JUDGMENT
S.M. Abdul Wahab, J.
1. Defendants are the appellants in A.S. No. 830 of 1984 and in C.M.A. No. 407 of 1986.
2. The suit was filed by the respondent for recovery of possession of the suit property. The first defendant became a tenant under him on 3.3.1976 in respect of the vacant land. The tenancy was for a period of seven years and the first defendant agreed to vacate and handover possession after the expiry of the said period i.e., on 1.3.1983. Since the plaintiff wanted to construct a mini (cinema) theatre in the suit property, he issued a notice to the first defendant. The first defendant sent reply stating about the subtenancy in favour of the second defendant.
3. The defence was that the first defendant carried out the levelling work in the suit property. He has sub-leased the suit property to the second defendant. In the defence, the earlier lease given by the father of the plaintiff is also set out. The first defendant entered into an agreement with the second defendant. They have put up constructions to the knowledge of Subbarayan the original lessor and then the plaintiff. The lease deed, dated 3.3.1976 was a continuation of the earlier lease commenced from 1.3.1963. The second defendant is the successor of Esso Standard Easter Inc., Madras from 13.3.1974. The second defendant is entitled to the benefits of the City Tenants Protection Act. Notice issued by the plaintiff is not as per Section 11 of the Tamil Nadu City Tenants Protection Act. Hence, the suit is not maintainable.
4. After the suit, the appellants filed I.A. No. 454 of 1983, claiming benefits under the City Tenants Protection Act.
5. The trial court has framed as many as six issues in the suit and also framed the point as to whether the defendants 1 and 2 were entitled to the benefits of the City Tenants Protection Act. On a detailed consideration, the trial court found that the defendants, especially the second defendant was not entitled to claim benefits under the City Tenants Protection Act. Therefore, it decreed the suit and dismissed the I.A. No. 454 of 1983. Hence the two appeals.
6. The learned Counsel for the appellants Mrs. Pushpa Sathyanarayanan, vehemently contended that the suit is not maintainable, since notice under Section 11 of the Act is mandatory. According to the learned Counsel for the appellant once a land is leased out to a tenant, the notice under Section 11 of the Act is mandatory, without such notice, the suit cannot be filed. Section 11 of the Act reads as follows:
Notice before institution of suits or applications against tenants. No suits in ejectment or applications under Section 41 of the Presidency Small Causes Courts Act, 1882, shall be instituted or presented against a tenant until the expiration of three months next after notice in writing has been given to him requiring him to surrender possession of the land and building and offering to pay compensation for the building and trees, if any and stating the amount thereof. ” In this case, admittedly the notice given by the respondent is not in accordance with Section 11 of the Act.
7. Relying upon the said section, the learned Counsel for the appellants contends that there was no offer by the plaintiff to pay compensation for the building put up by the second defendant. Therefore, the suit is not maintainable. The learned Counsel also relied upon a latest decision of the Supreme Court reported in Ramachandran S.A. v. S. Neelavathy . In paragraph 14, the Apex Court has held as follows:
We are of the view that since the requirements under Section 11 are in the nature of conditions precedent which had to be complied with before instituting a suit in a court, the non-compliance would be fatal and such suit would be liable to be dismissed at the threshold. The requirements under Section 11 cannot be compared with the requirements under Section 80, C.P.C. The right of a tenant who may, if not always, be a poor tenant, cannot be compared with the mighty Governments regarding whom it has been observed times out of number by the courts that they should not litigate with their citizens on technicalities and should not endeavour to defeat the suit by pleading the technical questions, as for example, want of notice under Section 80, C.P.C. or limitation in cases which are eminently just, proper and equitable. The Act essentially is for the protection of the tenants whereas no such protection for the Government is contemplated by Section 80 of the Code of Civil Procedure.
8. The learned Counsel for the respondent Mr. N.S. Varadanchari, on the other hand contended that inasmuch as the first defendant, who alone is the tenant, has not put up any superstructure, he is not entitled to the notice under Section 11 of the Act.
9. In the evidence, D.W. 1 has admitted that apart from levelling the land, the first defendant has not put up any construction. On the other hand, according to him, the superstructures were put up by the second defendant alone. Since the first defendant has not put up the superstructure and he has sublet the land to the second defendant and who alone has put up the superstructure, there is no necessity to send a notice to the first defendant offering to pay compensation for the building and the trees, as contemplated by Section 11 of the City Tenants Protection Act.
10. The point that arises for consideration is: Whether a mere lease of land to a tenant before eviction is entitled to a notice of termination as contemplated under Section 106 of Transfer of Property Act and another notice under the provision of Section 11 of the City Tenants Protection Act. If the answer is to be in favour of the first defendant, then notice under Section 11 of the Act is necessary as per the Apex Court Judgment mentioned above.
11. Notice under See. 11 of the Tamil Nadu City Tenants Protection Act, 1921 contemplates a notice in writing has to be given to a tenant. The definition of tenant after the amendment by the Madras Act XII of 1960 is 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 any such person as is referred to in Sub-clauses (i) who continues in possession of the land after the determination of the tenancy agreement, and (b) the heirs of any such person as is referred to in Sub-clauses (i) or Sub-clause (ii)(a), but does not include a subtenant or his heirs.
12. Section 3 of the City Tenants Protection Act reads as follows:
Every tenant shall on ejectment be entitled to be paid as compensation the value of any building, which may have been erected by hi,, by any of his predecessors-in-interest, or by any person not in occupation at the time of the ejectment who derived title from either of them and for which compensation has not already been paid. A tenant who is entitled to compensation for the value of any building shall also be paid the value of trees which may have been planted by him on the land (and of any improvements which may have been made by him.)
13. According to the learned Counsel for the respondent, a combined reading of Section 11 and Section 3 of the Act would indicate, notice offering to pay compensation as contemplated under Section 11 is necessary only when a superstructure was put up by the tenant. The notice to be issued under Section 11 of the Act must be in writing requiring to surrender possession of the land and building and offering to pay a compensation for the building and trees, and stating the amount thereof. According to him, if a tenant is not entitled to get compensation for the land and trees, mere is no necessity for such a notice.
14. It is to be seen that under Section 11 of the Act, the notice must require the tenant to surrender possession of land and building and there must be an offer to pay compensation for building and trees. From Section 11 of the Act, we cannot separate the requirement to surrender land and building and the offer to pay value for the building and issue a notice to surrender the land alone. In substance, the notice under Section 11 of the Act is contemplated only when there is a building in the land.
15. The preamble and other provisions of the Act also indicate that the benefits conferred under the Tamil Nadu City Tenants Protection Act, 1921 is only in respect of a tenant who has put up the superstructure in the land and not to a person who does not put up any construction in the land.
16. In this case, it is true that there are superstructures, But the counsel for the respondent is not in a position to find out in evidence to show that the building was put up by the first appellant or to show that at some point of time of other, the first defendant/first appellant would become the owner of the building as per the understanding between the first defendant and second defendant. In fact, the learned Counsel for the appellants was not in a position to rely upon any clause in the rental agreement Ex. B. 10 entered into between the first and second defendant.
17. Mere authorisation for empowering the tenant to sub-lease the land leased out to him cannot confer the benefits contained in the City Tenants Protection Act, upon the subtenant because, we have seen the definition of “tenant” contained in Section 2(4) as it stood from the amendment from 1960. It specifically excludes the subtenant when it says that the definition does not include a subtenant or his heirs. Therefore, if the chieftenant has not put up a superstructure or if the superstructure put up does not belong to the chieftenant, the landlord cannot issue a notice under Section 11 of the Act, because the notice under Section 11, as we have noticed earlier has to contain requiring the tenant to surrender the building and also an offer to pay the compensation for the building. Notice under Section 11 cannot be issued by spliting the requirement to surrender and the offer to pay compensation and thereby ignoring the building and compensation i.e., a notice cannot be issued by simply calling upon the tenant to surrender the land alone. It is not the object of the said section, in particular and the object of the entire enactment, in general. We cannot ignore the purpose of the object, notice to be given and the object sought to be achieved by the enactment which contemplates a notice like the one under Section 11 of the Act.
18. A tenant of land is normally and generally governed by the provisions of the Transfer of Property Act. Section 106 of the said Act contemplates notice terminating the tenancy and calling upon the tenant to deliver possession etc. There are other protections also given to such a tenant under the Transfer of Property Act. Therefore, to hold that a tenant of land has to be invariably construed as a tenant within the provisions of Tamil Nadu City Tenants Protection Act, 1921, is unwarranted.
19. The case cited by the learned Counsel for the appellants namely, Ramachandran, S.A.V.S. Neelavathi , is a case where there was no dispute that the tenant put up the superstructure. The point that was mainly considered in the said case is, whether there was waiver or not by the tenant, The High Court found that the tenant waived his right to notice, since he filed an application under Section 9 of the Act claiming the benefit under the City Tenants Protection Act. The Apex Court found in the said case that the tenant was not allowed to invoke the provisions under Section 9 of the Act at all, as he had filed only an application for condoning the delay under the said section beyond time and the same was rejected. In such circumstances, the Apex Court held that the notice under Section 11 was mandatory. Therefore, in my view the decision cited by the appellant is not helpful to her.
20. In Ananthakrishnan Nair, P. v. Dr. G. Ramakrishnan, 100 L.W. 1093, the Apex Court has reiterated that the benefits conferred under the City Tenants Protection Act is only to a tenant in occupation. Therefore, I do not find any infirmity in the finding that the defendants 1 and 2 are not entitled to the benefits of the Tamil Nadu City Tenants Protection Act. Consequently, the first appeal as well as the Civil Miscellaneous Appeal have to be dismissed, accordingly they are dismissed. However,there will be no order as to costs. Consequently, C.M.P. No. 16828 of 1984 is dismissed as unnecessary.