M.M. Ismail, J.
1. All these three proceedings relate to the same parties and are concerned with the same property and consequently they are disposed of together by a common judgment. In all these proceedings the respondent is the same, namely one M. E. Manicka Mudaliar.
2. There was no dispute that in respect of the suit property, namely, a vacant site, the appellants herein were tenants and they had put up a rice and flour mill thereon. They had taken the lease of the suit property from the predecessor-in-title of the respondent and after respondent obtained title to the property under the original of Exhibit A-2, dated 29th July. 1969, the appellants-petitioners attorned the tenancy to the respondent, and had been paying rent to him.
3. The respondent filed O.S. No 990 of 1972 on the file of the Court of the District Munsif, Vellore, for recovery of possession of the suit property and for recovery of a sum of Rs. 250 being the arrears of rent. In the suit, the first appellant herein filed I. A. No. 1037 of 1973, claiming that he was entitled to the benefits of the Madras City Tenants Protection Act and that therefore he had a right under Section 9 of that Act to obtain a direction to the respondent herein to sell the demised land to him. The learned Additional District Munsif, Vellore, who disposed of the matter, decreed the suit and dismissed the application 1. A. No. 1037 of 1973. The application was dismissed on the ground that the Madras City Tenants Protection Act had not been extended to non-residential tenancies in the area in question and that consequently the appellants were not entitled to apply for a direction to the respondent under Section 9 of the Act. Once the right of the appellants to file an application under Section 9 of the Act was rejected, naturally the suit instituted by the respondent herein had to be decreed. It is on the above basis that the learned Additional District Munsif by judgment and decree, dated 18th October, 1973 decreed the suit, O.S. No. 990 of 1972, as prayed for and dismissed the application, I. A. No. 1037 of 1973. Against the judgment and decree in O.S. No. 990 of 1972 the appellants, filed A. S. No. 418 of 1973 on the file of the District Court, North Arcot, Vellore which was transferred to and numbered as A.S. No. 261 of 1973 on the file of the Court of the learned Additional Subordinate Judge, Vellore and disposed of by the learned Subordinate Judge, Vellore on 16th August, 1974, Against the dismissal of the application I. A. No. 1037 of 1973 the appellants preferred C.M.A. No. 4 of 1974 on the file of the District Court, North Arcot, Vellore, which was also transferred to the Court of the Subordinate Judge, Vellore, and numbered as C.M.A. No. 6 of 1974, and disposed of along with A.S. No. 261 of 1973 by the judgment, dated 16th August, 1974. The learned Additional Subordinate Judge of Vellore affirmed the decree passed by the learned Additional District Munsif in O.S. No. 990 of 1972 and also the order dismissing I. A. No. 1073 of 1973. The learned Subordinate Judge rested his conclusion with regard to the appeal on two grounds. One was that the appellants herein were not entitled to the benefits of the Madras City Tenants Protection Act, since by the time the proceedings came to be disposed of by the learned Subordinate Judge, the Act had not been extended to non-residential tenancies in Vellore town. Another ground on which the learned Subordinate Judge held that the appellants herein would not be entitled to any relief even if the case came within the scope of the Madras City Tenants Protection Act, was that there was a strip of land in the middle of the suit property to which the respondent had no title, because the vendors under Exhibit A-1 themselves had retained it as a pathway. It is against the dismissal of A.S. No. 261 of 1973 that the present second appeal S.A. No. 1601 of 1974 has been preferred to this Court and it is against the dismissal of C.M.A. No. 6 of 1974 that the present civil revision petition. C R. P. No. 2153 of 1975 has been preferred to this Court.
4. During the pendency of the second appeal and the civil revision petition before this Court, the Government of Tamil Nadu by G.O. Ms. No 1285, Revenue Dept, dated 31st May, 1975, published in the Tamil Nadu Government Gazette dated 25th June. 1975, extended the provisions of the Madras City Tenants Protection Act to the non-residential tenancies in all Municipal towns including Vellore town in North Arcot District. After this order was passed by the Government, on 14th July. 1975, the appellants filed C.M.P. No. 7553 of 1975, for a direction to the respondent herein under Section 9 of the Act.
5. That is how all the above three proceedings have come up before us now As far as the civil revision petition is concerned, we have no doubt whatever that the same has to be dismissed summarily. The very fact that the appellants have filed C.M.P. No. 7553 of 1975 after the notification of the Government, dated 31st May 1975 was published in the Tamil Nadu Government Gazette, dated 26th June, 1975, will clearly show that before that date the Act was not extended to non-residential tenancies in Vellore town and consequently when the appellants purported to file I. A. No. 1037 of 1973 in O.S. No. 990 of 1972. the Act did not apply to non-residential tenancies in Vellore town and that therefore, the appellants could not have had any right to make an application under Section 9 of the Act. This position not being disputed, the civil revision petition fails and is dismissed.
6. The only other question that has to be considered is whether C.M.P. No. 7553 of 1975 preferred to this Court, in the present second appeal, under Section 9 of the Act, after the Act was extended to Vellore town by the Government is maintainable before this Court. In other words, whether the right conferred on the appellants under Section 9 of the Act which accrued to them by virtue of the extension of the Act to Vellore Municipal town area could be exercised only by filing an application before the trial Court or it could be exercised by filing an application before this Court in the second appeal, since the question on this point has been covered by a decision of a Bench of this Court.
7. Before we refer to the Bench decision, we shall refer to the language of Section 9(1) (a) (1) as it stood, when the Act was extended to Vellore town area, which runs as follows:
9(a)(i).--Any tenant who is entitled to compensation under Section 3 and against whom a suit in ejectment has been instituted or proceeding under Section 41 of the Presidency Small Causes Courts Act, 1882, taken by the landlord, may within one month of the date of the Madras City Tenants Protection (Amendment) Act, 1955, coming into force or of the date with effect from which this Act is extended to the Municipal town or village in which the land is situate or within one month after the service on him of summons, apply to the Court for an order that the landlord shall be directed to sell for a price to be fixed by the Court, the whole or part of the extent of land specified in the application.
In this particular case, as we have pointed out a/ready, it was only during the pendency of the second appeal and the civil revision petition that the Act was extended to the Vellore town area by G.O. Ms No. 1285, Revenue Dept, dated 31st May, 1975, published in the Tamil Nadu Government Gazette, dated 25th June, 1975 and the application C. M P. No. 7553 of 1975 itself was filed on 14th July, 1975, that is, within one month from the date of the publication of the notification. In this context, the appellants have fulfilled the requirements as to the time-limit within which they should file the application.
8. The only other question is could they have filed this application in this Court when the second appeal was pending, because Section 9(1)(a)(i) refers to the institution of a suit in a civil Court or taking of proceedings under Section 41 of the Presidency Small Cause Courts Act, and makes no reference either to an appeal or to a revision against the orders passed by the trial Court. However, as we have pointed out already, the matter is covered by a Bench decision of this Court in Kanniappa Chettiar v. Ramachandra Iyer : (1924)46MLJ407 . In that case also the question as to the maintainability of an application under Section 9 of the Act before the High Court, where the first appeal was pending, came to be considered. The learned Chief Justice points out in his judgment--
It is contended on behalf of the plaintiff that section (section 9 of the Madras City Tenants Protection Act) has no application to a case where a decree for ejectment has been made, as I understand the argument, whether an appeal is pending from that decree or not or whether a decree has or has not been executed. The argument is mainly based on the decision in A.A.O. No 182 of 1972. Ltifa Bibi v. Mottaiammal : AIR1923Mad320 . In that case, the decree for ejectment had been passed, had come up to this Court on appeal and had, on appeal, been confirmed; but the decree had not been executed when the petition for leave to purchase under Section 9 was made. It was held that the decree having been passed and confirmed, the Court had no jurisdiction to grant the petition. That those suits are pending in this Court, I think, is clear from a series of decisions which decide that in this country an appeal is really a continuation of the proceedings or as it has been put, is a stage in and part of the proceedings in a suit, Vide Krishnamachariar v. Mangamma (1903) 26 Mad. 91, Sathappa Goundon v. Muthaiah Gounder (1908) 3l Mad. 268, Kamayya v. Papayya (1971) 32 M.L.J. 887 : 15 L.W. 528 : (1971) 40 Mad 259 and particularly the very learned judgment of Mookerji, J in Raicharan v. Biswanath (1914) 20 C.L.J 107. See also the decision of the Privy Council in an appeal from Ceylon, Poonamma v. Arumuga (1905) AC 383. In Latifa Bibi v. Mottai Ammal : AIR1923Mad320 the Court based its judgment mainly on the view that, because Section 10 in terms applied the provisions of this Act for compensation, for tenants to cases where there had been decrees for ejectment which had not been executed, it followed that Section 9 was not applicable in such cases. But, it is to be observed that Section 10 also applies the compensation sections to cases in which suits are pending, and on the same argument it would follow that Section 9 need not apply to cases where suits for ejectment are pending, whereas in fact Section 9 applies principally to such cases Toe answer, in my judgment, is that Section 10 is dealing with compensation cases and Section 9 is dealing with cases of purchase and is in itself a complete code for those cases; and on an examination of Section 9 it is clear that it is intended to apply to cases in which suits are pending and cases in which suits have resulted in decrees but such decrees have not been executed, because in Sub-section (3), it says that on an order for conveyance of the land after payment of the price fixed by the Court being made any decree or order in ejectment that may have been passed but which has not been executed shall be vacated', and there would be no meaning to be attributed to those words at all if it was not contemplated by that section that application could be made in cases where a decree had been passed, but had not been executed.
The learned Chief Justice proceeded on the basis that the pendency of the appeals before the High Court really constituted pendency of the suits themselves and therefore, the tenants were competent to apply before the High Court under Section 9 of the Act. Wallace, J., agreed with the conclusion of the learned Chief Justice.
9. This Bench decision was approved by a Full Bench of this Court in Syed Oomer Sahib v. Gopaul I.L.R. (1934) Mad. 813 : (1925) 47 M.L.J. 350 : L.W. 444 : A.I.R. 1925 Mad. 12 and followed subsequently by several other cases. For instance, in Alaginsami Naidu v Maniekavein Chettiar I.L.R. (1965) Mad. 804 : 77 L.W. 468, Venkatadri, J., has followed the above Bench decision.
10. Under these circumstances, we are clearly of the opinion that the law as laid down by a Bench of this Court is that the pendency of a first appeal or second appeal will be tantamount to the pendency of the suit itself and consequently persons like the appellants herein would be entitled to file an application under Section 9 of the Act in the said first appeal or second appeal, provided they satisfied the other statutory requirements. Hence our conclusion is that the petition C.M.P. No 7553 of 1975, is maintainable and it was competently instituted before this Court during the pendency of the second appeal.
11. Notwithstanding the above conclusion of ours, namely, that C.M.P. No. 7551 of 1975 is maintainable we are not in a position to grant any relief in the application herein. We have already indicated that the learned Subordinate Judge denied the relief to the appellants herein on another ground also, namely, that there was a strip of land in the middle of the property which would not belong to the respondent as owner, as it had been retained as a pathway by the vendors the respondent under Exhibit A-l. The learned District Munsif himself has adverted to this aspect of the matter in paragraph 9 of his judgment wherein he has stated--
It is contended by the plaintiff that he is not the owner of the entire extent of the suit property and actually a pathway measuring 4' x 57' was retained by the vendors of the plaintiff and the said pathway passes through the suit property. If the said pathway is set apart machinery installed by the defendants will have to be removed. Under such circumstances, the defendants are not entitled for a direction that the property in suit should be sold to them for a price fixed by this Court.
The learned Subordinate Judge has dealt with this aspect in paragraph 12 of his judgment wherein he has stated as follows:
There is also one other reason to say that the defendants cannot claim any relief under the provisions of this Act, even assuming that it applies to the non-residential building situate within the local limits of the Vellore Muncipality. The buildings that exist now are in the middle of the vacant site By means of the application, the defendant have asked the plaintiff to sell this part of the site to them for a price that may be fixed by the Court. But it is seen from Exhibit A-1, that the plaintiff is not the owner of the strip of land running in the middle. The vendor had retained it as a pathway. The plan attached to Exhibit A-1, will make this point very clear. ABCD is the whole site. It has been conveyed under Exhibit A-1, to the plaintiff minus the strip of land marked EFGH which is a width of 4 ft, and length of 57. So far as the strip of land is concerned, the defendants cannot have any relief against the plaintiff. For all these reasons. I am of the view, that the application is without any merits.
Thus it will be seen that the finding of the Courts below is that there is a strip of land measuring 4 ft. X 57 ft. in the middle of the suit property and that it is only on that strip of land that the appellants had set up their machinery and they will have to remove the machinery in the event of their not being entitled to buy that strip of land from the respondent herein. Exhibit A-1 clearly shows that the above strip of land, namely, 4 ft. X 57 ft. was retained by the vendors and the title in respect thereof had not been conveyed to the respondent. If so, the respondent not being the owner of the strip of land, he cannot be called upon to sell that strip of land to the appellants herein.
12. The only other question that require to be considered is, if that strip of land it not directed to be sold, can it be said that the respondent herein can be directed to sell the other portions of the suit property in order to enable the appellants to conveniently enjoy the rice mill. It is worthwhile pointing out that in the grounds of appeal before the lower appellate Court in A.S. No. 261 of 1973. as well as in C.M.A. No. 6 of 1974, the appellants herein had not challenged the finding and conclusion of the learned District Munsif in this behalf as recorded in paragraph 9 of his judgment, which we have already extracted. In such a context, we are clearly of the opinion that the appellants herein will not be entitled to any relief in C.M.P. No. 7553 of 1975, because we cannot give a direction to the respondent herein to sell the entire property on which the mill has been put up by the appellants to them, since with respect to a part of the properly tin respondent had no title, as the same bad been retained as a pathway by the vendors of the respondent. In addition to that, if that strip of land is to be retained as a pathway, the appellants will have to remove the machinery installed by them thereon Such a consequent was not contemplated by the statute and therefore the appellants herein will not be entitled to a direction from the Court directing the respondent to sell the suit property to them, pursuant to Section 9 of the Madras City Tenants Protection Act. In view of this. C.M.P. No. 7553 of 1975 will stand dismissed.
13. Once C M P. No. 7553 of 1975 stands dismissed, naturally the second appeal will have to fail, because the suit instituted by the respondent herein was decreed only on the basis that the appellants were not entitled to the benefits of the Madras City Tenants Protection Act. Hence the second appeal also fails and is dismissed,
14. The result is, all the three proceedings fail and they are dismissed. There will be no order as to costs in any of these proceedings.