Anantanarayanan, O.C.J.-

This Letters Patent Appeal is from the Judgment of Ramakrishnan, J., in A.S. No. 208 of 1960, and involves a point of some interest and importance regarding the scheme, and the application of certain provisions of the Madras City Tenants’ Protection Act, 1922, as amended by Madras Act XIX of 1955, to the established facts. It is true that the point centrally in issue is virtually concluded by the judgment of their Lordships of the Supreme Court in N. Vajrapani Naidu v. The New Theatres Carnatic Talkies, Ltd.1, Still, as it has been contended before us that the elucidation in that judgment of section 12 of the Madras City Tenants’ Protection Act, 1921 (hereafter termed the Act), may nevertheless not affect the particular contention of the learned counsel for lessor (The Mylapore Hindu Permanent Fund Limited, Madras), on the facts, the matter deserves careful scrutiny.

The background of the established facts may be set forth as follows. The plaintiffs are the Mylapore Hindu Permanent Fund Limited, represented by their Secretary, and they are the proprietors of the vacant land bearing No. 4/7, Ponnambala Vathiar Street, Mylapore. Admittedly a lease deed was executed between the plaintiffs and the defendant (lessee) on 30th April, 1947 (Exhibit A-1), with regard to this property for a period of ten years from 1st May, 1947. As the controversy really impinges upon certain of the mutual rights and obligations under this lease, as well as on a contention that the lease was not merely of the vacant land but also of a superstructure in one sense at least, ab initio, it is necessary to set forth verbatim the relevant parts of this document.

The document, or the effective portion thereof, commences with the words:

" Whereas the lessor is the owner of vacant land No. 4/7, Ponnambala Vathiar Street, Mylapore more particularly described in the schedule given hereunder and whereas the lessee requested the lessors to lease to him the above land for the purpose of erecting a building and the lessors hereby agree to lease out the above land to the lessee.

Stipulation or condition 2 of the document is in the following terms:

" The lessee is permitted to put up a building at a cost of not more than Rs. 10,000 on the plot leased to him, after approval of the plan of the proposed building by the Board of Directors of the lessors, and the construction to be put must be in accordance with the plan approved by the Directors of the lessors."

Stipulation or Term No. 4, which is of considerable significance in the controversy, is as follows:

" The lease shall be in force for a term of ten years commencing from the First day of May, 1947, and on the expiry thereof the lessee shall surrender possession of the entire property and the constructions if any thereon. On vacating or giving possession as above the lessors shall pay the valuation thereof, then current, or the sum of Rs. 5,000 whichever is less.

Stipulation No. 6 is to the following effect:

" The lessee shall make his own arrangements for providing a garage to Mr P. Somasundaram who is now the tenant with the lessors. The present garage will be dismantled and the materials shall be taken by and sold by the lessors."

Term No. 9 is to the effect:

" In case of breach or infringement of any of the conditions above mentioned by the lessee, the lessors are at liberty to determine the lease irrespective of the period provided herein by giving three months’ notice to the lessee and the lessors may take possession of the property themselves without any compensation."

Under Term No. 10 it is reiterated that the lease is " of the vacant site for ten years " .

In paragraph 4 (a) of the plaint there was an averment that, on the very date of the lease the property leased out was not merely a vacant land of the lessors, but also included a garage then occupied by Mr. P. Somasundaram as tenant. The argument was that, therefore, the lease was not of the vacant land per se, and that the defendant (tena

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