Chandra Reddy, C.J.
1.This appeal under Clause 15 of the Letters patent is against the judgment of Bhimasankaram, J. affirming that of the Subordinate Judge, Vijayawada in Appeal No. 17 of 1955.
2. The facts culminating in this appeal lie in a short compass and may be staled as follows. A vacant sitemeasuring 1060 sq. yards situate in the heart of Vijayawada town and belonging to one Syed Abdul Khayum Saheb and his brother was leased out to one Motey Narayana Rao of Elirru in 1922 for seven years for the purpose of erecting a theatre on the site. It was provided in the lease deed that after the expiry of the lease, the theatre should be dismantled and the vacant site delivered back to the lessor. There was a term in the lease deed to the effect that the brick walls constructed by the lessee of few months before the lease started with the permission of the lessors should be relinquished in favour of the lessors; Somelime In the year 1929, the present respondent purchased the superstructure erected by Motey Narayana Rao and obtained a lease of the land from the owners thereof This was followed by a subsequent lease from Khayum Sahib, who had by then become the sole owner of the property, on 8-7-1930 for a period of ten years and marked as Ex. B-1. This lease provided a rent of Rs. 50/- per month. It was 'inter alia' stipulated between the parties that the lessor would have the right to the brick compound wall on the northern and western sides with the doors and door-ways and the gable wall situate on the-southern side of the site and that the theatre should be removed by the lessee at the end of the period at his expense. The further provisions of the lease, which has a material bearing on this enquiry, may be translated thus:
'At the end of the period of the lease, we shall without making any claim for ourselves relinquish in your favour three rooms which are below the cabin room in the north and in a line with the terrace, which have been built by me at an expense of about Rs. 5000/-.'
3. On the termination of this lease on 8-7-1940, the lessor instead of taking possession of the property let It out for a further period of ten years to the respondent under Ex. B-2. As the controversy ranges over some ot-the terms of this deed, we will do well to extract the material clauses of the deed.
A. The second party previously took on lease the schedule mentioned vacant site till 8-7-1940. From the expiration of the said lease, It arranged that 2nd party should take on lease for a further period of ten years till 8-7-1950. At present the second party is still in possession without objection.
B. xx xx xx xx xxC. The second party shall pay a rent of Rs, 75/- atthe end of every month, and in default it is also agreedto pay interest at the rate of 0-8-0 per cent per month The second party shall take a receipt for each month's rent paid at the end of each month. The second party shall deduct Rs. 900/- from the rent payable for the fast year of the lease without interest.
D. Immediately on the expiration of the lease on 8-7-1950, the second party shall deliver possession of the Immovable property without the necessity for any notice from the first party.
E. XX XX XX XX
F. In the schedule mentioned site there is the cabin
room on the northern side. Under the cabin room, there are three rooms. There is an agreement that at the end of the lease period, the second party shall hand over the Said rooms without objection. That apart, it is agreed that the second party should deliver possession of the western and northern compound walls, with the doors and doorways etc. The gable wall on the south also belongs to the first party at the end of the lease period.
The schedule annexed to the lease deed describes only the vacant site but does not mention either the walls on the western or the northern sides or the cabin and the rooms adjoining it.
4. It is seen that there is no material difference between the first lease and the second one except that under the second lease the rent was enhanced from Rs. 50/- to Section 75A. On the expiry of the lease, the lessor required the lessee to surrender possession of the vacant site after dismantling the theatre and removing the material. The lessee claiming protection under the Madras Buildings (Lease and Rent Control) Act, 1949 (25 of 1949) (hereinafter referred to as the Act) refused to comply with the demand. Consequently, the lessor was obliged to lay the action out of which this appeal has arisen.
5. In resisting the suit, the defendant invoked Section 7 of the Act and pleaded that the Civil Court had no Jurisdiction to entertain the suit.
6. The trial Court came to the conclusion that what was leased out was a 'building' but that it had jurisdiction to take cognisance cf the suit. In that view, it passed a decree but held that it could not be executed so long as the Act was In the statute book.
7. On appeal, Bhimasankaram J. concurred in the opinion of the Subordinate Judge and affirmed the decree of the trial Court. It may be mentioned here that pending the suit the plaintiff died and plaintiffs 2 to 5, who are his hairs, were joined as parties. Subsequently, the 5th plaintiff died and her heir was impleaded as the 7th plaintiff.
(8) Aggrieved by the judgment of Bhimasankaram J. plaintiffs 2, 3 and 4 have preferred this Letters Patent Appeal.
(9) The short question that falls for determination is whether Section 7 of the Act governs this litigation. This in its turn, depends upon whether the lessee is a 'tenant' and whether the subject-matter of the litigation is a 'building' As the controversy centers round Sections 7 and 2 of the Act,, it is convenient to quote them here, in so far as they are relevant for the present purpose.
'Section 2(1): 'Building' means any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purposes and includes-
2(4): Tenant means any person by whom or on whose account rent is payable for a building and includes the surviving spouse, or any son or daughter, of a deceased tenant who had been living with the tenant in the building as a member of the tenant's family up to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not Include a person- placed in occupation of a building by Its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter-house or of rents for shops has teen framed out or leased by a Municipal Council or local Board or the Corporation of Madras.
Section 7(1): A tenant shall not be evicted whether In execution of a decree or otherwise except in accordance with the provisions of this section.'
10. Indisputably, the lessee could have recourse to Section 7 of the Act, if he could fall within the terms of Section 2(4). But, in order to fulfill that definition, what Is leased out must be a building within the contemplation of Section 2(1). The definition of 'building' in Section 2(1) is not very helpful, as it does not say what element should be present to constitute a 'building'. The Act has not used that word as a term of art. It is used in the ordinary sense of a house. What is argued by Sri Narasimha Rao, learned counsel for the appellants, is that as the subject of lease was only a vacant site, the lessee could not derive any benefits of this Act. In order to entitle a person to the advantages of the Act, he must be a 'tenant' of a 'building'. Here, as the lease was of a vacant site, as could be gathered from the several clauses of both Exhibits B-1 and B-2, the Act would be of any avail to the respondent, proceeds the argument of Sri Narasimha Rao.
11. This is countered by the learned counsel for the respondent by saying that though what was originally let to Motey Narayana Rao was a vacant site, the lessee had then erected a theatre and built wails around portions of the site with doors and door-ways therein and when the defendant entered Into an agreement with the plaintiff for taking on lease there was a hall covered with a roof of zinc sheets with a cabin and three rooms standing on it and the land was leased out to the respondent to run the theatre and consequently the lease was of a building within the contemplation of Clause (1) and (4) of Section 2. Alternatively, it was contended that both under Exhibits B-1 and B-2, the site as also the cabin and the three rooms were let cut to the respondent and as such the definition of 'building' under Section 2(1) is attracted.
12. In our opinion, both the contentions raised on behalf of the respondent are well founded. Assuming that what was leased out was a vacant site, it should be regarded as a building in view of the fact that It had a super structure and it was taken on lease for the purpose of running the theatre. The object of taking on lease this land was not put the land to use as a mere vacant space but to help the lessee to run the theatre of which he was the owner. The land on which the superstructure stands forms the integral part of the building. The theatre could not exist at the relevant time without relation to the site which afforded the foundation therefore and on which the fabric of the building stood. It is difficult to conceive of a building without the land which supports the super-structure. Therefore, when a vacant site which has already a superstructure thereon is leased out with the object of enabling the lessee to put the building to use, the lease should be deemed to be of the building within the purview of Section 2 (1) of the Act.
13. We are supported in this view of ours by the Judgment of a Bench of the Madras High Court in J.H. Irani v. Chindambaram Chettiar, . There, the question was whether the lease of a piece of land on which the Gaiety theatre stood besides other superstructures felt within the ambit of the Madras Buildings (Lease and Rent Control) Act, 15 of 1946. In a suit for eviction of the lease from the demised land the defendant contended that the Civil Court had no jurisdiction to entertain the suit and the only remedy for the plaintiff was to proceed under Act 15 of 1946 for eviction. So the question posed itself in that case was whether the properly leased out was a 'building' within the meaning of the Act and it was answered in the affirmative. The learned Judges ruled that the building consisted of not only the superstructure but also the site on which the superstructure stood and In which the foundation for the superstructure was erected, that a mere superstructure dissociated from the site on which it stood could not, in law be considered to be a building and that letting of a piece of land apart from the buildings belonging to me lessor was not a letting of a vacant land at the time it was let to the first defendant.
14. In support of their conclusion, the learned Judges referred to the observations of Lord Atkinson in Corporation of City of Victoria v. Bishop of Vancouver Island. (1921) 2 AC 384: (AIR 1921 PC 240) where it was pointed out that a building in the ordinary parlance 'comprises not only the fabric of the building but the land upon which It stands'. In the course of his Judgment, the learned Law-Lord observed:--
'It is impossible to conceive the public worship of God being carried on in a building without the use of the land which it embraces within its walls, as it Is impossible to conceive walls existing without the support, direct or indirect, of the soil of the earth.'
15. It is argued by Sri Narasimha Rao, that does not embody sound law, that it requires re-consideration and that the correct principle on the subject is stated in Pratullachandra Ghoush v. SheiK Shamsuddin, ILR (1946) 2 Cal 326. We are persuaded that there is really any conflict between the two above-cited cases.
16. The point for consideration in the Calcutta case was whether the lease contained a stipulation to the effect that the buildings to be erected in future on the premises, by the lessee should be let to the tenants or their predecessors. At the time of the lease, there was no buildings in existence. Under the terms of the lease the lessee had to put up some building for his own use during the subsistence or the lease and surrendered them to the lessee on the expiration of the lease without any compensation. So, at the inception what was let was only vacant land on which the lessor had to erect buildings, and the ownership in the buildings would pass to the lessor only on the determination of the lease. During 'the continuance of the lease they were regarded as properties of the lessee, as could be seen from the clause which provides that
'if the entire premises were acquired by the Government or by the Municipality for any public purposes, then the lessees would be entitled to compensation allowed for the buildings only'.
In such a situation, the learned Judge negatived the contention of the lessor that the building erected by him became the property of the lessor and that It must be deemed to have been demised to him during the subsistence of the lease. That case does not afford any analogy here because in the Calcutta case on the data of the lease there was no superstructure on the site but a mere vacant land on which a building was to be put up in future unlike the Madras Case and the case on hand and the purpose of the lease was to put the land to use as such. Even independent of this distinction, in our opinion, the law as stated in is correct and does not require re-consideration.
17. Even assuming for the sake of argument that the vacant space on which the fabric of a building stands could not be considered to be a 'building' for the purpose of Section 2(1) of the Act, the respondent would still be a 'tenant' within the scope of Section 2(4) of the Act, as what was leased out was not merely a vacant land but also a cabin and three rooms which undoubtedly would answer the description of 'building' within the contemplation of Section 2(1). As would appear from the terms of the two leases, the cabin and three rooms came Into existence even prior to Ex. B-1. It transpires that Immediately after the respondent purchased the theatre from Motey Narayana Rao end obtained a lease of the vacant site from the predecessor-in-interest of the appellants, he constructed the cabin and the three rooms. It was stipulated that at the end of the lease the lessee should leave the cabin and the three rooms to the lessors without claiming any compensation.
18. It is conceded that If the second lease from 1940 was in favour of a third party, it would have been of a building as contemplated by Section 2(1). But what is argued is since the lease was renewed in favour of the same party and since the less or would not acquire any title to the immovable property without a formal deed but only a right to enforce the contract, the lease would not include 'building'. As substantiating this proposition reliance is placed by Sri Narasimha Rao on or. Dhairyawan v. Thakur, : 1SCR799 .
19. We do not think that this case would lend any assistance to the appellants. The point that arose for consideration there was similar to the one involved In ILR (1946) 2 Cal 328 namely, whether a lease demising a parcel of land without any building thereon would fall within the terms of that Bombay Rents, Hotel and Lodging House Rates Control Act (LVII of 1947). The suit for eviction of the lessee after the lease had come to an end was resisted by the lessee on the contention that ha had the status of a statutory tenant i.e. that he was entitled to the benefits of the Act. The basis of the claim of the tenant was that under the lease the lessee had to construct within the agreed time a double-storeyed building consisting of shops at a cost of not less than Rs. 10,000/- and to the satisfaction of the lessor's engineers and on the termination of the lease either at the end of twenty one years or earlier, the lessees were to surrender and yield up the demised premises including the building with the fixtures and appurtenances to the lessors without any compensation for the same. The argument founded on this clause was that as ownership of the building vested in the lessors, what was leased out must be deemed to be the land and the building thereon. When the matter ultimately reached the Supreme Court, this contention was repelled in the view that the ownership in the building to be constructed did not pass on to the lessors under the lease, that during the subsistence of tha lease it remained with the lessees and the lessors acquired title to the properties only after the expiry of the lease and that there was no contract between the parties to the effect that the building to be erected on the land would be in the ownership of the lessors and the same would be deemed to have been demised to the lessees along with the land. In that position, their Lordships ruled that there was Ho scope for the argument that the building that came into existence during the continuance of the lease with the superstructure was also the subject matter of the lease and that what was leased out originally was only a vacant site. This pronouncement, therefore, cannot countenance the theory that notwithstanding the fact that the original lease left the superstructure and the building to the lessor at the determination of the lease arid the vacant site along with the buildings was put in possession of the subsequent lessee, the lease could be regarded as of land alone.
20 It is true that the schedule attached to the lease describes the vacant site alone but not the buildings, But in construing a lease we should have regard to the substance thereof and rot to mere form. It is not the case of the appellants that they retained the cabin and the three rooms adjoining it for that lessors use. On the other hand, it is conceded that the respondent was to have not only the use of the vacant site but also the cabin and the three rooms. In fact, they were the adjuncts of the theatre, and the theatre could not be put to the best use without the cabin and tha three rooms. The argument of the learned counsel for the appellants that not withstanding the clause to the effect that the lessee should hand over the cabin and the three rooms to the lessee without dismantling them and without asking for any compensation the lease was in respect of the site alone, is devoid of any substance especially having regard to one of the reliefs in the plaint. Prayer (a) in the plaint is for ejecting the defendant from the A schedule site and directing him to give vacant possession of the same after removing at his own cost all other conslructions and structures standing in the said site together with the machinery rooted therein other than those referred to in the plaint 'B' schedule. Schedule 'B' comprises inter alia the cabin and the three rooms. It is clear that the lessor plaintiff treated himself as the owner of the cabin and the three rooms the respondent did not question the title of the plaintiffs to these properties. !t is, therefore, futile to contend that the ownership of these rooms did not vest in the plaintiffs without a formal document.
21. Section 108 of the Transfer of Property Act does not in any way detract from the right of the plaintiffs to these properties. This section, which eumerates the rights and liabilities of tha lessor and the lessee, gives right in the shape of Clause (h) to the lessee to remove even after -determination of the lease all things which he attached to the earth at any time while he was in possession of the property leased out but not afterwards, provided that had left the property in the state in which he received it. The right of the lessee to dismantle the building and to remove the debris is not put in issue and In fact no such claim Is put forward. The claim of the plaintiffs to this part of the building was never in dispute' and, as we have already pointed out, the parties proceeded on the assumption that the title to the cabin end the three rooms inhered in the plaintiffs. In these circumstances, we have no hesitation in agreeing with the concurrent finding of fact that the lease included the building mentioned above arrived at by the trial Court and by Bhimasankaram J. and as such the provisions of Section 7 read with Section 2 of the Madras Act XXV of 1949 are attracted. It follows that no exception could be taken to the conclusion of our learned brother.
22. In the result, the judgment under appeal is affirmed and the appeal dismissed with the costs of the respondent.
C. M. P. No. 12793 of 1961 :-- Not pressed, Dismissed.