Appeal No 1317 of From the Judgment and Order dated 2111983 of the Madras High Court in CRP No 2797 OF 1979
TS Krishnamurthy lyer PN Ramalingam and ATM Sampath for the Appellant
section Balakrishnan section Prasad R Raghavan and Vijay Kumar for the Respondent
The Judgment of the Court was delivered by KANIA J
This is an appeal by special leave against the decision of a learned Single Judge of the Madras High Court in Civil Revision Petition No 2792 of 1979 filed in that Court
We propose to set out only the few facts necessary for the disposal of the appeal
The appellant is the managing trustee of a trust
The said trust owned two properties comprising 60 cents and 29 cents of land at Nagercoil in Tamil Nadu
The said lands were leased by the appellant to one Padakalingam in 1930 who in turn assigned the lease in favour of one Ramaswamy Mudal iar in 1931
Swami Mudaliar secured a further assignment of the said lease from the said Ramaswamy Mudaliar
Swami Mudaliar put up a building on the said land and the respond ent herein purchased the building from him in 1943 for a sum of Rs 4475
In 1944 the trust had leased out the said property in favour of the respondent for six years
The terms of the lease are not relevant for the purposes of resolving the controversy raised before us
As the respond ent failed to pay the rent to the Trust the Trust fried a suit for ejectment against the respondent which suit was later transferred to the District Munsifs Court Nagercoil
The said suit was decreed by the learned District Munsif
The decree for eviction was passed by the learned District Munsif on condition that the appellant will pay to the respondent the costs of the building or the superstructure
This litigation was carried upto the High Court in Second Appeal
The decree of the trial Court for eviction was upheld by the High 24 Court
During the Pendency of the second appeal an applica tion was filed by the respondent under Section 9 of the Tamil Nadu Tenants Protection Act 1921 as amended by Act XIX of 1955 and Tamil Nadu Adaptation of Laws Order 1969 hereinafter referred to as the said Act
The provisions of the said Act were extended to Nagercoil town in respect of non residential buildings by a government order which was published in the Gazette on June 29 1975
In the said application under Section 9 of the said Act the respondent claimed that the appellant should be directed to sell out of the said property the land adjoining the said building and necessary for the beneficial enjoyment of the building on such terms and conditions as might be fixed by the Court
This application was resisted by the appellant
The District Munsif s Court Nagercoil dismissed the said application of the respondent on the ground that a previous application with the said prayer had been dismissed and hence a fresh application for the same relief was barred
The respondent preferred an appeal to the SubCourt at Nagercoil which was allowed by the learned Subordinate Judge
The High Court took the view that the decree in favour of the appellant was simple decree of ejectment and did not take away the right of the respondent to the building or superstructure
It further took the view that the deposit of the amount of costs of the superstructure by the appellant did not affect the right of the respondent
The respondent had not surren dered the possession of the property despite the deposit of amount of compensation by the appellant and the appellant had been compelled to resort to the court
The execution proceedings were stopped
The High Court held that in these circumstances the respondent was entitled to make an appli cation under Section 9 of the said Act during the pendency of the execution proceedings
The High Court also dismissed the review petition preferred by the appellant
Only two submissions were made before us by Mr Krishna murthy Iyer learned Counsel for the appellant
The first was that the respondent was not entitled to exercise his right to purchase the land immediately adjoining the super structure as might be required for the beneficial enjoyment of the said structure as the said structure had not been put up by him
As we have already pointed out earlier the said super structure was purchased by the respondent from Swami Mudali ar who had put up the said structure and was an assignee of the lease
The respondent himself obtained a lease of the land subsequently
We now come to the relevant provisions of the said Act
We propose to set out the effect of the rele vant sections so far as it is necessary for the purposes of this case
Under clause 25 ii a of sub section 4 of section 2 a person referred to in sub clause i who continues in possession after the determination of his tenancy agreement is included in the term tenant 
The inclusive definition of the term tenant  under Section 24iia takes within its ambit a tenant whose tenancy has been determined but continues to remain in possession
Section 3 of the said Act provides that every tenant as defined under the said Act shall on ejectment be entitled to be paid as compensation the value of any build ing which may have been erected by him or by any of his
predecessors in interest or by any person not in occupation at the time of the ejectment who derived title from either of them and for which compensation has not already been paid
Again very briefly stated Section 9 prescribes that any tenant who is entitled to compensation under Section 3 and against whom a suit in ejectment has been instituted or proceedings under Section 41 of the  taken by the landlord may within one month from the date of the Madras City Tenants  Protection Amend ment Act 1955 coming into force or the date with effect from which this Act is extended to the municipal town or village in which the land is situated or within one month after the service on him of summons apply to the Court for an order that the landlord shall be directed to sell for a price to be fixed by the court the whole or part of the extent of land specified in the application as set out in the said section
It may be mentioned that the land which the tenant is entitled to require to be sold to him is the minimum land required for the beneficial enjoyment of the building
Section 10 of the said Act makes the provisions under Section 9 applicable to cases where decree for eject ment has not been executed before the date from which the provisions of the Act are extended to the area in question
Thus although the decree for ejectment was passed against the respondent as he had continued to remain in possession of the property and the decree had remained unexecuted till the date on which the provisions of the said Act had been extended to the area in question the right of the respond ent under Section 9 was not lost
As far as the superstructure is concerned the said superstructure was put up by Swamy Mudaliar from whom the respondent had purchased it as pointed out earlier
Thus as far as the building or superstructure is concerned the High Court wasentitled to take the view that it was put up by a predecessor in interest of the respondent
In these circum stances the respondent was certainly a tenant entitled to compensation under Section 3 of the said Act and was enti tled to make an application under Section 9 of the said Act
The submissions of Mr Krishnamurthy lyer to the contrary cannot be accepted
26 It was next submitted by Mr Krishnamurthy Iyer that as averred in the special leave petition although the respondent might have been in possession at the relevant time yet he has lost possession thereafter and hence he had lost his right under Section 9
This fact has not been pleaded in or considered in any of the courts below and hence we decline to permit Mr Krishnamurthy Iyer to raise this contention before us
In the result the appeal fails and is dismissed
There will be no order as to costs
The application of the re spondent under Section 9 will be disposed of on merits and according to law
The amount of compensation which will have to be paid by the respondent to the appellant will be deter mined as provided under the said Act
NPV Appeal dismissed


Summary:
The appellant since deceased was being assessed as the Karta of the Hindu Undivided Family consisting of himself his mother his wife and three sons until the assessment years 1948 49
For the assessment year 1949 50 and subse quent years upto 1961 62 he filed a return in his individual capacity claiming that there had been a total partition of the family and that he was assessable in respect of the income from the properties of the family that fell to his share on partition in the alternative he claimed partial partition
Both of his claims having been negatived the entire income was assessed in the hands of the Hindu Undi vided Family and the returns filed by the appellant in his individual capacity were finalised on the footing that there was no income assessable in his individual capacity
The Hindu Undivided Family went up in appeals and ultimately the Tribunal accepted the claim of partial partition in respect of some of the properties
The conclusion of the Tribunal was affirmed by the High Court with the result that the income from some of the erstwhile family properties stood excluded from the assessment of the Hindu Undivided Family and became liable to be included in the hands of the appel lant
The original assessments made on the appellant as an individual for the assessment upto 1961 62 had been complet ed under the Income tax Act 1922 and in these assessments no income from the erstwhile joint family properties had been included as the Income Tax Officer was of the view as in 1949 50 that it was assessable in the hands of the family
There were no proceedings initiated or pending under Section 34 of the 1922 Act in respect of these assessment years as on 141962 when the 1922 Act was repealed by the 1962 Act
The Income Tax Officer therefore served a notice for reassessment on the appellant invoking the provisions of Section 2972dii of the Act
The appellant resisted the reassessment proceedings on the ground that notice was barred by limitation while the department contended that the reassessment proceedings in this case were saved by the provisions of Section 1501 of the 1961 Act
The High Court accepted the contention of the department
10 Dismissing the assessee s appeal this Court HELD The provisions of Section 1501 have been spe cially made applicable and operative in respect of a notice under section 148 issued in pursuance of Section 2972dii
The application of the provisions of Section 2972dii gives rise to two sets of situations to one of which the language of Section 1501 would squarely apply
Section 1501 will operate to lift the time bar in cases where the reassessment is initiated under section 148 to give effect to an order passed under the 1961 Act
Section 2972 is a provision enacted with a view to provide for continuity of proceedings in the context of repeal of one Act by a fresh one broadly containing analogous provisions and the transitory provisions should as far as possible be construed so as to affect such continuity and not so as to create a lacuna
It will therefore be appropriate to so read the words of section 2972dii as to permit the applica bility of section 150 or section 153 with the necessary modifications
18 G 19A B D E The last words of Section 2972dii should be read to mean that where the proceedings initiated under Section 148 subject to the relaxations and limitation of Sections 149 and 150 all the provisions of the Act shall apply accordingly that is to say in the same manner as they would apply in case of proceedings normally initiated under these provisions
Since reassessment proceedings so initiat ed to give effect to orders on appeal revision or reference will not be subject to a time limit the proceedings like wise initiated under Section 2972dii read with Section 149 will also not be subject to any limitations save to the extent mentioned in Section 1502
19 E F Income Tax Officer vs Eastern Coal Co Ltd  Commissioner of Income Tax  vs Kamalapat Moti lal  Ambaji Traders vs Income Tax Officer  Commissioner of Income Tax vs
TP Asrani  Jain vs Mahendra  Govinddas vs Income Tax Officer  Seth Gujannal Modi vs Commissioner of Income Tax  Third Income Tax Officer vs Damodar Bhat  Jain Bros vs Union of India   referred to