NATESA MUDALIAR Vs. SRI BAVANARAYANASWAMY KOIL, PILLAIYAR KOIL BHAJANA MATAM DEVASTHANAM BY MANAGING TRUSTEE SRI K.K. SENROVA CHETTY

JUDGEMENT

(1.) This revision has been preferred by the Defendant in suit in ejectment, whose application under Sec. 9(1) of the Madras City Tenants' Protection Act, 1921 (III of 1922) (hereinafter referred to as the Act) has been dismissed by the learned District Judge of Salem on appeal.

(2.) The Plaintiff in the suit is a Devasthanam represented by its managing trustee. The trustee had leased the property to the Defendant under a registered instrument for a period of five years on 2nd August 1950. The Defendant (Petitioner), the tenant, had been authorised to put up structures on the property and live therein during the lease period. After the expiry of the lease, the suit was instituted, and, while the suit was pending, the Act was extended to Salem on 29th January 1958, and thereupon the present Petitioner came out with the application under Sec. 9(1) of the Act and that has given rise to the present proceeding. The application of the Petitioner was dismissed in the first instance by the trial Court on an erroneous view as to the scope of Sec. 12 of the Act, and, on appeal therefrom by the Petitioner. Appeal Suit No. 294 of 1959 on the file of the District Court, Salem, the order of the trial Court rejecting the Petitioner's application under Sec. 9(1) was set aside and the matter remanded to the learned District Munsif for disposal of the matter in accordance with the provisions of Sec. 9 of the Act, the learned District Munsif to fix the price of the vacant site. This order had been passed on 27th of February 1960 and was not the subject of any revision or appeal. Pending the remand, the Act was amended by Madras Act XIII of 1960 on 27th July 1960. Under the amendment, the Court, on an application under Sec. 9(1) of the Act, has first to decide the minimum extent of the land which may be necessary for the convenient enjoyment of the tenant. There was a change also in the manner of valuation of the site. Prior to the amendment of 1960, the value of the site should be determined at the lowest value within seven years next preceding the date of the order. But under the amended provision the value should be the average for three years immediately before the date of the order. Based on the provisions of the amendment, additional and reply statements were filed by the Plaintiff and Defendant, the Plaintiff contending that only the minimum extent of land necessary for the convenient enjoyment by the tenant should be directed to be sold. A point was also raised for the Plaintiff that as trustee the Plaintiff had no right to convey or sell the suit land, and that, therefore, Sec. 9 of the Act would not be applicable. The learned District Munsif held that the suit site was not attached to the temple or used for any purpose of the temple and as such inalienable property. It was not property which the trustee had no power to alienate at all even for purposes of necessity or benefit. The District Munsif overruled the contention on behalf of the tenant that under the terms of the remand order the Court was bound to direct conveyance of the entire site leased and could not go behind it and apply the provisions of the amended Act. He found that an extent of land of an area of 2,100 sq. feet need alone be conveyed by the Plaintiff to the Defendant, and, as regards its price, he fixed at rupee one per sq. foot. Appropriate orders were passed on these findings directing deposit by the tenant of a sum of Rs. 2,100 into Court within a period of four months. Against this order appeals were preferred both by the Plaintiff and Defendant -Appeal Suit No. 155 of 1961 by the Plaintiff and Appeal Suit No. 167 of 1951 by the tenant. The principal contention of the Plaintiff and it found acceptance at the hands of the learned District Judge -was that the land in question was not one coming within the meaning of Sec. 9, as the trustee had no power to convey or sell the land leased to the tenant except for necessity or benefit. Incidentally the Plaintiff also claimed a higher price than that fixed by the learned District Munsif and wanted also the extent of the land to be conveyed reduced. The tenant, by his appeal, contended that the rest of the site which had originally been leased should also be directed to be conveyed to him. He also contended that the price fixed was high. The learned District Judge, while holding that Sec. 9 would not apply to the suit land and that, therefore, the tenant cannot have the benefit of the option for purchase provided therein, also held that the tenant, if he was entitled to a sale could have only the extent of 2,100 sq. feet, as decided by the trial Court. As regards the price, the learned District Judge, on examination of the evidence, found that the price could very well and justly be fixed at Rs. 2 per square foot. A Commissioner was appointed by the lower Court to inspect the land and fix the needed extent. He had prepared a plan and submitted his report with reference to the plan. Before the learned District Judge, again it was contended for the tenant that the Court had no jurisdiction to go behind the remand order and reduce the extent of the land that should be conveyed. Also the applicability of the amended provision of the Act was questioned. The learned District Judge, however, while giving his findings confirming the extent of the land that would have to be conveyed and fixing the price which should be paid therefore at Rs. 2 per sq. foot, having found that Sec. 9 of the Act was not applicable, dismissed the petition filed under Sec. 9 of the Act by the tenant and allowed the appeal of the Plaintiff.

(3.) In the present revision by the tenant, learned Counsel for the Petitioner raises three points. It is contended that the learned District Judge erred in his view that Sec. 9 of the Act cannot apply to the land where the trustee's power of alienation is limited to purposes of necessity or benefit. Secondly it is submitted that it was not open to the Plaintiff to raise this point, he being precluded by the earlier order of remand from challenging the applicability of Sec. 9 of the Act to the land in question. It is also argued that, in any event, no appeal was competent at the instance of the Plaintiff at that stage of the proceedings. Thirdly, it is argued that the amendment in 1960 of the Act cannot have retrospective effect and affect pending proceedings.