JUDGMENT
S. Nainar Sundaram, J.
1. The legal representatives of the deceased original plaintiff are the appellants in the second appeal. The respondents are the successors in right, title and interest of the original defendants. I do not propose to dwell in extenso over the factual details of the controversy since I am inclined to remit the matter back for a fresh consideration to the lower appellate court taking note of a point of law advanced by Mr. M.R. Narayanaswami, learned Counsel appearing for the appellants. However, certain broad facts need delineation.
2. The suit property being a site was the subject-matter of a demise by way of a lease by the plaintiff to and in favour of the first defendant. That lease was duly determined and on such determination the plaintiff laid the suit for recovery of possession and for damages for use and occupation. The contesting defendants would resist the claim for recovery of possession and would plead that they would be entitled to protection under the Tamil Nadu City Tenants Protection Act, 1921 (Act III of 1922), hereinafter referred to as ‘the Act’. There was an independent application taken out by the second defendant under Section 9 of the Act to direct the plaintiff to sell the entire suit site for a price to be fixed by the Court. This application was resisted by the plaintiff and in the additional counter it was contended that the suit site has been sublet to one N.P.S. Shanmugam Pillai on a monthly rent of Rs. 200/- and the subtenancy is in existence for the past more than 20 years and therefore, the application under Section 9 of the Act is not maintainable in law. The import of the plea is to state that the tenant is out of possession. There was a rejoinder to this plea of the plaintiff and both the Counsel admit that the first court has correctly summed up the substance of this rejoinder in its judgment and the summing up runs in the following terms:
The allegation that the petitioner has sublet the premises to the firm N.P.S. Shanmugam Pillai on a monthly rent of Rs. 200/- is wholly false and untenable. The said firm N.P.S. Shanmugam Pillai are only dealers of the products of the petitioners at the suit site. The relationship between the defendant and the said firm is not one of chief tenant and sub-tenant and their relationship is governed by a dealership agreement in regard to supply of products.
Further a licence agreement regarding grant of leave and licence to use the suit site for the purpose of the said business and for using the superstructure and a licence to use the facilities put up by the petitioner/defendant on the premises also for the said business has been made. The said party has no rights in and over the suit property. But the petitioner only, has got the tenancy rights and the other rights. No amount is also paid by the firm N.P.S. Shanmugam Pillai as rent. The said firm has under the licence agreement to pay a sum of Rs. 125/- per month as licence fee in consideration of the permission granted by the petitioner for the use of the premises and superstructure for the purpose of selling the products of the petitioner. Further in addition to this, they have to pay a sum of Rs. 50/- per month for using the facilities provided by the petitioner for the same purpose and therefore it is not correct to state that the firm N.P.S. Shanmugam Pillai pays a monthly rent of Rs. 200 to the petitioner. There is also no subtenancy in favour of the said firm. Further subsequently the said firm have been only dealers of the petitioner’s products for about 25 years by virtue of dealership agreement and licence agreement. Further the application filed by the petitioner is perfectly maintainable and they are entitled to receive compensation for the superstructure put up by them and there is also no question of any subtenancy and therefore the petitioner is entitled to claim the rights under Tamil Nadu City Tenants Protection Act and the said rights also cannot be defeated.
3. Both the suit and the application were considered together by the first court and it repelled the case of sub-letting by the plaintiff and after considering the other aspects, countenanced the plea for sale of the suit site under Section 9 of the Act put forth by the second defendant and it also straightway dismissed the suit. There were appeals by the plaintiff as against the judgment and decree in the suit and the order in the application under Section 9 of the Act and they were prosecuted by his legal representatives on his demise pending the appeals. The lower appellate court also fell in line with the thinking of the first court on the relevant aspects and the result was the appeals was dismissed. However, the lower appellate court directed the restoration of the suit to prosecute the further process under the Act. The second appeal is directed against the judgment and decree in the appeal arising out of the suit and the civil revision petition is directed against the judgment and decree in the appeal arising out of the application under Section 9 of the Act.
4. Mr. M.R. Narayanaswami, learned Counsel for the appellants, would urge that the very rejoinder, extract of the substance of which has been made above, amply bears out that the concern of the defendants who claimed the benefits of the Act is not in actual physical possession and if this fact is taken note of, such a tenant cannot claim the benefits of the Act. He drew my attention to the definition of a tenant in Section 2(4) of the Act after its amendment by Tamil Nadu Act XXIV of 1973. It is the admitted fact that only by virtue of a notification under Section 1(3) of the Act, the tenancy is covered by the Act. If this is so, Section 2(4)(ii)(b) of the Act would certainly be attracted. For the purpose of appreciating the implications of the definition of a tenant in Section 2(4), I feel obliged to extract the same and it runs as follows:
‘Tenant’ in relation to any land:
(i) means a person liable to pay rent in respect of such land under a tenancy agreement express or implied, and
(ii) includes–
(a) any such person as is referred to in Sub-clause (i) who continues in possession of the land after the determination of the tenancy agreement.
(b) any person who was a tenant in respect of such land under a tenancy agreement to which this Act is applicable under Sub-section (3) of Section 1 and who or any of his predecessors-in-interest had erected any building on such land and who continues in actual physical possession of such land and building notwithstanding that–
(1) such person was not entitled to the rights under this Act by reason of the proviso to Section 12 of this Act as it stood before the date of the publication of the Madras City ‘Tenants’ Protection (Amendment) Act, 1972 (Tamil Nadu Act 4 of 1972), or
(2) a decree for declaration or a decree or an order for possession or for similar relief has been passed against such person on the ground that the proviso to Section 12 of this Act as it stood before the date of the publication of the Madras City Tenants Protection (Amendment) Act, 1972, (Tamil Nadu Act 4 of 1972) disentitled such person from claiming the right under this Act and
(c) the heirs of any such person as is referred to in Sub-clause (i) or Sub-clause (ii)(a) or ii(b) but does not include a sub-tenant or his heirs.
The very language of Clause (ii)(b) is unambiguous when it speaks about the tenant who continues in actual physical possession of the land and the building. That actual physical possession is a sine qua non to claim and obtain the benefits of the Act has been countenanced by more than one pronouncement of this Court.
5. In Abdul Mallik v. Fr. Joseph Sandanam , V. Ramaswami, J. countenanced that as per the provision amended by Tamil Nadu Act XXIV of 1973, the continuance of possession of the land and actual physical possession are necessary for claiming protection under the Act.
6. In Haridas Girdhardas v. Varadaraja Pillai (1976) 89 L.W. 1, a Bench consisting of Veeraswami, C.J. and Natarajan, J. after taking note of the extended definition of a tenant introduced by Tamil Nadu Act XXIV of 1973, countenanced that he must continue in actual possession of the land and building.
7. In Ananthakrishnan Nair v. Dr. Rama-krishnan (1977) 2 M.L.J. 98, Ramaprasada Rao, J. as he then was, held that the amended provision makes it clear that continuance in possession of the land and actual physical possession of the land and building is a necessary indicia for claiming protection under the Act.
8. In T.R.P. Raja Sekara Bhoopathi v. Navaneethammal (1979) 92 L.W. 259, Ramaprasada Rao, C.J. dealt with a case of subletting, and it was contended before the learned Chief Justice that since the tenant had parted with actual physical possession of the land and building to a third party, the tenant could not claim the benefits of the Act. The learned Chief Justice observed as follows:
On a fair reading of Section 2(4)(ii)(b) of the Act, it is clear that such a physical and actual possession of the land and building is a sine qua non to project the benefits or statutory entitlement under the Act. If that were not the intendment of this piece of legislation, then the very foundation of its objective would be lost …. I am, therefore, of the view that the primordial requirement for a tenant to claim the benefits under the Act is that he should be in actual physical possession of such land and building.
9. I find the two courts below have not adverted to and concentrated on this aspect and adjudicated, it and they were content to proceed with the matter after repelling the plea of subtenancy put forth by the plaintiff. According to Mr. M.R. Narayanaswami, learned Counsel appearing for the appellants, the substance of the averments in the rejoinder extracted above, do indicate that the tenant is out of possession or in other words, he is not in actual physical possession. Further, the learned Counsel would submit that how N.P.S. Shanmugam Pillai derives rights to be in possession be it under a subtenancy or under a licence would not matter much and it is enough if it is found that he is in possession because, for the tenant to seek the benefits of the Act, he must show that he is in actual physical possession and that element is glaringly lacking in the present case.
10. In answer to the above submissions projected by the learned Counsel for the appellants, Mr. S. Ramasubramaniam, learned Counsel appearing for the respondents, would submit that admittedly the concentration in the courts below was not at all on this aspect and the plaintiff having consciously laid the suit for recovery of possession from the defendants must be deemed to have admitted that the defendants are in actual physical possession. Though I appreciate the submission of the learned Counsel for the respondents that the concentration before the courts below was not on the aspect of the tenant’s actual physical possession of the suit site, yet, it is not possible to straightway draw an inference that the plaintiff admitted the defendants to be in actual physical possession, from the mere fact that he laid the suit for recovery of possession from the defendants alone. The pleadings in the application under Section 9 of the Act cannot be lost sight of and there is a specific plea of subleasing to N.P.S. Shanmugam Pillai and it was only in answer to this plea, the rejoinder, the substance of which has been already extracted, had come to be filed. This is a question which does arise on the pleading already on record. But the only lacuna the judgments of the courts below have suffered is that they have not adverted to and concentrated on this aspect of actual physical possession of the tenant, and adjudicated the said question after adverting to the statutory provisions and the principles laid down by the pronouncements of this court, though not any other pronouncement on this point. Both the sides admit that the parties were also at fault, in that they did not concentrate on this aspect and lead the requisite evidence therefor. I do not want the cause of any party to suffer on this ground and in my view, the interests of justice and the interests of parties require an order of remittal to the lower appellate court for it to advert to the question as to whether the concerned defendants who claim rights under Section 9 of the Act is in actual physical possession within the meaning of Section 2(4) of the Act taking guidance from the principles enunciated by the pronouncements of this court referred to above as well as any other pronouncement relevant on the point. It is needless to state that if the application under Section 9 of the Act is to be countenanced the suit will have to abide the results in the application adhering to the provisions therefor set out in the Act. If on the other hand, the application under Section 9 of the Act has got to be discountenanced, the suit will have to be decreed since no other impediment, factual or legal, seems to stand in its way. I make it clear that I have not disturbed the other findings of the courts below. Accordingly, C.R.P. No. 1980 of 1979 is all lowed and equally so S.A. No. 1521 of 1979 is allowed and the judgments and decrees in A.S.No. 77 of 1978 and C.M.A. No. 9 of 1978 are set aside and the said appeals A.S. No. 77 of 1978 and C.M.A. No. 9 of 1978 will stand remitted to the file of the lower appellate court for it to consider the same in the light of the observations and directions given above. The lower appellate Court will permit the parties to place further evidence, both oral and documentary, as they may deem fit, on the question as to whether the concerned defendant who claims the benefits of Section 9 of the Act is in actual physical possession of the suit site within the meaning of Section 2(4) of the Act. The parties are directed to bear their respective costs upto and inclusive of the stage of the second appeal and the revision. Further costs in the lis will abide the results before the lower appellate court. The appellants in the second appeal are entitled to refund of the court fees paid on the memorandum of second appeal. The parties are directed to appear before the lower appellate court to take further directions on 7th April, 1986.