The main legal point established in the judgment is the interpretation of the requirement of 'actual physical possession' under Section 2(4)(ii)(b) of the Tamil Nadu City Tenants’ Protection Act, 1921 and the entitlement of the appellant to the benefit of Section 9(1) of the Act.

ORDER :

C.A. No. 5903/2006

Application for deletion of the name of respondent No. 1 is allowed at the risk of the appellant.

Let the index be corrected accordingly.

The impugned judgment and order of the High Court is set aside and the matter remanded to the Division Bench of the High Court. Appeal allowed. No order as to the costs.

C.A. Nos. 1257/22007, 1925/2007 and 708/2008

In view of the order passed in C.A. No.5903/2006 the impugned judgments and orders are set aside and the matters are remanded to the Division Bench of the High Court.

ORDER

C.A. NO. 5903/2006

1. Application for deletion of the name of respondent No. 1 is allowed at the risk of the appellant. Let the index be corrected accordingly.

Heard learned counsel for the parties and perused the record.

2. This appeal has been filed against the impugned judgment and order dated 25.8.2005 of the High Court of Madras. The facts in detail have been given in the impugned judgment and hence we are not repeating the same here.

3. Initially a lease was granted in favour of the appellant for a period of 10 years commencing from 1.9.1959 which was extended for a further period of 10 years i.e. till 30.8.1979. In view of the provisions of the Burmah Shell (Acquisition of Undertaking in India) Act 1976 the lease came to be extended for another 10 years and was to come to an end in 1989. As stated in para 10 of the plaint, the landlord gave a notice dated 30.10.1995 to terminate tenancy of the tenant. Thereafter a suit for eviction was filed by the landlord-respondents for eviction of the appellant from the suit premises.

4. The appellant-tenant claimed the benefit of Section 9 of the Tamil Nadu City Tenants’ Protection Act, 1921 (hereainafter for short ’the Act’). The tenant filed an application under Section 9 of the said Act in which by order dated 16.8.2000 an Advocate Commissioner was appointed to find out the extent of land which was necessary for the convenient enjoyment of the appellant herein and for smooth running of the business and to find out the extent of land over which any superstructure has been put. An appeal was filed by the landlord against the said order dated 16.8.2000 in the City Civil Court which was allowed by order dated 12.12.2001. Against the said order dated 12.12.2001, a revision petition was filed by the appellant-tenant before the High Court which has been dismissed by the High Court. Hence, the appellant is before us.

5. Mr. R.F. Nariman, learned senior counsel appearing for the appellant has invited our attention to Section 2(4) of the Act, which reads as under :-

"2. Definitions- In this Act unless there is anything etc. repugnant in the subject or context-

(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-

(i) Such person was not entitled to the right under this Act by reason of the proviso to Section 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 IV of 1972), or

(2) a decree for declaration or a decree or an order for possession or for similar relief has been passed against such person on the ground that the proviso to Section 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 IV of 1972) disentitled such person from claiming the rights under this Act, and

(c) The heirs of any such person as is referr