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Kurian and anr. Vs. Job and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 507 of 1972
Judge
Reported inAIR1975Ker175
ActsTransfer of Property Act, 1882 - Sections 108
AppellantKurian and anr.
RespondentJob and ors.
Appellant Advocate M. Abraham, Adv.
Respondent Advocate T.S. Venkiteswara Iyer,; P.K. Balasubramaniam and; O.O.
DispositionAppeal dismissed
Cases ReferredDohorty v. Allman
Excerpt:
.....- appeal against grant of mandatory injunction - appellant directed to remove construction made on leased property - construction proved to be permanent one - terms of lease prohibit appellant from carrying out construction - impugned order does not require interference. - - held that the lessor was entitled to an injunction requiring the demolition of the house as well as the other buildings. the tenant's duty in this respect, is correlated to the landlord's right and the breach of that duty clearly aives the landlord an enforceable right. those paragraphs deal with cases of waste and not case like the present. 7. the provisions of section 108(p) imports a negative covenant and the law is well settled that 'in the case of a negative covenant or stipulation the court will in general..........had made no reference to section 108(p), transfer of property act, which prohibits the erection of permanent structures in the leasehold without the consent of the landlord and that as there was no consent the primary question to be decided was whether the structures attempted to be put up by them were permanent structures. this court accordingly set aside the decision of the appellate court and remanded the appeal for fresh disposal. the lower appellate court has now found that the structure constructed by the defendants is a permanent one and has in that view issued a mandatory injunction directing them to demolish it within two months, failing which the plaintiffs were allowed to get it removed through court.2. counsel for the appellants contended in the first place that in the nature.....
Judgment:

G. Balagangadharan Nair, J.

1. Appellants were the two defendants in a suit for injunction brought by the original plaintiff-respondent, now represented by his legal representatives additional respondents 2 to 4. They are tenants of a non-residential building by the side of the road on the east and a room further west and the intervening space in between. The building and room were taken on rent for running their trade. The building is marked 1, the room 2 and the vacant space 3 in the sketch Ext. C-2 prepared by a Commissioner. The vacant space is the B Schedule to the plaint. The plaintiff sought a prohibitory injunction restraining the defendants from constructing any building in or altering the nature of the B schedule property and a mandatory injunction directing them to remove the structures put up by them without his knowledge or consent. The main ground of the defence was that they were putting up a shed in the B Schedule with the consent of the plaintiff, that they would remove it at the time of surrendering the lease and that in such circumstances the structure was not liable to be demolished. The trial Court found that the structure was put up by the defendants with the consent of the plaintiff and that there was accordingly no ground for granting the injunction. On appeal the Appellate Court held in the first instance that it was not very necessary to consider whether the defendants had the plaintiff's consent as it thought that during the currency of the lease it was open to the defendants to use the B Schedule land for constructing a room and that at the most what the plaintiff could require was restoration of the property to its original condition at the time of the surrender. On this finding the appeal was dismissed. The plaintiff thereupon came to this Court in S. A. 749 of 1968. By the judgment dated January 11, 1971, this Court held that there was no proof of the agreement set up by the defendants permitting construction of the building and that the only question was whether they were entitled as lessees to put up the structure. It was further held that the courts below had made no reference to Section 108(p), Transfer of Property Act, which prohibits the erection of permanent structures in the leasehold without the consent of the landlord and that as there was no consent the primary question to be decided was whether the structures attempted to be put up by them were permanent structures. This Court accordingly set aside the decision of the appellate court and remanded the appeal for fresh disposal. The Lower Appellate Court has now found that the structure constructed by the defendants is a permanent one and has in that view issued a mandatory injunction directing them to demolish it within two months, failing which the plaintiffs were allowed to get it removed through court.

2. Counsel for the appellants contended in the first place that in the nature of the direction in the second appeal to determine whether the structure was a permanent one the lower appellate court should have either taken evidence itself or remanded the suit to the trial court for that purpose and that the omission to do so has prejudiced his clients. The judgment in S. A. 749 of 1968 does not indicate that the appellants made any request for opportunity to give evidence. What is more it shows that this court directed that the question whether the structure was a permanent one or not has to be decided on the materials in the court, thus excluding any remand for taking evidence by the lower appellate court. The appellants themselves have no case that they made any motion to give evidence before the lower appellate court. I see no ground to allow a remand particularly as the materials in evidence are sufficient to enable an adjudication.

3. The records show that the appellants started the construction of a granite wall partly behind item No. 1 building and along the northern border of plot No. 3 on the line CDEF in Ext. C-2. The appellate judgment shows that It was admitted that subsequent to the suit the granite wall had been completed with a door and two windows in it and that a tiled roof has also been constructed over plot No. 3. thus converting the whole into a room. The appellate court has held that this constitutes a permanent structure within Section 108(p), Transfer of Property Act. Whether a structure is permanent or not has to be decided on the facts of each case considering its nature and extent and the intention with which it is erected. Here the construction consists of a room with a tiled roof and a wall of granite and mortar. The nature and extent of the construction and the materials that have gone into the construction are by themselves sufficient to justify the finding about the permanency. That the defendants intended to erect a permanent structure is further clear from their contention in the written statement that they were planning to construct a room for storing their stock-in-trade. They had also contended that they were prepared to remove the construction at the time of surrender of the lease, which again discloses an intention that the structure was to be a permanent and durable one. It was also their contention that the new construction would add to the utility, appearance and value of the building and that it is highly essential for the convenience of their trade. These contentions unmistakably show that the defendants intended that the room should be a permanent one which should last at least until they removed it at the time of vacating the premises. These pleas coupled with the nature of the construction leave no room for doubt that the structure is a permanent one and that it is contrary to the provisions of Section 108(p).

4. Counsel for the appellants strongly contended that even if the structure which they had constructed is a permanent one there was no ground to issue a mandatory injunction. Indeed counsel went so far as to contend that the court has no jurisdiction to direct removal of the room during the currency of the lease. Section 108(p), as also the other clauses of the section stand imported into the tenancy in the absence of a contract or local usage to the contrary, and the appellant's case that they had the plaintiff's permission to put up the structure having been rejected, it follows that they had committed a breach of the provisions of Clause (p) by constructing this permanent structure. The appellants' contention poses the question whether the plaintiff-landlord has a present remedy to ask for its removal or whether he should be compelled to wait till he evicts the appellants. In Chhedi Manjhi v. Mahipal Bahadur Singh, AIR 1951 Pat 600, the tenant constructed certain pucca brick structures and the landlord sued among other things, for their removal. A Bench of the Patna High Court referred and after citing a decision of the Madras High Court in Ismaj Kani Rowthan v. Nazarali Sahib, (1904) ILR 27 Mad 211, that the rules laid down by the Transfer of Property Act substantially reproduce the law as it stood before, and the lessor has an option either to take the building or to pay compensation for it or if he is unwilling to pay the compensation to allow the tenant to remove the building, held:

'And there is no reason why, during the continuance of the lease, if the landlord objects to the erection of permanent structures, those permanent structures should not be removed. If there is no waiver or acquiescence and if the equitable doctrine of estoopel by acquie scence cannot be invoked, then Clause (p) of Section 108 must operate and the lessee cannot be allowed to construct permanent structures except for agricultural purposes.'

In this view the learned Judges upheld the mandatory injunction granted by the Courts below directing removal of the structures. In Dpraikannu Ammal v. Ramaswami Mudaliar, AIR 1940 Mad 32, the lessee of a land given for laving out a flower garden, erected cattle shed and his assignee erected in its place dwelling houses and other masonry structures. Leach, C. J. and Kunhiraman, J. held that the lessor was entitled to an injunction requiring the demolition of the house as well as the other buildings. Counsel for the appellants however sought to distinguish this decision, contending that the structures with which it was concerned were calculated to injure the leasehold permanently. This is not correct for the learned Judges refer not only to Clause (o) but also to Clause (p) of Section 108. In Kehari Singh v. Holasi, AIR 1914 All 285, a tenant who was holding Abadi land under a Zamindar had built a compound wall and two rooms in the property. There was no custom in the village under which tenant could erect new buildings without the permission of the Zamindar. The Zamindar sued for eviction of the tenant on the ground of these unauthorised constructions and for an injunction for their removal. The Court held that the construction although unauthorised provided no ground for eviction but being unauthorised the Zarnindar could ask for their demolition. There is no reference in this decision to Section 108(p) but that is immaterial for the learned Judge found that the pacca constructions made by the tenant were not sanctioned by the village custom governing the lease. That being so the same principle must apply to a construction which is in breach of the provisions of Section 108(p). These three decisions establish that a landlord is entitled even during the subsistence of the lease, to ask for the removal of permanent structures erected by the tenant, contrary to Section 108(p) or the custom governing the lease.

5. As against the above decisions counsel for the appellants relied upon Punnam Satvanarayana v. Vegosina Narayana Raju, (1964) 1 Andh WR 337. A tenant constructed, among other things, two brick walls in the leasehold and the landlord brought a suit asking for their removal. A learned Judge of the Andhra Pradesh High Court refused the injunction holding that 'As the defendant has been found to be a lessee of the plaintiff. I do not think the mandatory injunction for demolition of the walls should be issued. It is not shown that the erection of these walls constituted an act of waste; nor is it shown that it will not be possible for the defendant when his lease terminates or when he is evicted, to restore the property to the plaintiff in the same condition in which it was taken by him on lease, from the plaintiff. The decision does not consider whether the act of the tenant was in violation of any covenant of the lease or whether the structure was a permanent one and it also makes no reference to Section 108(p) or to any of the earlier decisions bearing on the question, If the decision can be constructed as covering the point in the present case I do not find it possible, with erect respect, to agree that for breach of the term of a lease prohibiting the construction of a permanent structure either in itself or by virtue of Clause (p) of Section 108, a mandatory injunction should not issue or that it could issue only where the tenant is unable to restore the property to the landlord in the same condition in which it was taken by him at the time of the lease. In my view, there is no reason why the landlord's right under Section 108(p) should be abridged in this manner or the tenant should be licensed to commit breach of the covenant. The tenant's duty in this respect, is correlated to the landlord's right and the breach of that duty clearly aives the landlord an enforceable right. I find no principle to suspend that right till the time he evicts the tenant. With great respect I prefer the decisions cited earlier which have held that the landlord is entitled to an injunction.

6. Counsel for the appellants also referred to paragraphs 1240 and 1241, Volume 23, 3rd Edition of Halabury's Laws of England. Those paragraphs deal with cases of waste and not case like the present. Indeed Perivanan Chetty v. Govinda Rao, AIR 1932 Mad 328 at p. 336, shows that under the English Law a tenant may lawfully erect buildings which improve the value of the land. Even so, it is worth reading the following passage from paragraph 1284 of the same Volume of Halsbury:

'A breach of an express covenant against making alterations or erecting new buildings will be enforced by injunction.'

This extract supports the view that the Court is not powerless to issue an order of injunction in the present case.

7. The provisions of Section 108(p) imports a negative covenant and the law is well settled that 'In the case of a negative covenant or stipulation the Court will in general enforce compliance by injunction without regard to the question of convenience or the amount of damage caused.' (Halsburv's Laws of England, Volume 21, 3rd Edition, paragraph 744). The following passage from the speech of Lord Cairns L. C. in Dohorty v. Allman, (1878) 3 AC 709, is worth reading :

'If parties, for valuable consideration with their eyes open, contract that a particular thing shall not be done, all that a Court of Eauity has to do is to say by way of injunction, that which the parties have already said by wav of covenant that the thing shall not be done: and in such case the injunction does nothing more than give the sanction of the process of the Court to that which already is the contract between the parties.'

Counsel for the appellants made a final submission that a decree for damages might be substituted for the injunction and that it will serve the justice of the case. There is no plea in the written statement nor even a ground in the memorandum of appeal in this regard, much less any evidence as to what would constitute adeauate damages. Apart from the question whether damages would meet the requirements of the case, this belated plea must fail on this short ground.

8. I confirm the judgment and decree of the Court below and dismiss the appeal with costs.


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