MOOLCHAND GUPTA (SINCE DECEASED), SURYAPRAKASH GUPTA AND OTHERS Vs. THE MADRA PIECEGOODS MERCHANTS CHARITABLE TRUST, BY ITS SECRETARY V.S. DEVANATHAN

JUDGEMENT

(1.) This is an appeal from the decree of Kunhamed Kutti, J. He held that the appellant was not entitled to the benefit of Madras Act 11 of 1964. The tenancy terminated on 31st October 1960. At that time, because the rent was Rs. 800/ - per month for the non -residential premises, the Act as it was then in force had no Application thereto. A suit in ejectment was instituted on 19th December 1969 which ended in a compromise decree, dated 31st January 1963. The decree stated that there would be a direction for eviction against the appellant subject to certain terms thereafter mentioned, to with, that the Respondent would be entitled to take possession of that petition of the premises in occupation of one Panchand and the Bullion Market Post Office immediately by executing the decree in so far as the said portion was concerned, and that the appellant should deliver possession of the rest of the portion in his occupation on or before 31st January 1964. There was a further term that the appellant should pay mesne profits at Rs. 1340/ - per month for the period from 1st November 1960 to 31st January 1963 and also should pay mesne profits at Rs. 800/ - per month for the period commencing from 1st February 1963, until he delivered possession of the portion of which he continued in occupation. If there was default in payment of a sum of Rs. 800/ - or the other sum per month, the respondent would be entitled to execute the decree immediately. Time was given for vacating, and this was extended eventually by a month. But before that event happened Madras Act 11 of 1964 intervened. Sec. 10 (1) as amended provided that a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of that Sec. or Ss.14 to 16. Two Bench decisions of this Court, in Sanjeevi Natdu v/s. Chittibabu Mudalior : (1953) I M.L.J. 260 and Thalai Vadivu Anandar v/s. Venugopala Chettiar, (1960) I M.L.J. 350 interpreting and applying this provision, held that the provision barred execution of a decree even in cases where it was by consent, or the tenant, at the time the decree was passed, had been holding over. The learned Judge, who disposed of the suit, felt that these decisions would be applicable to the benefit of the appellant but for the circumstance that there had been a surrender of part of the holding by the appellant's subtenant which as regards him must be deemed to be on his behalf, and thus there was a disruption of the entire holding. The learned Judge, therefore, fell that in the circumstances the appellant could not be deemed to be a person continuing in possession after the termination of the tenancy in his favour, and thus, a statutory tenant within the meaning of Sec. 2 (8) of Madras Act 18 or 1960. The expression "tenant" has been defined in the Act, and it includes a person continuing in possession after termination of a tenancy in his favour. It seems to us that the test to be applied to a determination as to the nature of the holding for the purposes of the statute is whether the person who was inducted into the premises as a tenant is continuing in possession after the termination of the tenancy in his favour. In the instant case, the tenancy had expired on 31st October, 1960; but he continued to be in possession until the compromise decree was passed and even thereafter. The learned Judge has nevertheless held that be would not be a tenant, because of the only ground that the sub -tenant of a portion from the appellant bad surrendered possession. But, as a matter of fact, there was no such surrender. That part of the building in the hands of the sub -tenant had been taken under a requisition by statutory force for the purpose of a post office. It follows, therefore, that so far as the appellant was concerned he was continuing in possession even after the termination of the lease and after a part of the building had been taken out of the hands of the sub -tenant by virtue of the requisition. That would not make any difference to the position that the appellant was still continuing in possession after the termination of the tenancy.

(2.) But, the contention pressed upon us for the respondent is that in the light of Ramamurty Subudhi v/s. Gopinath : A.I.R. 1968 S.C. 919, on the date the Amending Act came into force, the appellant was but a licensee and not a tenant. That decision was rendered with reference to the provisions of the Transfer of Property Act read with S.2(5) of the Orissa Rent Control Act. The definition of a tenant under S.2(5) of that Act was that he was a person by whom or on whose behalf rent was payable for any house and included every person who, from time to time, derived title under a tenant or a person continuing in possession after the termination of his tenancy otherwise than under the provisions of the Act and should include any person against whom a suit for ejectment was pending in a Court of competent jurisdiction, but not a person against whom a decree or order for eviction had been made by such a court. In that case, the court was dealing with a compromise in a suit for ejectment. A term of the compromise enabled the decree -bolder to execute the decree, if the judgment -debtor failed to pay the rent for any three consecutive months. The view, on a construction of the term, was that the tenancy having been terminated, the person in possession continued to do so as licensee. It seems to us that, although S.2(5) of the Orissa Rent Control Act stated that a person continuing in possession after the termination of his tenancy would also be a tenant, still the definition taken as a whole is not identical with the definition of 'tenant' in the Tamil Nadu Act. Also, the definition of 'tenant' in the Orissa Act would not include a person against whom a decree or order for eviction has been made by a court. But in the Tamil Nadu Act, such a person also would be included. The necessary implication is that, even though the tenancy has been terminated, if the person continues to be in possession, that would automatically bring him within the definition of tenant. It may be that on the date the Amending Act came into force, the appellant had ceased to be a tenant. It may also be that it was stipulated in the compromise that payment would amount to mesne profits. Even so, he is a person who continues to be in possession after the termination of the tenancy. The Sec. does not say that, even after the termination of the tenancy the person who continues to be in possession will only be a licensee, if a provision for payment of mesne profits is made. The inclusive part of the definition is clear that if after the termination of the tenancy the person continues to be in possession, he will be treated as a tenant in the statutory sense. We are, therefore, of the view that there is no justification for taking the instant case out of the ratio in Sanjeevi Naidu v/s. Chittibabu Mudaliar, (1953) 1 M.L.J. 260 and Thalai Vadivu Anandar v/s. Venugopala Chettiar : (1960) 1 M.L.J. 356. The appeal is accordingly allowed with costs.