S.S. Subramani, J.
1. The appellant as well as the revision petitioner was the defendant in O.S. No. 9804 of 1977, on the file of the First Assistant City Civil Court, Madras. After the filing of the second appeal and the C.R.P., he died and his legal representatives have been impleaded.
2. The suit filed by the plaintiff Sri Karnakshianiman Temple, Saidapet, represented by its trustees, was to recover possession of the plaint property from the defendant.
3. The defendant claimed that he is a tenant under the City Tenants Protection Act and filed I.A. No. 16300 of 1978. When the interlocutory application was filed, evidence was taken therein. Both the application and the suit were disposed of by a common Judgment and, therefore, the defendant's exhibits were marked as Ex.A series and the plaintiffs exhibits were marked as B series. The suit was decreed. The interlocutory application filed by the defendant was dismissed. Appeal preferred by the defendant was also without any success. It is against the concurrent judgment, the second appeal has been preferred by the defendant, and against the order dismissing the interlocutory application, the revision is filed.
4. The material averments in the plaint are as follows: It is the case of the plaintiff that as per Ex.B-1 dated 29.9.1963, the plaint property was leased to defendant's wile Parvathi Animal, for a period of three years, and, after the expiry of term, on the basis of the arrangement between the defendant and the plaintiff, the defendant is continuing in possession of the plaint property. After expiry of the term, the plaintiff issued a notice terminating the tenancy as per Ex.B-6 and wanted recovery of possession. Since the defendant did not comply with the. request, the suit was filed to recover the property. Ex.B-1 is a registered deed of lease in respect of superstructure and also land measuring 40 feet x 50 feet. The superstructure is having a measurement of 24 feet x 18 feet, and the agreed rent is Rs. 12.50 p. per mensem. It is staled that the defendant who became a tenant after the expiry of the term of Ex.B-1, was in wilful default in payment of rents of Rs. 635 upto 31.8.1971. It is said that the defendant has agreed to pay a sum of Rs. 7.50 p. as rent. It is also stated that immediately after the expiry of the term, the plaintiff filed a rent control petition for eviction, and when the matter was pending, a notification was published by the Government exempting temple and its building from the purview of the Rent Control Act and, therefore, the plaintiff withdrew the rent control petition with liberty to file a civil suit for ejectment. It is further said that the property which has been leased out to the temple is within the compound wall of the temple and the same is required by the plaintiff for installing deities and Devasthanam's use.
5. On the above allegations, the plaintiff filed the suit.
6. In the written statement, the defendant contended that the plaintiff is not. entitled to recover the plaint property, the main reason being that an area of 100 x 125 feet having a total plinth area of 12,500 sq. ft. belonged to the temple, and which includes the plaint schedule also was leased out to defendant's maternal uncle, late Natesa Mudaliar, in March, 1951. The rent was Rs. 25 per mensem. The said Natesa Mudaliar put up a construction on the suit land and was doing firewood business. Since the lessee could not do the business, he left the same and the superstructure was agreed to be taken by the defendant and was being enjoyed by him. From November, 1951, the defendant became tenant of the temple and was carrying on firewood business and was residing in the superstructure. It is further said that in the year 1960, he started doing business in weaving on the land instead of firewood. In 1963, for the purpose of his business, the lease agreement was executed in favour of his wife Parvathi Animal on a monthly rent of Rs. 12.50 p. Even though the agreement was in favour of the defendant's wife, the defendant continued to be paying rent for the land and the trustees of the temple were rceognising the defendant as the tenant. The defendant had been executing lease agreements prior to 1963 in respect of the land measuring 100 ft. x 125 ft., and in the year 1963 also, believing that the agreement would be for the same extent, the defendant's wife signed the agreement. But subsequently, the defendant came to know that the lease agreement executed in 1963 was in respect of an area of 50 x 40 feet only, and the superstructure has also been included in the recitals even though the same has been omitted in the Schedule. The defendant continued to be in possession of an area of 100 x 125 feet right from 1951 and, therefore, entitled to the benefits of City Tenants Protection Act. It is said that the plaintiff initiated rent control proceedings before Small Causes Court, Madras, for eviction of the defendant, on the ground of wilful default. The H.R.C. petition was dismissed, and the plaintiff filed appeal and it was also subsequently withdrawn by them. The allegation that the defendant became a tenant of the plaintiff only on 2.9.1966 and the superstructure measuring 29 x 18 feet belongs to the plaintiff is incorrect. According to the defendant, the superstructure does not belong to the temple." There is no tenant and landlord relationship in respect of the superstructure, and the defendant recognised only the right of the plaintiff over the land. He also denied the allegation of having committed any wilful default in paying the rent. He said that he has been paying rent every now and then.
7. An additional written statement was also filed whereby he has challenged the validity of the exemption notification, in respect of temple lands, from the purview of the Rent Control Act. According to him, the notification is discriminatory, ultra vires and unenforceable in law.
8. Summons in the suit was served on the defendant on 6.1.1978. Immediately he filed a writ petition as W.P. No. 404 of 1978. challenging the vires of the notification. In that, he moved an application stating that he is entitled to the benefits of the Act. This Court permitted him to withdraw that application, reserving liberty to file appropriate application under Section 9 of the City Tenants Protection Act in the suit. With those statements, he filed I.A. No. 16300 of 1986, claiming protection under Section 9 of the City Tenants Protection Act.
9. The trial court, after taking evidence, came to the conclusion that the defendant is not entitled to the benefits of the City Tenants Protection Act and decreed the suit. It came to the conclusion that Ex.B-1 lease was properly executed which included superstructure also and, therefore, the plaintiff is entitled to recovery of the same. It also concluded that the defendant cannot deny the title of the plaintiff in so far as the superstructure is concerned when the same is the subject matter of the lease.
10. The trial court also held that the plaintiff filed a suit O.S. No. 90 of 1963, on the file of Court of Small Causes, Madras, for eviction. At that time, there was a settlement between the parties whereby the original lease of land measuring 100 x 125 sq. ft. was surrendered to the lessor and a fresh arrangement was entered into, evidenced by Ex.A-1. Therefore, the original claim which arose in 1951 was properly terminated and that lease is not in existence. It also came to the conclusion that even though the defendant or his predecessor might have been in possession from 1951 to 1963 of 100 x 125 sq. ft. of land with the superstructure, but that possession will not enure to the benefit of the defendant at present in view of the fresh tenancy. The suit was decreed. The lower appellate court also concurred with the finding and dismissed the appeal.
11. At the time of admission of the second appeal, the following substantial questions of law were raised for consideration:
(1) Whether the appellant who put up the superstructure on the land belonging to the respondent is entitled to the benefits of the Tamil Nadu City Tenant's Protection Act, as amended by Tamil Nadu Act 2 of 1980 and as claimed in I.A. No. 16300 of 1978 in O.S. No. 9804 of 1977?
(2) Whether the appellant is liable to be evicted from the suit land without proper and valid notice of termination under Section 106 of the Transfer of Property Act or under Section 11 of the Tamil Nadu City Tenants Protection Act?
12. The same question arise for consideration in the connected civil revision petition also, and, therefore, the revision petition was also heard along with the second appeal.
13. In this connection, it may be worthwhile to note that in view of the subsequent event, i.e., passing of Act 2 of 1996 has also some relevance in this case. Even though the defendant claims the benefits of City Tenants Protection Act, being a temple land, provisions of that Act have been exempted in so far as the temple lands are concerned. That subsequent event also will have to be taken into consideration while disposing of the appeal if I hold that the defendant has got any right over the superstructure. The first question that has to be considered in this case is, whether Ex.B-1 was executed after understanding its contents.
14. In the written statement, the appellant contended that some time after the execution of Ex.B-1, he came to know that the property covered by Ex.B-1 is not the same as he was enjoying and a superstructure also appears to have been demised under it. But in the written statement, he has no case that Ex.B-1 was executed under any mistake or without understanding its contents. Evidence has been let in this case to show that there was a mutual mistake on the parties and, therefore, Ex.B-1 is of no avail. It is further said that even though Ex.B-1 stands in the name of the appellant's wife, he was the real beneficiary and the plaintiff recognised only the defendant as the tenant. He further said that in spite of execution of Ex.B-1, he continued to be in possession of the entire leased land, i.e., 100 x 125 feet.
15. How far the said contention can be sustained has to be seen at the first instance. It is true that as per Ex.A-9 dated 15.3.1954, the defendant was allowed to enjoy an area of 12,500 sq. ft. as lease. On 4.1.1963, a legal notice was issued terminating the lease and the plaintiff instituted a suit as O.S. No. 90 of 1963, on the file of the Court of Small Causes, Madras. Ex.A-25 is the copy of plaint in that suit. It is seen from the plaint that the plaintiff wanted delivery of vacant possession and also removal of the superstructure therefrom. An argument was put forward on the basis of Ex.A-25 that the plaintiff at that time wanted only recovery of vacant land after removing the superstructure, thereby admitting that the superstructure did not belong to the plaintiff. The suit notice issued before the institution of the suit under Ex.A-25 is Ex.A-40 where-also the temple did not claim any right over the superstructure. In this connection, a reply notice dated 25.6.1969 which is marked as Ex.B-2 in this case is also relevant. In the reply notice, the appellant said that in the year 1963, due to some financial difficulties and other circumstances, he did not desire to occupy the entire area leased out to him and hence retained a lesser area of 50 x 40 sq. ft. of land aforesaid and continued to occupy the same as tenant under the temple. He also said that a lesser area was allowed to be occupied by him, on a reduced rent of Rs. 12.50 p. and it was at his instance, the rental agreement was taken in the name of his wife. The argument of the learned Counsel for the appellant is that once the superstructure did not belong to the temple, the inclusion of the same in the lease deed as part of the demised property, cannot be correct, and the same can only be a mistake. How far the said contention is substantiated will have to be considered.
16. It is true that an area of 12,500 sq. ft. was originally leased to Natesa Mudaliar, maternal uncle of the defendant. Thereafter, the defendant also came into possession of the same. A suit was instituted by the plaintiff, as evidenced by Ex.A-25 plaint, for recovery of the property. At that time, the defendant was in financial difficulties. He did not pay the rent and, therefore, eviction was sought for. The defendant, on his own admission, offered to surrender the property and wanted another agreement to be "executed evidenced by Ex.B-1. It is in the name of his wife. These fact are admitted in Ex.B-2, reply notice, sent by the appellant himself. The execution of Ex.B-1 is admitted in Ex.B-2 and we find in Ex.B-2, the defendant has no case that Ex.B-1 was executed under any mistake. It is also admitted in Ex.B-2 that he did not want to continue to be a lessee under the original terms. The rent was reduced. The property was changed. The lessee was also a different person. All these things were only at the instance of the defendant is also clear from the admission in Ex.B-2. So, once Ex.B-1 is found to be valid, whatever may be the prior transaction between the parties, the same cannot continue. The original lease of 1954 is not in existence and the same is surrendered by taking out a fresh agreement under different terms in respect of a different property.
17. In the written statement, the defendant has a case that even though Ex.B-1 has been executed, he still continues to be in possession of the entire area of 12,500 sq. ft. We find that it is a new case put forward at the time of filing of the written statement. Ex.B-2 is also an answer to such a contention. It is within the property covered by Ex.B-1, wherein the superstructure is also situated. While Ex.B-1 was executed, even though in the Schedule, the description of the building is not stated, from the other details in the body of the document, it is clear that the intention of the parties was to demise the building also. Why the building was also made part of the demised premises, and what is the right of the temple over the same, I will deal with subsequently. Along with Ex.B-1, a plan was also appended and registered. In that plan also, the building was specifically mentioned as part of the demised premises. In the preamble portion of the document, it is said that the leased premises is an area of 2,000 sq. ft. together with a thatched hut therein, more particularly described in the schedule thereto and marked red in the sketch. When we read the schedule to the lease deed, we have to look into the plan appended to the lease deed. When the terms of the lease are narrated, it is further said that the lease property is having an extent of 2,000 sq. ft. together with a thatched shed therein, and the term of the lease was three years. The second condition is that the lessor is bound to pay taxes for the vacant land and superstructure, and the lessee shall be liable to pay tax, kist, or any other public purpose for the business which she may carry on in the property. The intention is also made clear from the fact the obligation for payment of tax in respect of the superstructure was only on the lessor and not on the lessee, and this indicates that the lessor claimed right over the land as well as the superstructure. The argument of the learned Counsel was that in the description of property schedule, the details of the shed are not given, and only vacant site has been described and, therefore, once there is omission to describe the building, it has to be taken that it is not the subject matter of the demise. It is further contended that a reading of Clause 1 of the terms will show that even though the offer of the temple was to lease the land as well as the building, the lessee agreed to pay rent only for the vacant land. So, once the lessee agreed to pay rent only for the vacant land and that is not accepted by the lessor, learned Counsel says that there cannot be a mutuality. Taken along with the same, learned Counsel says that the temple cannot have ownership over the building. The financial circumstances of the defendant were exploited by the plaintiff, and at the time of distress plaintiff utilised that opportunity by drafting a lease deed prepared by their own counsel. I cannot agree with any of these submissions of the learned Counsel for the following reasons: In the Schedule described to Ex.B-1, though the details of the structures are not given, it is said that it must be read along with the sketch appended to the document. It is admitted that in the sketch, the building is specifically provided and it forms part of the demised land. In regard to interpretation that the tenant agreed to pay rent only for the vacant land and not to the building, the said submission is also not correct, for, it is for the demised property the tenant agreed to pay a monthly rent of Rs. 12.50 p. The last portion of the preamble makes it clear that the offer by the lessee was to take the building as well as the land, and that was accepted by the lessor.
18. The original lease of the year 1951 was in favour of Natesa Mudaliar, maternal uncle of the defendant. In the written statement, it is admitted that the superstructure was put up by Natesa Mudaliar. It is alleged by the defendant that in November, 1951, he became a lessee and the superstructure was entrusted to him by Natesa Mudaliar and the temple also recognised that arrangement. In view of the statement made in the written statement, it is admitted by the defendant that the building was not constructed by him, but by late Natesa Mudaliar. In his deposition as P. W. 1 while he was examined on 6.4.1984, he has said:
(Editor: The text of the vernacular matter has not been reproduced.
If the building was constructed by late Natesa Mudaliar, and if the defendant took the building after he entered the property, that can only be after the lessee had surrendered possession or had left the leasehold. If Natesa Mudaliar had sold the building after he had surrendered the lease, the building cannot be claimed by the defendant. Since it is a lease coming under the provisions of the Transfer of Property Act, we have to consider the provisions therein also. Section 108 of the Transfer of Property Act deals with the rights and liabilities of the lessor and lessee. Clause (b) of Section 108 of the said Act deals with the rights and liabilities of the lessee, and Sub-Section (h) says:
the lessee may even after the determination of the lease remove, at any time whilst he is in possession of the property leased but not afterwards all things which he has attached to the earth; provided he leaves the property in the state in which he received it;....
So, under that section, the right of the lessee over the building constructed by him is to remove the same while he is in possession of the property. Once he left the leased premises, he will not have the right even to remove the materials. The property thereafter absolutely belongs to the lessor.
19. Mulla on 'The Transfer of Property Act' - 8th Edition (1995) at page 863, has said the time during which the lessee may be permitted to remove the structure and exercise his right over the building. The relevant portion reads thus:
...If he once quits possession, he may not return and the fixtures becomes the property of the lessor.
20. In Arumugham v. Sankaran , in paragraph 4 of the judgment, this Court has held thus:
The question is whether the court had jurisdiction to make effective its own order or not. Section 41 of the Presidency Small Cause Courts Act has only a limited operation and applies only to cases where the landor immovable property was previously in the possession of a tenant or in the possession of a person holding possession of the land with the permission of the owner and an application could be made after termination of the tenancy or the determination of the permission, which was granted to the person in possession, Under law as provided in the Transfer of Property Act, Clause (h) of Section 108 after the determination of the lease, the lessee is given the right while he is in possession of the property, to remove all things which he has attached to the earth. This right however enures to him so long as he is in possession of the property leased, but not afterwards. Notwithstanding the determination of the lease, so long as he is in possession of the property, he is entitled to remove it but, if he leaves the property, he has no right to the property and remove it, and the fixtures become the property of the lessor.
21. In T.N. Ramachandra Naidu v. T.R. Parameswaran Nair (1970)1 M.L.J. 575 also, a similar question was considered by this Court, and it was held thus:
The rights of the landlord and the tenant will have to be determined with reference to the provisions of the Transfer of Property Act and the City Tenants Protection Act, the provisions of the latter Act prevailing wherever there is specific provision therein. Under the Transfer of Property Act, when land alone is leased, the lessee has no other right over the land except as a lessee and on the determination of the lease, the lessor becomes entitled to possession of the land. Under Section 108(h) of the Transfer of Property Act, on the determination of the lease, the lessee whilst in possession of the property, leased can at any time remove the superstructure which the lessee has put up on the land and leave the property in the state in which the lessee received it. The lessee is the owner of the building put up by him on the land, and even so, his only right is to remove the superstructure. He has no right to compel the landlord to take the superstructure and pay the value thereof. Even with regard to this limited right of the lessee to remove the superstructure, there can be a contract to the contrary by which the lessee may agree not to exercise his right to remove the superstructure with or without any claim for compensation therefor. What is important to notice is that if the lessee does not exercise his right to remove the superstructure on the determination of the lease, the superstructure becomes part of the demised premises and thereafter if the lessee continues in possession as a tenant, he will be tenant of the land as well as of the building. In other words, if on the determination of the lease, the lessee does not remove the superstructure it becomes part of the land, and the property of the landlord, without any further conveyance or formal transfer of the superstructure from the lessee to the lessor.
22. In Gopi Kanta Sen v. Abdul Gaffur and Ors. (1968)1 S.C.W.R. 168, their Lordships were considering about the provisions of Calcutta Thika Tenancy Act, and how far Section 108 (h) of the Transfer of Property Act is applicable in such tenancies. While considering the same, the right to claim compensation for the superstructure was considered by their Lordships thus:
The correct view is that Sections 4 and 5, Thika Tenancy Act being perspective and as such inapplicable to pre-act suits, the landlord has to establish the existence of one of the grounds specified in Section 3 in order to succeed. There being no provision for transfer of pending suits and appeals. The court hearing the appeal would have to pass a decree for ejectment even if the defendant was a thika tenant after taking into account Section 3. The tenant could not however ask for any compensation, for the structures but could only remove them in terms of Section 108 (h) Transfer of Property Act....
23. From the evidence, it is clear that Natesa Mudaliar sold the property after he left the leased premises. The law is very clear that once he left the leasehold properties, he has no right over the building. Once he left, the fixtures also belong to the lessor. No document is required for the said purpose. Naturally any sale alleged to have been taken by the defendant from Natesa Mudaliar is also invalid. In this case, there is no documentary evidence show that Natesa Mudaliar had in fact sold the building to the defendant. But in view of his admission itself, it follows that the building can belong only to the temple, though constructed by the erstwhile lessee. If that be so, the contention of the defendant that the temple did not have ownership over the building falls to the ground. The temple, while executing Ex.B-1, properly exercised its right over the building, and the defendant with open eyes, took that building also on rent. He cannot thereafter put forward a contention that the temple did not have any right over the building.
24. The contention of the defendant that it is a mistake is an afterthought and the same cannot be accepted. Even if it is a unilateral mistake, that mistake is on the part of his wife. That cannot be a ground to avoid a valid transaction. The subsequent correspondence between the parties also will show that the plea of mistake cannot be accepted. If so, the defendant cannot deny the title of the temple over the building. The principles of Section 116 of the Evidence Act also apply to the facts of this case.
25. Learned Counsel for the respondent contended that even if the defendant has any right, that right is also taken away in view of Act 2 of 1996. Section 3 of the amended Act has declared that so far as religious institutions are concerned, the provisions of City Tenants Protection Act cannot be enforced against them. Section 3 reads thus:
Every proceeding instituted by a tenant in respect of any land owned by any religious institution or religious charity belonging to Hindu, Muslim, Christian or other religion and pending before any court or other authority or officer on the date of the publication of this act in the Tamil Nadu Government Gazette shall, in so far as the proceeding relates to any matter falling within the scope of the principal Act, as amended by this Act, in respect of such land, abate, and all rights and privileges which may have accrued to that tenant in respect of any such land and subsisting immediately before the said date shall in so far as such rights and privileges relate to any matter falling within the scope of the Principal Act, as amended by this Act cease and determine and shall not be enforceable. Provided that nothing contained in this Section shall be deemed to invalidate any suit or proceeding in which a decree or order passed has been executed or satisfied in full before the said date.
26. In view of my finding that the building also belongs to the temple and the same is also the subject-matter of the demise, I find that the defendant is not entitled to the benefits of the Tamil Nadu City Tenants Protection Act.
27. The second question of law is, whether the notice issued under Section 106 of the Transfer of Property Act is valid, and whether the notice under Section 11 of the Tamil Nadu City Tenants Protection Act is necessary before recovery can be allowed. So far as Section 106 of the Transfer of Property Act is concerned, learned Counsel for the appellant himself fairly conceded that the notice issued is proper. On a reading of the notice also, (which is Ex.B-6, dated 2.12.1966), I hold that the tenancy has been properly terminated.
28. Further, once the defendant has denied title of the landlord in respect of a part of the demised premises, I do not think any notice under Section 106 of the Transfer of Property Act is also required.
29. Insofar as the later portion of the question of law, once I hold that the defendant is not entitled to the City Tenants Protection Act, the question of issuing a notice under Section 11 of the Tamil Nadu City Tenants Protection Act also does not arise. The question No. 2 is also found against the appellant.
30. As I said earlier, the revision is from an order in an interlocutory application which was in issue in the suit itself. The civil revision petition is also, therefore, liable to be dismissed, and I do so accordingly. However, there will be no order as to costs in the revision petition.
31. The second appeal is dismissed with costs.