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PETITIONER: PALANI AMMAL

       Vs.

RESPONDENT: VISWANATHA CHEITIAR (DEAD) & OTHERS

DATE OF JUDGMENT:       06/03/1998

BENCH: S.B. MAJMUDAR, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.B. Majmudar, J.      Leave granted in these three Special Leave Petitions.      By  consent  of  learned  counsel  for  the  contesting parties the  appeals were taken up for final hearing and are being disposed of by this common judgment.      These three  appeals moved by the common appellant, who will be  referred to  as the defendant in the latter part of this judgment for the sake of convenience, seek to challenge a common  judgment rendered  by learned  Single Judge of the High Court of judicature at Madras in two Second Appeals and one Civil  Revision Application  which were  disposed of  on 17th December  1996. These  second appeals  and the revision application were  moved by  the heirs  of original plaintiff no.1 Ramanatha  Chettiar as well as by the heirs of original plaintiff no.2  Vishwanatha Chettiar  and also  by  original plaintiff  no.3   Madheswaran.  All   of  them   are  common respondents in these three appeals and as they have a common case against  the appellant-defendant  they will be referred to as original plaintiff nos.1, 2 and 3 respectively for the sake of convenience in the latter part of this judgment.      In order to highlight the grievance of the defendant in these appeals  it will be necessary to note a few background facts leading to these proceedings. Introductory Facts      Original plaintiff no.1 Ramanatha Chettiar and original plaintiff no.2  Vishwanatha Chettiar, both of whom are since deceased and  are being  represented by  their heirs who are the contesting  respondents in these appeals, owned a vacant place of land situated at Village Attur in Salem District of State of  Tamil Nadu. They leased out his open place of land to the defendant by a lease deed styled as Rental Deed dated 01st June  1968. As  per the  said Rental Deed the defendant was permitted  to put up construction for running a firewood and fuel  depot and  a paan shop. The monthly rent was fixed at Rs.40/-  with Rs.200/-  as advance deposit. That the said vacant site of land was also foundation the defendant put up a thatched  building. It  was agreed between the contracting parties that the defendant would remove the structure at the time of  vacating the  suit property. The defendant obtained

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licence from Attur Municipality for running a firewood depot and paan shop in the demised land. The defendant accordingly remained in  possession of  the suit land. It is the case of the defendant  that on  her request  plaintiff nos.1  and  2 agreed to  sell the  suit property  to her in August 1980 at market rate  and received  a sum  of Rs. 2,000/- as advance. Her case  is that  as she was in possession of the suit land for more  that 16  years she did not insist upon receipt for payment of  advance money. The case of the defendant further is that  plaintiff  nos.1  and  2  sold  the  suit  land  to plaintiff no.3  for a sum of Rs. 5,600/- on 29th August 1981 by a  registered Sale  Deed. The defendant further submitted that all  of a sudden on 30th August 1981, that is, the next day of  the purchase  of the said property by plaintiff no.3 from plaintiff nos.1 and 2, plaintiffs came with a number of men and  tried to forcibly evict the defendant from the suit property. Under  these circumstances,  the defendant filed a civil suit  in July  1981 being  O.S.No. 984  of 1981 in the court of  District Munsiff,  Attur, praying  for a permanent injunction restraining  the plaintiffs  from forcibly taking away the possession of the suit the plaintiffs as a counter- blast filed  a civil  suit being  O.S.No.453 of 1982 on 02nd September 1982  in the  same court  of Attur for eviction of the defendant  and for  a direction to the defendant to hand over vacant  possession of  the suit  property and  also for payment of  Rs. 1,000/-  by way  of arrears of rent. Pending the said  suit defendant  filed a  written statement on 08th April 1983  and an  additional  written  statement  on  03rd December 1983 contending that there was an agreement to sell executed by plaintiff nos.1 and 2 in favour of the defendant and that bypassing the said agreement the plaintiff nos.1 an d 2  had illegally  tried to  sell the property to plaintiff no.3. The  said Sale  Deed in  favour of  plaintiff no.3 was null and  void and  the plaintiff  no.3 had  no title to the suit land. Along with the additional written statement dated 03rd December  1983 the  defendant also filed an application under Section  9 of the Madras City Tenants’ Protection Act, 1921, hereinafter  referred to  as the ‘Protection Act’, for the sake  of brevity.  Invoking the  said provision  it  was contended by the defendant that she was entitled to purchase the suit  land over  which her  structure  stood.  The  said application was registered in the same court as I.A.No.17 of 1985 in O.S.No. 453 of 1982 which was filed by the aforesaid three plaintiffs.      As all  of these  disputes between the parties centered round the  possession for  the very  same property being the suit land  the plaintiffs’  suit being  O.S.No. 453 of 1982, the defendant’s  suit being  O.S.No. 984  of  1981  and  the defendant’s  application   being  I.A.No.17  of  1985  under Section 9  of the  Protection Act then were clubbed and were tried together.  The learned  Trial Judge  after hearing the parties disposed  of  all  these  proceedings  by  a  common judgment dated  01st August  1988. The  learned Trial  Judge took the  view that  the plaintiffs’ suit was required to be decreed while  the  defendant’s  suit  was  required  to  be dismissed and defendant’s application under Section 9 of the Protection Act  was also  to be dismissed. The learned Trial Judge held  that defendant’s I.A.No.17 of 1985 under Section 9 of  the   Protection Act  could not  be sustained  as  the defendant had  denied the title of the plaintiffs especially plaintiff no.3.  It was  also held  that the Sale Deed dated 29th August  1981, executed  by plaintiff  nos.1  and  2  in favour of  plaintiff no.3,  was legal  and valid  and on the issue  of   maintainability  of  the    suit  filed  by  the plaintiffs it  was held that notice under Section 106 of the

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Transfer of  Property Act,  1882 [‘T.P.  Act’ for short] was not required  to be served on the defendant. It is pertinent to note  that though  the contention of the defendant in her application under Section 9 of the Protection Act was to the effect  that  the  plaintiffs’  suit  was  not  maintainable against her as notice under Section 11 of the Protection Act was not  served on  her, the said contention does not appear to have been canvassed before the learned Trial Judge at the stage of  arguments. In  any case  there is  no reference to this contention in the Trial Court’s judgment.      Being aggrieved by the aforesaid common judgment of the Trial Court the defendant preferred two first appeals before the Sub-Court,  Salem, challenging the decrees passed by the Trial  Court   in  two  cognate  suits,  one  filed  by  the plaintiffs against  the defendant  and another  filed by the defendant  against   the  plaintiffs.   She  also   filed  a Miscellaneous Appeals  No.8 of  1990  before  the  Appellate Court being  aggrieved by  the order  of the  Trial Court by which her  Interlocutory Application  under Section 9 of the Protection Act  was dismissed.  These two  first appeals  as well as  the Miscellaneous  Appeal were  heard together  and were disposed  of by  a common  judgment dated 21st December 1990 by  the Appellate  Court. The  Appellate Court took the view that the Sale Deed executed by plaintiff nos.1 and 2 in favour of  plaintiff no.3  was a  valid  and  a  legal  one. However, it  held that  the suit  filed  by  the  plaintiffs against  the   defendant  was  not  maintainable  under  the provisions of  Section 11 of the Protection Act. It was also held  that  the  defendant  had  not  denied  the  title  of plaintiff nos.1 and 2 and, therefore, the application of the defendant  under   Section  9  of  the  Protection  Act  was maintainable and  was required  to be  allowed. Consequently the plaintiffs’  suit was  dismissed, defendant’s  suit  was decreed and defendant’s application under Section 9 was also granted.      Against  the   aforesaid  common  judgment  dated  21st December 1990  of the  First Appellate  Court the  aggrieved plaintiffs approached the High Court of Madras in two second appeals and  also b  y filling  a revision  application,  as mentioned earlier.  All these  three proceedings  were heard together by a leaned Single Judge of the High Court who took the view,  agreeing with  the findings  of the courts below, that the  Sale Deed  executed by  plaintiff nos.1  and 2  in favour of  plaintiff no.3  was a valid one. It was also held that as the defendant had denied title of plaintiff no.3 her application under  Section 9  of the  Protection Act was not maintainable. Submission on behalf of the defendant that the suit of  the plaintiffs  was barred  by Section  11  of  the Protection  Act  was  repelled  by  holding  that  once  the defendant denied  the title  of  the  plaintiffs  especially plaintiff no.3  there was  no occasion for plaintiff no.3 to serve any  notice to  her under Section 11 of the Protection Act and  on such  a stand taken by the defendant, the entire Protection  Act   was  not   available  to   the  defendant. Consequently the  judgments and  decree passed  by the Trial Court were found to be legal and valid. Accordingly both the second appeals  and the  revision application  filed by  the plaintiffs were  allowed. The  common judgment  and order of the First  Appellate Court  were set  aside  and  the  Trial Court’s judgment,  decrees and orders were restored. That is how the  aggrieved defendant, as noted earlier, is before us in these  appeals having  obtained special  leave to  appeal under Article 136 of the Constitution of India. Rival Contentions      Learned senior  counsel for  the common defendant. Shri

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R. Sundaravaradhan  vehemently contended  that  the  learned Single Judge of the Madras High Court had committed a patent error of  law in  allowing the second appeals and t he civil revision application.  It was  submitted that  the defendant had not denied the title of plaintiff nos.1 and 2 though she had certainly  denied the derivative title of plaintiff no.3 However, it  was submitted  that at  the highest  because of such a  denial of  title defendant  could be  said  to  have forfeited  her   tenancy  rights   which  she  had  qua  the plaintiffs especially  plaintiff no.3  who had  derived  his title from  plaintiff nos.1  and  2  but  even  in  such  an eventuality in  view of  Section 2 sub-section (4)(ii)(a) of the Protection  Act the  defendant could  be said  to  be  a statutory tenant  on the  determination of tenancy agreement by forfeiture vis-a-vis the plaintiffs, especially plaintiff no.3. Hence,  plaintiff no.3  who squarely  fell within  the definition of the term ‘landlord’ as found in Section 2 sub- section (3) of the Protection Act could be validly proceeded against by  the defendant  under Section  111(g) of the D.P. Act dealing  with determination  of lease  by forfeiture. It was also  contended that even assuming that there was such a forfeiture   of leasehold  rights incurred  by the defendant the said  forfeiture was waived by the plaintiffs especially plaintiff no.3  as laid  down by Section 112 of the T.P. Act by filing  the suit  O.S. No.453  of 1982  on 02nd September 1982 wherein  the plaintiffs  treated  the  defendant  as  a tenant and  sought eviction  by paying appropriate court fee by valuing  the suit in the light of the rent payable by the defendant-tenant to  the plaintiff.  Learned senior  counsel for the  defendant, however, fairly submitted that so far as the applicability  of  Section  112  of  the  T.P.  Act  was concerned no  reliance was  placed on  the said provision in the courts  below including  the High  Court. However,  this being a  pure question of law based on the very averments of the plaintiffs themselves in their plaint in O.S. No. 453 of 1982 such  a plea  be considered in the interest of justice. It was  also contended  that even  assuming  that  the  said forfeiture was  not waived  by the  plaintiffs the defendant being a  statutory tenant  had no longer remained one having only a  personal right to occupy. That her statutory tenancy right was  a heritable one and was an interest in the leased premises even  after determination  of the lease. In support of that  contention reliance  was  placed  on  judgments  of learned Single  Judge of  the Madras  High Court to which we will make a reference hereafter and also on two judgments of this Court,  namely Damadilal  and others  v. Parashram  and others [(1976)  Suppl. SCR 645 = AIR 1976 SC 2220]; and Smt. Gian Devi  Anand v.  Jeevan Kumar  and others  [AIR 1985  SC 796]. It  was also contended, placing reliance on a decision of a  Bench of  two learned judges of this Court in the case of S.A.Ramachandran  v. S.  Neelavathy [(1997)  1 SCC  767], that Section  11 of  the Protection  Act was  of a mandatory nature and  if it  was not  complied with, the suit would be clearly barred  and had to be dismissed as such. It was also contended that  merely because  the defendant  had filed  an application under  Section 9  of the Protection Act it could not be  said that  she had  waived her  contention regarding non-compliance of  Section 11 of the Protection Act and that the High Court had patently erred in holding that Section 11 of the  Protection Act was not attracted on the facts of the present case.  Learned senior counsel for the defendant also referred to  a decision  of the Division Bench of the Madras High Court  in the  case of  Bhargavakula Nainargal  Sangam, Thiruvannamalai and  others  v.  Arunachala  Udayar  [(1990) I.M.L.J. 4]  and tried  to distinguish it by submitting that

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it   had proceeded  on a  wrong assumption  that decision of this Court  in the case of Damadilal (supra) was contrary to the decision of a larger Bench of this Court rendered in the case of Jai Singh Murarji and others v. M/s. Sivani (P) Ltd. and others  [AIR 1973  SC 772].  In this  connection it  was submitted that the Constitution Bench judgment of this Court in Gian  Devi Anand’s  case (supra) which was referred to by the Division  Bench of the High Court in Bhargavakula’s case (supra) was  not at  all considered  by  the  said  Division Bench. It  was also  contended that in the impugned judgment learned Single Judge of the High Court had wrongly held that the lease  in favour  of the  defendant was  not only of the land but  also of the superstructure, namely, the foundation over which  the defendant  had put up a further construction and, therefore,  the building  belonged partly  to plaintiff nos.1 and  2 and  also partly  to the defendant. That such a question was  never argued  before the  courts below and for the first  time in  second appeal  such a question could not have been framed by treating it to be a substantial question of law  arising from  the judgments  of the courts below. It was lastly  submitted in  the alternative that even if it is held that  application under Section 9 of the Protection Act was  not  maintainable  of  least  appropriate  compensation should have  been given  to the defendant under Section 3 of the Protection  Act while confirming the decree for eviction as passed  in favour  of the plaintiffs especially plaintiff no.3 against the defendant.      Repelling these  contentions learned senior counsel for the   respondent-plaintiffs,    Shri   S.   Sivasubramanian, submitted that  once it  was held that plaintiff nos.1 and 2 had validly  sold  that  suit  and  to  plaintiff  no.3  was required to  be upheld, it has to be held that the defendant consistently denied  the title  of the  real  owner  of  the property, namely  plaintiff no.3.  That the  said stand  was taken b  y the  defendant not  only  in  her  first  written statement dated  08th April  1983  but  also  in  additional written statement  dated 03rd  December 1983 and even in her application under  Section 9  of the  Protection   Act. Once such a  stand was  taken and  which  was  persisted  in  all throughout before  the first  Appellate  Court  as  well  as before the  High Court  it has to be held that the defendant had denied  the title  of the  real owner  of the  property, namely plaintiff  no.3 and as his title was denied there was no occasion  for plaintiff  no.3 to  serve any notice on the defendant under  Section 11 of the Protection Act as rightly held by  the High Court. It was further submitted that there was no  question of  waiver of the forfeiture on the part of the  defendant  by  the  plaintiffs  as  the  plaint  itself proceeded on the basis that defendant had lost the character as a lessee of the land on account of denial of title of the plaintiffs especially  plaintiff no.3 and merely because the arrears of  rent were prayed for or that the court fees were computed accordingly in the plaint it could not be said that the plaintiffs  had waived the forfeiture on the part of the defendant.  It   was  further   submitted  that  on  a  true construction of  Section 2 sub-section (4) of the Protection Act it  could not  be said  that the defendant had continued to be  a statutory  tenant despite  the determination of the tenancy agreement as the said phrase found in Section 2 sub- section  (4)   (ii)(a)  would   not  take   in   its   sweep determination of  lease under  Section 111  (g) of  the T.P. Act. That once Section 111(g) of the T.P.Act is found not to have any  nexus with Section 2 sub-section (4)(ii)(a) of the Protection Act  there would be no occasion for the defendant to claim  to be treated as a statutory tenant covered by the

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protective umbrella  of the Protection Act. In fact her case would go  out of  the fourcorners  of  the  Protection  Act. Consequently neither Section 9 of the Protection Act applied nor Section  11 thereof  can be  invoked by the defendant as rightly  held  by  the  High  Court.  Alternatively  it  was contended placing  reliance  on  various  judgments  of  the Madras High  Court, that the defendant could be said to have waived her  contention regarding applicability of Section 11 of the  Protection Act by filing application under Section 9 of the  Protection Act  and by  getting the  delay in filing such application  condoned and  by pressing such application on merits  and even  getting it granted at least once by the Appellate Court.  Learned senior  counsel for the plaintiffs also contended  placing reliance  on  three  Division  Bench judgments of  the Madras  High Court,  that once  the tenant denied the  title of the landlord no benefit under Section 9 of the  Protection Act  could be  available to such a tenant nor can  Section 11  be pressed in service by such a tenant. We will  refer to these judgments at an appropriate place in the latter  part of this judgment. Referring to the decision of a  Bench of  two learned judges of this Court in the case of S.A.  Ramachandran (supra),  it was contended that in the said decision  there was  no denial of title of the landlord by the  tenant and  that as  in the  present case  title  of plaintiff no.3  is denied there would remain no occasion for such a  tenant to  find fault with the filing of the suit by plaintiff no.3  for eviction  against such  a  defendant  by submitting that suit was hit by Section 11 of the Protection Act. So  far as  the alternative  claim for compensation was concerned it  was submitted  that once  the defendant by her unequivocal conduct  of denying  the title of plaintiff no.3 who is  the real  owner of  the property  had forfeited  the protection of  the Protection  Act  there  would  remain  no occasion for her to get the benefit of even Section 3 of the very same  Act. That  under these  circumstances, as per the general principles of Transfer of Property Act when suit for eviction is  decreed against her all that she can get is the right to  remove the  superstructure put  up by  her on that plaintiffs’ land  as provided  by Section 108(h) of the T.P. Act tread  with Section  109  thereof.  It  was,  therefore, contended  that  the  common  decision  of  the  High  Court impugned in these appeals calls for no interference. Points for consideration      In  view   of  the   aforesaid  rival  contentions  the following points arise for our consideration : 1.   Whether the defendant is entitled to the benefit of the      Protection  Act   by  invoking  Section  2  sub-section      4(ii)(a) of the said Act. 2.   If yes,  whether the suit filed by the plaintiffs being      O.S. No.  453 of  1982 was  barred by Section 11 of the      Protection  Act   and  therefore  was  required  to  be      dismissed and  the suit  filed by  the defendant  being      O.S. No. 984 of 1981 was required to be decreed. 3.   Similarly it  Point No.1  answered in  the  affirmative      whether defendant’s  application under Section 9 of the      Protection Act  being I.A.  No. 17 of 1985 in O.S.S 453      of 1982 was required to be allowed. 4.   Whether the  lease could  be said to be not only of the      open land  but also  partially of a building as held by      the High Court. 5.   Whether the  defendant is entitled at least to be given      compensation under  Section 3  of the Protection Act by      the plaintiffs  especially plaintiff no.3 if the decree      for eviction  of defendant  from the  suit  and  to  be      confirmed.

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    We shall deal with these points seriatim. Point No. 1      So far  as this points is concerned before going to the decision of  the High  Court as  well as this Court to which our attention  was invited by learned senior counsel for the respective parties,  it would be appropriate to have a quick glance  at   the  relevant   statutory  provisions   of  the Protection Act.  This Act  of 1921  as enacted  by the  then Madras Legislature  in 1922  being Tamil Nadu Act No. 111 of 1922. It  was  enacted  with  an  avowed  object  of  giving protection to  certain classes of tenants in municipal towns and townships  and adjoining  areas in  the State  of  Tamil Nadu. The  Preamble thereto  recited  that,  whereas  it  is necessary to  give protection  against eviction  to tenants, who in  municipal towns  and adjoining areas in the State of Tamil Nadu  have constructed  buildings on others’ lands, so long as  they pay  a fair  rent for  the land’ and with that view this  Act was enacted. It is not in dispute between the parties that  the suit land is situated in an area where the aforesaid Act  applies. Section  2  of  the  Protection  Act defines a  ‘Building’ as  per  sub-section  (1)  thereof  to mean, ‘any  building, hut  or other  structure,  whether  of masonry, bricks,  wood, mud  or metal  or any other material whatsoever used  -(i)  for  residential  or  non-residential purposes in  the City  of Madras,  in the municipal towns of Coimbatore,  Madurai   Salem  and  Tiruchirappalli,  in  the townships  of   Kodaikanal,  Avadi,  Kathiwakkam,  Ambattur, Madhavaram, Bhavanisagar,  Courtallam and Mettur, or in such other municipal towns or township as t he Government may, be notification, specify,  and  in  any  village  within  eight kilometres of  the City  of Madras or of the municipal towns of township  aforesaid’. It  is also not in dispute that the aforesaid  definition   could  be  pressed  in  service  for considering the  question whether  there was any building on the suit  land as  defined by  the said  provision. The term ‘land’ is  defined by  Section  2  sub-section  (2)  as  not including buildings.  Thus the Protection Act would apply to lands which  are not  having any  building thereon. In other words the  Protection Act  is  to  give  protection  to  the tenants of  open lands  situated within the areas covered by the sweep  of the  Protection Act  and who might have put up their own structures on such open lands. The term ‘Landlord’ is defined by sub-section (3) of Section 2 of the Protection Act to mean, ‘any person owning any land, and includes every person entitled  to collect  the rent  of the  whole or  any portion of the land. Whether on his own account or on behalf of or  for the  benefit of any other person, or by virtue of any transfer  from the  owner or his predecessor in title or of any  order of  a competent  court or  of any  revision of law’. Then comes the definition of the word Tenant’ as found in sub-section (4) of Section 2 of the Protection Act. It is necessary to  reproduce the  relevant provisions  thereof as under :      "2.(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-      (iii)  any   such  person   as   is      referred to  in sub-section (1) who      continues in possession of the land      after  the   determination  of  the      tenancy agreement,"

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Sub-clause (b)  is not relevant. And then follows sub-clause (c) thereof which reads as under :      "2.(4)(ii)(c) the heirs of any such      person as  is referred  to in  sub-      clause (i)  or sub-clause  (ii) (a)      or (ii)(b);  but does not include a      sub-tenant or his heirs." Section 3  of the Act deals with ‘Payment of compensation on ejectment’. It provides that every tenant shall on ejectment be entitled  to be  paid as  compensation the  value of  any building, which  may have been erected by him, by any of his predecessors in interest, or by any person not in occupation at the  time of  the ejectment who derived title from either of them,  and for  which compensation  has not  already been paid. Section  4 sub-section (1) deals with the procedure to be followed in suits for ejectment against such tenants when the landlord  succeeds and it lays down that, ‘in a suit for ejectment against  a tenant  in which the landlord succeeds, the court  shall ascertain  the amount  of compensation,  if any, payable  under section  3 and  the decree  in the  suit shall declare  the amount  so found  due and direct that, on payment by the landlord into court, within three months from the date  of the  decree, of  the amount  so found  due, the tenant shall  put the  landlord into  possession of the land with the  building and  trees thereon’. Section 9 deals with ‘Application to  Court for  directing the  landlord to  sell land’. The  said Section  with its relevant sub-section read as under :      "9.(1)(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  Cause Courts Act,      1882, taken  by the  landlord, may,      within one  months of  the date  of      the  publication   of  Madras  City      Tenants’   Protection   (Amendment)      Act,  1979   in  the   Tamil   Nadu      Government Gazette  or of  the date      with effect  from which this act is      extended  to  the  municipal  town,      township 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.      (ii)... ... ... ...      (b) On  such application, the court      shall  first   decide  the  minimum      extent of  the land  which  may  be      necessary   for    the   convenient      enjoyment by  the tenant. The court      shall then  fix the  price  of  the      minimum extent  of the land decided      as aforesaid,  or of  the extent of      the   land    specified   in    the      application   under   clause   (a),      whichever  is   less.   The   price      aforesaid  shall   be  the  average      market value  of  the  three  years

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    immediately preceding  the date  of      the order.  The court  shall  order      that  within   a   period   to   be      determined by  the court, not being      less than three months and not more      than three  years from  the date of      the order,  the  tenant  shall  pay      into court or otherwise as directed      the price  so fixed  in one or more      instalments   with    or    without      interest.      (2) In  default of  payment by  the      tenant of  any one  instalment, the      application  under  clause  (a)  of      sub-section   (1)    shall    stand      dismissed,   provided    that    on      sufficient cause  being shown,  the      court may excuse the delay and pass      such orders  as it  may think  fit,      but not  so as  to extend  the time      for payment, beyond the three years      above mentioned. On the application      being dismissed,  the  court  shall      order the  amount of the instalment      of instalments, if any, paid by the      tenant to  be repaid to him without      any interest.      (3)(a)  On  payment  of  the  price      fixed  under  clause  (b)  of  sub-      section (i),  the court  shall pass      an order  directing the  conveyance      by the  landlord to  the tenant  of      the extent  of land  for which  the      said price  was  fixed.  The  court      shall by  the same order direct the      tenant to  put  the  landlord  into      possession of  the remaining extent      of the land, if any. The stamp duty      and registration  fee in respect of      such conveyance  shall be  borne by      the tenant.      (b) On  the order  referred  to  in      clause (a), being made, the suit or      proceeding shall  stand  dismissed,      and  any   decree   or   order   in      ejectment that may have been passed      therein  but  which  has  not  been      executed shall be vacated.      Explanation-   ‘Land’   means   the      interest of  the  landlord  in  the      land and  all other interests which      he can  convey under  any power and      includes  also  the  full  interest      which a  trustee can  convey  under      the  power   possessed  by  him  to      convey    trust    property    when      necessity exists  for the  same  or      the alienation  of the  property is      for the  benefit of  the estate  or      trust."      The next  Section which  is relevant  for  our  present purpose is Section 11 which reads as under :      "11. Notice  before institution  of      suits   or   applications   against      tenants. No  suits in  ejectment or

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    applications under  section  41  of      the Presidency  Small Cause  Courts      Act, 1882,  shall be  instituted or      presented against  a  tenant  until      the expiration of three months next      after notice  in writing  has  been      given  to   him  requiring  him  to      surrender possession  of  the  land      and building,  and offering  to pay      compensation for  the building  and      trees,  if  any,  and  stating  the      amount thereof.      A copy  of such notice shall at the      same time  be sent,  in the case of      property situated  in the  City  of      Madras, to  the Commissioner of the      Corporation of  Madras, or,  in the      case of  property situated  in  any      municipal town, township or village      to which  this Act  is extended, to      the  executive   authority  of  the      municipality  or  township  or  the      executive officer of the panchayat,      as the  case may  be or  any  other      authority as may be notified by the      Government." It  is  also  necessary  to  refer  to  Section  13  of  the Protection Act which lays down as under :      13. Restriction  on the application      of the Transfer of Property Act. In      its  application  to  the  City  of      Madras, and  to any municipal town,      township or  village to  which this      Act is  extended  the  Transfer  of      Property Act.  1882, shall,  to the      extent necessary  to give effect to      the  provisions  of  this  Act,  be      deemed to   have   been repealed or      modified." The aforesaid  relevant  provision  of  the  Protection  Act clearly indicate  that lessees  of open  lands  situated  in areas governed  by the  Protection Act,  who might  have put their structures  on the  open lands  are conferred  certain statutory rights  against their  landlords by this Act. When such lessees  of open  lands are  sought to  be  evicted  in proceedings filed by their landlords in any competent court, the Protection Act has given them two statutory rights - (i) either  they   get  the   demised  lands  covered  by  their structures sold  to them  under Section  9 of the Protection Act ;  or (ii)  if Section  9 of  the Protection  Act is not available  at   least  they   would  be   entitled  to   get compensation  under   Section  3   regarding  value  of  the structure which may, on execution of the decree for eviction from open lands, get vested in the landlords. Thus in either case the Protection Act gives them the right to purchase the demised lands  or alternatively to get their structures sold to  the  landlord-decree  holders.  These  statutory  rights represent a scheme of shield of protection made available to such tenants  vis-a-vis their landlords and once this shield is available the other statutory protections contemplated by Section 11  and 13  of the  Protection  Act  also  would  be available to them.      It has, therefore, to be seen whether the defendant who claims the  benefit of  the Protection  Act falls within the definition of  the term  ‘tenant’ as found in Section 2 sub-

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section (4)  of  the  Protection  Act.  As  the  defendant’s tenancy was  terminated at  the relevant  time when the suit was filed  by the  plaintiffs against  her, Section  2  sub- section (4)(i)  did not  apply in  her case.  On this aspect there is  no dispute  between the  parties. However  learned senior counsel  for the  defendant heavily  relied upon  the second part  of the  said definition  of the  term  ‘tenant’ namely, that it would include 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. In this connection it was submitted that the tenancy agreement stood determined qua her in view of Section 111(g) of the T.P. Act by forfeiture as it is alleged that the lessee defendant had renounced her  character by  setting up  a  title  in  third persons like  the State  Government or plaintiff nos.1 and 2 who had  become total  strangers qua the suit land after the Sate  Deed   dated  29th   August  1981.  She  had  incurred forfeiture of  tenancy rights  as she  denied the  title  of plaintiff no.3 and had also claimed that she was entitled to remain in  possession  pursuant  to  an  agreement  to  sell entered into   by  plaintiff nos.1 and 2 with her. Once that happened the  contractual lease got determined by forfeiture and as  she continued  in possession  of the land thereafter she could  be said  to be a statutory tenant entitled to the benefit of  the definition ‘tenant’ as found in Section 2(4) of the Protection Act.      The aforesaid  submission prima  facie appeared  to  be attractive but  on a  closer scrutiny  it  is  found  to  be falling through as we will presently see. The  scheme of the Protection Act  as  seen  above  furnishes  an  umbrella  of statutory protection  to the tenants of open lands who might have put  up construction  by incurring  substantial  costs. When they  are sought  to be  evicted from these leased open lands, amongst  others, two  basic statutory protections are made available  - they  can either  enforce their  statutory right or  pre-emption of  purchasing the  land  below  their structure;  or   can  enforce   the   statutory   right   of compensation to  be paid  to them  in  connection  with  the structure which  may travel  with the  deemed  land  of  the decree-holder landlord in case the suit gets decreed against them. These  alternative statutory  rights of protection are made available by the legislature to the contractual tenants and/or to  the statutory  tenants  who  by  themselves  have behaved as  tenants and  who on determination of contractual tenancy continue  to remain in possession. In either case if the landlord  determines the  tenancy agreement such tenants cannot be  said to have lost the statutory protection of the Act. Consequently, on the express language of Section 2 sub- section(4)(ii)(a) of the Protection Act it must be held that the determination  of tenancy  agreement as envisaged by the said provision  would be  such determination as is referable to the  unilateral act  or  omission  on  the  part  of  the landlord  which   results  in  determination  of  the  lease agreement for  no fault  of the  lessee-tenant. It  is under these circumstances  that the statutory benefit available to such tenants  either contractual  or statutory  would  stand guaranteed  by  the  legislative  scheme  envisaged  by  the Protection Act.  In this  connection when we turn to Section 111 of  the T.P. Act on which reliance was placed by learned senior counsel  for the   defendant  we find  that the  said provision deals  with  various  modes  of  determination  of lease. They are found from clause (a) to (h) as under :      "111. Determination  of lease.  - A      lease   of    immovable    property      determines.

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    (a) by  ettlux of  the time limited      thereby.      (b)  where  such  time  is  limited      conditionally on  the happening  of      some event  - by  the happening  of      such event.      (c)  where   the  interest  of  the      lessor in  the property  terminates      on, or  his power to dispose of the      same extends only to, the happening      of any  event by  the happening  of      such event.      (d) in  case the  interests of  the      lessee and  the lessor in the whole      of the  property become  vested  at      the same  time in one person in the      same right.      (e) by  express surrender;  that is      to say,  in case  the lessee yields      up his interest under the lease, to      the  lessor   by  mutual  agreement      between them.      (f) by implied surrender.      (g) by  forfeiture; that is to say.      - (1)  in case the lessee breaks an      express  condition  which  provides      that, on breach thereof, the lessor      may re-enter;  or (2)  in case  the      lessee renounces  his character  as      such by  setting up  a title  in  a      third person  or by  claiming title      in himself;  or (3)  the lessee  is      adjudicated an  insolvent  and  the      lease provides  that the lessor may      re-enter on  the happening  of such      event; and  in any  of these  cases      the lessor  or his transferee gives      notice in  writing to the lessee of      his  intention   to  determine  the      lease.      (h) on  the expiration  of a notice      to determine the lease, or to quit,      or  of   intention  to   quit,  the      property leased,  duly given by one      party to the other." These diverse  modes of  determination of  lease as found in Section 111  show that  the landlord’s act or volition which results into determination of lease can be ascribed to modes (a) and  (h) of  Section 111 of the T.P. Act. A landlord who enters into a contractual lease with tenant of open land may allow the  lease period  to peter  out and get exhausted and may no  renew the lease. Thus by omission on the part of the landlord the  lease gets determined by efflux of time as per Section 111  (a) of  the T.P.  Act. Similarly as per Section 111 (h), by an express act of giving notice to determine the lease or  to quit  on the  part of the landlord of such open land, the  lease would  get determined. It is of course true that  Section   111  (h)   of  the   T.P.  Act  contemplates determination of  lease by  notice to  determine or  to quit that may  be given  either by  the landlord or by the tenant but in  the context  of Section  2 (4) of the Protection Act such determination  of lease  of  open  land  under  Section 111(h) of  the T.P.  Act would necessarily be limited to the notice to  quit given  by the landlord of such open land and not by his tenant as if the tenant gives notice to determine

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the lease or to quite there would remain no occasion for him to  claim   any  protection  under  the  Protection  Act  by submitting that he remains a statutory tenant as he will not be continued  in possession  thereafter by  his own  act. It must, therefore,  be 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  clause (b)  to (g) of Section 111 can even 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.      This  conclusion   on  the   statutory  scheme  of  the Protection Act  in the  light of  the definition of the term ‘tenant’ as  found in  sub-section (4)  of Section  2 of the Protection Act  gets  further  buttressed  by  the  combined operation of Section 9 and 13 of the Protection Act. Section 9 of  the Protection Act enables the tenant of the open land to enforce his statutory right of compulsory purchase of the leased land  below his  structure. Once  the  tenant  incurs forfeiture of the lease under Section 111(g) of the T.P. Act by renouncing  his character  as tenant  of the  landlord by setting up a title in third person or in himself there would be no  occasion for  such a  tenant to  invoke Section  9 as Section 9 by itself pre-supposes that the tenant must accept the owner  of the  land as  landlord and against whom he can claim appropriate  relief by  offering to  purchase the land over which his structure stands on payment of price fixed by the court to such landlord who then has to convey his right, title and  interest in  the land  in favour  of such  tenant owning the  structure. Consequently it must be held that for operation of  Section 9 an admitted relationship of landlord and tenant  must exist.  If the tenant alleges that landlord is not  the real  owner of the property but somebody else is the   owner or he himself is the owner there would remain no occasion for  him to  offer any  price of  such land to such landlord whom  he treats as a stranger to that land. On such a stand  taken by  the tenant  of the  open land there would also remain no occasion for the so-called landlord to accept the price  of the  land and  to convey  his right, title and interest in  the land  pursuant to the order of the court to such tenant. In this connection Section 13 of the Protection Act is  also required  to be  noted. If  Section 9 can apply only when  there is  admitted relationship  of landlord  and tenant, contractual  or statutory, between the parties, once such relationship  is contra-indicated by denial of title of landlord  by   the   tenant   and   consequently   mode   of determination of tenancy under Section 111 (g) is attracted, its applicability  by itself will nullify and make Section 9 inoperative in  such a  case. In  that  eventuality  as  per Section 13  of the  Protection  Act,  such  a  provision  of Section 111(g)  of the  T.P.  Act,  has  to  be  treated  as

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repealed. Section  9 and  13 of  the Protection Act leave no room for doubt that to the extent to which the provisions of the Transfer  of Property  Act cut  across the  operation of Section 9  the said  provisions have  to be  treated  to  be repealed or modified so as to make the provisions of Section 9 fully  effective. Therefore,  on  a  conjoint  reading  of Section 2(4),  Section 9,  and Section  13 of the Protection Act, it  has to  be held  that determination  of tenancy  as envisaged under Section 111(g) of the T.P. Act by forfeiture cannot get  telescoped into Section 2 sub-section (4) of the Protection Act  must be  deemed to  have  been  repealed  or modified by  the express  provisions of Section 9 and 13. In this  connection  one  more  contention  of  learned  senior counsel for  the respondents  deserves to  be noted. Section 111(g) of the T.P. Act also contains a mode of forfeiture of tenancy by insolvency of tenant. In such a case an insolvent tenant can  never by himself seek protection of Section 9 of the Protection  Act as his estate is represented by receiver in insolvency  operating under  the orders  of the Court. If learned senior  counsel for  the defendant  is right  in his submission that  Section 111(g)  of the  T.P. Act  has to be read with Section 2(4)(ii)(a) of the Protection Act, that in such a  case of  insolvency of  tenant, which  results  into determination of lease by forfeiture. Section 9 can never be pressed in  service by  such an insolvent tenant. This is an additional  reason  for  ruling  out  the  applicability  of Section 111(g)  of the T.P. Act to the provisions of Section 2(4)(ii)(a) of  the Protection  Act. Once that conclusion is reached, it  is obvious  that the  defendant in  the present case who has admittedly and consistently denied the title of plaintiff  no.3  cannot  get  any  protection  of  statutory tenancy as  envisaged by Section 2 sub-section (4)(ii)(a) of the Protection  Act. In  other words  she gets  out  of  the protective umbrella  of the  Protection Act  meaning thereby she can neither claim benefit of Section 9 against plaintiff no.3 nor can she enforce Section 3 thereof against plaintiff no.3. It  has also  to be noted at this stage that there are two  concurrent  findings  of  all  the  courts  below  that plaintiff nos.1  and 2  have validly  entered  into  a  sale transaction of the suit land in favour of plaintiff no.3 and their  Sale  Deed  dated  29th  August  1981  is  valid  and operative in law. Once that conclusion stares in the face of the defendant it must be held that the Protection Act can be enforced if  at all by the  defendant only against plaintiff no.3 and once she consistently says that plaintiff no.3 is a total stranger  to this land there would remain no  occasion for her  to get  the protection  of any of the provisions of the Protection Act. Qua plaintiff no.3 she could not be said to be  a statutory  tenant. Learned  senior counsel  for the defendant however,  was right  when he  contended  that  the definition of  the term  ‘landlord’ as found in Section 2(3) of the Protection Act would include even a transferee of the original landlords  who were  the lessors, namely, plaintiff nos. 1  and 2. However, that by itself would not advance the case of  the defendant  as even if plaintiff no.3 is treated to be  the landlord  of the  land qua defendant he cannot be the landlord  of the  demised land  for the  purpose of  the Protection Act as the defendant does not accept him to be so and treats  him consistently as a stranger and a non-entity. It must,  therefore,  be  held  that  on  account  of  t  he forfeiture  of   tenancy  incurred  by  defendant  vis-a-vis plaintiff no.3  by denying  his title  she had walked out of the protective  umbrella  of  the  Protection  Act  and  the tenancy agreement  in her  favour which  was executed by the erstwhile owners/landlords  plaintiff nos.1  and 2 cannot be

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said to  have been  determined by  plaintiff no.3  so as  to enable the  defendant to  claim  the  benefit  of  the  said determination qua the former.      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. In the plaint of O.S.No. 453  of 1982  filed by  the plaintiffs  against  the defendant it has been averred in paragraph 7 as under :      "VII. The  lease period was over on      6 1969 and t he continuation of the      lease  was   with  the  consent  of      Plaintiffs  1   an  d  2.  But  the      defendant did  not act as per terms      and   conditions   of   the   lease      agreement. The defendant had agreed      to  obtain   Municipal  and   other      Licences  in   the  name   of   the      Plaintiffs the  terms of Agreement.      Further  in   her  notice  she  had      denied the Plaintiff of Plaintiff 1      and 2  by saying  that  the  vacant      site belonged to the Government and      hence a  road Poramboke.  Hence the      defendant   had clearly  denied the      title of  the Plaintiffs.  For  the      above said  reasons  the  defendant      had forfeited her right to continue      as tenant  nor she  is entitled  to      continue in  possession of the suit      property. The  plaintiffs also sent      a second  notice  dated  7-7-82  by      narrating  the   facts  and   later      developments which was acknowledged      by   the   defendant   on   17.7.82      demanding  the   arrears  of   rent      accrued  upto  date  and  also  for      vacant possession  but the same was      not complied  with  so  far.  Hence      this suit." Consequently even  if arrears  of rent are prayed for at the rate of  Rs. 50/-  per month  from 01st  April 1981  to 01st September 1982  amounting to  Rs. 1,000/-  and even if court fees are  paid under Section 22 of the Court Fees Act on the basis of  the monthly  rent it  could not  be said  that the plaintiffs  had   waived  the  forfeiture  incurred  by  the defendant so  as to attract Section 112 of the T.P. Act even independently of the moot question whether Section 112 could ever be  invoked when Section 111(g) itself is not attracted

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on the facts of the present case as seen earlier.      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. It is interesting to note that  in the  first written  statement dated 08th April 1983 filed  by the  defendant in  plaintiffs’ suit no 453 of 1982  the   following  pertinent   averments  were  made  in paragraphs 2, 3, 4 an d 5 as under :      "2. The allegation in para 3 of the      plaint that  this suit  property at      present belong  to the  Plaintiff 1      and   2    earlier.   The   further      allegation that  this defendant has      become the tenant in respect of the      suit property while it was a vacant      site on  a monthly  rent  of    Rs.      1.6.68 under  plaintiff 1 and 2 are      true an  d further  allegation that      the suit  properties was leased out      to the  defendant for  dealing with      firewood and  a fuel depot and true      an d  further allegation  that  the      monthly rent  was enhanced  to  Rs.      50/- per  month. The  allegation of      reckoned and payment are also true.      The further  allegation  that  this      defendant had defaulted from 1.4.81      and was  giving evasive replies are      absolutely false.      3. The  allegation in para 4 of the      plaint that  this  third  Plaintiff      had purchased  the suit  properties      on 24.8.81  for  true  an  d  valid      consideration  and   was   put   in      symbolical      possession      are      absolutely false  and  the  alleged      demand  of   rent  by   the   third      defendant  is   also  false.   This      alleged  purchase   on  the   third      defendant was only sham and nominal      and this  third  defendant  has  no      sufficient means  to purchase  this      properties.      4. The  allegation in para 5 of the      Plaint about the filing of the suit      against the  Plaintiff 1  to  3  in      O.S. 984/81  on the  file  of  this      Hon’ble Court  and of  obtaining as      order of  ad interim  injunction in      I.A.   1311/81    restraining   the      plaintiff from  any way interfering      with the  peaceful  possession  and      enjoyment of this defendant are all      true. It  is false  to allege  that      the pendency  of the  above suit is      not   an    impediment    to    the      institution of this suit. This suit      is unsustainable  in  law  and  has      been maliciously filed in order and      to detract  the  proceedings.  This      plaintiff has chosen the wrong form      instead of  filing the suit in rent      control  proceedings.  The  alleged      arrears  of  rent  from  1.4.81  to      1.9.82 are  absolutely  false.  The

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    alleged  notice     dated   11.6.82      issued by  the Plaintiffs  has been      suits by  replied on  17.6.82  with      true and correct particulars.      5. The  Plaintiffs  1  and  2  have      entered into an agreement with this      defendant to  sell  away  the  suit      property  to   this  defendant  for      Rupees  five   thousand   and   had      received an  advance of  Rs. 2000/-      and the  balance of  Rs. 3000./- is      to be  paid to the Plaintiffs 1 and      2 on  the date  of the execution of      sale deed by them." Similarly even  in the additional written statement filed on 93rd December  1983 the  very same contentions were repeated in paragraph 4 as under :      "4. In August 1980 the plaintiffs 1      and 2 agreed to sell the suit house      site to  defendant for  Rs.  5000/-      orally and  received  from  her  an      advance  of   Rs.  2000/-  as  part      purchase payment without giving any      receipt for  the same  and  assured      her   that   they   would   execute      registered sale  deed on her paying      the balance  of  Rs.  3000/-.  But,      later they  seemed to  have brought      about  a   fraudulent,   sham   and      nominal  sale  deed  in  favour  of      their  agent  and  friend  the  3rd      plaintiff without the knowledge and      intimation to the defendant." And thereafter  in para  6 of  the said  additional  written statement Section  9 of  the Protection Act was also invoked only against plaintiff nos.1 and 2 in the following terms :      "6. As  per the  provisions of  the      Madras  City   Tenant’s  Protection      Act, particularly Section 9, and as      per the  defendant’s Oral Agreement      with the  plaintiffs 1  and 2,  the      defendant is  willing and  ready to      purchase the  sum  land  by  paying      them  the   balance  of  Rs.3000/-,      having  paid   the   advance   part      purchase price of Rs.2000/- to them      in  August   1980.   However,   the      defendant is  prepared to  pay such      price as  this Honourable  Curt may      be  pleased   to  fix  taking  into      account the alleged sale deed dated      29.8.81  for   Rs.  5600/-  by  the      plaintiffs  1  and  2  to  the  3rd      plaintiff. Without prejudice to the      above averments,  the defendant  is      taking steps  to deposit into State      Bank or Court the balance amount to      be fixed  by the  Honourable Court,      tentatively Rs. 3600/-." The said  written statement  dated 03rd  December  1983  was accompanied  by  an  application  under  Section  9  of  the Protection Act  being I.A. No. 17 of 1985 of even date moved by the  defendant. Therein  also similar  stand was  adopted denying the title of plaintiff no.3 claiming statutory right of preemption  and compulsory purchase of the suit land only

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from plaintiff  nos.1 an d 2. Paragraphs 7 and 8 of the said application moved  under Section  9 also deserve to be noted at this stage.      "7. In  August 1980 the respondents      1 an  d 2  agreed to  sell the suit      house site  to me  for Rs.  5,000/-      orally and  received an  advance of      Rs. 2,000/-  from me without giving      any  receipt   for  the   same  and      assured me  that they would execute      registered sale  deed on  my paying      the balance  of Rs.  3,000/-.  But,      later they  seemed to  have brought      about  a   fraudulent,   sham   and      nominal  sale  deed  in  favour  of      their  agent  and  friend  the  3rd      respondent without my knowledge and      any intimation  to me  by them.  As      stated  in   para   4   above   the      respondents have  filed  this  suit      without giving  me  and  the  Attur      Municipal  Commissioner   3  months      notice  for  eviction  and  without      offering   compensation   for   the      superstructure on  the suit land as      per the provisions of Section 11 of      the Madras  City Tenants Protection      Act, the  sale of the suit land and      their   suit    are   against   the      mandatory provisions of law and are      unsustainable in law.      8. As  per the  provisions  of  the      City   Tenants    Protection   Act,      particularly section  9 and  as per      my   oral    agreement   with   the      respondent 1  and 2 noted in para 7      above, I  am ready  and willing  to      purchase the  suit land  by  paying      the balance  of Rs.  3,000/- having      paid the  advance of Rs. 2,000/- to      them in  August 1980. However, I am      prepared to  pay such price as this      Honourable Court  may be pleased to      fix taking  into account  the  sale      deed dated  29.8.81 for  Rs. 5600/-      by  the  respondents  1  and  2  in      favour  of   the  3rd   respondent.      Without  prejudice   to  the  above      averments.  I  have  deposited  Rs.      3,600/- for  the  balance  of  sale      price in the State Bank. Hence, the      Honourable Court  should be pleased      to order  the respondents  to  sell      the suit  land to  me for the price      to  be   fixed  by  the  Honourable      Court." It,  therefore,   becomes  clear   that   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  a re  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

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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.      It is  now time  for us to have a look at the decisions of this  Court and  of the  Madras High  Court to  which our attention was  invited by learned counsel for the contesting parties.      In  the  case  of  Bhargavakula  Nainargal  (supra),  a Division Bench  of the  High Court  referring to two earlier Division Bench  judgments of the same High Court in the case of V.  Madhava Rao  Naidu v.  Sri  Gangadeswarar  Temple  by frustees                                Sabapathi Pillai and others [(1946)  2 M.L.J.  285] as  well as  in the  case  of Veeraswamy Naicker  and another  v. Alamelu Ammal and others [(1965) 2 M.L.J. 188] and other decisions of the Court, took the view  that the  definition of  ‘tenant’ found in Section 2(4) of  the  Protection  Act  is  an  inclusive  definition couched in  wide language  and a  combined reading  of  sub- clauses (i) and (ii) of sub-section 2(4) makes it clear that only the person liable to pay rent in respect of the land in his occupation would be entitled to t he benefits under that provision. The  liability to  pay rent  must be made out and agreed to  between the  parties. To  put it  in other  words Section 2  applied to  a case where there was a relationship of landlord  and tenant  up to the point of determination of tenancy. It is only in such cases, the Statute comes to  the rescue of such tenant and confers on him the benefits of the Act. By  no stretch  of imagination  it will apply to a case where the  tenant denies the said decision that the language of sub-section (ii)(a) of sub-section (4) of Section 2 makes it amply  clear that a persons who does not claim that there was an agreement of tenancy at the relevant point of time is not entitled  to claim  any benefit under this provision. It is also observed in this connection that the Act in question is intended  to give  protection  against  the  eviction  of tenants who  have constructed  buildings on  other’s land so long as  they pay  fair rent for their lands. Therefore, the basic requirement  for invoking the provisions if the Act is that the ownership and tenancy rights must vest in different persons. Once  a person  claims ownership  in  himself,  the question of  tenancy does  not arise  for consideration. The aforesaid Division  Bench Judgments  of the same High Court, as mentioned  above. In  our view,  on  the  scheme  of  the Protection  Act  which  we  have  considered  the  aforesaid conclusion to  which the  Division Bench  reached  is  quite justified and well sustained. However learned senior counsel for  the   defendant  vehemently   contended  that   certain observations made  by the  Division Bench  in para 25 of the Report in  connection with  the principle enunciated by this Court in Damadilal’s case (supra) are not justified. To that extent learned senior counsel for the appellant-defendant is right. The  Division Bench  in the  aforesaid  decision  has observed  that   it  is   doubtful  whether   the  principle enunciated in  the Damadilal’s  case (supra)  would apply in view of  the decision  of a large Bench of this Court in Jai Singh Murarji  (supra) which  was a  Bench of  four  learned Judges. Learned senior counsel for the Constitution Bench of this Court  in the case of Gian Devi Anand (supra) which had

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taken the  view that  heirs of  a statutory  tenant are also entitled to  the protection  of the Rent Act and they cannot be said to have no interest in the leased premises. But even if it  is held  that to  that extent the observations of the Division Bench  in Bhargavakula Naingraal (supra) may not be strictly accurate  or well borne out it would not affect the ratio of  the judgment of the Division Bench in that case in the light of the statutory scheme examined by them and which has  been  found  by  us  to  be  well  sustained.  In  this connection it  h as  to be kept in view that the decision of the Constitution  Bench of  this court  in the  case of Gian Devi Anand  (supra) which  had taken the view that statutory tenant has  not a mere personal right to occupy the premises and the  heirs of  such statutory  tenant have  a  statutory interest in  the premises  in the  light  of  the  statutory scheme  which  protects  them  cannot  strictly  be  of  any relevance for  deciding the controversy in the present case. The  Act   with  which  we  are  concerned  clearly  affords protection to  the heirs  of the statutory tenant covered by sub-clauses (ii)(a)  and (b) of sub-section (4) of Section 2 of the  Protection Act  defining ‘tenant’  as seen  from the express provisions  of sub-clause  (c) thereof.  Under these circumstances, therefore, the judgment rendered by a learned Single Judge  of the Madras High Court Ratnam,J. in the case of P.  Nachimuthu Mudallar  v. M.  Ponnuswamy [93 Law Weekly 874] was rightly not accepted, as laying down correct law by the Division  Bench of the Madras High Court in Bhargavakula Nainargal (supra).  The reason  is obvious,  Justice  Ratnam took the view that because a statutory tenant has not a mere personal right  to occupy  and his  heirs also  can get  the statutory protection  as per  the relevant provisions of the Rent Acts  as laid  down by  this Court  in Damadilal’s case (supra) even  though such  a  tenant  incurs  forfeiture  by denying the  title of the landlord he would still be covered by the  sweep of Section 2 sub-section (4) of the Protection Act. This  view is clearly contra-indicated by the scheme of the Protection Act as seen by us earlier. It is difficult to appreciate how Ratnam,J. could persuade himself to hold that even if  the tenant forfeits the leasehold rights by denying the title  of the landlord he could still get the benefit of Section 9  of the  Protection Act.  Such a conclusion on the Scheme of  the Protection  Act, as  were  have  seen  above, cannot be  sustained. Consequently,  reliance placed  by the learned senior  counsel for  the appellant-defendant  on the decision of  Ratnam,J. in  the case of P. Nachimuthu (supra) cannot b  e of  any avail  to   him. Our  attention was also invited by  the learned  senior counsel for the defendant to two decisions  of learned  Single Judges  of the  same  High Court,  namely,   V.  Ramaswami,  J.,  in  the  case  of  R. Govindaswamy v.  Bhoopalan an d others [(1977) 2 M.L.J. 206] as well as that of Sethuraman, J., in the case of Kandaswami Gounder v. Kandasamy Gounder son of Subbiah Gounder reported in 1979  L.W. 510.  The  said decision also cannot be of any assistance to  him as  the learned judges in those two cases were not  dealing with  any situation wherein the tenant had denied the title of the landlord and still sought protection of the  Protection Act.  Such  a  situation  did  arise  for consideration before  Ratnam,J, whose  decision, as  we have seen above, cannot be said to be laying down good law in the light of  the statutory  scheme considered and discussed b y us earlier.  On the  other hand earlier two decisions of the two Division  Benches of  the Madras  High Court  which  are referred to  by the  latter Division  Bench in  the case  of Bhargavakula  Nainargal   (supra)  correctly  interpret  the scheme of  the Protection  Act in  the light  of the    moot

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question whether  a tenant  who  denies  the  title  of  the landlord can ever get the benefit of the protective umbrella of the Protection Act enacted by the legislature as a shield for the  tenants of  open lands.  On the  other hand learned senior counsel  for the  plaintiffs invalid our attention to two decisions of Srinivasan,J. (as he then was), in the case or Subbaroyan  and another  v. Devadas  Nadar [1991 (2) L.W. 355] and  in the  case  of  Bhargavakula  Nainargal  Sangam, Tirvanamalai, rep.  by its  present President , Dandapani v. Chakravarthi [1992 (1) L.W. 254]. The learned judge in those cases had  taken the view that a tenant who denies the title of the  landlord would not be entitled to get the benefit of the provisions  of the Protection Act. In our view, the said decisions of  the   learned Single  Judge of  the High Court also are  well sustained  on the   statutory  scheme of  the Protection Act  as discussed  by us earlier. The first point for determination  therefore, has  to  be  answered  in  the negative against  the appellant-defendant  and in  favour of the respondent-plaintiff. Point No. 2      So far  as this Point is concerned once t he conclusion on the  first point  is in the negative it necessary follows that there  was no  occasion for  plaintiff no.3  who is the real owner  and landlord  of the  suit land  to issue notice under Section  11 of the Protection Act to the defendant who did not  accept him as the owner of the property. As we have seen earlier Section 11 contemplates three months’ notice to be given to the tenant requiring him to surrender possession of the   land and building, and offering to pay compensation for the  building to  the  defendant  calling  upon  her  to surrender possession, of the land and building put up by the defendant,  to  him  when  the  defendant  does  not  accept plaintiff no.3  to be  the owner  of the land. It would be a sheer exercise in futility for plaintiff no.3 to give such a notice to  the defendant  who dies  not accept him to be the landlord. On the scheme of the Protection Act, therefore, if must be  held that Section 11 can be pressed in service only when the  tenant accepts  the plaintiff  as his landlord and against whom  he claims  protection and  benefit both  under Section 9  as well as under Section 3 of the Protection Act. The High  Court, therefore,  was right when it took the view that once  the defendant  denied the title of plaintiff no.3 who is  the real  owner of the property she would get out of the Protection  Act and  none of  the provisions of the said Act can  ever be  pressed in  service by the  defendant as a shield of protection against the real owner of the property, namely, plaintiff  no.3. In other words defendant by her own act has  given up  the shield of protection envisaged by the legislature for such tenants of open lands. Thus nine of the provisions of that Act could be invoked by defendant against plaintiff no.3. As the defendant was not a tenant covered by the definition  of the said term under Section 2 sub-section (4) of  the Protection  Act, neither Section 9 nor Section 3 of Section  11 could  be pressed  in service  by her against plaintiff  no.3   for  non-suiting   the  latter.   On  this conclusion of ours there would arise no question of applying the ratio  of the  decision of a Bench of two learned Judges of this  Court in  the case of S.A. Ramachandran (supra). In that case  the tenant  had  not  denied  the  title  of  the landlord, in  that suit  filed by  the landlord  against the tenant of the open land when there was admitted relationship of landlord  and tenant  between the  parties the tenant had alleged that  the suit  was bad on account of non-compliance of Section 1 1 of the Act. It was found that the application under Section  9 of  the Protection  Act moved by the tenant

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was barred  by time  resulting into  a situation in which it could be  held that  the tenant  had  never  filed  such  an application for  decision on  merits. On  these facts it was held by  this Court  that Section 11 was mandatory in nature and hence  the suit filed by the landlord against the tenant who had  not denied  t he  title of  the  landlord,  in  the absence of  such notice, was clearly incompetent. It is true that in  case this Court kept the question of waiver of such notice under  Section 11  open but  as t  he relationship of landlord and  tenant was  not denied in that case Section 11 got squarely attracted on the facts of that case. We fail to appreciate how the said decision can be of any assistance to the learned senior counsel for the defendant on the facts of the present  case. As the defendant in the present case  had consistently denied  the title  of plaintiff no.3 who is the real owner  of the  property there  would remain no occasion for plaintiff  no.3 to  give any  notice under Section 11 to such  a  recalcitrant  tenant.  Under  these  circumstances, therefore, the ratio of the aforesaid decision of this Court is of  no avail  to the  defendant. Consequently  it is  not necessary for  us to  examine the wider question whether the defendant can  be said  to have  waived the  requirement  of statutory notice  Under Section 11 of the Protection Act. It is equally  not necessary  for us  to  examine  the  further question whether  the defendant  by  moving  an  application under Section 9 and getting delay in filing such application condoned could  be said  to have  waived the  requirement of statutory notice  Under Section  11 of  t he  Protection Act when such  a contention was raised in the additional written statement filed  by her  before the  Trial Court and such an issue  was   successfully  pressed  in  service  before  the Appellate Court and was also on the anvil of scrutiny before the High  Court. Question  of waiver  would have  arisen for serious consideration  in the  present case  if it was found that Section  11 was  applicable to the facts of the present case but  as we have found that 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. Point No. 3      So far as this point is concerned, as seen earlier, the application under Section 9 of the protection Act itself was ex facie  incompetent. That application was not moved by the defendant against  the real  owner of  the property, namely, plaintiff no.3.  In  fact  as  noticed  by  us  earlier  the relevant averments  in the  said application  show that  the defendant was  not claiming  any right of statutory purchase of the land vis-a-vis plaintiff no. 3 who was the real owner of the  land. She was claiming such rights against plaintiff nos.1 and 2 who were total strangers to the land having sold the land  to plaintiff  no.3 as  the sale  deed in favour of plaintiff no.3  is found  to be  legal and  valid by all the courts below. Therefore,  it must be held that the defendant moved an  application under  Section 9 of the Protection Act for compulsory purchase of the land against total strangers, plaintiff nos.  1 and  2 and  did not  file such application against the real owner and landlord, plaintiff no.3. Such an

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application, therefore,  must be  held to  be still-born and totally incompetent. It was required to be dismissed and was rightly dismissed  by the Trial Court as well as by the High Court and  was wrongly  allowed by the First Appellate Court which almost  granted in  the guise  of allowing  Section  9 application  a   decree  for  specific  performance  of  the agreement to  sell said  to have  been executed by plaintiff nos.1 and  2 in  favour of the defendant and which agreement was held  by the  lower appellate  court itself  to  be  not established on  the record  of the  case. 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. Point No. 4      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  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. Point No. 5      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 and  another v. Dr. G. Ramakrishnan and another [(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

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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 that 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 gether 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.      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  in the facts and  circumstances of the case.