VENKATARAMA LYER Vs. THIRUVIDAMARUDUR SRI MANALINGASWAMI DEVASTANAM

JUDGEMENT

(1.) DEFENDANTS are the appellants in both these appeals. The plaintiff is the thiruvidaimarudur Sri Mahalingaswami Devastanam represented by its hereditary trustees. The plaintiff is the owner of the land bearing survey No. 197/4 measuring 2 acres 9 cents situate in Railadi Street, Thiruvidaimaruthur. Out of this one acre of land was leased by the plaintiff to a tenant who had put up some building for running a rice mill there. The building put up by the tenant was later on purchased by Sankara Iyer, the first defendant. Under Ex. A. 1, dated 27-6-1951, the said sankara Iyer became lessee under the plaintiff. The term fixed in the lease was three years. It was agreed that on the expiry of the lease period the tenant should with all superstructures standing thereon on receiving compensation for value of the superstructures. The lease period was to expire on 26-6-1954. On 10-4-1954, the plaintiff issued a lawyer's notice calling upon the tenant Sankara Iyer to surrender possession of the land and building on the expiry of the lease period and offered to pay the compensation for the building. Though the first defendant received a notice, he did not comply with the demand. Thereupon the plaintiff filed a suit for recovery of possession with past and future mesne profits. The plaint was originally presented on 25-8-1955 in the District Munsif Court, Valaigaiman. On objection being taken regarding the valuation of the suit and the jurisdiction of the court, the plaint was directed to be returned by the District Munsif Court for presenting the same in proper court. Thereafter the plaintiff presented the plaint on 10-10-1957 in the Sub-Court Kumbakonam. In the meanwhile, on 14-12-1955 the Madras City Tenants Protection (Amendment) Act, (Madras Act 19 of 1955) came into force and by G. O. Ms. 2516, dated 18-6-1957 the provisions of the Act was extend to Thiruvidaimarudur area with effect from 26-6-1957. Taking advantage of these provisions, the first defendant filed a written statement claiming protection under the Madras City tenants Protection Act, as amended by Madras Act 19 of 1955. He also claimed that the notice issued before the suit did not satisfy the requirement of S. 11 of the Act and consequently the suit was liable to be dismissed. He also claimed right of permanent occupancy, among other defences. The first defendant filed O. P. No. 56 of 1957 on the file of the Subordinate Judge, Kumbakonam, under Section 9 of the Madras City Tenants Protection Act, for a direction to the plaintiff to sell the land to the first defendant. By his judgment and decree dated 30-7-1958, the learned Subordinate Judge held that the first defendant was entitled to the protection under the Madras City Tenants Protection Act, 1921, as amended by madras Act 19 of 1955, and that the suit was liable to be dismissed as the notice issued by the plaintiff did not comply with the conditions as laid down in S. 11 of the Act. He also fixed the value of the superstructure at Rs. 18,000, but dismissed the suit. In O. P. No. 56 of 1957 he passed an order directing the plaintiff to sell the site to the first defendant and fixed the value of the land at Rs. 2400. The plaintiff filed A. S. 349 of 1958 against the judgment and decree in the suit, and cr. P. 1626 of 1958 against the order in O. P. 56 of 1957. When the appeal and the Civil Revision Petition were pending, the Madras City Tenants Protection amendment Act (Madras Act 15 of 1960) came into force which restricted the application of the Act, among other things, to residential buildings alone in areas other than the city of Madras and the Municipal towns of Coimbatore, Madurai, salem and Tiruchirapalli. Pending the appeal, the first defendant died and his legal representatives had been brought on record as respondents 2 to 12 in the case. By a common judgment dated 7-12-1962 a Division Bench of this court held that the first defendant was not a tenant within the definition of 'tenant' in Section 2 (4)of the Act, that the rights of the parties in regard to the superstructure were crystallised on determination of the tenancy at the time when the Act had not been extended to Thiruvidaimarudur area and that, therefore, the first defendant could not invoke any of the provisions of the Act either for purchasing the site from the landlord or for non-suiting the landlord by relying upon Section 11. In this view, the Division Bench set aside the judgment and decrees of the learned Subordinate Judge; but as the court found that the finding of the learned subordinate Judge as to the value of the superstructure was unsatisfactory, they remanded the suit for the purpose of determining the value of the superstructure. The Division Bench also directed the lower court to pass a decree in favour of the plaintiff for recovery of possession and mesne profits after ascertaining the value of the superstructure for which an order for payment in favour of the first defendant should be made. The Civil Revision Petition was also allowed and the order of the learned Subordinate Judge directing the sale of the land was set aside.

(2.) AFTER the remand, the learned Subordinate Judge allowed the parties to adduce additional evidence and fixed the value of the superstructure at Rs. 24207-54 and by a decree dated 14-2-1964 decreed the suit of the plaintiff for compensation and directed the plaintiff to pay defendants 2 to 12 (L. Rs. of the first defendant) a sum of Rs. 24207-54, being the value of the improvements. By the same judgment and decree the learned Subordinate Judge also directed the defendants to pay Rs. 982-50 towards past mesne profits and directed the future mesne profits to be determined in separate proceedings under Order 20, Rule 12, C. P. C. In pursuance of this decree, the plaintiff deposited a sum of Rs. 24207-54 on 1-41964. The defendants presented the above appeal (A. S. 316 of 1964) on 6-41964 against the judgment and decree of the lower court. Pending the appeal, the madras City Tenants Protection (Amendment) Act, Act 16 of 1964, came into force on 1-9-1964. The appellants have filed C. M. P. 8917 of 1964 for raising additional grounds seeking certain rights under this amended Act (Madras Act 16 of 1964 ).

(3.) IN pursuance of the direction for determination of the mesne profits under order 20, Rule 12, proceedings were taken and ultimately the court below determined the mesne profits payable by the defendants at Rs. 280 per month and directed that this amount be paid from 10-10-1957, the date of plaint. The lower court also directed that the plaintiff is liable to pay interest at 6 per cent per annum on the sum of Rs. 24207-54 from 26-6-1954 till 1-4-1964, the date of deposit. The defendant have filed. A. S. 350 of 1965 against this order under order 20, Rule 12. In both these appeals the plaintiff has filed cross-objections contending that the value fixed for the superstructure is very high, that the plaintiff is not liable to pay interest and that the plaintiff is also entitled to get interest on the mesne profits payable. Thiru Ramamurthi Iyer, the learned counsel for the appellants, contend that by reason of Madras Act 16 of 1964, which has amended the City Tenants Protection act, the suit filed by the plaintiff has abated in view of Section 9 of that Act. This submission of the learned counsel was on the ground that the Act was applicable to the instant case. But, as we have already seen in A. S. 349 of 1958 and Cr. P. 1626 of 1958, a Division Bench has already held that the first defendant was not a tenant within the meaning of the Act and that the rights of the parties in regard to the superstructure were crystallised on the determination of the tenancy at the time when the Act had not been extended to Thiruvidaimarudur area and that, therefore, the first defendant could not invoke any of the provisions of the Act either for purchasing the site from the landlord or for non-suiting the landlord by relying upon Section 11. This finding had become final. If the first defendant was aggrieved with this finding, he could have preferred an appeal to the Supreme court either under Art, 133 or under Art. 136 of the Constitution. The learned counsel for the appellants contended that since the earlier judgment in A. S. 349 of 1958 remanded the matter to the trial court, no appeal could have been preferred under Art. 133 and that, therefore, he is entitled to canvass the finding. The decision in that case is, in our opinion, a 'final order' and the first defendant could have filed an appeal to the Supreme Court under Art. 133. In any case, even if no appeal could have been preferred under Art. 133 he could have filed an appeal under Art. 133 he could have filed an appeal under Art. 136 of the Constitution if he was aggrieved by the order of this court. As no appeal has been preferred that order of the High Court had become final and it was not liable to be canvassed at a subsequent stage of the same proceedings.