Manicklal vs Trustees of Port Trust and Others

Ismail, J.—This suit involves an examination of and investigation into a triangular contest and claim in respect of certain superstructures put

up by the second Defendant herein on the land leased to him by the first Defendant, by a mortgagee-decree holder, the Plaintiff in the suit, an

attaching decree holder, the third Defendant in the suit aril the lessor himself who had obtained a decree against the second Defendant for arrears

of rent.

The facts in this case are not largely in controversy and they have been almost exclusively borne out by documentary evidence produced in this

case. As a matter of fact, almost the entire documentary evidence has been marked by consent and the documents have been given numbers,

exhibits P-1 to P-35, irrespective of the party who produced the same except exhibits D-1 to D-4 which, at the instance of the Counsel for the

Plaintiff have been marked as the documents of the Defendants, exhibits D-1 and D-2 being the documents of the first Defendant and exhibits D-3

and D-4 being the documents of the third Defendant. The only witness examined was one Mr. S.M. Patni, as D.W. 1 on behalf of the third

Defendant to speak to the value of the superstructure.

Under exhibit P-1, dated November 2, 1950, a vacant site of an extend of 10,282 square feet belonging to the 1st Defendant was leased out in

favour of the second Defendant for a term of five years from February 1, 1950, on a rental of Rs. 118 plus 50 per cent surcharge. One of the

covenants in the lease deed provided that the lessee had no right to erect or cause to be erected any other building or erection upon the said

premises other than a godown for storage of kerosene oil, etc., and such building and sidings as the lessee may consider necessary for the purpose

thereof. It contained other usual covenants to some of which a reference will be made later. The second Defendant committed default in payment

of rent for the period commencing from December 1, 1951, till January 31, 1953. By exhibit P-6, dated February 12, 1953, the first Defendant

sent a notice stating that the first Defendant as lessor was entitled to re-enter and re-possess the leased premises for non-observance of the second

Defendant''s covenant as to punctual payment of rent under exhibit P-1 and expressing the lessor''s intension to determine the lease re-enter and

take possession of the leased premises. Exhibits D-1 and D-2 show that on February 16, 1953, arrangements were made for taking possession of

the leased premises and exhibit D-2 in particular signed by S.M. III states as follows:

In the presence of A.T.M., I took possession of the premises at 13.00 hrs this day the 16th February, 1953. The doors of the main building and

the small office room were found secured by locks. An extra lock was provided to the main doors where locking facility was available. All three

locks were then sealed.

A Gurka watchman is in charge of the premises from 13.00 hrs.

Thereafter, on March 33, 1353 the 1st Defendant herein instituted Original Suit No. 614 of 1953 on the file of the City Civil Court, Madras, for

recovery of arrears of rent from the second Defendant. It may be mentioned that the plaint in that suit, namely, exhibit P-7 indicates that the

Defendant in that suit (2nd Defendant in the present suit) had taken two other portions of land on lease from the 1st Defendant herein and with

reference to them also the 2nd Defendant herein defaulted in payment of rent and the 1st Defendant herein took possession of the said portions as

well and filed the suit for recovery of arrears of rent on all the three counts. This suit was decreed by the City Civil Court, Madras, on February

10, 1955, vide exhibit P-11. Somewhere in March 1957, the 1st Defendant herein filed Execution Petition No. 1101 of 1957 in Original Suit No.

614 of 1953 on the file of the City Civil Court Madras, for execution of the decree obtained in Original Suit No 614 of 1953 vide exhibit P-18.

The relief claimed therein was Under Order XXI, Rule 54, Code of Civil Procedure, for recovery of the amount by attachment and sale of the

superstructure belonging to the 2nd Defendant in ,the premises of the 1st Defendant and the same was described in the schedule to the petition as:

All the godown and superstructure constructed on the lease land measuring 19282 sq. ft. or thereabouts, belonging to the Madras Fort Trust in the

Foreshore East. etc.

and the interest of the judgment-debtor was shown as:

Owner of superstructure (godowns) on land leased to the judgment-debtor which lease was determined on....

The dismantled superstructure alone belonging to the judgment-debtor has to be brought to sale.

At this stage, it is desirable to refer to the proceedings taken by the third Defendant and the Plaintiff.

The third Defendant herein obtained a decree for a sum of Rs. 35,301 against the second Defendant on January 22, 1951 in Summary Suit No.

1610 of 1950 on the file of the High Court of Bombay. Under the precept issued by the Bombay High Court in the above suit, the superstructures

of the second Defendant standing on the land belonging to the first Defendant were attached by the Sheriff of Madras on February 12, 1951 under

Order XXI, Rule 54 of the Code of Civil Procedure. On February 14, 1951 a consent memo was filed by the third Defendant and the second

Defendant under which the second Defendant paid Rs. 11,000 to the third Defendant and the attachment of the premises of the godown was to

continue till the payment of the balance vide exhibit P-1 (a). An order was passed by this Court on the said date on the basis of the consent memo,

in Application No. 636 of 1951. Thereafter, the third Defendant took steps for bringing the superstructures to sale. But in view of a number of

claim petitions and other petitions, the sale was being stayed from time to time. In this context, it is necessary to refer to the sale proclamation

settled by this Court in Execution Petition No. 120 of 1951 in Summary Suit No. 1610 of 1950 on the file of the High Court of Bombay, marked

as exhibit P-5. In the document, the description of the property has been given as all the godown and superstructure constructed on the lease land

belonging to the Madras Port Trust; the interest of the judgment-debtor had been shown as, owner of superstructure (godowns) and leasehold

interest in land. This also refers to the lease for a period of five years entered into between the first Defendant and the second Defendant. In the

remarks column, it is stated:

The Defendant has stated in his affidavit dated 14th February 1951 that he has created a mortgage over the property for Rs. 15,000.

In these proceedings, the first Defendant filed an Application No. 689 of 1953 stating that the lease in favour of the second Defendant had been

determined by the first Defendant''s re-entering the premises for default in payment of rent and that any sale in Execution Petition No. 120 of 1951

cannot be of the leasehold interest as such together with the superstructure, namely, the attached godowns. On this application, orders were

passed by the Master of this Court that notice would be given to the Chairman, Madras Port Trust for settlement of proclamation--vide exhibit P-8

affidavit filed on behalf of the third Defendant herein in Execution Petition No. 120 of 1951. Thereafter, the first Defendant herein filed applications

for varying the terms of the proclamation as settled and for adjournment of sale. The case* of the first Defendant was that the lease in favour of the

second Defendant had been validly determined and with regard to the buildings, the second Defendant had only the right to dismantle the same and

remove the debris, subject to the payment of the arrears of rent on the leased premises and the decree holder in Summary Suit No. 1610 of 1950

on the file of the High Court of Bombay, namely the third Defendant herein cannot claim to sell the building as it then stood and induce the

purchaser into possession of the building without the express sanction of the first Defendant and the only right the third Defendant could claim was

to value the debris after the first Defendant''s claims under the lease deed were satisfied. On this basis, the amendment of the sale proclamation

prayed for by the first Defendant was that Column 3 must definitely mention the property to be sold as the materials comprised in the godown and

superstructures put up on the land belonging to the Madras Port Trust leased on November 2, 1950, for five years to the 2nd Defendant which

lease was determined on February 12, 1953, and with reference to which the first Defendant had re-entered the land, in the description of

property to be sold and under column 4, it must be stated that the judgment-debtor was the owner only of materials constituting the superstructures

on the land leased to him which lease had been determined. The first Defendant pointed cut:

If the above mentioned alteration is not carried out, the result will be that a third party bidding at an auction may insist upon retaining the building as

it is and claim access to the building. It is respectfully submitted that entry inside the Port Trust premises is regulated and no one can enter the

premises without a permit from the Chairman and various complications will arise if sale is held on the terms contained in the sale proclamation.

Vide exhibit P-9, affidavit field on behalf of the first Defendant. In reply to this an affidavit was field on behalf of the third Defendant herein, marked

as exhibit P-10. He denied the various claims made by the first Defendant in the affidavit. He, however, stated:

Since the Chairman of the Madras Port Trust intervened and put forward a claim that the lease has been determined which however is not

admitted, it has been noted in the remarks column of the draft proclamation of sale that the Chairman of the Madras Port Trust has stated that the

lease of the land has been determined so that any intending purchaser may not be misled and may make his own enquiries and satisfy himself as to

the correct position.

It is stated that such applications were dismissed.

Meanwhile, the second Defendant had borrowed a sum of Rs. 20,000 under four hundies for Rs. 5,000 each, dated January 6, 1951, from the

Plaintiff herein and created an equitable mortgage over the superstructure pub up by him on the land belonging to the first Defendant as security for

the repayment thereof. Subsequently, on May 7, 1951, the second Defendant executed a registered mortgage over the same property for another

sum of Rs. 5,000 in favour of the Plaintiff. On July 9, 1955, the Plaintiff instituted Original Suit No. 1034 of 1955 on the file of the City Civil Court,

Madras, for enforcement of the above said mortgages, impleading in addition to the 2nd Defendant, the third Defendant herein and the first

Defendant herein as parties to the suit. In that suit, first Defendant herein put forward its claim to the superstructures, based upon the fact that the

lease had been determined, possession had been taken and the first Defendant had obtained a decree in Original Suit No. 614 of 1953. On the

ground that such rival claims could not be determined in the mortgage suit the first Defendant was struck off the suit at the time of trial. The third

Defendant herein contended that be was unaware of the transactions alleged to have taken place between the Plaintiff and the second Defendant

on January 6, 1951, and January 7, 1951 and as he had attached the superstructures in execution of the decree on February 12, 1951, itself, the

second mortgage, dated May 7, 1951, would not have priority over the third Defendant''s debt and the amount due to the third Defendant as on

July 6, 1955., was Rs. 21,285-15-0 with subsequent interest at 4 per cent per annum. On September 17, 1956, the City Civil Court Madras

passed a preliminary decree vide exhibits P. 15 and P. 16. The City Civil Court, Madras, held that the Plaintiff herein would be entitled to bring the

mortgaged property to sale for the amount due under the equitable mortgage and any balance of sale proceeds after realizing the amounts due on

the said equitable mortgage would be available to the third Defendant herein in discharge of the decree in Summary Suit No. 1610 of 1950 for

which the superstructure was attached on February 12, 1951, and the Plaintiff herein would be entitled to any sale proceeds remaining after the

discharge of the decree of the third Defendant herein, towards the second mortgage, dated May 7, 1951. On July 1, 1957, a final decree for sale

was also passed in Interlocutory Application No. 350 of 1957 in Original Suit No. 1034 of 1955, vide exhibit P. 16 (a). It is stated that the

Plaintiff took proceedings to execute the decree, but nothing ultimately turned out.

In view of the fact that both the Plaintiff as well as the 3rd Defendant were putting forward claims to superstructures, the 1st Defendant herein

filed Execution Appnl No. 2605 of 1957 in Execution Petition No. 1101 of 1957 in Original Suit No. 614 of 1953 for impleading the 3rd

Defendant herein as well as the Plaintiff as parties to the said Execution petition. In the affidavit field in support of that application (exhibit P-19),

the 1st Defendant stated its case as follows:

The lease created in 1950 having been determined in 1953 the lessee was bound to give vacant possession to the lessor namely the Petitioner. (1st

Defendant herein). The lessee will not be entitled to insist that the building has to remain as a building notwithstanding the determination of the lease.

The rights of Respondents 2 and 3 (the 3rd Defendant and Plaintiff herein) could only be fastened on to the dismantled building and the debris

thereof and they have no right to insist that the Petitioner herein should allow the building to remain as it is when the leasehold interest had

determined long ago. The Petitioner is also claiming priority over Respondents 2 and 3 (the 3rd Defendant and Plaintiff herein). But these disputes

inter se cannot be determined in these proceedings.

Further, under the Harbour Expansion Scheme, Railway lines in the Trust area run over the site on which the building at present stands. The

Expansion scheme is in progress and the scheme is being delayed because the building has not been dismantled. The Petitioner herein submits that

the building should be directed to be dismantled and the debris be allowed to be sold and the sale proceeds deposited into Court allowing the

competing claimants to establish their rights in a Court of law.

To this a counter affidavit was filed on behalf of the third Defendant herein, marked as exhibit P-20, wherein he briefly set out the entire history of

the earlier proceedings and opposed the relief prayed for by the 1st Defendant herein. On behalf of the Plaintiff herein also a counter affidavit was

filed, marked as exhibit P-21, wherein also the Plaintiff opposed the relief claimed by the 1st Defendant and stated that in view of the legal rights

under the present state of law and the rights under the City Tenants Protection Act as amended, though the Plaintiff in Original Suit No. 1034 of

1955 (Plaintiff herein) was entitled to demand the sale of the, superstructure along with the leasehold right in spite of the alleged proceedings for

eviction, yet without prejudice, the Plaintiff was willing to agree for the sale of the superstructure alone in case the 1st Defendant herein did not

claim any rights of priority or otherwise over the sale proceeds of the entire superstructure and the same being credited to Original Suit No. 1034

of 1955. On April 7, 1958, the City Civil Court, Madras, ordered Execution Appln. No. 2605 of 1957 impleading the 3rd Defendant and the

Plaintiff herein as partita to Execution Petition No. 1101 of 1957. On April 17, 1958 the 1st Defendant herein filed Execution Appln. No. 905 of

1958 praying that suitable directions might be given regarding the sale of the attached superstructure by appointing a Commissioner or otherwise

with directions to demolish the superstructure, dispose of the same and deposit the sale proceeds into Court so that further directions might be

given in that behalf--vide exhibit P-22. By an order, dated May 9, 1958, the City Civil Court, Madras, dismissed this application, vide exhibit P-

The City Civil Court observed:

It is beyond the scope of enquiry in this execution petition to go into the question as to whether the first Respondent (2nd Defendant herein) had

any rights under the City Tenants'' Protection Act and whether such right had devolved on Respondents 2 and 3 (3rd Defendant and Plaintiff

herein). These rights have to be agitated in separate proceedings. I consequently do not feel inclined to grant Petitioner''s prayer to sell the

superstructure under reference by dismantling the same and directing the purchaser to remove the dismantled superstructure. Execution Appln. No.

905 of 1958 is consequently dismissed with costs Rs. 10 each for contesting Respondents 2 and 3.

If the Petitioner so desires and on payment of commissioner''s preliminary expenses at the first instance, the superstructure as it stands on the land

leased shall be sold leaving the purchaser to agitate his rights for the leasehold rights in the land in separate proceedings, for payment of a sum of

Rs. 50 for payment of the preliminary expenses of the commissioner to be appointed, call on 2nd July 1958.

Against this order of the City Civil Court, Madras, the first Defendant herein preferred Civil Revision Petition No. 2087 of 1958 on the file of this

Court and the same was dismissed on August 30, 1960, vide exhibit P-24. It was observed in that order:

It is undoubted that the right title and interest of the judgment debtor in the superstructure could be sold at the instance of the Petitioner in execution

of his decree in Original Suit No. 614 of 1953. It would be equally open to Vallabhadas Falchand Mehta, to sell the same property in execution of

his decree whoever brings the property to sale first, will have to share the sale proceeds by way of ratable, distribution. I do not see how the

mortgage decree holder can at all have a voice in the settlement, of the sale proclamation which is made subject to such right as he may have over

the property. I cannot see either how any direction can be given by the Lower Court that certain rights existed in the judgment debtor so as to

enable him to obtain a renewal of the lease in his favour. Whether such rights exist or not will be a matter for determination after the purchaser

comes on the scene and agitates his rights.

On January 12, 1961, the superstructures standing on the land of the 1st Defendant were auctioned by the 1st Defendant herein through

Messrs. Murray and Company. The terms of the auction were that the purchasers should demolish all the structures to the ground level and

remove all materials and the relevant debris within 21 days from the date of issue of delivery order, vide exhibit F-34. This auction fetched a sum

of Rs. 9,600 and the Counsel for the 1st Defendant informed the Counsel for the 3rd Defendant of the same by exhibit P-25, dated 8th May

1961, wherein it is stated that the above sum was in deposit and the security which the 3rd Defendant claims over the said property will be

fastened over the said sum in deposit and the said sum will have to be shared by persons interested therein, in accordance with their interests. By

exhibit P-26, dated 14th June 1961, the same information was furnished by the 1st Defendant to the 3rd Defendant himself. On 22nd June 1961,

by exhibit P-27, the Counsel for the 3rd Defendant sent a reply to the 1st Defendant and that wag in turn replied to by the Counsel for the 1st

Defendant on 21st September 1961 by exhibit P-28. Thereafter, in November 1962, the Plaintiff herein filed Civil Miscellaneous Petition No.

3449 of 1962 in Execution Petition No. 1101 of 1957 in Original Suit No. 614 of 1953 for a direction to the 1st Defendant herein to pay the

Plaintiff herein the sum of Rs. 51,262-96 and redeem the mortgage created by the 2nd Defendant in favour of the Plaintiff. The affidavit filed in

support of this application is marked as exhibit P-29. The counter affidavit filed in this petition on behalf of the 1st Defendant is marked as exhibit

P-30. It was contended in that counter affidavit:

The decree-holder on a mortgage over the superstructure created by a lessee of the land which lease had been determined, it is submitted, is not

entitled to say that the superstructure should be allowed to remain as such for all time. Once the lease was determined, the lessee is not entitled to

insist that the superstructure put up by him should be allowed to remain as such for all time. If the lessee cannot insist on such a right, a derivative

title holder cannot equally insist that the owner of the land is not entitled to determine the lease or recover vacant possession of his land.

On behalf of the 3rd Defendant also a counter affidavit was filed in his application which is marked as exhibit P-31. By an order, dated 13th

September 1963, this application was dismissed by the City Civil Court, Madras, holding that no such directions as prayed for can be possibly

issued in the proceedings In question and it is not seen as to how the questions raised by the parties can be determined in that petition, vide exhibit

P-35. Thereafter on 22nd February 1964, the third Defendant herein filed Execution Petition No. 81 of 1964 in Summary Suit No. 1610 of 1950,

High Court, Bombay, for direction to the 1st Defendant herein to deposit the sum of Rs. 9,600 realized by it by the sale of the materials of the

superstructures through Messrs. Murray and Company, as evidenced by exhibit P-32. Obviously a direction was issued and the amount wad

deposited as evidenced by the certificate of the First Assistant Registrar, Original Side, of this Court, dated 30th June 1965, marked as exhibit P-

33.

It is in these circumstances the present suit was instituted by the Plaintiff herein on 15th January 1964 for recovery of a sum of Rs. 51,000

together with interest at 6 percent per annum from the 1st Defendant. After referring in brief to the various proceedings that had taken place

already, the plaint alleges that on 12th January 1961, the lessee, the 2nd Defendant, was in possession of the land demised as well as the

superstructure put up by trim on the land Madras Act XIX of 1955 which amended the Madras City Tenants Protection Act, 1922 had already

come into force; the 2nd Defendant was a tenant within the meaning of the Act, under the provisions of the Act as amended, the lessee was entitled

on ejectment to be paid as compensation the value of the buildings erected by him on the land demised and this right to compensation could not be

taken away or limited by any contract between the lessor and the lessee; the 2nd Defendant was or mull be deemed to have been ejected on 12th

January 1961, when the Port Trust caused the superstructure to be demolished and took possession of the land on such demolition the Plaintiff by

virtue of his right as mortgagee became entitled to the right of the 2nd Defendant to receive compensation for the building* from Port Trust to the

extent of the amounts due to him under his mortgage decree the clause in the lease deed providing that the lessee should on the termination of the

lease remove the superstructure cannot operate to deprive the lessee or the Plaintiff of the right to compensation conferred by the Act, and the right

of the 2nd Defendant and of this Plaintiff to compensation cannot be defeated by the lessor taking the law into his own hands and ejecting the

tenant without taking proceedings for ejectment in the City Civil Court or in the Presidency Small Causes Court, Madras. The further case of the

Plaintiff is that on 12th January 1961, on account of the increase in price of building materials, the value of the superstructure must have been more

and in any event the compensation payable by the Port Trust under the City Tenants Protection Act for the superstructures would have been more

than that mount due to the Plaintiff under his mortgage decree and that though the amount now due under the decree is in excess of Rs. 51,000 the

Plaintiff is restricting his claim for compensation as against the tat Defendant to Rs. 51,000. The Plaintiff seeks to sustain his claim on another

ground as well. According to the Plaintiff, the superstructures on the demised land were always, as stated already the property of the 2nd

Defendant and their ownership never passed to the Port Trust and so the action of the Port Trust in demolishing or causing to be demolished the

superstructure was unlawful and constituted a wrongful invasion or interference with the 2nd Defendant''s property and of the Plaintiffs rights

therein the Port Trust had no right or authority to demolish the superstructures and claim, that the Plaintiff''s mortgage right over the superstructures

should be transferred to or fastened on the dismantled materials; the Port Trust is bound to make good to the Plaintiff the loss sustained by him by

reason of the wrongful destruction of the Plaintiff''s security; and the value of the structures was very much more than the amount due under the

Plaintiff''s decree and the Plaintiff would be entitled to recover from the Port Trust the entire amount due under the decree, but the Plaintiff was

limiting his claim to Rs. 51,000. The plaint further proceeds to state that the 3rd Defendant cannot claim any priority over him in the matter of right

to compensation for the superstructure inasmuch as the Plaintiff is a mortgagee and the 3rd Defendant had no charge by virtue of his attachment

and in any event even if he had a charge, it would be subordinate to and would not prevail over the Plaintiff''s mortgage right. The plaint makes it

clear that the Plaintiff does not seek any relief against either the 2nd Defendant or the 3rd Defendant in this suit and they are added as Defendants

only to obviate any technical objection on the ground of their non-joinder.

The 1st Defendant in its written statement stated that it entered into possession of the leased land on 16th February 1953, and since the 2nd

Defendant did not remove the superstructures put up by him before the lesser entered and took possession, the 1st Defendant became owner of

the super*-structures and whatever rights the lessee had in the superstructures become extinguished and the Plaintiff''s rights derived from the

lessee, the 2nd Defendant, also became extinguished. The 1st Defendant''s contention is that the 2nd Defendant had no tenancy rights on and after

the said date and no rent was collected from him on and after the said date and on the other hand the 1st Defendant had been exercising its right of

ownership over the said superstructures treating the said property as part of its property. It is also averred in the written statement that the 1st

Defendant had also allowed the Liquidator of the lessor''s company to remove furniture and other articles kept inside the premises and belonging to

the lessee. It is alternatively contended by the 1st Defendant that in any event, the period of lease having expired on 1st February 1955, long

before the filing of Original Suit No. 1034 of 1955 by the Plaintiff herein, neither the lessee nor any one deriving title from him could assert any right

against the 1st Defendant. In relation to the claim of the Plaintiff to the benefit of Madras City Tenants'' Protection Act, 1922, as amended in 1955,

the 1st Defendant''s contention id that the Government being the owner of the property, the Act does not apply and in. any event since the 1st

Defendant had validly re-entered on the land on 16th February 1953, for breach of the covenant fort punctual payment of rent for the leased lands

as per the terms of the lease deed and the 2nd Defendant having been out of possession from 1953, no right can now be claimed by the Plaintiff. It

is further contended that in any event after 1st February 1955, when the lease period ended by efflux of time and the lessor who got into

possession on 16th February 1953 continued to be in possession on 1st February, 1955, and subsequently, and as such the 2nd Defendant cannot

invoke any of the provisions of the Act. The 1st Defendant''s further case is that in demolishing the superstructures, the Port Trust dealt with its

own property in the normal course of administration and that such action was not unlawful or wrongful and that no rights of the 2nd Defendant

were infringed in any manner. It is further stated that the Trust is not bound to make good the loss claimed by the Plaintiff and that in any event the

loss claimed was excessive. One other contention of the 1st Defendant is that the Plaintiff''s suit is barred by limitation u/s 110 of the Madras Port

Trust Act.

The 3rd Defendant in his written statement after referring to the previous proceedings contends that his attachment subsists and that his decree

also subsists, he having taken subsequent execution proceedings in Execution Petition No. 23 of 1962 and Execution Petition No. 81 of 1961 on

the file of this Court but on the other hand, the Plaintiff having taken no steps td have the mortgage property sold in pursuance of the final decree,

dated 1st July 1957, his remedies under the decree in Original Suit No. 1034 of 1955, on the file of the City Civil Court had become barred and

his rights under the decree had also become extinguished on the expiry of three years from 1st July 1957. The 3rd Defendant further contends that

the 1st Defendant is liable to make good the proper value of the superstructure if it had been sold as such with the lease hold interest in the land

whatever that might be and the 3rd Defendant estimates the value of such superstructure in January 1961 at more than Rs. 75,000. He winds up

by saying:

This Defendant states that for the reasons stated in paragraphs 8 and 9 above she actual value of the superstructure should be assessed by this

Hon''ble Court as above submitted and the 1st Defendant held liable to make good the said amount out of which, this Defendant is entitled to be

paid the balance of the amount due under his decree which as on 22nd February 1964 amounted to Rs. 30,170.81 in priority to the Plaintiff and

prays for a decree accordingly. This Defendant is willing to pay court fee if any that he may be held liable to pay before any decree is issued in his

favour.

The Defendant further states that lie has applied In Execution Petition No. 81 of 1964 for directing the 1st Defendant herein to deposit into this

Court to the credit of the said Execution Petition No. 81 of 1964, the said sum of Rs. 9,000 held in deposit by the 1st Defendant as proceeds of

the unauthorized sale of the dismantled superstructure and the said Execution Petition No. 81 of 1961 is pending.

The 2nd Defendant has remained ex parte.

On these pleadings, the following issues were framed by this Court for trial:

Is the lease by the first Defendant in favour of the second Defendant still subsisting or could be deemed to be subsisting in law?

If the aforesaid lease could be deemed to be subsisting and the second Defendant has right over the property, was the first Defendant justified in

demolishing the structure on the property ?

Is the mortgage in favour of the Plaintiff valid and enforceable as against the first Defendant ?

Is the second Defendant entitled to any relief under the City Tenants Protection Act and is the Plaintiff entitled to take advantage of such relief

and enforce the same ?

Has the lease in favour of the second Defendant been terminated by efflux of time ?

Was the first Defendant, in any event, entitled to remove the superstructure in the property ?

To what priority are the Plaintiff, first Defendant and the third Defendant entitled over the salt proceeds ?

Is the first Defendant liable in damages either to the second Defendant or the Plaintiff as his mortgagee ?

Is the claim of the Plaintiff barred by limitation u/s 110 of the Madras Port Trust Act ?

To what relief are the parties entitled ?

As I mentioned already, the plaint bases that relief claimed only on two grounds, and those two grounds only were urged before me by R.

Ramamurti Aiyar, learned Counsel for the Plaintiff. The first ground is that notwithstanding the determination of the tenancy by the 1st Defendant

herein under exhibit P-6, dated 12th February 1953, and the action taken by the 1st Defendant on 16th February 1953, as revealed by exhibit D-

1 and D-2, the 2nd Defendant must be deemed to hive continued in possession of the property till 12th January 1961 on which date Alone he must

be deemed to have been ejected and since the Madras City Tenants Protection Amendment Act, 1955 (Act XIX of 1955) came into force on

June 28, 1955 (though the Act itself was published in the Fort St. George Gazette only on September 12, 1955, the ordinance which it replaced

had coma into force on June 28, 1955), the Act applied to the tenancy created by the 1st Defendant; in favour of the 2nd Defendant under exhibit

P-1, dated November 2, 1950, and consequently the 2nd Defendant became entitled to the compensation for the superstructure as provided by

Section 3 of the Act and standing in the shoes of the 2nd Defendant, as his mortgagee, that Plaintiff herein is entitled to recover that compensation.

The second ground is that the action of the 1st Defendant in demolishing and auctioning the materials on January 12, 1961, was unlawful and

wrongful and that action has impaired the security which the Plaintiff had in the superstructure belonging to the 2nd Defendant and therefore the

Plaintiff ii entitled to recover compensation from the 1st Defendant for such wrongful act.

Before I deal with these grounds in detail, I shall first dispose of the one objection taken by the 1st Defendant. That objection is that the suit

instituted by the Plaintiff does not comply with the requirements of Section 110 of the Madras Port Trust Act and consequently the suit is barred.

Section 110 of the Madras Port Trust Act is in the following terms:

No suit or other proceeding shall be commenced against any person for anything done, or purporting to have been done, in pursuance of this Act,

without giving such person one month''s previous notice in writing of the intended suit or other proceedings, and of the Muse thereof nor alter six

months from the accrual of the cause of such suit or other proceedings.

Before this section, can apply, the suit must be for anything done or purporting to have been done in pursuance of the Act. I have already pointed

out that the grounds on which the Plaintiff has based his claim are two in number, the first being the statutory right which a tenant has u/s 3 of the

Madras City Tenants Protection Act, 1922, as amended by Act XIX of 1951 and the second being the alleged wrongful act on the part of the first

Defendant in demolishing the superstructures and auctioning the materials. As far as the first ground ii concerned, certainly it is not for anything

done of purporting to have been done by the first Defendant in pursuance of the Madras Port Trust Act and therefore the section cannot apply. As

far as the second ground is concerned, the cause of auction is the alleged wrongful demolition of the superstructure and the auctioning of the

materials. Even this act is not anything done or purporting to have been done in pursuance of the Act. However, Mr. V.V. Raghavan, learned

Counsel for the 1st Defendant relied on Section 32 of the Madras Port Trust Act and the lease deed, namely, exhibit P-1. Section 32 of the

Madras Port Trust Act states.

that the trustees of the Port Trust of Madras shall have power to acquire and hold immovable or movable property whether within or without the

limits of the port and the Board shall also have power to lease or sell any immovable or movable property which may have become vested in or

acquired by it.

Even assuming that the grant of lease by the first Defendant in favour of the second Defendant can be construed to be an act said to have been

done or purporting to have been done in pursuance of the Act, the demolition of the superstructure can not be said to be such an act.

Covenant of the lessee''s covenants in exhibit P-l is as follows:

To yield and deliver up to the lessors at the end or sooner determination of the said terms of five years in good order and substantial repair and

condition the said premises, except as to fair wear and tear, and shall if required to do so by the lessors at their own expense and cost remove all

buildings and erections from and off the said premises and shall cause to be restored to their natural level state and condition all such parts of the

said premises as shall have been appropriated and used for the purposes of this demise.

The other covenant which is relevant for this purpose is covenant No. 2 of the natural covenants between the lessor and lessee which is as follows:

If and whenever the Inspector of Explosives or the lessors shall require the said premises or any part thereof for any public purpose it shall be

lawful for the lessors at the expiration of six calendar months notice at any time in writing to the lessee of the intention so to do to re-enter upon any

part of the said premises in the name of the whole and thereupon the said term of five years shall absolutely determine and the lessee shall not be

entitled to any payment of compensation from the lessors in respect of such re-entry and will yield and deliver up to the lessors in good condition

the said pieces or parcels of land and will prior to such delivery remove all buildings and erections on the said land and if required to do so by the

lessors will level and restore the surface thereof to the same or substantially the same state in which it was immediately before the execution of

these presents.

Though the first Defendant did not have recourse to this latter covenant neither fee former nor the latter covenant in terms confers a power on the

first Defendant to demolish the superstructure on the failure of the second Defendant to remove the same. Consequently the Alleged wrongful

demolition of the superstructure by the first Defendant complained of by the Plaintiff cannot be said to be anything done or purporting td have been

done in pursuance of the Madras Port Trust Act so as to attract the application of Section 110 bf the said Act. Mr. V.V. Raghavan learned

Counsel for the first Defendant, relied on a decision of this Court, dated September 20, 1967, in Original Side Appeal Nos. 28 and 37 of 1961. In

roy opinion, that decision has no application to facts of this case. That decision was concerned with the question of. limitation for a suit filed by an

insurer against the Port Trust standing in the shoes of the insured and one of the points that came up to be considered was whether the negligence

on the part of the Port Trust will come within the scope of Section 110 of the Act and whether the section applies only to obligatory functions of

the Port Trust or it applies to both the obligatory functions and optional functions of the Port Trust. On the other hand the decision of this Court in

Muthya Chettiar v. The Secretary of State for India ILR Mad. 522, dealing with Sections 84 and 87 of the Madras Salt Act of 1889 and holding

that when the Commissioner deducted certain amounts from the deposit made by the other contracting party, he was acting under the terms of the

contract and not under any section of the Act will support my construction of Section 110 of the Madras Port Trust Act. Therefore in my opinion,

Section 110 of the Madras Port {Trust Act does not apply to the suit in question and consequently the question of the suit being barred by that

section does not arise.

The claim of the Plaintiff based upon the applicability of Madras City Tenants Protection Act, 1922 as amended by Act XIX of 1955, involves

consideration of several other matters. As I pointed out already, the first Defendant in its written statement contended that the said Act does not

apply to the tenancy in question on two grounds, namely (i) that the leased property was the property of the Government and therefore the Act has

no application; and (ii) the second Defendant was dispossessed on February 16, 1953, itself, when the City Tenants'' Protection Act, 1922, as it

stood, did not apply to the tenancy created by the first Defendant in favour of the second Defendant on November 2, 1950, and the subsequent

amendment of the City Tenants Protection Act, did not affect this position. As far as the first ground is concerned, I am of opinion that there is no

substance in the same. Mr. V.V. Raghavan, learned Counsel for the first Defendant, has not been able to bring to my notice any principle or

authority on the basis of which it can be held that the land leased to the second Defendant by the first Defendant was the property of the

Government. u/s 6 of the Madras Port Trust Act, the Trustees of the Port Trust of Madras shall be a body corporate and have perpetual

succession and a common seal. u/s 31 of the Act, from and after the coming into force of this Act, the several immovable properties in Schedule II

(to the Act) and all movable property held by or in trust for the Board of Trustees of the Harbour of Madras shall vest in the Board but subject to

all charges and liabilities affecting the same. Section 32 of the Act is as follows:

from and after the coming into force of ibis Act, the several immovable properties in Schedule II (to the Act) and all movable property held by or

in trust for the Board of Trustees of the Harbour of Madras shall vest in the Board but subject to ail charges and liabilities affecting the same.

The Board shall, for the purposes of this Act, have power to acquire and hold immovable or movable property, whether within or without the limits

of the port, and the Board shall also have power to lease or sell any immovable or movable property which may have become vested in or

acquired by it.

There is a proviso to this section on which reliance has been placed in this behalf and this proviso is:

Provided that no such acquisition of immovable property not being as acquisition from the Government shall be valid unless the consent of the

Central Government to such acquisition shall have been first obtained.

In my opinion, this proviso does not help the contention of the first Defendant. This proviso itself makes a distinction between the properties of the

Port Trust and the properties of the Government, when it refers to an acquisition by the Port Trust from the Central Government. Secondly, the

fact that for acquisition of immovable property, the Port Trust must get prior consent of the Central Government does not make the property so

acquired as the property of the Government. Consequently, the contention of the first Defendant that the Madras City Tenants Protection Act has

no application to the land in question, since the land belongs to the Government, has not been made oat and therefore it must fail.

As far as the second ground is concerned, I have already referred to exhibit P-6, dated February 12, 1953, which was the notice issued by the

first Defendant to the second Defendant expressing the intention of the lessor to determine the lease, re-enter and take possession of the leased

premises. I have also referred to exhibits D-1 and D-2. The learned Counsel for the first Defendant contended that not only the tenancy created in

November 1950 between the first Defendant and the second Defendant was determined on February 12, 1953, but also the second Defendant

was dispossessed from the premises in question on February 16, 1953. Mr. R. Ramamurthy Aiyer, learned Counsel for the Plaintiff, concedes that

if the second Defendant had been dispossessed on February 16, 1953, as contended by the first Defendant, the Madras City Tenants'' Protection

Amendment Act, 1955, cannot be relied on either by the second Defendant or by the Plaintiff. But he contends that on February 16, 1953, the

second Defendant was not dispossessed from the premises. His contention is that even according to exhibit D-2, the superstructures were locked

by the second Defendant and he had the keys with him and all that the first Defendant did was to overlook the same and to seal the locks and this

will not constitute a dispossession of the second Defendant at any rate so far as the superstructures are concerned and even if it is considered to be

a dispossession of the second Defendant, it was only a forcible dispossession. The points that arise for my consideration are, whether there was

actual dispossession of the second Defendant on February 16, 1953, and if there was such a dispossession, what is the effect of the same in law.

One thing is clear, namely, that the second Defendant was not physically present either on the land or on the superstructure on February 161 1953,

and there is absolutely nothing on record to show that the second Defendant at any stage subsequently claimed that he continued to remain in

possession of the property and he was not dispossessed, on February 16, 1953. I must also mention the fact that there was no controversy about

the determination of the tenancy by the first Defendant under exhibit P-6 on February 12, 1953. The Madras City (Tenants'' Protection Act, 1922,

did not apply to the tenancy created by the first Defendant in favour of the second Defendant in November 1950, and consequently under the

provisions of Section 111 of the Transfer of Property Act, 1882, the first Defendant was competent to terminate the tenancy. Mr. V.V. Raghavan,

learned Counsel for the first Defendant relied on Section 111(g) of the Transfer of Property Act in support of his contention that by virtue of exhibit

P-6, dated February 12, 1953, the second Defendant''s lease wag determined by forfeiture in view of the failure of the second Defendant to pay

the rent as covenanted by him under exhibit P-1. Mr. V.V. Raghavan, learned Counsel for the first Defendant, also relies upon the following

passage occurring in Mulla''s Transfer of Property Act, fifth edition, at page 710, to show as to what constituted eviction:

To constitute an eviction it is not necessary that the lessee should be forcibly dispossessed. In the case of Upton v. Townend (1885) 17 C.B. 30

an eviction was said to be not a mere trespass and nothing more but something of a grave and permanent character done by the landlord with the

intention of depriving the tenant of the enjoyment of the demised premises. Substantial interference by the landlord with the tenant''s enjoyment will

suffice, even if there is no complete dispossession.

In this case, there can be no doubt about the fact that the first Defendant intended to deprive the second Defendant of the enjoyment of the

demised premises and by overlooking the premises and sealing of the three locks the first Defendant definitely rendered it impossible for the

second Defendant to enjoy the superstructures any longer thereby constituting substantial interference by the landlord with the tenants enjoyment

within the scope of. the passage quoted above. Over and above this, as exhibit D-2, indicates, a gurkha watchman was put in charge of the entire

premises from 13.00 hours on February 16, 1953. Consequently in my opinion, the action taken by the 1st Defendant on February 16, 1953,

definitely constituted eviction or dispossession of the second Defendant both from the land and from the superstructures thereof. With reference to

this passage of Mulla''s Transfer of Property Act, Mr. Ramamurthi Aiyar, learned Counsel for the Plaintiff, contended that it had reference and

relevance only to Section 108(1) of the Transfer of Property Act and in the context of which alone that passage occurs in the text book. Section

108(1) deals with the implied covenant that the lessee is bound to pay or tender at the proper time and place the premium or rent to the lessor or

his agent in this behalf and the passage extracted above occurs in relation to the suspension of payment, when the lessee is evicted by the landlord

from the whole of the property leased. In my opinion, that circumstance alone does not conclude that what constitutes eviction as indicated in the

passage above will apply only to the question of suspension of rent on the ground that the lessee is evicted by the lessor from the whole of the

property leased and does not help to assess or ascertain as to what constitutes eviction or dispossession in general. Therefore, in my opinion, there

is no substance in this contention of the learned Counsel for the Plaintiff.

Then, there remains the further question whether this dispossession was a forcible one or not, and if so, what is its legal effect? I have already

referred to the fact that on February 16, 1953 the second Defendant was not present either on the demised land or on the superstructure and after

giving the notice, dated February 12, 1953, the first Defendant took action, as revealed by exhibit D-1 and D-2. Under these circumstances, the

question that arises for consideration is whether the action of the first Defendant in taking possession of the premises ran be said to constitute a

forcible possession. None of the Counsel for the parties cited any authority to show what constitutes forcible possession. On the other hand, Mr.

Ramamurti Aiyar, learned Counsel for the Plaintiff, invited my attention to the decision of the Supreme Court in Lallu Yeshwant Singh v. Rao

Jagadesh Singh AIR 1968 S.C. 620 and contended that in India persons are not permitted to take forcible possession and they must obtain such

possession as they are entitled to through a Court and since the first Defendant has not obtained possession through Court, it must be deemed to

have taken forcible possession of the property. For the purpose of this argument, I am assuming that since the first Defendant has not obtained

possession through Court, it must be deemed to have taken forcible possession of the property on February 16, 1953. The question is what is the

legal consequence of this dispossession and can it be said that dispossession is non est in law so as to make it that notwithstanding the action taken

by the first Defendant on February 16,1953, the second Defendant continued to remain in possession of the property, In my opinion, the action

taken by the first Defendant on February 16, 1953, cannot be said to be non est in law so as to land to a further legal consequence that the second

Defendant continued to remain in possession of the land as well as the superstructure all through. If a person was dispossessed without his consent,

of immovable property otherwise than in due course, of law, he had the remedy of filing a suit for recovery of possession u/s 9 of the Specific

Relief Act, 1877, now u/s 6 of the Specific Belief Act, 1963. Where a landlord ejects a ryot of his own without the intervention of the Court of law

or of the Collector, the ryot, even if he is a tenant on sufferance holding over after expiry of the term of the lease, can recover possession in a

summary action without reference to the title of the landlord or his representatives, to eject him vide Rudrappa v. Narasing Rao ILR 29 bom. 213,

Sofaoll Khan v. Woopean Khan 9 Suth. W.R. 123, Jonandun Acharjee v. Haradhun Acharjee 9 Suth. W.R. 513 Bhagabati Charan Roy v. Luton

Mondal 7 C.W.N. 218 Yar Muhammad and Another Vs. Lakshmi Das and Others, and Kuldip Singh v. Gillanders Arbuthnot and Co. I.L.R.Cal.

615.

A person without title but who is in possession and who hag been dispossessed otherwise than in due course of law can bring a suit to be

reinstated even if the person by whom he wag dispossessed be the true owner or a person by or claiming under him vide Narayana Row v.

Dharmachar ILR Mad. 514.

It hag been held by this Court in Gurayya v. Sathiraju 68 M.L.J. 196 as follows:

There is a distriction between a tenant continuing in possession after determination of the lease without the landlord''s consent and a tenant doing so

with the landlord''s consent u/s 116 of the Transfer of Property Act, the latter class of tenant is called a tenant holding over but the former who in

the language of the English Law is known as a tenant by sufferance is no better than a mere trespasser and can be turned out at any time without

any notice to quit. In the case of a tenant holding over the relationship of lessor and lessee subsists, but whereas in the present case, the tenant

continues in possession against the landlord''s will his liability is ex delicto and he is liable as for a tort.

In Om Prakash Gupta Vs. The Commissioner of Police, Madras and Others, a Bench of this Court pointed out:

In Henderson v. Souire L.R. (1869) 4 Q.B. 170 a tenant remaining in possession after the end of the term is described as one in wrongful

possession. In Jones v. Foley L.R. (1891) 1 Q.B. 730 a tenant, on the expiration of his tenancy, was held to have no right whatever to be on the

premises--He was a trespasser. The Privy Council ruled in Mahant Jagannath Das v. Jhanki Singh L.R. 49 I.A. 81 that a lessee of zerait land is a

tenant within the meaning of Section 3(3) of the Bengal Tenancy Act, 1885, only during the continuance of the term of the lease, and that, upon the

expiry of the term, he became a trespasser, liable for mesne profits, vide Harry Kempson Gray v. Bhagh Mian L.R. 57 I.A. 105. Indeed, the

possession of a tenant, on the expiration of the term of the lease, becomes wrongful, and therefore, adverse to the landlord, within the meaning of

Article 144 of Schedule I of the Limitation Act, vide Shravan Shahasing Patil v. Fattu (1926) 98 I.C. 911.

It is one thing to say that he cannot be ousted from the premises without recourse to a court of law; but it is another thing to say that he is lawfully

entitled to be in possession.

As I already pointed out, the validity of the termination of the lease by exhibit P-1 was not questioned before me. Therefore, it follows from the

legal portions explained above that the possession, if any, of the second Defendant subsequent to exhibit P-1 was unlawful. It may be that he was

entitled to the protection of even that unlawful possession and therefore if he was evicted without his consent and otherwise than in due course of

law he might have had a right u/s 9 of the Specific Relief Act, 1877 and the present Section 6 of the Specific Relief Act, 1963, to file a suit and

recover possession. However, if he failed to do so and he did not take any step whatever to challenge the dispossession, it cannot be said that the

dispossession was non est and the second Defendant must be deemed to have continued in possession, notwithstanding what has happened on

February 16, 1953. I must point out in this connection that the first Defendant has not claimed any rent from the second Defendant subsequent to

February 16, 1953. Even in exhibit P-7, the plaint filed in Original Suit No. 614 of 1953. on the file of the City Civil Court, Madras, for recovery

of arrears of rent, the first Defendant referred to the notice, dated February 12, 1953, namely exhibit P-6, and asserted that on February 16,

1953, it re-entered and took possession of the leased premises and it baa filed the suit for arrears of rent till February 15, 1953. Though from the

copy of the decree passed by the City Civil Court in this suit namely, exhibit P-11, it is seen that the second Defendant was represented by

Counsel, still no material was placed before the Court as to what was the stand of the second Defendant with regard to this position of the first

Defendant, namely, that the lease was determined en February 12, 1953, and possession was taken by the first Defendant on February 36, 1953,

except for a stray sentence occurring in the order of the City Civil Court, dated May 9, 1958, made in Execution Appln. No. 905 of 1958 stating,

the first Respondent had contended that the resumption teas arbitrary and illegal, notwithstanding the fact that the first Respondent therein remained

ex parte in the proceedings before the City Civil Court Madras. Under these circumstances, I hold that though on February 16, 1953, the first

Defendant took possession of the land as well as the superstructure otherwise than in due course of law, still the second Defendant stood by and

acquiesced therein and did not challenge such dispossession by the first Defendant by taking appropriate steps in law or otherwise. I may also refer

to a further fact that except that the second Defendant was represented by Counsel in Original Suit No. 614 of 1953 on the file of the City Civil

Court, Madras, and the second Defendant had filed an affidavit, dated August 10, 1951 in Execution Petition No. 120 of 3951 in Summary Suit

No. 16.10 of 1950 (High Court, Bombay on the file of this Court, contending that the value of the leasehold interest and the buildings would be

worth not less than Rs. two lakhs and the value shown in the affidavit of the decree-holder was too low and the reserve price should be fixed at not

less than Rs. 1,50,000 (vide exhibit P-3) nothing is heard of the second Defendant at any stage of any of the numerous proceedings both before

the City Civil Court and on the file of this Court. Even by the end of 1951, the second Defendant fell into arrears in the payment of rent to the first

Defendant; he had borrowed Rs. 25,000 on the security of the superstructure put up by him on the land belonging to the Port Trust and the third

Defendant herein had obtained a decree for a sum of Rs. 35.301 as on January 22, 1951, and the superstructures had been attached in execution

of that decree by the Sheriff of Madras on February 12, 1951, and consequently when, on February 16, 1953, the first Defendant herein

proceeded to take possession of the land and the superstructures, it is nothing surprising that the second Defendant had lost all interest in the matter

and simply stood by and allowed things to proceed in their own way without any protest from him. Therefore. I am unable to accept the contention

that the second Defendant continued in possession of the land as well as the superstructures subsequent to February 16, 1953. Here again. I must

mention that the learned Counsel for the Plaintiff frankly admitted that the second Defendant did not have are physical possession of the land and

the superstructures but he must be deemed to have had juridical possession since he had locked the superstructures and had retained the keys with

him and it is only on this basis, the learned Counsel for the Plaintiff contends that the Madras City Tenants Protection Act, 1955, applied to the

case. No doubt the definition of the word, tenant in the Madras City tenants'' Protection Act, included a person who continued in possession after

the termination of the tenancy, but a question will possible arise whether for the purposes of getting the benefit of the Act, should he not be in actual

or physical possession on the date when the amendment Act came into force. I have already taken the view that by over locking the premises and

by sealing of all the three locks and by posting a gurkha watchman to be in charge of the entire premises, the second Defendant was dispossessed

or evicted on that date and consequently he has lost possession on February 16, 1953, and cannot be said to have continued in possession

subsequent to that date till the date when the Madras City Tenants Protection Amendment Act, 1955 came into force so as to attract the

applicability of the Act as amended.

I may also mention one ether fact in this context. If the argument of the learned Counsel for the Plaintiff is to be accepted, namely that

notwithstanding the action taken by the first Defendant on February 16, 1953, the second Defendant must be deemed to have continued in

possession fill January 12, 1961 when the superstructures were demolished that the materials auctioned, it must logically follow that the second

Defendant was liable to pay rent till that date. As I mentioned already, as far as the first Defendant is concerned, it did not claim any rent

subsequent to February 16, 1953, and neither the Plaintiff nor the third Defendant has anywhere mentioned that the second Defendant was liable

to pay the lent and offered to pay the same.

The next question that arises for consideration is, assuming that the second Defendant must be deemed to have continued in possession till

January 12, 1961, whether the Plaintiff can maintain the present suit for recovery of the compensation which the second Defendant is alleged to be

entitled to u/s 3 of the Madras City Tenants Protection Act, 1922, as amended by Madras Act XIX of 1955. In other words, the question is even

on the assumption that the second Defendant was entitled to compensation u/s 3 of the Act, whether that right can be agitated in an independent

suit on whether it could have been agitated, investigated into and determined only in a suit for ejectment filed by the first Defendant against the

second Defendant and the procedure prescribed by Section 4 and onwards should be followed.

Section 3 of the Madras City Tenants'' Protection Act is:

Every tenant shall on ejectment be entitled to be paid as compensation the value of any building which have been erected by him, or by any of his

predecessors in interest, or by any person, not in occupation at the time of 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.

Sub-section (1) of Section 4 of the Act states that m a suit for ejectment against a tenant in which the landlord succeeds, the court shall ascertain

the am rant of compensation, if any, payable u/s 3 and the decree in the suit shall declare the amount so found due and direct that, on payment by

the landlord into Court within three months from the date of the decree, of the amount so found due, the tenant shall put the landlord into

possession of the land with the buildings and trees thereon. Sub-section (2) of Section 4 makes a similar provision with reference to an application

u/s 41 of the.

Presidency Small Causes Courts Act, 1882, Sub-section (3) of Section 4 is:

If in such suit or application the Court finds that any sum of money is due by the tenant to the landlord for rent or otherwise in respect of the

tenancy the Court, shall set off such sum against the sum found due under Sub-section (1) or Sub-section (2) as the case may be and shall pass a

decree or interim order declaring as the amount payable to the tenant on ejectment the amount if any, remaining due to him after such set off.

Sub-section 4 of section provides:

If the amount due is not paid into Court, within three months from the date of the decree under Sub-section (1) or of the interim order under Sub-

section (2) or if no application is made u/s 6, the suit or application as the case may be, shall stand dismissed, and the landlord shall not be entitled

to institute a fresh suit for ejectment or present a fresh application for recovery of possession for a period of 5 years from the date of such

dismissal.

Section 5 provides for the determination of the compensation awardable u/s 4 and states that it shall be the value of the buildings and trees and of

any improvements which may have been made by the tenant on the date of the decree or interim order, as the case may be. Sub-section (3) of this

section provides that if, on account of any cause for which the tenant is responsible, the building, for which compensation has been adjudged u/s 4,

is destroyed or has deteriorated in value between the date of the decree or interim order and the date of ejectment, the Court may, on application

by the landlord, pass an order directing that he be placed in possession without any compensation, or on payment of the amount determined on a

revaluation of the building as the case may be.

Section 6 provides that in a case landlord is unable to deposit the compensation into Court as ordered by the Court he may apply to the Court

to fix a reasonable rent for the occupation of the land by the tenant. Section 7 enables the landlord, hi dependent of any suit for ejectment, to apply

by a petition to the Court to fix a reasonable rent fop the occupation of the laud by the tenant. Equally Section 7-A of the Act enables a tenant to

apply to the Court for a reduction of rent. Section 8 states that an order passed by a Court u/s 6, Section 7 or Section 7-A shall have effect as a

decree in a suit and for a period of 5 years the rent so fixed snail not be revised nor shall the tenant be liable to be evicted for the said period.

Section 9 of the Act, confers a right on a tenant to apply to the Court when the landlord has instituted a suit for ejectment or filed an application u/s

41 of the Presidency Small Cause Courts Act, 1882, fur a direction to the landlord to sell the land for a price to be fixed by the Court. Section 10

makes Section 4 Section 5, Section 6, Section 8 and Section 9 applicable to suits in ejectment and applications u/s 41 of the Presidency Small

Causes Courts Act, 1882 which are pending or in which decrees for ejectment or orders u/s 43 of the Presidency Small Cause Courts, Act have

been passed but have not been executed on the relevant date.

Section 11 of the Act is:

No suits in ejectment or applications u/s 41 of. the Presidency Small Cause Courts Act, 1882, shall be instituted or presented against a tenant until

the expiration of three months rent 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.

This section also provides for a copy of the said notice being sent to certain officials.

Section 12 of the Act provides that nothing in any contract made by a tenant shall take away or limit his rights under this Act, presided that

nothing contained in the sections shall affect any stipulations made by the tenancy in writing registered as to the erection of buildings, in so far as

they relate to buildings erected after the date of the contract.

Section 13 before its amendment in 1955 was:

In its application to the City of Madras, 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.

Against the background of these provisions of the Act, the contention of Mr. R. Ramamurti Aiyar, learned Counsel for the Plaintiff is that

Section 3 of the Act confers an absolute right to compensation OTI a tenant, which right was not available to a tenant under the general law of the

land and, therefore, such a right can be enforced by an independent suit. No doubt Mr. Ramamurti Aiyar concedes that if the landlord files & suit

for ejectment, then the procedure prescribed under sections 4 and 5 will have to be followed, but the fact that the landlord has not filed a suit for

ejectment, but had chosen to dispossess the tenant without recourse to Court, cannot take away $he right conferred by Section 3 of the Act on the

tenant.

For this purpose, the learned Counsel very strongly relied on the following observations of Willes J. in the well known case of the

Wolverhampsten, New Water Works Company v. Hawketsford (1859) 6 C.B. (N.S.) 336.

Than it is said that a liability is created by virtue of Section 21 of the 8 and 9 Vict. Clause 16. In considering that question, it must be assumed that

there it no liability at common law. Consistently with the statement in the court that the Defendant subscribed to the undertaking, it must be taken

that the Defendant entered into a contract with some other persons on behalf of the company, or which was to ensure to their benefit when they

should be incorporated by a special Act of parliament. What is there to show that the Defendant covenanted with the company? It is said that that

is shown by Section 21 of the Companies Clauses Consolidation Act. Prima facie, and read by itself, that section would seem to make out the

proposition contended for by the Plaintiffs; and I was at first inclined to think that that gave the Plaintiffs a right to sue; but, upon consideration, it

appears to me that the proposition cannot be sustained There are three classes of cases tin which a liability may be established founded upon a

statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form

of remedy different from the remedy which evicted at common law; there, unless the statute contains words which expressly or by necessary

implication exclude the common law remedy, and the party suing has his election to pursue either that or the statutory remedy. The second class of

cases is, where the statute given the right to sue merely, but provides no particular form of remedy: there, the party can only proceed by action at

common law. But there is a third class, viz., where a liability and existing at common law is created by a statute which at the same time gives a

special and particular remedy for enforcing it. The present case falls within this latter class. If any liability at all exists, the remedy provided by the

statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the

statute must be adopted and adhered to.

The principle so enunciated by Willis J., were approved of in the House of Lords in Neville v. London Express Newspapers Ltd. (1919) A.C.

368 and by the Judicial Committee of the Privy Council in Secretary of State v. Mask and Co. 67 I.A. 222. This argument of Ramamurti Aiyar is

that the right conferred on a tenant by Section 3 of the Act and the corresponding liability imposed on a landlord falls under the second Class of

cases enunciated by Willes J., and therefore can be enforced by a separate suit in due course.

In my opinion, both the scheme of the Act and the language of Section 3 negative this contention. First I shall take the language of Section 3 of the

Act. I have already extracted that section and that section provides that every tenant shall on ejectment be entitled to be paid as compensation. In

my opinion the use of the expression on ejectment is significant. That expression itself refers to and implies some action in a Court of law for

recovery of possession of land from the tenant.

In Ganpat v. Trimbak 3 I.C. 51 it has been stated.

The word, ejected is derived from the Latin ejectus, which means thrown out, and the verb to eject is defined in the Student''s English Dictionary

as meaning to throw out; to cast forth; to thrust out; to discharge; to dismiss from an office; to turn out; to dispossess of land or estate; to drive

away; to expel. In the Enceyclopaedia of the Laws of England, the word ejectment is not explained, but one is referred to the head recovery of

land and one rinds under that head the term treated as the equivalent of recovery of land by legal process from at holder unwilling to give it up,

whilst in Wharton''s Law Lexicon ejectment is defined as the mixed action at common law to recover the possession of land, and damages and

costs for the wrongful withholding of the Land, and in Stroud''s Judicial Dictionary ejectment is said to generally mean an action for the recovery of

land.

In Websters New International Dictionary (1927 edition) at page 704, the meaning of the expression ejectment for the purpose of law is given

as follows:

A species of mixed action, which lies for the recovery of possession of real property, and damages and costs for the wrongful withholding of it;

also, the writ by which this action is commenced. The common law action of ejectment originated in the personal action of trespass de ejectione

fermae, or termac, lying originally only for an ejectment for a term of years; and became, with various fictions, the usual action for trying title to

land. In England and most of the United States the action is superseded by a simpler statutory action, also called ejectment.

The Dictionary of English Law by Earl Jowitt, volume I (Edition 1959) contains the following at page 697:

Ejectment, the mixed action at common law to recover the possession of land (which is real), and damages and costs for the wrongful withholding

of the land (which are personal). Formerly, an action brought for this purpose in any of the superior courts of common law was called an action of

ejectment, but now it is called an action for the recovery of land.

Mr. Ramamurti Aiyar hag not been able to bring to any notice any legislative practice where the expression ejectment has been used in the sense of

dispossession or eviction without recourse to Courts. On the other hand, the use of the same expression on ejectment in Sub-section (3) of Section

4 of the Act extracted by me already confirms my conclusion that ejectment contemplated by the Act is ejectment with the aid of the Courts. It is

significant to note that the expression on ejectment in Section 4(3) of the Act has been used at a stage subsequent to the passing of the decree.

Another significant feature to note is that the right to the payment of compensation on ejectment u/s 3 of the Act arises only, if compensation has

not already been paid to the tenant. Section 11 provides for the issuing of a notice prior to institution of the suit in ejectment or the filing of an

application u/s 41 of the presidency Small Cause Courts Act. At the stage of the notice itself, if the tenant finds that the compensation offered by

the landlord is adequate and reasonable, he may receive the compensation and surrender possession of the land thereby obviating recourse to

court of law. Where the tenant is not satisfied with the adequacy or correctness of the compensation or questions the right of the landlord to call

upon him to surrender possession of the land. naturally after notice the landlord will hare to take proceeding in a Court of law Sections 3 and 4

really assme that at the time when the landlord seeks to obtain possession of the land from the tenant, he has acquired a right to get possession by

the determination of the tenancy or by forfeiture incurred by the tenant or because of some other happening. Consequently, Section 3 of the Act

can come into operation only at the stage when the landlord having acquired a right to obtain possession of the land seeks to enforce that right in a

Court of law by instituting a suit for ejectment or filling an application u/s 41 of the Presidency Small Cause Courts Act, 1882. Therefore, in my

opinion, the language of Section 3 itself clearly indicates that the compensation provided for by that section can be claimed and recovered by the

tenant only in the course of a suit for ejectment instituted by the landlord or an application filed by the landlord u/s 41 of the Madras Presidency

Small Cause Courts Act 1882. Mr. Ramamurti Aiyar contends that if that is the interpretation of Section 3 of the Act, a landlord, without going to

a Court of law for having the tenant evicted and by taking the law into his own hands for obtaining possession of the land, can defeat the right of

the tenant to compensation, under this section. In my opinion, this argument proceeds on a fallacy. If the landlord takes the law Into his own hands

and recovers possession of the land from the tenant without recourse to a Court, the tenant certainly had the right u/s 9 of the Specific Relief Act,

1877, and now u/s 6 of the Specific Relief Act, 1963, to file a summary suit for recovery of possession without proving any title but only by

alleging that he was in possession and was dispossessed otherwise than in due course tit law by the landlord. If the tenant does not take any step

and merely keeps quiet, it will be only on the ground that he has acquiesced in the dispossession by the landlord and if so, he cannot have any

further complaint against the landlord. On the other hand, if he takes steps under the provisions mentioned above of the Specific Belief Act, he can

obtain possession and thereby compel the landlord to come to Court, for recovery of possession in which event his right to compensation is still

available to him.

Apart from the language of Section 3, the scheme of the Act itself shows that the payment of compensation has to be enforced only in the

course of a suit instituted by the landlord for ejectment or an application filed by the landlord u/s 41 of the Presidency Small Cause Courts Act,

1882. Section 4 (1) actually refers to the compensation payable u/s 3. Section 5(1) refers to the compensation awardable u/s 4. Not merely that.

The scheme of the Act gives an indication that the Act has made provision for a complete settlement of accounts between the landlord and the

tenant in proceedings under the Act itself. Sub-section 3 of Section 4 which I have already extracted imposed a duty on the Court, when it finds

that any sum of money is due by the tenant to the landlord for rent or otherwise in respect of the tenancy, to set off such amounts against the

amount of compensation payable by the landlord to the tenant and pass al decree or interim order declaring as the amount payable to the tenant on

ejectment only the amount remaining due to him after such set oil. Certainly this provision cannot be given effect to, if the tenant is enabled to file an

independent suit for the purpose, of claiming the compensation payable u/s 3. Section 13 of the Act which repeals or modifies the provisions of the

Transfer of Property Act, 1882 for the purpose of giving effect to the provisions of the Madras City ''Tenants'' and Protection Act, itself indicates

that the provisions contained in the Madras City ''Tenants'' Protection Act constitute a complete and self-contained code in itself and for the

purpose of enforcing the rights and liabilities created and imposed by that Act, recourse had to be had only to the provisions of the Act and not

elsewhere. In this view, the right to compensation declared by Section 3 of the Act is one that falls within the third class of cases enumerated by

(sic) J., in the Wolverhampton New Water Works Company v. Hawkesford (1859) 6 C.B. (N.S.) 336 and not under the second class.

The provisions of the Madras City Tenants'' Protection Act have similarity to the provision contained in the Malabar Compensation for Tenants

Improvements Act, 1899 (Madras Act I of 1900). Section 3(2) of that Act defines the word ejectment as including redemption or recovery of

possession of land mortgaged. Section 4 of that Act provided for as to what were persumed to be improvements. Section 5 of that Act declared

the right of a tenant on ejectment to compensation for improvements and also provided.

Every tenant to whom compensation is so due, shall notwithstanding the determination of the tenancy or the payment or tender of the mortgage

money (if any) be entitled to remain in possession until ejectment in execution of a decree or order of Court.

Section 6 of this Act corresponds to Section 4 of the Madras City Tenants'' Protection Act and provides that in a suit for ejectment instituted

against a tenant in which the Plaintiff succeeds and the Defendant establishes a claim for compensation due u/s 5 for improvements, the Court shall

ascertain as provided in Sections 9 to 18 the amount of the compensation and shall pass a decree declaring the amount so found due and ordering

that, on payment by the Plaintiff into Court of the amount so found due and also the mortgage money (if any) on or before such date within six

months from the date of the decree as the Court may fix the Defendant shall put the Plaintiff into possession of the land with the improvements

thereon. Section 6(2) of this Act corresponds to Section 4(3) of the Madras City Tenants'' Protection Act, imposing an obligation on the Court to

set off any money due by the tenant to the landlord for rent or otherwise in respect of tenancy. Dealing with these provisions of this Act, this Court

in Abdullah Koya v. Kallumpurath Kanaran 33 M.L.J. 463 stated:

I think the intention of the legislature is clear enough. It was intended that there should be complete and final settlement between the lessor or

morgagor and his lessee or mortgage� of all that is due from the former to the latter and from the latter to the former upto the date when the

transfer of possession takes place and that the subsequent re-opening of such accounts between parties whose legal relationship has ceased should

be avoided.

Further, Mr. Ramamurthi Aiyar, was not able to place before me any instance by way of any decision, reported or otherwise, where by an

independent suit apart from the proceedings in ejectment of the tenant taken by the landlord, the right to compensation conferred by Section 3 of

the Madras City ''Tenants'' Protection Act was sought to be enforced. Though the point itself has not arisen, certain observations of this Court and

the Supreme Court support the above conclusion of mine. In N. Vajrapuri Naidu and Another Vs. The New Theatres Carnatic Talkies Ltd., a

Bench of this Court which considered the constitutional validity of certain provisions of the Madras City Tenants'' Protection Act, particularly

Section 9, observed:

The contractual rights between the landlord and the tenant are not interfered with by the provisions of the Act till either a suit for ejectment is

instituted by the landlord or a decree for that purpose is obtained. On the happening of this contingency'' two rights are conferred upon the tenants:

first, payment of compensation for the building u/s 3 and, second, the right to get an order from the Court, directing the landlord to sell the land to

him on payment of its price u/s 9.

This decision of this Court was affirmed by then Supreme Court by a majority in Vijrapuri v. New Theatres Carnatic Talkies Limited (1965) 1

M.L.J. 47(S.C.). In the course of the majority judgment, in that decision, it was observed:

The scheme of the Act as extended by notification issued under Act 19 of 1955 is that when under a tenancy of open land within the municipal

town created before the date with effect from which the Act is extended, a building has been constructed by the tenant, and he is sued in

ejectment, by the landlord, he has the right on ejectment to be paid as compensation the value as at the date of the order of ejectment, of the

building constructed and trees planted by him, and he has in the alternative the right to claim and order from the Court that the land belonging to the

lessor shall be sold to him at the price fixed by the court according to the terms of the statute....

Section 12 of the Act consists of two parts: by the first part it enacts that the rights conferred upon the tenant under the Act may not be taken away

or limited by any contract made by a tenant. Such rights would, amongst others, include the right to claim compensation under Sections 3 and 4

and the right to purchase the land from the lessor by order of the Court u/s 9 by the second part of Section 12, the protection granted by the first

part does not avail the tenant in certain conditions.

The significant thing to note in the said observations is that the right to compensation is said to arise only when the landlord has instituted a suit in

ejectment and Sections 3 and 4 have been referred to together as the sections under which compensation is payable. For these reasons, I am of

the opinion that the right conferred by Section 3 of the Madras City Tenants'' Protection Act cannot be enforced by a tenant by the institution of an

independent suit for compensation and that right has to be worked out only in proceedings in ejectment instituted by that landlord, as provided for

in Sections 4 and 5 of the Act, with the obligation imposed on the Court to set off any amount due from the tenant to the landlord in respect of

tenancy against the compensation payable u/s 3. Under these circumstances, I hold that even on the assumption that the Madras City Tenants''

Protection Act, 1922, as amended by Madras Act XIX of 1955 applies to the case in question, the present suit of the Plaintiff based on the claim

to payment of compensation as provided for in Section 3 of the said Act is not maintainable.

The next question for consideration is whether the Plaintiff is entitled to any relief on the basis of a tort, namely, the wrongful and unlawful

dismantling of the superstructure and auctioning the debris. Mr. Ramamurti Aiyar, learned Counsel for the Plaintiff, contends that notwithstanding

the action taken by the first Defendant on February 12, 1953 and February 16, 1953, the ownership of the superstructure continued to remain

with the second Defendant and the first Defendant was aware of the interest which the Plaintiff had in the superstructure and yet the first Defendant

demolished the superstructure impairing the security of the Plaintiff. On the other hand, Mr. V.V. Raghavan, learned Counsel for the, first

Defendant, contends that after the first Defendant took possession of the demised premises and when the second Defendant did not remove the

superstructure before he was deprived of the possession of the demised premises, the first Defendant became the owner of the superstructure. The

further case of the learned Counsel is that the fact that the first Defendant in execution of the decree in Original Suit No. 614 of 1953 on the file of

the City Civil Court, Madras sought to bring the superstructure to sale on the basis that it belonged to the second Defendant did not prevent the

first Defendant from putting forward the contention that it itself was the owner of the superstructure, if that was the position in law. Alternatively,

the learned Counsel contends that even assuming that the second Defendant continued to be the owner of the superstructure, the demolition of the

superstructure by or under the authority of the first Defendant on January 12, 1961, cannot be said to be unlawful or wrongful so as to give a cause

of action to the Plaintiff in this behalf. For the purpose of the respective contentions, the learned Counsel on both sides relied on the provisions

contained in Section 108(h) of the Transfer of Property Act and the decisions relating thereto.

Prior to the passing of the Transfer of Property Act, the legal position in relation to the superstructure put up by one man on land belonging to

another came to be considered by a Full Bench of the Calcutta High Court in Thakoor Chunder Poramanick and Ors. v. Ramdhone

Bhuttacharjee. (1866) 6 Suth. W.R. 228. After referring to the provisions of the Hindu Law and Mohamedan Law in this behalf Sir Barnes

Peacok C.J. stated the position as follows:

We think it clear that, according to the usages and customs of this country, buildings and other such improvements made on land do not, by the

mere accident of their attachment to the soil, become the property of the owner of the soil; and we think it should be laid down as a general rule

that, if he who makes the improvement is not a mere trespasser, but is in possession under any bona fide title or claim of title, he is entitled either to

remove the materials, restoring the land to the state in which it was before the improvement was made, or to obtain compensation for the value of

the building if it is allowed to remain for the benefit of the owner of the soil, the option of taking to the building, or allowing the removal of the

material, remaining with the owner of the land in those cases in which the building is not taken down by the builder during the continuance of any

estate he may possess.

This principle was approved by the Judicial Committee of the Privy Council in Narayan Das Khettry v. Jatindranath Roy Chowdhury 54 I.A. 218.

In that case the predecessor of the Defendants was the proprietor of the holding in which a residential house was erected by the said predecessor

and the holding was sold in. December, 1919 under the provisions of Act XI of 1859 for arrears of Government revenue and the Plaintiff

purchased the holding at the sale and was issued a sale certificate on July 9, 1920, on August 2, 1920, a declaration was made under the

provisions of the Land Acquisition Act (I of 1894) in respect of the holding and on March 11, 1921, the Deputy Collector gave his award which

granted a compensation of Rs. 12,388 in respect of superstructures. The question was whether it was the Plaintiff who purchased the holding of

the Defendant''s predecessor who was the proprietor of the holding and who had put up the residential house that was entitled to compensation for

the structures. The Judicial Committee of the Privy Council in considering this question came to the conclusion that in the revenue sale in favour of

the Plaintiff the ownership of the building did not pass and only the ownership of the site passed. In this context with approval, the Judicial

Committee referred to the principle of law enunciated by Sir Barnes Peacockc J. and proceeded to state as follows:

The question then arises whether the Defendants are entitled to the compensation money which was awarded in respect of the building, or to what,

if any, portion of such money.

Their Lordships are not prepared to adopt the basis on which the learned Judges of the High Court acted in this respect. Their Lordships are of

opinion that, in order to arrive at a decision on this part of the case, it is necessary to consider what would have been the position and the

respective rights of the parties after the sale, if no acquisition had taken place under the Land Acquisition Act.

In such a case it would be reasonable that the parties should arrive at an arrangement as to what should be done, and their Lordships therefore

suggested that learned Counsel appearing for the Appellant and Respondents should inquire whether any arrangement could be made. Their

Lordships have been informed that it has mot been found possible to arrive at any arrangement or to agree upon a sum to be paid to the

Defendants, and their Lordships have, therefore, to deal with this part of the case.

It is difficult to lay down any principle upon which the compensation money awarded in respect of the house should be apportioned, but the

position seems to their Lordships to involve certain matters which should be taken into consideration by the Court which makes the apportionment.

After the sale the Plaintiff would have been the owner of the land and the Defendants would have been the owners of the house. The Plaintiff would

have had the right to call upon the Defendants to remove the house. If the Defendants did remove the house, the value to them would be small, and

in the ordinary course would be no more than what has been called demolition value, namely, the value of the materials less the cost of removal;

and if the Defendants did not remove the house they would loss it.

There is, however, the possibility that (if the land had not been acquired under the Land Acquisition Act) the owner of the land would not have

desired or required the removal of the home, and he might have been willing to pay to the Defendants, the owners of the house, more than the

more demolition value of the house. In other words, the owner of the land would be a possible purchaser, who might be willing to give more for the

house than any one else, as he was the owner of the land.

It is also to be remembered and taken into consideration that if the Defendants were called upon to remove the house they would be entitled to a

reasonable time for such removal, and that during such time the Plaintiff would be kept out of enjoyment of the land.

All the above, mentioned matters will have to be taken into consideration in assessing what portion of the compensation money awarded in respect

of the house should be paid to the Defendants.

Mr. Ramamurti Ayyar the learned Counsel fop the Plaintiff laid great stress on this decision of the Privy Council. However, in my opinion, that

decision does not help the learned Counsel in any way, and on the other hand if at all it may he said to be against his contention, in certain respects

in so far as the Privy Council pointed out that if the Defendant did remove the house, the value to them would be Only demolition value namely, the

value of the materials, less cost of removal and if he did not remove the house, the Defendant would lose it. But it must be pointed out that this

decision of the Privy Council did not deal with the case of a lease, which� on the date of the decision of the Privy Council was governed by the

provisions contained in the Transfer of Property Act.

Section 108(h) of the Transfer of Property Act before its amendment in 1929 was as follows:

The lessee may remove at any time during the continuance of the lease all things which he has attached to the earth; provided he leaves the

property in the state which he received it.

The scope of this clause came to be considered by a Pull Bench of this Court in Angammal v. Aslami Sahib ILR Mad. 710. In that case, White

C.J., took the view that after the determination of the lease, the tenant had no right either to remove the building or to demand compensation Miller

J. stated as follows:

As to the question of compensation, I think it is clear that it is not the law that, apart from estoppel or contract, the tenant has any right to demand

compensation for building left by him on the premises when he quits them whether those buildings were erected with the landlord''s consent or not.

Consent will only be of use to the tenant as leading to an estoppel or as evidencing an agreement.

Even if it can be presumed that the house was originally built with the knowledge of the then landlord, that will not be enough; and I venture to think

that recognition of ownership is of no effect at all; the law gives the tenant ownership during the term, and the landlord''s recognition of that will not

stop him or be evidence of an agreement.

There remains the question whether the tenant''s right of removal ceases with the expiration or determination of the tenancy or if not then, when.

This question is dealt with in Ismai Kani Rowthan v. Nazarali Sahib ILR Mad. 211. It is there pointed out that in Section 108(h) of the Transfer of

Property Act nothing is said as to the rights of parties in respect of such things after the determination of the lease, if they have not been already

removed by the tenant. The question may arise whether the tenant forfeits all his rights in such things if he has not so removed them; and in the

absence of any contract on that point, the question will have to be solved with reference to local usage, whatever may be the precise sense in

which that expression is used in Section 108. That last sentence no doubt suggests a misreading of the section by the learned Judge, but that does

not, I think, affect the following passage which, as I understand it, contains his solution of the question. According to the customary or common law

of the land as laid down in the case of Thakoor Chundker Paramanick (1866) 6 Suth. W.R. 228 the option will be with the lessor either to take

the building on paying compensation, or, if he is unwilling to pay compensation, to allow tenant to remove the building. And this solution seems to

be in accordance with the cases in India.

In as much then as the lessor''s right of election comes into operation only after the expiration or determination of the tenancy, for till then he has no

right to interfere it follows that, if he elects to allow the tenant to remove the buildings, he must allow him a reasonable time after the determination

of the tenancy, in which to effect the removal, and accordingly the Courts in India, as is pointed out by Sankaran Nair, J., have been tin the habit,

when making decrees in ejectment suits, of postponing execution for a period of sufficient duration to enable the tenant to remove his buildings, if

ho so desires, before surrendering possession and in Beni Ram v. Kundan Lal ILR All. 496 (P.C.) the Privy Council took a similar course and

making a decree for ejectment allowed the tenant to remove his buildings.

It is for the landlord to give a reasonable time, but the Courts Will not count the time against the tenant so long as the londlord''s right to demand

possession is in dispute. It would be inequitable to require the tenant to pull down his buildings before the question of his liability to give up

possession is decided. Hence the time is counted from the date of the decree.

But there is nothing in any of the cases, or in the texts of the Hindu and of the Muhammadan lawgivers cited in the cases, to suggest that, after

possession had been given up to the lessor, the lessee retains any right to remove the buildings or to demand compensation for them. If he has had

time after the determination of the lease to remove the buildings and has not done so before he gives up possession, then I am satisfied he has no

further right to do so. It is not necessary in this case to decide whether the buildings are to be held to be a gift in law to him in reversion, or to be

forfeited or abandoned, or whether it is only the right of recovery from the lessor that is barred. The result is the same so far as we are concerned

with it.

Sankaran Nair J. dissented and took a different view. According to the learned Judge, the tenant does no lose his right of property in the

improvements effected by him by reason of the expiration of the time allowed for removing the same and it is open to the landlord to remove the

building and sue the tenant for damages caused therein but if he elects to retain the building he is bound to pay compensation and Section 108(h) of

the Transfer of Property Act was only an enabling section and does not take away the rights pre-existing by virtue of the common law or usage of

the country. Mr. V.V. Raghavan, the learned Counsel for the first Defendant strongly relied on the judgment of White G.J. and Miller J., in this

case. In 1929 Section 108(1) of the Transfer of Property Act was amended and he amended section reads as follows:

The lessee may even after the determination of the lease remove, at any time whilst he is in possession of the property leased but not afterwards all

things which he has attached to the earth provided he leaves the property in the State in which he received it.

The High Court of Calcutta had to consider the effect of this amendment in Govinda Prosad Shah and Another Vs. Sreemutty Charusila Dassi,

, a case which involved the application of the unamended provision. Rankin C.J. after referring to the decision in Thakur Chand Paramanick case

(1866) 6 Suth. W.R. 228 and the controversy as to whether what it laid down constituted only a local usage of the city of Calcutta or a general

law of the land stated as follows:

Are the provisions of Clause (h) intended to be a complete statement or definition of the tenant s right to remove the fixtures or is the clause limited

to the question; What can the tenant do as regards fixtures during the term leaving his rights after the tenancy has ceased to be determined by a

consideration of the pre-existing case law? In my judgment, Clause (h) was intended to be a complete statement of the tenant''s right as regards

removal of fixtures.

The legislature did not think fit to approve the quicquid plantatur rule; it thought fit to enact a rule which might I think be intelligibly stated very

shortly in terms of English law, namely, that all fixtures were to be tenant''s fixtures. It did not intend that if the right given by Clause (h) had been

exhausted, the tenant was to have a further right to remove the fixture making out his right by the personal law or by the general rule of equity and

good conscience which had hitherto prevailed....

While the section is somewhat ambiguously worded, I consider that the intention of Clause (h) was to declare the law and to substitute for a law

dependent upon the personal law of the parties or general considerations of equity, ft definite principle.

The legislature did not, in my judgment intend to clear up the matter during the continuance of the term, and after the term to leave it, as under the

decision of Wilson, J., in Rassiklall''s case ILR Cal. 638 it remained a question of Hindu or Mohamedan law, according to the personal law of the

parties. Nor did it intend to leave open as regards any point of time the question whether in a Presidency town the rule of equity to be applied was

different from the rule to be applied in the mofussil. It established a principle inconsistent with the principle of quicquid plantatur by declaring this

tenant''s right to remove, but it limited and defined the tenant''s right to remove a right to be exercised during the term. In so doing it failed to notice

that cases of hardship might arise where a tenancy was suddenly determined e.g., by a mortgagee''s sale, by the action of Government in land

acquisition proceedings. Even in more ordinary cases a practice grew up to postpone execution under ejectment decrees in order to enable the

tenant to remove structures erected by him. The limit produced difficulties and these difficulties were the reason of the amendment of 1929. It is

clear that Clause 1(h) as amended negatives any right to remove after the time limited by the clause. The present case falls to be decided by the

unamended clause but in my judgment no new principle was introduced by the amendment. It extended the period within which the lessee could

remove beyond the continuance of the lease to any further time during which the lessee is in possession of the property leased but did nothing

more. After all the tenant''s right to remove is not two rights: (1) to remove during the term and (2) to remove after the term. In the original Clause

(h) I think the phrase during the continuance of the lease has a negative value that the right to remove was intended to be declared as qualified

thereby.

These observations of Rankin C.J. were followed by another Bench of the Calcutta High Court in, India Electric Works Ltd. Vs. Mrs. B.S.

Mantosh and Others, , There the learned Judges, after quoting the observations of Rankin C.J. extracted above, stated:

We respectfully agree with these observations, and this being the legal effect of Clause (h) of Section 108, Transfer of Property Act, there is no

room for invoking the rule in Thakoor Chunder Pramanick''s case (1) after the enactment of the Transfer of Property Act.

The learned Judges further proceeded to state:

The scope of Clause (h) of Section 108, Transfer of Property Act is limited and it only prevents, the lessee from enforcing the right of removal of

his fixtures from the demised land after the term of the lease or after he ceased to be in possession of the land. There is nothing in the clause to

support the contention of Mr. Mukherjee that the title of the Mantoshes to the shed had been lost or extinguished after the term of the lease by

operation of the clause.

The clause does not, say so either by express words or by necessary implication. It is not a clause of forfeiture and it is not declared therein that

after the expiry of the term of the lease or after the lessee has ceased to be in possession his title to the fixtures will be forfeited. There may be

stipulations in a lease to that effect, but the lease in the present case did not contain any stipulation for forfeiture of the shed on the expiry of the

term.

After referring to the decision of the Privy Council in Narayandas Khettry v. Jatindranath Roy Chodhury (1866) 6 Suth. W.R. 228 referred to

already, the learned Judges of the Calcutta High Court proceeded to point out that that was not a case u/s 108(h) of the Transfer of Property Act

and, therefore, it had no hearing on the question with which they were concerned. But the learned Judges observed:

No authority has been shown to us that the loss of the lessee''s right to enforce removal of any structure erected by him on the land leased as

against the lessor and loss or extinction of lessee''s title to it as against the whole world. He can own the same thing in law.

It cannot be said that one follows from the other. A lessee may lose his right to enforce the removal of the structure on the demised land after the

expiry of the term, but he can still remove it with the permission of the landlord and he will have a good title to it as against the whole world. He

can only lose his title to it by adverse possession, for the statutory period.

Strong reliance was placed on the above observations by Mr. Ramamurti Aiyar, learned Counsel for the| Plaintiff, in support of his contention that

notwithstanding the determination of the tenancy and notwithstanding the possession taken by the 1st Defendant) on February 16, 1953, the 2nd

Defendant continued to be the owner of the superstructure. On the other hand, Mr. V.V. Raghavan, learned Counsel for the first Defendant,

placed reliance on the following passage in Mulla''s Transfer of Property Act, fifth edition at page 694:

The amendment introduces no new principle but limits and defines the tenant''s right to remove as one to be exercised during the term and

negatives any right to remove when the tenant is not in possession. If he once quits possession, he may not return and the fixtures become the

property of the lessor.

This passage was quoted with approval by Black-well J. in Khimjee Thakarsee Vs. The Pioneer Fibre Co. Ltd., . The question regarding the

ownership of the superstructure subsequent to February 16, 1953 assumed importance before me, in view of the concession made by Mr.

Ramamarti Aiyar that if the second Defendant lost his, ownership to the superstructures and the superstructures became the property of the first

Defendant, he could not sustain his claim based on tort, since in that event he cannot contend that the demolition of the superstructure by the first

Defendant of its own property is unlawful or wrongful. In my opinion, the principles of the above decisions are not directly applicable to the facts of

this case, Section 108(h) of the Transfer ox Property Act applies only in the absence of a contract or local usage to the contrary. I have already

extracted covenant No. (xvi) of the lessee''s covenants in exhibit P-l. Thai covenant obliged the second Defendant to yield and, deliver up to the

lessors at the end or sooner determination of the term in good order and substantial repair and condition the leased premises except as to fair wear

and tear, and shall if required to do so by the lessors as their own expense and cost remove all buildings and erections from and off the said

premises and shall cause to be restored to their natural level state and condition all such parts of the said premises as shall, have, been

appropriated, and used for the purpose of the demise. In my opinion, this clause, qualifies the provisions of Section 108(h) of the Transfer of

Property Act in its application to the facts of this case. It is conceded before me by the learned Council for the first Defendant that there is no

evidence to show that, the first Defendant at any time required the second Defendant to remove at his own expense as cost the superstructure on

the demised land. The result of, this will, be that even after the determination of the tenancy and, after taking possession of the premises by the first

Defendant from the second Defendant, the second Defendant had a right to enter upon the land and remove the superstructure, as and when,

required to do so, by the first Defendant. Consequently, I am unable to hold that by the application of the provisions contained in Section 108(h) of

the Transfer of Property Act and in the light of the principles laid down by decided cases with reference thereto, the second, Defendant lost his

ownership to the superstructure and the first Defendant became the owner of the superstructure, on February 16, 1953.

The, further question that remains for consideration is whether by anything that happened subsequently the second Defendant lost that right. I

have already referred to the steps taken by the, first Defendant to obtain orders of the Court for the purpose of demolishing the superstructure on

the contention that subsequent to the determination of the tenancy, the only tight the second Defendant had was to the materials which constituted

the superstructure which he was entitled to remove and take. In Original Suit No. 614 of 1953 on the file of the City Civil Court, Madras, the

second Defendant was-admittedly a party and it is only in Execution Petition No. 1101 of 1957 in Original Suit No. 614 of 1953 that Execution

Appln. No. 2605 of 1957 and Execution, Appln. No. 905 of 1958 were filed. Again in Execution Petition No. 120 of 1951 in Summary Suit No.

1610 of 1950 (High Court, Bombay), which was a suit instituted against the second Defendant herein, the first Defendant intervened to have the

sale-proclamation amended, by putting forward the contention that the second Defendant was entitled only to the materials which constituted the

superstructure, which could be removed. In none of these proceedings the second Defendant took any steps to assert his right to superstructure

and his right to removes the same. Consequently in my opinion, even though the first Defendant had not required the second Defendant to remove

the superstructure before February 16, 1953, the steps taken by the first Defendant by way of these proceedings would constitute the first

Defendant requiring the second Defendant to remove the superstructure from the demised premises and his failure to do so will produce the

consequence flowing from Section 108(h) of the Transfer of Property Act. In other words though the second Defendant did not lose his ownership

to the superstructure on February 16, 1953 still by his inaction and failure to take steps to remove the superstructure, when the first Defendant

took certain proceedings mentioned above in Original Suit No. 614 of 1953 and execution Petition No. 120 of 1951 in Summary Suit No. 1610

of 1950 (High Court, Bombay), he lost that right and the first Defendant became the owner of the superstructure. With regard to this question, with

great respect, I am unable to agree with the views expressed by the learned Judges of the Calcutta High Court in India Electric Works Ltd. Vs.

Mrs. B.S. Mantosh and Others, . The observation of the Privy Council in Narayan Das Khettry v. Jatindranath Roy Cowdhury 54 I.A. 218,

namely that if the Defendant did not remove the house, he would lose it and also the observations of Miller J. in Angammal v. Aslami Sahib ILR

Mad. 710 will support this view of mine.

In this context, I may also refer to a decision of the Bombay High Court in Ramachandra Raghunath v. Vishnu Balaji ILR 44 Bom. 950, where

the learned Chief Justice without reference to the provisions contained in the Transfer of Property Act observed as follows:

The ordinary rule is that a tenant must give up vacant possession at the end of his term. If he build, he builds at his own risk, and at the end of the

term he can take away his building. If he leaves it there, it becomes the landlord''s property.

The tenant cannot enter upon the land to enjoy the superstructure or to remove it. He cannot call upon the landlord to pay compensation for the

structure or to remove it and to deliver up the materials or to pay their value. Under such circumstances at any rate, with reference to the claim of

the Plaintiff in this case, I cannot hold that the second Defendant continued to remain the owner of the superstructure so as to make its demolition

by the first Defendant unlawful or wrongful by invading any right of the second Defendant and derivatively of the Plaintiff.

Mr. Ramamurti Aiyar conceded that if the tenant did not remove the superstructure before he gave up. possession as contemplated by Section

108(h) of the Transfer of Property Act, he would not have any further right to enter upon the land to remove the superstructure or to call upon the

landlord either to pay compensation for the superstructure or to remove the superstructure and pay the value thereof but contended that

notwithstanding all these, the ownership continued to remain with the second Defendant. Even assuming nominally and technically the tenant

continued to be the owner of the superstructure such ownership is not of any practical value, as pointed out by Miller J. in Angammal v. Aslami

Sahib I.L.R.38 Mad. 710.

I shall next consider the question whether the demolition of the superstructure on January 12, 1961, by the first Defendant can be said to be

unlawful or wrongful even on the assumption that till the date the second Defendant continued to be the owner of the superstructure. Mr.

Ramamurti Aiyer argued in this behalf that the demolition of the superstructure by the first Defendant was contrary to the orders of the Court and

therefore it was necessarily wrongful and unlawful. Secondly, he contended that the first Defendant had no authority to demolish the superstructure

which belonged to the second Defendant in which the Plaintiff had interest, arid therefore, from the very nature of the case, the demolition of the

superstructure by the first Defendant was wrongful and unlawful. I am of opinion that these contentions are not sound. The first contention is based

upon the order of the City Civil Court, Madras, dated May 9, 1958 in Execution Appln. No. 905 of 1958 and the order of this Court elated

August 30, 1960, in Civil Revision Petition No. 2087 of 1958. As I pointed out already, Execution Appln. No. 905 of 1958 was filed by the first

Defendant herein for the purpose of appointing a Commissioner for demolition of the superstructure and the City Civil Court dismissed that

application observing that the first Defendant, if so desired, and on payment of Commissioner''s preliminary expenses at the first instance, the

superstructure as it stood on the land leased shall be sold, leaving the purchaser to agitate his rights for the leasehold rights in the land in separate

proceedings. The Civil Revision Petition preferred against that order was also dismissed by this Court. I am unable, to see how $he action of the

first Defendant in demolishing the superstructure can be said to be contrary to this order. All that can be said is that the City Civil Court declined to

grant the prayer of the first Defendant for appointment of a Commissioner to demolish the: superstructure and on the other hand pointed out that it

was open to the first Defendant to have a commissioner appointed for the purpose of selling the superstructure as it stood on the land. The fact that

the first Defendant did not have a commissioner appointed and instead demolished the superstructure itself or through its agents cannot be

considered to be contrary to the orders of the City Civil Court, Madras. As a matter of fact, the first Defendant was all along contending that the

lease having been validly determined and the lessor having taken possession of the leased premises, the only right the second Defendant had was to

remove the superstructure and therefore there was nothing surprising that the first Defendant did not want to allow a third party purchaser of the

superstructure as it stood on the land to come in, putting forward claims to enter into the premises in question. Therefore, in my view, the action of

the first Defendant in demolishing the superstructure and auctioning the materials cannot be said to be unlawful or wrongful in the sense that it was

opposed to any order of any Court.

The question still remains whether independent of any order of any Court, the action of the first Defendant can be said to be unlawful of

wrongful because it constituted demolition of the superstructure {belonging to the second Defendant. I have already pointed out that on the

determination of the lease on February 12, 1953, the first Defendant had a right to call upon the second Defendant to remove the superstructure at

his own expense and cost, and even though the first Defendant had not so called upon the second Defendant on or before February 16, 1953 the

steps taken by the first Defendant subsequently in execution proceedings in Original Suit No. 614 of 1953 on the file of the City Civil Court and in

Execution Petition No. 120 of 1951 on the file of this) Court in Summary Suit No. 1610 of 1950, High Court, Bombay would amount to calling

upon the second Defendant to remove the superstructure and the second Defendant who was a party to all those proceedings did not do so. At

the same time, I must point out that the Plaintiff herein did not take any steps to have either the superstructure sold as it stood on the land or to

have it removed himself, though in exhibit P-21, an affidavit filed in February 1956 on, behalf of the Plaintiff herein, it is stated that without

prejudice he was willing to agree for the sale of the Superstructure alone in case the first Defendant herein did not claim any rights of priority or

otherwise over the sale proceeds of the entire superstructure and the same was credited to his suit, namely, Original Suit No. 1034 of 1955. Apart

from this, there is nothing to show that the Plaintiff took any further proceedings pursuant to the final decree, dated July 1, 1957, in Original Suit

No. 1034 of 1955 in relation to the superstructure in question. Equally, the third Defendant herein also, though he contends that his alternate to

bring the superstructure to sale had failed because of the obstructive attitude adopted by the first Defendant herein, had not succeeded in bringing

the superstructure to sale. As a matter of fact, no evidence whatever had been placed before the Court that the third Defendant took any steps to

bring the superstructure to sale subsequent to January 27, 1953, to which date the sale was fixed by an earlier order of this Court. On the other

hand, the first Defendant herein, ever since April 1956 has been insisting that the superstructure should be demolished and in exhibit P-12 which is

an application. Interlocutory Application No. 363 of 1956 in Original Suit No. 1034 of 1955 on the file of the City Civil Court, Madras, the first

Defendant applied to the City Civil Court, Madras, to give necessary directions regarding demolition of the buildings on the land in the suit either to

permit the first Defendant herein to demolish the buildings, sell the material by auction and give an account to the Court of the monies received, less

expenses of demolition, or direct the right to demolish the buildings and sell the material be auctioned. In the affidavit filed in support of that

application, which is marked as exhibit P-13, the first Defendant; had stated that the first Defendant had undertaken development plans which

involved running a railway line over its land on which the buildings then stood and the buildings had to be demolished forthwith and the then existing

position was causing grave loss DO the first Defendant besides inconvenience.

Under these circumstances if neither the Plaintiff herein nor the second Defendant nor the thirds Defendant had taken any steps either to assert his

or their title to the superstructure as it stood on the land or to have the same removed, certainly, it cannot be said that the first Defendant was under

an obligation to stand by, without taking any steps ^o demolish the superstructure, particularly, when its claim was that the lease having been

determined, the only right the tenant (the second Defendant) had was to remove the superstructure and to restore the land to its original condition.

Thus it will be seen that the first Defendant having waited for nearly five years from 1956 and having taken several proceedings in Court to obtain

orders of Court to have the superstructure demolished and having failed to get such orders proceeded to demolish the superstructure itself and

auction the materials. In my opinion, in the context of the legal position that since the only right which the second Defendant had was to remove the

superstructure, which, in the language of the Privy Council in Narayan Das Khetty v. Jatindranath Roy Chowdhury 54 I.A. 218 will mean right to

the demolition value, the conduct of the first Defendant in demolishing the superstructure and auctioning the materials cannot be said to constitute a

wrongful or unlawful act so as to give rise to a cause of action in tort either to the second Defendant or to the Plaintiff derivatively. I cannot

conceive of any principle of law, and no such principle was brought to my notice, on the basis of which it can be contended and held that the first

Defendant was not under an obligation to allow the superstructure to remain on its land indefinitely, notwithstanding the failure on the part of the

second Defendant and the persons claiming under him to remove the same in spite of all the proceedings taken by the first Defendant as detailed

already. Under these circumstances I hold that the Plaintiff had no cause of action to proceed against the first Defendant in tort.

The question regarding the value of the superstructure was argued before me and D.W. 1 gave evidence in this behalf. In September 1954,

D.W. 1 acting on behalf of the third Defendant herein filed an affidavit on the file of this Court in Execution Petition No. 120 of 1951 in Summary

Suit No. 1610 of 1950, High Court, Bombay, which is marked as exhibit P-8. In paragraph 10 of that affidavit he has stated that he had inspected

the property and it being a superstructure put up on the foreshore on land of an area of 10,282 square feet belonging to Port Trust and covering an

area of about 7,000 and odd square feet and suitable for use as godowns was in his opinion worth only about Rs. 40,000, though the second

Defendant herein would put its value at more than Rs. 1,00,000 in his affidavit, dated February 13, 1951. He had further averred in that affidavit

that the Chairman, Madras Port Trust, claimed that the lease had been determined and that the godown alone could be sold and at all the prior

sales that were held with the market value fixed at Rs. 60,000. there were no bidders, and therefore he prayed that the market value of the

property to be sold might be fixed al Rs. 40,000. Before this Court, he stated in his evidence that he valued the property at the rate of Rs. 6 per

square feet in consultation with his clients in the line and he himself as Branch Manager of the Universal Fire and General Insurance Company had

experience in such matters. He also stated that the value he had given in his affidavit in September 1954 was the minimum value but it could be

more. He further stated that the value of Rs. 40,000 was in the year 1951 and between 1951 and 1961 there has been rise in the value and

therefore the worth of the superstructure may be double the amount, that is, about Rs. 80,000. Mr. Ramamurti Aiyar in his attempt to show that

the value of the superstructure would have been more elicited from the witness that he did not value the steel frames separately. In my opinion, this

is fallacious because no building can be valued at a. flat rate of Rs. 6 or Rs. 10 or any other amount per square feet without reference to and taking

into account all the materials that nave gone into the construction of the building. Mr. V.V. Raghavan, on the other hand, contended, that no

reliance can, be placed on this evidence of the witness since he had admitted that he had valued the superstructure at the rate of Rs. 6 per square

feet only on the advice of his clients in the line and he himself had no expert knowledge in this behalf. In view of the terms in which the value of the

superstructure has been given in exhibit P-8 and in view of the explanation given by D.W. 1 as to how he arrived at the value, I am unable to

accept his present version that Rs. 40,000 given by him was only the minimum value. It is equally impossible to accept the suggestion that between

1951 and 1961 it'' would have doubled in value and the superstructure would be worth Rs. 80,000 in 1961. It is one thing to say that to put up

such (superstructure in 1961 would cost twice as much it had cost in 1951. But it would be an entirely different thing to say that the superstructure

put up in 1951 whose value wag Rs. 40,000 in that year would have acquired double its value in 1961. Appreciation in value of land is

understandable, but a building can only depreciate in value. While stating that between 1951 and 1961 there was increase in the value and

therefore the building would be worth Rs. 80,000 in 1961 both the learned Counsel as well as the witness forgot to take note of the depreciation

that has to be allowed in respect of the building which was constructed in 1951. Even though there is substance in the contention of Mr. V.V.

Raghavan that not much reliance can be placed on the evidence of this witness since he had no personal competence or qualification, to value the

superstructure, still in the absence of any evidence to the contrary, I must accept the valuation of D.W. 1 as given in his affidavit in September

1954 as the proper value of the superstructure. This value of the superstructure was Rs. 40,000.

However, in view of the conclusion I have come to that the second Defendant was not entitled to the superstructure as it stood on the land and

the only right that he had in relation to the superstructure was to remove the same, the valuation of the materials on demolition assumes importance.

I have already referred to the fact that on January 12, 1961, the materials were sold in auction for Rs. 9,600. No argument was advanced before

me and no materials were placed before me to show that this was not the proper value of the materials. Though Ja exhibit P-27, a letter written by

the Counsel for the third Defendant to the first Defendant it was stated that the auction sale of the materials appeared to have been made without

notice even to the third Defendant. It was asserted in exhibit P-28, reply of the Counsel for the first Defendant to the Counsel for the third

Defendant, that the dismantled superstructure was sold by Messrs. Murray and Company, after notice to the third Defendant. No further argument

was advanced before me in this behalf alleging any irregularity in the auction of the dismantled superstructure or questioning the correctness of the

amount for which the materials were sold. Therefore, I must hold that the value of the dismantled material was Rs. 9,600 only.

The third Defendant had advanced a contention in his written statement that the Plaintiff having taken no steps to nave the mortgaged property

sold in pursuance of the final decree, dated July 1, 1957, his remedies under the decree in Original Suit No. 1034 of 1955 on the file of the City

Civil Court, Madras, have become barred and his rights under the decree had become extinguished on the expiry of three years from July 1, 1957.

Mr. L.V. Krishnaswami Iyer, learned Counsel for the third Defendant reiterated this contention before me. In reply to this, Mr. Ramamurti Iyer

relied on a Bench decision of this Court in Ammenumma Vs. Chelampiriyarath Beeviamma and Others, and contended that so long as the decree

obtained by him had not been satisfied by the sale of the property, he had a right to file subsequent suits on the mortgage. Mr. Ramamurti Aiyar

also relied on exhibit P-20, an affidavit sworn to on behalf of the third Defendant in February 1958, wherein it was averred that the Plaintiff herein

had field execution proceedings or the sale of the property and contended that if in February 1958, execution proceedings were pending, he had a

further period of three years and before the expiry of the said period of three years, the superstructure themselves were demolished on January 12,

1961, and he has filed the present suit within three years from that date, namely, on January 15, 1964, January 13 and January 14 (Monday and

Tuesday) being holidays. Mr. L.V. Krishnaswami Iyer pointed out that in the decision of this Court relied on by the learned Counsel for the Plaintiff

there was no final decree in the mortgage suit and in this case there has been a final decree on July 1, 1957, and, therefore, that decision has no

application to the present case. In my opinion, the argument of learned Counsel on both sides proceeds on a misapprehension. The present suit

filed by the Plaintiff does not seek to execute the decree which the Plaintiff obtained in Original Suit No. 1034 of 1955 on the lie of the City Civil

Court, Madras nor does it purport to be a suit on mortgages which the Plaintiff had obtained from the second Defendant. On the other hand, as

pointed out already by me, the present suit is based on two grounds, namely, (1) for the recovery of the statutory compensation to which the

second Defendant was alleged to have been entitled to u/s 3 of the Madras City Tenants'' Protection Act ; and (2) on the alternative ground that

the Plaintiff is entitled to recover compensation from the first Defendant in tort. In view of these circumstances I do not consider that there is any

substance in the contention of Mr. L.V. Krishnaswami Iyer. No other ground has been urged before me in support of the contention that the suit of

the Plaintiff was barred.

I have already referred to the fact that in his written statement the third Defendant has claimed that the actual value of the superstructure should

be assessed by this Court and the first Defendant should be held liable to make good the said amount, out of which the third Defendant is entitled

to be paid the balance of the amount due under his decree which as on February 22, 1964, amounted to Rs. 30,170.81, in priority to the Plaintiff.

He prayed for a decree accordingly and stated that he was willing to pay the Court fee, if any, he might be held liable to pay before any decree

was issued in his favour. The only ground the third Defendant has urged in support of this claim in his written statement is the fact that in execution

of the decree in Summary Suit No. 1610 of 1950, High Court, Bombay, he had attached the superstructure on the leased land. The learned

Counsel for the third Defendant has not placed before me any principle or authority on the basis of which he can get a decree in this suit on the

strength of the attachment effected by him in execution of his decree in Summary Suit No. 1610 of 1950. High Court, Bombay. Mr. L.V.

Krishnaswami Iyer, however, contended that in Execution Petition No. 81 of 1964 in Summary Suit No. 1610 of 1950, the first Defendant without

any protest had deposited Rs. 9,600 being the amount fetched by auctioning the dismantled materials and therefore he is entitled to that amount. In

my opinion, this again cannot be done in this suit and if he has any claim to that amount, he has to work out the same only in that execution petition

which is said to be still pending and not in this suit. Consequently, I hold that the third Defendant cannot get any relief in the present suit.

As a result of the above discussion of the evidence and the law, my findings on the several issues are as follows:

Issue No. 1.--The lease by the 1st Defendant in favour of the 2nd Defendant is not subsisting and could not be deemed to be subsisting in law.

As a matter of fact, as I already pointed out, no argument was advanced that the 1st Defendant was not competent to determine the tenancy by its

notice dated February 12, 1963, and the lease was not determined actually. Therefore, the question of the lease subsisting does not arise and the

same was not put in issue before me. Therefore, really speaking issue No. 1 does not arise out of the arguments advanced before me.

Issue No. 2.--This issue again is based on issue No. 1 and in view of my finding that that issue does not really arise, this issue also does not

arise. On the other hand, the argument before me in relation to the conduct of the 1st Defendant in demolishing the superstructure was presented

on the basis of the Claim that notwithstanding the determination of the tenancy the 2nd Defendant continued to be in possession of the premises till

the date when the Madras Act XIX of 1955 came into force and by virtue of the provisions contained in the City Tenants'' Protection Act, 1922,

as amended by Act XIX of 1955, the 2nd Defendant became a tenant entitled to the benefits conferred by the Act and the 2nd Defendant in any

event was the owner of the superstructure. I have reached the conclusion that the 2nd Defendant was not in possession of the premises subsequent

to February 16, 1953, and therefore Madras Act XIX of 1955 did not apply to the case and also that whether on that basis the 2nd Defendant

continued to be the owner of the superstructure or not, the demolition of the superstructure by the 1st Defendant cannot be said to be unlawful or

wrongful.

Issue No. 3.--No arguments were advanced before me in relation to the validity of the mortgages created by the 2nd Defendant in favour of

the Plaintiff and therefore the mortgages in favour of the Plaintiff are valid. However, in view of the conclusion I have reached that the present suit is

not one on a mortgage the question of the mortgages being enforceable against the 1st Defendant does not arise.

Issue No. 4.--The 2nd Defendant was not entitled to any relief under the City Tenants'' Protection Act and therefore the Plaintiff is not entitled

to take advantage of any such alleged relief and enforce the same and this suit of the Plaintiff purporting to enforce the alleged right to

compensation which the 2nd Defendant is said to have had u/s 3 of the Madras City Tenant''s Protection Act is not maintainable.

Issue No. 5.--In view of the concession of the parties that on February 12, 1953, the lease was validly determined, this issue does not arise.

Issue No. 6.--The 1st Defendant was entitled to remove the super structure.

Issue No. 7.--In view of my conclusion on the rights of the parties, this issue does not arise.

Issue No. 8.--The 1st Defendant is not liable in either to the 2nd Defendant or to the Plaintiff as hit mortgagee.

Issue No. 9.--The suit is not barred by limitation u/s 110 of the Madras Port Trust Act.

Issue No. 10.--As a cumulative effect of my findings on the above issue, it follows that the Plaintiff is not entitled to any relief in the present suit

and accordingly the suit is dismissed with costs of the la* Defendant.