V SANJEEVARAYA MUDALIAR Vs. N A RAGHAVACHARI

JUDGEMENT

(1.) The respondent is the owner of premises No.8, Brahmin Street, Saidapet, Madras. By a registered lease dated November 21, 1952 he let to the appellant the backyard of the premises for a term of 5 years. The backyard consisted of vacant land. The lease deed authorised the appellant to use land for boiling and drying paddy, to use the gate in the western compound wall for ingress and egress, to erect an opening in the wall for bringing in and taking out the paddy, and to erect a temporary shed or keeping the paddy on condition that while vacating the land he would dismantle the same. The deed specifically provided that the appellant "should not erect any kind of permanent super-structures on the said vacant site so as to entitle him to claim in future the value thereof," except such facilities as were necessary for drying paddy at his own expense. In contravention of this stipulation and without any authority from the respondent, the appellant erected permanent super-structures on the land. On the expiry of the lease the appellant refused to vacate the land. On March 12, 1959 the respondent filed a suit for his eviction. The appellant claimed protection under the Madras City Tenants Protection Act, 1921 (Act III of 1922). Before filing his written statement on February 15, 1960, he filed an application under Section 9 of the Act asking for an order that the respondent be directed to sell the land for a price to be fixed by the Court. The trial Court decreed the suit on August 25, 1960. The first appellate Court reversed the decree and dismissed the suit. The High Court on second appeal restored the decree of the trial Court. The present appeal has been filed after obtaining special leave.

(2.) The Courts below concurrently found that the appellant had constructed permanent super-structures on the vacant land after November 21, 1952 without any authority from the respondent and in contravention of the stipulation in the registered lease. This finding is not challenged before us. In view of the fact that the construction was in contravention of the stipulation in the lease, the trial Court and the High Court held that the appellant was not entitled to the protection of S. 9 of the Act; but the first appellate Court held that the appellant was nevertheless entitled to such protection. The trial Court and the High Court held that the vacant site in the backyard being appurtenant to a house was building and not land, and the appellant not being a tenant of land was not protected by the Act; but the first appellate Court held that the vacant site was land and the tenancy was within the purview of the Act. The appellant challenges the findings of the High Court on both points. The following two questions arise for determination in this appeal:(1) Is the tenant of a vacant site in the backyard of a residential house a tenant of and within the purview of the Madras City Tenants Protection Act, 1921 (2) Having regard to the proviso to Section 12 is such a tenant entitled to the protection of Ss. 3 and 9 of the Act in a case where he has erected buildings on the land in contravention of an express stipulation in a registered lease

(3.) To appreciate the points arising in this case it is necessary to refer to the relevant provisions of the Madras City Tenants Protection Act,1921. The Act was passed with a view to give protection to tenants who in certain areas had constructed buildings on others 'lands in the hope that they would not be evicted so long as they paid fair rent for the land. The Act was amended from time to time. It extends to the city of Madras and other notified areas and applies only to tenancies of land created before certain specified dates. (S. 1). It is common case before us that the Act extends to the area where the disputed land is situated. Section 2 is the definition section. ''Building" is defined in S. 2 (1) to include any building, hut or other structure whether of masonry, bricks, wood, metal or any other material whatsoever used (i) for residential or non-residential purposes in certain specified areas and (ii) for residential purposes only; in any other area and includes the appurtenances thereto. It may be mentioned that "building" was not defined to include the appurtenances thereto in any area under Section 2 (1) before its amendment on July 27, 1960 by Madras Act XIII of 1960. "Land" does not include buildings, [S. 2 (2) ]. "Landlord" means any person owning any land, [S. 2 (3) ]. "Tenant" in relation to any and means a person liable to pay rent in respect of such land under a tenancy express or implied and includes any such person who continues in possession of the land after the determination of the tenancy agreement. [S. 2 (4) ]. Section 3 provides at every tenant shall on ejectment be entitled to be paid as compensation the value of any building, which may have been erected by him and for which compensation has not already been paid. Section 9 (1) provides that a tenant who is entitled to compensation under Section 3 and against whom a suit in ejectment has been instituted may within the prescribed time apply to the Court for an order that the landlord should be directed to sell the whole or part of the land for a price to be fixed by the Court. Section 10 provides that Section 9 shall apply to suits in ejectment which are pending before certain specified dates. Section 11 requires 3 months notice in writing before the institution of a suit in ejectment against a tenant. Section 12 provides that "nothing in any contract made by a tenant shall take away or limit his rights under this Act, provided that nothing herein contained shall affect any stipulations made by the tenant in writing registered as to the erection of buildings, in so far as they relate to buildings erected after the date of the contract". Section 18 provides that in its application to the city of Madras and to other notified areas the Transfer of Property Act shall to the extent necessary to live effect to the provisions of the Act be deemed to have been repealed or modified.