V. NATESA NAICKER Vs. P. ARUMUGHA NAICKER

JUDGEMENT

(1.) In this second appeal by the Defendant in a suit for possession of property within the city, with damages for use and occupation is raised, a somewhat important problem as to the scope of Sec. 12 of the Madras City Tenants' Protection Act (III of 1922). There are a number of decisions on this Sec. but there is an area where its applicability, it is stated, calls for careful consideration.

(2.) The facts of the case which at this stage are beyond controversy may first be set out. The Defendant became a tenant of vacant land of an extent of 1,200 square feet shown as ABFE in the plaint plan some years prior to 1955 under the then owner Krishna -swami Pillai at a monthly rent of Rs. 3. He put up a hut thereon and was in occupation of it, when Madras Act XIX of 1955 came into force extending the benefit of Madras Act III of 1922 also to tenancies created prior to the 10th of September 1955. There is no written document to evidence this tenancy or its terms and the Court below (lower appellate Court) has concluded that the tenancy under which the Defendant entered on the land and put up his hut was a tenancy from month to month applying the presumption under Sec. 106 of the Transfer of Property Act, the rent agreed being Rs. 3 per month. While he was thus in occupation of the land with his own superstructure thereon, a registered lease deed came into existence between him and his then landlord Krishnaswami Pillai on 25th May 1956. This deed, while continuing the same rent, provided that the tenancy would be for a period of three years. It is stated in the document that the three year period was granted at the request of the tenant. The rent was made payable by the fifth of every month, arrears to carry interest. There was prohibition against subletting of the property, and provision for eviction of the tenant without reference to the period of tenancy fixed, if the rent should be left in arrears for three successive months or there should be default in the payment of rent under the current laws. Despite the provision for a tenancy of three years, the deed provided that on a month's prior notice, the tenancy could be terminated on either side, by the landlord if he found subletting or if he or his heirs required the land, and by the tenant if he did not require the land. On the termination of the tenancy, the tenant had to deliver vacant possession of the site and on his failure to do so, the landlord could claim damages for use and occupation for every day of continuance in possession by the tenant. The lease contained provisions against keeping cattle on the land. If any corporation taxes were payable for the property, the tenant should pay them. The present Plaintiff became the owner of the disputed site on his purchase from Krishnaswami Pillai, the original landlord of the Defendant, of an extent of 3,600 square feet under the registered sale deed, exhibit A -2 on 7th February 1958. There is evidence that the Defendant attorned to the Plaintiff after his purchase.

(3.) The suit out of which this second appeal arises, was filed by the Plaintiff for possession of the site on default of the tenant in the regular payment of rent after duly terminating the tenancy in terms of the . lease deed. The Plaintiff charged the Defendant with encroaching on a further extent of 600 square feet but as Defendant disclaimed any encroachment, the dispute centered round only the extent of 1,200 square feet which the Defendant had taken up on lease. In defence to the action for eviction, it was contended that the Defendant was a tenant entitled to the protection of the City Tenants Protection Act hereinafter referred to as the Act and that the registered rental agreement, dated 25th May 1956, did not grant a fresh lease but was only a re -affirmation of the then existing tenancy under the Act which had commenced prior to September 1955. The Plaintiff put forward a case that the Defendant's occupation and putting up of the hut was for the first time under exhibit A -1. This has been found against by both the Courts below on substantial evidence. It has been found by both the Courts that the Defendant's tenancy of the land had commenced prior to the 10th of September 1955 and that prior to that date, he had erected the hut in question. There was no application by the Defendant under Sec. 9 of the Act for a direction to the landlord to sell the land to him, the Defendant contending himself with pleading that there had been no proper and valid termination of the tenancy under Sec. 11 of the Act. If the Act applied, the suit for ejectment must be preceded by a notice in conformity with the provisions of Sec. 11 of the Act. The notice must be given three months in advance and the demand for surrender of the land and building must be accompanied by an offer of compensation for the building and trees if any, setting out the amount of compensation. The trial Court accepted the defence under Sec. 11 of the Act and so while decreeing the suit for possession in respect of 600 square feet over which no rights were claimed, rejected the Plaintiff's claim for possession of the 1,200 square feet now in dispute. In respect of the tenancy, the Plaintiff was given a decree only for the arrears of rent due. According to the trial Court, there was no new tenancy under exhibit A -1 to deprive the tenant of the protection of the Act.