filed M.P.2000 of 1981, in Ejectment Suit No. 72 of 1981, under Sec 9 of the Act praying for adirection for the purchase of the land for a price to be fixed by the respondents on the ground that the petitioner is not entitled to the benefits of Sec 9 of the Act and that the petition is also not maintainable and further that the peitioner was not in actual physical possession of the land in dispute and the superstructure thereon and therefore, cannot claim the benefits of S. 9 of the Act.
2. Teh Second Judge of the Court of Small Causes, Madras who enquired into this application, found that the petitioner admissted that possession of the land and the superstructure thereon was not with the petitioner and that in the absence of acutual physical possession of the land and the superstructure with the petitioner the benefits of Section 9 of the Act Cannot be claimmed. Whiel so holding and dismissing the appliction, the learned. While so holding and dismissing the applciation, the learned Judge applied the principles laid down in the decision in T.R.P.Raja Sekara Bhopathy v Navaneethammal, : (1979)2MLJ144 . Aggrieved by this the petitioner preferred an appeal to the Appellate Authority (Chief Judge, Court of Small CAuses, Madras) and the Appellate Authority concurred with the conclusion of the first authority and dismissed the appeal. It is the correctness of this that is challenged in this civil revision petition.
3. The only contention urged by the learned counsel for the petitioner is a person liable to pay the rent in respect of the land in question and would therefore be a tenant within the meaning of S. 2 (4) (i) of the Act and that irrespective of whether the petitioner is in possession of the land and superstructure or not, the petitioner would be a tenant for purposed of the Act and as such, can claim the benefits of Section 9 of the ACt. Reliance was also plced by the learned counsel for the petitioner upon the absence of words referring to the possession of the land in Section 2 (4) (i) of the Act, as indicating that in cases failing under S. 2 (4) (i) possession of the tenant is not contemplated as an essential condition on the fultilment of which alone the benefits of S. 9 of the Act could be aviled of. On the other hadn, the learned counsel for the respondents would contend that thought it may be that under Section 2 (4) (i) of the Act, there is no specific reference as such to possession of the demised land with the tenant yet, the incident of a tenancy agreement express or implied referred to in S. 2 (4) (i) of the Act, would include possesssion of the land with the tenant during the subsistence of the lease and this would also accord with the object of the legislation viz., to give protection to tenants who have constructed buildings on the lands of others so long as they pay the fair rent for the land. Referring to S. 2 (4) (ii) (a) of the Act, the learned counsel for the respondents submitted that in order to set at rest the question whether a person who continues in possession of the land even after the determination of the tenancy in his favour,would be entitled to the benefits of the Act, the inclusive definition was incorporated but that would not in any way detract from the requirement as to possession of the property by the tenant under a tenancy agreement express or implied as centemplated under Section 2 (4) (i) of the Act. In addition, the learned counsel relied upon the decisions in Haridas Girdharidas v. Varadaraja Pillai, (1976) I MLJ 193 and T. T. P. Raja Sekara Bhoopathy v. Navaneethammal, : (1979)2MLJ144 .
4. In order to appreciate the contentions raised, it would be first necessary to notice the definition of a 'tenant' under the Act. Section 2 (4) of the Act defines a 'tenant' as under :-
'(4) 'Tenant' in relation to any land -
(i) means a person liable to pay rent in respectof such land, under a tenancy agreement express or implied; and
(ii) includes -
(a) any such person as is referred to in sub-clause (i) who continues in possession of the land after the determination of the tenancy agreement;
(b) any person who was a tenant in respect of such land under a tenancy agreement to which this Act is applicable under sub-section (3) of S. I and who or any of his predecessor-in-interest had erected any building on such land and who continues in actual physical possession of such land and building, notwithstanding that -
(1) such person was not entitled to the rights under this Act by reason of the proviso to Sec. 12 of this Act as it stood before the date of the publication of the Madras City Tenants Protection (Amendment) Act, 1972 (Tamil Nadu Act 4 of 1972); or
(2) a decree for declaration or decree or an order for possession or for similar relief has been passed against such person on the fround that the proviso to S. 12 of this Act as it stood before the date of the publication of the Madras City Tenants Profection (Amendment) Act, 1972 (Tamil Nadu Act 4 of 1972) disentitled such person from claiming the rights under this Act; and
(c) The heirs of any such person as is refered to in sub-clause (i) cr sub-clause (ii) (a) or (ii) (b); but does not include a sub-tenant or his heirs'.
In this case, there is no dispute that Ramaswami Pillai was the tenant in respect of the site which originally belonged to Mchamed Ismail Sahib. It is also not disputed that the lessee Ramaswami Pillai had put up certain superstructures in the vacant site taken on lease and that the site as well as the superstructure had all been sublet to different tenants and that actual physical prossession of the premises and the superstructures never was with the petitioner. In this state of affairs, whether the petitioner can claim the benefits of Section 9 of the Act is the question that has to be decided. It is true that under S. 2 (4) (i) of the Act, while defining a 'tenant', there is no specific reference whatever to the tenant being in possission of the land; but what has been stated under Sec. 2 (4) (i) is one of the incidents of a tenancy express or implied viz, the tenant had made or rendered himself liable to pay rent in respect of the land. The payment of such rent to the landlord is only on account of the possession and enjoyment of the demised land by the tenant and not for any other purposes. The normal incident of a tenancy is that the tanant should be put in possession of the land let out and the landlord should be paid the rent for the land so letout. In the definition, under S. 2 (4) (i) of the Act, the liability to pay the rent alone is explicitly referred to, but that would also take in the other incidents of a tenancy express or implied viz, the possession of the demised land by the tenant. That it was so contemplated is made clearer by S. 2 (4) (ii) of the Act which enacts an inclusive definition so a to take in persons who continue to remain in possession after the determination of the tenancy agreement. The inclusive definition confers the status of a tenant on a erstwhile tenant who continues in possession, even after the determination of the tenancy agreement; but what is important is this contemplates that the person referred to in Sec. 2 (4) (i) of the Act should also be a person, who should be in possession while Section 2 (4) (i) of the Act contemplates a person who is in possession as a tenant during the subsistence of the tenancy and thereby becoming entitled to the benefits of the Act, Sec. 2 (4) (ii) extends such benefits to a person who continues to remain in possession of the demised land after the determination of the tenancy agreement. In other words on a conjoint reading of Ss. 2 (4) (i) and 2 (4) (ii) of the Act, it is clear that while Sec. 2 (4) (i) takes in a tenant in possession during the currency of the lease, S. 2 (4) (ii) contemplates the case of continuity of possession by an erstwhile tenant, after the determination of the tenancy and the conferment of the status of a tenant even on such a person. To accept the contention of the learned counsel for the petitioner would be to hold that the tenant need not be in possession during the currency or subsistence of the lease to claim the benefits of Section 9 or other provisions of the Act, but nevertheless can claim such statutory benefits, while after the expiry or determination of the lease, unless he is in possession, he cannot claim the benefits of Sec. 9 or other provisions of the Act as a tenant under S. 2 (4) (ii) of the Act. This is a very anomalous position. That is why, the word 'tenant' has been so defined in the Act as to take in both categories of persons, viz., tenants in possession during the subsistence after the determination of the lease. Inasmuch as the acceptance of the contention urged by the learned counsel for the petitioner would result in the conferment of the benefits of the Act upon persons not in possession of the land and superstructures at all during the subsistency of the tenancy, it is not possible to accept that contention.
5. The identical question had arisen for consideration before this Court in T. R. P. Raja Sekara Bhoopathy v. Navaneethammal, : (1979)2MLJ144 . That case dealt with the entertainability of a claim to the benefits of Section 9 of the Act by the heirs of tenants, who were not in actual physical possession of the land and the building, as in this case. In holding that they were not so entitled. Ramaprasada Rao, C. J. observed at page 146 as under -
'...... On a fair reading of S. 2 (4) (ii) (b) of the Act, it is clear that such a physical and actual possession of the land and building is a sine qttanon to project the benefits or statutory entitlement under the Act, if that were not the intendment of this piece of legislation, then the very foundation of its objective would be lost, and at the same time it would be a travesty to hold that it is only the original tenant of the vacant site, who put up the superstructure, who would be entitled to the benefits of the Act and that his heirs, though they may be persons who can be described as tenants would be entitled to such benefits even though they have parted with possession. I am therefore, of the view that the premordial requirement for a tenant to claim the benefits under the Act is that he should be in actual physical possession of such land and building'.
The observation extracted above clearly bring out the importance of the requirement as to possession of the property by the tenant before he can proceed to claim benefits under Section 9 of the Act. To recognise a claim to the benefits of Sec. 9 of the Act by heirs of the tenants (as defined under Sections 2 (4) (i) and 2 (4) (ii) (a) and (b) under S. 2 (4) (c) of the Act who are not at all in possession, would be to violate the very definition of the word 'tenant' and also totally defeat the very object with which the provisions of the Act had been enacted. Therefore, the decision referred to above would govern this case.
6. The learned cousel for the respondents contended that the petitioner would not be a tenant even under S. 2 (4) (ii) (a) of the Act, as the tenancy had been terminated on 31-3-1981, and the petitioner was not in possession either before or even thereafter. Earlier, it had been held that in order to claim the benefits of the Act as a tenant falling under S. 2 (4) (i) of the Act, the tenant should be in possession of the demised land and in this case, it has been found that even during the currency of the lease, the tenant had parted with actual physical possession and therefore Sec. 2 (4) (i) of the Act cannot be applied to the petitioner and hence the applicability of S. 2 (4) (ii) (a) of the Act would not arise at all and in this view, it is not necessary to consider this submission of the learned counsel for the respondents. For the reasons stated eariler, the Courts below were quite correct in holding that the petitioner, who was admittedly out of possession of the land as well as the superstructures, cannot claim the benefits as a tenant under Section 9 of the Act. There is no illegality or irregularity in the orders of the Courts below. Consequently, the civil revision petition fails and is dismissed with costs.
7. Revision dismissed.