Judgment :- 1. Originally one Venkatesa Sarma represented by his daughter and Power of Attorney Holder V. Rama Devi filed suit O.S. No. 3461/72 before the Fifth Assistant City Civil Court, Madras, against one P.B. Venugopalan for ejectment in respect of 4-1/2 grounds in T.S. No. 1/1, Block No. 50, Puliyur, Thambia Reddy Road, West Mambalam, Madras-34, after removing the superstructure, for directing the defendant to pay damages in a sum of Rs. 7000/- at the rate of Rs. 100/- per month and future damages at the same rate averring as follows: The plaintiff was the owner of the suit vacant site. Venugopalan was in occupation of 4-1/2 grounds. He was one of the trespassers on the land and he erected superstructure and was running a school, Bharathamatha Primary School. There was a watchman in charge. Venugopalan defied the plaintiff and did not vacate. Therefore, the plaintiff Venkatesa Sarma went to eject the first defendant Venugopalan pursuant to the decree in O.S. No. 2814/61 on the file of the City Civil Court, Madras, obtained against the persons under whom he become a tenant. Venugopal an implored Venkatesan Sarma not to disturb him in running the school promising to be his tenant. Out of sympathy Venkatesa Sarma allowed him to be a tenant. A letter under Ex.A-3 dated 20-4-1966 was given by Venugopalan undertaking to become Venkatesa Sarmas tenant under a lease deed for five years. Venugopalan did not execute any lease deed. He continued as Venkkatesa Sarmas tenant till 19.4.1971. On 17.3.1971, under the original of Ex.A-1, Venkatesa Sarma determined the tenancy as and from 1.5.1971. This was received by Venugopalan on 19-3-1971. There was no reply. Venugopalan was in the position of a trespasser. Ever since the termination of the tenancy no rent was paid. A demand draft for Rs. 500/- was received from one Rajalakshmi working as Headmistress. There was no covering letter received with the demand draft. Immediately Venkatesa Sarma sent a letter to Rejalakshmi mentioning about the receipt of the demand draft without a covering letter. There was no reply received from Rajalakshmi. Venkatesa Sarma encashed the draft as damages for use and occupation for five months, There was still a balance of Rs. 700/- due upto 1-5-1972. 2. The said Venugopalan filed a written statement contending as follows: The suit filed against him personally was not maintainable. There was no reply received from Rajalakshmi. Venkatesa Sarma encashed the draft as damages for use and occupation for five months, There was still a balance of Rs. 700/- due upto 1-5-1972. 2. The said Venugopalan filed a written statement contending as follows: The suit filed against him personally was not maintainable. He occupied the site at the request of the public of an extent of six grounds, which was unclaimed by any one long before 1954 for purpose of running a school. One Ellappa Naicker and others occupying the adjacent land claimed to be owners and demanded rent from Venugopalan. He refused to recognize them as landlords and occupied in his own right as he did not know as to who was the owner on account of the long pending proceedings between Venkatesa Sarma and one Munuswamy Naicker and hundred others. Venugopalan could not also recognise Venkatesa Sarma as the landlord, since he had no possession nor could he give any guarantee to Venugopalan. He was in possession openly to the knowledge of Venkatesa Sarma and had perfected title by adverse possession in respect of 4-1/2 grounds. As Correspondent he put up superstructure worth over Rs. 30,000/-. Venkatesa Sarma attempted to interfere. Hence, Venugopalan gave the letter Ex.A-3 to regularise the occupation. With regard to the balance vacant land he did not attemppt to become Venkatasa Sarmas tenant. Venkatesa Sarma also recognised the school as tenant by receiving the rent. The present suit personally against Venugopalan as if he was his tenant was filed with a view to confuse the two blocks of land to get over the bar to recover possession. The area was not measured nor was it demarcated. The notice to quit was not valid and by receiving the rent Venkatesa Sarma had waived his right. There was collusion between Venkatesa Sarma and the Headmistress in collecting the rent in the name and on behalf of the school. There was no notice given to the school to quit. Venugopalan was in possession of a particular piece of land in his ownright and the school was in his possession with the building in a different piece of land. 3. On 21.7.1972 the following issues were framed: (1) Whether the suit is maintainable? (2) Whether proper notice was issued? (3) Is the suit for recovery of possession of the land in Venugopalans possession barred? (4) To what reliefs? 3. On 21.7.1972 the following issues were framed: (1) Whether the suit is maintainable? (2) Whether proper notice was issued? (3) Is the suit for recovery of possession of the land in Venugopalans possession barred? (4) To what reliefs? 4. There was an application in I.A. No. 24357/73 filed under Order 1 Rules 3 and 10(2) of the Code of Civil Procedure to implead one A.N. Rajalakshmi on account of the fact that Venugopalan had transferred his lease-hold right to her. This application was ordered on 25.9.1974 though counter was filed and the application was opposed. 5. On 21.11.1974 Rajalakshmi, who was impleaded as the second defendant filed a written statement contending inter alia as follows: She was not a necessary party. There was no relief claimed against her. There was no privity of contract between her and Venkatesa Sarma. The rental agreement between Venkatesa Sarma and the first defendant Venugopalan was not binding on her. Venkatesa Sarma was collecting rent from the Correspondent. Only the school was the tenant. Venugopalan, the first defendant, in his personal capacity was in the occupation of another extent of land in the same block. She was paying rent as Headmistres and the school alone was the tenant. Neither Venugopalan, the first defendant, nor herself was in possession in any individual capacity. The suit was liable to be dismissed in limine. The first defendant had nothing to do with the suit land. There was no question of transferring any tenancy right to this defendant. The notice to quit was not valid or tenable. As per the letter Ex.A-3, the tenancy commenced on 20-4-1966 and the notice did not refer to any specific extent of land. There were additional issues framed. (1) Is the second defendant a proper and necessary party to the suit? (2) Is the plaintiff entitled to any relief against the second defendant? (3) Is the suit for relief of possession properly valued in so far as it relates to the second defendant? (4) Has the plaintiff any cause of action against the second defendant or the school run by her on the suit land? and (5) To what relief is the plaintiff entitled against the second defendant or the school run by her? 6. In August, 1976 the first defendant died. Venkatesa Sarma filed I.A. No. 27445/76 to bring his legal representatives on record. and (5) To what relief is the plaintiff entitled against the second defendant or the school run by her? 6. In August, 1976 the first defendant died. Venkatesa Sarma filed I.A. No. 27445/76 to bring his legal representatives on record. They were his wife Radhabai and sons Sundaram and Mohan. The petition was allowed on 16.2.1977. On 6.10.1978 Venkatesa Sarma died. On 20.11.1978 Rama Devi filed an application to come on record as legal representative of Venkatesa Sarma and as executrix of the estate of Venkatesa Sarma setting up a Will dated 11.5.1973 and a Codicil dated 25.1.1974. Rama Devi was appointed as executrix and the cause title was also amended. On 18.1.1980 the wife and sons of the first defendant filed a written statement stating that it was only the second defendant Rajalakshmi who was the tenant of the plaintiff and that they were not necessary partiess to the suit. They also raised an objection that the Will set up by the plaintiff had not been probated. On 19.2.1980 there was an endorsement made on behalf of the plaintiff stating that there was no relief claimed against defendants 3 to 5. There was an interlocutory application in I.A. No. 3700/80 filed under Section 9(1)(a)(ii) of the Tamil Nadu City Tenants Protection Act by the second defendant. On 25.2.1980 it was withdrawn with liberty to renew the application at a later stage. On 12.3.1980 the learned fifth Assistant City Civil Judge dismissed the suit holding as follows: “The plaintiff had not issued any notice to the school and the school had not been impleaded as a party. The suit was not maintainable. The Will was not produced or probated. The notice to quit was not proper. The second defendant had been impleaded in her personal capacity. Hence, she was not a proper and necessary party. The relief of possession against the second defendant had also been not properly valued”. So holding, by his judgment and decree dated 12.3.1980, the learned Fifth Assistant City Civil Judge dismissed the suit. 7. There was an appeal filed by the plaintiff in A.S. No. 198/81. In the appeal, there was a petition filed by the second defendant purporting to be under Order VI Rule 17 of the Code of Civil Procedure to amend the written statement claiming the benefits of Tamil Nadu City Tenants Protection Act. However, it was dismissed as withdrawn on 21.10.1981. In the appeal, there was a petition filed by the second defendant purporting to be under Order VI Rule 17 of the Code of Civil Procedure to amend the written statement claiming the benefits of Tamil Nadu City Tenants Protection Act. However, it was dismissed as withdrawn on 21.10.1981. The learned Second Additional Judge, City Civil Court, framed the following questions for consideration in the appeal; (1) Whether the suit filed against the first defendant in the suit and the respondent is maintainable without impleading Bharatha Matha Primary School? (2) Whether a notice under Section 106 of the Transfer of Property Act is necessary to the respondent? and (3) Whether the appellant is competent to continue the suit after the death of her father, pending the suit? and held as follows: Having undertaken to be the tenant of the schedule land under Venkatesa Sarma for a period of five years under Ex.A-3 letter and the second defendant Rajalakshmi having paid the amounts without specifying that she paid the rent on behalf of the school, they were barred from contending that they were not the tenants of the schedule land and that the school alone was the tenant. The suit against the deceased first defendant and the second defendant was maintainable and the finding contra by the trial Court was liable to be set aside. Thus, points 1 and 2 were found in favour of the plaintiff. On the third point, the learned Second Additional Judge found that without getting a probate of the Will, there could not be a decree passed in the suit. He therefore dismissed the appeal only on the ground that probate of the Will had not been obtained. Aggrieved, the Second Appeal has been filed by the plaintiff. 8. At the time of admission of following substantial question of law were framed for decision in the Second Appeal: (1) Whether the dismissal of the appeal by the lower Appellate Court for non-production of the probate is valid, legal and sustainable in law? Aggrieved, the Second Appeal has been filed by the plaintiff. 8. At the time of admission of following substantial question of law were framed for decision in the Second Appeal: (1) Whether the dismissal of the appeal by the lower Appellate Court for non-production of the probate is valid, legal and sustainable in law? and (2) Whether the first appellate Court is justified in dismissing the appeal without staying the appeal till the probate is granted by the High Court especially when it was represented to the learned Appellate Judge that the appellant filed O.P. No. 531/80 on the file of the High Court of Judicature for probate of the Will of deceased Venkatesa Sarma and the same was pending in the High Court? Questioning the findings against her, the first respondent has filed Cross Objections. 9. Certain other details have necessarily to be stated at this stage. Venkatesa Sarma executed a Will on 11.5.1973 and a codicil on 25.1.1974. On 1.9.1979 Rama Devi filed an O.P. in this Court and it was numbered as O.P. No. 531/80 and subsequently converted into T.O.S. with T.O.S. No. 34/82. Probate was granted on 3.5.1985. On 2.9.1986 the executrix Rama Devi died. One V. Subramanian, the eldest son of deceased Venkatesa Sarma filed O.P. No. 533/86 for issuance of Letters of Administration “De Bonis Non”. A similar application was filed in O.P. No. 399/89 by Subramanians brother Rajappa and others for issuance of Letters of Administration. After contest, on 6.2.1991 Letters of Administration “De Bonis Non” was granted to Subramanian under Section 258 of the Indian Succession Act, 1925 to administer the remaining part of the estate of Venkatesa Sarma. There was an appeal filed in O.S.A. No. 19/92 and the same was dismissed on 7.2.1992 by a Bench of this Court confirming the decision of the learned single Judge. On 19.1.1987 a Civil Miscellaneous Petition filed by Kousalya, another daughter of deceased Venkatesa Sarma, for bringing the legal representatives off Ramadevi was ordered and Kousalya was impieaded as the appellant and the others as respondents 5 to 10. The fifth respondent was Subramanian. Subramanian took out an application in C.M.P. No. 6846/90 for his transposition as appellant and this was ordered on 15.5.1990. 10. Mr. The fifth respondent was Subramanian. Subramanian took out an application in C.M.P. No. 6846/90 for his transposition as appellant and this was ordered on 15.5.1990. 10. Mr. Rajkumar Bhagwatsaran, learned Counsel for the appellants, contended as follows: In Ex.A-3 it was only the deceased first defendant who had been recognized as tenant and not the school. It was also not a legal entity. It was not a registered society. The suit was rightly held to be maintainable. The appellant had not recognized the second defendant (Rajalakshmi) as a tenant at all and therefore it was rightly held by the lower Appellate Court that she was not entitled to notice. The amounts sent by the second defendant had been received as from a trespasser and not from a tenant. The appeal was dismissed only on the ground that probate had not been obtained. When once Rama Devi was granted probate and on her death, for the unadministered portion Subramanian was granted Letters of Administration ‘De Bonis Non’ with copies of the Will and Codicil annexed and the same was confirmed as already stated in O.S A. No. 19/92, the Second Appeal will therefore have to be allowed in favour of the appellant subject to the result of the Cross-Objections. 11. Mr. N.R. Chandran, learned Senior Counsel appearing for the contesting first respondent, contended as follows: What was leased out was a vacant site, and when once this was conceded, whoever was in possession was entitled to be served with a notice under the provisions of the Tamil Nadu City Tenants Protection Act and in its absence the suit ought to have been dismissed at the threshold as not maintainable. In support of his submission, the learned Senior Counsel also relied on a number of decisions. I will refer to the said decisions in the course of the judgment. 12. Mr. Rajkumar Bhagwatsaran, learned Counsel for the appellant, contended that the second defendant was only a trespasser. She had denied the relationship of landlord and tenant and in as much as this had been done, there could not be a notice as contemplated under the provisions of the Tamil Nadu City Tenants Protection Act. 13. In Majati Subbarao v. P.V.K. Krishna Rao (deceased) by L.Rs. She had denied the relationship of landlord and tenant and in as much as this had been done, there could not be a notice as contemplated under the provisions of the Tamil Nadu City Tenants Protection Act. 13. In Majati Subbarao v. P.V.K. Krishna Rao (deceased) by L.Rs. ( AIR 1989 S.C. 2187 = 1990 1 L.W. 572) it was held that it is not necessary that denial of title of the landlord should precede the institution of the proceedings. If such denial was made in the proceedings and if it was found to be not bona fide, the tenant could be evicted on that ground and no separate proceedings need be initiated. That is to say, the ground could be taken in the proceeding in which the title was denied. 14. Let us now have a look at the stand taken by the first defendant to start with and subsequently by the second defendant. The first defendant had denied that he was a tenant, that there was relationship of landlord between him and Venkatesa Sarma, that it was only the school which was the tenant and that the suit was not maintainable. So far as the second defendant is concerned, she came forward with the stand that there was no privity of contract between her and the plaintiff, that the rental agreement between the plaintiff and the first defendant was not binding on her and that only the school was the tenant and the suit was liable to be dismissed in limine. There was no transfer of any tenancy right to her as claimed. The contention of the learned Counsel for the appellant is therefore well-founded. The second defendant is deemed to be only a trespasser. She was not entitled to any notice. The first defendant purported to transfer his lease hold right to the second defendant and the second defendant in her statement said that there was no question of transferring any tenancy right. If we eliminate the school on the ground that it was not registered and that it was not a legal entity, then we are left only with the first defendant, who set up his own defence in the written statement and second defendant gave an entirely different colour. She cannot therefore claim any benefit under the provisions of the Tamil Nadu City Tenants Protection Act. She cannot therefore claim any benefit under the provisions of the Tamil Nadu City Tenants Protection Act. It has also been noticed that attempt was made twice to claim the benefit under the Tamil Nadu City Tenants Protection Act and that it was not pursued and it was given up. We have therefore to conclude that the second defendant could not claim any benefit under the provisions of the Tamil Nadu City Tenants Protection Act. Her position was only that of a trespasser. 15. The first decision relied on by Mr. N.R. Chandran is the one reported in Rahmat Bi Saheba and others v. R. Krishnan Dess Lala (AIR 1940 Madras 641 = 51 L.W. 655). In that case, a siingle Judge of this Court held that in cases where the City Tenants Protection Act applied, notice under Section 11 was a condition precedent for filing the suit, that notice to all joint tenants and their assignees was essential and that any defect could not be cured by impleading them as defendants subsequently. This decision would apply only if the second respondent is either a tenant or an assignee. She was neither even according to her. She was not a tenant and there was no assignment. 16. In Mohamed Hussain Rowther v. T.M. Tirupathi Chettiarr (died) and others (1966 I MLJ 206 = (1965) 78 L.W. 739 ) it was held as follows: “The provisions of Section 11 of the Madras City Tenants Protection Act is mandatory and non-compliance of the provisions should entail dismissal of the suit. It is no doubt true that despite the mianatory character of the provisions it is open to a defendant to waive his right under the section. But, waiver is the question of fact and ought to be pleaded and proved in every case. It is for the plaintiff to set up and prove the plea of waiver and not for the defendant to take up the plea as the notice is conceived for his benefit.” Needless to say that this decision will not also apply to the facts of the instant case. 17. It is for the plaintiff to set up and prove the plea of waiver and not for the defendant to take up the plea as the notice is conceived for his benefit.” Needless to say that this decision will not also apply to the facts of the instant case. 17. Equally the decision in N. Balasubramania Iyer v. Sri Ponneswari and Muthu Kumaraswamy Devasthanam by its Managing Trustee K. Natarajan (1983 I MLJ 280) where it was held that though a lessee was not entitled to claim the benefits under Section 9 of the Tamil Nadu City Tenants Protection Act, still he would be entitled to compensation under Section 3 for any superstructure he might have erected on the property and has been ejected, will not apply to the facts of the present case. 18. In T.N. Noor Mohamed v. S.V. Govindarajan (100 L.W. 1176) it was held that Section 11 of the Tamil Nadu City Tenants Protection Act was intended to put the tenant on notice about his rights under Section 3 as well as Section 9 of the Act and that when a suit had been instituted in violation of the mandatory provisions of Section 11 of the Act and it was ab initio invalid, findings on issues raised would not be validd. 19. In S.A. Ramachandran v. S. Neelavathy (1997 1 CTC 298) the Supreme Court held that a suit instituted for eviction without issuing notice under Section 11 or before expiry of three months of issue of notice could not be proceeded with. It was a condition precedent and the provisions of Section 11 should not be compared with the requirements under Section 80 of the Code of Civil Procedure. 20. All the decisions referred to stood for the proposition that Section 11 notice was mandatory. AH the decisions presuppose the existence of the landlord-tenants relationship, which unfortunately is absent in the instant case. 21. It is next contended by the learned Senior Counsel that the second defendant is a tenant holding over possession. Since the answer is that on her own showing she is not a tenant, no rights under the provisions of Sections 106, 111 and 116 of the Transfer of Property Act would accrue to bar. The decision of the Supreme Court in Satish Chand Makban and others v. Govardhan Das Byas and others ( AIR 1984 SC 143 ) will not apply. The decision of the Supreme Court in Satish Chand Makban and others v. Govardhan Das Byas and others ( AIR 1984 SC 143 ) will not apply. So far as the question of denial of title prior to the institution of the suit is concerned, I have already referred to the decision of the Supreme Court in Majati Subbarao v. P.V.K. Krishna Rao (deceased) by L.Rs. ( AIR 1989 SC 2187 = 1990 2 L.W. 572) and therefore the decision of this Court in Gulam Mohamood v. Ammani Animal (deceased) and others (1960 II MLJ 351 = 73 L.W. 688) cannot beheld to be good law any more. 22. The learned Senior Counsel relied on three more decisions for sustaining the question of maintainability with regard to Cross-Objections. There is no doubt that Cross-Objections are maintainable and therefore it is not necessary to refer to those decisions. 23. In these circumstances, the substantial questions of law have to be answered in the following manner: So far as the first substantial question of law is concerned, the probate having been obtained, the dismissal of the appeal by the lower Appellate Court for non-production of the probate has to be set aside. So far as the second substantial question of law is concerned, there is no decision necessary on this point, inasmuch as probate has been obtained. 24. Before parting with the case I should place on record my displeassure over a very disturbing observation made by the learned Second Additioonal Judge to the following effect: “Further, the school by name Bharath Matha Primary School is not a registered society to brand it as legal entity to enter into the tenancy agreement with the appellant. This fundamental principle of law is not known to the learned trial Judge and the lower Court found that the suit against the deceased first defendant in the suit and the respondent is not maintainable, erroneously.” To say the least, this was in very bad taste. 25. This fundamental principle of law is not known to the learned trial Judge and the lower Court found that the suit against the deceased first defendant in the suit and the respondent is not maintainable, erroneously.” To say the least, this was in very bad taste. 25. Having regard to the fact that a school is being run for several decades past and the school-going children and parents will be put to enormous inconvenience if the school is to be uprooted consequent on the decision of this Court decreeing the suit, the second defendant will have one years time to talk it out with the owner of the property and reach an amicable settlement for continuing in the suit property either as tenant or as owner by outright purchase or to fix up another location. If and when thus approached the appellant should not take an adamant attitude, but a gracious and sympathetic view and consider the matter in the interests of the school children upper-most in mind. With these observations the Second Appeal will stand allowed. 26. Consequently, the judgments and decrees of both the Courts below are set aside and the suit will stand decreed as prayed for. There will be no order as to costs. The Cross Objections will stand dismissed. No costs. In view of the judgment passed in the main Second Appeal, no orders are necessary in C.M.P. No. 6847/90.