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Pattu Iyer and anr. Vs. Arunachala Padayachi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1973)1MLJ77
AppellantPattu Iyer and anr.
RespondentArunachala Padayachi
Cases ReferredSalay Mohammed Sail v. J.M.S. Charity
Excerpt:
- .....the suit by establishing that the respondent is entitled to the benefits of the madras city tenants protection act. the learned counsel for the appellants, however, resists this attempt of the respondent stating that the lower appellate court having found that the respondent is not entitled to the benefits of the madras city tenants' protection act and no appeal or cross-objections having been filed by the respondents as against that finding, it is not open to the respondent to urge the point as to whether the respondent is entitled to the benefit of the madras city tenants protection act or not. i am however of the view that it is open to the respondent to sustain the decree of dismissal of the appellants' suit by successfully questioning the finding of the lower appellate court.....
Judgment:

G. Ramanujam, J.

1. The plaintiffs in O.S. No. 382 of 1965 on the file of the District Munsif, Mayuram are the appellants. They filed the suit for recovery of possession of their 1/3rd. share in the suit properties bearing T. S. No. 1388/2 situate in Thirumanjana Street, Thiruvilandur, Mayuram Town, as well as for past and future rents. Both the Courts below had held that they are not entitled to seek recovery of possession of the property but they are entitled to claim only arrears of rent. The plaintiffs canvass the correctness of the decisions of the Courts below in this second appeal. Both the Courts below have given different reasons for their decision. The trial Court held that the defendant, having taken on lease a vacant site and having erected a building thereon is entitled to the protection of the Madras Buildings (Lease and Rent Control) Act, (18 of 1960) in view of the decision of this Court in Palaniappa Chettiar v. Babu Sahib : (1964)1MLJ110 . The lower appellate Court, however held that the defendant is not only entitled to the protection of the said Act but that he is also entitled to the protection of the Madras Kudiyiruppu (Protection from Eviction) Act as he is an agricultural labourer.

2. According to the plaintiff the suit property was leased to the defendant under Exhibit A-1 dated 16th July, 1958 by Gangadhara Iyer, the father of the first plaintiff and the husband of the second plaintiff. The suit property was then sub-divided and the middle portion come to be allotted to the plaintiff. The defendant took the lease for a non-agricultural purpose on a monthly rental of Rs. 2 and put up a shop therein. The plaintiffs terminated the tenancy of the defendant by a notice Exhibit A-2 dated 30th August, 1962 calling upon the defendant to surrender possession of the suit property after removing the superstructure which he had erected on the suit lands. The defendant had sent a reply under Exhibit A-3 dated 13th September. 1962 claiming rights under the City Tenants Fraction Act. The plaintiffs thereafter filed the above suit in ejectment against the defendant.

3. The defendant contended that he became a tenant of the suit property long before the execution of Exhibit A-1 dated 16th July, 1958 under a kailetter, Exhibit B-4, dated 14th August, 1956 on a monthly rental of Rs. 18.0 and that in fact he has been in possession of the suit property even earlier from January, 1956. The defendant in his defence claimed the benefit of (i) the Madras City Tenants' Protection Act, (ii) the Madras Buildings (Lease and Rent Control) Act (iii) the Madras Cultivating Tenants' Protection Act and (iv) the Madras Kudiyiruppu (Protection from Eviction) Act.

4. The trial Court found that the defendant has not established that he had been in possession of the property from January, 1956 and that he became a tenant only on 16th July, 1958 under Exhibit A-1 for non-residential and non-agricultural purpose, It therefore held that the defendant is entitled to the benefits of the Madras Buildings (Lease and Rent Control) Act, 1960 and not to the benefits of the other Act as claimed by the defendant. But the lower appellate Court has taken the view that the defendant should have become a lessee of the property for residential purposes by virtue of the kailetter Exhibit B-4, dated 14th August, 1956. According to the lower appellate Court the defendant's tenancy should have commenced from 14th August, 1956 for a residential purpose, In that view the lower appellate Court held that the defendant is entitled to the benefit of the Madras Kudiyitruppu (Protection from Eviction) Act as also to the benefits of the Madras Building (Lease and Rent Control) Act. According to the lower appellate Court the defendant is an agricultural labourer and the leasehold site in his occupation if a 'kudiyiruppu' as defined in the Madras Kudiyiruppu (Protection from Eviction) Act. In this second appeal the plaintiffs question the finding of the lower appellate Court that the defendant is entitled to the benefits of the Madras Kudiyiruppu (Protection from Eviction) Act as also Madras Act XVIII of 1960.

5. It has to be noted that both the Courts below have held that the plaintiffs are not entitled to the benefits of the Cultivating Tenants' Protection Act and that finding has not been challenged before me. The learned Counsel for the appellants contends that the lower appellate Court's finding that the defendant is entitled to the benefits of the Madras Kudiyiruppu (Protection from Eviction) Act and as such he could not be evicted from the suit site cannot be sustained as the defendant has been using the leasehold site for a non-residential purpose and not for his residential purpose, and the definition of 'Kudiyiruppu' will not take in a site occupied even by an agriculturist for a non-residential purpose. I find the learned Counsel for the appellant is right in saying that the suit site will not come under-the definition of 'Kudiyiruppu' if such site has not been used as a dwelling house by the defendant. The learned Counsel for the respondent concedes before me that the respondent is using the suit for a non-residential purpose subsequent to the execution of the lease Exhibit A-1 dated 16th July, 1958. Therefore, as it is conceded that the suit site is not occupied for the residence of the respondent the application of the Madras Kudiyiruppu (Protection from Eviction) Act has to be ruled out. Therefore the view taken by the lower appellate Court that the respondent is entitled to the benefit of the Madras Kudiyiruppu (Protection from Eviction) Act has to be set aside. As a matter of fact the learned Counsel for the respondent did not support the finding of the lower appellate Court in that regard.

6. The learned Counsel for the respondent, however, contends that he can sustain the decree of the lower appellate Court dismissing the suit by establishing that the respondent is entitled to the benefits of the Madras City Tenants Protection Act. The learned Counsel for the appellants, however, resists this attempt of the respondent stating that the lower appellate Court having found that the respondent is not entitled to the benefits of the Madras City Tenants' Protection Act and no appeal or cross-objections having been filed by the respondents as against that finding, it is not open to the respondent to urge the point as to whether the respondent is entitled to the benefit of the Madras City Tenants Protection Act or not. I am however of the view that it is open to the respondent to sustain the decree of dismissal of the appellants' suit by successfully questioning the finding of the lower appellate Court that the respondent is not entitled to the benefits of the Madras City Tenants' Protection Act. I therefore proceed to consider whether en the facts established, the respondent is entitled to the protection of the said Act.

7. It is seen that the Madras City Tenant' Protection Act was extended to Mayuram Town only in respect of tenancies of residential buildings by a notification, issued under Section 1 (3) of that Act, in 1956. By a subsequent notification dated 22nd December, 1965, the Act has been extended even to tenancies of non-residential buildings within that town. But in this case the suit came to be filed before the notification, dated 22nd December, 1965 applying the Act to non-residential buildings in Mayuram Town was issued. On these facts one of the questions that has to be considered is as to how far the notification issued on 22nd December, 1965 extending the Madras City Tenants' Protection Act to non-residential buildings in Mayuram Town affects the pending proceedings. The further question that arises is as to whether the tenancy which on the findings of the Courts below commenced under Exhibit B-4, dated 14th August, 1956 would be affected by the notification, dated 28th March, 1956 and 22nd December, 1965 under Section 1 (3) of the said Act.

8. Taking the second question first the learned Counsel for the appellants contends that though the tenancy commenced on 14th August, 1956 under Exhibit B-4 on a monthly rent of Rs. 1-8-0, there has been a fresh lease under Exhibit A-1, dated 16th July, 1938 on a monthly rental of Rule 2. Later the rent was enhanced to Rs. 2-50 by agreement of parties before 15th March, 1965 and that, therefore, the provisions of the Madras City Tenants' Protection Act cannot be applied to the tenancy, as the Act has been extended to tenancies for residential purposes even on 28th March, 1956 and that as per Section 1 (3) of the notification it will apply only to tenancies of land erected before the date of the extension of the Act to Mayuram Town. The learned Counsel relies on the decision of the Privy Council in Renganatha Chetty v. Ethirajulu Naidu , where it has been held while construing the scope of Section 1 (3) that if there is a fresh tenancy at an enhanced rent after 21st February, 1922 when the Madras City Tenants' Protection Act, 1922 came into force, the tenant under such fresh tenancy cannot claim the benefit of the Act. But I am at a loss to find how that decision will help the appellants in this case. Here the earlier notification, dated 28th March, 1956 extended the Act only to tenancies of land taken for residential purposes and that notification was not applicable to the suit tenancy, i.e., under Exhibit A-1 which is one for a non-residential purpose. Even accepting the case of the appellants that there was an increase in rent before 15th March, 1965, the notification under Section I (3) of the Act extending the provisions of the Act to tenancies of land taken for non-residential purposes having come into force only on 22nd December, 1965, the Act will have to apply to the suit tenancy which is one for non-residential purpose created long before that date. I have therefore to hold that the tenancy between the appellants and the respondent will stand attracted by the notification, dated 22nd December, 1965. Section 3 of Madras Act XVI of 1964, provides that when the Act is extended to any area, all pending proceedings in respect of tenancies covered by the notification will stand abated, the said Section 3 runs as follows:

Certain pending proceedings to abate : Every proceedings instituted by a landlord in respect of any non-residential building or part thereof situated in any municipal town specified in the notification issued under Sub-clause (i) of Clause (1) of Section 2 of the principal Act as amended by this Act and the villages within five miles of such municipal town and pending before any Court or other authority or officer on the date on which the said notification takes effect shall, in so far as the proceeding relates to any matter falling within the scope of the principal Act as amended by this Act in respect of such building or part, abate, and all rights and privileges which may have accrued to that landlord in respect of any such building or part and subsisting immediately before the date on which the notification aforesaid takes effect shall, in so far as such rights and privileges relate to any matter falling within the scope of the principal Act as amended by this Act, cease and determine and shall not be enforceable.

Provided that nothing contained in this section shall be deemed to invalidate any suit or proceeding in which the decree or order passed has been executed or satisfied in full before the date on which the notification a for said takes effect.

Relying on this provision the learned Counsel for the respondent states that after the notification, dated 22nd December, 1965, the respondent becomes entitled to all the benefits of Madras Act III of 1922, that he cannot be evicted without due notice as contemplated under Section 11 and without payment of compensation provided in Section 3, and that in the face of the provisions in Section 3 which puts an end to all the pending proceedings in relation to tenancies covered by the notification dated 22nd December, 1965, the appellant's suit should be taken to have abated. As against this the learned Counsel for the appellants contends that, though Section 3 provides that the pending proceedings will stand abated, it cannot be taken that the suit in ejectment filed by the appellants is to be automatically dismissed and that Section 3 merely provides that the rights of parties in the pending proceedings have to be decided in the light of the notification. According to the learned Counsel the word 'abate' used in Section 3 should not be construed as putting an end to the pending proceedings and that it should be construed as restricting or limiting the appellants' right to seek an order in ejectment on the terms and conditions set out in the Madras City Tenants' Protection Act. The learned Counsel refers to the meaning of 'abatement of civil proceedings' given by Earl Jowitt in his Dictionary of English Law, Volume I. Under the head 'abatement of civil proceeding' it is stated that formerly almost every change of interest after the commencement and before the termination of the proceedings caused an abatement or termination, which, however, was curable, where the right of action survived, but that the position has been changed by statutory provisions. What the learned Counsel for the appellants contends is that the suit as such cannot be dismissed on the ground that it has abated by virtue of the notification, dated 22nd December, 1965 extending the provisions of the Madras City Tenants' Protection Act to Mayuram Town, it but that the suit has to be disposed of in the light of the provisions of that Act and states that the appellants are willing to give compensation to the respondent as provided in the Act, But I am not in a position to agree with the learned Counsel for the appellants that the suit has not abated and that it has to be decided in the light of the benefits given to the tenant under Section 3 of the Madras City Tenants' Protection Act. The Act not only gives the benefit of compensation to the tenant on eviction but it also confers other benefits such as a prior notice of three months under Section 11 or a right to purchase the land under Section 9 on a value to be fixed by the Court. By ' virtue of the notification the respondent has become entitled to the benefits conferred by that Act under Sections 3, 9 and 11 as soon as the notification comes into force. In this case the suit has been instituted by the appellants long before the notification and, therefore, without the due notice as contemplated under Section 11 of the Act. It is for this reason Section 3 makes all pending proceedings for recovery of properties in respect of tenancies covered by the notification abated. I therefore hold that the appellants' suit will stand abated.

9. On the question whether the defendant is entitled to the benefits of the Madras Buildings (Lease and Rent Control) Act, 1960, the Courts below found that he is so entitled in view of the decision of this Court in Palaniappa Ckeltiar v. Babu Sahib : (1964)1MLJ110 . But the decision in the above case has been disapproved by the Supreme Court in Salay Mohammed Sail v. J.M.S. Charity (1969) 1 M.L.J. 16 : (1969) 1 A.W. R. 16 : (1969) 1 S.C.J. 63, and that decision lays down that if the lease is of vacant site, the provisions of Madras Act XVIII of 1960, cannot be applied even though the tenant had erected the superstructure therein. In view of that decision the finding of the Courts below that the respondent is entitled to the benefits of Madras Act XVIII of 1960, cannot be sustained.

10. In the result, the second appeal fails and is dismissed. It is, however, open to the appellants to file a fresh suit, if so advised, in compliance with the provisions of the Madras City Tenants' Protection Act. There will be no order as to costs. No leave.


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