JUDGMENT

This is an appeal from the decree of the City Civil Judge, Madras, dated 30th August 1934 in O.S No. 220 of 1933 on his file, a suit for ejecting a tenant and for recovering arrears of rent due by him. The plaintiff's case was that the defendant was a tenant of hers in occupation of a plot of land as well as tiled shed belonging to her as a monthly tenant bound to pay a rent of Rs. 15 a month. The defendant claimed that the buildings on the suit land were his, that he is entitled to protection under the Madras City Tenants' Protection Act, that the rent payable was only Rs. 4 a month and that all rent up to October 1932 had been paid. A number of issues were framed by the learned City Civil Judge but in his judgment he does not record findings on all the issues. He decided practically only two questions, viz., (1) whether the defendant is entitled to protection under the Madras City Tenants' Protection Act and if so whether the suit for ejectment must be dismissed in the absence of notice required by the Act and (2) the arrears of rent payable. He found the first question in the affirmative and dismissed the suit for ejectment. As regards the second point he passed a decree in favour of the plaintiff for Rs. 150-8-0 as arrears of rent. The present appeal is by the plaintiff.

The main question argued in this appeal is that the finding of the learned City Civil Judge that the defendant is entitled to the protection of the Act is wrong. It has also been contended that the learned City Civil Judge was wrong in assuming that the defendant was the present owner of the buildings on the suit land and that in the absence of any evidence to show that he is the owner it should have been found that he was not entitled to the benefits conferred by the Act. Unfortunately the case was decided by the lower Court on documentary evidence alone and no oral evidence was let in by either side, and the documentary evidence does not at all make it clear that the defendant is the owner of the buildings in question. There is no doubt a document of 1924, viz., Ex. III, which shows that he was in occupation of the suit land at the time but that document does not say that he was the owner of the superstructure on the land. The document is moreover inconsistent with a subsequent document of 1929 executed by the tenant Papiah Chettiar. i.e, the brother of the defendant, which proceeds on the basis that Papiah Chettiar was in enjoyment of the superstructure. The point must therefore be decided on the basis that the defendant has not proved he is the owner of the superstructure. This question was the subject-matter of issue 2 which runs as follows: “Is the defendant the absolute owner of the shed and the other building on the land as alleged in paragraph 2 of the written statement?” The burden of proving this issue lay on the defendant and he has not discharged that burden. There is no finding on the point by the learned Judge in the Court below but the evidence on record does not justify a finding in favour of the defendant on this point. If therefore it were necessary to decide the question of the defendant's ownership of the buildings before it could be decided whether the defendant was entitled to notice as required by S. 11 of the Madras City Tenants' Protection Act, that question would have to be remitted to the Court below for a finding after taking such evidence as might be adduced by the parties. I am however of opinion that it is not necessary to take this course, for, even on the assumption that the superstructures have not been proved to belong to the defendant the notice required by S. 11 of the Act was required in the present case and the claim for ejectment must fail for want of such notice. The question as to the ownership of the superstructure would have to be decided no doubt if the question for decision was whether the defendant was entitled to compensation in respect of it or whether he was entitled to make an application under S. 9 of the Act offering to purchase the land from the landlord. That is not the case here. The point to be decided is whether the notice required by S. 11 of the Act was required in this case to support the claim for ejectment. That will depend upon the question whether the defendant is a tenant within the meaning of the Act. That word is defined in the Act itself as follows: “Tenants” means tenant of land liable to pay rent on it, every other person deriving title from him, and includes persons who continue in possession after the termination of the tenancy. The definition does not require that the person who is a tenant under the Act should at all times continue to be the owner of the superstructure or building thereon, though the Act itself applies only to tenancies created before the Act in respect of land on which buildings were in existence. The continued existence of the buildings and the continued ownership of the buildings by the tenant are not necessary conditions of the tenant's right to get the benefit of S. 11 of the Act so long as he is a tenant as defined by the Act. In this case there can be no doubt as is seen from the documents—and the point was not seriously disputed—that the tenancy came into existence long before the Act, viz., in 1912 (vide Ex. B.). The superstructure must have been brought into existence before the date of Ex. I, i.e, before January 1915 (vide Ex. I). The land was used for the purpose of carrying on “business of firewood depot” and it would appear that this business was being carried on ever since 1912. This business obviously requires a shed or buildings and there is every reason to believe that after the business was started the shed or buildings must have continued to exist and there is no doubt that they still exist on the land. The plaintiff claims the buildings as her own on the strength of a certain stipulation contained in the rental agreement dated 30th October 1922 (Ex. E). In that rental agreement which is a registered document the tenants of whom the defendant's brother was one agree to vacate the building and the ground and deliver the same to the landlord at the end of the period of the lease, viz., six years. But the building referred to in this rental agreement was not one already in existence at the time or belonged to the landlord at that time. It was a building that was to be constructed by the tenants and one of the stipulations in the agreement was that after the expiry of the lease the tenant was to surrender possession of the building, apparently without compensation, to the landlord. Now if, as is very clear, these tenants were tenants entitled to the protection of the Act and were tenants under the Act, a stipulation of this kind whereby they would lose the benefit or protection given by the Act would be of no avail under S. 12 of the Act. S. 12 is to the following effect: Nothing in any contract made by a tenant shall take away or limit his rights under this Act, provided that nothing herein contained shall affect any stipulations made by the tenant in writing registered as to the erection of buildings in so far as they relate to buildings erected after the date of the contract. This proviso cannot possibly apply to the present case. In the first place, though the stipulation purports to relate to buildings to be erected after the date of the contract there can be no doubt that the buildings were already in existence and that the stipulation is now being attempted to be applied to buildings in existence before the date of the contract relied upon. Secondly, the proviso applies in my opinion only to stipulations regarding the erection of buildings, that is to say, stipulations restricting the right of the tenant to build such buildings as he likes either as regards the size, their cost, their situation, and so on, and it certainly cannot relate to stipulations cutting down or extinguishing altogether the right of the tenant to get compensation in respect of buildings built by him which is given to him by the Act. I am of opinion therefore that Ex. E, does in no way alter the nature of the tenancy or deprive the tenants of anything which but for that agreement they would have been entitled to under the Act; one of the benefits or rights conferred by the Act on the tenant as defined therein is conferred by S. 11 which requires that a notice of three months should be sent before a suit for ejectment is instituted. This is an important right and nothing in any contract even in writing registered can take away that right. That in my opinion is perfectly clear from the Act itself. The plaintiff herself has acknowledged both by receipt of rent from the defendant and also in her plaint itself that the defendant is a tenant of hers. Her case was that the tenancy related to the building as well as to the land and the defendant's case was that the tenancy was only of the land. The fact that the defendant is a tenant of the land is beyond doubt, for it is the admitted case of both parties that the land alone was originally let to tenants and is now held by the defendant under the plaintiff. The question is whether the defendant's tenancy is a tenancy to which the Act applies and there can be no doubt that the Act applies to that tenancy. The tenancy was only the continuation of a tenancy to which the Act applied when it came into force. The defendant is a person deriving or claiming to derive title from his brother who in turn derived title from the tenant under the lease of 1912. The plaintiff is really estopped by her own pleadings from contending that the defendant is not a tenant in respect of the land concerned in this suit.

The further point has been argued that the Act cannot have been intended to apply to tenancies of land created for the purpose of enabling the tenants to carry on a business such as running a fire-wood depot. The suggestion is that it must be limited to tenancies of dwelling houses and not to tenancies of business premises. Reliance was placed for this purpose on the words of the preamble according to which the reason for the enactment was the necessity of giving protection to tenants who in many parts of the City of Madras have constructed buildings on others' lands in the hope that they would not be evicted so long as they pay a fair rent for the land. It is argued that unless every defendant in a suit for ejectment who claims the protection of the Act proves that he or his predecessor-in-title when he constructed the building on another's land did entertain the hope that he would not be evicted so long as he paid a fair rent for the land he is not entitled to the protection of the Act, an argument which has only to be stated to be dismissed as not worthy of acceptance. The argument appears to have been pressed in Kannammal v. Kanakasabai Mudaliar but it did not find favour with the Bench before whom it was pressed. As Curgenven, J., observed, apart from the fact that there are enactments the provisions of which go beyond the preamble it was very doubtful whether any legislature could have intended to impose on Courts the difficult, if not impossible, duty of deciding on the presence of such an attitude of mind as a hope of not being evicted. And he added that it would in any degree be unusual to make such an attitude of mind a test of the possession of legal rights, and that it was more probable that the Act was passed in its wide terms because they were the only workable terms. No doubt the other learned Judge who heard the case and who ultimately agreed with the order made in the case felt considerable hesitation before he did so, but that hesitation was apparently due to the fact that he was of opinion that the actual provisions of the Act are far too wide and unqualified and that the provisions of S. 9 in particular partook of the nature of expropriation. I am unable to concur in such strictures of what the legislature has thought fit to enact. If the legislature has thought fit to give protection to tenants and the protection given extends to persons other than those whom a strict interpretation of the preamble would embrace it is not open to the Courts to question the right of the legislature to go beyond what was stated in the preamble as the reason for the legislation. The legislature may very well have done actually a little more than what it started to do. In any case, Kannammal v. Kanakasabai Mudaliar affords no support to the appellant's case. As the facts of that case were more or less exactly similar to those of the present one—the tenancy there also being one in respect of a firewood depot—it would follow that the Act does not cease to apply to the tenancy in the present case merely because the use to which the land is put was that of a firewood depot. I am unable to see anything in the preamble or in the Act from which an intention could be gathered of restricting the operation of the Act to tenancies of dwelling houses or an intention to exclude tenancies of business premises. The definition of the word ‘building’ found in the Act is certainly sufficient to include business premises as well as dwelling houses. It must be remembered in this connection that there are some business premises which are also used as dwelling houses and that there are some dwelling houses which are also used as business premises. The need for giving some protection against eviction to tenants in Madras could not have been intended to be confined only to those who were threatened with eviction from their homes. Eviction from one's place of business may be as serious a hardship as eviction from one's dwelling house, and I see no reason to suppose that the legislature intended to confine the protection of the Act to occupants of dwelling houses only. In my opinion the defendant who is admittedly a tenant of land from which he is sought to be evicted is a tenant within the meaning of the Act for the tenancy is one which came into existence before the Act and in other respects also the Act fully applied to it. The defendant is therefore entitled to get the notice prescribed in S. 11 of the Act before a suit in ejectment could be instituted. Such notice has not been admittedly given and on this ground alone the decree appealed from must be sustained and the appeal dismissed. The appellant must pay the costs of the respondent in this appeal.

N.R.RAppeal dismissed.