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2012 DIGILAW 1010 (MAD)

P. Senthamaraikannan v. K. Sathyendrakumar

2012-02-24

R.S.RAMANATHAN

body2012
Judgment :- 1. Defendant in the ejectment suit in O.S.No.2 of 1988 on the file of the III Judge, Small Causes Court, Chennai is the revision petitioner. 2. The respondents filed the ejectment suit under section 41 of the Presidency Small Causes Court Act for eviction of the revision petitioner stating that the revision petitioner was the tenant of the land under the respondents and he committed wilful default in the payment of rent for the land and therefore, the suit was filed for recovery of possession after issuing proper notice under section 11 of the Tamil Nadu City Tenants Protection Act and the revision petitioner is also not entitled to any protection under the said Act as he has also sublet the premises viz., the land to another person and he is not in actual possession of the land. 3. The revision petitioner contested the suit stating that he was the lessee in respect of 832 sqft alone and not 2486 sqft mentioned in the schedule and he has not sublet any land and the notice is not proper and therefore, he cannot be evicted. The revision petitioner also filed M.P.No.541 of 1998 under section 9 of the City Tenants Protection Act to purchase the portion of the land over which he has put up construction and that application was dismissed on 30.6.2003 holding that he has sublet the land without the consent of the respondents and therefore, he was not in possession of the land which was given to him on lease and therefore, he is not a tenant as defined under the Act and not entitled to the protection of the Act. Though the revision petitioner claims that he has filed an appeal against the said order, as on date, no proof of filing such appeal has been produced by the revision petitioner and the order passed under section 9 of the Act in M.P.No.541 of 1998 has become final. Meanwhile, the respondents filed M.P.No.2711 of 2003 under section 3 of the City Tenants Protection Act to assess the value of compensation payable to the tenant and an Advocate Commissioner was appointed and that Advocate Commissioner also, after inspecting the property, submitted a report stating that the value of the construction after depreciation would be Rs.74,730/= and both the parties filed objections for the Commissioner's Report. 4. 4. The learned III Judge, Small Causes Court, Chennai allowed the application filed by the respondents/landlords holding that the value of the superstructure is Rs.1,28,218/= and the revision petitioner is not entitled to claim compensation as he is not in possession of the property and has sublet the land to another person. The learned III Judge, Small Causes Court also directed the revision petitioner to vacate and hand over possession within three months and also decreed the ejectment suit No.2 of 1988 on the basis of the order passed in M.P.No.2711 of 2003. These two revisions are filed by the revision petitioner challenging the orders passed under section 3 and in the ejectment suit filed by the respondents. 5. Mr.Avudainayagam, learned counsel for the revision petitioner submitted that when a suit is filed for ejectment by the landlord and in that suit, the tenant files an application under section 9 of the Act and that application filed by the tenant is dismissed, the suit filed by the landlord need not be decreed as a consequential order and the court has to find out whether the landlord is entitled to the decree having regard to the provisions of section 11 of the Act. In other words, he submitted that when the notice contemplated under section 11 has not been properly given or the notice is bad in law, even though the tenant was not given the benefit of section 9 of the Act, the ejectment suit filed by the landlord is liable to be rejected for want of proper notice. He further submitted that the eviction order passed by the court below as a consequential order is not valid in law. He further submitted that the eviction order passed by the court below as a consequential order is not valid in law. He further submitted that M.P.No.2711 of 2003 was filed by the landlord to fix the compensation payable to the revision petitioner and as per section 3 of the Tamil Nadu City Tenants Protection Act, when a landlord files a suit for ejectment, he is liable to pay compensation for the superstructure put up by the tenant and as per section 4(2) of the said Act, when an application under section 41 of the Presidency Small Causes Court Act is allowed, the court shall ascertain the amount of compensation payable under section 3 and shall pass an interim order declaring the amount so found due and on payment of the amount into court within three months from the date of such interim order, the landlord shall be entitled to the order contemplated under section 43 of the Presidency Small Causes Court Act, 1882. He, therefore, submitted that the court below, having held that the cost of the superstructure is Rs.1,28,218/=, ought to have directed the respondents to pay the said amount to the revision petitioner and ought not to have held that the revision petitioner is not entitled to compensation as admittedly, the revision petitioner has put up superstructure. 6. On the other hand, Mr.Mani Narayanan, learned counsel for respondents 3 to 7 submitted that though the ejectment suit was filed under section 41 of the Presidency Small Causes Court Act, the suit was filed after proper notice issued under section 11 of the Act and in that suit, the revision petitioner filed an appeal under section 9 of the Act claiming protection from eviction and in the application filed by the tenant in M.P.No.541 of 1998, it was held that he has sublet the land to another person and he was not in possession of the landed property and therefore, he was not entitled to the protection of the City Tenants Protection Act and the application filed by the tenant under section 9 was dismissed. He, therefore, submitted that when the tenant/revision petitioner is not entitled to any protection under the Act on the ground that he is no longer a tenant, he is not entitled to raise any defence like want of proper notice as per section 11 of the Act and therefore, the court below has rightly passed the order of eviction. He further submitted that under section 3 of the Act, the court has to fix the compensation payable towards the superstructure and as per section 4 of the Act, the tenant is liable to hand over vacant possession on receipt of the compensation fixed by the court. In this case, admittedly, the revision petitioner/tenant is not in possession of the property and therefore, he cannot give vacant possession of the property to the respondents on payment of any compensation and considering that aspect, the court below rightly held that the revision petitioner is not entitled to the compensation and ordered eviction and therefore, there is no need to interfere with the findings of the court below. He also relied upon the judgment reported in P.A.THOMAS v. M.MOHAMMED TAJUDDIN ( (1996) 6 SCC 399 ), ABDUL MALLIK v. FR. JOSEPH SANDANAM ( 1975 (II) MLJ 204 ) and ESTATE OF T.P.RAMASWAMI PILLAI v. MOHD. YOUSUF ( 1983 (II) MLJ 319 ) in support of his contention. 7. Heard both sides. To appreciate the contention of the revision petitioner that he is entitled to the compensation as determined under section 3 of the Act and the order of eviction is not valid as the suit was filed without giving proper notice under section 11 of the Act, we will have to see whether the revision petitioner can be termed as a tenant as per the provisions of the said Act. As stated supra, in M.P.No.541 of 1998 filed by the revision petitioner under section 9 of the Act, it was held that he has sublet the landed portion to another person and he was not in possession of the leasehold land and therefore, he was not entitled to the benefits under section 9 of the Act and that application filed by the tenant/revision petitioner was dismissed and that has become final. 8. In the judgment reported in 1983 II MLJ 319, the term "tenant" as defined in section 2 (4)(i) of the Tamil Nadu City Tenants Protection Act has been dealt with. 8. In the judgment reported in 1983 II MLJ 319, the term "tenant" as defined in section 2 (4)(i) of the Tamil Nadu City Tenants Protection Act has been dealt with. It has been held therein that tenant in relation to any land means a person liable to pay rent in respect of such land, under the tenancy agreement express or implied, having regard to the provisions of section 2(4)(ii), it is made clear that continuity of possession would be a condition precedent for a person to claim the right of a tenant and further held that a person, who is not at all in possession, cannot claim any right under section 9 of the Act and it would be to violate the very definition of the word 'tenant' and also totally defeat the very object with which the provisions of the Act had been enacted if protection is given to such person who is not in possession of the property though he is a tenant liable to pay rent in respect of the land. 9. Therefore, when a person, who is admittedly not in possession of the landed property, and has also sublet the same, is not entitled to claim the status of tenant and he is also not entitled to question the validity of the notice issued under section 11 of the Act as he cannot claim any right under the Act. The notice contemplated under section 11 is available only to a person who is entitled to claim the benefits of the Act and who is also a tenant as defined under the Act. When a person is not a tenant under the Act, he is not entitled to the benefits of section 11 even though the ejectment suit was filed under section 41 of the Presidency Small Causes Court Act treating such person as a tenant. 10. In this case, in M.P.No.541 of 1998 filed by the tenant/the revision petitioner, it was mentioned that he has sublet the landed portion to another person and he is not in possession of the land and therefore, he was not entitled to the benefits under section 9 of the Act. 10. In this case, in M.P.No.541 of 1998 filed by the tenant/the revision petitioner, it was mentioned that he has sublet the landed portion to another person and he is not in possession of the land and therefore, he was not entitled to the benefits under section 9 of the Act. That judgment has become final and as per the definition of the "tenant" as per section 2(4)(i), he ceases to be a tenant as he has parted with the possession of the land and therefore, he cannot claim the benefits under the Act. 11. Further, the right to claim compensation under section 4 has been discussed in the judgment reported in 1995 (II) MLJ 204. As stated supra, as per section 4 of the Act, when the landlord succeeds in an application under section 41 of the Presidency Small Causes Court Act, the court shall ascertain the amount of compensation payable under section 3 and the landlord shall be entitled to the order contemplated under section 43 of the Presidency Small Causes Court Act and as per section 43, the landlord is entitled to the vacant possession of the property on payment of compensation as ordered by the court. 12. In this case, admittedly, the revision petitioner has sublet the land to another person and he has put up construction over the land and even after payment of compensation by the landlord, the revision petitioner cannot hand over vacant possession of the property to the landlord. Considering that aspect, this court has held in the judgment reported in 1975 (II) MLJ 204 that a tenant, who has parted with possession of the property, is not entitled to the benefits of the provisions of sections 3 and 4 of the Act and claim compensation for the building as he cannot hand over vacant possession on receipt of compensation. 13. Therefore, the court below, considering the above judgment and also following the judgment of the Supreme Court in 1983 (II) MLJ 319 held that the revision petitioner was not entitled to compensation and therefore, ordered eviction as the revision petitioner was not a tenant as per the definition of section 2(4) of the Act and his petition to purchase the property filed under section 9 of the Act was also dismissed. 14. The court below rightly decreed the ejectment suit and ordered eviction. 14. The court below rightly decreed the ejectment suit and ordered eviction. I do not find any reason to interfere with the order of the court below and the orders of the court below are confirmed and the revisions are dismissed. No costs. The connected miscellaneous petitions are also dismissed.