PAMIDI VEDAVALLI THAYARAMMAL Vs. JUNUS CHETTIAR

JUDGEMENT

(1.) This is an appeal from the decree of the City Civil Judge, Madras, dated 30 August 1934 in O.S. No. 220 of 1933 on his file, a suit for ejecting a tenant and for recovering arrears of rent due by him. The plaintiff's case was that the defendant was a tenant of hers in occupation of a plot of land as well as a tiled shed belonging to her as a monthly tenant bound to pay a rent of Rs. 15 a month. The defendant claimed that the buildings on the suit land were his, that he is entitled to protection under the Madras City Tenants Protection Act, that the rent payable was only Rs. 4 a month and that all rent up to October 1932 had been paid. A number of issues were framed by the learned City Civil Judge but in his judgment he does not record findings on all the issues. He decided practically only two questions viz., (1) whether the defendant is entitled to protection under the Madras City Tenants Protection Act, and if so whether the suit for ejectment must be dismissed in the absence of notice required by the Act and (2) the arrears of rent payable. He found the first question in the affirmative and dismissed the suit for ejectment. As regards the second point he passed a decree in favour of the plaintiff for Rs. 150-8-0 as arrears of rent. The present appeal is by the plaintiff.

(2.) The main question argued in this appeal is that the finding of the learned City Civil Judge that the defendant is entitled to the protection of the Act is wrong. It has also been contended that the learned City Civil Judge was wrong in assuming that the defendant was the present owner of the buildings on the suit land and that in the absence of any evidence to show that he is the owner it should have been found that he was not entitled to the benefits conferred by the Act. Unfortunately the case was decided by the lower Court on documentary evidence alone and no oral evidence was let in by either side, and the documentary evidence does not at all make it clear that the defendant is the owner of the buildings in question. There is no doubt a document of the year 1924, viz, Ex. 3, which shows that he was in occupation of the suit land at the time, but that document does not say that he was the owner of the superstructures on the land. The document is moreover inconsistent with a subsequent document of 1929 executed by the tenant Papiah Chettiar, i.e. the brother of the defendant, which proceeds on the basis that Papiah Chettiar was in enjoyment of the superstructure. The point must therefore be decided on the basis that the defendant has not proved he is the owner of the superstructure. This question was the subject matter of issue 2 which runs as follows: "Is the defendant the absolute owner of the shed and the other buildings on the land as alleged in para. 2 of the written statement?" The burden of proving this issue lay on the defendant and he has not discharged that burden.

(3.) There is no finding on the point by the learned Judge in the Court below but the evidence on record does not justify a finding in favour of the defendant on this point. If therefore it were necessary to decide the question of the defendant's ownership of the buildings before it could be decided whether the defendant was entitled to notice as required by Section 11, Madras City Tenants Protection Act, that question "would have to be remitted to the Court below for a finding after taking such evidence as might be adduced by the parties. I am however of opinion that it is not necessary to take this course for even on the assumption that the superstructures have not been proved to belong to the defendant the notice required by Section 11 of the Act was required in the present case and the claim for ejectment must fail for want of such notice. The question as to the ownership of the superstructure would have to be decided no doubt if the question for decision was whether the defendant was entitled to compensation in respect of it or whether he was entitled to make an application under Section 9 of the Act offering to purchase the land from the landlord. That is not the case here. The point to be decided is whether the notice required by Section 11 of the Act was required in this case to support the claim for ejectment. That will depend upon the question whether the defendant is a tenant within the meaning of the Act. That word is defined in the Act itself as follows: "Tenant" means tenant of land liable to pay rent on it, every other person deriving title from him, and includes persons who continue in possession after the termination of the tenancy. The definition does not require that the person who is a tenant under the Act should at all times continue to be the owner of the superstructure or building thereon, though the Act itself applies only to tenancies created before the Act in respect of land on which buildings were in existence.