T. Ramaprasada Rao, CJ.
1. The landlord of property No. 1/75, Chellappa Mudali Street, Perambur Barracks, Madras is the petitioner. The case of the petitioner is that one Ratnavel Chettiar, the predecessor-in-interest of the respondent herein, took on lease the above property (land) belonging to the petitioner in or about 1935 and put up a construction in the said land prior to 1955. The petitioner's further case is that when Rathnavel Chettiar was alive, he executed a fresh lease, Exhibit P-1, dated 9th March, 1960, in and by which Rathnavel Chettiar agreed to pay a rent of Rs. 75 per month against the original rent of Rs. 14 per month which was enhanced from time to time. Thereafter there were certain proceedings under the Tamil Nadu Buildings (Lease and Rent Control) Act, between the petitioner and the successors-in-interest of the said Rathnavel Chettiar, and it is stated that in or about 1965, the respondents surrendered a portion of the land, and were prepared to pay a further increased rent of Rs. 100 per month for the remaining portion of the demised land, probably because, as already stated, Rathnavel Chettiar had already put up the superstructure and the respondents wanted to continue as tenants in the property, which is the subject-matter of these proceedings. The complaint of the petitioner is that in or about 1972 the respondents sublet the entire demised land, as well as the superstructure, to the 5th defendant in the ejectment suit filed by the petitioner herein. Coming to know of this the petitioner issued a notice Exhibit P-3, dated 13th March, 1972, terminating the tenancy of the respondents, in so far as the land was concerned, and asking the respondents to surrender possession. The respondents replied claiming benefits under the City Tenants Protection Act. The petitioner was therefore obliged to file the ejectment suit. In that suit the respondent filed an application under Section 9 of the City Tenants Protection Act, claiming benefits under the said Act. The trial Court allowed their petition and granted them the benefits under Section 9 of the City Tenants Protection Act. The petitioner preferred an appeal to the Appellate Authority (Chief Judge, Court of Small Causes, Madras), who also dismissed the appeal of the petitioner. The appellate authority found that there was nothing to show that there had been a variation in the terms of the tenancy; secondly that there was nothing in the Act which prevented the tenant of a vacant land from subletting the land and that if he sublet the land, he would be disentitled to the benefits under the Act, and, thirdly, that the Act did not contemplate that the person, who continued to be a tenant of the land and who sought for the benefit under Section 9 of the Act, should be in actual physical possession of the land. It is as against this order that the present revision petition has been filed.
2. In paragraph 4 of the plaint filed under Section 41 of the Presidency Small Causes Court Act, which initiated this (sic) discussion between the parties, it is stated as follows;
After the death of Rathnavel Chettiar, the defendants 1 to 4 occupied the land, mentioned in the schedule below. Subsequently in proceedings in H.R.C. No. 2457 of 1965, the defendants 1 to 4 agreed to pay the land rent of Rs. 100 per month and also in pursuance of the consent order passed in the aforesaid H.R.C. proceedings a strip of 44'x5' out of the schedule mentioned land was surrendered to the plaintiff.
Learned Counsel for the respondents concedes that there were such proceedings in 1965, that there was a surrender of a portion of the originally demised vacant land and that contemporaneously the rent was also increased to Rs. 100. Therefore the finding of the Court below that there was no evidence to show that there had been a variation in the terms of the tenancy appears to be incorrect. This aspect of the matter has to be further enquired into.
3. The legal contention of learned Counsel for the landlord-petitioner is that the tenant in occupation of the vacant land, claiming benefits under the City Tenants Protection Act, should be in actual possession of the land and that he cannot claim such entitlement in cases where he has parted with actual physical possession of the land and building put up by him to a third party. It is common ground in this case that the land and the building has been sublet to the fifth defendant in the main action. Relying upon the provisions of Section 2(4) of the Act the legal contention of learned Counsel for the petitioner is that the conclusion of the Appellate Authority that actual physical possession by the tenant is not contemplated, is against law. Learned Counsel for the respondent would, however, say that such actual physical possession of the land and building is not necessary.
4. Section 2 which is the definition section defines 'tenant' in Sub-section (4) as follows:
Section 2(4): 'tenant' in relation to any land--(i) means a person liable to pay rent in respect of 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 Section 1 and who or any of his predecessors-in-interest had erected any building on such land and who continues in actual physical possession of such land and building, notwithstanding that (1)... (2)... (c) the heirs of any such person as is referred to in Sub-Clause (i) or Sub-Clause (ii), (a) or (ii)(b); but does not include a sub-tenant or his heirs.
Whatever may have been the position at one time regarding a tenant who holds over after the determination of the tenancy agreement the law as it stands now enables such a tenant also to claim the benefits under the Act by reason of the provisions of Section 2(4)(ii)(a). The question however, is whether actual physical possession of such land and building should be with the tenant, or his successor-in-interest to enable him to claim such benefit. The argument of learned Counsel for the petitioner is that it was only Rathnavel Chettiar, who could claim the benefit as a tenant, and not his successors-in-interest or heirs. This is against the very intendment of Section 2(4)(ii)(b). As already excerpted, this provision speaks of 'any predecessor-in-interest having erected a building on the demised land'. That presupposes therefore that a successor-in-interest of the person who erected such building and who continues to be in possession of the land and building would be a tenant within the meaning of this provision. That this is the reasonable conclusion is also made clear by the amendment to the section which was, introduced by Act XXIV of 1973, under which a tenant will also include the heirs of such person as is referred to in Sub-Clause (i) or Sub-Clause (ii)(a) or (ii)(b). It shows that even heirs of the tenant will be entitled to the benefit of the Act provided that they continue to be in possession of the land and building. I am, therefore, unable to agree with the contention of learned Counsel for the petitioner that it was only Rathnavelu Chetti who could claim the benefits under the Act, and not his heirs who are defendants 1 to 4 in the litigation.
5. But, even if defendants 1 to 4 are entitled to protection and the legal entitlement provided under the Act, the question still is whether such persons who are heirs of the tenants so entitled to the benefits under the Act should prove actual physical possession of such land and building and whether such possession is a condition precedent to gain the entitlement and the benefits under the Act? On a fair reading of Section 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 qua non 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 it's 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 primordial 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.
6. As I said, the Court below, without any detailed discussion about real intendment, objective, meaning and purpose of the Act and its legislative intendment, granted the benefit under the Act to the respondents, on the ground that the Act does not contemplate (i) that, if there is subletting, the tenant would be disentitled to the benefits, and (ii) that the tenant, to claim the benefits under the Act, should be in actual physical possession of the land and building. As in my view, the matter has to be reconsidered in the light of the observations as above and in the light of the material hereafter to be considered by the Court below, the order of the Court below cannot be sustained. It is accordingly set aside and the subject-matter is remitted to the Court below for re-enquiry and consideration in the light of the provisions of law and the observations made above.
7. The Civil Revision Petition is allowed. There will be no order as to costs.