Madras High Court
Bhargavakula Nainargal Sangam And Ors. vs Arunachala Udayar on 20 October, 1989
Equivalent citations: (1990)1MLJ4
JUDGMENT Sivasubramaniam, J.
1. These second appeals and the civil revision petition have come before us on a reference made by Ratnavel Pandian, J. (as he then was) by his judgment dt. 8-9-1980 made in Second Appeal Nos. 1461 to 11466 of 1980. As the point of law involved in the other matters is also same, they are also posted along with the said second appeals.
2. One Bhargavakula Nainargal Sangam, represented by its President, Dhandapani filed the suit in O.S. Nos. 133 of 1978, 135 of 1978, 137 of 1978, 139 of 1978/141 of 1978, 143 of 1978 and 145 of 1978 on the file of the District Munsif, Vellore for eviction of the defendants from the respective suit properties on the ground that they are the tenants under plaintiff Sangam. It is relevant to point out at the outset that the said suits are filed after the petitions filed before the learned Rent Controller, Vellore were dismissed on the ground that the properties in question are vacant sites and therefore, he has no jurisdiction to entertain the said petitions. The plaintiff shall be referred to as the landlord and the defendants shall be referred to as the tenants for the sake of convenience. The plaintiff-Sangam is the appellant in Second Appeal Nos. 14 61 to 1466 of 1980 and the various respondents in these appeals are the tenants in respect of certain portions of the suit properties belonging to the Plaintiff-Sangam.
3. The landlord plaintiff terminated the tenancy in favour of the tenants/respondents by means of a notice under Section 106 of the Transfer of Property Act and filed suits for recovery of possession. The tenants in their respective reply notices as well as in their written statements, denied the title of the landlord and claimed ownership to both the land and the superstructure in their respective possession. Further, they filed written statements claiming title to the properties by adverse possession on the ground that they have been in possession of the said properties for more than the statutory period. Subsequently, the suits were transferred to the file of the District Munsif, Vellore. During the course of the trial the tenants filed additional written statements claiming the benefits under the Madras City Tenants Protection Act, which shall hereinafter be referred to as the Act, since the provisions of the said Act were extended to Tiruvannamalai with effect from 31-3-1973. The learned District Munsif, Vellore on a consideration of the evidence adduced by the parties dismissed all the suits on the ground that the tenants are entitled to the benefits of the Act and that no notice under Section 11 of the Act was given to them. Aggrieved by the dismissal of the suit, the landlord preferred appeal in A.S. Nos. 3 to 9 of 1979 on the file to the Subordinate Judge, Thiruvannamalai and the same were also dismissed. The learned Judge relying on a decision of V. Ramaswami, J. (as he then was) reported in R. Govindaswamy v. Bhoopalan and Ors. (1977) 2 M.L.J. 206 and the other decision of Sethuraman, J. in Kandaswami Gounder v. Kandaswamy Gounder 92 L.W. 511 confirmed the common judgment and decrees of the trial Court. The landlord being aggrieved against the said judgment has preferred the present second appeals.
4. When the second appeals came up before Ratnavel Pandian, J.(as he then was), it was argued before him that the view taken by the lower court is erroneous, in view of the decision of Ramaprasada Rao, CJ. in Boologanathan v. Govindarajan following an earlier decision of a Division Bench of this Court reported in Veeraswamy Naicker v. Alamelu Ammal . It was brought to the notice of the learned Judge that there were some other conflicting decisions. A specific reference was made to the decision reported in Madhava Raw Naidu v. Sri Gangadeeswarar Temple (1946) 2 M.L.J. 285, wherein it was held that the tenancy was determined by denial of landlord's title. This decision was followed by another Division Bench of this Court consisting of Veeraswami, J. (as he then was) and Kun Hameed Kutti, J. reported in Veeraswami Naickery. Alamelu Ammal , wherein it was held that When a person, who continues to be in possession after termination of tenancy claims that he does so, and he is entitled to the property, as his own, it is obvious that there is hardly any room for such an owner to seek protection of his possession under the provisions of the Act.
The said Division Bench decision was followed in Boologanathan v. Govindarajan holding that "once there is a denial of the landlord's title, the relationship of landlord and tenant gets automatically severed."
5. V. Ramaswami, J. (as he then was) in the abovesaid decisions sought to distinguish the Division Bench decisions on the ground that in view of the Supreme Court Judgment in Damadilal v. Parashram , the tenant is entitled to invoke the provisions of Section 9 of the Act. The learned Judge who has referred to these cases also found that the said Supreme Court decision arose out of the proceedings initiated under the Madhya Pradesh Accommodation Control Act and that the same cannot apply to a case, arising under the present Act. The learned Judge was of the view that the Act clearly shows that it can only apply to the tenants, who accept the title of the landlord in respect of the demised property and not to the persons who deny the title of the landlord.
6. The recent decision by Ratnam, J. reported in Nachimuthu Mudaliar v. Ponnusami (1980) 1 M.L.J. 529 was also brought to his notice, wherein it was held that such a tenant is entitled to the benefits of the Act, following the decision of V. Ramaswamy, J. Unfortunately, the decision of Ramaprasada Rao, C J., was not brought to the notice of Ratnam, J. Similarly, Balasubramaniyan, J in Palaniammal v. Rangasawami 93 L.W. 315, followed the decision of V. Ramaswami, J (as he then was). Therefore, Ratnavel Pandian, J. has found that the two Division Benches and a single Judge have taken the view that a tenant, who denies the title of the land, is not entitled to the benefits of the Act, while V. Ramaswami, J. and Ratnam, J. in two different judgments have taken the view that such a tenant is till entitled to the Protection of the Act.
7. In view of the conflicting decisions, the learned Judge felt that this question must be decided by a larger Bench so as to settle the law once for all. The point for reference is:
Whether a tenant in respect of a vacant site, who denies the title of the landlord, is entitled to the benefits of the Madras City Tenants Protection Act?
8. The Second Appeal No. 1459 of 1985 and Civil Revision Petition No. 2959 of 1985 arose out of the suit filed by the landlord as plaintiff in O.S. No. 8970 of 1980 and the petition, IA. No. 12915 of 1979 filed by the tenant under Section 9 of the Act on the file of the City Civil Court, Madras. In the suit filed by the landlord, he prayed for a decree for possession on the ground that the defendants are his tenants. The tenants resisted the suit by filing a written statement contending that they were tenants under the Vendor of the plaintiff even before 1955 and that they had put up pucca constructions long before that. Further, there is a contention that they have not denied the title of landlord without bona fides. It is their case that the present landlord has purchased the property with a view to defeat the rights of the tenants over the superstructure. The validity of notice of termination was also challenged. The trial Court found that in the earlier suit in O.S. No. 3793 of 1974 filed by the landlord for interim injunction in respect of the same property, the tenants has denied the title of the landlord stating that the present plaintiff/ landlord purchased the property after coming to know of the rights of the tenants and hence no rights could flow out of the sale deeds, and therefore decreed the suit and dismissed the petition in LA. No. 12915 of 1979 following the decision of this Court reported in Boologanathan v. Govindarajan . As against the said judgment, the tenants preferred an appeal in A.S. No. 283 of 1984 on the file of the principal Judge, City Civil Court, Madras and C.M.A. No. 233 of 1984 on the file of the XI Additional Judge, City Civil Court, Madras, in which the lower appellate Court confirmed the finding of the trial Court and dismissed the said Appeals, It is against the said common judgment, the present second appeals and the revision have been preferred. As the question of law raked in these two matters is also common, they were directed to be heard together with the abovesaid second appeals. Even though, Ratnavel Pandian, J. (as he then was) referred the matter to a larger Bench, the matters are posted before us since already the matter has been decided by two Division Benches of this Court and therefore, there is no necessity to refer the question to a Full Bench.
9. Mr. M.N. Padmanabhan, learned Counsel appearing for the appellants in S A. Nos. 1461 to 1466 of 1980, at the outset submitted that the same point has already been decided by the abovesaid two Division Benches of this Court earlier and that therefore there is no necessity to go in to that question again. He referred to the definition of the term 'tenant' in the Act and submitted that a tenant who has denied the title of the landlord is not entitled to the benefits under the Act. According to him, in order to invoke the provisions of the Act, the tenant must be in a possession of the land under a tenancy agreement express or implied and that he must be liable to pay rent in respect of such land. According to him, it is only any such person as is referred to in Sub-clause (1) to the said Section 4, who continues in possession of the land after the determination of the tenancy agreement can answer the definition of 'tenant' found in the Act. He submitted that Section 13 of the Act specifically provides that the Transfer of Property Act 1882 shall to the extent necessary to give effect to the provisions of this Act, be deemed to have been repealed or modified. According to him, the term determination of tenancy found in the definition clause would not apply to the determination of tenancy contemplated under Section 111(g) of the Transfer of Property Act. He pointed out that V. Ramaswami, J. (as he then was) in his judgment in R. Govindaswamy v. Bhoopalan and Ors. (1977) 2 M.L.J. 206 has not correctly interpreted the Supreme Court judgment in Damadilal v. Parashram 1976 S.C. 2226. According to him, only the Sub-clauses (a) and (h) to Section 111 of the Transfer of Property Act could be saved from the judgment of the Supreme Court and that it will not apply to a case of a tenant denying the tenancy itself. It was submitted that it will apply to a case where there was relationship between landlord and tenant after the point of determination of tenancy and thereafter the statute gives protection. But it will not apply to a case where the tenant denies the very agreement itself, and claims title in himself. The Madhya Pradesh Act does not contain the word agreement and therefore the said Supreme Court judgment will not apply to the facts of the present case. He referred to the said two Division Bench Judgments and also the Judgment of Ramaprasada Rao, C J., in Boologanathan v. Govindarajan and the Judgment of Kader, J in Saidapet Handloom Cloth Producers & Sellers Association v. Arumugha Nadar 1985 T.N.L.J. 207. He also referred to the latest judgment of Mohan, J. (as he then was) in Periaswamy Padayachi v. The idol Thandhoneeswarswami, S A. No. 1239 of 1988, dt. 23-9-1988, wherein it was held that the object of Section 9 is to confer protection on City tenants and not to the person who denies the title of the landlord, differing from the view taken by V. Ramaswami, J. in his judgment referred to above.
10. Mr. M.R. Krishnan, Learned Counsel appearing for the petitioner and appellant in C.R.P. No. 2959 of 1985 and SA. No: 1459 of 1985 elaborately argued raising the following contentions. While dealing with the provisions contained in Section 111 of the Transfer of Property Act, he submitted that a specific provision is made for termination of the lease and another provision is made for determination of the lease. Among the contingencies provided for determination of the lease forfeiture occurs in three instances and the same cannot be claimed by the lessor unless notice in writing is given to the lessee of his intention to determine the lease. It is open to the lessor to waive the forfeiture of the lease. The Tamil Nadu City Tenants Protection Act is a special Act which gives protection to tenants enabling them to claim compensation for the superstructure under Section 3 of the Act and the right to purchase the land under the circumstances provided in Section 9 of the Act. Even after the amendment, Section 2(4) (ii) (a) includes within the meaning of the word 'tenant' 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, but it does not contain any provision regarding determination of the tenancy agreement and in the absence of which, one has to look into Section 111 of the Transfer of Property Act. Once it is found that the application of Section 111 of the Transfer of Property Act cannot be overlooked, we have to necessarily look into Section 111 of the Transfer of Property Act and in applying the said provisions, it cannot be limited to some of the modes of determination of tenancy excluding forfeiture of tenancy by denial of title. In support of his contentions, he relied upon the decision in Damadilal's case , which was followed by V. Ramaswami, J (as he then was) in the case referred to above. Then, the learned Counsel attempted to compare the provisions in the present Act with the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and the Cultivating Tenant's Protection Act, wherein express provisions are made denying protection to a tenanct under the Act, in case he denies the title of the landlord. On that basis he contended that if it is the intention of the Legislature to deny protection to a tenant denying title of the Landlord from the application of the City Tenants Protection Act, an express provision to that effect would have been made in the Act itself. In the absence of such an express provision, it cannot be presumed by reference to the Preamble of the City Tenants Protection Act or by reference to Section 13 of the said Act. Then reference was made to various decisions wherein it was held that the provisions of the Transfer of Property Act must be deemed to have been repealed, on the ground where there is a special statute, provision of general law cannot be made, applicable unless the special statute is silent in such respect. In Swaminathan v. Sundaram Vandayar (1961) 2 M.L.J. 435 at 439, it was held that to the extent necessary to give effect to the provisions of the City Tenants Protection Act, the Transfer of Property Act is deemed to have been repealed or modified. Learned Counsel proceeded to point out that there must be provision in the City Tenants Protection Act excluding a tenant denying title from the protection under the Act or reaping the benefits under the Act and no assumption can be made by having resort to the preamble and Section 13 of the Act for the purpose of excluding the category of tenants denying title alone, while it is also one of the modes of determining the tenancy.
11. Learned Counsel for the respondent further argued that the plaintiff at least for the purpose of the suit for eviction on that ground treats the defendant as his tenant. Once he is treated as a tenant there is a liability on the part of the defendant to pay rent and he becomes a tenant under the plaintiff, as there is a provision under the Act to treat a person as a tenant under implied tenancy agreement. According to him, the automatic severence of relationship of landlord and tenant as decided in Boologmathan 's case may not be correct since a notice should be given by the lessor or his transferee about the forfeiture and determination of the tenancy will not automatically bring about a severence. This point was raised on the provisions contained in Section 112 of the Transfer of Property Act, whereunder it is open to the lessor to exercise his right to waive the forfeiture. In support of his contentions, the learned Counsel relied on the decision of the Supreme Court in Gain Devi v. Jeevan Kumar .
12. Finally, relying on the decision in Damadilal v. Parashram , the learned Counsel submitted that if we analyse the provisions of the present Act, we do not find any provision in that statute treating the tenant as defined in Section 2(4) of the Act on any different footing from a contractual tenant in the matter of enjoyment of the protection and benefits sought to be conferred by the City Tenants Protection Act. Further the right of a statutory tenant is not in any way restricted by the Transfer of Property Act. Since the statutory tenant is put on a par with the contractual tenant, it cannot be said that he loses his right by forfeiture whereas the Act does not specifically contemplate such a provision expressly denying the rights of a person who denies the title.
13. Mr. V. Subramanian, learned Counsel appearing for the respondent adopted the arguments of Mr. M.N. Padmanabhan and pointed out the specific definition found in Section 2(4) of the Act as to the term 'tenant'. He pointed out that only a person liable to pay the rent can be called as a tenant and not the persons who deny the title of the landlord. In reply to the said arguments Mr. M.R. Krishnan, learned Counsel for the Petitioner/ appellant referred to the pleadings in the earlier suit, O.S. No. 8970 of 1978 and paragraph 3 of the written statement filed therein. According to him, the tenants have not denied the title of the landlord and the said fact has not been properly appreciated by the Courts below. According to him, the landlord is receiving the rent even now.
14. Before dealing with the respective contentions of the learned Counsel for both the parties, let us now look at the provisions contained in the Act. It is better to look at the background in which the Act came to be passed, before considering the relevant provisions of the Act. The object of the Act was stated in the Bill, which reads as follows:
In many parts of the City of Madras dwelling houses and other buildings have from time to time been erected by tenants on lands belonging to others, in the full expectation that subject to payment of a fair ground rent, they would be left in undisturbed possession, notwithstanding the absence of any specific contract as to the duration of the lease or the terms on which thebuildingsweretobe leased. Recently attempts made or steps taken to evict a large number of such tenants have shown that such expectations are likely to be defeated. The tenants, if they are evicted, can at best remove the superstructure which can only be done by pulling down the buildings. As, a result of such wholesale destruction, congested parts of the City will become more congested to the serious determent of public health. In these circumstances it is just and reasonable that the landlords when they evict the tenants should pay for and take the buildings. There may however be cases where the landlord is unwilling to eject a tenant, if he can get a fair rent for the land. The Act provides for the payment of compensation to the tenant in case of ejectment for the value of any buildings which may have been erected by him or his predecessors in interest. It also provides for the settlement of fair rent at the instance of the landlord or tenant. Provision is also made to enable the tenant to purchase the land in his occupation subject to certain conditions.
Originally, The Madras City Tenant's Protection Act was enacted for the express purpose of giving protection to tenants, who in municipal towns and adjoining areas in the State pi Madras have constructed buildings on other's land in the hope that they would not be evicted so long as they paid a fair rent for the land. The amended Preamble as its stands now reads as follows:
An Act to give protection to certain classes of tenants (in Municipal towns and adjoining areas in the State of Tamil Nadu) Whereas it is necessary to give protection against eviction to tenants, who in (municipal towns and townships) and adjoining areas in the State of Tamil Nadu have constructed buildings on others' lands so long as they pay fair rent for the land) Therefore it is apparent that the legislature intended to confer certain benefits on the tenants who are put in such helpless condition. Section 9 of the Act provides for compulsory sale by a landlord of land in the possession of the tenant from which the tenant is sought to be ejected in a suit filed for eviction. Therefore, we have to find out who is entitled to get benefit under Section 9 of the Act. Section 9 of the Act categorically states that the 'tenant' as defined in the Act is entitled to the benefits conferred under the said provisions. Therefore, we have to find out what the term 'tenant' means in the context of the provisions contained in this Act. Tenant in relation to any land means (i) 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-clause (i) who continues in possession of the land after the termination of the tenancy agreement. Therefore, the definition clause of tenant postulates three classes of persons as tenants. The first class comprises what may be regarded as direct tenants i.e., tenants of land liable to pay rent. The second class refers to a person deriving title from the tenant of the first class and the third one contemplates a person who continues in possession notwithstanding the fact that there has been a termination of tenancy. A combined reading of the abovesaid definition makes it amply clear that a person before claiming the benefits of the Act as a tenant of any land must fulfil two requirements:
Firstly, he must be a person liable to pay rent in respect of the said land and Secondly, such a liability should be under a tenancy agreement express or implied.
It is only the tenant who answers these requirements would be entitled to the benefits of the Act even though he continues to be in possession of the land after the determination of the tenancy agreement. Though the definition found in Section 2(4) of the Act is an inclusive definition couched in wide language, a combined reading of the Sub-clauses (i) and (ii) of the sub-sections makes it clear that only the person liable to pay rent in respect of the land in his occupation would be entitled to the benefits under the Act. Therefore, it is made abundantly clear that it is only the liability to pay rent which determines the question whether a person is tenant or not. It is no doubt true that the liability to pay rent may arise either under an express tenancy agreement or under an implied one. But in any case liability to pay the rent must be made out and agreed to between the parties. It is unnecessary to say that express tenancy agreement will cover cases during the currency of the tenancy agreement and on the other hand, implied tenancy agreement will arise in cases subsequent to the determination of the lease. To put it in other words, it will apply to a case where there was relationship of landlord and tenant upto the point of determination of tenancy. It is only in such cases, the statute comes to the rescue of such tenant and confers on him the benefits of the Act. By no stretch of imagination it win apply to a case where the tenant denies the very agreement itself and claims title in himself.
15. This question came to be decided by a Division Bench of this Court in Madhava Raw Naidu v. Sri Gangadeeswarar Temple (1946) 2 M.L.J. 285 wherein it was held that the Act defines a tenant as meaning a tenant of land liable to pay rent on it, every other person deriving title from him, and includes persons who continue in possession after the termination of the tenancy and that it is impossible to accept the argument that a person who claims under a person whose tenancy has been determined is a tenant and is entitled to further notice. In that case, the original tenant denied the landlord's title and therefore he was entitled to terminate his tenancy which was done on notice given to the tenant. The appellant's purchase of the right, title and interest of the original tenant took place two years later. Therefore, it was held that if Ponnuswami had in law any right in the land it would have been passed to the appellant but clearly he had none. It was in that context the above decision came to be rendered.
16. When a similar question arose before Kailasam, J. (as he then was), the said Bench decision was relied on by one of the parties. But the learned Judge felt that the question involved in the case before him required to be considered by a Bench and therefore, the matter was referred to a Bench. On reference, Veeraswami, J. (as he then was) and Kunhamed Kutti, J constituting the Bench held in Veeraswami Naicker v. Alamelu Ammal as follows:
Quite apart from this decision, we are of the view that the lower appellate Court took the right view of the scope of Section 2(4), as it stood before the amendment in 1960. It is true that the third clause in the definition comprehends persons continuing in possession, though the tenancy has come to an end. A tenancy may come to an end for a number of reasons as for instance denial of landlord's title. Such a denial under the ordinary law of transfer of property brings about forfeiture. The argument for the appellant before us is that even such a case will be within the actual words of the third category in the definition. But there is a fallacy in the argument. When a person, who continues to be in possession after termination of tenancy, claims that he does so, as he is entitled to the property, as his own, it is obvious that there is hardly any room for such an owner to seek protection of his possession under the provisions of the Act. Clearly the Act is not intended to protect such owners, for there is no need for it. We are of the view that such a case will not fall within the third category of persons entitled to protection under the Act. On that view, the Second Appeal fails and is dismissed with costs.
17. Ramaprasada Rao, C.J., in Boologanathan v. Govindarajan following the Division Bench decision in Veeraswamy Naicker v. Alamelu Ammal held as follows:--
If once a tenant openly denies the title of lessor or pleads jus tertii then it automatically follows that he would not be considered as a tenanct for any purpose whatsoever, as under Section 111(g) of the Transfer of Property Act, by such open denial of title or by pleading jus tertji there is a forfeiture of the tenancy and the relationship of landlord and tenant is snapped thereby. The fact that he remains in possession of the premises and pays, what according to him, is rent or is prepared or willing to pay such rent, could only, in the circumstances, be understood as money paid towards damages for use and occupation. Juridical possession therefore, is the essence for the creation of the relationship of landlord and tenant. Once there is a snapping of the relationship by a voluntary Act of omission or Commission on the part of the person in occupation as tenant then, he cannot inconsistently claim such a legal status under any provision of law.
The learned Judge answered the question whether subsequent payment of rent would alter the situation. He has held that such a gesture on the part of the tenant which would create the legal relationship of landlord and tenant as between the parties would be nothing but begging the question for the simple reason that a person cannot approbate and reprobate. It was also further held that once there is such a denial of title, any relationship of landlord and tenant automatically gets severed because of the presumption which arises under Section 111(g) of the Transfer of Property Act which forfeits the lease by reason of such denial of title.
18. S.A. Kader, J in Saidapet Handloom Cloth Producers and Sellers Association, Madras v. Arumugha Nadar 1985 T.N.L.J. 207, again considered the position of law on this aspect and after referring to the various decisions rendered on this aspect held that the defendant who has incurred forfeiture of his tenancy by denial of title is not entitled to claim the benefit of Section 9 of the City Tenant's Protection Act. The learned Judge has decided the matter on the basis of estoppel also. He held that a defendant after having disputed the tenancy cannot be permitted to plead that he is entitled to the benefits under the Act as a tenant, as it would amount to estoppel in law and that to permit him to do so would render the legal proceeding a caricature and would amount to what has been described in English Courts as 'legalistic fraud'. Mohan, J. (as he then was) in his judgment dt. 23-9-1988 made in S.A. No. 1239 of 1988 also came to the same conclusion that where the tenant denies the title of the landlord there is absolutely no scope for invocation of dual relationship as landlord and tenant and consequently the tenant, by his own conduct, deprives itself the benefits of Sections 9 differing from the view of Ratnam, J.
19. Now let us consider the decisions of V. Ramaswami, J (as he then was), Ratnam, J and Sethuraman, J in the cases referred to above. It appears that they have followed the decision of the Supreme Court in Damdilal's case . In that case, the landlord plaintiff filed the suit under Section 12(i) (a) of the Madhya Pradesh Accommodation Control Act, 1961 against the defendant on the ground that the defendant/ tenant had defaulted in paying the rent for certain period and did not also pay or tender the arrears within two months of the service of notice of demand. There, the tenancy was not disputed by the defendants. The suit was filed on the basis of bonafide requirements also. The main questions that were argued before the Supreme Court on behalf of the tenants were whether the statutory tenants had no heritable interest on me demised premises, and whether the payment by cheque was not a valid tender of rent. It was contended before the Supreme Court that after the termination of tenancy the tenant continued only as a statutory tenant. It appears that the original tenant died during the eviction proceedings and his legal representative came on record and wanted to prosecute the proceedings.
20. The plaintiff contended that the original tenant was merely a tenant and his right to eject was merely a personal right. In this background, the Supreme Court considered the right of the statutory tenants, after termination of tenancy. While dealing with this question, the Supreme Court took note of the two earlier cases which decided that a tenant whose tenancy has been described as statutory tenant has no heritable interest in the premises, but only the personal right to remain in occupation. To put it in other words, these decisions proceeded on the basis that there is a distinct character of tenant or statutory tenants having separate and fixed incidence of tenancy. Differing from the earlier view, the Supreme Court held that it is difficult to appreciate how in this country we can proceed on the basis that a tenant whose contractual tenancy has determined but who is protected against eviction by the statute, has no right to property but only a personal right to remain in occupation without ascertaining what his rights are under the statute. It is relevant to note that the Supreme Court considered this question after specifically stating that the tenancy has its origin in contract and that there is no dispute that a contractual tenant has an estate or property in the subject matter of the tenancy, and heritability is an incident of the tenancy. The definition found in Section 2(i) of the Madhya Pradesh Accommodation Control Act, 1961 makes a person continuing in possession after the determination of his tenancy a tenant unless a decree or order for eviction has been made against him, thus putting him on par with a person whose contractual tenancy still subsists. The definition clause reads as follows:-
A person by whom or on whose account or behalf the rent of any accommodation is, or but for a contract express or implied, would be payable for any accommodation and includes any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act; but shall not include any person against whom any order or decree for eviction has been made.
The Supreme Court held that incidents of such tenancy and a contractual tenancy must therefore be the same unless any provision of the Act conveyed a contrary intention.
21. After going through the said decision, we are unable to understand how it would apply to a situation where the tenant disputes the very title of the landlord and claims to be the owner or sets up title in some other person. The entire judgment of the Supreme Court proceeded on the basis that originally there was a contractual tenancy which was terminated by notice by the landlord for the default in payment of rent. We are not dealing herewith a situation like that. From the decisions of V. Ramaswami, J. (as he then was) in Govindaswamy's case (1979) 2 M.L.J. 206 and Ratnam, J. in Nachimuthu Mudaliar's case (1980) 1 M.L.J. 529 and Sethuraman, J. in Kandaswami Gounder's case 92 L.W. 511, we find that they run counter to the earlier Bench decisions of this Court and the very Supreme Court decision itself. Therefore with great respect to the learned judges who have taken the different view, we have to hold that the said decisions are no longer good law.
22. While considering the present controversy, it is relevant to take note of the language used in Section 2(4) of the Act. After having stated in Sub-clause (i) of the Section that the term 'tenant' means a person liable to pay rent in respect of such land under a tenancy agreement express or implied, the Act says that the said term includes in Sub-clause (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 (Emphasis supplied).The language of Sub-clause (ii) (a) makes it amply clear that the benefit conferred under this provision is restricted to a tenant who continues in possession of the land after the determination of the tenancy agreement and not to any other tenant who denies the very agreement of tenancy itself. A combined reading of these two clauses would make it amply clear that a person who does not claim that there was an agreement of tenancy at the relevant point of time is not entitled to claim any benefit under this provision.
23. The above decisions which related to the provisions contained in Section 111(g) of the Transfer of Property Act do not consider this aspect of the matter. We find that Nainar Sundaram, J. in Ramaswami Panipoondar v. Mani (1984) 2 M.L.J. 432, has occasion to deal with the similar matter. The learned Judge observed that to attract Section 111(g) of the Transfer of Property Act, there ought to have been an indisputable relationship of lessor and lessee at some point of time or other and subsequently, the lessee ought to have renounced his character as such setting up title in a third person or by claiming title in himself. The resultant position is that where, from the very inception there was no admission on either side of the existence of the relationship of lessor and lessee, there is no scope for coming anywhere near Section 111(g) of the Transfer of Property Act. The language of the said Sections shows that the very source of the benefit conferred under that section is the tenancy agreement and the liability to pay rent. When these facts are denied by a tenant, he has no locus standi to claim any benefit under the Act.
24. The judgments of Ramaswami, J (as he then was) and other learned Judges who took a similar view proceeded on the basis that the provision contained in Section 111 of the Transfer of Property Act would be attracted, whereunder the circumstances under which the lease can be determined are set out. They were of the view that the denial of title is only one of the modes of determining a lease of immovable property and if there was a forfeiture by denial of title, the person in possession after such determination would also be a tenant within the meaning of Section 2(4) of the Act and therefore such a tenant would be entitled to all the rights, as if he was a contractual tenant himself, as the definition of tenant in Section 2(4) of the Act also includes a person, who continues to be in possession of the land after the determination of the tenancy agreement Their view was mainly based on the decision of the Supreme Court referred to above, whereunder the Supreme Court considered the position of a statutory tenant and his right to property. In that case distinction was sought to be made between the rights of a contractual tenant and the rights of the tenant whose contractual tenancy was deter mined but who is protected against eviction by the statute. As already noticed the Supreme Court proceeded on the basis that every tenancy has it origin in contract. It is significant to note that the definition of "tenant" refers to a person continuing in possession after the determination of his tenancy and under the Act such a person is treated as a statutory tenant and he is protected from eviction. At this stage, we can have a look at the Tamil Nadu Buildings (Lease and Rent Control) Act. There the definition of 'tenant' is a person by whom or on whose account rent is payable for a building and includes the surviving spouses etc. It also includes a person continuing in possession after the determination of the tenancy in his favour but it does not include a sub-tenant and certain other categories of tenant. Section 10(2) (vii) of the said Act states that a landlord can seek for eviction of his tenant, who has denied the title of the landlord or claim a right of permanent tenancy and that such denial or claim was not bonafide. Therefore under that Act if the denial of title is not bonafide, the tenant can be straightaway evicted and on the other hand, if the denial of title is bona fide then the Rent Controller cannot have jurisdiction and only a regular suit for eviction can be filed under ordinary law. Therefore we find that protection is not given to the tenants who denies the title of the landlord. Now, let us recapitulate the preamble of the Act above referred to. The Act in question is intended to give protection against the eviction of tenants who have constructed buildings on other's land so long as they pay fair rent for their lands. Therefore the basic requirement for invoking the provisions of the Act is that the ownership and tenancy rights must vest in different persons. Once a person claims ownership in himself, the question of tenancy does not arise for consideration. We have already referred to the definition of tenant under Section 2(4) of the Act, wherein it is specifically mentioned that the benefit would accrue only to a tenant whose tenancy agreement is determined. A cumulative effect of these provisions would lead to the inference that protection is available only to the statutory tenants whose possession is protected under the provisions of a statute. We are unable to find any provision in the Act to consider the tenant who has denied the title as a statutory tenant. We have come to the conclusion from the preamble and the definition of "tenant" found in the Act that the benefit is intended to be given only to certain class of tenants who claim right under a tenancy agreement and not to the persons who claim to be owners or set up title on others. In this connection, it is unnecessary to enter into discussion about the provisions contained in Section 111(g) of the Transfer of Property Act. Section 13 of the present Act in question speaks in clear terms that the Transfer of Property Act shall to the extent necessary to give effect to the provisions of this Act, be deemed to have been repealed or modified. Therefore, there is no difficulty in construing the word tenant without reference to the provisions of the Transfer of Property Act. It is worthwhile remembering that such Acts are intended to meet the broad needs of the Society and the scope of such Acts cannot be extended beyond the object. Even otherwise it is highly inequitable to thrust the rights of tenancy on a person who does not want to claim to be a tenant and such a course would be revolting the canons of justice and fair play. As Kader, J. has rightly pointed out in the decision referred to above, such a person would be estopped from claiming any rights under the Act. There is one other aspect which was not brought out at the time of argument by the learned Counsel appearing for both parties in these cases. On a careful consideration we find that there is considerable doubt as to the applicability of the decision in Damadilal case , in view of the later decision of the Supreme Court. In Damadilal's case , the Supreme Court differed from the view expressed in two earlier cases. In Anand Nivas (P) Ltd. v. Anandji Kalyanji Pedhi and in J.C. Chatterjee v. S.K. Tandon , the Supreme Court considered the provisions in Bombay Rents Hotel and Lodging House Rates (Control) Act, 1947 as amended in 1959. In Anand Nivas (P) Ltd's case three learned Judges constituting the Bench in the Supreme Court, viz., Sarkar, J. Hidayathullah, J. (as he then was) and Shah, J. (as he then was) heard the appeal. In that case, Hidayathullah, J (as he then was) and Shah, J. (as he then was) held that a statutory tenant, meaning a tenant whose tenancy has determined but who continues in possession has no power of sub-letting. Sarkar, J dissented. It was clearly held therein that the personal right of occupation of a statutory tenant is incapable of being transferred or assigned, and he having no interest in the property there is no estate on which sub-letting may operate. In Damadilal' case , the Supreme Court differed from the said view.
25. It appears that the earlier case of the Supreme Court in J.S. Murarji v. Sovani (P) Ltd. which held that the word 'tenant' in Section 15 of the Bombay Act means the contractual tenant and not the statutory tenant and that the legislature by the ordinance of 1959 intended to confer protection on sub-tenants of contractual tenants and the ordinance did not confer any protection on further transfer or further subletting by sublessee of the contractual tenants was not considered. In the later judgment of the Supreme Court reported in Ganapati Sitram Balvalkar v. Woman Shripad Mage , it was held as follows:--
The matter is concluded by the dictum of four judges in Jai Singh Murarji v. Sovani (P) Ltd. to the effect that transfer of a tenancy after it ceases to be contractual is not permissible under the Bombay Rent Act. This proposition is not controverted by Mr. Lalit, learned Counsel for the petitioners, whom we have heard at length. His main contention, however, is that a dissenting note has been struck by a Bench of three Judges in Damadilal v. Parashram , We do not agree. The case cited last did not arise under the Bombay Act but interpreted the provisions of a Madhya Pradesh legislation in regard to landlords and tenants. We may further state that the case first noted is a four-judge decision and is binding on a Bench of three Judges. No question of any dissent such as has been referred to by Mr. Lalit, therefore, arise Jai Singh's owe. holds the field till to-day in so far as the Bombay Rent Act is concerned and we are bound by it.
In view of the later decision of the Supreme Court it is doubtful whether the principle enunciated in Damadilal's case would apply to the facts of the present case. The Supreme Court differed from the view of Anand Nivas (P) Ltd case while deciding Damdilal's case . But we find that the Bench consisting of four Judges in the said Jai Singh Murarji's case affirmed the view expressed in Anand Nivas case by the Supreme Court. Only in this background we have to find out the applicability of Damadilal's case to the facts of the present case. We have already seen that the principles laid down in Damadilal's case have no application to the present case.
26. We have already set out the facts relating to the Second Appeal No. 1459 of 1985 and the Civil Revision Petition No. 2959 of 1985. So far as these cases are concerned, Mr. M.R. Krishnan, learned Counsel for the tenants/petitioners have raised a serious contention stating that there was no denial of title as contended by the landlord. He referred to paragraphs 3 and 7 of the plaint in O.S. No. 8970 of 1978, wherein there is specific reference to the defendants as tenants. Further he pointed out that in paragraph 3 of the written statement the defendants have specifically contended that they have been the tenants of the landlord prior to the purchase of the land by the plaintiffs and that the plaintiffs have been well aware of the fact that the tenancy had been under the defendants and that they are entitled to the rights under the Tamil Nadu City Tenants Protection Act. Again, he referred to the petition filed by the tenants under Section 9 of the Act wherein they have claimed rights as tenants.
27. We find that there is considerable force in the said submissions of the learned Counsel and therefore the said question has got to be decided on facts. We find it unnecessary to deal with the matter in this reference, as we have been specifically asked to answer a specific question of law. These matters will therefore have to be posted before the concerned learned Judge hearing second appeals, who will dispose of the matter in accordance with the point of law decided in this reference, after arriving at the factual decision relating to the denial of title.
28. Therefore, we hold that the two decisions rendered by the different Benches of this Court in Madhava Raw Naidu v. Sri Gangadeeswarar Temple (1946) 2 M.L.J. 285, and Veeraswami Naicker v. Alamelu Ammal are still good law and we are bound by the same. Consequently, we hold that the benefits under the Act can be given only to certain class of tenants who claim right under a tenancy agreement and not to the persons who claim to be the owners of the properties or set up title on others. All the decisions of the learned single Judges, which have taken a different view, are no longer good law.
29. In the result, S.A. Nos. 1461 to 1466 of 1980 are allowed and the judgments and decree of the Courts below are set aside and the suits, out of which these appeals arose, are decreed as prayed for. However, considering the peculiar facts of the present case, we direct each party to bear their respective costs in these appeals. The respondents/tenants will have six months' time to vacate their respective properties. In so far as S.A.. No. 1459 of 1985 and C.R.P. No. 2959 of 1985 are concerned, they will be posted before the learned single Judge dealing with second appeals for disposal on merits in the light of the conclusions arrived at by us in this case, on the question of law.