As these two revision petitions are connected, they are dealt with together.
Palaniappa Cheetiar, the petitioner in C.R.P 502 of 1967 is a lessee of a vacant site of land of 21 cents in Bhavanal Village from the year 1947 and the lease in his favour was for a period of 16 years under Ex. A.1 and the original owner was one Peer Batcha Sahib. In 1948 he subleased a portion of the site to one Janakiram under Ex. A.2 Janakiram put up a structure and was paying the ground rent to the lessee, Palaniappa Cheitiar. In 1949 he subleased another portion of the lease hold property to one Baldev Prasad under Ex. A.3 The sub lessee, Janakiram after he put up the superstructure assigned his rights to Baldev Prasad in September 1948, as a result of that assignment the sublessee Baldev Prasad came to passess two vacant sites under Ex. A.2 and A.3 Beldev Prasad died in the year 1952 leaving behind his wife, Thulasi Bai and a daughter Parvathi Bai who are in occupation of the site leased out under Ex. A.2 and A.3 In October 1949 Peer Batcha Sahib, the owner of the property settled the property in favour of his near relations Babu sahib and Abdul Khader. The said Baba Sahib and Abdul Khader filed O.S 803 of 1958 for possession of the property with arrears of rent or damages for use and occupation, as against Palaniappa Chettier and his sub-lessee. The suit was decreed by the trial court and against the decree Palaniappa Chettiar and others filed separate appeals and in those appeals the decree of the trial court were costumed. There were two second appeals Palaniappa Chettiar v. Babu Sahib and Sheik Myteen Sahib(1) and Babu Sahib and another v. Palaniappa Chettia(2) to this court and it was held therein that Baba Sahib ndd Abdul Khader, the plaintiffs in the gait had no right to sue for possession and that they have to seek their remedies only under the provisions of the Madras Buildings (Lease and Rant Central) Act, 1960, and that the suit for possession was not maintainable. Thereafter Palaniappa Chettiar filed H.R.C.O.P 36 of 1964 before the Rent Controller for eviction against the sub-lessee and the grounds for eviction were that they have committed wilful default in payment of the monthly rests and that they had also denied his title and that they had also sublet the premises to third parties without his consent. The eviction petition was resisted by the legal representatives of Baldev Prasad and other sub-tenants contending that the denial of title was bona fide as Palaniappa Chettiar's right to possession was negatived as second appeal Nos. 1153 of 1960 and 1171 of 1961 by this court and that after that decision there was no relationship of landlord and tenant between Palaniappa Chettiar and the sub-lessees. The Rent Controller as well as the appellate authority held against the contention put forward by the sub-lessees and ordered eviction giving two months time for vacating the premises. There were two revision to the revisional authority and the revisions authority had held that the denial of title by the sub-lessees was not bona fide and that there exists the relationship of landlord and tenant between Palaniappa Chettiar and the sub-lessees. Before the revisional authority it was urged by the sublessees that the proceedings for eviction under the provisions of the Madras Buildings (Lease and Rent Control) Act 1960 would be without jurisdiction as the subject-matter of the sub-lease was only a vacant site and that it is only the civil court which has the jurisdiction to eject them. The learned District Judge however, felt that as it has been held in S.A 1153 of 1960 and 1171 of 1961 that the provisions of the Madras Buildings (Lease and Rent Control) Act, 1960 alone would apply and the suit for poresession was not maintainable the question whether the subsequent change in the case law would be a ground for reopening the former decision rendered in accordance with the case law then in force is a matter to be decided in these proceedings and that as that vital issue had not be urged before the authorities below a remind of the matter to the Rent Controller was justified with a direction that if he finds the question of jurisdiction in favour of the sub-lessees the petitions for eviction have to be dismissed and that if he finds otherwise the eviction petitions will have to be allowed. With those observations he remanded the matter to the Rent Controller for fresh disposal. As against the said decision of the revisional authority the above two revisions have been filed, one by the cab-lessees against the Blading of the courts below holding that there existed the relationship of landlord and tenant and their denial of title of their lessor was not bona fide and that the ground of eviction has been made out, and the other by Palaniappa Chettiar against the direction remitting the matter to the Rent Controller for fresh disposal after deciding the question of jurisdiction of the Rent Controller.
The only question that is urged by the learned counsel for the sub-lessees, the petitioners in C.R.P 1393 of 1967 is that the proceedings for eviction initiated by Palaniappa Chettiar diction provisions of the Rent Control Act in relation to a vacant site are without jurisdiction in view of the decision of the Supreme Court in Salai Mohammed v. J.M.S Charity wherein the earlier view of this court holding that the Rent Controller will have jurisdiction to entertian an eviction petition eves in respect of the vacant site if the vacant site had been built upon by the tenant has been overrated, and that notwithstanding the decision of this court in S.A 1153 of 1960 and 1171 of 1961 holding that the suit for possesion will not lie in a civil court and that the previsions of the Rent Control Act had to be invoked in the case, the Rent Controller had as jurisdiction to entertain the eviction petition against them. It is not in dispute that the original lease in favour of Palaniappa Chettiar was only in respect of a site and that the sublease under Ex. A-2 and A-3 were also of vacant sites and the liability of the sub-lessees is only to pay rent in respect of the vacant sites in view of tills admitted position as per the above decision of the Supreme Court, the Rent Controller will have so jurisdiction to entertain the eviction petition. But the question is whether the earlier decision of this court in S.A No. 1153 of 1960 and 1171 of 1961 as between the same parties will stand in the way of the sub-lessee questioning the jurisdiction of the Rent Controller. This questions has been considered by the court in Kathirvel v. Babu Sahib alias Sheik Mytheen Sahib and this court has held relying on the observations of the Supreme Court in Mathura Prasad Babjoo Jaiswal v. Dossibai N.B Jeejeebhoy(3) that a lease of a vacant site will not come within the provisions of the Madras Buildings (Lease and Rent Control) Act and that the question relating to the jurisdiction of the Rest Controller cannot be deemed to have been finally determined by an erroneous decision of the court and that such a question of jurisdiction cannot be burred by the principle of res judicata, and that if the decision of the court as regards jurisdiction of the Rent Controller in the previous proceeding is regarded as conclusive and binding between the parties, it will assume the states of a special rule of law applicable to the particular parties in question in relation to the jurisdiction of the Real Gentroller in derogation of the rule declared by the Legislature. Following the decision in the case I hold that the petitioner in C.R.P 1393 of 1967 are entitled to urge the question of jurisdiction of the Rent Controller notwithstanding the decision of this court in S.A No. 1153 of 1960 and 1171 of 1961 and that the Rent Controller has no jurisdiction to entertain an application for eviction in respect of a vacant site and that the eviction petition in this case filed by the respondent cannot be maintained. Hence that civil revision petition has to be allowed.
In view of the fact that I have held that the eviction petition is not maintainable, the order of the revisional authority remitting the matter to the Rent Controller for fresh disposal cannot be sustained I therefore set aside the entire order of the revisional authority as also the order of the Rent Controller and the appellate authority ordering eviction and dismiss the application for eviction filed before the Rent Controller, in view of the order passed in P. No. 1393 of 1967, C.R.P No. 502 if 1967 is dismissed as unnecssary. No costs in either of the cases.
V.C.S