Benefit of Act cannot be claimed by tenant.

ORDER :- In this civil revision petition at the instance of the defendant in Ejectment Suit No. 72 of 1981, II Judge, Court of Small Causes, Madras, the only question that arise for consideration is whether the Courts below were right in negativing the claim of the petitioner to the benefits of Section 9 of the Tamil Nadu City Tenants' Protection Act (hereinafter referred to as the Act). The property in dispute measuring about 2 grounds and 2027 sq. ft. situate in R.S. No. 1693/1 in Thulasi Naicken St, Perambur Baracks, Madras, belonged to one Mohamed Ismail Sahib. This property was let out to one T.P. Ramaswami Pillai and on his death, the petitioner claimed to have become entitled to the leasehold rights of the deceased Ramaswami Pillai. Mohamed Ismail Sahib died on 29-12-1961, and the respondents are his heirs. After certain prior unsuccessful proceedings, the respondents issued a notice on 8-12-1980 terminating the tenancy of the petitioner with effect from 31-3-1981 and sought the ejectment of the petitioner. In the written statement filed by the petitioner, the plea was taken that the benefits of the Act would be available to the petitioner. Consistent with such a plea, the petitioner filed M.P. 2000 of 1981, in Ejectment Suit No. 72 of 1981, under Sec.9 of the Act praying for a direction for the purchase of the land for a price to be fixed by the Court. That application was resisted by the respondents on the ground that the petitioner is not entitled to the benefits of Sec.9 of the Act and that the petition is also not maintainable and further that the petitioner was not in actual physical possession of the land in dispute and the superstructure thereon and therefore, cannot claim the benefits of S.9 of the Act.

2. The Second Judge of the Court of Small Causes, Madras who enquired into this application, found that the petitioner admitted that possession of the land and the superstructure thereon was not with the petitioner and that in the absence of actual physical possession of the land and the superstructure with the petitioner, the benefits of Section 9 of the Act cannot be claimed. While so holding and dismissing the application, the learned Judge applied the principles laid down in the decision in T.R.P. Raja Sekara Bhoopathy v. Navaneethammal, (1979) 2 Mad LJ (HC) 144. Aggrieved by this, the petitioner preferred an appeal to the Appellate Authority (Chief Judge, Court of Small Causes, Madras) and the Appellate Authority concurred with the conclusion of the first authority and dismissed the appeal. It is the correctness of this that is challenged in this civil revision petition.

3. The only contention urged by the learned counsel for the petitioner is that the petitioner is a person liable to pay the rent in respect of the land in question and would therefore be a tenant within the meaning of S.2 (4)(i) of the Act and that irrespective of whether the petitioner is in possession of the land and superstructure or not, the petitioner would be a tenant for purposes of the Act and as such, can claim the benefits of Section 9 of the Act. Reliance was also placed by the learned counsel for the petitioner upon the absence of words referring to the possession of the land in Section 2 (4) (i) of the Act, as indicating that in cases falling under S.2 (4) (i), possession of the tenant is not contemplated as an essential condition on the fulfilment of which alone the benefits of S.9 of the Act could be availed of. On the other hand, the learned counsel for the respondents would contend that though it may be that under Section 2 (4) (i) of the Act, there is no specific reference as such to possession of the demised land with the tenant, yet, the incidents of a tenancy agreement express or implied referred to in S.2 (4) (i) of the Act, would include possession of the land with the tenant during the subsistence of the lease and this would also accord with the object of the legislation viz., to give protection to tenants who