V. Ratnam, J.
1. This civil revision petition has been preferred by the petitioner herein (landlord) against the orders of the Courts below in an application filed by the respondent (tenant) under Section 9 of the Tamil Nadu City Tenant's Protection Act, hereinafter referred to as the Act. According to the case of the respondent, the property in question viz., a vacant site belonged to the petitioner by purchase on 28th January, 1974, from one Sundaravelu and his minor son. The respondent claimed to have taken a lease of the vacant land from one Muthuswami Mudaliar and his son Sundaravelu on 21st April, 1968, for a period of five years. After obtaining the lease, the respondent stated that he had put up a tiled shed on the west and a pandal on the east and that in the tiled portion he has been carrying on business in firewood. In that process, according to the respondent, he had expended a sum of Rs. 3,000. While so, disputes arose between Sundaravelu and one of his relations Ratnammal in relation to the title over the property in question and the respondent claimed that subsequently he came to know that Ratnammal had no right over the property and therefore, he had been paying the rents to Sundaravelu. The respondent further stated that after purchasing the property, the petitioner filed O.S. No. 865 of 1975 for recovery of possession of the property and in that suit summons was served on the respondent on 22nd October, 1975. Since, according to the respondent, he is entitled to the benefits of Section 9 of the Tamil Nadu City Tenants' Protection Act, within 30 days from the date of service of the summons, an application was filed by him for a direction to the petitioner herein to sell the property to the respondent at a price to be fixed by the Court.
2. This application filed by the respondent was opposed by the petitioner herein contending that the petition is not maintainable. According to the petitioner, the respondent became a tenant under Muthuswami and his son Sundaravelu on 21st April, 1968 in respect of door No. 185 in Mutcharry Street, and total area leased out was only 437 sq. ft. The respondent according to the petitioner, had claimed a larger extent for door No. 185 with mala fide intention. The petitioner further stated that the respondent did not put up superstructure at a cost of Rs. 3,000 but had put up only a Calicut tiled shed and thatched shed of a temporary character at a cheap price worth not more than Rs. 400 and the respondent is not entitled to claim the benefits of the Act as the respondent had denied the title of the petitioner over the property when he instituted O.S. No. 865 of 1975.
3. The petitioner followed this up by an additional counter filed on 15th March, 1977, wherein it was stated that the respondent is in occupation of door No. 184 and other portions in door No. 186, besides door No. 185 and all the three door numbers originally belonged to one common owner. Sundaravelu had leased out the property to the respondent. A further plea was also raised by the petitioner that the respondent had taken on lease door No. 184 and the whole of door No. 185 and a portion of door No. 186 and therefore the respondent is not entitled to the reliefs under Section 9 of the Act.
4. The learned District Munsif, Erode, who enquired into this application, on a consideration of the oral and documentary evidence, held that what was leased out in favour of the respondent herein was only a vacant land and not a site with the building in door No. 184. It was also found that the respondent herein had put up superstructure by erecting a tiled and thatched shed in the property in question spending about Rs. 3,000. On these findings, the learned District Munsif held that the respondent will be entitled to an order under Section 9 of the Act and appointed a Commissioner to visit the property in order to ascertain the minimum extent of the land which may be necessary for the convenient enjoyment of the respondent and also to fix the price thereof in accordance with the provisions of the Act. Aggrieved by this, the petitioner herein preferred an appeal in C.M.A. No. 27 of 1977 against the order of the District Munsif, Coimbatore East. The learned District Judge confirmed the order of the learned District Munsif and held that the respondent will be entitled to the benefits of Section 9 of the Act and dismissed the appeal.
5. In this civil revision petition, the learned Counsel for the petitioner has raised three contentions. The first is that on 20th November, 1975, when the application under Section 9 of the Act was preferred by the respondent herein, his possession of the property in question was not that of a tenant but was that of an intending purchaser put in possession and therefore, there was no relationship of landlord and tenant between the petitioner and the respondent. Reliance in this connection is placed upon an agreement marked as Exhibit A-21 dated 15th July, 1972 entered into between Sundaravelu, Kandavelu and Saravanan and the respondent herein. The property dealt with under that agreement is described as a vancant site. It further provides that the consideration for the sale is Rs. 5,500 and that an advance of a sum of Rs. 500 had also been paid. Provision is also made for the payment of the balance of Rs. 5,000 and for the completion and execution of the sale deed as well as the taking of possession. A consideration of the terms of the agreement Exhibit A-11 does not disclose that the possession of the respondent ceased to be that of a tenant on and from 15th July, 1972, as otherwise, there was no reason as to why a specific provision with reference to the taking of possession after the execution of the sale deed had been incorporated. Obviously, the intention of the parties had been that the possession of the respondent as a tenant ought to continue till such time as the sale deed was executed and the document registered and thereafter possession should be taken by him as the owner of the property so purchased. In view of this recital, it is not possible to accept the contention of the learned Counsel for the petitioner that the possession of the respondent was not as a tenant on the date when the application under Section 9 of the Act was made by him. It is necessary at this stage to notice an objection raised by the learned Counsel for the respondent. According to him, the present plea had not been raised at all at any point of time before the Courts below and therefore, the learned Counsel for the petitioner should not be permitted to raise a new plea. It is true that in the counter-affidavits, which had been filed by the petitioner, no such plea has been taken. One may also search in vain for such plea in the grounds of appeal before the lower appellate Court. It is quite possible that the respondent, if he had been confronted with such a case, would have been in position to let in evidence to establish the character of his possession after Exhibit A-11 but he has also been denied an opportunity in this regard. Under these circumstances, no doubt the plea now raised by the learned Counsel for the petitioner is likely to cause great prejudice to the respondent. Even otherwise, having regard to the terms of Exhibit A-11 referred to already there is no substance in this plea of the petitioner that there was no subsisting relationship of landlord and tenant as the character of the possession was different. In this view, it is unnecessary to refer to the decisions relied on by the learned Counsel for the petitioner to establish that the subsistence of the relationship of landlord and tenant is essential before an application under Section 9 of the Act can be maintained.
6. The second contention that has been raised by the learned Counsel for the petitioner is that the respondent had denied the title of the vendors of the petitioner as well as his title and therefore, the tenancy in favour of the respondent had been determined by forfeiture with the result that the respondent is not entitled to claim the benefits of Section 9 of the Act. For contra, the learned Counsel for the respondent contends that since the respondent continued in possession of the land even after the determination of the tenancy agreement, he would still be a tenant under Section 2(4) of the Act and thus entitled to the benefits of the Act. In this connection, the learned Counsel for the petitioner strongly relied upon the decision reported in Veeraswami Naicker and Anr. v. Alamelu Animal and Ors. . That was a case which arose under the provisions of the Tamil Nadu. City Tenants' Protection Act, and the first defendant who took the land on lease denied the title of the landlord pleading that the landlord had sold the property to him. Thereafter, the tenancy was terminated by the landlord on the ground of denial of title and this was followed up by a suit for declaration of title as well as for recovery of possession. In dealing with the claim under Section 9 of the Act, the Division Bench observed thus:
Quite apart from this decision, we are of the view that the lower appellate Court took the right view of Section 2(4), as it stood before the amendment in 1960. It is true that the third clause in the definition comprehends persons continuing in possession, though the tenancy has come to an end. A tenancy may come to an end for a number of reasons as for instance denial of landlord's title. Such a denial under the ordinary law of transfer of property brings about forfeiture. The argument for the appellant before us is that even such a case will be within the actual words of the third category in the definition. But there is a fallacy in the agreement. When a person who continues to be in possession after termination of tenancy, claims that he does so, as he is entitled to the property as his own, it is obvious that there is hardly any room for such an owner to seek protection of his possession under the provisions of the Act, Clearly the Act is not intended to protect such owners for there is no need for it. We are of the view that such a case will not fall within the third category of persons entitled to protection under the Act.
No doubt, the observations in the passage do support to some extent the contention of the learned Counsel for the petitioner; but in view of the judgment of the Supreme Court in Damadilal and Ors. v. Parashram and Ors. , the right of the respondent to invoke the benefits of Section 9 of the Act cannot be denied. In that case, the Supreme Court was adjudicating upon the rights of a tenant in possession after the termination of the tenancy. Though in some earlier cases in Anand Nivas (P.) Ltd. v. Anandji Kalvanji Podhi , and Jagdish Chander Chatterjee v. Sri Kishan
, the view was taken that a person after the
termination of the tenancy, though entitled to the statutory protection against eviction, has no right or interest in the premises and was only entitled to a personal right to remain in occupation in the later case in Damadilal v. Parashram , the Supreme Court held
that this would depend upon the provisions of the Act under which the right is claimed and if the provisions of the Act manifest an intention that the tenant even after the determination of the tenancy is treated on par with those persons who have contractual tenancy in their favour the right of the person in possession after the determination of the tenancy is the same as a contractual tenant and that he could not be denied the right of protection under the Act. In that case, the Supreme Court was considering the definition of "tenant" in the Madhya Pradesh Accommodation Control Act, 1961 and that definition took in any person in possession after the termination of his tenancy and this according to the Supreme Court would include a person continuing in possession after the determination of his tenancy thus putting him on par with a person whose contractual tenancy still subsists. Section 2(4) of the Tamil Nadu. City Tenants' Protection Act defines a tenant as to include a person who continues in possession of the land after the determination of the tenancy agreement. A point of distinction which is sought to be made by the learned Counsel for the petitioner is that the decision of the Supreme Court must be confined only to cases where there has been a determination of tenancy by efflux of time and not to other cases. It may be pointed out that under Section 111 of the Transfer of Property Act, amongst other modes including by way of efflux of time, forfeiture by denial of title is also one of the modes of determination of the lease of the immovable property. It is not possible to limit the application of the principle of the decision of the Supreme Court only to cases of determination of tenancy by efflux of time and not to others, especially when several modes of determination of tenancy are provided for under Section 111 of the Transfer of Property Act. In Govindaswamy v. Bhoopalan and Ors. (1977) 2 M.L.J. 206, V. Ramaswami, J., had occasion to consider this identical question and the learned Judge applying the decision of the Supreme Court in Damadilal v. Parashram , held that the tenant would be entitled to the benefits of Section 9 of the Act. Though that case was one where the determination of tenancy was brought about by efflux of time. yet in view of what has been stated above, the same principles would be applicable even to a case where the determination of the tenancy is by forfeiture, but the tenant continues in possession of the land after the determination of the tenancy. Thereafter, it must be held that the respondent would be entitled to the benefits of the Act as a tenant who continues in possession of the land after the determination of tenancy by forfeiture and falls within the definition of "tenant" under Section 2(4) of the Act.
7. The third contention of the learned Counsel for the petitioner is that there is no proof or finding that the respondent put up a superstructure before the extension of the Act to the area in question. It is not in dispute that the respondent was served with summons in the suit on 22nd October, 1975 and that the application under Section 9 of the Act had been filed by him on 20th November, 1975. Indeed, an objection was raised that the application filed by the respondent was out of time and it has been rightly over-ruled. It is no longer in dispute that there was a valid application before the Court by the respondent claiming the benefits of Section 9 of the Act. By a series of decisions, it has been held that before a tenant can claim the benefits of Section 9 of the Act, there must be satisfactory evidence that the superstructure had been put up by him in the vacant land in question before the extension of the Act to the city, town or municipality. It is common ground that the provisions of the Act were extended in the instant case to non-residential buildings on 25th June, 1975. The only question that has to be considered in this connection is whether the superstructure had been put up by the tenant-respondent before that date. In paragraph 4 of the application filed under Section 9 of the Act by the respondent. he had stated that he had taken the vacant land on lease on 21st April, 1968 for a period of five years and soon after the lease put up a tiled shed on the west and a pandal on the east and in the tiled portion business in firewood was being carried on. In paragraph 6 of the application the respondent has stated that he had spent Rs. 3,000 over the erection of the tiled and thatched constructions. In countering this allegation, the petitioner had stated in paragraph 3 that the petitioner (respondent herein) had put up Calicut tiled shed and thatched shed of temporary character and at a cheap price, the cost of which would not have exceeded more than Rs.
400. Apart from this in paragraph 3 of the plaint filed by the petitioner in O.S. No. 865 of 1975. it has been clearly and categorically stated that the defendant (respondent herein") took the suit property on lease under a registered lease deed for a period of five years from 21st April 1968 and that the defendant (respondent herein) had put up tiled and thatched sheds of temporary character and at a cheap price and in such a way that the superstructure can be removed easily and without any loss. It is therefore clear from what has been stated by the petitioner himself in the counter in the application under Section 9 filed by the respondent herein as well as in the plaint filed by the petitioner himself that the superstructure had been put up by the respondent herein. The only other question that remains to be decided is as to when the superstructure came to be erected viz.. whether it was before the extension of the Act to the area in question on 25th June 1975. It is in this connection that Exhibit A-13 dated ?4th January. 1975 is significant. That notice has been sent under instructions from the petitioner herein to the respondent and in paragraph 2 it is stated thus:
On 21st April, 1968 you took the said property on lease on Rs. 20 per mensem for a period of five years through a registered lease deed. You had put up thatched and titled sheds in a portion of the schedule vacant site and you are running a firewood depot thereon.
It is thus obvious that even the petitioner had in his notice which proceeded the institution of the suit, admitted that prior to 25th June, 1975, the respondent herein had put up the tiled shed and also thatched sheds in the vacant site taken on lease by him. It is therefore established that prior to the extension of the Act to the area in question, the respondent had also put up the superstructure and the fact has also been admitted by the petitioner in Exhibit A-13 referred to above. Further, Exhibits A-2 to A-9 show that a licence had been issued and license fees had also been paid to the municipality by the respondents for carrying on business in the premises in question. Exhibit A-10 is the notice of prosecution issued to the respondent for failure to renew the licence in respect of the premises in question. Even in Exhibit A-11 on which considerable reliance was placed by the petitioner, the property is , described as vacant land leased out to the respondent. All these documents indicate that after securing a lease of the property on 21st April, 1968. the respondent had. even as admitted by the petitioner in Exhibit A-13 put up sheds before the extension of the Act. Under the aforesaid circumstances. the respondent was rightly held to be entitled to the benefits of Section 9 of the Act.
8. The petitioner has filed C.M.P. No. 11836 of 1979 for reception of the registration copy of a sale deed, dated 28th January, 1974 executed by Sundaravelu and others in favour of the petitioner herein as additional evidence. In C.M.P. No. 11837 of 1979, the petitioner has sought permission for leave to raise an additional ground that the respondent had not established the putting up a superstructure in the property prior to 25th June; 1975. This point has already been dealt with in the course of the judgment and therefore, it is unnecessary to permit the petitioner to raise this point by means of this application. Hence C.M.P. No. 11847 of 1979 has to be dismissed. C.M.P. No. 11836 of 1979 has been filed under Order 41, Rule 27 of the Code of Civil Procedure. But under Order 4, Rule 26 of the A.S. Rules the provisions of Order 41, Rule 27, Civil Procedure Code, not have been applicable to civil revision petitions and consequently, the petition in C.M.P. No. 11836 of 1979 is not maintainable. That application has also therefore to be dismissed.
9. The result is that the civil revision petition fails and is dismissed with costs.