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PETITIONER: S. VENKITACHALAM IYER

       Vs.

RESPONDENT: S. RAMA IYER

DATE OF JUDGMENT12/09/1991

BENCH: KANIA, M.H. BENCH: KANIA, M.H. MISRA, RANGNATH (CJ) KULDIP SINGH (J)

CITATION:  1992 AIR  243            1991 SCR  Supl. (1)  21  1992 SCC  Supl.  (2) 133 1991 SCALE  (2)623

ACT:     Tamil Nadu Tenants’ Protection Act, 1921: Sections 9 and 10--Tenant--Eviction  of--Decree  passed--Compensation   for superstructure built by tenants predecessor-in-interest  and purchased by tenant--Execution proceedings pending--Right of tenant to require the landlord to sell the land for  benefi- cial enjoyment of the superstructure--Whether affected.

HEADNOTE:     The  lands  in question owned by a Trust, of  which  the appellant was the Managing Trustee, were leased to  respond- ent.  On his failure to pay rent the Trust filed a suit  for his  ejectment. The District Munsiff passed the  decree   on condition that the appellant would pay the respondent, costs of  the building or superstructure, which had been built  by the  respondent’s  predecessor-in-interest,  and  which  the respondent had purchased from him. The litigation went  upto High  Court, which ultimately upheld the decree. During  the pendency  of second appeal, the respondent filed before  the District Munsiff an application under Section 9 of the Tamil Nadu Tenants’ Protection Act, 1921 as amended by Act XIX  of 1955  and  Tamil Nadu Adaptation of Laws  Order,  1969.  The provisions  of  the said Act were extended to  the  town  in which  the lands were situated. In the said  application  he prayed for the issue of a direction to the appellant to sell to the respondent the said property, the land adjoining  the building,   as it was necessary for the beneficial enjoyment of the building. The application was rejected on the  ground that  such a prayer had been rejected earlier. The  respond- ent’s first appeal was allowed by the Subordinate Judge. The respondent had not surrendered the possession of the proper- ty  despite  the deposit of the compensation amount  by  the appellant and the execution proceedings had remained stayed. Hence  the  appellant  filed an appeal in  .the  High  Court which,  however,  held that the respondent was  entitled  to file  the application under Section 9 of the Act during  the pendency of the execution proceedings, and the right of  the respondent  had  not  been affected by the  deposit  of  the compensation amount.     In the appeal before this Court, on behalf of the appel- lant Managing Trustee, it was contended that the  respondent

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was not entitled to exercise his right to purchase the  land immediately  adjoining  the superstructure as might  be  re- quired for the beneficial enjoyment of the said structure as the 22 said  structure  had not been put up by him, and  ’that  al- though  the respondent might have been in possession at  the relevant  time,  he had lost the possession  thereafter  and hence he had lost his right under Section 9. Dismissing the appeal, this Court,     HELD:  1.1  Under Section 9 of the Tamil  Nadu  Tenants’ Protection  Act,  1921, any tenant, as  defined  in  Section 2(4)(ii)(a),  who is entitled to compensation under  Section 3, and against whom a suit in ejectment has been  instituted or  proceedings  under Section 41 of  the  Presidency  Small Causes  Court Act, 1882, taken by the landlord  may,  within one month from the date of the Madras City Tenants’  Protec- tion  (Amendment) Act, 1955, coming into force, or the  date with effect from which this Act is extended to the municipal town or village in which the land is situated, or within one month  after  the service on him of summons,  apply  to  the Court for an order that the landlord 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. Section 10  of the  Act makes the provisions under Section 9 applicable  to cases  where  decree  for ejectment has  not  been  executed before  the  date from which the provisions of the  Act  are extended to the area in question. [25 C-E]     1.2 In the instant case, although the decree for  eject- ment was passed against the respondent, as he had  continued to  remain in possession of the property and the decree  had remained unexecuted till the date on which the provisions of the said Act had been extended to the area in question,  the right of the respondent under Section 9 was not lost. [25 F]     1.3 As regards the superstructure, it was put up by  the predecessor  in interest from whom the respondent  had  pur- chased.  Thus, the High Court was entitled to take the  view that  it was put up by a predecessor-in-interest of the  re- spondent. [25 G]     1.4 In these circumstances, the respondent was certainly a  tenant, within the meaning of Section 2(4)(ii)(a) of  the Act, which takes within its ambit a tenant whose tenancy has been  determined  but  continues to  remain  in  possession, entitled to compensation under Section 3 of the Act and was, therefore,  entitled to make an application under Section  9 of the Act. [25 H, 25 B] 23     2. The plea that although the respondent might have been in  possession  at the relevant time, but since he  lost  it thereafter,  he  lost his right under Section  9  cannot  be allowed  to be raised in this Court since this has not  been pleaded in or considered in any of the courts below. [26  A- B]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1317 of     From  the  Judgment  and Order dated  21.1.1983  of  the Madras High Court in C.R.P. No. 2797 OF 1979.     T.S.  Krishnamurthy  lyer, P.N.  Ramalingam  and  A.T.M. Sampath for the Appellant.     S. Balakrishnan, S. Prasad, R. Raghavan and Vijay  Kumar for the Respondent. The Judgment of the Court was delivered by

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   KANIA, J. This is an appeal by special leave against the decision of a learned Single Judge of the Madras High  Court in  Civil Revision Petition No. 2792 of 1979 filed  in  that Court.  We propose to set out only the few  facts  necessary for the disposal of the appeal.     The  appellant is the managing trustee of a  trust.  The said  trust owned two properties comprising 60 cents and  29 cents  of  land at Nagercoil in Tamil Nadu. The  said  lands were leased by the appellant to one Padakalingam in 1930 who in turn assigned the lease in favour of one Ramaswamy Mudal- iar in 1931. Swami Mudaliar secured a further assignment  of the  said  lease  from the said  Ramaswamy  Mudaliar.  Swami Mudaliar put up a building on the said land and the respond- ent herein purchased the building from him in 1943 for a sum of  Rs.  4,475. In 1944 the trust had leased  out  the  said property  in  favour of the respondent for  six  years.  The terms  of  the lease are not relevant for  the  purposes  of resolving the controversy raised before us. As the  respond- ent  failed to pay the rent to the Trust, the Trust fried  a suit  for  ejectment against the respondent which  suit  was later transferred to the District Munsifs Court,  Nagercoil. The  said suit was decreed by the learned  District  Munsif. The  decree for eviction was passed by the learned  District Munsif  on  condition  that the appellant will  pay  to  the respondent the costs of the building- or the superstructure. This  litigation was carried upto the High Court  in  Second Appeal.  The  decree  of the trial Court  for  eviction  was upheld by the High 24 Court. During the Pendency of the second appeal an  applica- tion  was  filed by the respondent under Section  9  of  the Tamil  Nadu Tenants Protection Act, 1921, as amended by  Act XIX  of 1955 and Tamil Nadu Adaptation of Laws  Order,  1969 (hereinafter referred to as" the said Act").  The provisions of  the said Act were extended to Nagercoil town in  respect of  non- residential buildings by a government  order  which was  published in the Gazette on June 29, 1975. In the  said application  under Section 9 of the said Act the  respondent claimed that the appellant should be directed to sell out of the said property, the land adjoining the said building  and necessary  for the beneficial enjoyment of the  building  on such  terms and conditions as might be fixed by  the  Court. This application was resisted by the appellant. The District Munsif’s Court, Nagercoil, dismissed the said application of the  respondent  on the ground that a  previous  application with  the said prayer had been dismissed and hence, a  fresh application  for the same relief was barred. The  respondent preferred  an appeal to the SubCourt at Nagercoil which  was allowed  by  the learned Subordinate Judge. The  High  Court took the view that the decree in favour of the appellant was simple  decree of ejectment and did not take away the  right of  the  respondent to the building  or  superstructure.  It further  took  the view that the deposit of  the  amount  of costs of the superstructure by the appellant did not  affect the right of the respondent. The respondent had not  surren- dered the possession of the property despite the deposit  of amount  of compensation by the appellant and  the  appellant had  been  compelled to resort to the court.  The  execution proceedings were stopped. The High Court held that in  these circumstances, the respondent was entitled to make an appli- cation  under Section 9 of the said Act during the  pendency of the execution proceedings. The High Court also  dismissed the review petition preferred by the appellant.     Only two submissions were made before us by Mr. Krishna- murthy  Iyer, learned Counsel for the appellant.  The  first

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was  that  the respondent was not entitled to  exercise  his right to purchase the land immediately adjoining the  super- structure as might be required for the beneficial  enjoyment of the said structure as the said structure had not been put up by him.     As we have already pointed out earlier, the said  super- structure was purchased by the respondent from Swami Mudali- ar who had put up the said structure and was an assignee  of the  lease. The respondent himself obtained a lease  of  the land subsequently. We now come to the relevant provisions of the said Act. We propose to set out the effect of the  rele- vant sections so far as it is necessary for the purposes  of this case. Under clause 25 (ii) (a) of sub-section (4) of section 2, a person  referred to  in sub-clause (i) who continues in possession after  the determination  of his tenancy agreement is included  in  the term ’tenant’. The inclusive definition of the term ’tenant’ under  Section 2(4)(ii)(a) takes within its ambit  a  tenant whose tenancy has been determined but continues to remain in possession.  Section 3 of the said Act provides  that  every tenant as defined under the said Act shall, on ejectment, be entitled to be paid as compensation the value of any  build- ing  which  may have been erected by him or 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. Again, very briefly stated, Section 9 prescribes  that any  tenant who is entitled to compensation under Section  3 and against whom a suit in ejectment has been instituted  or proceedings under Section 41 of the Presidency Small  Causes Court Act, 1882, taken by the landlord may, within one month from the date of the Madras City Tenants’ Protection (Amend- ment) Act, 1955, coming into force, or the date with  effect from  which  this Act is extended to the municipal  town  or village  in which the land is-situated, 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, as set out  in the  said section. It may be mentioned that the  land  which the  tenant is entitled to require to be sold to him is  the minimum  land required for the beneficial enjoyment  of  the building.  Section 10 of the said Act makes  the  provisions under Section 9 applicable to cases where decree for  eject- ment  has not been executed before the date from  which  the provisions of the Act are extended to the area in  question. Thus,  although the decree for ejectment was passed  against the respondent, as he had continued to remain in  possession of the property and the decree had remained unexecuted  till the  date on which the provisions of the said Act  had  been extended to the area in question, the right of the  respond- ent under Section 9 was not lost.     As  far  as the superstructure is  concerned,  the  said superstructure  was put up by Swamy Mudaliar from  whom  the respondent had purchased it as pointed out earlier. Thus, as far as the building or superstructure is concerned, the High Court was/entitled to take the view that it was put up by  a predecessor in interest of the respondent. In these  circum- stances,  the respondent was certainly a tenant entitled  to compensation  under Section 3 of the said Act and was  enti- tled to make an application under Section 9 of the said Act. The  submissions of Mr. Krishnamurthy lyer to  the  contrary cannot be accepted. 26

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   It  was next submitted by Mr. Krishnamurthy  Iyer  that, as  averred  in  the special leave  petition,  although  the respondent  might  have been in possession at  the  relevant time yet he has lost possession thereafter and hence, he had lost  his  right  under Section 9. This fact  has  not  been pleaded  in  or considered in any of the  courts  below  and hence, we decline to permit Mr. Krishnamurthy Iyer to  raise this contention before us.     In the result, the appeal fails and is dismissed.  There will  be  no order as to costs. The application of  the  re- spondent  under Section 9 will be disposed of on merits  and according to law. The amount of compensation which will have to be paid by the respondent to the appellant will be deter- mined as provided under the said Act. N.P.V.                                    Appeal dismissed. 27