Judgment :- 1. The plaintiff in OS. No. 2235 of 1971 on the file of the learned District Munsif, Erode, is the Appellant. He died during the pendency of the Second Appeal and his legal representatives were brought on record as appellants 2 to 7 as per order dated 6.1.92 made in CMP. No. 13241 of 1992. The plaintiffs case briefly stated is as follows: 2. The plaintiff filed the suit for delivery of possession of the suit property and for a mandatory injunction for directing the defendant to remove the superstructure and also for past and future mesne profits. The suit property bears Door No. 52, Sathy Road, Erode and it belongs to the plaintiff. The defendant is in occupation of the suit property as a tenant agreeing to pay a monthly rent of Rs. 20/- payable on the last day of every English month. The lease is oral. The defendant has put up a superstructure at his cost. The plaintiff filed RCOP. No. 38/69 for evicting the defendant. It was the contention of the defendant that he has taken the vacant site only and so that the Rent Control Act would not apply. So RCOP. No. 38/69 was dismissed on 24.9.70. The plaintiff filed CMA. No. 48/70 in the sub Court against the judgment made in RCOP. No. 38/69 and he withdrew the same with liberty to move the Civil Court for possession. Hence the plaintiff filed the present suit for possession of the vacant site. The plaintiff issued notice on 12.4.71 to the defendant calling upon him to deliver vacant possession of the suit property on or before 30.4.71 terminating the tenancy. The defendant sent a reply on 27.7.71. The plaintiff ceased to accept rent from the defendant since the defendant was no longer a tenant. 3. The defendant raised the following defence. The defendant admits the tenancy under the plaintiff on a monthly rent of Rs. 20/-. But it is not correct to say that the lease is oral. It is false to say that the defendant has put up superstructure over the vacant site undertaking to vacate the site after removing the superstructure at his cost. Even while the defendant took the site on lease from the plaintiff, there was superstructure existing already and the defendant purchased the same from the previous tenant, one Mariappa Mudaliar. The plaintiff has filed RCOP. Even while the defendant took the site on lease from the plaintiff, there was superstructure existing already and the defendant purchased the same from the previous tenant, one Mariappa Mudaliar. The plaintiff has filed RCOP. No. 3869 and it is false to say that the defendant contended in the said Rent Control proceedings that the provisions of the Rent Control Act would not apply. The plaintiff filed C.M.A. No. 48/70 and withdrew the same with an ulterior motive. The present suit is not maintainable in law. The defendant is still a tenant and is entitled to the benefits of the Madras Buildings (Lease and Rent Control) Act. Since the plaintiff refused to receive the rent, the defendant was forced to send the rent by money order. So, the defendant filed RC.OP No. 68/71 for depositing the rent. As the plaintiff submitted to the jurisdiction of the Rent Controller and invited a finding on merits, he is estopped from disputing the same in the present suit without getting the said order set aside. The trial court has no jurisdiction to entertain the suit and so, the suit may be dismissed. 4. The defendant filed an additional written statement on 21.6.1973. The suit property is situated within the Erode Municipal Limits and the Madras City Tenants Protection Act is applicable to this case. The defendant is entitled to the benefits under the said Act. The superstructure over the suit property belongs to the defendant. The present market value of the superstructure is Rs. 10,000/-. The defendant has made substantial improvements to the site at a cost of Rs. 2,000/-. The plaintiff is bound to pay the 15. In the result, the judgment and decree of the lower appellate Court are set aside and the judgment and decree of the trial court are restored and the second appeal is allowed and the suit is decreed as prayed directing the defendant to surrender vacant possession of the suit property within three months from this date. In the value of the building and the cost of improvement before seeking to evict the defendant. The present suit is not maintainable for want of valid notice under S. 11 of the City Tenants Protection Act. The plaintiff is bound to give notice granting three months time and offer to pay the value of the superstructure before filing the suit. The trial court framed the following issues: 1. The present suit is not maintainable for want of valid notice under S. 11 of the City Tenants Protection Act. The plaintiff is bound to give notice granting three months time and offer to pay the value of the superstructure before filing the suit. The trial court framed the following issues: 1. Whether the defendant put up the superstructure over the vacant site undertaking to remove the construction at the time of vacating? 2. Whether there is any valid notice terminating the tenancy? 3. Whether the plaintiff is entitled to the arrears of rent claimed in the plaint? 4. Whether this court had jurisdiction to try the suit? 5. To what relief is the plaintiff entitled? Additional issues framed on 11.9.73: 6. Whether the defendant is entitled for the benefits of the City Tenants Protection Act? 7. Whether the plaintiff is bound to pay the value of the building and improvements to the defendant? 8. Whether the suit is not maintainable for want of valid notice under S. 11 of the above Act? 5. On the side of the plaintiff and defendant no witness was examined. But the plaintiff alone marked Exs. A.1 to A.4 on his side. The defendant has not marked any documents. 6. The defendant admitted the tenancy under the plaintiff but submitted that he is entitled to the benefits under the Madras City Tenants Protection Act. According to the defendant, he has put up a construction over the suit property. The defendant also filed two petitions I.A. Nos. 264/74 and 1685/75 under the Madras City Tenants Protection Act. One of the petitions was for selling the suit property to the defendant. The trial court allowed the defendants application under the Madras City Tenants Protection Act. Ultimately, this court negatived the claim of the defendant in the suit property. Learned District Judge in CMA. No. 75/86 dismissed the defendants plea under the Madras City Tenants Protection Act. Then the defendant filed CRP. Nos. 1295 and 1296/78 in this Court. The plea of the defendant under the Madras City Tenants Protection Act was totally negatived by this court in the above CRPs. Ex. A.1 is the notice of the plaintiff dated 12.4.1971 calling upon the defendant to vacate the suit property on or before 30.4.71. Ex. A2 dated 27.7.71 is the reply sent by the defendant to the plaintiff repudiating the plaintiffs claim over the suit property. Ex. Ex. A.1 is the notice of the plaintiff dated 12.4.1971 calling upon the defendant to vacate the suit property on or before 30.4.71. Ex. A2 dated 27.7.71 is the reply sent by the defendant to the plaintiff repudiating the plaintiffs claim over the suit property. Ex. A3 dated 26.10.79 is the copy of the order in CRP. Nos. 1295 and 1296/78. Ex. A.4 is the final order made in the above CRPs. 7. The next contention of the defendant is that he had purchased the superstructure from Mariappa Nadar who was the previous tenant under the plaintiff. But no documentary evidence was filed in support of his case and there is no oral evidence also let in by the defendant. S. 11 of the City Tenants Protection Act reads that no suits in ejectment or application shall be instituted or presented against the tenant until the expiration of 3 months next after notice in writing has been given to him requiring him to surrender possession of the land and building and offering to pay compensation for the building and place, if any, and stating the amount thereof. The trial court held that since this Court had negatived the plea of the defendant under S. 9 of the City Tenants Protection Act, notice under Section 11 of the Act is unnecessary. The defendant also claimed that he had put up superstructure to the value of Rs. 10,000/- and improvements at Rs. 2,000/- and that the plaintiff should be directed to pay the said sum before the defendant is asked to vacate. Even for this there is no evidence, either oral or documentary. The suit property was leased out to the defendant in the year 1963 by the plaintiff. There is no written lease. S. 106 of the Transfer of Property Act reads that in the absence of a contract or local law or usage to the contrary a lease of immovable property for agricultural or manufacturing purpose shall be deemed to be a lease from year to year, terminable on the part of lessor lessee by six months notice expiring with the end of a year of the tenancy, and a lease of immovable property for any other purpose shall be deemed to be a lease, by fifteen days notice expiring with the end of month of the tenancy. The plaintiff issued a notice on 12.4.1971 and the trial court has held that it is valid notice terminating the tenancy. The plaintiff claimed a monthly rent of Rs. 20/- and there are arrears from the date of suit till the delivery of possession. It is not the case of the defendant that he paid the rent at the rate of Rs. 20/- from the date of plaint. So, the trial court found that the plaintiff is entitled to arrears of rent by way of damages for use and occupation from the date of the suit till the date of delivery of possession at the rate of Rs. 20/- per month. The plea of the defendant that he is entitled to the benefits under the City Tenants Protection Act was negatived by this court and so his plea that the trial court has no jurisdiction to entertain the suit was found to be untenable. The trial court found that it has jurisdiction to try the suit. The trial court found all the issues in favour of the plaintiff and decreed the suit directing the defendant to surrender possession of the suit property within one month from that date. 8. The defendant filed an appeal As. No. 7/81 before the learned First Additional Subordinate Judge, Erode. The lower Appellate court set aside the judgment and decree of the trial court and allowed the appeal and dismissed the suit. 9. This Second Appeal was admitted by this court on the following substantial questions of law: 1. Whether the lower appellate court has acted correctly in dismissing the suit merely on the ground that the tenants ownership of the superstructure has not been properly proved, and as such a decree for possession coupled with the decree for mandatory injunction cannot be passed? 2. Whether the lower appellate court is right in holding that the plaintiff is not entitled to claim arrears of rent or damages for use and occupation after holding that the plaintiff is not only entided to the land, but also the superstructure standing on it? 3. 2. Whether the lower appellate court is right in holding that the plaintiff is not entitled to claim arrears of rent or damages for use and occupation after holding that the plaintiff is not only entided to the land, but also the superstructure standing on it? 3. Whether the finding of the lower appellate court that proper notice under S. 106 of the Transfer of Property Act has not been given is correct?” S. 2 of the Tamil Nadu City Tenants Protection Act, as amended, defines ‘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) included- (a) any such person as is referred to in sub-section (1) who continues in possession of the land after the determination of the tenancy agreement b) any person who was a tenant in respect of such land under a tenancy agreement to which this Act is applicable under sub section (3) of S. 1 and who or any of his predecessors-in-interest had erected any building on such land and who continues in actual physical possession of such land and building, notwithstanding that — (1) such person was not entitled to the rights under this Act by reason of the Proviso to S. 12 of this Act as it stood before the date of the publication of the Madras city Tenants Protection (Amendment) Act, 1972 (Tamil Nadu Act IV of 1972, or (2) a decree for declaration or a decree or an order for possession or for similar relief has been passed against such person on the ground that the Proviso to S. 12 of this Act as it stood before the date of the publication of the Madras city Tenants Protection (Amendment) Act, 1972 (Tamil Nadu Act IV of 1972) disentitled such person from claiming the rights under this Act, and (c) the heirs of any such person as it referred to in sub-clause (1) or sub-clause (ii) or (ii)(b); but does not include a sub-tenant or his heirs.” Section 3 of the abovesaid Act rends as follows: “ 3. Payment of compensation on ejectment:— 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 predecessor-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 for the value of any building shall also be paid for the value of trees which may have been planted by him on the land and of any improvement which may have been made by him.” Section 9 of the Act reads as follows: “ 9. Application to court for direction the landlord to sell land:— (1)(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. 1982, taken by the landlord, may, within one month of the date of the publication of the 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) Notwithstanding anything contained in clause (1)(i) of this Sub-Section any such tenant as is referred to in sub-clause (ii)(b) of clause (4) of S. 2 or his heirs, may within a period of two months from the date of the publication of the Madras City Tenants Protection (Amendment) Act, 1973 apply to the Court (whether or not a suit for ejectment has been instituted or proceeding under S. 41 of the Presidency Small Cause Courts Act, 1882 (Central Act XV of 1882) has been taken by the landlord or whether or not such suit or proceeding is pending) having jurisdiction to entertain a suit for ejectment or in the city of Madras either to such court or to the Presidency Small Causes Court, for an order that the landlord under the tenancy agreement 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. 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 order. The court shall order that within a period to be determined by the court not being less than three months and not more than three years from the date of the order the tenant shall pay into court or otherwise as directed the price so fixed in one or more instalments with or without interest. (2) In default of payment by the tenant of any one instalment, the application under Clause (a) of sub-Section (1) shall stand dismissed, provided that on sufficient cause being shown, the Court may excuse the delay and pass such order as it may think fit, but not so as to extend the time of payment beyond the three years abovementioned. On the application being dismissed, the Court shall order the amount of the instalment or instalments, if any, paid by the tenant to be repaid to him without any interest. On the application being dismissed, the Court shall order the amount of the instalment or instalments, if any, paid by the tenant to be repaid to him without any interest. (3)(a) On payment of the price fixed under Clause (b) of Sub-Section (1), the Court shall pass on order directing the conveyance by the landlord to the tenant of the extent of land for which the said price was fixed. The court shall, by the same order, direct the tenant to put the landlord into possession of the remaining extent of the land, if any, the stamp duty and registration fee in respect of such conveyance shall be borne by the tenant. (b) On the order referred to in Clause (a) being made, the suit or proceeding shall stand dismissed, and any decree or order in ejectment that may have been passed therein but which has been executed shall be vacated. Explanation - ‘Land’ means the interest of the landlord in the land and all other interest which he can convey under any power and includes also the full interest which a trustee can convey under the power possessed by him to convey trust property when necessity exists for the same or the alienation of the property is for the benefit of the estate or trust. (3-A) Notwithstanding anything contained in Clause (b) of sub-Section (3) of this Section or in S. 5 of the Madras City Tenants Protection (Amendment) Act, 1972 (Tamil Nadu Act 4 of 1972) or any other law for the time being in force, the Court which passed the decree or order referred to in sub-Cl. (ii) (b)(2) of Cl. (4) of S. 2, shall, on application made by the tenant referred to in that sub-Clause within a period of two months from the date of the Publication of the Madras City Tenants Protection (A mendment Act, 1973, reopen or review the proceedings relating such decree of order and may pass a decree or an order that the tenant referred to in the said sub-Clause, is entitled to the rights under this Act and pass such other supplemental, incidental or consequential orders as are necessary for the purpose as if the Madras City Tenants Protection (Amendment) Act 1973, were in force at the time at which the decree or order was passed.” 11. Mr. Mr. T.R. Rajagopalan, learned Senior Advocate for the appellants contended that there is sufficient compliance of S. 106 of Transfer of Property Act and that the notice of termination is valid in law. The second contention raised by him is that the defendant has not established his title to the building, that he is not entitled to claim compensation for the building under S. 3 of the Madras City Tenants Protection Act and that a tenant who is entitled to compensation under S. 3 of the Act can alone maintain an application under S. 9 of the Madras City Tenants Protection Act. According to him, the defendant is not the successor-in-interest of the previous tenant who has constructed the building and so the defendant cannot claim compensation also. In support of his contention, he relied upon the judgment reported in Sivaperumal Trust v. Seethalakshmi Ammal (100 L.W. 86). In that case Ratnam, J., as he then was has held that the benefit under S. 9 of the Tamil Nadu City Tenants Protection Act can be claimed only if the tenant satisfied the court that he had erected the superstructure on the demised land and that he continued to be the owner thereof on the date of his making the application. It is further held in that case that a person who had admittedly parted with his title to the superstructure cannot project any claim under S. 9 of the Act. 12. It is stated in the plaint that the defendant was using the suit property for his residential purpose. Even in the affidavit filed by the defendant, he has shown the suit property as residence. When the Madras city Tenants Protection Act was extended to the residential buildings, the defendant filed I.A. 264/74 under S. 9 of the Act. But no plea was raised by him till the hearing of the appeal before the Sub Court that the suit became abated. Since such a plea was not raised in the courts below, the defendant cannot be allowed to raise the plea in this court that the suit has become abated. The defendant filed IA. No. 264/74 under S. 9 of the Act and by doing so he has waived the notice under S. 11 of the Act by his conduct. In support of this proposition, Mr. The defendant filed IA. No. 264/74 under S. 9 of the Act and by doing so he has waived the notice under S. 11 of the Act by his conduct. In support of this proposition, Mr. T.R. Rajagoplan learned senior counsel relied upon the Judgment in Natesa Naicker v. Vedagiri (1975-1 M.L.J. 301 = 88-L.W. 779) where the learned Judge Gokulakrishnan, J., as he then was, held the filing of an application under S. 9 of the Act by the tenant would amount to waiver of notice under S. 11 of the Act. In the decision in Balasubramanian Iyer v. S.P. and Muthukrishnaswami Devasthanam , (1983-I M.L.J. 280), this court (Ramanujam, J.), after following the judgment of this court in the case of Natesa Naicker v. Vedagiri (1975-I.M.J. 301 = 88-L.W. 779) held where a tenant without claiming the benefit of the notice under S. 11 merely files an application claiming the benefit under S. 9, he must be taken to have lost his right by waiver of the notice under S. 11. Mr. V. Narayanaswami learned counsel for the respondent submitted that the decision made in CRP. Nos. 1295 and 1296/78 arising out of application under S. 9 of the said Act would not bar the defendant from claiming the relief under S. 9 of the Act. In support of his contention, he relied upon the judgment of the Supreme Court in the decision reported in Thailammal and others v. Janardhan Raju and others (1992-2-L.W. 595). Mr. V. Narayanaswami, learned counsel for the respondent submitted that the decision in the abovesaid two CRPs. arose out of an interlocutory application and so that he can agitate the matter in the suit once agaia Per contra Mr. T.R. Rajagopalan learned senior counsel for the appellants submitted that there was no appeal filed against the order made under S. 9 of the Act and so, the Supreme Court has held that in the appeal filed against the original decree, relief can be claimed even though no appeal was filed against the order made under S. 9 of the Act. According to him, an appeal was filed by the landlord and the application under S. 9 of the Act was dismissed and the revisions filed by the defendant against those orders were dismissed. According to him, an appeal was filed by the landlord and the application under S. 9 of the Act was dismissed and the revisions filed by the defendant against those orders were dismissed. According to him, the decision of the Supreme Court referred to above, would not apply to the facts of this case. Lastly Mr. T.R. Rajagopalan, learned senior advocate submitted that the additional documents cited by the respondent herein have not been produced before the courts below and that there is no justification for the respondent to produce those documents at this stage, after a period of nearly 7 years from the date of filing of the second appeal. We pointed out that there is no valid reason for not filing the documents before the courts below. Accordingly CMP. No. 16604/84 for reception of additional documents has to be dismissed. The CMP. is accordingly dismissed. 13. Mr. V. Narayanaswami, learned counsel for the respondent submitted that the defendant is entitled to compensation under S. 3 of the Act and in support of his contention, he relied upon the judgment reported in Sivasubramania Pillai v. Jamila Mosque Executive Committee (99 L.W. 45). According to him that (S. 3) would apply even to an assignee of the superstructure alone when he is able to get a tenancy of the land from the landlord and so that the defendant is entitled to the benefit under S. 3 of the Act and consequently he is entitled to file an application under S. 9 of the Act for purchasing the land. It is not the case of the defendant that the tenancy and also the superstructure would comg within the definition of S. 3 of the Act and so that this decision is not applicable to the facts of the case. He relied upon the judgment in the decision reported in S. Venkatachalam Iyer v. S. Rama Iyer ( AIR 1992 S.C. 243 ) for the proposition that the defendant is entitled to the benefit under S. 3 of the Act and also for a direction to the landlord to sell the property to him even though the building was not put up by him; but by the previous tenant. In that case, the superstructure was put up by Sami Mudaliar from whom the respondent had purchased it. In that case, the superstructure was put up by Sami Mudaliar from whom the respondent had purchased it. So, as far as the building or the superstructure is concerned, the High Court is entitled to take the view that it was put up by the predecessor in-interest of the respondent, and so, the Supreme Court held that the respondent is certainly entitied to claim the benefit under S. 9 of the Act. In the instant case, it is not the case of the defendant that he purchased the superstructure from the previous tenant and so, the decision reported in AIR. 1992 S.C. 243 (supra) is not applicable to the facts of the present case. 14. In these circumstances, I hold that the notice of termination of tenancy is valid in law and that the defendant is not entitled to compensation under S. 3 of the Act and also he is not entitled to make an application under S. 9 of the Madras City Tenants Protection Act, as emended. 15. In the result, the judgment and decree of the lower appellate are set aside and the judgment and decree of the trial court are restored and the second appeal is allowed and the suit is decreed as prayed directing the defendant to surrender vacant possession of the suit property within three months from this date in the circumstances, there is no order as to costs. The Memorandum of Cross Objection in SA. No. 1912/82 having been posted this day for being mentioned pursuant to the order of this court dated 7.2.94 and made in SA. 1912/82, the Court delivered the following JUDGMENT: “Mr. V. Narayanaswami, learned Counsel for the Cross Objector submits that since the Second Appeal was allowed, the Cross Objection has to be dismissed. Cross Objection is dismissed. Time granted by three months will commence from today”.