Ramanujam, J.@mdashThe Appellant Devasthanam filed a suit against the Respondent for recovery of possession of the suit site after removal of the superstructure standing thereon. Its case was that It is the owner of the suit property a house-site situate in Mayuram municipal limits, that the site was taken on lease by one Venkatarama Naidu on 26th November 1954 for a rent of Rs. 7-8-0 and one bunch of coconuts for fasli from fasli 1363, that the said Venkatarama Naidu put up a superstructure in the suit site and was in enjoyment of the same until he sold the leasehold right along with the superstructure to the Defendant by a document, dated 21st October 1959, that it gave a notice terminating the tenancy and requiring the Defendant to remove the superstructure and give vacant possession of the same, to the Devasthanam, but that the Defendant has evaded to remove the superstructure and vacate the site by denying the title of the Devasthanam and also claiming benefits under the Madras City Tenants Protection Act as also the Madras Buildings (Lease and Rent Control) Act. The Defendant resisted the suit contending that his vendor, Venkatarama Naidu was the owner of the property and that he was not a lessee from the Devasthanam, that he had purchased the absolute rights of his vendor in the suit site along with the superstructure and that by such purchase he has become the owner of both the site and the superstructure, The Defendant also pleaded that in any event he is entitled to the benefits under the Madras City Tenants Protection Act and that he had effected improvements to the building of the value of Rs. 20,000. He also contended that the suit site is a minor inam and as the minor inam has been abolished under Madras Act XXX of 1963 the land stood vested with the Government and the Plaintiff''s title has been extinguished from the date of the notification in 1965.
2. On these rival contentions, the trial Court found that the lease deed dated 26th November 1954 executed by Venkatarama Naidu in favour of the Devasthanam is true and that it is not vitiated by any mistake or fraud as contended by the Defendant. It also held that since the Defendant''s vendor Venkatarama Naidu was only a lessee under the lease deed, dated 26th November 1954, neither Venkatarama Naidu nor the Defendant can claim permanent tenancy in respect of the suit site. It further held that the Defendant is not entitled to the benefits of the City Tenants Protection Act and that the Plaintiff''s title to the suit site has not been extinguished under the provisions of the Madras Act XXX of 1963. In that view, it decreed the Plaintiff''s suit for possession after removal of the superstructure by the Defendant.
3. On appeal by the defendant, the lower appellate Court has agreed substantially with the findings of the trial Court that the Defendant or his vendor was not entitled to claim permanent tenancy in respect of the suit lands and they are not entitled to the benefits under the Madras City Tenants Protection Act. It however held, disagreeing with the view taken by the trial Court, that the Plaintiff''s title has become extinguished by the provisions of Madras Act XXX of 1963. In this second appeal filed by the Devasthanam the only question that arises for consideration is as to whether the Devasthanam''s title to the suit site has become extinguished by the provisions of the Madras Act XXX of 1963.
4. The lower appellate Court has taken the view that u/s 13 of the Madras Act XXX of 1963, the owner, ship of the site merges with the ownership of the building and that as the Defendant is admittedly the owner of the building, the suit site also should vest in him. According to the lower appellate Court, Section 42 of the Act which recognises the inamdar''s right to the building sites should be read subject to the rights declared u/s 13, and u/s 13 there is vesting of the building as well as the land in the owner of the building. The question is whether the lower appellate Court has properly construed the provisions in Section 13 of the Act. The scope of Section 13 of Madras Act XXX of 1963 came up for consideration before a Division Bench of this Court in P.S. Veerappa Chettiar v. Thiruthuraipoondi Sri Bav Oushadheeswaraswami Devasthanam (Second Appeal No. 369 of 1966.) The learned Chief Justice, speaking for the Bench, expressed as follows:
On the other ground rested on Section 13, we are of opinion that the effect of a combined reading of the two Sub-sections of that Section 13 of Madras Act XXX of 1963 is that, unless the owner of the building is also the owner of the site, the building inclusive of the site will not vest in the owner of the building. In other words, the effect of Sub-section (2) is not to make a statutory transfer of the land to the owner of the building where it had not formerly belonged to him.
The said decision has been followed in Ramachandra Pillai and Anr. v. Shanmugham Pillai (Second Appeal No. 1139 of 1969 of this Court) wherein it has been held that the owner of the building does not become the owner of the site by virtue of Section 13(1) of the Act, that there Is no vesting of the site as part of the superstructure and that, in the absence of the Government asserting any title u/s 3 (b) of the Act, an inamdar who continues to be In constructive possession of the site even after the notified date would be entitled to recover possession from his tenant. Dealing with Section 15 of Madras Act XXVI of 1963 which Is similar to Section 13 of Madras Act XXX of 1963 with which we are concerned in this case, Ismail J., in Madras Pachaiappa''s Charitable Trust Board by Trustees v. Dakshinamoorthy Padayachi and Anr. (Second Appeal No. 1780 of 1969 of this Court) held that Section 15 will apply only when the person who owns the superstructure happens to be the owner of the site as well and that if the person who claims title happens to be the owner of the superstructure alone and the site belongs to another, the section will have no application. The learned Judge purported to follow the decision of an earlier Bench of this Court in Silambam Sri Chidambaraswami Devasthanam v. Duraiswami 84 L.W. 492 which was rendered in relation to Section 18 of Madras Act XXV of 1948 which corresponded to Section 15 of Madras Act XXVI of 1963. The principle laid down in the said Bench decision also applies here, for Section 18 of Madras Act XXVI of 1948 is similar to Section 13 of Madras Act XXX of 1963. In my view, the lower appellate Court is in error in holding that the Respondent has become entitled to the site as he is the owner of the superstructure. The result is, the second appeal is allowed with costs.
5. The learned Counsel for the Respondent, however, points out that the superstructure standing on the suit site which is quite valuable, if ordered to be removed, will become practically useless and that his interest will, therefore, be considerably prejudiced thereby. But this is a matter with which the Court is not concerned. It is always open to the Respondent to approach the Devasthanam for amicable arrangement with regard to the superstructure.
