Judgment : First defendant in O.S.No.43 of 1991 on the file of Sub Court, Tuticorin is the appellant herein. 2. Suit filed by plaintiffs is one for eviction of defendants and for damages for use and occupation on the following allegations: Plaintiffs purchased the plaint property as per two sale deeds dated 11. 1967 from its previous owners. At the time when they purchased the property, there was a mortgage and the same was also redeemed on 10. 1972. Even at the time of sale, first defendant was in possession of property on the basis of registered lease deed dated 212. 1957 and the period of tenancy as per the lease deed was from 1. 1958 to 35. 1966 on a monthly rent of Rs.40. Lease deed further provided that lease is liable to be renewed if lessor so agrees on a monthly rent of Rs.45. But first defendant did not obtain any lease deed nor lease arrangement was renewed thereafter. It is further averred that after first term of renewal of lease deed ended on 35. 1976, first defendant is liable for damages for use and occupation at the prevailing market rate from 6. 1976. But plaintiffs are claiming damages only from 1. 1987 to 310. 1989, though arrears are payable from 10. 1972. It is also stated in the plaint that first defendant is lessee of vacant site and put up construction. Second defendant has been impleaded because he is in occupation of portion of property as sub-tenant of first defendant. According to plaintiffs, original sub-lessee was standard vacuum oil company which has now become Hindustan Petroleum Corporation Ltd. Plaintiffs have offered Rs.2,000 as value for the superstructure since City Tenants Protection Act do not apply for the area in question. A notice was also given after terminating tenancy. 3. In the written statement filed by appellant he admitted the rental arrangement. It is admitted therein that the original lease expired on 35. 1966. According to him, as per terms of lease, lease was renewed for further period of ten years from 6. 1967. It is further stated that plaintiffs became entitled to possession only on discharge of mortgage on 10. 1972. According to him, they have already sent draft lease deed to the then owner. He has also said that it is not a monthly tenancy. Cheques are paid only once in six months. 1967. It is further stated that plaintiffs became entitled to possession only on discharge of mortgage on 10. 1972. According to him, they have already sent draft lease deed to the then owner. He has also said that it is not a monthly tenancy. Cheques are paid only once in six months. When cheque was issued, the same was returned. First defendant thereafter was depositing rent in Bank after intimating the same to plaintiff. Claim for damages cannot be allowed since defendant is entitled to the benefits of Tamil Nadu City Tenants Protection Act. Plaintiffs can claim only fair rent. He also said that he is prepared to buy scheduled property and is also filing separate petition for the said purpose. 4. On the above pleadings, parties went on trial. Exs.A-1 to A-6 were marked on the side of plaintiffs and Exs.B-1 to B-19 were marked on the side of defendants. P.Ws.1 and 2 gave oral evidence on the side of plaintiffs and D.W.1 on the side of appellant. It may be noted that second defendant did not file any written statement and remained ex parte. 5. After evaluating entire evidence, trial court held that appellant is not entitled to the benefits of City Tenants Protection Act, since he is not in possession of the property. He is only dealer under second defendant and second defendant is in enjoyment of the property. It further held that after 1966, there had been no renewal and there is also no payment of rent. Possession of first defendant is only that of trespasser on the expiry of the term. Suit was decreed as prayed for. 6. Against the said judgment, appellant preferred A.S.No.207 of 1996 on the file of Principal District Court, Tuticorin. In A.S.No.207 of 1996 plaintiffs also filed cross-appeal. Cross-appeal was necessitated for not awarding profits at the rate demanded by plaintiffs. Lower appellate court after evaluating the entire evidence dismissed the appeal and cross-appeal. Lower appellate court also that second defendant is in possession of the property, and plaintiffs are not entitled to claim the benefits of City Tenants Protection Act. It also held that after term expired, there is no renewal and there was no payment of rent from 1966 onwards. Even though plaintiffs are entitled to receive rent from 10. 1972. there is no demand from first defendant to have the transaction renewed even after that date. It also held that after term expired, there is no renewal and there was no payment of rent from 1966 onwards. Even though plaintiffs are entitled to receive rent from 10. 1972. there is no demand from first defendant to have the transaction renewed even after that date. Finding of trial court that defendant can only be treated as trespasser was also confirmed. The appeal was dismissed. 7. Regarding cross-appeal, lower appellate court held that there is no evidence let in regarding market rate and therefore the view expressed by trial court was confirmed. It is against the concurrent findings of courts below, this second appeal is preferred by first defendant. 8. Thefollowing substantial questions of law are raised in the memorandum of appeal; .(a) Whether mere filing of application under Sec.9 of the City Tenants Protection Act amounts to waiver of notice under Sec.11 of the Acte .(b) Is not first defendant a tenant holding over as per Sec.116 of Transfer of Property Acte .(c) Is not the lower appellate court wrong in holding that the first defendant was a trespasser even though it is an admitted fact that first defendant continuance as a lessee had been assented to by plaintiff by accepting periodical rentse .(d) Is not first defendant entitled to compensation for the underground instruction admittedly put up by him after the leasee 9. Learned counsel for respondent also entered appearance and I heard the second appeal at the admission stage itself. 10. All the questions could be considered together. To claim the benefit of City Tenants Protection Act, first defendant must show that he continued as lessee when he sought to be evicted and he continues in possession as tenant on that date. 11. Ex.A-3 is the original lease deed executed between previous owner and first defendant. That is for the term of 1. 1958 to 35. 1966. It also provided that on expiry of the term of lease on 35. 1966 if owner accepts, the lease could be extended for a further period of ten years, but at that time, the rent will be Rs.45. That is for the term of 1. 1958 to 35. 1966. It also provided that on expiry of the term of lease on 35. 1966 if owner accepts, the lease could be extended for a further period of ten years, but at that time, the rent will be Rs.45. The finding of courts below is that after 1966, lease was not renewed and no payment is also made at the rate of Rs.45 before further going into the case, what is recorded by lower appellate court is also to be stated, In para.9 of the judgment, lower appellate court has stated thus: “Admittedly, the suit property is a vacant site in Tuticorin town S.No.3300 with north-south measurement on the western side 115’ in the eastern side 59’. The east-west measurement on the northern side is 128’ while on the southern side is 72’. It is also not disputed that this vacant site which is the suit property has been purchased by the plaintiffs in the suit who are the respondents 1 and 2 in A.S.No.207 of 1996 and A.S.No.120 of 1997 under Exs.A-1 and A-2, dated 11. 1967. It is also admitted by both parties that under Ex.A-3, the predecessors-in-interest of the plaintiffs the respondents and 2 in both the appeals had given the lease of the suit vacant land to the 1st defendant, who is the appellant in A.S.No.207 of 1996 and as per the terms of the lease deed, the lease was for the period upto 35. 1966 and the monthly rent was Rs.40 It is also admitted by both parties that under Ex.A-3 it is mentioned that after the first period of the said please i.e., subsequent to 35. 1966, the lease can be renewed for a further period of 10 years if the landlords like the same. It is further admitted by both parties that the 1st defendant in the suit who is the appellant in A.S.No.207 of 1996 who got the lease of the vacant site under Ex.A-3 from the predecessors-in-interest of the respondents 1 and 2 in both the appeals sub-let the vacant site for a petrol bunk which is the 2nd defendant in the suit. The contention of the 1st defendant who is the appellant in A.S.No.207 of 1996 is that by putting up the petrol bunk by the 2nd defendant in the suit vacant land he is enjoying the suit land as a lessee under Ex.A-3. Therefore, his contention is that though he has sub-let the suit vacant land to the 2nd defendant in the suit i.e., the petrol bunk, the enjoyment is with him through the 2nd defendant....” Lower appellate court further went on and said thus: “...the contention of the appellants in both the appeals is that when the period of lease came to an end on 35. 1966, they prepared a lease deed for extension of the lease for a further period of 10 years from 6. 1966 and sent the same for renewal but the same was not registered by the predecessors-in-interest, but afterwards on 28. 74 under Ex.B-5 the 1st defendant wrote to the plaintiffs for extending the lease as per the terms of the lease and also sent cheque towards the rent with a letter, the copy of which is exhibited under Ex.B-6 and acknowledgments are under Exs.B-7 and B-8, but the rent was returned by the plaintiffs under Ex.B-9 letter. Thereafter, according to the appellants in both the appeals, the rent was deposited in the bank in the name of the plaintiffs and Ex.B-10 letter was written to the plaintiffs....” 12. Why I am referring to the above portion of the judgment is both parties are bound by what has been recorded in the judgment. It is clear therefrom that after 35. 1966 no rent was paid and there is also no lease deed. The question of holding over lease or to claim status of tenant of any character will arise if only there was some acquiescence on the part of landlord in treating appellant as tenant. After 35. 1966 first defendant was never recognised as tenant. Plaintiff obtained also sale deed in 1967. It could be seen from the contentions that though a demand was made by appellant to have the same renewed, predecessors also did not renew the same nor did receive any rent. As per Ex.A-3, first defendant is not entitled to have the same renewed merely because such letter has been sent, From the document it is clear that if only landlord desires to extend the lease the same could be renewed. As per Ex.A-3, first defendant is not entitled to have the same renewed merely because such letter has been sent, From the document it is clear that if only landlord desires to extend the lease the same could be renewed. Everything is depending upon the will and pleasure of landlord to renew the document. If there is no renewal and there is also non payment of rent after 35. 1966, appellant cannot claim the status of tenant under City Tenants Protection Act. .13. On the expiry of term on 35. 1966, appellant became Trespasser which is clear from the decision in Shyam Charan v. Sheoji Bhai , A.I.R. 1977 S.C. 2270. In that case in the last portion of para.6, their Lordships held thus: .“...his continuing in occupation to the accommodation on and from 25. 1960 was unauthorised and wrongful and a decree for damages or mesne profits has rightly been awarded for the period commencing on that date....” 14. The same view was followed by the Delhi High court in the decision reported in P.S.Bedi v. Project and Equipment Corporation of India Ltd. P.S.Bedi v. Project and Equipment Corporation of India Ltd. P.S.Bedi v. Project and Equipment Corporation of India Ltd. , A.I.R. 1994 Del. 255. .15. It is admitted that second defendant is in possession of the property. In fact there is specific pleading that second defendant is sub-lessee, in para.6 of the plaint. The same is not answered by appellant in the written statement. Lower court also recorded as to what transpired before it which is also not challenged in the memorandum of appeal. 16. In P.Ananthakrishnan Nair v. G.Ramakrishnan P.Ananthakrishnan Nair v. G.Ramakrishnan P.Ananthakrishnan Nair v. G.Ramakrishnan , (1987)2 S.C.C. 429 the Honourable Supreme Court considered this question, and in para.11 it is held thus: “...If the tenant does not occupy the land or the superstructure or if he is not residing therein or carrying on any business, the question, of convenient enjoyment of the land by him could not arise. ...” [Italics supplied] In the earlier portion of the jdgment, their Lordships held thus: “...the person who claims the benefits of the Act must be in physical possession of the property. ...” Their Lordships further held in the very same judgment that Sec.9 of City Tenants Protection Act is not enforcing of right but only privilege given to tenant. ...” [Italics supplied] In the earlier portion of the jdgment, their Lordships held thus: “...the person who claims the benefits of the Act must be in physical possession of the property. ...” Their Lordships further held in the very same judgment that Sec.9 of City Tenants Protection Act is not enforcing of right but only privilege given to tenant. To claim privilege, he has to satisfy all the statutory conditions. If he is not in physical possession of the property or superstructure, the question of immunity for eviction will not arise. Their Lordships further held that privilege given to tenant under Sec.9 is equitable in nature. 17. An argument was taken by learned counsel for petitioner that the suit is bad since under Sec.11 of the Act notice has not been issued. To claim benefit of Sec.9, appellant must be a person entitled to claim benefit under the Act and immunity from eviction. It is true that the Honourable Supreme Court held in the decision reported in Ramachandran v. Neelavathy , (1997)1 C.T.C. 298 the question of maintainability of suit for non-issuing of notice under Sec.11 cannot be waived by merely filing an application under Sec.9 of the Act. I do not think that the said decision will have application to the facts of this case. 18. In the result, there is no merit in the second appeal and the same is dismissed. No costs. Consequently, C.M.P.No.12623 of 1999 is also dismissed.