T S DEVARAJA GRAMANI Vs. MURUGESAN

JUDGEMENT

(1.) THIS revision is directed against the order of the appellate court allowing an application under Section 9 of the Madras City Tenants Protection Act 1921, hereinafter referred to as the Act. The landlord who is the petitioner before me instituted a proceeding in ejectment under Section 41 of the Presidency Small cause Courts Act, impleading therein the present respondent who claims to be a tenant under the said Act and one Thulakanathammal as defendants. The respondent was impleaded as the second defendant in the suit as a person unauthorisedly seeking to put up a superstructure on the property. Thulukanathammal was shown as the first defendant and impleaded as a tenant of the land under the plaintiff. The plaint proceeded on the allegations that thulukanathammal never put up superstructure thereon and than in January 1961, the present respondent came on the land as having been inducted thereon by her and started putting up a superstructure.

(2.) IN the enquiry that followed the application of the present respondent for relief under Section 9 of the Act, it has now been found that these averments of the plaintiff are false. It is brought out in the evidence that the superstructure has been there from prior to September 1956 when the City Tenants Protection Act was amended. Thulukanathammal was originally a tenant under the plaintiff, the leased deed showing a tenancy being Ex. B. 1 dated 12-9-1953 itself from the said thulakanathammal. The appellate authority examining the evidence has come to the conclusion that it had been established beyond doubt that the respondent was residing in the hut on the suit plot prior to 1955 from about the time of his purchase in 1953 and that he had been paying rent to the plaintiff. The conclusion of the appellate Court is, that the respondent has been a tenant under the plaintiff from about 1953 and was therefore entitled to relief under the Act. On this finding, the matter has been remanded to the trial court for further steps and proceedings under the Madras City Tenants Protection Act 1921, as subsequently amended. The finding that the respondent is a tenant and that the structure has been on the land even long prior to 1955 being findings of facts are naturally not open to challenge.

(3.) LEARNED counsel, Mr. V. C. Veeraraghavan, appearing for the plaintiff-landlord attacks the order of the court below on a new basis not put forward in the courts bells which has some jurisdictional favour in it. The learned counsel contends that as the respondent purchased only the superstructure from Thulukanathammal, and had not got an assignment of the leasehold right from her, he cannot claim any benefit under the Act. The argument is elaborated thus: Under the Act only a tenant is entitled to the benefits under the Act. Assuming that subsequent to his purchase of the superstructure, the respondent attorned to the landlord and he was treated as a tenant when this tenancy of the respondent came into existence, there was already a building on the land and the land would therefore be a part of the building. The tenancy of the respondent, in the circumstances, would not be a tenancy of the land and therefore he can not claim to be a tenant of the "land" under the Act. Learned counsel would contend that for a succeeding tenant to be entitled to benefits under the Act, he muse be an assignee not ant, but must be an assignee of the leasehold interest also. It is contended that in such a case only, it could be held that a relationship of landlord and tenant had continued unbroken. It is contended that even if one tenant following another in occupation without break but without the tenancy itself being transmitted the change would destroys the tenancy of the land sufficiently to make the Act inapplicable. This contention meets only a case where the prior tenant leaves the structure whole to the next tenant. But I suppose it will yield to a case where the subsequent tenant has dismantled the hut he had purchased and closely following on the heels of his predecessor re-erects it. It must be noted that no claim is put forward that in the process of one tenant succeeding another without an assignment of the tenancy, the landlord has become the owner of the superstructure despite its transfer between the tenants.