1998 Supreme(SC) 334

1998(3) Supreme 154
SUPREME COURT OF INDIA
(From Madras High Court)
S.B. Majmudar & M. Jagannadha Rao, JJ.
Palani Ammal -Appellant
versus
Viswanatha Chettiar (Dead) & Ors. -Respondents
Civil Appeal Nos. 1481-83 of 1998
(Arising out of SLP (C) Nos. 8766-8768 of 1997)
Decided on 6-3-1998
Counsel for the Parties :
For the Appellant : R. Sundaravaradhan, Sr. Advocate and T. Raja, Advocate.
For the Respondents : S. Sivasubramanian, Sr. Advocate, R. Nedumaran and M.A. Chinnasamy, Advocates.

IMPORTANT POINT
Defendant-tenant is not entitled to the benefit of Madras City Tenants Protection Act, 1921 in a suit for eviction against him from suit land taken on rent for running a firewood depot and Paan Shop on it in the facts of this case.

Headnote:(i) Madras City Tenants Protection Act, 1921-Section 2(4)(ii)(c) -Definition of tenant - Includes heirs of a person who continues in possession of the land after the determination of the tenancy agreement-Whether refers to determination by all clauses of Section 111 Transfer of Property Act, 1882? (No, it refers to only clauses (a) or (h)-Determination by forfeiture not contemplated-So Section 112 TPA not application-Effect-Section 9 of Protection Act is of no assistance to defendant (tenant)-So defendant is not entitled to the benefit of the Protection Act by invoking Section 2(4)(ii)(c) of the said Act (Transfer of Property Act, 1882-Sections 111 and 112). (Paras 16, 18, 19 & 21)

       Held held that an erstwhile tenant of a contractual lease of land who can be said to be covered by the inclusive part of the definition of the term tenant as found under Section 4(ii) of the Protection Act is one who has continued in possession of the land after his tenancy agreement is determined either under Section 111(a) of the T.P. Act by the omission of the landlord to renew the lease and, therefore, it gets determined by efflux of time or on the expiry of notice to quit given by the landlord to the tenant as per Section 111(h) of the T.P. Act. Save and except these two modes of determination of tenancy agreement as envisaged by Section 111 of the T.P. Act, no other modes found in clauses (b) to (g) of Section 111 can ever be said to be contemplated as attracted for getting telescoped in Section 2 sub-section (4)(ii) (a) of the Protection Act for consideration of the scope of the phrase determination of tenancy agreement as employed therein. Consequently it must be held that the mode of determination of lease agreement by forfeiture as envisaged by Section 111(g) of the T.P. Act is foreign to the scope of the definition of the term tenant as found in Section 2(4) of the Protection Act. (Para 16)

       Once it is held that determination of tenancy agreement as envisaged by Section 2 sub-section (4)(ii)(a) of the Protection Act does not contemplate determination of lease under Section 111(g) of the T.P. Act there would remain no occasion to even invoke Section 112 of the T.P. Act as tried to be pressed in service by learned senior counsel for the defendant. The reason for the said conclusion is obvious. Section 112 of the T.P. Act was never pressed in service by the defendant before the trial Court, the Appellate Court or the High Court. Even that apart Section 112 clearly refers to forfeiture under Section 111(g). Once that provision does not get attracted under the scheme of the Protection Act, as seen above, it has to be held that Section 112 as a corollary to Section 111(g) also would not get attracted to the facts of the present case. But even otherwise on a mere reading of the plaint filed by the plaintiffs against the defendant and to which our attention was invited by learned senior counsel for the defendant it could not be said that the plaintiffs especially plaintiff No. 3 had waived the forfeiture on the part of the defendant. (Para 18)

       As a result of the aforesaid conclusion of ours, it becomes obvious that Section 9 of the Protection Act cannot be of any assistance to the defendant. Consistently the defendant s stand was that plaintiff No. 3 is a non-entity and she claimed statutory right of purchase under Section 9 of the Act only against plaintiff Nos. 1 and 2. Once plaintiff Nos. 1 and 2 are found to have validly sold the suit land to plaintiff No. 3 it must obviously be held that application moved by defendant under Section 9 against total strangers like plaintiff Nos. 1 and 2 was liable to be dismissed as totally incompetent and uncalled for. Once the defendant refused to admit the ownership of plaintiff No. 3 who might have become the landlord of the land as per Section 2 sub-section (3) of the Protection Act as a legal transferee of the suit land from plaintiff Nos. 1 and 2 the conclusion becomes inevitable that the defendant s application under Section 9 against the strangers like plaintiff Nos. 1 and 2 would be rendered totally incompetent as the defendant did not want any statutory right of compulsory purchase against the real owner of the suit land, namely, plaintiff No. 3. (Para 19)

       (ii) Defendant lessee of open land-Given right to erect structure-Land sold by Plaintiffs 1 and 2 to Plaintiff 3-Plaintiff 3 filing suit for eviction-Defendant resisting claiming protection under Madras City Tenants Protection Act, 1921-Whether Plaintiff B s suit be decreed? (Yes)-Whether defendant s application u/s 9 of Protection Act be allowed? (No).

       Held : The defendant by her own act by denying the title of plaintiff No. 3 who is the real owner had walked out of the protective umbrella of the Protection Act none of the provisions of the said Act could be effectively pressed in service by her including Section 11 as rightly held by the High Court. Point No. 2, therefore, has to be answered in the negative by holding that the suit filed by the plaintiffs especially plaintiff No. 3 against the defendant was not barred by Section 11 of the Protection Act as the said Section did not apply to such a suit and consequently the suit filed by the defendant was also not required to be decreed. (Para 22)

       Further held : As point No. 1 is answered in the negative and even otherwise as application of defendant under Section 9 is found to be incompetent and misconceived it must be held that it was rightly rejected. The decision of the High Court in that connection has to be upheld. Point No. 3 is accordingly held against the appellant-defendant and in favour of the respondents. (Para 23)

       (iii) Lease of open land-Lessee given right to erect super-structure -Whether the lease could be said to be not only of the open land but also partially of a building as held by High Court? (No).

       Held : So far as this point is concerned learned senior counsel for the appellant-defendant is on a stronger footing. The Rental Deed to which we have made a reference earlier clearly refers to the lease of open land granted to the defendant by plaintiff Nos. 1 and 2, original owners. Of course there was some granite foundation in a part of the open land leased under the Rental Deed but that foundation would not attract the definition of the term building as defined by Section 2 sub-section (1) of the Protection Act for the simple reason that the said structure was not shown to have been used for residential or non-residential purpose. It is nobody s case that the granite foundation by itself was being used by anyone for residential or non-residential purpose. On the contrary on that foundation the defendant is found to have put up a structure and it was that structure over the foundation that was being used for non-residential purpose of running a fuel depot. Consequently the lease cannot be said to be partly of open land and partly of a building as held by the High Court. To that extent the decision of the High Court is found to be erroneous. That finding of the High Court has to be set aside. Point No. 4 is, therefore, answered in the negative in favour of the appellant and against the respondents. (Para 24)

       (iv) Madras City Protection Act, 1921-Section 3-Compensation to evicted tenant-Whether plaintiff No. 3 is liable to give compensation for super-structure to defendant, if the decree of eviction of defendant from the suit land is to be confirmed? (No)-Appeal of defendant dismissed.

       Held : So far as this point is concerned once it is found that the defendant by denying the title of plaintiff No. 3 had forfeited the benefit of the Protection Act and she got out of the sweep of the said Act, Section 3 could obviously not be applicable in her case. Section 3 would have applied if it was shown that there was an admitted relationship of landlord and tenant between the parties and when the landlord s suit for eviction was being decreed against such admitted tenant. In such a case only question of granting compensation to the tenant in lieu of her right to purchase under Section 9 could have fallen for consideration. Once it is held that none of the provisions of the Act can apply and once there is no admitted relationship of landlord and tenant between the parties we fail to appreciate how Section 3 can be pressed in service by learned senior counsel for the defendant. He, however, invited our attention to a decision of this Court in the case of P. Ananthakrishnan Nair & Anr. v. Dr. G. Ramakrishnan & Anr. [(1987) 2 SCC 429] and especially observations found at page 438 of the Report. In that case the there was an admitted relationship of landlord and tenant between the parties and the tenant was covered by the definition of Section 2 sub-section (4) of the Protection Act. Only the sub-tenant was not so covered. It was, therefore, held by this Court that Section 9 could not be made available to such a tenant who had no use of the property and under these circumstances it was observed that it decree for possession is to be passed then compensation for the structure belonging to the tenant could have been made available. On the facts of the present case the ratio of the aforesaid case cannot be pressed in service by the learned senior counsel for the appellant-defendant as the defendant by denying the title of the landlord plaintiff No. 3 had walked out of the very scheme of the Protection Act. Section 3 obviously, therefore, was out of picture for her. Consequently, under the general provisions of the Transfer of Property Act especially Section 108(h) read with Section 109 the only right available to such a tenant was to get her structure removed by her so that the possession of the decretal land could be handed over to the decree-holder plaintiff. But the question of awarding compensation for such structure would remain totally out of consideration. Point No. 5 is, therefore, also answered in the negative against the defendant and in favour of the respondents. (Para 25)

       Consequently held : These were the only contentions canvassed in support of the appeals and as these main contentions stand answered against the appellant-defendant and consequently point Nos. 1 to 3 and 5 are answered against the appellant, the appeals fail and are dismissed with no order as to costs. (Para 25)