# PALANI AMMAL v. VISWANATHA CHETTIAR (DEAD) AND ORS

- **Citation:** [1998] 2 S.C.R. 212
- **Court:** Supreme Court of India
- **Decided:** 1998-03-06
- **Bench:** S.B. Majumdar, M. Jagannadha Rao
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/palani-ammal-v-viswanatha-chettiar-dead-and-ors-16178
- **Pages:** 33

## Headnote

Rent Control and Eviction :
Madras City Tenants Protection Act, 1921-Sections 2(4)(ii)(a), 9 &
C 13-Protection to statutory tenants- Tenant continuing in possession of
open land after determination of the tenancy agreement-Section 9 applies
only where landlord-tenant-relationship exists-Denial of title of landlord
by tenant-Mode of determination of tenancy as envisaged by Section 111
(g) of Transfer of Property Act attracted-Is foreign to scope of definition of
D 'tenant' under section 2(4)-Section 9 becomes inoperative-Section lll(g)
must be deemed to be repealed or modified by express provisions of sections
9 and 13-Section 112 which refers to section 111 (g) also not attractedHeld, determination of the tenancy agreement envisaged by Section 2(4)(ii)(a)
does not contemplate determination of lease by forfeiture under section
111 (g) of T.P. Act-Tenant incurring forfeiture of tenancy by denying title of
E landlord is not entitled to protection under the Act-Transfer of Property Act,
1882--Section 111 (g).
F
Section 1 I-Notice preceding ejectment suit by landlord-Tenant
denying title of landlord-Notice required only when tenant accepts him as
landlord-Held, section 11 not attracted.
Section 9-Application-Maintainability of-Compulsory purchase of
/and--Application by tenant moved against stranger and not against real
owner-landlord-Held, application incompetent and liable to be dismissed.
Section 2(1)-Building -Lease of open land with granite foundation
G in a part of the land-Tenant put up structure over foundation and use it/or
non-residential purpose of running fuel depot-Held, granite foundation
would not attract definition of building under section 2(1) and lease cannot
be said to be partly of open land and partly of a building.
Section 3-Applicability-Grant of compensation in lieu of the right to
H purchase under Section 9-Tenant de.nying landlord's title to the land212
PALANI AMMAL v. V. CHETTIAR
213
Section 3 applies only if it is shows that landlord-tenant relationship exists A
between the parties-Held, tenant not entitled to compensation under section
3 of the Act.
Original landlords-respondent no. I and 2 leased out an open piece of
land with a granite stone foundation in a part of the land, to the appellanttenants by a lease deed. The appellant put up a structure over the foundation B
and used it for the purpose of running a fuel depot and remained in possession
of the suit land since then. After a period of 13 years the original landlords
sold the suit land to respondent No. 3 and tried to forcibly evict the appellant
from the land. Appellant filed a civil suit for permanent injunction restraining
the respondents from forcibly taking away the possession of the suit property C
from her. Respondents filed a suit for eviction of the appellant in the same
civil court. Appellant also filed an application under Section 9 of the Madras
City Tenant Protection Act, 1921 for purchase of the suit land. The Trial
Judge clubbing the matters decreed the suit of the respondents, and dismissed
the suit and application of the appellant. Aggrieved by the order appellant
filed two first appeals and miscellaneous application. The Appellate Court D
allowed the application and the appeals. Against this the respondents filed
new appeals and a revision application in High Court. The High Court
agreeing with the findings of the trial judge held that sale deed executed by
respondent Nos. I& 2 in favour of respondent No. 3 was valid and as the
appellant had denied the title of respondent No. 3 application under section E
9 of the Protection Act was not maintainable and that there was no occasion
for the respondent No. 3 to serve any notice to the appellant under section
If of the Act. On 5uch a stand taken by the appellant the entire Protection
Act was not available. Hence this appeal.
Dismissing these appeals, this Court
HELD : I.I. On the express language of Sectio!l 2(4)(ii)(a) of the
Madras City Tenants Protection Act, the determination

## Text

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A
PALANI AMMAL
v.
VISWANATHA CHETTIAR (DEAD) AND ORS.
MARCH 6, 1998
B
[S.B. MAJUMDAR AND M. JAGANNADHA RAO, JJ.]
Rent Control and Eviction :
Madras City Tenants Protection Act, 1921-Sections 2(4)(ii)(a), 9 &
C 13-Protection to statutory tenants- Tenant continuing in possession of
open land after determination of the tenancy agreement-Section 9 applies
only where landlord-tenant-relationship exists-Denial of title of landlord
by tenant-Mode of determination of tenancy as envisaged by Section 111
(g) of Transfer of Property Act attracted-Is foreign to scope of definition of
D 'tenant' under section 2(4)-Section 9 becomes inoperative-Section lll(g)
must be deemed to be repealed or modified by express provisions of sections
9 and 13-Section 112 which refers to section 111 (g) also not attractedHeld, determination of the tenancy agreement envisaged by Section 2(4)(ii)(a)
does not contemplate determination of lease by forfeiture under section
111 (g) of T.P. Act-Tenant incurring forfeiture of tenancy by denying title of
E landlord is not entitled to protection under the Act-Transfer of Property Act,
1882--Section 111 (g).
F
Section 1 I-Notice preceding ejectment suit by landlord-Tenant
denying title of landlord-Notice required only when tenant accepts him as
landlord-Held, section 11 not attracted.
Section 9-Application-Maintainability of-Compulsory purchase of
/and--Application by tenant moved against stranger and not against real
owner-landlord-Held, application incompetent and liable to be dismissed.
Section 2(1)-Building -Lease of open land with granite foundation
G in a part of the land-Tenant put up structure over foundation and use it/or
non-residential purpose of running fuel depot-Held, granite foundation
would not attract definition of building under section 2(1) and lease cannot
be said to be partly of open land and partly of a building.
Section 3-Applicability-Grant of compensation in lieu of the right to
H purchase under Section 9-Tenant de.nying landlord's title to the land212
PALANI AMMAL v. V. CHETTIAR
213
Section 3 applies only if it is shows that landlord-tenant relationship exists A
between the parties-Held, tenant not entitled to compensation under section
3 of the Act.
Original landlords-respondent no. I and 2 leased out an open piece of
land with a granite stone foundation in a part of the land, to the appellanttenants by a lease deed. The appellant put up a structure over the foundation B
and used it for the purpose of running a fuel depot and remained in possession
of the suit land since then. After a period of 13 years the original landlords
sold the suit land to respondent No. 3 and tried to forcibly evict the appellant
from the land. Appellant filed a civil suit for permanent injunction restraining
the respondents from forcibly taking away the possession of the suit property C
from her. Respondents filed a suit for eviction of the appellant in the same
civil court. Appellant also filed an application under Section 9 of the Madras
City Tenant Protection Act, 1921 for purchase of the suit land. The Trial
Judge clubbing the matters decreed the suit of the respondents, and dismissed
the suit and application of the appellant. Aggrieved by the order appellant
filed two first appeals and miscellaneous application. The Appellate Court D
allowed the application and the appeals. Against this the respondents filed
new appeals and a revision application in High Court. The High Court
agreeing with the findings of the trial judge held that sale deed executed by
respondent Nos. I& 2 in favour of respondent No. 3 was valid and as the
appellant had denied the title of respondent No. 3 application under section E
9 of the Protection Act was not maintainable and that there was no occasion
for the respondent No. 3 to serve any notice to the appellant under section
If of the Act. On 5uch a stand taken by the appellant the entire Protection
Act was not available. Hence this appeal.
Dismissing these appeals, this Court
HELD : I.I. On the express language of Sectio!l 2(4)(ii)(a) of the
Madras City Tenants Protection Act, the determination of tenancy agreement
would be such determination as is referable to the unitateral act of omission
F
on the part of the landlord which results in determination of the lease
agreement for no fault of the tenant. Under these circumstances the statutory G
benefit would stand guaranteed by the legislative scheme envisaged by the
Protection Act.to the contractual tenants and/or to the statutory tenants who
by themselves have behaved as tenants and who on determination of contractual
tenancy continue to remain in possession. (229-F-G]
1.2. The two basic statutory benefits made available to the tenants are H
214
SUPREME COURT REPORTS
[1998] 2 S.C.R.
A that they can either enforce their statutory rights of pre-emption of purchasing
the land below their structure or can enforce the statutory right of
compensation to be paid to them in connection with the structure which may
travel with the deemed land of the decree-holder landlord in case the suit
gets decreed against them. (229-C-E(
B
1.3. The landlord's act or violation which results into determination
of lease can be described two modes (a) and (h) of Section 111 of the T. P.
Act. An erstwhile tanant of a contractual lease of land who can be said to
be covered by the inclusive part of the definition of the term 'tenant' as found
under Section 4(ii) of the Protection Act is one who has continued in
c possession of the land after his tenancy agreement is determined either
under Section ll l(A) of the T.P. Act by the omission of the landlord to renew
the lease and therefore, it gets determined by efflux of time or on the expiry
of notice to quit given by the landlord to the tenant as per Section llt(h) of
the T.P. Act. Save and except these two modes of determination of tenancy
D
agreement as envisaged by Section 111 of the T.P. Act no other mode found
in clauses (b) to (g) of Section ll 1 can ever be said to be contemplated as
attracted for getting telescoped in Section 2(4)(ii)(a) of the Protection Act
for consideration of the scope of the phrase 'determination of tenancy
agreement' as employed therein. Consequently it must be held that the mode
of determination of lease agreement by forfeiture as envisaged by Section
E 11 t(g) of the T.P. Act is foreign to the scope of the definition of the term
'tenant' as found in Section 2(4) of the Protection Act. [231-A-E]
1.4. Section 9 can apply only when there is admitted relationship of
landlord and tenant, contractual or statutory, between the parties; once such
relationship is contra-indicated by denial of title of landlord by the tenant and
F consequently mode of determination of tenancy under Section 1 ll(g) is
attracted its applicability by itself will nullify and make Section 9 inoperative
in such a case. On a conjoint reading of Sections 2( 4), 9 and 13 of the
Protection Act it has to be held that determination of tenancy as envisaged
under Section 111 (g) of the T.P Act by forfeiture cannot get telescoped into
G Section 2 sub-section ( 4) of the Protection Act and must be deemed to have
been repealed or modified by the express provisions of Section 9 and 13.
[232-D-E]
1.5. The appellant in the instant case has admittedly and consistently
denied the title of Respondent no. 3 who had purchased the land from the
H original landlords, cannot get any protection of statutory tenancy as envisaged
.....
.__
;._
<,
PALANI AMMAL v. V. CHETTIAR
215
by Section 2(4)(ii)(a) of the Protection Act. It must, therefore, be held that A
~
on account of the forfeiture of tenancy incurred by appellant vis-a-vi~
respondent No. 3 by denying his title she had worked out of the protective
umbrella of the Protection Act and the tenancy agreement in her favour
which was executed by the erstwhile owners/landlords Respondents Nos 1
and 2 cannot be said to have been determined by respondent No. 3 so as to B
enable the appellant to claim the benefit of the said determination qua the
-....
,
former. [233-A; 233-E-F]
1.6. Section 112 refers to forfeiture under Section 111 (g). Once that
provision of Section ltl(g) does not get attracted under the scheme of the
Protection Act, Section 112 as a corollary to Section lll(g) also would not c
get attracted to the facts of the instant case. (233-H; 234-AJ
Bhargavakula Naincaragal Sangam Thiruyannamalai v. Arunachala
Udayar, {1990) 1 M.L.J. 4; Subharayam & anr. v. Devadas Nadar, (1991) 2
L. W. 355 and Bhagavakula Nainargal Sangam Tiruvanamalal v.
Chakravarthi, (1992) 1 L.W. 254, approved.
D
P. Nachimuthu Muddliar v. M Ponnusawamy, 93 Law Weekly, 874,
overruled.
Damadilal & Ors. v. Parashram & Ors., (1976] Suppl. SCR 645; Smt.
Gian Devi Anand v. Jeevan Kumar & Ors., AIR {1985) SC 796; Jai Singh E
Muraji & Ors v. Mis. Sivani (P) Ltd. & Ors., AIR (1973) SC 772; R.
Gomiaaswamy v. Bhoogian and others, (1977) 2 M.L.F. 206 and Kandaswami
Gounder v. Kandasmy Gounder son of Subbiah Gounder, (1979) L.W. 510,
distinguished.
>.
V. Madhave Rao Naidu v. Sri Gangadeswarar Temple by trustees F
Sobapathi Pillai & Ors., (1946) 2 M.L.J. 285 and fi!eraswamy Naicker &
anr. v. Alamelu Ammal & Ors., (196,5) 2 M.L.J. 188, referred to.
2. Section 11 of the Protection Act can be pressed in service only when
the tenant accepts the real owner as his landlord against whom the claims G
protection and benefit both under Section 9 as well as under Section 3 of the
Protection Act. Once the tenant denied the title of landlord who is the real
owner of the property she would get out of the Protection Act and none of
the provisions of the said Act can ever be pressed in service by the defendant
as a shield of protection against the real owner of the property, as the
defendant by her own act was given up the shield of protection envisaged by H
216
SUPREME COURT REPORTS
[1998] 2 S.C.R.
A the legislature for such tenants of open lands. Thus none of the provisions
of that Act could be invoked by defendant against plaintiff No. 3. As the
defendant was not a tenant covered by the definition of the said term under
Section 2( 4) of the Protection Act, neither Section 9 nor 3 or 11 could be
pressed in service by her against plaintiff No. 3 for non-suiting the latter.
B
[241-A-D]
S.A. Ramchandran v. Neelayothy, [1997] 1 SCC 767, distinguished.
3. The tenant moved an application against the real owner-landlord.
Therefore, such on application must be held to be still-born and totally
C incompetent and requires to be dismissed. [242-G-H]
4. The granite foundation by itself was not being used by anyone for
residential or non residential purpose. On the contrary on that foundation
tenant was found to have put up a structure and it was that structure over
the foundation that was being used for non-residential purpose of running
D a fuel depot. Therefore, the lease cannot be said to be partly of open land and
partly of a building. [243-D-E]
5. Section 3 of the Protection Act applies if it is shown that there is
an admitted relationship of landlord and tenant between the parties. But when
the tenant denies the title of the landlord to the land, the tenant is not entitled
E to compensation under Section 3 in lieu of her right to purchase under
Section 9 of the Act for the structure belonging to him. Consequently, under
the general provisions of the Transfer of Property Act especially Section
l08(h) read with Section 109 the only right available to such a tenant was
to get her structure removed by her so that possession of the decretal land
F could be handed over to the decree-holder. [244-A-E)
P Ananthakrishnan Nair & anr v. Dr. C. Ramakrishnan & Am:, [1987)
1. sec 429, distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1481-83 of
G 1998.
From the Judgment and Order dated 17.12.96 of the Madras High Court
in S. A. No. 1552-53of1991.
R. Sundaravaradhan and T. Raja for the Appellant.
H
S. Sivasubramanian, R. Nedumaran and M.A. Chinnasamy for the
PALANI AMMAL v. V. CHETTIAR [S.B. MAJUMDAR, J.]
217
Respondents.
The Judgment of the Court was delivered by
S.B. MAJMUDAR, J. Leave granted in these three Special Leave
Petitions.
A
By consent of learned counsel for the contesting parties the appeals B
were taken up for final hearing and are being disposed of by this common
judgment.
These three appeals moved by the common appellant, who will be
referred to as the defendant in the latter part of this judgment for the sake C
of convenience, seek to challenge a common judgment rendered by learned
Single Judge of the High Court of judicature at Madras in two Second
Appeals and one Civil Revision Application which were disposed of on 17th
December 1996. These second appeals and the revision application were
moved by the heirs of original plaintiff no. I Ramanatha Chettiar as well as by
the heirs of original plaintiff no.2 Vishwanatha Chettiar and also by original D
plaintiff no.3 Madheswaran. All of them are common respondents in these
three appeals and as they have a common case against the appellant-defendant
they will be referred to as original plaintiff nos. I, 2 and 3 respectively for the
sake of convenience in the latter part of this judgment.
In order to highlight the grievance of the defendant in these appeals it E
will be necessary to note a few background facts leading to these proceedings.
Introductory Facts
Original plaintiff no. I Ramanatha Chettiar and original plaintiff no.2
Vishwanatha Chettiar, both of whom are since deceased and are being
represented by their heirs who are the contesting respondents in these appeals, F
owned a vacant piece of land situated at Village Attur in Salem District of
State of Tamil Nadu. They leased out his open piece of land to the defendant
by a lease deed styled as Rental Deed dated Olst June 1968. As per the said
Rental Deed the defendant was permitted to put up construction for running
a firewood and fuel depot and a paan shop. The monthly rent was fixed at
Rs. 40 with Rs. 200 as advance deposit. That the said vacant site of land was G
also having in a part thereof a granite stone foundation. On the said foundation
-'-
the defendant put up a thatched building. It was agreed between the contracting
parties that the defendant would remove the structure at the time of vacating
the suit property. The defendant obtained licence from Attur Municipality for
running a firewood depot and paan shop in the demised land. The defendant H
218
SUPREME COURT REPORTS
[ 1998] 2 S.C.R.
A accordingly remained in possession of the suit land. It is the case of the
defendant that on her request plaintiff nos. I and 2 agreed to sell the suit
property to her in August 1980 at market rate and received a sum of Rs. 2,000
as advance. Her case is that as she was in possession of the suit land for
more than 16 years she did not insist upon receipt for payment of advance
money. The case of the defendant further is that plaintiff nos. I and 2 sold the
B suit land to plaintiff no.3 for a sum of Rs. 5,600 on 29th August 1981 by a
n~gistered Sale Deed. The defendant further submitted that all of a sudden on
30th August I 981, that is, the next day of the purchase of the said property
by plaintiff no.3 from plaintiff nos.I and 2, plaintiffs came with a number of
men and tried to forcibly evict the defendant from the suit property. Under
C these circumstances, the defendant filed a civil suit in July 1981 being O.S.
No. 984 of 1981 in the court of District Munsiff, Attur, praying for a permanent
injunction restraining the plaintiffs from forcibly taking away the possession
of the suit property from her. It is the further case of the defendant that
pending that suit the plaintiffs as a counter-blast filed a civil suit being O.S.
No.453 of 1982 on 02nd September 1982 in the same court of Attur for eviction
D of the defendant and for a direction to the defendant to hand over vacant
possession of the suit property and also for payment of Rs. 1,000 by way of
arrears of rent. Pending the said suit defendant filed a written statement on
08th April 1983 and an additional written statement on 03rd December 1983
contending that there was an agreement to sell executed by plaintiff nos. I and
2 in favour of the defendant and that bypassing the said agreement the
E plaintiff nos. I and 2 had illegally tried to sell the property to plaintiff no.3.
F
The said Sale Deed in favour of plaintiff no.3 was null and void and the
plaintiff no.3 had no title to the suit land. Along with the additional written
statement dated 03rd December 1983 the defendant also filed an application
under Section 9 of the Madras City Tenants' Protection Act, 1921, hereinafter
referred to as the 'Protection Act' for the sake of brevity. Invoking the said
provision it was contended by the defendant that she was entitled to purchase
the suit land over which her structure stood. The said application was registered
in the same court as I.A. No.17 of 1985 in o:s. No. 453 of 1982 which was
filed by the aforesaid three plaintiffs.
As all of these disputes between the parties centered round the
G possession for the very same property being the suit land the plaintiffs' suit
being O.S. No. 453of1982, the defendant's suit being O.S. No. 984of1981
and the defendant's application being I.A. No.17 of 1985 under Section 9 of
;.
the Protection Act then were clubbed and were tried together. The learned
Trial Judge after hearing the parties disposed of all these proceedings by a
common judgment dated 01 st August 1988. The learned Trial Judge took the
H view that the plaintiffs' suit was required to be decreed while the defendant's
PALANI AMMAL v. V. CHETTIAR [S.B. MAJUMDAR, J.]
219
suit was required to be dismissed and defendant's application under Section A
9 of the Protection Act was also to be dismissed. The learned Trial Judge held
that defendant's I.A. No.17 of 1985 under Section 9 of the Protection Act
could not be sustained as the defendant had denied the title of the plaintiffs
especially plaintiff no.3. It was also held that the Sale Deed dated 29th August .
1981, executed by plaintiff nos. I and 2 in favour of plaintiff no.3, was legal B
and valid and on the issue of maintainability of the suit filed by the plaintiffs
it was held that notice under Section I 06 of the Transfer of Property Act, 1882
[' T.P. Act' for short] was not required to be served on the defendant. It is
pertinent to note that though the contention of the defendant in her application
under Section 9 of the Protection Act was to the effect that the plaintiffs' suit
was not maintainable against her as notice under Section 11 of the Protection C
Act was not served on her, the said contention does not appear to have been
canvassed before the learned Trial Judge at the stage of arguments. In any
case there is no reference to this contention in the Trial Court's judgment.
Being aggrieved by the aforesaid common judgment of the Trial Court
the defendant preferred two first appeals before the Sub-Court, Salem, D
challenging the decrees passed by the Trial Court in two cognate suits, one
filed by the plaintiffs against the defendant and another filed by the defendant
against the plaintiffs. She also filed a Miscellaneous Appeals No.8 of 1990
before the Appellate Court being aggrieved by the order of the Trial Court
by which her Interlocutory Application under Section 9 of the Protection Act E
was dismissed. These two first appeals as well as the Miscellaneous Appeal
were heard together and were disposed of by a common judgment dated 21st
December 1990 by the Appellate Court. The Appellate Court took the view
that the Sale Deed execnted by plaintiff nos. I and 2 in favour of plaintiff no.3
was a valid and a legal one. However, it held that the suit filed by the plaintiffs
against the defendant was not maintainable under the provisions of Section F
11 of the Protection Act. It was also held that the defendant had not denied
the title of plaintiff nos. I and 2 and, therefore, the application of the defendant
under Section 9 of the Protection Act was maintainable and was required to
be allowed. Consequently the plaintiffs' suit was dismissed, defendant's suit
was decreed and defendant's application under Section 9. was also granted. G
Against the afores~id common judgment dated 21st December 1990 of
the First Appellate Court the aggrieved plaintiffs approached the High Court
of Madras in two second appeals and also by filling a revision application,
as mentioned earlier. All these three proceedings were heard together by a
leaned Single Judge of the High Court who took the view, agreeing with the H
220.
SUPREME COURT REPORTS
[1998] 2 S.C.R.
A findings of the courts below, that the Sale Deed executed by plaintiff nos. I
and 2 in favour of plaintiff no.3 was a valid one. It was also held that as the
defendant had denied title of plaintiff no.3 her application under Section 9 of
the Protection Act was not maintainable. Submission on behalf of the defendant
that the suit of the plaintiffs was barred by Section 11 of the Protection Act
B was repelled by holding that once the defendant denied the title of the
plaintiffs especially plaintiff no.3 there was no occasion for plaintiff no.3 to
serve any notice to her under Section 11 of the Protection Act and on such
a stand taken by the defendant, the entire Protection Act was not available
to the defendant. Consequently the judgments and decree passed by the Trial
Court were found to be legal and valid. Accordingly both the second appeals
C and the revision application filed by the plaintiffs were allowed. The common
judgment and order of the First Appellate Court were set aside and the Trial
Court's judgment, decrees and orders were restored. That is how the aggrieved
de.fendant, as noted earlier, is before us in these appeals having obtained
special leave to appeal under Article 136 of the Constitution of India.
D Rival Contentions
Learned senior counsel for the common defendant. Shri R.
Sundaravaradhan vehemently contended that the learned Single Judge of the
Madras High Court had committed a patent error of Jaw in allowing the
E second appeals and the civil revision application. It was submitted that the
defendant had not denied the title of plaintiff nos. I and 2 though she had
certainly denied the derivative title of plaintiff no.3 However, it was submitted
that at the highest because of such a ·denial of title defendant could be said
to have forfeited her tenancy rights which she had qua the plaintiffs especially
plaintiff no.3 who had derived his title from plaintiff nos. I and 2 but even in
F such an eventuality in view of Section 2 (4)(ii)(a) of the Protection Act the
defendant could be said to be a statutory tenant on ltte determination of
tenancy agreement by forfeiture vis-a-vis the plaintiffs, especially plaintiff
no.3. Hence, plaintiff no. 3 who squarely fell within the definition of the term
'landlord' as found in Section 2 sub-section (3) of the Protection Act could
G b1: validly proceeded against by the defendant under Section 9 of the Act.
In this connection reliance was placed on Section J J J(g) of the T.P. Act
dealing with determination of lease by forfeiture. It was also contended that
even assuming that there was such a forfeiture of leasehold rights incurred
by the defendant the said forfeiture was waived by the plaintiffs especially
plaintiff no.3 as laid down by Section 112 of the T.P. Act by filing the suit
H O.S. No.453of1982 on 02nd September J 982 wherein the plaintiffs treated the
PALANI AMMAL v. V. CHETTIAR [S.B. MAJUMDAR, J.]
221
defendant as a tenant and sought eviction by paying appropriate court fee A
......
-~
by valuing the suit in the light of the rent payable by the defendant-tenant
to the plaintiff. Learned senior counsel for the defendant, however, fairly
submitted that so far as the applicability of Section 112 of the T.P. Act was
concerned no reliance was placed on the said provision in the courts below
including the High Court. However, this being a pure question of law based B
on the very averments of the plaintiffs themselves in their plaint in O.S. No.
.....,
·-(
453 of 1982 such a plea be considered in the interest of justice. It was also
contended that even assuming that the said forfeiture was not waived by the
plaintiffs the defendant being a statutory tenant had no longer remained one
having only a personal right to occupy. That her statutory tenancy right was
a heritable one and was an interest in the leased premises even after c
determination of the lease. In support of that contention reliance was placed
on judgments of learned Single Judge of the Madras High Court to which we
will make a reference hereafter and also on two judgments of this Court,
-
namely Damadilal and others v. Parashram and others, [1976] Suppl. SCR
645 =AIR (1976) SC 2229; and Smt. Gian Devi Anand v. Jeevan Kumar and
others, AIR (1985) SC 796. It was also contended, placing reliance on a D
decision of a Bench of two learned judges of this Court in the case of SA.
Ramachandran v. S. Neelavathy [1997] 1 SCC 767, that Section 11 of the
Protection Act was of a mandatory nature and if it was not complied with,
the suit would be clearly barred and had to be dismissed as such. It was also
contended that merely because the defendant had filed an application under E
Section 9 of the Protection Act it could not be said that she had waived her
contention regarding non-compliance of Section 11 of the Protection Act and
that the High Court had patently erred in holding that Section 11 of the
Protection Act was not attracted on the facts of the present case. Learned
senior counsel for the defendant also referred to a decision of the Division
Bench of the Madras High Court in the case of Bhargavakula Nainargal F
Sangam, Thiruvannamalai and others v. Arunachala Udaym; [ 1990) 1 M.L.J.
4 and tried to distinguish it by submitting that it had proceeded on a wrong
assumption that decision of this Court in the case of Damadilal (supra) was
contrary to the decision of a larger Bench of this Court rendered in the case
of Jai Singh Murarji and others v. Mis. Sivani (P) Ltd. and others, AIR G
( 1973) SC 772. In this connection it was submitted that the Constitution Bench
~
judgment of this Court in Gian Devi Anand's case (supra) which was referred
to by the Division Bench of the High Court in Bhargavakula s case (supra)
was not at all considered by the said Division Bench. It was also contended
that in the impugned judgment learned Single Judge of the High Court had
wrongly held that the lease in favour of the defendant was not only of the H
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[1998] 2 S.C.R.
A land but also of the superstructure, namely, the foundation over which the
defendant had put up a further construction and, therefore, the building
'r
<
b1:longed partly to plaintiff nos. 1 and 2 and also partly to the defendant. That
such a question was never argued before the courts below and for the first
time in second appeal such a question could not have been framed by treating
B
it to be a substantial question of law arising from the judgments of the courts
below. It was lastly submitted in the alternative that even if it is held that
application under Section 9 of the Protection Act was not maintainable at
>-- -
least appropriate compensation should have been given to the defendant
under Section 3 of the Protection Act while confirming the decree for eviction
as passed in favour of the plaintiffs especially plaintiff no.3 against the
c defendant.
Repelling these contentions learned senior counsel for the respondentplaintiffs, Shri S. Sivasubramanian, submitted that once it was held that
plaintiff nos. I and 2 had validly sold the suit and to plaintiff no.3 and the Sale
-
Deed dated 29tl1 August 1981 in favour of plaintiff no.3 was required to be
D upheld. it has to be held that the defendant consistently denied the title of
the real owner of the property, namely, plaintiffno.3. That the said stand was
taken by the defendant not only in her first written statement dated 08th April
1983 but also in the additional written statement dated 03rd December 1983
and even in her application under Section 9 of the Protection Act. Once such
a stand was taken and which was persisted in all throughout before the first
E Appellate Court as well as before the High Court it has to be held that the
defendant had denied the title of the real owner of the property, namely
plaintiff no.3 and as his title was denied there was no occasion for plaintiff
no. 3 to serve any notice on the defendant under Section 11 of the Protection
Act as rightly held by the High Court. It was further submitted that there was
F
no question of waiver of the forfeiture on the part of the defendant by the
plain tiffs as the plaint itself proceeded on the basis that defendant had lost
the character as a lessee of thi,: land on account of denial of title of the
plaintiffs especially plaintiff no.3 and merely because tile arrears of rent were
prayed for or that the court fees were computed accordingly in the plaint it
could not be said that the plaintiffs had waived the forfeiture on the part of
G the defendant. It was further submitted that on a true construction of Section
2 sub-section (4) of the Protection Act it could not be said that the defendant
had continued to be a statutory tenant despite the determination of the
/.-
tenancy agreement as the said phrase found in Section 2 sub-section (4) (ii)(a)
would not take in its sweep detern1ination of lease under Section 111 (g) of
the T.P. Act. That once Section 11 l(g) of the T.P.Act is found not to have
H any nexus with Section 2 sub-section ( 4)(ii)(a) of the Protection Act tllere
PALANI AMMAL v. V. CHETTIAR [S.B. MAJUMDAR, J.)
223
would be no occasion for the defendant to claim to be treated as a statutory A
tenant covered by the protective umbrella of the Protection Act. In fact her
case would go out of the fourcomers of the Protection Act. Consequently
neither Section 9 of the Protection Act applied nor Section 11 thereof can be
invoked by the defendant as rightly held by the High Court. Alternatively it
was contended placing reliance on various judgments of the Madras High B
Court, that the defendant could be said to have waived her contention
regarding applicability of Section 11 of the Protection Act by filing application
under Section 9 of the Protection Act and by getting the delay in filing such
application condoned and by pressing such application on merits and even
getting it granted at least once by the Appel'late Court. Learned senior
counsel for the plaintiffs also contended, placing reliance on three Division C
Bench judgments of the Madras High Court, that once the tenant denied the
title of the landlord no benefit under Section 9 of the Protection Act cauld
be available to such a tenant nor can Section l l be pressed in service by wch
a tenant. We will refer to these judgments at an appropriate place in the latter
part of this judgment. Referring to the decision of a Bench of two learned
judges of this Court in the case of S.A. Ramachandran (supra), it was D
contended that in the said decision there was no denial of title of the landlord
by the tenant and that as in the present case title of plaintiff no.3 is denied
there would remain no occasion for such a tenant to find fault with the filing
of the suit by plaintiff no.3 for eviction against such a defendant by submitting
that suit was hit by Section 11 of the Protection Act. So far as the alternative E
claim for compensation was concerned it was submitted that once the
defendant by her unequivocal conduct of denying the title of plaintiff no.3
who is the real owner of the property had' forfeited the protection of the
Protection Act there would remain no occasion for her to get the benefit of
even Section 3 of the very same Act. That under these circumstances, as per
the general principles of Transfer of Property Act when suit for eviction is F
decreed against her all that she can get is the right to remove the
superstructure put up by her on that plaintiffs' land as provided by Section
108(h) of the T.P. Act read with Section 109 thereof. It was, therefore, contended
that the common decision of the High Court impugned in these appeals calls
for no interference.
Points for consideration.
In view of the aforesaid rival contentions the following points arise for
our consideration :
G
I.
Whether the defendant is entitled to the benefit of the Protection H
Act by invoking Section 2 sub-section 4(ii)(a) of the said Act.
224
A
B
2.
SUPREME COURT REPORTS
(1998] 2 S.C.R.
If yes, whether the suit filed by the plaintiffs being O.S. No. 453
of 1982 was barred by Section 11 of the Protection Act and
therefore was required to be dismissed and the suit filed by the
defendant being O.S. No. 984 of 1981 was required to be decreed.
3.
Similarly if Point No. I ans~1 ered in the affirmative whether
defendant's application under Section 9 of the Protection Act
being I.A. No. 17 of 1985 in O.S.S 453 of 1982 was required to
be allowed.
4.
Whether the lease could be said to be not only of the open land
but also partially of a building as held by the High Court.
C
5.
Whether the. defendant is entitled at least to be given
compensation under Section 3 of the Protection Act by the
plaintiffs especially plaintiff no.3 if the decree for eviction of
defendant from the suit land is to be confirmed.
D
We shall deal with these points seriatim.
Point No. I
So far as this points is concerned before going to the decision of the
High Court as well as this Court to which our attention was invited by learned
senior counsel for the respective parties, it would be appropriate to have a
E quick glance of the relevant statutory provisions of the Protection Act. This
Act of 1921, as enacted by the then Madras Legislature in 1922 being Tamil
Nadu Act No. 111 of 1922. It was enacted with aH avowed object of giving
protection to certain classes of tenants in municipal towns and townsliips and
adjoining areas in the State of Tamil Nadu. The Preamble thereto recited that,
'whereas it is necessary to give protection against eviction to tenants, who
F
in municipal towns and adjoining areas in the State of Tamil Nadu have
constructed buildings on others' lands, so long as they pay a fair rent for the
land' and with that view this Act was enacted. It is not iii dispute between
the parties that the suit land is situated in an area where the aforesaid Act
applies. Section 2 of the Protection Act defines a 'Building' as per subG section(!) thereof to mean, 'any building, hut or other structure, whether of
masonry, bricks, wood, mud or metal or any other material whatsoever used
-(i) for residential or non-residential purposes in the City of Madras, in the
municipal towns of Coimbatore, Madurai Salem and Tiruchirappalli, in the
townships of Kodaikanal, A vadi, Kathiwakkam, Ambattur, Madhavaram,
Bhavanisagar, Courtallam and Mettur, or in such other municipal towns or
H township as the Government may, be notification, specify and in any village
,._ -
.~
<
....
_....
PALANI AMMAL v. V. CHETTIAR [S.B. MAJUMDAR, J.]
225
within eight kilometres of the City of Madras or of the municipal towns of A
township aforesaid'. It is also not in dispute that the aforesaid definition
could be pressed in service for considering the question whether there was
any building on the suit land as defined by the said provision. The term 'land'
is defined by Section 2 sub-section (2) as not including buildings. Thus the
Protection Act would apply to lands which are not having any building
thereon. In other words the Protection Act is to give protection to the tenants B
ofopen lands situated within the areas covered by the sweep of the Protection
Act and who might have put up their own structures on such open lands. Tl!e
term 'Landlord' is defined by sub-section (3) of Section 2 of the Protection
Act to mean, 'any person owning any land and includes every person entitled
to collect the rent of the whole or any portion of the land. Whether on his C
own account or on behalf of or for the benefit of any other person, or by
virtue of any transfer from the owner or his predecessor in title or of any order
of a competent court or of any revision of law'. Then comes the definition
of the word 'Tenant' as found in sub-section (4) of Section 2 of the Protection
Act. It is necessary to reproduce the relevant provisions thereof as under :
"2.(4) 'Tenant' in relation to any land-
(i) means a person liable to pay rent in respect of such land, under
a tenancy agreement express or implied, and
(ii) includes-
(iii) any such person as is referred to in sub-section (I) who continues
· in possession of the land after the determination of the tenancy
agreement,"
D
E
Sub-clause (b) is not relevant. And then follows sub-clause ( c) thereof F
which reads as under :
"2.(4)(ii)(c) the heirs of any such person as is referred to in sub-clause
(i) or sub-clause (ii) (a) or (ii)(b); but does not include a sub-tenant
or his heirs."
Section 3 of the Act deals with 'Payment of compensation on ejectment'. It G
provides that every tenant shall on ejectment be entitled to be paid as
compensation the value of any building, which may have been erected by
him, by any of his predecessors in interest, or by any person not in occupation
at the time of the ejectment who derived title from either of them and for which
compensation has not already been paid. Section 4 sub-section (I) deals with H
226
SUPREME COURT REPORTS
[1998) 2 S.C.R.
A the procedure to be followed in suits for ejectment against such tenants when
the landlord succeeds and it lays down that, 'in a suit for ejectment against
a tenant in which the landlord succeeds. the court shall ascertain the amount
of compensation, if any, payable under section 3 and the decree in the suit
shall declare the amount so found due and direct that, on payment by the
B landlord into court, within three months from the date of the decree, of the
amount so found due, the tenant shall put the landlord into possession of
the land with the building and trees thereon'. Section 9 deals with 'Application
to Court for directing the landlord to sell land'. The said Section with its
relevant sub-section read as under :
c
D
E
F
G
H
"9.(l)(a)(i) Any tenant who is entitled to compensation under section
3 and against whom a suit in ejectment has been instituted or
proceeding under section 41 of the Presidency Small Cause Courts
Act, 1882, taken by the landlord, may, within one. month of the date
of the publication of Madras City Tenants' Protection (Amendment)
Act, 1979 in the Tamil Nadu Government Gazette or of the date with
effect from which this Act is extended to the municipal town, township
or village in which the land is situate, or within one month after the
service on him of summons, apply to the court for an order that the
landlord shall be directed to sell for a price to be fixed by the court,
the whole or part of, the extent of land specified in the application.
(ii) ........... .
(b) On such application, the court shall first decide the minimum
extent of the land which may be necessary for the convenient
enjoyment by the tenant. The court shall then fix the price of the
minimum extent of the land decided as aforesaid, or of the extent of
the land specified in the application under clause (a), whichever is
less. The price aforesaid shall be the average market value of the three
years immediately preceding the. date of the order.