S. VENKITACHALAM IYERversusS. RAMA IYER

                                 S. VENKITACHALAM IYER                                     A
                                                 v.
                                        S. RAMA IYER
     --7-
                                     SEPTEMBER 12, 1991

                       [RANGANATH MISRA, CJ, M.H.KANIA AND                                 B
                                KULDIP SINGH, JJ.)

                   Tamil Nadu Tenants' Protection Act, 1921 : Sections 9 and 10--
            Tenant-Eviction of-Decree passed-Compensation for superstnicture built
     k      by tenants predecessor-in-interest and purchased by tenant-Execution
•
            proceedings pending-Right of tenant to require the landlord to sell the land
                                                                                           c
            for beneficial enjoyment of the superstntcture-W/zether affected.
                  The lands in question owned by a Trust, of which the appellant was
            the Managing Trustee, were leased to respondent. On his failure to pay
            rent the Trust filed a suit for his ejectment. The District Munsiff passed
            the decree on condition that the appellant would pay the respondent,           D
            costs of the ~uilding or superstructure, which had been built by the
            respondent•s predecessor-in-interest~ and which the respondent had pur-
            chased from him. The litigation went upto High Court, which ultimately
            upheld the decree. During the pendency of second appeal, the respondent
            filed before the District Munsiff an application under Section 9 of the
            Tamil Nadu Tenants' Protection Act, 1921. as amended by Act XIX of 1955        E
            and Tamil Nadu Adaptation of Laws Order, 1969. The provisions of the
            said Act were extended to the town in which the lands were situated. In the
            said application he prayed for the issue of a direction to the appellant to
            sell to the respondent the said property, the land adjoining the building,
            as it was necessary for the beneficial enjoyment of the building. The ap-
            plication was rejected on the ground that such a prayer had been rejected
            earlier. The respondent's first appeal was allowed by the Subordinate
                                                                                           F
            Judge. The respondent had not surrendered the po.ssession of the proper-
            ty despite the deposit of the compensation amount by the appellant and
            the execution proceedings had remained stayed. Hence the appellant filed
            an appeal in ·the High Court which, however, held that the respondent was
            entitled to file the application under Section 9 of the Act during the pen-
            dency of the execution proceedings, and the right of the respondent had        G
            not been affected by the deposit of the compensation amount.
    --(
                   In the appeal before this Court, on behalf of the appellant Managing
            Trustee, it was contended that the respondent was not entitled to exercise
            his right to purchase the land immediately adjoining the superstructure as
            might be required for the beneficial enjoyment of the said structure as the    H
                                                 21
    22                   SUPREME     COURT REPORTS       (1991)   SUPP.   1 S. C. R

A said structure had not been put up by him, and that although the
    respondent might have been in possession at the relevant time, he had lost        +-
    the possession thereafter and hence he had lost his right under Section 9.

          Dismissing the appeal, this Court,

B        HELD : 1.1 Under Section 9 of the Tamil Nadu Tenants' Protection
  Act, 1921, any tenant, as defined in Section 2(4)(ii)(a), who is entitled to
  compensation under Section 3, and against whom a suit in ejectment has
  been instituted or proceedings under Section 41 of the Presidency Small
  Causes Court Act, 1882, taken by the landlord may, within one month from
C the date of the Madras City Tenants' Protection (Amendment) Act, 1955,
  coming into force, or the date with effect from which this Act is extended to
  the municipal town 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 be directed to sell for a price to be fixed by the
D court, the whole or part of the extent of land specified in the application.
  Section 10 of th~ Act makes the provisions under Section 9 applicable to
  cases where decree for ejectment has not been executed before the date
  from which the provisions of the Act are extended to the area in question.
   [25 C-EJ

E          1.2 · In the instant case, although the decree for ejectment was passed
    against the respondent, as he had continued to remain in possession of the
    property and the decree had remained unexecuted till the date on which
    the provisions of the said Act had been extended to the area in question,
    the right of the respondent under Section 9 was not lost. [25 FJ
F
          1.3 As regards the superstructure, it was put up by the predecessor
    in interest from whom the respondent had purchased. Thus, the High
    Court was entitled to take the view that it was put up by a predecessor-in-
    interest of the respondent. [25 G] -

G        1.4 In these circumstances, the respondent was certainly a tenant,
  within the meaning of Section 2(4)(ii)(a) of the Act, which takes within its
  ambit a tenant whose tenancy has been determined but continues to
  remafo in possession, entitled to compensation under Section 3 of the Act
  and was, therefore, entitled to make an application. under Section 9 r,i the
H Act. [25 H, 25 B]
                     VENKITACHALM v. RAMA [KANIA, J. )                     23

      2. The plea that although the respondent might have been in                A
possession at the relevant time, but since he lost it thereafter, he lost his
right under Section 9 cannot be allowed to be raised in this Court since this
has not been pleaded in or considered in any of the courts below. [26 A-BJ

        OVIL APPELLATE JURISDICTION: Civil Appeal No. 1317 of
1988.                                                                            B
     From the Judgment and Order dated 21.1.1983 of the Madras High
Court in C.R.P. No. r/97 OF 1979.

     T.S. Krishnamurthy Iyer, P.N. Ramalingam and A.T.M. Sampath for
the Appellant.                                                                   C
     S.. Balakrishnan, S. Prasad, R. Raghavan and Vijay Kumar for the
Respondent.

        .The Judgment of the Court was delivered by
                                                                                 D
       KANIA, J. This is an appeal by special leave against the decision of a
learned Single Judge of the Madras High Court in Civil Revision Petition
No. 2792 of 1979 filed in that Court. We propose to set out only the few
facts necessary for the disposal of the appeal.

       The appellant is the managing trustee of a trust. The said trust          E
owned two properties comprising 60 cents and 29 cents of land at Nager-
coil in Tamil Nadu. The said lands were leased by the appellant to one
Padakalingam in 1930 who in turn assigned the lease in favour of one
Ramaswamy Mudaliar in 1931. Swami Mudaliar secured a further assign-
ment of the said lease from the said Ramaswamy Mudaliar. Swami                   F
Mudaliar put up a building on the said land and the respondent herein
purchased the building from him in 1943 for a sum of Rs. 4,475. In 1944
the trust had leased out the said property in favour of the respondent for
six years. The terms of the lease are not relevant for the purposes of resolv-
ing the controversy raised before us. As the respondent failed to pay the
rent to the Trust, the Trust filed a suit for ejectment against the respondent   G
which suit was later transferred to the District Munsif's Court, Nagercoil.
The said suit was decreed by the learned District Munsif. The decree for
eViction was passed by the learned District Munsif on condition that the
appellant will pay to the respondent the costs of the building. or the super-
structure. This litigation was carried upto the High Court in Second Ap-
 peal. The decree of the trial Court for eviction was upheld by the High         H
    24                 SUPREME COURT REPORTS              [1991) SUPP. 1 S. C.R.

A  Court. During the Pendency of the second appeal an application was filed
  by the respondent under Section 9 of the Tamil Nadu Tenants Protection
  Act, 1921, as amended by Act XIX of 1955 and Tamil Nadu Adaptation of
  Laws Order, 1969 (hereinafter referred to as " the said Act"). The
  provisions of the said Act were extended to Nagercoil town in respect of
                                  a
  non- residential buildings by government order which was published in
B the Gazette on June 29, 1975. In the said application under Section 9 of the
  said Act the respondent claimed that the appellant shout~ be directed to
  sell out of the said property, the land adjoining the said building and neces-
  sary for the beneficial enjoyment of the building on such terms and condi-
  tions as might be fixed by the Court. This application was resisted by the
  appellant. The District Munsirs Court, Nagercoil,. dismissed the said ap-
C plication of the respondent on the ground that a previous application with
  the said prayer had been dismissed and hence, a fresh application for the
  same relief was barred. The respondent preferred an appeal to the Sub-
  Court at Nagercoil which was allowed by.the learned Subordinate Judge.
  The High Court took the view that the decree in favour of the appellant
D was simple decree of ejectment and did not take away the right of the
  respondent to the building or superstructure. It further took the view that
  the deposit of the amount of costs of the superstructure by the appellant
  did not affect the right of the respondent. The respondent had not sur-
  rendered the possession of the property despite the deposit of amount of
  compensation by the appellant and the appellant had been compelled to
E resort to the court. The execution proceedings were stopped. The High
  Court held that in these circumstances, the respondent was entitled to
  make an application under Section 9 of the said Act during the pendency
  of the execution proceedings. The High Court also dismissed the review
  petition preferred by the appellant.

F        . Only two submissions were made before us by Mr. Krishnamurthy
    Iyer, learned Counsel for the appellant. The first was that the respondent
    was not entitled to exercise his right to purchase the land immediately
    adjoining the superstructure as might be required for the beneficial enjoy-
    ment of the said structure as the said structure had not been put up by him.
G
        As we have already pointed out earlier, the said superstructure was
  purchased by the respondent from Swami· Mudaliar who had put up the
  said structure and was an assignee of the lease. The respondent himself
  obtained a lease of the land subsequently. We now come to the relevant
  provisions of the said Act. We propose to set outthe effect of the relevant
H sections so far as it is necessary for the purposes of this case. Under clause



                                                                               I
                     VENKITACHALM v. RAMA [KANIA, J.]                        25

(ii) (a) of sub-section (4) of section 2, a person referred to in sub-clause (i)    A
who continues in possession after the determination of his tenancy agree·
ment is included in the term 'tenant'. The inclusive definition of the term
'tenant' under Section 2(4)(ii)(a) talces within its ambit a tenant whose
tenancy has been determined but continues to remain in possession. Sec-
tion 3 of the said Act provides that every tenant as defined under the said
Act shall, on ejectment, be entitled to be paid as compensation the value of        B
any building which may have been erected by him or 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 com-
pensation has not already been paid. Again, very briefly stated,Section 9
prescribes that any tenant who is entitled to compensation under Section 3          C
and against whom a suit in ejectment has been instituted or proceedings
under Section 41 of the Presidency Small Causes Court Act, 1882, taken by
the landlord may, within one month from the date of the Madras City
Tenants' Protection (Amendment) Act, 1955, coming into force, or the
date with effect from which this Act is extended to the municipal town or
village in which the land is,situated, or within one month after the service        D
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, as set out in the said section.
 It may be mentioned that the land which the tenant is entitled to require to
 be sold to him is the minimum land required for the beneficial enjoyment
 of the building, Section 10 of the said Act makes the provisions under             E
 Section 9 applicable to cases where decree for ejectment has not been
 executed before the date from which the provisions of the Act are ex-
 tended to the area in question. Thus, although the decree for ejectment
-was passed against the respondent, as he had continued to remain in pos-
 session of the property and the decree had remained unexecuted till the
-date on which the provisions of the said Act had ~n extended to the area           F
 in question, the right of the respondent under Section 9 was not lost.

        As far as the superstructure is concerned, the said superstructure
 was put up by Swamy Mudaliar from whom the respondent had purchased
 it as pointed out earlier. Thus, as far as the building or superstructure is
 con<;erned, the High Court was entitled to take the view that it was put up G
 by a predecessor in interest of the respondent. In these circumstaqces, the
 resj>ondent was certainly a tenant entitled to compensation under Section 3
.of the said Act and was entitled to malce an application under Section 9 of
 the said Act. The submissions of Mr. Krishnamurthy Iyer to the contrary
 ~ot be accepted.                                                                   H
    26                 SUPREME COURT REPORTS                [1991] SUPP. l S. C.R.

A          It was next submitted by Mr. Krishnamurthy Iyer that, as averred in
    the special leave petition, although the respondent might have been in           {-
    possession at the relevant time yet he has lost possession thereafter and
    hence, he had lost his right under Section 9. This fact has not been pleaded
    in or considered in any of the courts below and hence, we decline to permit
    Mr. Krishnamurthy Iyer to raise this contention before us.
B
          In the result, the appeal fails and is dismissed. There will be no order
    as to costs. The application of the respondent under Section 9 will be
    disposed of on merits and according to law. The amount of compensation
    which will have to be paid by the respondent to the appellant will be
    determined as provided under the said Act.

    N.P.V.                                                     Appeal dismissed.