Judgment :- (V. Ramasubramanian, J.) Both the appeals arise out of a common judgment and decree passed in (i) a suit for partition and separate possession and in (ii) an application under Section 9 of the Madras City Tenants Protection Act, 1921. 2. We have heard Mr.G.R.Swaminathan, learned counsel appearing for the appellants, Mr.T.R.Rajagopalan, learned Senior Counsel appearing for the first respondent, Mr.R.R.Rajarathinam, learned counsel appearing for the respondents 3 to 5 and Mr.T.S.Mohammed Mohideen, learned counsel appearing for the respondents 12 and 21 to 23. The respondents 2, 7 to 11 and 14 to 20 are given up. 3. By a lease deed dated 24. 1946, one Mr.V.S.Shanmuganatha Mudaliar and Janab M.S.M. Shahul Hamid Rowther, granted a lease of a vacant land jointly owned by them and measuring an extent of 3,018 kulis in Survey No.700/8A1A, Tenkasi, Tirunelveli District, to one P.C.Subba Raja. The lease was for a period of about 30 years and was to expire on 10. 1976. Clause (4) of the lease deed stated that the purpose of the lease was the construction of a permanent Cinema Theatre. Under Clause (6), the Lessee P.C.Subba Raja agreed to vacate and hand over possession of both the land and the buildings to the Lessors, on 10. 1976, on the expiry of the period of lease. However, the Lessee was given the liberty to take away the machinery, furniture and electrical fittings. 4. The Lessee P.C.Subbaraja, got constructed, a Cinema Theatre on the land leased out to him and thereafter released all his rights and interest under the lease deed, in favour of M/s.Bharathan Theatres Limited, under a Release Deed dated 7-5-1953. It was recited in the preamble of the release deed that the original lease was entered into by P.C.Subba Raja, for and on behalf of and for the benefit of M/s.Bharathan Theatres Limited. It was covenanted in the operative portion of the release deed that he had no rights under the original lease deed and that all the rights and obligations under the original lease deed belonged to M/s.Bharathan Theatres Limited. 5. V.S.Shanmuganatha Mudaliar, one of the two joint Lessors, executed a Will dated 24. 1962, in favour of one V.T.Ranganayaki Anni, bequeathing his undivided half share in the leased land, in her favour. 6. 5. V.S.Shanmuganatha Mudaliar, one of the two joint Lessors, executed a Will dated 24. 1962, in favour of one V.T.Ranganayaki Anni, bequeathing his undivided half share in the leased land, in her favour. 6. Just before the expiry of the period of lease, V.S.Shanmuganatha Mudaliar and 2 sons of M.S.M.Shahul Hamid Rowther issued a legal notice dated 28. 1976, calling upon (1) P.C.Subba Raja and (2) Bharathan Theatres Ltd., to vacate and hand over vacant possession of the land and building in terms of the original lease deed. However, before any legal action could be initiated, the original Lessee P.C.Subba Raja died on 13. 1978 and the Lessor V.S.Shanmuganatha Mudaliar also died on 14. 1980. 7. Since the Will of V.S.Shanmuganatha Mudaliar came into force upon his demise, the legatee V.T.Ranganayaki Anni, initiated proceedings for eviction of M/s.Bharathan Theatres Limited, under the Tamilnadu Buildings (Lease and Rent Control) Act. However, those eviction proceedings failed before the Rent Controller, the Appellate Authority and before this Court, in CRP No.2342 of 1988 on the ground that what was leased out was only land and not a building and that therefore the Act would not apply. 8. Therefore V.T.Ranganayaki Anni (the legatee under the Will of V.S.Shanmuganatha Mudaliar) filed a suit in O.S.No.9 of 1989 on the file of the Additional Sub Court, Tenkasi, against (1) M/s.Bharathan Theatres Limited, (2) the legal heirs of the original Lessee P.C.Subba Raja and (3) the legal heirs of the other co-owner of the land viz., M.S.M. Shahul Hamid Rowther. The prayer in the suit was only for partition and separate possession of the plaintiffs half share in the suit property and for past and future mesne profits. It is pertinent to note, at this juncture, that the plaintiff V.T.Ranganayaki Anni claimed to have become the owner of the buildings also, by virtue of Clause (6) of the lease deed, which enjoined an obligation upon the Lessee to hand over both the land and the buildings upon the expiry of 30 years. In view of such a claim, the plaintiff V.T.Ranganayaki Anni impleaded M/s.Bharathan Theatres Limited and its Directors also as defendants, though the suit was only for partition and though M/s.Bharathan Theatres Limited, was claiming to be a tenant in respect of the land and to be a owner in respect of the buildings. 9. In view of such a claim, the plaintiff V.T.Ranganayaki Anni impleaded M/s.Bharathan Theatres Limited and its Directors also as defendants, though the suit was only for partition and though M/s.Bharathan Theatres Limited, was claiming to be a tenant in respect of the land and to be a owner in respect of the buildings. 9. Immediately after receipt of summons in the suit, M/s.Bharathan Theatres Limited filed O.P. No.57 of 1989 under Section 9 of the Madras City Tenants Protection Act, 1921, praying for determination of the land necessary for their convenient enjoyment and for fixing a price and directing the Lessors to sell the same to them. 10. Since the suit for partition and the application under Section 9 were connected with each other, a memo appears to have been filed on 7. 2001, seeking a joint trial and for recording the oral and documentary evidence in the suit. Therefore, they were taken up together by the Principal Sub Court. The plaintiff examined two witnesses and marked 16 documents. The defendants examined two witnesses and marked about 20 documents. 11. By a judgment and decree dated 2. 2003, the trial Court decreed the suit for partition and also awarded past mesne profits of Rs.72,000/-. The application under Section 9 filed by the first defendant was dismissed. Aggrieved by the common judgment and decree, M/s.Bharathan Theatres Limited and two sons of the original Lessee (defendants 1 to 3 in the suit) have filed A.S.(MD) No.427 of 2003 against the preliminary decree for partition. Similarly, M/s.Bharathan Theatres Limited have filed C.M.A.(MD) No.934 of 2003 against the dismissal of the application under Section 9. 12. The Trial Court framed the following 8 issues and 2 additional issues:- .(i) Whether the plaintiff was entitled to a partition of the suit schedule property? .(ii) Whether the first defendant (Bharathan Theatres Ltd) was a direct lessee under the previous owners? (iii) Whether the first defendant is entitled to the benefits of the Madras City Tenants Protection Act? .(iv) Whether the first defendant was barred from canvassing against the recitals contained in the lease deed dated 24. 1946? .(v) Whether the suit is maintainable? .(vi) Whether the plaintiff is entitled to past mesne profits of Rs.1,08,000? (vii) Whether the defendants 2 to 4 are not necessary parties to the suit? (viii) To what relief the plaintiff is entitled? (addl. 1946? .(v) Whether the suit is maintainable? .(vi) Whether the plaintiff is entitled to past mesne profits of Rs.1,08,000? (vii) Whether the defendants 2 to 4 are not necessary parties to the suit? (viii) To what relief the plaintiff is entitled? (addl. Issue No.1) Whether the Court fee paid on the plaint is correct? (addl. Issue No.2) The issue originally framed as Issue No.6, is to be modified as "whether the plaintiff is entitled to arrears of rent of Rs.1,08,000? 13. Similarly, in the application under Section 9 of the Madras City Tenants Protection Act, 1921, the trial Court framed one issue viz., whether the petition should be allowed and the value of the suit property determined and the property conveyed to the petitioners, upon payment of the value so determined, in whole or in instalments?. 14. The Power Agent of the plaintiff examined himself as PW-1. One of the attestors of the Will dated 24. 1962 executed by V.S.Shanmuganatha Mudaliar in favour of the plaintiff, filed as Ex.A-12, was examined as PW-2. He is a medical practitioner in Tenkasi for over 51 years and he claimed to have known the testator for over 30 years. He not only identified the signature of the testator but also identified the signatures of the other attestors. In the light of the said evidence and also in view of the fact that there was no serious dispute about the validity or genuineness of the Will, the trial Court came to the conclusion that the plaintiff inherited the undivided share of V.S.Shanmuganatha Mudaliar in the suit schedule property. 15. The 24th defendant in the suit examined himself as DW-1. He is the son of the 5th defendant. The 6th defendant is the brother of the 5th defendant. The defendants 5 and 6 inherited the undivided half share in the suit schedule property from M.S.M. Shahul Hamid Rowther. The 6th defendant had sold his share to defendants 7 to 15. The 5th defendant had two wives. Therefore the share of 5th defendant was divided by him into two halves, one of which was given to the children through the first wife, who in turn sold it to defendants 7 to 15. The remaining share of the 5th defendant was inherited by defendants 16, 24, 25, 26 and 27 and hence DW-1 claimed a preliminary decree for partition in respect of their share. The remaining share of the 5th defendant was inherited by defendants 16, 24, 25, 26 and 27 and hence DW-1 claimed a preliminary decree for partition in respect of their share. DW-1 also opposed the claim of the defendants 1 to 3 under Section 9. 16. The Managing Director of the first defendant, who was examined as DW-2, admitted the contents of the lease deed and the execution of the Will by V.S.Shanmuganatha Mudaliar in favour of the plaintiff. He also admitted that Shahul Hamid Rowther had two sons viz., defendants 5 and 6, to whom his share of the property was gifted and that one of those sons had two wives and that the children of one of those wives and the other son sold their share to defendants 7 to 15. The other wife and the children born to her, were defendants 16 and 24 to 27. 17. On the basis of the evidence of DW-1 and DW-2, the trial Court came to the conclusion that defendants 16 and 24 to 27 were entitled to a preliminary decree for partition of their 1/8 share. Since the trial Court held that on the expiry of the lease, the lessors were entitled even to the buildings constructed thereon, the Court held that the defendants 16 and 24 to 27 were entitled to a decree for partition of 1/8 share, both in the land and in the buildings. 18. No dispute was raised by any of the defendants with respect to the fact that the suit schedule property originally belonged jointly to Shanmuganatha Mudaliar and Janab M.S.M. Shahul Hamid Rowther and that they leased out the same to P.C.Subba Raja, for a period of 30 years from 10. 1946 to 10. 1976 under a lease deed dated 24. 1946. The defendants 1 to 3 do not also dispute the contents of the lease deed. Since under Clause 6 of the lease deed, the lessee was obliged to vacate and hand over possession of the land as well as the buildings, to the lessors, the trial Court came to the conclusion that the defendants 1 to 3 were not entitled to the benefit of Section 9 of the Madras City Tenants Protection Act, 1921. 19. Clause 6 of the lease deed reads as follows:- "6. The lessee agrees to vacate and give possession to the lessor the premises and buildings on 10. 19. Clause 6 of the lease deed reads as follows:- "6. The lessee agrees to vacate and give possession to the lessor the premises and buildings on 10. 1976 on the expiration of the lease period of 30 years with all the constructions and buildings the theatre and all the adjuncts and additions as they had been existing without any claim to any compensation whatsoever. The lessee shall be competent to remove all the machinery connected with the cinema show, furniture, electric bulbs and fans leaving the wiring. On the expiry of the lease the lessee shall deliver possession of the entire premises with all the buildings and constructions of all kinds. It may be open to both parties to agree mutually to renew the lease on such terms as they might agree or to terminate the same on 10. 1976 or to give first preference to the lessee on terms offered by a third party." 20. In view of the above clause, the trial Court held that the original land owners were entitled to claim not only the land but also the constructions put up thereon by the lessee, on the expiration of the lease period and that therefore the benefit of Section 9 of the Madras City Tenants Protection Act was not available to the lessees. Though the defendants 1 to 3 contended that by virtue of Section 12 of the Madras City Tenants Protection Act, 1921, a contract cannot take away or limit the rights of a tenant under the Act, the trial Court held that since the original lease was in favour of P.C.Subba Raja, his successor viz., Bharathan Theatres Ltd., (who got the leasehold rights released by P.C.Subba Raja under a release deed) cannot claim the benefit of Section 9. 21. The trial Court pointed out that the main suit was not for ejectment but for partition and that Section 9 can be invoked only when a suit in ejectment was filed. Moreover, it was seen from the Release Deed dated 5. 1953, executed by P.C.Subba Raja in favour of Bharathan Theatres Ltd (first defendant) that the buildings were put up in 1951 itself. But the release was in respect of the land alone. Therefore the trial Court came to the conclusion that the original lessee P.C.Subba Raja was not in possession but that his sub-tenant Bharathan Theatres Ltd was in possession. 1953, executed by P.C.Subba Raja in favour of Bharathan Theatres Ltd (first defendant) that the buildings were put up in 1951 itself. But the release was in respect of the land alone. Therefore the trial Court came to the conclusion that the original lessee P.C.Subba Raja was not in possession but that his sub-tenant Bharathan Theatres Ltd was in possession. The trial Court also found that portions of the buildings (shops in the theatre) had been let out to third parties by the first defendant and that therefore the first defendant cannot be stated to be in actual physical possession of the property, to be able to maintain a claim under Section 9. 22. The trial Court took note of the fact that there was no agreement between the original land owners V.S.Shanmuganatha Mudaliar and M.S.M. Shahul Hamid Rowther on the one hand and Bharathan Theatres Ltd on the other hand. Therefore, the trial Court opined that since P.C.Subba Raja was obliged under Clause 6 of the lease deed to hand over the buildings to the land owners upon the expiry of the period of lease, he alone was entitled to seek compensation for the buildings under Section 3. Since the person entitled to seek compensation for the building under Section 3 alone was conferred with the right to invoke Section 9, the trial Court held that Bharathan Theatres cannot claim the benefit of Section 9. 23. In the course of the evidence, it was admitted by both parties that the total extent of land involved in the suit schedule property is 66 cents and that from some of the legal heirs of M.S.M.Shahul Hamid Rowther, the first defendant managed to purchase about 27 cents. Thus, the first defendant also became the co-owner of the land, during the pendency of the proceedings. The constructed area of the building was about 4,500 sq. ft. and hence it was also argued before the trial Court that the extent of land sufficient to be conveyed as per Section 9, was only 10-1/4 cents, as against the extent already purchased by the first defendant viz., 27 cents. 24. The constructed area of the building was about 4,500 sq. ft. and hence it was also argued before the trial Court that the extent of land sufficient to be conveyed as per Section 9, was only 10-1/4 cents, as against the extent already purchased by the first defendant viz., 27 cents. 24. Ultimately, in the light of the above, the trial Court held – .- under issue No.1 that the plaintiff is entitled to a decree for partition; .- under issue No.2 that the first defendant is not the direct tenant of the previous owners, but only the sub-tenant; .- under issue No.3 that the first defendant is not entitled to the benefit of the Madras City Tenants Protection Act, 1921; .- under issue No.4 that the first defendant is prevented from raising any plea contrary to the terms of the lease deed dated 24. 1946; - under issue No.5 that the suit is maintainable; -under issue No.6 (as amended by additional issue No.2) that the plaintiff is entitled to rental arrears of Rs.72,000/-; .- under issue No.7 that the defendants 2 to 4 cannot be held to be unnecessary parties to the litigation; .- under issue No.8 that the plaintiff is entitled to separate possession of half undivided share in the suit property along with rental arrears of Rs.72,000/-and that in respect of future mesne profits, the plaintiff could work out her remedies under Order XX, Rule 12 CPC; -under additional issue No.1 that the court fee paid on the plaint is correct; and - under the issue in O.P.No.9 of 1989 that the petition was liable to be dismissed. 25. Mr.G.R.Swaminathan, learned counsel appearing for the appellants, attacked the judgment and decree of the Court below on four main grounds viz., (i) that Bharathan Theatres Ltd., is the tenant or at least the assignee of the tenancy rights and hence the finding of the trial Court that they are sub-tenants and consequently not entitled to the benefits of Section 9, is wholly illegal and unjustified; (ii) that the finding of the trial Court that the appellants were bound by the terms of the lease deed dated 24. 1946 is contrary to Section 12 of the Madras City Tenants Protection Act, 1921; (iii) that the decision of the trial Court that an application under Section 9 can be filed only in a suit for ejectment is contrary to law; and (iv) that the very claim for past mesne profits showed that the plaintiff was out of possession and hence could not value the suit under Section 37(2) of the Tamil Nadu Court Fee and Suits Valuation Act. 26. Per contra, Mr.T.R.Rajagopalan, learned Senior Counsel for the first respondent/plaintiff contended that a suit for partition is primarily between the co-owners and that a person claiming to be a tenant, is not entitled to file an application under Section 9 in a partition suit. In any case, the learned Senior Counsel contended that after the institution of the suit, the appellant/first defendant had admittedly purchased a portion of the undivided share from the co-owners of the plaintiff and that therefore they cannot maintain an application any more in the capacity of tenants within the meaning of the Madras City Tenants Protection Act, 1921. .27. We have carefully considered the rival submissions. Even at the outset, we note that the right of the plaintiff to seek partition of half share in the land over which the suit schedule property is comprised, is not disputed. The fact that the land comprised in the suit schedule property was originally owned by V.S. Shanmuganatha Mudaliar and M.S.M.Shahul Hamid Rowther, the fact that they granted a lease of the land to P.C.Subba Raja under a lease deed dated 24. 1946, the fact that the lease was for 30 years, the fact that a theatre was constructed on the said land, are all admitted. The fact that V.S. Shanmuganatha Mudaliar bequeathed the property in favour of the plaintiff under a Will, is also not seriously disputed. As a matter of fact, there is virtually no dispute between the plaintiff, claiming under V.S. Shanmuganatha Mudaliar and those claiming under M.S.M.Shahul Hamid Rowther, with regard to the right of the plaintiff to seek partition. Consequently, the prayer of the plaintiff for partition and separate possession of her half share in the land, cannot be rejected, unless it stands eclipsed by the prayer in the application under Section 9 of the Madras City Tenants Protection Act, 1921. Consequently, the prayer of the plaintiff for partition and separate possession of her half share in the land, cannot be rejected, unless it stands eclipsed by the prayer in the application under Section 9 of the Madras City Tenants Protection Act, 1921. Therefore, we shall first take up the claim of the first defendant in the suit, under Section 9 of the said Act. 28. As we have seen earlier, the application under Section 9 was resisted on four principal grounds viz., (i) that Bharathan Theatres Ltd., is not the tenant to whom the land was leased out (ii) that the original lessee P.C.Subba Raja was obliged under the lease deed to hand over the land together with the buildings, on the expiry of the period of lease (iii) that in a suit for partition, an application under Section 9 is not maintainable and (iv) that after becoming a co-owner of the land, it is no more open to the tenant to seek redressal under Section 9. Let us now consider these contentions one after another. .29. The question whether the first defendant-Bharathan Theatres Ltd., is an assignee or a person recognised as a tenant by the original land owners by virtue of an implied agreement, can, in our considered view, be taken up later after we consider the maintainability of the application first. The question whether an application under Section 9, is maintainable in a suit for partition and the question whether a tenant can maintain an application under Section 9, even after purchasing a portion of the land from some of the co-owners, are questions of primary importance and hence we take up those two questions first. Maintainability Of Application Under Section 9 In A Suit For Partition: .30. Section 9(1)(a)(i) of the Madras City Tenants Protection Act, 1921 entitles a tenant to apply to the Court for a direction to the landlord to sell the whole or part of the land, of which he is a tenant, subject to his fulfilling two conditions. They are (i) that he is eligible, upon his ejectment, for compensation for the value of the building put up by him and (ii) that a suit in ejectment has been instituted or proceeding under Section 41 of the Presidency Small Causes Courts Act, 1882 had been taken against him. Section 9(1)(a)(i) reads as follows:- ."9. They are (i) that he is eligible, upon his ejectment, for compensation for the value of the building put up by him and (ii) that a suit in ejectment has been instituted or proceeding under Section 41 of the Presidency Small Causes Courts Act, 1882 had been taken against him. Section 9(1)(a)(i) reads as follows:- ."9. Application to Court for directing 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 Causes Courts Act, 1882 taken by the landlord may within one month of the date of the publication of 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 situated 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. .31. A reading of the above provision shows that to be eligible to seek the benefits of Section 9 (1), a person should pass the test of being a "tenant" within the meaning of Section 2(4) of the Act and he must be a person eligible for compensation under Section 3. It is not enough if a person passes this test. The contingency for such a person, to invoke Section 9 should also have arisen. The Section speaks only about two contingencies viz., (i) the institution of a suit in ejectment or (ii) the institution of a proceeding under Section 41 of the Presidency Small Causes Courts Act, 1882. In its plain language, Section 9 does not speak about any other proceeding. 32. With a view to enable a tenant to seek the benefits of Section 9, even without any of the above two contingencies having arisen, an amendment was introduced under Tamil Nadu Act XXIV of 1973, by which sub-clause (ii) was inserted under clause (a) of sub-section (1) of Section 9. 32. With a view to enable a tenant to seek the benefits of Section 9, even without any of the above two contingencies having arisen, an amendment was introduced under Tamil Nadu Act XXIV of 1973, by which sub-clause (ii) was inserted under clause (a) of sub-section (1) of Section 9. It read as follows:- (ii) Notwithstanding anything contained in clause (a)(i) of this sub-section, any such tenant as is referred to in sub-clause (ii)(b) of clause (4) of Section 2 or his heirs, may within a period of two months from the date of 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 Section 41 of the Presidency Small Causes 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 Cause 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." 33. The above sub-clause (ii) enabled a tenant to seek the benefits under the Act, irrespective of whether or not, a suit in ejectment had been instituted. The constitutional validity of this provision, inserted by Tamil Nadu Act XXIV of 1973, came up for consideration in P.S.Balakrishnamaraja vs. S.K.Alagar Raja { AIR 1993 Mad 357 }, before a Division Bench of this Court. After pointing out that Tamil Nadu Act IV of 1972 and Act XXIV of 1973 came to be passed with a view to omit the proviso under Section 12 and to amend the definition of tenant, in view of the decision of the Supreme Court in The Mylapore Hindu Permanent Fund Ltd vs. K.S.Subramania Iyer { AIR 1970 SC 1683 } and Haridas Girdhardas vs. Varadaraja Pillai { AIR 1971 SC 2366 }, the Division Bench held in paragraphs-12 and 13 as follows:- "The right to purchase land under Section 9 of the Act arises only on ejectment, which is undoubtedly after the termination of the tenancy. Section 9(1)(a) of the Act expressly refers to a tenant who is entitled to compensation under Section 3 of the Act and against whom a suit in ejectment has been instituted or a proceeding under Section 41 of the Presidency Small Cause Courts Act, 1882 has been taken. Section 3 of the Act provides for compensation to the tenant for the building only on ejectment. Thus, the provisions of the Act apply to a situation where the contractual relationship of landlord and tenant has been terminated and the landlord seeks to enforce his right to recover possession. The landlord is the owner of the land, who is attempting to take back possession of the land while the tenant is the owner of the superstructure erected by him. Under the provisions of the Transfer of Property Act, the tenant will not be entitled to claim any compensation for the building. He must either remove the building or leave it to be enjoyed by the lessor. In many a case, the hardship to be suffered by the tenant would outweigh the advantage gained by the landlord by getting back possession of his land. In order to alleviate such hardship, the Legislation was enacted with a provision enabling the tenant to buy the land. 13. It has been held in Sundareswarar Devasthanam vs. Marimuthu, AIR 1963 Mad 369 , by a Division Bench of this Court that Section 9 of the Act is in its nature exproprietary and could be confined only to suits or applications in terms asking for possession and will not apply to a suit for declaration of the tenants title and for an injunction." While holding so, the Division Bench also referred to the decision of the Supreme Court in N.Vajrapani Naidu vs. New Theatres Carnatic Talkies Ltd { AIR 1964 SC 1440 }, wherein it was held that the purpose of Section 9 is not to deprive the landlord of his property or to acquire his rights to it. Therefore, it appears that unless the suit is one for ejectment or for recovery of actual physical possession from the tenant, a tenant is not entitled to take recourse to Section 9. 34. Therefore, it appears that unless the suit is one for ejectment or for recovery of actual physical possession from the tenant, a tenant is not entitled to take recourse to Section 9. 34. However, Mr.G.R.Swaminathan, learned counsel for the appellants relied upon a decision of another Division Bench of this Court in Haridas Girdhardas vs. Varadaraja Pillai { 1971 (1) MLJ 200 }, wherein it was held as follows:- "Before dealing with it, we would like to dispose of the contention that it is only in a suit in ejectment, the first respondent could at all invoke to his aid the provisions of the Act. In our opinion, this is not a correct view of the effect of the Act. What it does is to protect the tenant, which term it has defined, from eviction in terms of the common Law under which, on expiry of the lease, the tenant is liable to surrender vacant possession after removing the superstructures put up by him, however, valuable they may be. The availability of this protection to a tenant is not dependent upon filing of a suit in ejectment. The protection against eviction is a qualified one and the qualification no doubt operates in a suit in ejectment. That is to say, the right of the tenant to get compensation for the superstructures which he had put up on the land is a condition to its surrender or his right to exercise an option to purchase the land for its value. There is also the further protection to the tenant that he can apply for fixation of fair rent. This right is also available to the landlord. The rights of a tenant under the Act are further protected by Section 12 which says that nothing in a contract made by him shall take away or limit his rights under the Act. The operation of this Section again is not dependent upon a suit in ejectment and that means the protection covers the entire range of rights of the tenant under the Act. We think, therefore, that the first respondent is entitled to rely on his right under the Act in defence to the suit, which, as we understand, appears to be a device in the guise of a suit for declaration and specific performance to defeat the first respondents rights under the Act. We think, therefore, that the first respondent is entitled to rely on his right under the Act in defence to the suit, which, as we understand, appears to be a device in the guise of a suit for declaration and specific performance to defeat the first respondents rights under the Act. We say so because once the declaration asked for is given along with a direction for specific performance, as asked for by the appellants, it would at once mean an end of the first respondents rights under the Act." 35. But, the above decision of the Division Bench in Haridas Girdhardas, was reversed by the Supreme Court in Haridas Girdhardas vs. Varadaraja Pillai { 1971 (2) SCC 601 }. Though the Supreme Court reversed the decision of the Division Bench mainly on the question of enforceability of a clause in the lease deed enabling the landowner to purchase the building, in the context of the proviso to Section 12 of the Act (before its deletion in 1973), the opinion of the Division Bench in paragraph-7 extracted above, cannot anymore be relied upon. We have one more reason to hold so, since the decision of the Division Bench in Haridas Girdhardas does not refer to the decision of an earlier Division Bench in Sundareswarar Devasthanam vs. Marimuthu { AIR 1963 Mad 369 }. This decision in Sundareswarar Devathanam is referred to in paragraph-13 of the decision of the Division Bench in P.S.Balakrishnamaraja, for deriving support for the view that the Bench took. In Sundareswarar Devasthanam, it was held by the Division Bench in paragraph-40 as follows:- "40. Under Section 9(a) the tenant should file an application within one month after the service of summons or within a like period after the Act came into force in a suit for ejectment or proceeding under Section 41 of the Presidency Small Cause Courts Act. Admittedly in the present case, the application was not filed within one month of the filing of the application for eviction in the Court of Small Causes and it was filed only while the appeal was pending before the lower Appellate Court, but even so, there was no original application but only an interlocutory one in the appeal. The appeal itself arose out of a suit for a declaration of the respondents title and for an injunction; it was not one for possession. The appeal itself arose out of a suit for a declaration of the respondents title and for an injunction; it was not one for possession. It may be, as we have said earlier that the suit can be regarded as a continuation of the application for eviction for certain purposes like restitution etc. But it cannot be regarded as a suit for possession for the purposes of Section 9. That provision is in its nature expropriatory and could be confined only to suits or applications in terms asking for possession." It is needless to point out that the decision in Sundareswarar Devasthanam is anterior in point of time to the decision in Haridas Girdhardas. However, the decision in Sundareswarar Devasthanam was quoted with approval by the Division Bench in P.S.Balakrishnamaraja. The Divison Bench in P.S. Balakrishnamaraja actually took note of the decision of the Supreme Court in Haridas Girdhardas case, which reversed the decision of the Division Bench. This is why, in P.S.Balakrishnamaraja case, the Division Bench while dealing with the issue in paragraphs-12 and 13 did not touch upon the opinion of the Division Bench in Haridas. Therefore we are obliged to follow, with great respect, the decision in P.S. Balakrishnamaraja, since the decision of the Division Bench in Haridas Girdhardas was over ruled by the Supreme Court. 36. Before the Division Bench in P.S.Balakrishnamaraja, an argument was advanced (at paragraph22 in AIR 1993 Mad 357 ) that even before the insertion of sub-clause (ii) under Section 9(1)(a), by Tamil Nadu Act XXIV of 1973, the right to file an original petition under Section 9 was recognised by Panchapakesa Iyer, J., in Sayed Shamiah Thaikkal vs. Ibrahim Sahib { 1957 (2) MLJ 265 }. In other words, it was contended on the basis of the said judgment that a suit for ejectment was also not necessary for invoking Section 9. But the Division Bench rejected the said contention and ultimately held as unconstitutional, the amendment permitting a tenant to invoke Section 9 even without a suit for ejectment being instituted. 37. InP.Ananthakrishnan Nair vs. G.Ramakrishnan { 1987 (2) SCC 429 }, the Supreme Court pointed out that what is conferred by Section 9 is an additional statutory right "on a tenant against whom suit for ejectment is filed" and that it is not an absolute right. 37. InP.Ananthakrishnan Nair vs. G.Ramakrishnan { 1987 (2) SCC 429 }, the Supreme Court pointed out that what is conferred by Section 9 is an additional statutory right "on a tenant against whom suit for ejectment is filed" and that it is not an absolute right. The tenant has no vested right in the property, but only a privilege granted by statute which is equitable in nature. 38. In S.R.Radhakrishnan and Others vs. Neelamegam { 2003 (10) SCC 705 }, the Supreme Court held that a person seeking remedy under Section 9 should satisfy the following conditions, namely:- (a) Heshould be a tenant in possession of the land. (b)He should have erected a superstructure on the land in respect of which he will be entitled to claim compensation under Section 3. .(c) A suit or proceeding for eviction should have been taken by the landlord against him. .(d) He should have applied to the Court for direction in that regard within one month from the date of service of summons in such suit. 39. In Dharmalingam vs. S.Mahalingam {1987 (100) L.W. 267}, M.N.Chandurkar, J., held that a proceeding for ejectment is a sine qua non for the application of the provisions of Section 9. In J.Lease & Co. vs. M.S.A.Mohamed Farooq { 2000 (3) CTC 423 }, K.Sampath, J., pointed out in paragraph-17 that "only when the landlord files the suit in ejectment, Section 9 application can be filed". In R.Sundara Naicker vs. S.Chinnamal and another { 2004 (1) CTC 781 }, a Division Bench of this Court held that the filing of a suit for ejectment is an essential ingredient for invoking Section 9. Interestingly in that case, a suit for declaration of title and recovery of possession was filed on the ground that the defendant was a trespasser. In the light of such a pleading, the Division Bench held in paragraph-13 that the suit could not be construed as one for ejectment against a lawful tenant, but a suit for declaration and possession against a person termed as trespasser. Therefore the Bench held that Section 9 cannot be invoked. .40. Therefore, it is clear that the petition under Section 9 is not maintainable in a suit for partition between the co-owners of the land, over which the tenant had put up constructions. We have one more reason to come to this conclusion. Therefore the Bench held that Section 9 cannot be invoked. .40. Therefore, it is clear that the petition under Section 9 is not maintainable in a suit for partition between the co-owners of the land, over which the tenant had put up constructions. We have one more reason to come to this conclusion. Admittedly, the land belonged to two persons, both of whom jointly executed a lease deed in favour of P.C.Subba Raja on 24. 1946. The present suit is only for a partition of the half share of one of them, filed by the legatee under a Will executed by one of the two co-owners. The suit is against the legal heirs of the other co-owner. If this is actually a suit in ejectment filed as against the tenant, it would have been filed jointly by the legal representatives of both the co-owners against the tenant. But, it is not so. Therefore the suit cannot be treated as a suit in ejectment. We are conscious of the fact that the prayer in the suit is not only for a decree for partition but also for separate possession of the plaintiffs half share with reference to good and bad soil. But the prayer for separate possession in a partition suit has to be understood only in the context of who is in actual physical possession. In case, the property involved in a suit for partition, is a building comprising of several residential/non-residential portions in occupation of tenants whose rights are protected by the local Rent Control Laws, the prayer for possession in such a suit for partition, cannot be understood to mean a suit for eviction of those statutory tenants. The prayer for separate possession in such suits for partition, has to be taken only as a prayer for separation of possession from the co-owners and not as a prayer for separation of possession from the tenants. Otherwise, if such suits for partition and separate possession are taken to be suits for eviction against the tenants also, then such suits may be challenged as barred by law (Rent Control Laws) or such suits may tend to over reach the statutory protection given to tenants. Therefore the prayer of the plaintiff for possession cannot change the essential character of the suit as one for partition and make it one for ejectment. .41. Therefore the prayer of the plaintiff for possession cannot change the essential character of the suit as one for partition and make it one for ejectment. .41. An argument was advanced that if it is a simple suit for partition, there was no need to implead the first defendant. Though this argument would have been well founded at the time of initiation of the proceedings, it may not continue to be so anymore. It is true that the plaintiff need not have impleaded the defendants 1 to 3 at all, in the suit for partition. But they were impleaded perhaps on account of the fact that there were superstructures in the suit schedule property, to which the first defendant was making a claim. But irrespective of the status of the parties at the time of filing of the suit, it is now admitted that the first defendant has purchased a portion of the undivided share of land from a few legal heirs of one of the original co-owners M.S.M.Shahul Hamid Rowther. Therefore the first defendant became a necessary party in the suit for partition, after they had purchased an undivided share in the land also. If the first defendant had not been impleaded at the time of institution, they would have been impleaded at least subsequently, after they purchased an undivided share. Therefore, their presence in the proceedings, would not make the suit for partition, a suit for ejectment. Consequently, we hold that the application under Section 9 was not maintainable in the suit for partition. Maintainability Of Application Under Section 9 After The Tenant Purchases A Portion Of The Land: 42. The next question to be decided is as to whether a tenant who purchases a portion of the land, can still maintain an application under Section 9. It is not in dispute that during the pendency of the suit, the first defendant has purchased 27 cents of undivided share out of the total extent of 66 cents. Though by this purchase, the status of the plaintiff as the "landlord" has not undergone any change, the status of the first defendant as the "tenant" or "the assignee of the tenancy rights", has now undergone a change, by the act of parties and the subsequent events. 43. Though by this purchase, the status of the plaintiff as the "landlord" has not undergone any change, the status of the first defendant as the "tenant" or "the assignee of the tenancy rights", has now undergone a change, by the act of parties and the subsequent events. 43. Under Section 111 (d) of the Transfer of Property Act, a lease of immovable property is determined if the interests of the lessee and the lessor in the whole of the property, becomes vested at the same time in one person in the same right. What is postulated under Section 111(d), is the "Doctrine of Merger". But the question whether the doctrine of merger, either as found in Section 111 (d) of the Transfer of Property Act, or as enunciated on general principles by Courts, is applicable to cases of this nature, is to be examined. 44. Courts have consistently held that merger takes place when a lesser and a greater estate in the same land, come together and vest in the same person and in the same right, thereby sinking, drowning or annihilating the lesser in the greater estate. Therefore, when a tenant purchases the whole of the interest of the landlord, the tenancy rights get extinguished. But when the lessee purchases only a part of the estate, the lease is not extinguished. 45. As a matter of fact, the applicability of the doctrine of merger was considered in respect of a tenancy governed by the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 by a Division Bench of this Court in N.Rajeswari vs. S.P.Palaniappan { 1984 (2) MLJ 62 }. In that case, a petition for eviction was filed on the ground of unauthorised subletting, commission of acts of waste etc. During the pendency of the eviction proceedings, the tenants purchased 11/60 undivided share in the property from some legal representatives of the landlords. A contention was raised that the tenancy got wiped out, after the tenants purchased a moiety and became co-owners thereby. But that contention was rejected by the Division Bench, on the ground that the doctrine of merger would apply only when the entire interest of the landlord is purchased by the tenant. A contention was raised that the tenancy got wiped out, after the tenants purchased a moiety and became co-owners thereby. But that contention was rejected by the Division Bench, on the ground that the doctrine of merger would apply only when the entire interest of the landlord is purchased by the tenant. In paragraph-23 of the said judgment, the Division Bench held that such tenants, who purchase a portion of the property, would have two capacities, viz., one as co-owners in respect of the share purchased and another as tenants in respect of the remaining share. 46. Having said all that, the Division Bench took up the question of the relief that could be granted to the landlord in such cases, in paragraphs-30 and 31 of the decision. In respect of persons who continued only as tenants, the Division Bench ordered their eviction. But in respect of tenants who purchased a moiety during the pendency of the proceedings, the Division Bench refused an order of eviction and left it open to the parties to seek appropriate relief by way of partition and separate possession. 47. In Abdul Alim vs. Sheikh Jamal Uddin Ansari and Others { 1998 (9) SCC 683 }, a shop jointly owned by two brothers, was let out. One of the brothers sold his share in the shop to the tenant, thereby making him a co-owner to the extent of half share. The brother who retained his half share filed an application for the release of the property under the U.P. Rent Control Act. The High Court held the application to be maintainable on the ground that the sale did not change the status of the tenant. However, the Supreme Court reversed the judgment of the High Court and held that there was a change of status of the tenant to that of an equal co-owner of an unpartitioned property. 48. However, in T.Lakshmipathi and Others vs. P.Nithyananda Reddy and Others { 2003 (5) SCC 150 }, the Supreme Court took a different view and held as follows:- "A bare reading of the doctrine of merger, as statutorily recognized in India, contemplates (i) coalescence of the interest of the lessee and the interest of the lessor, (ii) in the whole of the property, (iii) at the same time, (iv) in one person, and (v) in the same right. There must be a complete union of the whole interests of the lessor and the lessee so as to enable the lesser interest of the lessee sinking into the larger interest of the lessor in the reversion." Therefore, it was held that when the whole of the estate is not purchased, either the water of the larger estate is not deep enough to drown the lesser estate or the body of the lesser estate not small enough to sink or submerge. .49. When the above conflict between Abdul Alim and T.Lakshmipathi was noted, the issue was referred to a Bench of three Judges in Pramod Kumar Jaiswal vs. Bibi Husn Bano { 2005 (5) SCC 492 }. In that case, a question as to what happens to the original tenancy as well as the sub tenancy, when a sub tenant buys the entire reversionary interest of the landlord, arose for consideration. There was a small area in that case, with regard to the intervening intermediate estate, where their Lordships differed, but We are not concerned here, with that question. However, all the learned Judges were unanimous in their opinion that unless the interests of the lessee and that of the lessor in the whole of the property leased, became vested at the same time in one person in the same right, a determination of lease cannot take place. It was held that on taking an assignment, from some of the co-owner landlords, the interests of the lessee and the lessor in the whole of the property, do not become vested in one person and that therefore it was not possible to raise the plea of determination of tenancy on the ground of merger. 50. Therefore, the larger Bench approved the decision in T.Lakshmipathi, as reflecting the correct position of law. Hence, it is clear that the doctrine of merger may not apply in this case, since the appellant has purchased only a part of the undivided share of land from some of the co-owners. Therefore, the tenancy may not have got extinguished. To this extent, there is no difficulty. 51. But we are on a larger question, as to what happens to the rights of such a tenant under Section 9 of the Madras City Tenants Protection Act. Therefore, the tenancy may not have got extinguished. To this extent, there is no difficulty. 51. But we are on a larger question, as to what happens to the rights of such a tenant under Section 9 of the Madras City Tenants Protection Act. Under Section 9 (1) (b) of the Madras City Tenants Protection Act, 1921, the right conferred upon the tenant is to purchase only a minimum extent of land, as may be necessary for the convenient enjoyment of the building put up by him. Once a tenant purchases a moiety, before or during the pendency of the proceedings, the right conferred under Section 9 (1) (b), stands either partly or fully exercised or satisfied, out of Court. There are three possibilities arising out of such a purchase. The tenant might have purchased a portion which is either equal to or more than or less than the minimum extent of land, which he is entitled to purchase by virtue of Section 9(1)(b). If he has purchased an extent of land which is equal to or more than the minimum extent to which he is entitled under Section 9(1)(b), there is a possibility of a merger of the right under Section 9(1)(a), having taken place already. The merger of the right under Section 9(1)(a)of the City Tenants Protection Act, may not stand on the same footing as the determination of tenancy by way of merger contemplated under Section 111(d) of the Transfer of Property Act. For instance, if a tenant is entitled to purchase about 10 cents of land, which is the minimum extent required to satisfy Section 9 (1) (b) and he had already purchased 10 cents or more, his right under Section 9 would stand fully exhausted or satisfied and he would be left thereafter only with a right to seek allotment of that portion on which the building stands, when the final decree proceedings in the partition action takes place. On the other hand, if the tenant had purchased out of Court, an extent of less than 10 cents (say for instance 8 cents), his right under Section 9 may survive, only to the extent of the difference between the minimum extent of land (10 cents) to which he is entitled and the extent of land (8 cents) which he had already purchased. But this reduced or mutilated right under Section 9 (1) (b), will be taken care of, by the Court working out equities, in the final decree proceedings in the partition action. .52. Inthe case on hand, the total extent of land leased out was 66 cents, out of which, the appellants have purchased an extent of about 27 cents, during the pendency of the proceedings. This fact is admitted by the witness examined on behalf of the first appellant Bharathan Theatres Ltd during his testimony. If this extent of 27 cents represents either the minimum extent or more than the minimum extent that the appellant is entitled to purchase under Section 9(1)(b), his right under Section 9(1)(a) should be taken to have been extinguished. In other words, it is not the legislative intent underlying the Madras City Tenants Protection Act, 1921, to enable the tenant to purchase another extent of land by exercising the right under Section 9(1)(a), in addition to the land that he has already purchased out of Court. As pointed out earlier, the right under Section 9 is not a property right but a privilege and it is indicated by the Apex Court only to be an exproprietory. Therefore, the tenant cannot seek double benefits, one by purchasing the minimum extent from one of the co-owners, out of Court and another by taking recourse to Section 9(1)(a), against the other co-owner. 53. Suppose, what was purchased by a tenant out of Court from one of the co-owners, is lesser than the minimum extent required to retain the building put up by him, the entire right under Section 9(1) (a), cannot be said to have been extinguished by such purchase, in view of the fact that by Section 9 (1) (b), he is entitled to purchase the minimum extent. But in such cases, the tenant can always work out equities at the stage of final decree proceedings in the suit for partition. While asking for allotment of the building put up by him, he can always ask for the allotment of the residual portion in respect of the land. In other words, the tenant is not left without a remedy to protect his building. While asking for allotment of the building put up by him, he can always ask for the allotment of the residual portion in respect of the land. In other words, the tenant is not left without a remedy to protect his building. If the land and the building are not feasible of allotment, the court passing the final decree would always work out the compensation payable for the building and make an allotment on the basis of equities. Thus the right to receive compensation for the building under section 3 of the Madras City Tenants Protection Act or to seek the sale of the residual portion of land so as to be able to retain the building, can still be worked out in the final decree proceedings. 54. The issue can also be looked at from another angle. Suppose, the application under Section 9 is allowed in a case of this nature, then the price fixed by the Court will have to be paid by the tenant to the landlords and the landlords should execute a sale deed conveying the minimum extent of land fixed by the Court. The tenant having already purchased a portion of the undivided share of land, would be entitled, by virtue of his purchase, to a share of the sale price fixed by the Court. He would also be under an obligation to join in the execution of the sale deed, as directed by the Court in the application under Section 9. Consequently, the tenant would be called upon to perform a dual role, both in respect of payment of sale price and in respect of the execution of the sale deed. In other words, the tenant would be entitled to receive a portion of the sale price which he himself is obliged to pay and he would be liable to execute a sale deed in his own favour. This anomaly would not arise only when such a tenant is directed to work out his remedies in the final decree proceedings and not in the application under Section 9. Therefore, we hold that the application of the appellants under Section 9 is bound to be rejected, in view of their purchase of an undivided share of the land. The appellants should work out their remedies only in the final decree proceedings. 55. Therefore, we hold that the application of the appellants under Section 9 is bound to be rejected, in view of their purchase of an undivided share of the land. The appellants should work out their remedies only in the final decree proceedings. 55. In view of our finding that a tenant who had purchased a portion of the undivided share of land from some of the co-owners, will not be entitled to seek a remedy under Section 9 of the Madras City Tenants Protection Act, 1921, it is unnecessary to go into the question whether Bharathan Theatres Ltd., could be construed as a tenant or the assignee of the tenancy rights or a sub-lessee. However, the finding of the trial Court that in terms of the lease deed dated 24. 1946, the tenant was obliged to hand over possession of the land along with the building put up by him, may not be correct, in view of Section 12 of the Act. Section 12 declares that nothing in any contract shall take away or limit the rights of a tenant under the Act. Prior to its amendment under Tamil Nadu Act IV of 1972, Section 12 also contained a proviso. The proviso saved certain stipulations made by the tenant in writing, as to the erection of buildings, in so far as they related to buildings erected after the date of the contract. But the amendment deleted the proviso with retrospective effect. Therefore the clause contained in the lease deed dated 24. 1946 relating to the liability of the tenant to hand over the buildings, cannot be enforced. Hence the finding of the trial Court in this regard cannot be sustained. 56. The last contention of the learned counsel for the appellants that the claim of the plaintiff for mesne profits, made the valuation under Section 37(2) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 erroneous, cannot be accepted. As observed earlier, the suit was one for partition, filed by a legal representative of one co-owner against the legal representatives of the other co-owner. At the time of institution of the suit, none of the co-owners was in actual physical possession of the property. The property has always been in the enjoyment of the tenant from 1946. But in order to value a suit for partition under Section 37(2), it is enough if the plaintiff establishes constructive possession. At the time of institution of the suit, none of the co-owners was in actual physical possession of the property. The property has always been in the enjoyment of the tenant from 1946. But in order to value a suit for partition under Section 37(2), it is enough if the plaintiff establishes constructive possession. On the date of filing of the suit, all the co-owners were in the same position with regard to possession, in the sense that the possession of any one or more of them, was not to the exclusion of any one or more of the others, including the plaintiff. Unless the plaintiff had been excluded from possession by the other co-owners, on the date of the suit, it cannot be stated that the valuation under Section 37(2) is wrong. 57. In view of the above, the decree for partition granted by the trial Court and the dismissal of the application under Section 9 of the Madras City Tenants Protection Act, 1921, are upheld and both the appeals are dismissed with costs.