1. The plaintiffs in O.S No. 382 of 1965 on the file of the District Munsif, Mayuram are the appellants. They filed the suit for recovery of possession of their 1/3 share in the suit properties bearing T.S. No. 1382/2 situate in Thirumanjana Street Thiruvilandur, Mayuram town as well as past and future rents. Both the courts below had held that they are not entitled to seek recovery of possession of the property but they are entitled to claim only arrears of rent. The plaintiffs canvass the correctness of the decisions of the courts below in this second appeal. Both the courts below have given different reasons for their decision. The trial court held that the defendant having taken on lease a vacanc site and having erected a building thereon is entitled to the protection of the Madras Buildings (Lease and Rent Control) Act, 1960 in view of the decision of this court in Palaniappa Chettiar v. Babu Sahib , (1964)1 M.L.J. 110.-77 L.W. 551. lower appellate court, however, held that the defendant is not only entitled to the protection of the said Act, but that he is also entitled to the protection of the Madras Kudiyiruppu (Protection from eviction) Act as he is an agricultural labourer.

2. According to the plaintiffs the suit property was leased to the defendant under Ex. A.1 dated 16th July 1958, by Gangadbara Iyer, the father of the first plaintiff and the husband of the second plaintiff. The suit property was then sub-divided and the middle portion came to be allotted to the plaintiffs. The defendant took the lease for non-agricultural purposes on a monthly rental of Rs. 2 and put up a shop therein. The plaintiffs terminated the tenancy of the defendant by a notice Ex. A.2 dated 30th August 1962, calling upon the defendant to surrender possession of the suit property after removing the superstructure which he had erected on the suit lands. The defendant had sent a reply under Ex. A.3 dated 13th September 1962, claiming rights under the City Tenants Protection Act. The plaintiffs thereafter filed the above suit in ejectment against the defendant.

3. The defendant contended that he became a tenant of the suit property long before the execution of Ex. A1 dated 16th July 1951 under a kai letter Ex. B4, dated 14th August 1956 on a monthly rental of Rs. 1-8-0 and that in fact he has been in possession of the suit property even earlier from January 1956. The defendant in his defence claimed the benefit of (i) the Madras City Tenants Protection Act, (ii) the Madras Buildings (Lease and Rent Control) Act, (iii) The Madras Cultivating Tenants Protection Act and (iv) the Madras Kudiyiruppu (Protection from Eviction) Act.

4. The trial court found that the defendant has not established that he had been in possession of the suit property from January 1951 and that he became a tenant only on 16th July 1958 under Ex. A.1, for a non-residential and non-agricultural purpose. It, therefore, held that the defendant is entitled to the benefits of the Madras Buildings (Lease and Rent Control) Act 1960, and not to the benefits of the other Acts as claimed by the defendant. But the lower appellate court has taken the view that the defendant should have become a lessee of the property for residential purposes by virtue of the kai letter Ex. B.4 dated 14th August 1956. According to the lower appellate court, the defendants tenancy should have commenced from 14th August 1956 for a residential purpose. In that view, the lower appellate court held that the defendant is entitled to the benefit of the Madras Kudiyiruppu (Protection from Eviction) Act, as also to the benefits of the Madras Buildings (Lease and Rent Control) Act. According to the lower appellate court the defendant is an agricultural labourer and the leasehold site in his occupation is a kudiyiruppu, as defined in the Madras Kudiyirruppu (Proteotion from Eviction) Act. In the second appeal the plaintiffs question the finding of the lower appellate court that the defendant is entitled to the benefits of the Madras Kudiyiruppu (Protection from Eviction) Act as also Madras Act 18 of 1960.

5. It has to be noted that both the courts below have held that the plaintiffs are not entitled to the benefits of the Cultivating Tenants Protection Act and that finding has not been challenged before me. The learned counsel for the appellants contends that the lower appellate courts finding that the defendant is entitled to the benefits of the Madras Kudiyiruppu (Protection from Eviction) Act and as such he could not be evicted from the suit site cannot be sustained as the defendant has been using the leasehold site for a non-residential purpose and not for his residential purpose, and the definition of kudiyiruppu will not take in a site occupied even by an agriculturist for a non-residential purpose. I find that the learned counsel for the appellant is right in saying that the suit site will not come under the definition of kudiyiruppu if such site has not been used as a dwelling house by the defendant. The learned counsel for the respondent concedes before me that the respondent is using the site for a non-residential purpose subsequent to the execution of the lease Ex. A.1 dated 16th July 1958. Therefore, as it is conceded that the suit site is not oecupied for the residence of the respondent, the application of the Madras Kudiyirruppu (Protection from Eviction) Act, has to be ruled out. Therefore the view taken by the lower appellate court that the respondent is entitled to the benefit of the Madras Kudiyiruppu (Protection from eviction) Act has to be set aside. As a matter of fact the learned counsel for the respondent did not support the finding of the lower appellate court in that regard.

6. The learned counsel for the respondent. However, contends that he can sustain the decree of the lower appellate court dismissing the suit by establishing that the respondent is entitled to the benefits of the Madras City Tenants Protection Act. The learned counsel for the appellant, however, resists this attempt of the respondent stating that the lower appellate court having found that the respondent is not entitled to the benefits of the Madras City Tenants Protection Act and on appeal or cross objections having been filed by the respondent as against that finding, it is not open to the respondent to urge the point as to whether the respondent is entitled to the benefits of the Madras City Tenants Protection Act or not. I am however of the view that it is open to the respondent to sustain the decree of dismissal of the appellants, suit by successfully questioning the finding of the lower appellate court that the respondent is not entitled to the benefits of the Madras City Tenants Protection Act. I therefore, proceed to consider whether on the facts established, the respondent is entitled to the protection of the said Act.

7. It is seen that the Madras City Tenants Protection Act was extended to Mayuram Town only in respect of tenancies of residential buildings by a Notification issued under S. 1(3) of that Act in 1956. By a subsequent notification dated 22nd December, 1965 the has been extended even to tenancies of non-residential buildings within that town. But in this case the suit came to be filed before the notification dated 22nd December, 1965 applying the to non-residential buildings in Mayuram town was issued. On these facts one of the questions that has to be considered is as to how far the notification issued on 22nd December 1965 extending the Madras City Tenants Protection Act to non-residential buildings in Mayuram town affects the pending proceedings. The further question that arises is as to whether the tenancy which on the findings of the courts below commenced under Ex. B.4 dated 14th August, 1956, would be affected by the notification dated 28th March 1956 and 22nd December 1956 under S. 1(3) of the said Act.

8. Taking the second question first, the learned counsel for the appellants contends that though the tenancy commenced on 14th August 1956 under Ex. B4 on a monthly rent of Rs. 1-8 0 there has been a fresh lease under Ex. A.1 dated 16th July 19 58 on a monthly rental of Rs. 2. Later the rent was enhanced to Rs. 2-5-0 by agreement of parties before 15th March 1965 and that, therefore, the provisions of the Madras City Tenants Protection Act cannot be applied to the tenancy as the has been extended to tenancies for residential purposes even on 28th March 1956 and that as per S. 1(3) of the notification it will apply only to tenancies of land created before the date of the extension of the to Mayuram town. The learned counsel relies on the decision of the Privy Council in Ranganathan Chetti v. Ethirajulu Naidu (1964)-1. M.L.J. 110-77 L.W. 551, where it has been held while construing the scope of S. 1(3) that if there is a fresh tenancy at an enhanced rent after 21st February 1922 when the Madras City Tenants Protection Act, 1922 came into force, the tenant under such fresh tenancy cannot claim the benefit of the. But, I am at a loss to find how that decision will help the appellants in this case. Here the earlier notification dated 28th March 1956 extended the only to tenancies of land taken for residential purposes and that notification was not applicable to the suit tenancy i.e., under Ex. A-1, which is one for a non-residential purposes Even accepting the case of the appellants that there was an increase in rent before 15th March 1965, the notification under S. 1(3) of the extending the provisions of the to tenancies of land taken for non-residential purposes having come into force only on 22nd December 1965, the will have to apply to the suit tenancy which is one for non-residential purpose created long before that date. I have to therefore hold that the tenancy between the appellants and the respondent will stand attracted by the notification dated 22nd December 1965. S. 3 of the Madras Act 16 of 1964 provides that when the is extended to any area, all pending proceedings in respect of tenancies covered by the notification will stand abated. The said S. 3 runs as follows:

Certain pending proceedings to abate. Every pro. seeding instituted by a landlord in respect of any non-residential building or part thereof situated in any municipal town specified in the notification issued under sub-clause (i) of clause (1) of S. 2 of the principal Act as amended by this Act and the villages within five miles of such municipal town and pending before any court or other authority or officer on the date on which the said notification takes effect shall, in so far as the proceeding relates to any matter falling within the scope of the principal Act as amended by this Act in respect of such building or part, abate, and all rights and privileges which may have accrued to that landlord in respect of any such building or part and subsisting immediately before the date on which the notification aforesaid takes effect shall, in so far as such rights and privileges relate to any matter falling within the scope of the principal Act as amended by this Act, cease and determine and shall not be enforceable.

Provided, that nothing contained in this section shall by decree or order passed has been executed or satisfied in full before the date on which the notification aforesaid takes effect.

9. Relying on this provision the learned counsel for the respondent states that after the notification, dated 22nd December 1965, the respondent becomes entitled to all the benefits of Madras Act 3 of 1922, that he cannot be evicted without due notice as contemplated under S. ll and without payment of compensation provided in S3 and that in the face of the provisions in S3 which puts an end to all the pending proceedings in relation to tenancies covered by the notification dated 22nd December 1965, the appellants suit should be taken to have abated. As against this the learned counsel for the appellants contends that, though S. 3 provides that the pending proceedings will stand abated, it cannot be taken that the suit in ejectment filed by the appellants is to be automatically dismissed and that S. 3 merely provides that the rights of parties in the pending proceedings have to be decided in the light of the notification. According to the learned counsel the word abate used in S. 3 should not be const rued as putting an end to the pending proceedings and that it should be construed as restricting or limiting to the appellants right to seek an order in ejectment on the terms and conditions sat out in the Madras City Tenants Protection Act. The learned counsel refers to the meaning of abatement of civil proceedings given by Earl Jowitt in his Dictionary of English law, Volume I. Under the head abatement of civil proceedings it is stated that formerly almost every change of interests after the commencement and before the termination of the proceedings caused an abatement or termination, which, however, was curable, where the right of action survived, but that the position has been changed by statutory provisions. What the learned counsel for the appellants contends is that the suit as such cannot be dismissed on the ground that it has abated by virtue of the notification, dated 22nd December, 1965, extending the provisions of the Madras City Tenants Protection Act, to Mayuram town, but that the suit has to be disposed of in the light of the provisions of that Act and that states that the appellants are willing to give compensation to the respondent as provided in the. But I am not in a position to agree with the learned counsel for the appellants that the suit has not abated and that it has to be decided in the light of the benefit given to the tenant under S. 3 of the Madras City Tenants Protection Act. The Act not only gives the benefit of compensation to the tenant on eviction but it also confers other benefits such as a prior notice of three months under S. 11 or a right to purchase the land under S. 9 on a value to be fixed by the court. By virtue of the notification the respondent has become entitled to the benefits conferred by that Act under Ss. 3, 9 and 11 as soon as the notification comes into force. In this case the suit has been instituted by the appellants long before the notification and, therefore, without the due notice as contemplated under S. 11 of the. It is for this reason S. 3 makes all pending proceedings for recovery of properties in respect of tenancies covered by the notification abated. I, therefore, hold that the appellants suit will stand abated.

10. On the question whether the defendant is entitled to the benefits of the Madras Buildings (Lease and Rent Control) Act, 1960 the courts below found that he is so entitled in view of the decision of this court in Palaniappa Chettiar v. Babu Sahib (1964)-1. M.L.J. 110-77 L.W. 551. But the decision in the above case has been disapproved by the Supreme Court in Salai Mohamed Sait v. J.M.S. Charity, (1969)-1 M.L.J.(S.C.)16, 16 and that decision lays down that if the lease is of a vacant site, the provisions of Madras Act 18 of 1960 cannot be applied even though the tenant had erected the superstructure therein. In view of that decision the finding of the courts below that the respondent is entitled to the benefits of Madras Act 18 of 1960 cannot be sustained.

11. In the result the second appeal fails and is dismissed. It is, however, open to the appellants to file a fresh suit, if so advised, in compliance with the provisions of the Madras City Tenents Protection Act. There will be no order as to costs. No leave.