Judgment :- 1. In Second Appeal, defendants 1 and 2 are the appellants. In the Civil Miscellaneous Appeal, the legal representatives of the plaintiff are the appellants. 2. Reference to the parties in both these Appeals will be as in the suit. 3. Plaintiff-K.M. Yakub filed O.S. No. 1286 of 1978, on the file of Second Additional Sub Judge, Erode, for recovery of the schedule properties from the defendants. Plaintiff is the owner, and he leased out the same from 1953 onwards in favour of the first defendants predecessor and the lease continued by various renewals, upto 29-2-1976. Thereafter, there was no renewal. But the enactment ‘Caltex Oil Refining (India) Limited under the Caltex (Acquisition of Shares of Caltex Oil Refining (India) Limited and of the Undertakings in India of Caltex (India) Limited, 1977 came into force on 30-12-1976, whereby the total interest of Caltex (India) Limited vested in the Central Government. Thereafter, it became a Government-owned Company, called Caltex Oil Refining (India) Limited. The said Government Company was amalgamated with the first defendant-Company. The lease was admitted by the defendants also, and they claimed the benefits of City Tenants Protection Act. The first defendant filed I.A. 374 of 1979 under Section 9 of the City Tenants Protection Act. Evidence was taken. The trial court held that the first defendant has no possession, and the same was sub-leased to the second defendant. The matter was taken in C.M.A. 32 of 1983, without success. A revision was filed before this Court as C.R.P. No. 2100/1985. A learned Judge of this Court, as per order dated 24-9-1993, dismissed the Revision, holding that the first defendant has no possession, and the second defendant is in exclusive possession of the property. It held that when the first defendant had not physical possession, it cannot be a tenant, much less a tenant entitled to the benefits of City Tenants Protection Act. So holding, the Civil Revision Petition was dismissed. A Special Leave Petition preferred before the Supreme Court was also without success. 4. Thereafter, when the suit came for trial before the trial court, defendants put forward a contention that the suit was not maintainable since notice under Section 11 of the City Tenants Protection Act was not issued. The trial court held that there is waiver, and accordingly rejected the contention. 4. Thereafter, when the suit came for trial before the trial court, defendants put forward a contention that the suit was not maintainable since notice under Section 11 of the City Tenants Protection Act was not issued. The trial court held that there is waiver, and accordingly rejected the contention. The matter was taken in appeal before the lower appellate court as A.S. No. 63 of 1985. The lower appellate court also held that the first defendant has waived the right under Section 11 of the City Tenants Protection Act, but remanded the case to assess the value of the improvement, so that it could be paid to the tenant under Section 3 of the Act. It is against the said decree, Second Appeal No. 982 of 1995 is filed by the defendants. Against the order or remand, plaintiffs have preferred the Civil Miscellaneous Appeal. 5. The Second Appeal was originally dismissed by a learned Judge of this Court at the admission stage itself. Aggrieved by the dismissal, when the matter was taken before the Supreme Court as S.L.P. No. 27953 of 1995, the Supreme Court held that since a connected C.M.A. is pending, the dismissal at the admission stage itself was not proper, and it directed this Court to consider the question involved for consideration as expeditiously as possible and a status quo as to possession was directed to be maintained till the final disposal of the appeal by this Court. 6. After the direction of the Supreme Court, the Civil Miscellaneous Appeal was also posted along with the Second Appeal, so that both the appeals could be heard together. 7. According to the appellants, the following substantial questions of law set out in the Memorandum of Appeal arise for consideration in the Second Appeal:— 1) Whether the courts below were right in fixing the quantum of damages? 2) Whether the courts below had ample jurisdiction to decide the issues? 3) Whether the courts below were right in holding that the first appellant was only a sub-tenant? 4) Whether the lower courts were right in holding that the second appellant was in possession of the suit property even though the second defendant/appellant had no right over the suit property in terms of Exhibit B-4 and that the respondents/plaintiffs were receiving rent only from the defendant-appellant No. 1? 4) Whether the lower courts were right in holding that the second appellant was in possession of the suit property even though the second defendant/appellant had no right over the suit property in terms of Exhibit B-4 and that the respondents/plaintiffs were receiving rent only from the defendant-appellant No. 1? 5) Whether Section 11 Notice under City Tenants Protection Act is mandatory before institution of a suit? 6) Whether Setion 11 notice under City Tenants Protection Act is waived by the conduct of the appellants by filing Section 9 application prior to filing written statement? 7) Whether Section 11 notice is dependent and excludes the time period of 30 days for filing Section 9 application if the written Statement is filed prior to Section 9 application? 8) Whether the courts below were right in holding that the suit is maintainable even by non-service of Section 11 notice under the City Tenants Protection Act?” 7. The only question raised by learned counsel for the appellants was, the applicability of Section 11 of the City Tenants Protection Act and the maintainability of the suit. 8. ‘Tenant’ has been defined in Section 2(4) of the said Act thus:— “In this Act, unless there is anything repugnant in the subject or context.: ‘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: (a) any such person as is referred to in sub-clause (i) 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 Sec. 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 not with standing that: (1) such person was not entitled to the rights under this Act by reason of the proviso to section 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 4 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 Sec. 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 4 of 1972) disentitled such person from claiming the right under this Act, and (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.” 8. As per various decisions of this Court, physical possession by the tenant must be proved, and only such persons can claim the benefit of the Act. 9. In 89 L.W. 1 ( Haridas Girdhardas and others v. M. Varadaraja Pillai and another), this question was considered by a Division Bench of this Court. In paragraph 10 of the said judgment, their Lordships have held thus:— “Firstly, when on 24th March 1974, Varadaraja Pillai delivered to the landlord physical possession of the land and building covered by the tenancy, he would have ceased to be a tenant even within the extended definition of a tenant under S. 2 of the Amending Act 24 of 1973. In order for any person to come within the extended definition of a tenant, (1) he must be a person liable to pay rent in respect of the land to which the tenancy relates under the tenancy agreement, express or implied, and (2) such person continues in possession of the land even after the determination of the tenancy agreement, or (1) he must be a person who was a tenant, which means that determination of the tenancy does not matter, (2) he should have been a tenant under a tenancy agreement to which the Act was applicable, (3) he or his predecessor-in-interest had erected any building on the land, and (4) he ‘continues in actual physical possession of the land and building’. If these requisites are satisfied by any one, he will b e a tenant within the extended definition of the expression and this will be so not withstanding the fact that such person was not entitled to the rights under the Act by reason of the proviso to S. 12, as it stood before its repeal or that a decree for declaration or a decree or order for possession had been made against such person on the ground of the proviso to S. 12, before its repeal which disentitled him from claiming rights under the Act. In our opinion, the requirement under S. 2 (4) (ii) (a) or (b) as to continuance in possession of the land, or continuance in possession of the land and building has to be satisfied not only as on the date of the Amending Act 24 of 1973, came into force and on the date of the application for sale, but also subsequently until an order is made under S. 9 and the same as well the provisions of that Section are fully worked out. Such a requirement is necessary. Clauses (2) and (3) of S. 9, as a matter of fact, imply that the tenant continues in possession of the lands to be dealt with as contemplated therein even after the stage of fixing the price and payment thereof, even in the context of application under S. 9 (1) (a) (ii). Such a requirement is necessary. Clauses (2) and (3) of S. 9, as a matter of fact, imply that the tenant continues in possession of the lands to be dealt with as contemplated therein even after the stage of fixing the price and payment thereof, even in the context of application under S. 9 (1) (a) (ii). Once Varadaraja Pillai put the landlord in possession of the land and building as aforesaid, he no more had any rights under the Act, in particular to claim to be a tenant within the extended definition and on that basis to apply and get an order for sale of the land under S. 9 (1) (a) (ii). S. 5 of the Amending Act 4 of 1972, as already noticed, made Ss. 3 and 4 inapplicable to a case in which the tenant before the commencement of that Act, had delivered actual physical possession. The principle that once the tenant has delivered possession of the demised land and building to the landlord, there is an end of the tenancy and the tenant ceased to have that character any more, is with better force applicable to the extended definition of a tenant under the Amending Act 24 of 1973”. 10. In 1986-1-M.L.J. 393 (K.J. Srinivasan and others v. Hindustan Petroleum Corporation Limited (HPCL) Head Office for India at Bombay and others), this question was considered, and the judgment of the Division Bench (cited supra) was followed. Nainar Sundaram, J. (as he then was) declared ‘that actual physical possession is a sine qua non to claim and obtain the benefits of the Act has been countenanced by more than one pronouncement of this Court’. 11. In 1979-II-M.L.J. 144 = 92 L.W. 259 (T.R.P. Raja Sekara Bhoopathy v. Navaneethammal and others) also, T. Ramaprasada Rao, C.J. said thus:— “.. The primordial requirement for a tenant to claim the benefits under the Act is that he should be in actual physical possession of such land and building”. 12. The same principle has been enunciated in 1983-II-M.L.J. 319 = 96 L.W. 417 (Estate of T.P. Ramaswami Pillai v. Mohd. Yousuf). The primordial requirement for a tenant to claim the benefits under the Act is that he should be in actual physical possession of such land and building”. 12. The same principle has been enunciated in 1983-II-M.L.J. 319 = 96 L.W. 417 (Estate of T.P. Ramaswami Pillai v. Mohd. Yousuf). While considering the sime, v. Ratnam, J. (as he then was) has held thus:— “To recognise a claim to the benefits of Section 9 of the Act by the heirs of the tenant (as defined under sections 2 (4) (i) and 2 (4) (ii) (a) and (b), under section 2(4) (c) of the Act) who are not at all in possession would be to violate the very definition of the word “tenant’ and also totally defeat the very object with which the provisions of the Act had been enacted.” 13. I have already stated the facts wherein I have said that the tenant filed an application under Section 9 of the City Tenants Protection Act, where his claim was rejected. A Revision was filed before this Court in C.R.P. No. 2100 of 1985 and relevant portion of the order passed thereon reads as follows:— “Despite the abovesaid different points of arguments, it is clear to me that the Civil Revision Petition could be disposed of on one of the abovesaid points of arguments alone and hence I propose to deal with that alone, viz., whether the petitioner or the 2nd defendant is in physical possession of the suit site. If the petitioner is not in physical possession, then certainly the petitioner cannot invoke Section 9 of the Act in view of the several decisions of this Court, to which the learned counsel for the petitioner had not taken any exception, as indicated in paragraph 9 above. In this connection, I may point out straightaway the following admission by D.Ws. 1 and 2 who are respectively the Accountant and Manager of the 2nd defendant, who are the only witnesses on the side of the defendants. In this connection, I may point out straightaway the following admission by D.Ws. 1 and 2 who are respectively the Accountant and Manager of the 2nd defendant, who are the only witnesses on the side of the defendants. Though in the chief-examination, D.W. 1 deposed that the 2nd defendant is a licensee under the 1st defendant, he admitted in cross-examination thus:— Tamil “Similarly, D.W. 2 also admitted as follows in cross-examination:— Tamil Further, I also find that in paragraph 11 of the plaint, it is stated thus:— “The plaintiff understands that the second defendant is in possession as an assignee or sub-lessee or licensee from Caltex (India) Ltd., and he is in actual possession of the suit site”. But, as against this assertion that the 2nd defendant is in actual possession, there is no denial in the written statement of either of the defendants. No doubt, the learned counsel for the petitioner argues that as per Ex. B-4 dated 24-11-1976, the 2nd defendant was only a licensee, and not having exclusive possession as a sub-lessee. In this connection, he also draws my attention to the relevant portion in clause 4 of Ex. B-4, which also is entitled as ‘licence agreement’. “This agreement shall not be construed as creating any right, interest or tenancy in favour of the Dealer in respect of the Service Station”. But this agreement is only between the 1st defendants predecessor, viz., Caltex (India) Limited and the 2nd defendant. It is also admitted that there is a written agreement between defendants 1 and 2 also. But that has not been exhibited. So, the abovesaid admission by D.Ws. 1 and 2 that the 2nd defendant is paying rent to the 1st defendant all these years and the abovesaid non-denial of the abovesaid relevant allegation in the plaint has to be given full effect and it must be held that the 1st defendant is not in physical possession of the suit site. Therefore, since the 1st defendant is not in physical possession of the suit site, the 1st defendant is not entitled to invoke the abovesaid Section 9 and purchase the suite site. As already indicated, this Court has also held consistently that if the tenant under the Act is not in physical possession of the site in question, he is not entittled to invoke Section 9 of the Act ( Vide Estate of T.P. Ramaswami Pillai v. Mohd. As already indicated, this Court has also held consistently that if the tenant under the Act is not in physical possession of the site in question, he is not entittled to invoke Section 9 of the Act ( Vide Estate of T.P. Ramaswami Pillai v. Mohd. Yousuf (1983) II M.L.J. 319 = 96 L.W. 417) T.R.P. Raja Sekara Bhoopathy v. Navaneethammal (1979-(2) MLJ 144 = 92 L.W. 254) and N. Kannayiram v. Sri Kallalagar (99 L.W. 929)”. 14. In view of the finding in the Civil Revision Petition aforementioned, it cannot be doubted that the first defendant herein is not in possession. If possession is a sine qua non to claim the benefit of the Act, and if it is found that the first defendant is not in possession, then, he cannot be said to be a tenant under the Act. The finding in C.R.P. No. 2100 of 1985 concludes the matter, even though that was in an interlocutory stage. A reading of Section 11 of the City Tenants Protection Act makes it clear that the institution of the suit is barred only against those tenants who are entitled to claim the benefits of the tenancy or who come within the definition of ‘tenant’ under the Act. I hold that the finding in C.R.P. 2100 of 1985 even though it is in the same suit, will be conclusive so far as the first appellant in the Second Appeal is concerned in view of the following decisions. 15. In AIR 1960 SC 941 (Satyadhyan v. Smt. Deorajin Debi), it was held thus:— “The principle of res judicata is based on the need of giving a finality to judicial decisions, what it says is that once a res judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter - whether on a question of fact or a question of law - has been decided between two parties in One suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This s principle of res judicata is embodied in relation to suits in S-11 of the Code of Civil Procedure; but even where S. 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct. The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings”. This decision of the Supreme Court was followed again in AIR 1964 SC 993 ( Arjun Singh v. Mohindra Kumar ), and in a little more extent, their Lordships held thus:— “Scope of the principle of res judicata is not confined to what is contained in S. 11 but is of more general application. Again, res judicata could be as much applicable to different stages of the same suit as to findings on issues in different suits. If the court which rendered the first decision was competent to entertain the suit or other proceedings, and had therefore competency to decide the issue or matter, the circumstances that it is a tribunal of exclusive jurisdiction or one from whose decision no appeal lay would not by themselves negative the finding on the issue by it being res judicata in later proceedings. Where the principle of res judicata is invoked in the case of the different stages of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjectival law provides for the decision being reached, as well as the specific provisions made on matters touching such decision are some of the material and relevant factors to be considered before the principle is held applicable. Interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the court usually take. Interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the court usually take. They do not, in that sense decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of, the court would be justified in rejecting the same as an abuse of the process of court. ” (Emphasis supplied) Their Lordships further want on to say thus:— “ .. If the principle of res judicata is applicable to the decision on a particular issue of fact, even if fresh facts were placed before the court, the bar would continue to operate and preclude a fresh investigation of the issue. ” (Emphasis supplied) 16. In A.I.R. 1967 S.C. 1182 (Management of the Northern Railway Co-operative Society Ltd. v. Industrial Tribunal, Rajasthan), the question of res judicata in the same proceedings came for consideration. There, the maintainability of an industrial dispute was challenged before the Labour Court, as a preliminary issue. The matter was taken before the High Court. The High Court held that it is an industrial dispute. After the finding by the High Court that it is an industrial dispute, the matter was taken back to the Labour Court, and evidence was adduced. From the final order, the matter went to the Supreme Court. Before the Supreme Court, the finding of the High Court that it is an industrial dispute was challenged. Since the finding by the High Court was in a proceeding under Article 226 of the Constitution of India, against which there was no appeal under Article 133 of the Constitution of India, their Lordships said that the judgment of the High Court concludes the matter. Since the finding by the High Court was in a proceeding under Article 226 of the Constitution of India, against which there was no appeal under Article 133 of the Constitution of India, their Lordships said that the judgment of the High Court concludes the matter. The relevant observations made by the Supreme Court read thus:— “In these circumstances, it is clear that if the appellant wanted to challenge the corrections of the decision of the High Court holding that this dispute was an industrial dispute, the appropriate remedy was to come up in appeal against the judgment of the High Court either by a certificate under Art. 133 or by Special Leave under Art. 136 of the Constitution. The appellant having failed to do so, the judgment of the High Court became final, and, consequently, binding between the parties. The parties to that petition were the parties now before us in this appeal. In this appeal brought up against the award of the Tribunal, consequently, it is no longer open to the appellant to raise the plea which was rejected by the High Court by its judgment dated 7th February, 1962. The first point raised on behalf of the appellant, therefore, fails”. 17. In A.I.R. 1972 SC 1201 (The United Provinces Electric Supply Co. Ltd. v. T.N. Chatterjee & others), a similar question was again considered. But their Lordships distinguished the decision reported in AIR 1967 SC 1182 (supra), after approving the principles enunciated therein. It was held as follows in that case:— “Lastly, we must deal with the contention raised on behalf of the respondents that the order of the Allahabad High Court made on July, 12, 1966 quashing the award after following the decision of this Court in Guest Keen Williams Pvt. Ltd. should be deemed to be final and should debar any fresh consideration or decision of that point by virtue of the rule or principle of res judicata. It is noteworthy that the order of the Allahabad High Court was hot final against which the matter could have been taken in appeal either to a Division Bench of the High Court or to this Court. It is noteworthy that the order of the Allahabad High Court was hot final against which the matter could have been taken in appeal either to a Division Bench of the High Court or to this Court. Reliance has been placed on a decision of this Court in Management of Northern Railway Co-operative Society Ltd. v. Industrial Tribunal, Rajasthan, Jaipur, (1967) 2 SCR 476 = ( AIR 1967 SC 1182 ) where reference had been made by the State Government to the Industrial Tribunal on the Railway Workers Union having raised an industrial disputes against the Management of the Northern Railway Co-operative Society Ltd. The society filed a writ petition on the ground that the dispute having been raised by the Railway Workers Union and not by the Societys own employees, the reference to the Tribunal was not competent. The High Court dismissed the petition. Thereafter, the Tribunal heard the matter and gave its decision in favour of the workman concerned. The society appealed to this Court by special leave. It was held that the order of the High Court was not interlocutory but was a final order in regard to the proceedings under Art 226. The appropriate remedy for the appellant in that case was to appeal against the High Courts order and that not having been done the appellants plea relating to the competency of the reference was barred by res judicata as the same had been raised before the High Court and had been rejected. The present case is clearly distinguishable inasmuch as the order made by the High Court was not final and a remand had been directed presumably under Art. 227 of the Constitution. That order in fact did not finally terminate any proceedings at all. .. .. ..” Since the order in the Civil Revision Petition, mentioned supra has become final, the same matter cannot be agitated by the tenant again. He also cannot claim the benefit of Section 11 of the City Tenants Protection Act. 18. Even on merits, I do not find that the appellants-defendants have a case. After receiving summons, the first defendant filed an application under Section 9 of the C.T.P. Act. That means, it wanted an adjudication in its favour, namely, that it is a tenant entitled to the benefits of the Act and also to enable it to purchase the land, which is the subject-matter of the suit. After receiving summons, the first defendant filed an application under Section 9 of the C.T.P. Act. That means, it wanted an adjudication in its favour, namely, that it is a tenant entitled to the benefits of the Act and also to enable it to purchase the land, which is the subject-matter of the suit. Such a claim under Section 9 of the Act can only be in a validly instituted suit or which the tenant treats as a suit validly instituted. If the suit was not maintainable without notice under Section 11 of the Act, then, naturally, it cannot be said that it is a validly instituted suit. I also perused the application filed by the first defendant, when it initiated proceedings under Section 9 of the Act. In the affidavit, filed in support of the application, it has not stated anything about the lack of notice and the affidavit has been filed as if it is a properly instituted suit. It is settled law that even though the wordings in Section 11 of the Act are mandatory in nature, it could be waived. That waiver can be either express or implied. Once it is waived, the tenant treats it as a validly instituted suit and seeks relief in the same case that he may be allowed to purchase the property. Various decisions have been cited by the learned counsel. But I would like to refer only to the decision reported in 1975-1-M.L.J. 301= 88 L.W. 779 ( Natesa Naicker v. Vedagiri ), where P.R. Gokulakrishnan, J. (as he then was) held that the filing of an application under Section 9 of the Act by the tenant would amount to a waiver of notice under Section 11 of the Act. The same principle is reiterated in the decision reported in 1982-2-M.L.J. 70 ( Sri Agatheeswarar Prasanna Venkatesa Perianal Devasthanam, by its hereditary Trustee P. Valliammal v. M. Narasimhan ) wherein a Bench of this Court considered the entire question and held that the right under S. 11 of the Act could be waived, and the Waiver can be either express or implied. But, on facts, in that case, the Bench held that there was no waiver. In that case, Section 9 petition was filed after the filing of written statement. But, on facts, in that case, the Bench held that there was no waiver. In that case, Section 9 petition was filed after the filing of written statement. In the written statement, a definite contention was taken that the suit is not maintainable in view of lack of notice under Section 11. Thereafter, by way of abundant caution, he f iled an application under Section 9. The contention taken in the written statement at the initial stage was taken by their Lordships as not amounting to waiver. In paragraph 11 of the judgment, their Lordships said thus:— “It is well-established that waiver is a question of fact and ought to be pleaded and proved in every case. No doubt, the filing of an application under Section 9 without any demur as regards the non-compliance with Section 11 could amount to waiver of notice as to the tenants conduct in not raising the objection relating to notice. Taking advantage of the filing of the suit by the plaintiff the filing of an application under Section 9 by the defendant would amount to conduct from which the waiver of notice can be inferred. But in this case the defendant has filed a written statement questioning the plaintiffs right to institute the suit and the jurisdiction of the Court to entertain the suit without a proper notice under Section 11. He has filed an application under Section 9 by way of abundant caution as he was not sure whether has objection regarding the maintainability of the suit based on the non-compliance with Section 11 will be accepted by the Court or not. .. ..” 19. The same principle was enunciated in the decision reported in 1983-1-M.L.J. 280 (N. Balasubramama Iyer v. Sri Ponneswari and Muthu Kumaraswamy Devasthanam, by its Managing Trustee K. Natarajan). 20. In 1992-1-L.W. 560 ( Sundara Rajan and another v. Sundaramoorthy ), the learned Judge who decided the Civil Revision Petition also held that the plea that the suit is not maintainable due to lack of notice under Section 11 could be waived by the tenant. In that case, the defendant filed written statement in which he did not take such a contention. But subsequently when he filed an additional written statement, such plea was taken and the learned Judge said that it will amount to waiver. 21. In that case, the defendant filed written statement in which he did not take such a contention. But subsequently when he filed an additional written statement, such plea was taken and the learned Judge said that it will amount to waiver. 21. In view of the settled position of law, on merits also, the first appellant-first defendant cannot contend that the suit is not maintainable since no notice was issued to it. According to me, since it is not a tenant under the Act, Section 11 notice also is not necessary. The only point urged before me at the time of arguments in the Second Appeal was, regarding the maintainability of the suit since there was lack of notice under Section 11 of the Act. 22. For the reasons stated above, the substantial questions of law raised by the appellants in this Second Appeal are found against the appellants, and the Second Appeal is dismissed with costs. C.M.A. No. 575 of 1995: 23. In so far as the Civil Miscellaneous Appeal is concerned, in view of the reasoning that the first defendant is not a tenant in possession, the question of payment for improvement also will not arise. 24. The lower appellate court has remanded the matter to the trial court, to consider about the fixation of amount payable to the first defendant under Section 3 of the C.T.P. Act. For payment of compensation also, the person claiming compensation must be a tenant under the Act. To that extent, the judgment of the lower appellate court is inconsistent. Having held that the first defendant has waived the benefit under Section 11 of the Act, and also having held that the first defendant is not in possession, the lower appellate court was not right in referring the matter for fixing the quantum, as if the first defendant is a tenant under the Act. So, that portion of the judgment of the lower appellate court cannot be upheld. 25. In the result, the Civil Miscellaneous Appeal is allowed with costs throughout. The judgment of the lower appellate court where-by it directed the trial court to fix the quantum of improvements under Section 3 of the Act is set aside. I hold that the first defendant is not entitled to claim the benefits of Act 3 of the Cultivating Tenants Protection Act.