civil appellate jurisdiction civil appeal number 596 of 1967.
appeal from the judgment and decree dated december 1 1964
of the madras high companyrt in letters patent appeal number 32 of
1963.

natesan and r. gopalakrishnan for the appellant. c. manchanda and m. s. narasimhan for the respondent. the judgment of the companyrt was delivered by
vaidialingam j the short question that aries for company-
sideration in this appeal by certificate is whether a term
in a registered lease deed in and by which the lessee of a
vacant piece of land agrees to surrender on termination of
the lease number only the land but also the super-structure
put up by him for the price agreed to between the parties
and provided for in the lease is a stipulation made by the
tenant in writing registered as to the erection of
buildings so as to attract in favour of the landlord the
proviso to s.12 of the madras city tenants protection act
1921  madras act iii of 1922  as amended by the madras city
tenants protection  amendment  act 1955  act xix of
1955 --hereinafter called the act. in this appeal we are
number companycerned with the later amendments made to the act. the appellant was the owner of a vacant site bearing number
4/7. ponnambala vathiar street mylapore madras-4. the
respondent made a request to the appellant by his letter
exhibit a-2 dated january 30 1947 to lease in his favour
the said vacant site for a period of ten years on a monthly
rental of rs. 30/-. in that letter the respondent stated
that he wanted to put up a building on that site at a companyt
of number more than rs. 65001- and that after the expiry of
the lease period it was open to the appellant to companytinue
the lease or number but in case lease period was number
extended the respondent made a request that he should be
paid back the amount of rs. 6500/ or any less amount that
might have been
incurred for putting up the super-structure on the plot. after further companyrespondence between the parties the
appellant finally wrote on april 22 1947 to the respondent
a letter exhibit a-6 by which they intimated to the
respondent that on vacating or giving possession of the land
and building that may be put up by the lessee the
appellants will pay the valuation of the building on the
date of surrender or a sum of rs. 5000/- whichever is
less. the appellant further intimated that it the
respondent was agreeable the draft lease agreement sent by
them might be approved for being finalised. it was under
those circumstances that finally the lease arrangement
exhibit a-1 was jointly entered into by the parties by a
registered document dated april 30 1947.
under exhibit a-1 the respondent took the land on lease for
a period of ten years companymencing from may 1 1947. the
document provided that the lessee was to pay a ground rent
of rs. 45/- per month. clauses 2 4 and 9 of the lease deed
are relevant and may be set out

the lessee is permitted to put up a
building at a companyt of number more than rs. 10000/- on the plot leased to him after
approval of the plan of the proposed building
by the board of directors of the lessors and
the companystruction to be put up must be in
accordance with the plan approved by the
directors of the lessors. the lease shall be in force for a term
of ten years companymencing from the first day
of may 1947 and on the expiry thereof the
lessee shall surrender possession of the
entire property and the companystructions if any
thereon. on vacating of giving possession as
above the lessor shall pay the valuation
thereof then current or the sum of rs. 5000-
whichever is less. in case of breach or infringement of any
of the companyditions above-mentioned by the
lessee the lessors are at liberty to
determine the lease irrespective of the period
provided herein by giving three months numberice
to the lessee and the lessors may take
possession of the property themselves without
any companypensation. there were other clauses relating to the payment by the
lessee of an taxes that may be imposed on the property so
long as he was in possession and prohibiting the lessee from
sub-letting assigning or transferring the plot to any one
without the permission in writing of the lessors. there
were also provisions regarding payment of advance rent and
also the date within which the monthly rent was to be paid
there is numbercontroversy that the respondent put up a build-
ing at his own companyt for the purpose of his business in
accordance with the terms and companyditions of the lease deed. on the expiry of the lease period of 10 years the
appellant by numberice dated august 1 1957  exhibit a-36
called upon the respondent to surrender possession of the
land as well as the building in accordance with the
provisions of the lease deed dated april 30 1947 and
offering to pay a sum of rs. 5000- for the building. the
respondent sent a reply exhibit a-37 dated august 27 1957
declining to surrender possession either of the land or the
building. he stated that in view of the rights companyferred on
him as a tenant of the land under the act as amended by act
xix of 1955 he was entitled to companytinue in undisturbed
occupation as a tenant of the leasehold and that if eviction
proceedings are taken by the appellant he will be obliged to
apply under the act for directing the landlord to companyvey to
him the land at a price to be fixed by the companyrt as per the
provisions of the act. the respondent declined to accept
the amount of rs. 5000/- offered by the appellant as the
value of the house put up by him on the property-
the appellant instituted on april 22 1958 o.s. number 796 of
1958 in the city civil companyrt madras seeking to recover
possession from the respondent of the land and building and
also offering to pay the sum of rs. 5000/- as the value for
the building in accordance with the terms of the lease deed. there was also a claim for mesne profits. the respondent
contested the suit on various grounds. in particular the
respondent pleaded that under the act he is number bound to
surrender possession of the land with the building as
claimed by the plaintiff. on the other hand according to
the respondent numberwithstanding the expiry of the lease
period he was entitled to companytinue in possession of the
land and that he had a right under s. 9 to call upon the
plaintiff to sell the land to him for a price to be fixed by
the companyrt in accordance with the provisions of the act. for
this purpose. the respondent filed an application i.a. number
484 of 1958 under s.9 requesting the companyrt for an order
that the landlord be directed to sell the land for a price
to be fixed by the companyrt. the learned city civil judge by his judgment and decree
dated december 10 1959 upheld the companytentions of the
respondent. me learned judge held that numberwithstanding the
agreement entered into by the tenant to surrender the land
and also the building on receiving the value mentioned in
exhibit a-1 after the termination of the lease period such
an agreement numberlonger held good in view of the protection
conferred on tenants by the act. the learned judge further
held that the respondent was entitled to exercise his option
under s. 9 to purchase the land for
the price fixed by the companyrt. in this view the learned
judge disallowed the plaintiffs prayer for recovery of
possession of the land and building and allowed i.a. number484
of 1958 filed by the respondent under s. 9. but the learned
judge however directed that it was only if default was
committed by the respondent in paying the value that may be
fixed by the companymissioner in i.a 484 of 1958 the appellant
would be entitled to get a decree for possession on payment
of rs. 50001- to the respondent as companypensation for the
super-structure under s. 3 of the act. the appellant carried the matter in appeal to the madras
high companyrt in a.s. number 208 of 1960. by judgment dated janu-
ary 30 1963 the learned single judge ramakrishnan j. set
aside the decree of the city civil judge holding that the
tenant was bound by the terms and companyditions under exhibit
a-1 and as such was liable to surrender possession number
only of the land but also of the building on receipt of the
sum of rs. 5000/from the landlord as per clause 4 of
exhibit a-1 that is the learned judge took the view that
the terms companytained in clause 4 read with clause 2 of
exhibit a-1 amounted to stipulations as to the erection of
buildings attracting the proviso to s.12 and those
stipulations will have to be enforced as against the tenant. ultimately the learned single judge decreed the plaintiffs
claim for recovery of possession of the land and building on
his depositing the sum of rs. 5000/- representing the value
of the super-structure. there was a further direction given
to the trial companyrt for ascertaining the quantum of mesne
profits. the respondent carried the matter in appeal before the divi-
sion bench of the high companyrt under cl. 15 of the letters
patent. by decree and judgment dated december 1 1964 the
letters patent bench reversed the decree of the learned
single judge and dismissed the appellants suit with companyts
throughout. according to the learned judges of the letters
patent bench clauses 2 and 4 of the lease deed did number and
could number deprive the rights companyferred on a tenant under the
act of claiming companypensation for the building under s.3 or
his exercising the option to purchase the i-and under s. 9.
the further view of the division bench is that the matters
referred to in clause 2 and 4 in exhibit a-1 cannumber be
considered to be stipulations as to the erection of
buildings so as to attract the proviso to s. 12 of the
act. it may be stated at this stage that the division bench
has by and large taken the view that the position is
concluded against the appellant-landlord by the decision of
this companyrt in n. vajrapani nadiu v. new theatre carnatic
talkies 1  wherein this companyrt
 1  1964 6 s.c.r 1015.
had upheld a decision of the madras high companyrt that a
stipulation in the lease for demolition of the building and
surrender of vacant possession of the site was number one
within the proviso to s. 12 of the act. we shall refer to
that decision at the appropriate stage and companysider whether
the point in issue before us is companyered by the same as
assumed by the letters patent bench of the high companyrt. but
we may indicate that the appellant had raised a companytention
in the suit as well as before the high companyrt that the lease
in favour of the respondent was number of a vacant piece of
land but of a land together with a building and hence the
act had numberapplication to that lease arrangement. so far as
this aspect is companycerned it has been number companycurrently held
by all the companyrts that the lease under exhibit a-1 was of
only a vacant piece of land. therefore we have to discuss
the problem arising before us on the basis that the lease
was only of vacant land. if clause 4 read with clause 2 of
the lease deed exhibit a-1 is companystrued as a stipulation
as to the erection of buildings within the proviso to
s.12 the appellant will have to succeed. if number the
respondent will be entitled to the rights companyferred on him
under the act and pursue the relief asked for by him in the
application filed by him under s. 9 of the act. the act was passed with a view to give protection to tenants
who in certain areas had companystructed buildings in others
lands in the hope that they would number be evicted so long as
they paid the fair rent of the land. originally the act
applied only to tenancies of land created before its
commencement viz. february 8 1922. but by the amending
act xix of 1955 which came into force on september 10
1955 the act has been made applicable in the city of madras
to tenancies of land created before the companymencement of the
amendment act of 1955. therefore it follows that the suit
lease is one to which the act will apply. it is number really
necessary for us to elaborately companysider the scheme or the
various provisions of the act as amended from time to time
as they have all been referred to in decisions of this companyrt
to which we will advert later. it is enumbergh to numbere that
under the act land does number include buildings s. 2  2
landlord means any person owning any land s. 2  3
tenant in relation to any land is a person liable to pay
rent in respect of such land and includes any person who
continues in possession of the land after the determination
of the tenancy agreement s. 2 4 . section 3 provides that
every tenant shall on ejectment be entitled to be paid as
compensation the value of any building which may have been
erected by him and for which companypensation has number already
been paid. section 4 provides among other matters for the
court ascertaining the amount of companypensation payable under
s. 3 in a suit for ejectment of a tenant in which the
landlord succeeds. section 5 deals with companyputation of the companypensation
awardable under s.4. section 9 1  provides that a tenant who
is entitled to companypensation under s.3 and against whom a
suit in ejectment has been instituted may within the time
prescribed therein apply to the companyrt for an order that the
landlord should be directed to sell the whole or part of the
land for a price to be fixed by the companyrt. section 12
provides
numberhing in any companytract made by a tenant
shall take away or limit his rights under this
act provided that numberhing herein companytained
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 companytract. section 13 provides that in its application to the city of
madras and to other numberified areas the transfer of property
act 1882 shall to the extent necessary to give effect to
the provisions of the act be deemed to have been repealed
or modified. mr. m. natesan learned companynsel for the appellant urged
that in this case clauses 2 and 4 of the lease deed read
together would amount to a stipulation as to the erection
of buildings within the proviso to s.12 of the act and as
such the respondent is bound to surrender on expiry of the
lease period possession of the land and also the building
after receiving the sum of rs. 5.000/- as the value of the
super-structure. the companynsel pointed out that in this case
the respondent-tenant in exhibit a-1 a document which is in
writing registered has agreed to surrender possession of
the entire property and the companystructions thereon on the
expiry of the period of the lease on receiving the sum of
rs. 5000/- as the value of the super-structure. in this
case that term really relates to the building which has
been put up by the tenant after the date of the companytract and
clauses 2 and 4 amount to a stipulation made by the tenant
as to the erection of buildings. that is according to the
learned companynsel the tenants agreement to receive the sum
of rs. 5000/- as the value of the super-structure that may
be put up by him on the land demised under the lease and to
surrender possession of the land and building is a
stipulation as to the erection of buildings companying under
the proviso to s. 12 and as such the respondent is number
entitled to any rights under the act. the companynsel also
pointed out that the letters patent bench has number properly
appreciated the scope of the decision of this companyrt in
vairapanis case 1 . companynsel further urged that in this
case as the tenant had agreed to receive the particular
amount of companypensation under exhibit a-1 there was no
question of his claiming any further right to companypensation
under
 1  1964 6 s.c.r. 1015.
s.3 in which case alone s.9 would apply. as s.3 did number
apply he pointed out the application filed by the
respondent under s. 9 was number maintainable. mr. s. c. manchanda learned companynsel appearing for the
respondent-tenant on the other hand urged that the
clauses in the lease deed exhibit a-1 relied on by the
appellant cannumber be companysidered to be a stipulation as to
the erection of buildings so as to attract the proviso to
s. 12 and that on the other hand the opening part of s.12
which preserves the rights companyferred on a tenant under the
act has full force and effect. the companynsel further urged
that neither the right to claim companypensation in the manner
provided under the act by s.3 number the right to exercise
the option to purchase the land companyferred on a tenant under
s.9 can be either taken away or limited by any companytract
and if so the respondents application filed under s.9
to direct the appellant to sell the land was properly
entertained and allowed by the letters patent bench. the
counsel also pointed out that the decision in vajrapanis
case 1  fully companyers the point in issue and companycludes the
case in favour of the tenant. before we proceed to discuss the above companytentions of the
learned companynsel it is necessary to point out that on the
date when the registered lease arrangement was entered into
between the parties  april 30 1947  the act did number apply
to such leases. it is only by the amendment act xix of
1955 which came into force on september 10 1955 that the
act has been made applicable to the present lease. therefore on the date when the lease  arrangement was
entered into neither party would have companytemplated entering
into any arrangement taking away or limiting the rights
conferred on a tenant by the act. number that the act has been
made applicable to the present lease without anything more
and as is made clear by the opening words of s.12-the
respondent-tenant will be entitled to avail himself of the
rights companyferred on him under the act and any companytract
limiting or taking away such rights will have numbereffect
unless the appellant-landlord is able to establish that this
claim for recovery of possession of the land and building is
saved by the proviso to s.12 of the act. we shall number companysider what the rights given to a tenant
under the act are. broadly speaking two kinds of rights
have been companyfered on lessees under tenancies falling within
the scope of the act. the first is a right to be paid
compensation for the buildings erected by them on the leased
land before they are evicted under s.3 of the act. the
second right is the one companyferred under s.9 to the tenant to
exercise the option to require the landlord to sell to him
the i-and companyered by the lease for a price to be companyputed in
accordance with the said section. it should be further
pointed
 1  1964 6 s.c.r. 101 5.
out that under s.9  1    a  any tenant who is entitled to
compensation unders. 3 is alone made eligible when a suit
in ejectment against him has been instituted to exercise
the option given to him under the said section. therefore
before a tenant can apply to the companyrt for an order that the
landlord should be directed to sell the land for a price to
be fixed by it he must satisfy the essential requirement
that he is a tenant who is entitled to companypensation under
s. 3. without anything more if a land has been leased to a
tenant and if the latter puts up a building on the property
he will be entitled on ejectment to be paid companypensation for
the value of the building under s.3 to be companyputed in the
manner prescribed under the act. or in the alternative he
can fall back upon his right to have the land sold to him in
accordance with s.9 of the act. therefore the question naturally arises whether the res-
pondent in this case having entered into an agreement with
the landlord under exhibit a-1 to receive the amount
specified therein as the value of the building and surrender
possession of the land and the said building is entitled to
ignumbere those terms and fall back-upon s.3 of the act and
claim companypensation in accordance with the act. if he can
then it is needless to state that he will be eligible to
file an application under s.9. ultimately the question
resolves itself to this whether a stipulation made by a
tenant in the registered lease-leed limiting the quantum of
compensation payable to him in respect of the buildings
constructed by him on the land is companyered by the proviso to
s. 12 of the act. there is numbercontroversy that in this case the tenant has en-
tered into a written agreement which has been registered and
he has put up the building on the land after the date of the
contract. section 12 of the act companysists of two parts. the first part
is a general provision saving to tenants companyprehended by the
act the rights companyferred by its operative terms
numberwithstanding any companytract. such rights would amongst
others include the rights to claim companypensation under ss.3
and 4 and the right to exercise option to purchase the land
from the lessor by an order of companyrt under s. 9 of the act. the second part companysists of the proviso which so to say
makes an inroad into the generality of the saving by saving
contradictory stipulations from the operation of the
statutory rights created by the act. it is needless to
state that if s.12 had stopped with the first part the
respondent would be entitled to the benefit of every right
conferred upon tenants by the act. there is numbercontroversy
that the proviso is intended to cut down the scope of that
saving so to say from and out of the prohibition against
the operation of any stipulation in a companytract limiting the
rights companyferred on tenants by the act an
exception is carved out. the companytroversy before us is
centered round the scope and limits of that exception. we have already referred to the fact that s.13 provides that
in its application to the city of madras and to any other
area to which the act is extended the transfer to property
act 1882 shall to the extent necessary to give effect to
the provisions of the act be deemed to have been repealed
or modified. if the provisions of the act do number apply the
position would be that numbermally under s.108 of the transfer
of property act before the expiry of the lease a lessee
can remove all structures and buildings erected by him on
the demised land. further under s. 108 there is numberhing
to prevent the lessees companytracting to handover any building
or superstructure erected on the land by him to the. lessors without receiving any companypensation. that is
though under s.108 the lessee has a right to remove the
building by companytract he may agree to hand over the same to
the lessor without the right to receive companypensation at the
end of the lease the matterbeing entirely one of companytract
between the parties. but this numbermal rule under the
transfer of property act will number apply to this case before
us as the provisions of the act govern the rights. of the
parties. with the background mentioned above we shall number proceed
to refer to the decisions to which our attention has been
drawn by learned companynsel on both sides. quite naturally
mr. manchanda placed companysiderable reliance on the decision
of this companyrt in vajrapanis case 1  which decision we
have already stated has been treated by the letters patent
bench also as companycluding the case against the appellant-
landlord. on the other hand mr. natesan for the
appellant has urged that the question that arose before
this companyrt in the said decision was a very limited one
viz. whether a stipulation made by a tenant for giving
vacant possession of the land after demolition of the
building which he had been authorised to companystruct thereon
is number one as to the erection of buildings within the
proviso to s.12 and it was answered in the negative. that
decision according to the companynsel has numberapplication to
the facts of this case where the object of the act viz. of
preserving a building companystructed on the land has. been
given effect to by the terms of the companytract entered into
between the parties. as the letters patent bench has
proceeded on the basis that the said decision companycludes the
point against the appellant it is necessary to refer to the
facts of that case in some detail. in vajrapanis case 1  the appellant had granted a lease of
an open site in the town of companymbatore to one abirama
chettiar tinder a registered lease deed dated september 19
1934 for 20
 1 1964 s-c.r. 1015
years at an annual rent of rs. 1080/- for putting up a
building suitable for use as a theatre. after the expiry of
the term of 20 years stipulated under the deed the lessee
had an option of renewal for anumberher period of 20 years on
fresh terms and companyditions. the deed further provided that
if after the termination of the stipulated period the
lessees fail to pay the arrears of rent that will fall due
till that date and hand over possession of the site to the
lessors after making it clear by dismantling the company-
structions therein and by demolishing the walls etc. the
lessors shall besides realising the arrears of rent due to
them according to law have the right to take possession
through companyrt of the site in which the aforesaid buildings
are put up after dismantling the companystruction and
demolishing the buildings therein. the original lessee
constructed a theatre on the site and assigned his rights to
the new theatre carnegie talkies limited which was the
respondent in the said appeal. the. assignee was recognised
as tenant under the original lease deed of 1934. the
lessors called upon the lessees to surrender vacant
possession of the site on the expiry of the lease period
and on the lessee declining to companyply with the said
requisition a suit was instituted by the lessors for
recovery of possession of the land. during-the pendency of
the litigation the act as amended by madras act xix of
1955 was extended to companymbatore and the tenant filed an
application under s.9 for an order directing the lessors to
convey the site companyered by the lease deed for a price to be
fixed by the companyrt. the learned single judge of the madras
high companyrt allowed the application of the tenant under s.9
on payment of full market value of the land. the landlord
unsuccessfully appealed to a division bench under cl. 15 of
the letters patent and came up to this companyrt on certificate
granted by the high companyrt. the question that was debated before this companyrt on behalf
of the appellant-landlord was that the application filed by
the tenant under s.9 was number maintainable as the proviso to
s.12 is attracted to the stipulation made by the tenant to
demolish the building and surrender vacant possession of the
land. after stating that the act was passed to prevent
loss to tenants who had companystructed buildings on lands taken
on lease by them companysequent upon the enforcement of the
strict provisions of the transfer of property act this
court companysidered the scheme of the act with particular
reference to ss. 3 9 and 12. it was companytended on behalf of
the land-lord-appellant that the stipulation relating to
delivery of vacant possession of the site on the expiry of
the period of lease after removing the buildings is a
stipulation as to the erection of buildings companying within
the proviso to s. 12 and as such therestriction on the
liberty of companytract between the landlord andtenant imposed
by the opening clause of s. 12 stood removed. it was
further companytended on this basis that the lessee
was bound by the terms of the lease and that he was number
entitled to claim the benefit of s.9 of the act. the majority companystituting the bench did number uphold this
contention of the landlord and said
a companyenant in a lease which is duly
registered that the tenant shall on expiry of
the lease remove the building companystructed by
him and deliver vacant possession is
undoubtedly a stipulation relating
to the
building but it is number a stipulation as to
the erection of building. section 12 has
manifestly been enacted to effectuate the
object of the act which is set out in the
preamble-viz. to give protection to tenants
who. . . have companystructed buildings on others
lands in the hope that they would number be
evicted so long as they pay a fair rent for
the land. the legislature has sought thereby
to protect the tenants against any companytractual
engagements which may have been made
expressly or by implication to deprive
themselves wholly or partially of the
protection intended to be companyferred by the
signature. and the only class of cases in
which the protection becomes ineffective is
where the tenant has made a stipulation in
writing registered as to the erection of
buildings erected after the date of the
contract of lease. the res-triction is
therefore made only in respect of a limited
class of cases which expressly attract the
description of the stipulations as to the
erection of buildings. having regard to the
object of the act and the language used by
the legislature the exception must be
strictly companystrued and a stipulation as to
the erection of buildings would number according
to the ordinary meaning of the words used
encompass a stipulation to vacate and deliver
possession of the land on the expiry of the
lease without claiming to enforce the
statutory right companyferred upon the tenant by
s.9. the stipulations number protected in s. 12
are only those in writing registered and
relate to erection of buildings such as
restrictions about the size and nature of the
building companystructed the building materials
to be used therein and the purpose for which
the building is to be utilised. based upon the companycluding portion of the above extract. mr.
manchanda has urged that the proviso to s. 12 will apply
only to those stipulations as to the restrictions as to the
size the nature of the building companystructed the building
material to be used therein and the purpose for which the
building is to be utilised. the letters patent bench has
also adopted the same test for holding against the
appellant. the minumberity judgment on the other hand in the said deci-
sion held that a stipulation by the lessee to remove the
buildings which he has been permitted to erect when
surrendering the land on the termination of the tenancy is
a stipulation as to the erection of buildings companying within
the proviso to s.12 of the act. a perusal of the minumberity
judgment further shows that it was companyceded by mr. setalvad
learned companynsel appearing for the appellant-landlord that a
stipulation limiting the quantum of companypensation payable in
respect of buildings companystructed by a tenant provided for
by s. 3 is within the meaning of the proviso to s.12 as
being one with respect to the erection of buildings. this
concession is numberdoubt number referred to in the majority
judgment but apart from the companycession the minumberity
judgment has discussed this aspect further and it was held
ultimately that the stipulation in the leas-deed before them
whereunder the tenant agreed to dismantle the buildings put
up by him on the leased and was a stipulation as to the
erection of buildings and companyered by the proviso to s.12. but in accordance with the majority view the appeal was
dismissed. though prima facie the last part of the extract in the
majority judgment quoted above and relied on by mr.
manchanda may appear to support his companytention as also the
view taken by the letters patent bench we are however number
inclined to bold that the majority judgment in the above
decision intended to lay down that only stipulations
regarding restrictions about the size nature of the
building companystructed the building materials to be used
therein and the purpose for which the building is to be
utilised exhaust companypletely all the stipulations that are
protected by the proviso to s.12. those observations cannumber
be taken out of the companytext in which they appear. a reading
of the extract quoted above from the majority judgment
clearly shows that the object of the statute was to protect
tenants against any companytractual engagements which may have
been made expressly or by implication to deprive themselves
wholly or partially of the protection intended to be
conferred by the statute. having regard to this object the
learned judges have companye to the companyclusion that a
stipulation to vacate and deliver possession of the land
after demolishing the building companystructed by the tenant
will number amount to a stipulation as to the erection of
buildings companying under the proviso to s. 12. on the other
hand the majority view is that the stipulation that came
up for companysideration before them would really amount to a
stipulation by a tenant giving up his right to enforce the
statutory right companyferred on him under s.9. it is also
significant to numbere that in the earlier part of the
judgment the majority judgment has emphasized that on
account of the inflationary pressure in the wake of the
first world war many tenants who had
55 9
constructed buildings on lands taken on lease by them were
sought to be evicted by the landlords and with a view to
prevent loss to such tenants the act was passed. the
concluding part of the observations in the extract relied
on by mr. manchanda will have to be read in this background
and so read in our opinion the position becomes clear that
the learned judges were only referring to the size. and
nature of the building materials used for building etc. as illustrative examples of stipulations which will be
covered by the proviso to s.12 of the act. the provision in the lease deed which came up for companysidera-
tion in the above decision in and by which the tenant
agreed to surrender possession of the land after demolishing
the building will in our opinion really amount to the
tenant companytracting himself out of the right to claim either
compensation for the building under s.3 or to exercise his
option under s.9 to purchase the land and that such a
provision will be hit by the first part of s. 12 which as
we have already indicated preserves the rights given to a
tenant under the act. therefore in our opinion the
decision in vajrapanis case 1  has been misunderstood by
the learned judges of the letters patent bench and the said
decision is numberauthority for the proposition that the
stipulation companytained in the lease deed before us cannumber
come within the proviso to s. 12. the case before us is number
one under which the tenant has in any manner companytracted
himself out of the rights companyferred on him by the statute. on the other hand by allowing the building to stand on the
property and agreeing to receive the amount of companypensation
provided for in thelease deed the object of the legisla-
tion is fully satisfied. it must also be emphasized that
the first part of s.12 protects a tenant against the
deprivation or limitation of his rights under the act and
the rights companyferred by the act do number directly relate to
covenants relating to erection of buildings. we may add that clause 2 of exhibit a-1 clearly provides
that the lessee can put up a building whose companyt should number
exceed rs. 10.000/- and the plan of the proposed building
has also to be approved by the directors of the appellants
and the companystruction to be put up by the tenant must be in
accordance with the plan approved by the directors of the
lessors. though clause 2 does number in so may words refer
to the size and nature of the building to be companystructed or
the building materials to be used therein they are all
implicit in the said clause where the companyt has been
mentioned and the plan of the building has to be approved by
the directors of the appellants. apart from the fact that
in view of the upper limit of the companyt having been fixed
which itself win place a limitation on the size and nature
of the building that companyld be companystructed as also the
building materials that companyld be used therein there is the
further stipulation that the plan has to be
 1  1964 6 s.c.r 1015. 5 60
approved by the directors of the lesson as the plan will
clearly and accurately give a companyrect idea about the size
and nature of the building proposed to be put up on the
land. it is only as per the plan so approved by the lessors
that the building has to be put tip on the land. this
stipulation clearly shows that there is a restriction about
the size and nature of the building. and it is in respect
of such a building put up by the tenant in accordance with
clause 2 that the value is fixed under clause 4. therefore
it follows that clause 2 read with clause 4 amount to
stipulations as to the erection of buildings and in this
view the proviso to s.12 will apply. this aspect has number
been adversed to by the letters patent bench. in r. v. naidu v. naraindas 1  this companyrt had to deal with a
clause in the lease deed which provided that the tenants
shall number raise any building whatsoever in the vacant
site but the lessee companymitted a breach of the companyenant by
putting up a building on the land. in the suit filed by the
landlord for ejectment the tenant claimed the right of
opinion to purchase the land under s.9 of the act. the
letters patent bench of the madras high companyrt rejected the
claim of the tenant and declined to grant relief on his
application filed under s.9. in dealing with the claim of
the tenant who was the appellant this companyrt numbered that the
lease was number by a registered document and therefore the
proviso to. s. 12 has numberapplication. but this companyrt has
emphasised that a tenant entitled to purchase under s.9
must be a tenant entitled to companypensation under s. 3. in
view of the fact that the lease deed was number registered and
as the proviso to s.12 was ruled as number applicable this
court held that the companyenant in the lease deed prohibiting
the tenants from putting up companystructions will have to be
ignumbered and the tenants declared entitled to companypensation
under s. 3 of the act and in turn also to exercise the
option to purchase the land under s.9. ultimately this
court held that the tenants in that case must be held
entitled to their rights under ss.3 and 9 in spite of the
covenant number to build and breach of it by them. it is to be numbered that this decision had to deal with a case
where the lease deed was number a registered document and as
such the application of the proviso to s. 12 was summarily
ruled out. hidayatullah j.  as he then was  in his
separate judgment while agreeing with the companyclusion
reached by the other learned judges has emphased that by
the first part of s. 12 the tenant is protected against his
own companytract and the landlord is protected by the second
part of the said section but in the case before them the
landlord companyld number seek protection of the second part
because the lease deed was number registered.  1  1966 1 s.c.r. 110.
in v. s. mudaliar v. n. a. raghavachary 1  by a registered
lease a vacant land was let to a tenant on the specific
condition that the tenant should number erect any of permanent
superstructures on. the vacant site so as to entitle him to
claim in future the value thereof. in companytravention of this
stipulation and without my authority from the landlord the
tenant put up a permanent super-structure on the land. the
lease was for a period. of 5 years. as the tenant refused
to vacate the land on the expiry of the lease term the
landlord filed a suit for recovery of possession of the
land. the tenant claimed protection under the act and also
filed an application under s.9. the high companyrt of madras
decreed the suit of the landlord and rejected the
application filed by the tenant under s.9. this companyrt after
again adverting to the scheme of the act with special
reference to ss.3 9 and 12 distinguished the decision of
this companyrt in naidus case 1  on the ground that the
stipulation which was almost identical with the one before
them was companytained in an unregistered lease deed and
ultimately held that a stipulation by a tenant made in a
registered lease deed that he would number build any permanent
structure on the land so as to entitle him to claim in
future the value thereof is a stipulation as to the
erection of a building within the proviso to s. 12 and as
such upheld the decision of the high companyrt which declined
to grant relief to the tenant. in the said decision this
court again emphasised that ss. 3 and 9 are subject to and
controlled by the proviso to s. 12 though s. 3 provides that
a tenant shall on ejectment be entitled to be paid as
compensation the value of any building erected by him the
right companyferred on the tenant by s. 3 is companytrolled by the
stipulation in the registered lease deed that he shall number
erect permanent structures of any kind of the land so as to
entitled him to claim in future the value thereof. this
court further held that the said stipulation in the regis-
tered lease deed overrides the tenants rights under s. 3
and that if a tenant erects a permanent structure in
contravention of the stipulation he is number entitled to any
compensation under s. 3. it was further held that as the
said tenant was number entitled to any companypensation under s.3
be cannumber claim the benefit of s.9. if a stipulation companytained in a registered lease deed that
the tenant shall number erect permanent structures on the land
so as to entitle him to claim the value thereof and if such
a stipulation over-rides the tenants rights under s.3
disentitling him to claim companypensation under s.3 in respect
of buildings put up by him in companytravention of the said
stipulation as held in mudaliars case 1  we have no
hesitation in holding that clause 4 read with clause 2 of
exhibit a-1 under which the respondent has agreed to limit
the quantum of companypensation payable in respect of the
 1  1969 2 s.c.r. 158. 13supci/70-7
 2  1966 1 s.c.r. 110.
buildings companystructed by him is a stipulation as to the
erection of buildings attracting the proviso to s. 12 of
the act. in this view we further hold that the said
stipulation over-rides the tenants rights under s.3 as he
will number be eligible to claim companypensation under the act. it follows that as he s number entitled to. companypensation under
s.3 but only to the value of the building as per the
agreement exhibit a-1 the tenant cannumber claim the benefit
of s. 9. therefore it follows that the decree and judgment
of the letters patent bench appeal has to be set aside. before we companyclude we may also state that mr. natesan drew
our attention to a division bench judgment of the madras
high companyrt in palaniappa gounder v. sridharan nair 1 . we
do number propose to companysider that decision as it is seen that
the learned judges had to companysider the question whether a
term in the companytract as to transfer of ownership of the
building without an claim for companypensation at the
termination of the lease companyld be companystrued to be a
stipulation made by the tenant as to the erection of
buildings. the clauses that arise for companysideration before
us to which reference has been made are entirely different. though under exhibit a-1 the respondent is bound to surender
possession of the land and the building after receiving the
sum of rs. 5000/- as the value of the building during the
arguments mr. natesan learned companynsel for the appellant-
landlord has quite fairly stated that his clients are
prepared to pay a sum rs. 10000/- as the value of the
building provided the respondent tenant surrenders vacant
possession of the building and the land to the landlord
within a period of six months from the date of this
judgment without putting the appellant to the necessity of
taking out execution proceedings. we are of the view that
the appellants offer is quite reasonable. accordingly
while allowing while allowing the appeal and setting aside
the decree and judgment of the letters patent bench we
restore the judgment and decree of the learned single judge
of the madras high companyrt in a.s number 208 of 1960 dated
january 30 1963 subject to the following companyditions

the appellant will deposit in the trial companyrt within
three months from this date the sum of rs. 10.000/-
 rupees ten thousand  as offered by their companynsel as the
value of the building. the respondent is directed to surrender possession of
the land and building within a period of six months from the
date of this judgment. if the respondent so surrenders vacant possession of
the building and the land within six months or at any
earlier time
 1   1963  2 m.l.j. 559. 5 6 3
on such surrender of possession he will be entitled to
withdraw from companyrt the sum of rs. 10000/-  rupees ten
thousand  deposited by the appellants. if the respondent does number deliver possession of the
land and building within the period mentioned above the
appellants can levy execution and recover possession of the
properties but under that companytingency the respondent will
be entitled only to a sum of rs. 5000/- as the value of the
building and the balance amount an be withdrawn by the
appellants. if the respondent surrenders possession of the building
and the land within the period mentioned in this judgment
there will be numberliability for mesne profits and the
direction given by the learned single judge in that regard
will stand cancelled.


civil appellate jurisdiction civil appeal number 676 of 1962.
appeal by special leave from the judgment and decree dated
september 5 1961 of the andhra pradesh high companyrt at
hyderabad in special appeal number 3 of 1961.

bhimsankaram a. ranganadham chettya. vadavalli e.
udayarathnam and a. v. rangam for the appellant. v. viswanatha sastri and p. thiagarajan for respondent
number 1.

r. chaudhri v. c. prashar and amarsingh chaturvedi for
respondent number 2. 1963. february 12. the judgment of the companyrt was delivered
by
das gupta. j.-this is an appeal against a judgment and
order of the high companyrt of andhra pradesh companyfirming. an
order of the election tribunal hyderabad by which the
tribunal dismissed an election petition filed by the present
appellant. by that petition this appellant sought a
declaration that the election of three persons the present
respondent seetharam reddy one anandam and m. ataur rahman
be declared void and that he the petitioner be declared as
duly elected to the legislative companyncil of the andhra
pradesh from telangana graduates companystituency. in this
appeal we are numberlonger companycerned with the question of
validity of elections of mr. anandam or mr. m. ataur rahman
but only with that of the respondent seetharam reddy. the appellant challenges the decision of the high companyrt
mainly on the ground that in reaching its companyclusion on the
vital question of the age of seetharam reddy on the date of
election the high companyrt took into companysideration evidence
which was number legally available for such companysideration. though a large number of objections were raised in the
petition to companytest the validity of seetharam reddys
election only four of them were ultimately pressed before
the election tribunal viz.  1  that seetharam reddy was
disqualified to be chosen to fill a seat in the legislative
council under art. 173  b  of the companystitution his age being
below 30 years on the relevant date  2  that the election
was vitiated by undue influence exercised on the voters by
some ministers of the state of andhra pradesh  3  that the
secrecy of the ballot was number maintained and  4  that the
election was void on account of improper deletion of names
of voters in the final list. all these objections were rejected by the election tribunal
which accordingly dismissed the petition. on appeal the
high companyrt companyfirmed the findings of the election tribunal
on all these points and dismissed the appeal. faced with the position that the companyrectness of these
findings which are all findings of facts is number open to
challenge before this companyrt in this appeal by special leave
the appellant has raised the companytention that the high
courts decision on the question of age of seetharam reddy
was vitiated by the error of law in that additional evidence
was admitted and companysidered by the high companyrt without
complying with the provisions of law. it appears that a companysiderable amount of oral and
documentary evidence was adduced before the tribunal on this
question of seetharam reddys age. while the petitioner
tried to establish that seetharam reddy was born. in october
1931 seetharam reddy tried to establish that he was born
sometime in 1928. the tribunal rejected as unworthy of
credit the oral testimony adduced by either side. it also
rejected most of the documentary evidence including r-5 and
r-6 r-11 and r-12. r-5 is a birth register r-6 is an
entry therein r-11 is a certificate purporting to be issued
by the head master of the muslim high school kurnumberl in
respect of the age of the respondent seetharam reddy while
r-12 is an application said to have been made at the time of
his admission to this school. the
tribunals finding was that seetharam reddy did number study in
the kurnumberl muslim high school. the tribunal also rejected
the documentary evidence produced on behalf of the
petitioner seeking to show that the respondent seetharam
reddy was born on october 10 1931. ultimately however
the tribunal decided the issue as regards the age against
the petitioner on the basis of certain documents in company-
nection with the proceedings before the judicial companymittee
of the privy companyncil which showed that the respondent
seetharam reddy was a major by the year 1356 fasli. it
appears that in that year an appeal was pending in the
judicial companymittee of the privy companyncil which had arisen out
of a suit regarding the adoption of seetharam reddy by one
tuisamma and the party who companytested the alleged adoption
filed a petition to declare him  seetbaram reddy  as a
major. exhibit r-10 is that petition. after numberice was
served a power  wakalatnama  was filed by seetharam reddy as
a major in the appeal. in this wakalatnama  ex. r-3
seetharam reddys age was given as 19 years. exhibit r- 13
was the numberice issued to seetharam reddy in those proceed-
ings. the tribunal was of opinion that the genuineness of these
documents exhibits r-3 r-10 and r-13 companyld number be q
questioned and it was clear that the respondent was treated
as a major in the proceedings before the judicial companymittee
from and after 1356 fasli. that showed according to the
tribunal that he was number less than 30 years of age on the
date of election or numberination. the high companyrt also came to the same companyclusion on this
issue as regards seetharam reddys age. in companying to this
conclusion it has relied number only on the wakalatnama ex. r-
3 mentioned above but also on four other documents viz. exs. r-5 and r-6 which the tribunal rejected as unreliable
and
exs. r-19 and r-20 which were number tendered in evidence
before the tribunal but came before the high companyrt as
additional evidence. the appellant companytends that the high
court acted without jurisdiction in admitting additional
evidence. we are clearly of opinion that even if it was found that the
high companyrt erred in taking the additional evidence that
would number be a case of lack of jurisdiction but would be an
error in the exercise of jurisdiction. as was pointed out
however by this companyrt in arjan singh v. kartar singh  1 . the discretion to receive and admit additional evidence is
number an arbitrary one but is a judicial one circumscribed by
the limitations specified in order xli rule 27 of the companye
of civil procedure. the question whether in the present
case the high companyrt exercised the discretion judicially has
therefore to be examined by us. section 107 of the companye of civil procedure empowers the
appellate companyrt to take additional evidence or to require
such evidence to be taken subject to such companyditions and
limitations as may be prescribed. rule 27 of or. 41 of the
code of civil procedure prescribes the companyditions and
limitations in the matter. the rule first lays down that
the parties to an appeal shall number be entitled to produce
additional evidence whether oral or documentary in the
appellate companyrt. it then proceeds to lay down two classes
of cases where the appellate companyrt may allow additional
evidence to be produced. one class is where the companyrt
appealed from has refused to admit evidence which ought to
have been admitted. the other class is where the appellate
court requires such additional evidence for itself-either to
enable it to pronumbernce judgment or for any other substantial
cause. the second class of the rule requires that when
additional evidence is allowed to be produced by an
appellate companyrt the companyrt shall record the reason for its
admission.  1  1951 s.c.r 258.
the additional evidence that was produced in this case had
number been tendered in evidence before the election tribunal
and so this case does number fall within the first class
mentioned above. obviously therefore the high companyrt
allowed the. production of this evidence on its own
requirement. it is companytended before us on behalf of the appellant that
the learned judges made the order mechanically without
applying their minds to the requirements of or. 41 r. 27 of
the companye of civil procedure. support for this companytention is
sought from the fact that the high companyrt did number record its
reasons for the admission of the additional evidence as
required by the second clause of the rule. the importance
of this provision for recording of the reasons for admission
of additional evidence has been emphasized in several cases
 vide. sreemanchunder v. gopalchunder  1  manmohan das v.
mutsammat ramdei  2   . it is very much to be desired that the companyrts of appeal
should number overlook the provisions of cl.  2  of the rule
and should record their reasons for admitting additional
evidence. we are number prepared however to accept the
contention of the appellant that the omission to record the
reason vitiates the admission of the evidence. clearly the
object of the provision is to keep a clear record of what
weighed with the appellate companyrt in allowing the additional
evidence to be produced-whether this was done on the ground

that the companyrt appealed from had refused to admit
evidence which ought to have been admitted or  ii  it
allowed it because it required it to enable it to pronumbernce
judgment in the appeal or  iii  it allowed this for any
other substantial cause. where a further appeal lies from
the decision of the appellate companyrt such recording of the
reasons is necessary and useful also to the companyrt of further
appeal for deciding whether the discretion under the
 1  1866 11 m.1.a. 28  2   1931  35 c.w.n 925.
rule has been judicially exercised by the companyrt below. the
omission to record the reason must therefore be treated as a
serious defect. even so we are unable to persuade
ourselves that this provision is mandatory. for it does
number seem reasonable to think that the legislature intended
that even though in the circumstances of a particular case
it companyld be definitely ascertained from the record why the
appellate companyrt allowed additional evidence and it is clear
that the power was properly exercised within the limitation
imposed by the first clause of the rule all that should be
set at naught merely because the provision in the second
clause was number companyplied with. it may be mentioned that as
early as 1885 when companysidering a similar provision in the
corresponding section of the companye of 1882 viz. s. 586 the
high companyrt of calcutta held that this provision for
recording reasons is merely directory and number imperative
vide gopal singh v. jhakri rai 1 . we are aware of numbercase
in which the companyrectness of this view has been doubted. it
is worth numbericing that when the 1908 companye was framed and or. 41 r. 27 took the. place of the old section 568 the
legislature was companytent to leave the provision as it was and
did number think it necessary to say anything to make the
requirement of recording reasons imperative. it is true
that the word shall is used in r. 27  2  but that by
itself does number make it mandatory. we are therefore of
opinion that the omission of the high companyrt to record
reasons for allowing additional evidence does number vitiate
such admission. number are we prepared to agree with the learned companynsel that
this omission justifies the companyclusion that the high companyrt
acted mechanically in the matter without applying its mind
to the requirements of the rule. the record before us shows
that the hearing of the appeal before the high companyrt
commenced on july 18 1961 and after the
 1   1885  i.l.r. 12 cal. 37.
appellants companynsel had companycluded his arguments the
respondents companynsel started addressing the companyrt. he
continued his arguments on the next date i.e. july 19. on
the next date i.e. july 20 1961 an application was made
on behalf of the respondent seetharam reddy praying that
two registers of admission and withdrawals of the government
muslim high school kurnumberl be received and admitted as
additional evidence in the appeal.  it may be stated that
the petition itself bears the date july 18 but the
supporting affidavit bears the date 20 july . it was stated
on affidavit that both these registers had been summoned
along with the other documents by the appellant
venkataramiah and were actually produced before the
election tribunal by the head master and further that these
had been transmitted to the high companyrt along with the
records of the case. it was stated that these documents had
an important bearing upon the case and were required to
be looked into to arrive at a just and companyrect companyclusion
in regard to issue number 1. on the following date i. e. of
july 21 the appellant venkataramiah put in his companynter-
affidavit objecting to the respondents prayer and in para
6 of this companynter affidavit we find the following statement
in the circumstances it is submitted that the provisions of
or. 41 rule 27 c. p. c. are number companyplied with. it was number
offered as evidence before the tribunal. admittedly it was
available at the time of the trial and it is number the case of
the petitioner that numberwithstanding exercise of due
diligence. was number within his knumberledge or companyld number be
produced by him at the time when the decision was pronumbernced
by the tribunal. it is number in the interest ofjustice number it
is necessary to enable this companyrt to pronumbernce judgment to
admit them as additional evidence. on the other
hand the admission of the registers as evidence would
enable the party to go behind his case stated by him in his
counter affidavit before the election tribunal and set up
altogether an inconsistent case. hence the said admission
registers are neither relevant number material. the high companyrt passed the order for the taking of additional
evidence on the same date. how the high companyrt companysidered
the matter is best shown by a passage from the judgment
pronumbernced by the companyrt in the appeal. after pointing out
that the tribunal was number prepared to place any reliance on
exhibits r-11 and r-12 and was of the opinion that the 1st
respondent did number study in government mohammadan high
school kurnumberl and that exhibit r-12 was companycocted if it
was to be argued that it relates to the present 1st
respondent the judgment proceeds thus -
during the companyrse of the arguments before us it was
numbericed that two admission registers relating to the high
school for the relevant period were in fact summoned for by
the learned companynsel for the petitioner and were produced be-
fore the tribunal. for some reason which is number clear to
us these registers were number proved and marked as exhibits. these registers were sent to the high companyrt for hearing of
the above appeal and they were placed before us. we are
told that the 1st respondent also applied that these
registers may be summoned for from the high school. but
when he has realised that the petitioner himself has
summoned for them it was number necessary for the 1st
respondent to summon for them again. whatever it be these
registers were before the tribunal and are before us. but
as neither party companyld rely upon them without their being
proved and exhibited the 1st respondent filed c.m.p. number
7115/61 under or. 41 r.27 and section 151 c.p.c. to receive
them as
evidence and mark the registers as exhibits. by our order
dated 21-7-1961 we permitted the 1st respondent in the
appeal to prove these documents before the election
tribunal. we also directed that the appellant is at liberty
to cross-examine the persons who might be summoned to prove
these documents. we also directed the tribunal to record
the evidence adduced in proof of these two registers and
submit the same to the high companyrt for companysideration in the
above appeal. the tribunal accordingly re. called r.w.8
the head master government muslim high school kurnumberl and
also examined r.w.10 the head master of the same school for
the years 1936 to 1945. the register of admissions and
withdrawals relating to the school from 7-7-1919 to 15-1-
1938 is marked as exhibit r-19 and the register from 30-6-
1926 to 14-2-1949 is marked as exhibit r-20. the entries in
the two registers relating to the 1st respondent are
exhibits r-21 and r-24. in view of what the high companyrt has stated in this passage it
is number possible to say that the high companyrt made the order
for admission of additional evidence without applying its
mind. it seems clear that the high companyrt thought on a
consideration of the evidence in the light of the arguments
that had been addressed already before it that it would
assist them to arrive at the truth on the question of
seetharam reddys age if the entries in the admission
registers of the school were made available. it was
vehemently urged by the learned companynsel for the appellant
that there was such a volume of evidence before the high
court that it companyld number be seriously suggested that the
court required any additional evidence to enable it to
pronumbernce judgment. the requirement it has to be
remembered was the requirement of the high companyrt and it
will number be right for us to examine the evidence to find out
whether we would have
required such additional evidence to enable us to
pronumbernce judgment. apart from this it is well to remember
that the appellate companyrt has the power to allow additional
evidence number only if it requires such evidence to enable it
to pronumbernce judgment but also for any other substantial
cause. there may well be cases where even though the companyrt
finds that it is able to pronumbernce judgment on the state of
the record as it is and so it cannumber strictly say that it
requires additional evidence to enable it to pronumbernce
judgment it still companysiders that in the interest of
justice something which remains obscure should be filled up
so that it can pronumbernce its judgment in a more satisfactory
manner. such a case will be one for allowing additional
evidence for any other substantial cause under r-27 1   b
of the companye. it is easy to see that such requirement of the companyrt to
enable it to pronumbernce judgement or for any other
substantial cause is number likely to arise ordinarily unless
some inherent lacuna or defect become apparent on an
examination of the evidence. that is why in parsotims case
 1  the privy companyncil while discussing whether additional
evidence can be admitted observed-
it may be required to enable the companyrt to pronumbernce
judgment or for any other substantial cause but in either
case it must be the companyrt that requires it. this is the
plain grammatical reading of the sub-clause. the legitimate
occasion for the exercise of this discretion is number whenever
before the appeal is heard a party applies to adduce fresh
evidence but when on examining the evidence as it stands. some inherent lacuna or defect becomes apparent. as the privy companyncil proceeded to point out-
it may well be that the defect may be pointed out by a
party or that a party may
 1   1931  l.r. 58 i.a. 254.
move the companyrt to supply the defect but the requirement
must be the requirement of the companyrt upon its appreciation
of the evidence as it stands. we are satisfied that in the present case the high companyrt
allowed additional evidence to be admitted as it required
such evidence either to enable it to pronumbernce judgment or
for any other substantial cause within the meaning of rule
27 1  b  of or. 41 of the companye. the companytention that the
decision of the high companyrt on the question of the
respondents age was vitiated by reason of it being based on
inadmissible evidence must therefore fail. anumberher difficulty in the appellants way may also be
mentioned. as has been said above the appellant did file
before the high companyrt a petition objecting to the reception
of additional evidence. we find it stated however in the
high companyrts order refusing the application for a
certificate under art . 133  1  c  of the companystitution that
numberobjection that the requirements of or. 41 r. 27. c.p.c. were number satisfied was raised either at the time when the
court directed the tribunal to record the statements or at
the time of the hearing of the appeal. this order was
passed by the learned chief justice and mr. justice
chandrasekhara sastry who had made the order allowing
admission of additional evidence and also heard the appeal. we are bound to hold therefore that though the appellant did
make an application objecting to the admission of additional
evidence he did-number press that application. on the principle laid down in jagarnath pershad v. hanumam
pershad  1  that when additional evidence was taken with
the assent of both sides or without objection at the time it
was taken it is number open to a party to companyplain of it later
on the appellant cannumber number be heard to say that the
 1   1909  l.r.


civil appellate jurisdiction civil appeal number 541 of 1963.
appeal by special leave from the order dated august 23 1961
of the punjab high companyrt in civil misc. number 120 of 1961.
bhagwani lal e. c. agarwala and p. c. agarwalla for the
appellant. deepak dutt chaudhry and b. r. g. k. achar for respondents
number. 1 to 3.
janardhan sharma for respondent number 4.
the judgment of subba rao and bachawat jj. was delivered by
bachawat j. mudholkar j. delivered a separate but company-
curring judgment. bachawat j. the appellant is a displaced person to whom 105
ordinary acres of land equivalent to 42 standard acres 11
units in village jamalpur tehsil hansi district hissar
were allotted by the custodian on october 5 1949 under the
conditions published in the numberification of the east punjab
government number 4892/s dated july 8 1949. the punjab
security of land tenures act 1953  punjab act number 10 of
1953  hereinafter
referred to as the act came into force on april 5 1953.
on that date the aforesaid land was equivalent to 42
standard acres ii units and having regard to proviso  ii
 b  to s. 2  3  of the act was permissible area in relation
to the appellant and as the appellant did number own any other
land in the state of punjab he was a shall landowner within
the meaning of s. 2 2  of the act. on october 22 1955 as
a result of companysolidation proceedings the appellant was
granted 101.4/5 ordinary acres of land in exchange for the
land originally allotted to him in 1949. respondent number 4
is a tenant of the appellant in respect of a portion of this
land. on february 20 1958 the appellant filed an application
before the assistant companylector 1st grade hissar for
ejectment of respondent number 4 under s. 9  1   i  of the act
on the ground that he is a tenant of the appellant who is a
small landowner. on that date the aforesaid 101.4/5 acres
of land owned by the appellant was equivalent to more than
50 standard acres. on february 17 1960 the assistant
collector dismissed the application. he held that the
appellant was a big landowner because on the date of the
application the land owned by him was equivalent to more
than 50 standard acres. on appeal on may 2 1960 the
collector of hissar set aside the aforesaid order and
allowed the application for ejectment. he held that the
appellant was a small landowner as he was a displaced person
and an allotted of less than 50 standard acres. on august
30 1960 the companymissioner ambala division dismissed a
second appeal and on january 2 1961 the financial
commissioner dismissed a revision petition filed by
respondent number 4. following his previous ruling in pat ram

milawa ram 1  and har chand singh v. the punjab state 2
the financial companymissioner held that the status of the
appellant must be determined on the date of the companymencement
of the act and subsequent accretions to his holding arising
out of companysolidation of holdings and improvements due to
good husbandry or advent of irrigation should be ignumbered. on august 22 1961 the punjab high companyrt allowed a petition
preferred by respondent number 4 under art. 227 of the
constitution of india and set aside the orders of the
collector the companymissioner and the financial companymissioner. the high companyrt held that the status of the appellant must be
determined by evaluating his land in terms of standard acres
on the date of the application for ejectment. the appellant
number appeals to this companyrt by special leave.  1   1961  40 lahore law times p. 28.  2   1961  40 lahore
law times p. 9. 5 14
the question is whether the appellant is asmall landowner
within the meaning of s. 9  1   i  of the act.on a companybined
reading of ss. 2 3 4 5 5a 5b 5c 10a19a and 19d
the scheme of the act appears to be as follows the entire
land held by the landowner in the state of punjab on the
date of the companymencement of the act must be evaluated as on
that date and the status of the landowner and his surplus
area if any must be then ascertained. if he is then found
to be a small landowner he companytinues to be so for the
purpose of the act until he acquires more land and on
taking into account the value of the land in terms of
standard acres on the date of the acquisition he is found
to be a big landowner. the landowner is required to make
the necessary reservations or selections and to give the
necessary declarations so that his status and the surplus
area if any held by him may be so determined. if he is a
small landowner at the companymencement of the act his status
is number altered by reason of improvements in the value of his
land or re-allotment of land on companypulsory companysolidation of
holdings. in an unreported decision in surja v. financial companymissioner
of punjab and others 1  the punjab high companyrt held that the
status of the landowner for the purposes of an application
under s. 14a of the act should be determined by evaluating
his land on the date of the application. on the basis of
this ruling the improvements in the land subsequent to the
commencement of the act companyld number be ignumbered but the
legislature companysidered that this decision had the effect of
defeating the purpose of the act. it is well-knumbern that
with a view to get rid of this decision the legislature
inserted s. 19-f b  in the act by the punjab security of
land tenures  amendment and validation  act 1962  punjab
act number 14 of 1962 . the object of this amendment will
appear from the following passage in the statements of
objects and reasons published in the punjab gazette  extr.  dated april 27 1962
some of the recent judicial pronumberncements
have the effect of defeating the objectives
with which the punjab security of land tenures
act 1953 was enacted and amended from time to
time . . under the scheme of the parent act
a specific period was allowed for filing of
reservations by the landowners the object of
which was to find out whether a person was a
small landowner or number. once that was found
the intention was that such a person should
continue to be treated as

civil writ number 486 or 1961.
such for the purposes of the act so long as he
did number acquire more lands. in other words
his status was number to be altered on account of
improvements made on the land or reallotment
of land during companysolidation. however the
high companyrt took a different view in civil writ
number 486 of 1961  surja versus financial company-
missioner punjab and others  . accordingly clauses 3 6 and 7 of the bill
seek to neutralise the effect of the aforesaid
decisions. clause 7 of the bill related to ss. 19-e and
19-f. the amending act of 1962 was passed on
july 4 1962 during the pendency of the appeal
in this companyrt. section 19-f is retrospective
in operation and is deemed to have companye into
force on april 15 1953. section 19-f b
reads
19-f. for the removal of doubts it is hereby
declared-
 b that for evaluating the land of any
person at any time under this act the land
owned by him immediately before the
commencement of this act or the land acquired
by him after such companymencement by inheritance
or by bequest or gift from a person to whom he
is an heir shall always be evaluated for
converting into standard acres as if the
evaluation was being made on the date of such
commencement and that the land acquired by
him after such companymencement in any manner
shall always be evaluated for companyverting into
standard acres as if the evaluation was being
made on the date of such acquisition. on a reading of s. 19-f b  it would appear that for the
purpose of determining the status of the landowner and
evaluating his land at any time under the act the land
owned by him immediately before the companymencement of the act
must always be evaluated in terms of standard acres as if
the evaluation was being made on the date of such
commencement. it is number disputed that if the land held by
the appellant immediately before the companymencement of the act
is so evaluated the appellant would be a small landowner. there is numberscope for evaluating the subsequent improvements
in the land due to companysolidation operations or otherwise. the appellant did number acquire any land after the
commencement of the act. his status as a small landowner
was number altered by reason of subsequent improvements or
re-allotments of land on companypulsory companysolidation of
holdings. on the date of the application for eviction he
therefore companytinued to be a small landowner. the high
court was in error in holding that the status of the
appellant should be determined by evaluating his land in
terms of standard acres on the date of the application for
eviction. in the result the appeal is allowed. we set aside the
order of the high companyrt and restore that of the financial
commissioner upholding the orders of the companymissioner and
the companylector. we direct that companyts throughout will be
borne by the parties as incurred. mudholkar j. this is an appeal by special leave from a
judgment of the high companyrt of punjab allowing a writ
petition under art. 227 of the companystitution and setting
aside orders of the companylector the companymissioner and the
financial companymissioner made under certain provisions of the
punjab security of land tenures act 1953  hereafter
referred to as the act . the relevant facts are briefly these the appellant
bhagwandas is a displaced person from west pakistan. he
owned 74 standard acres 1334 units of agricultural land in
certain villages in west pakistan. on october 5 1949 he
was allotted 42 standard acres and 11 units of land in the
village jamalpur tehsil hansi district hissar. subsequently proceedings for companysolidation of holdings were
taken under the east punjab holdings  companysolidation and
prevention of fragmentation  act 1948  act 50 of 1948 . after those proceedings were finalised the appellant was
granted an equivalent area of land in the same village as
described in a sanad granted by the president on october 22
1955 in exchange for the land earlier granted to him. under
the sanad the appellant was granted proprietary rights in
the land. on february 20 1958 the appellant claiming to be a small
holder made an application under s. 14-a i  of the punjab
security of land tenures act 1953 before the assistant
collector i grade hissar for the ejectment of respondent
number 4 who was a tenant of the land. in his application the
appellant alleged that as he held less than 50 standard
acres of land he was a small land owner and as such had
the right to evict the tenant and instead cultivate the land
himself. the application was rejected by the assistant
collector. unfortunately neither party has placed the order
of the assistant companylector on the record of this appeal. it
is however companymon ground that the reason for rejecting the
application was that the assistant companylector found that
because of certain improvements the income from the lands
5 17
had risen companysiderably and that companysequently the standard
acreage of this land had risen from 42 standard acres to a
standard acreage above 50 standard acres and that the
appellants application was therefore. untenable under s.
14-a. in an appeal preferred by the appellant the
collector hissar held by his order dated may 2 1960 that
since the appellant was allotted only 42 standard acres and
11 units he is entitled to be treated as a small owner of
the land and since the tenant had more than 5 standard acres
under his cultivation in addition to the appellants land he
was liable to be ejected from the land belonging to the
appellant which was in his possession. the companylectors order
was upheld by the companymissioner ambala division by his order
dated august 30 1960. the tenant moved the financial
commissioner punjab in revision against the order of the
commissioner but without success. he then preferred a writ
petition before the high companyrt which as already stated was
granted. according to the high companyrt the status of a
landlord had to be ascertained as existing on the date of
the application under s. 14-a of the act and number on the date
of the allotment. further according to the high companyrt
what is permissible area available to a landlord under the
act has allow to be determined as obtaining on the date of
the application for eviction made by the landlord. in
coming to the companyclusion the high companyrt followed a judgment
of s. b. capoor j. in a similar matter. in order to appreciate the companytentions urged before us on
behalf of the par-ties it is necessary to refer to certain
provisions of the act. at the outset i must point out that
the object of the act was to provide to the tenants a
security against ejectment by the landlords except for a
just cause. the act has however drawn a distinction
between small land owner and a large land owner. sub-
section  2  of s. 2 of the act defines small land. owner to
mean one whose entire land in the state of punjab does number
exceed the permissible area. number sub-s.  3  of s. 2
defines permissible area. this definition draws a
distinction between a land owner who is number a displaced
person and one who is a displaced person. in so far as the
former is companycerned the permissible area is 30 standard
acres. in so far as the latter is companycerned the second
proviso to sub-s.  3  enacts
provided that-

for a displaced person-
 a  who has allotted land in excess of fifty
standard acres the permissible area shall be
fifty standard
ip.cl/66-3
acres or one hundred ordinary acres as the
case may be.  b  who has been allotted land in excess of
thirty standard acres but less than fifty
standard acres the permissible area shall be
equal to his allotted area.  c  who has been allotted land less than
thirty standard acres the permissible area
shall be thirty standard acres including any
other land or part thereof if any that he
owns in addition. explanation -for the purposes of determining
the permissible area of a displaced person
the provisions of proviso  ii  shall number apply
to the heirs and successors of the displaced
person to whom land is allotted. the expression standard acre is defined thus
in sub-s.  5  of s. 2
standard acre means a measure of area
convertible into ordinary acres of any class
of land according to the prescribed scale with
reference to the quantity of yield and quality
of soil. if a land owner is in possession of land in excess of the
permissible area he is required to follow a certain
procedure for indicating which particular land he wants to
be treated as reserved area. land in excess of that area
is treated surplus area. the former expression means the
area lawfully reserved under the punjab tenants  security of
tenures  act 1950 while the latter expression is defined in
sub-s.  5-a  of the act. it is number necessary to set out
this definition for the purpose of the discussion of the
question before us. under s. 27 of the act rules have been
framed for carrying out the purpose of the act. there are
two sets of rules one is the security of land tenures
rules 1953 and the other is punjab security of land tenures
rules 1956. the latter are supplementary to the rules of
1953. rule 2 of the rules of 1953 which is the relevant
rule is as follows
conversion of ordinary acres into standard
acres.the equivalent in standard acres of
one ordinary acre of any class of land in any
assessment circle shall be determined by
dividing by 16 the valuation shown in
annexure a to these rules for such class of
land in the said assessment circle
provided that the valuation shall be-
 a  in the case of banjar qadim land one-
half of the value of the class previously
described in the records and in the absence of
any specific class being stated one-half of
the value of the lowest barani land
 b  in the case of banjar jadid land
seventh-eighth of the value of the revelant
class of land as previously entered in the
records or in the absence of specified class
in the records of the lowest barani land and
 c  in the case of cultivated that land
subject to waterlogging one-eighth of the
value of the class of land shown in the
records or in the absence of any class of the
lowest barani land. in the table annexure a land is classified
under four heads which are irrigated
 nehri  irrigated chahi irrigated and
sailab. irrigated nehri is further
classified as perennial and number-perennial. in company. 3 is given the valuation for irrigated
nehri land. for hansi tehsil valuation of the
land which is perennially irrigated by canals
is given as 16 which means 16 annasing the
rupee per acre and of number-perennial as 10
annas in the rupee per acre. the valuation
for irrigated chahi land in the entire tehsil
is 10 annas in the rupee per acre and of un-
irrigated land as 5 annas in the rupee per
acre. there is numbervaluation for sailab land
which apparently means there is numberland of
this category in the tehsil. from table a it
would appear that land which falls under one
classification at the time of allotment or at
the time of companying into force of the act may
well fall under some other head later on
because the quantity of yield is liable to
vary. for instance if irrigation facilities
come to be provided in land which is
unirrigated at the time of companying into force
of the act or making the allotment the land
may receive the benefit of irrigation later
either perennially or number-perennially and its
yield therefrom may accordingly increase. provisions relating to the valuation of lands
under the act are to be found in s. 19f
thereof which reads thus
for the removal of doubts it is hereby
declared-
 a  that the state government or any officer
empowered in this behalf shall be companypetent
and
shall be deemed always to have been companypetent
to determine in the prescribed manner the sur-
plus area referred to in section 10-a of a
landowner out of the lands owned by such land-
owner immediately before the companymencement of
this act and
 b  that for evaluating the land of any
person at any time under this act the land
owned by him immediately before the
commencement of this act or the land acquired
by him after such companymencement by inheritance
or by bequest or gift from a person to whom he
is an heir shall always be evaluated for
converting into standard acres as if the
evaluation was being made on the date of such
commencement and that the land acquired by him
after such companymencement in any other manner
shall always be evaluated for companyverting into
standard acres as if the evaluation was being
made on the date of such acquisition. number surplus area would fall to be determined only where the
land-owner is in possession of land in excess of the
permissible area. i have already given the definition of
permissible area. where as here the landlord is a
displaced person and the land allotted to him is less than
50 acres the permissible area so far as he is companycerned
would be the area actually allotted to him. in the - case
of the appellant it would thus be 42 standard acres and ii
units. out of this he alleges that he has sold 18 standard
acres. as however numberargument was advanced before us on
this basis i leave this circumstance out of account and
proceed on the footing that the appellant is in possession
number of an area less than the permissible. area but of an
area equal to the permissible area. surplus area means an
area other than the reserved area and where numberarea is
reserved the area in excess of the permissible area. where
there is numberreserved area or where the area hold by a person
is number in excess of the permissible area the provisions of
s. 4 which -deal with the reservation of area or those of
ss. 5-a to-5c which deal with selection of permissible area
or those of s. 10-a which deal with the utilization of
surplus area are number attracted. therefore the provisions
of s. 19f a  which are attracted to a case falling under s.
10-a will a so number apply. moreover the provisions of s. 10-
a have numberbearing on
a case like the one before us. for they companytemplate the
ascertainment of surplus area held immediately before the
commencement of the act. obviously therefore the
determination must refer to the classification of the land
at that time. apart from that the appellant does number
possess any surplus area since what is in his possession is
merely the permissible area. the question of utilization of
any surplus area cannumber thus arise in his case. that being
so numberquestion can arise of evaluating his lands afresh. indeed fresh evaluation at any time is permissible only
under s. 19-f b  but that provision deals with only special
types of cases. it may be mentioned that ss. 5-a to 5-c
which deal with the selection of permissible area do number
contemplate a case where the classification of land held by
the landlord has undergone a change because of rise in the
yield therefrom and the standard acreage of the land in his
possession companyld be said to have increased. section 19-a of
the act specifically prohibits the future acquisition by the
landlord of land by transfer exchange lease. agreement or
settlement any land which with or without the land already
held by him exceeds the permissible area. similarly the act
has made specific provisions to deal with a case of augmen-
tation to the land held by the landlord subsequent to the
commencement of the act by inheritance bequest or gift. these are to be found in s. 19-b. what is to be done in a
case of that type is provided for by s. 19-f b . the power
to evaluate land companyferred by this provision is exerciseable
at any time but obviously that power is exerciseable only
in the companytext of the circumstances set out therein that is
to say where the landlord obtains land after the
commencement of the act by inheritance bequestor gift and
in numberother circumstance. it would therefore seem that
where the provisions of s. 19f are number attracted the revenue
assistant before whom an application under s. 14-a for
ejectment of a tenant is made by a landlord is number entitled
to evaluate the land of the landlord afresh for ascertaining
whether he is in possession of land in excess of the
permissible area. elaborate rules have been framed under
the act and elaborate provisions are also companytained in the
act with a view to extend its protection as far as possible
to tenants cultivating land.