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S. Gopalakrishna and Bros., a Firm Represented by Its Managing Partner, S. Chandrasekaran Vs. S. Nagamanickam - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1983)2MLJ428
AppellantS. Gopalakrishna and Bros., a Firm Represented by Its Managing Partner, S. Chandrasekaran
RespondentS. Nagamanickam
Cases ReferredNarayanappa v. Krishnappa
Excerpt:
- .....respect to a tenant in respect of a building. the courts below have taken the view that since the site leased out to the petitioner was enclosed by four walls it should be treated as a building and, therefore, the petitioner cannot invoke the provisions of the act. but on a due consideration of the matter, i am not inclined to agree with the said view. 'building' has been defined in the said act as any building, hut or other structure, whether of masonry, bricks, wood and or metal or any other material whatsoever used for residential or non-residential purposes in the city of madras etc.8. according to the learned advocate general appearing for the respondent the definition will take in all structures whether of masonry, bricks, wood, mud or metal or any other material whatsoever which.....
Judgment:
ORDER

G. Ramanujam, J.

1. The petitioner herein filed an application, O.P. No. 40 of 1975 under Section 9 of the Tamil Nadu City Tenants' Protection Act, 1922, hereinafter referred to as the Act on the file of the District Munsif, Karur for a direction to the respondent to sell a vacant site that was leased to him and in respect of which he claimed benefits under the said Act. His case as set out in the original petition was as follows :--The property in question is a vacant site which belonged to the predecessor in title of the respondent, that in a partition the said property has been allotted to the respondent, that the said property was originally taken on lease by the petitioner's father, Swaminatha Pillai along with one Velayutha Nadar in the year 1952 for their partnership business in timber styled as Gopalakrishna & Company, that later Velayutha Nadar got out of the partnership on 7tb October, 1956 and Swaminatha Pillai became the sole proprietor of the business, that the superstructure erected by Swaminatha Pillai was put up by the firm, that Swaminatha Pillai continued to carry on the business by holding over after the expiry of the lease, that in a partition that took place in the family of Swaminatha Pillai on 11th June, 1958, his sons got the business and continued to carry on the said business under the name and style of 'Gopalakrishna and Brothers, that after the expiry of the lease a new lease deed was executed on 25tb October, 1962, that thereafter, on 1st August. 1974, at the instance of the respondent a portion of the leasehold property was surrendered to the respondent and he continued to foe in possession of the other leasehold portion and that having regard to the fact the petitioners' predecessor has erected the superstructure over the leasehold property and they continue to be the lessees they are entitled to the benefit of Section 9 of the Act which has been extended to non-residential buildings in Karur Municipality by G.O. Ms. No. 1285, Revenue, dated 31st May, 1975.

2. The respondent resisted the said petition contending that Swaminatha Pillai took the entire land in question along with compound walls on its four sides from the respondent on 25th October, 1962 for a period of 10 years commencing from. 10th October, 1962, agreeing to pay an annual rent of Rs. 2,000 and paid a sum of Rs. 1,000 as advance, that ever since the date of the said lease agreement the petitioner is carrying on his business in a portion of the property under the name and style of 'Gopalakrishna & Brothers', that it is not true that Swaminatha Pillai continued to run the business in the land in question by holding over after the expiry of the period referred to in the lease deed, dated 4th September, 1952, that the business carried on by Gopalakrishna and Brothers has nothing to do with the business carried on by Swaminatha Pillai and Velayutha Nadar and the same is entirely a new business, that the lease deed dated 23rd October, 1982, is not a renewal of the lease deed, dated 4th September, 1952, that the petitioner is not a tenant within the meaning of the Act, that the petitioner has no right to ask the respondent to sell the property to him, that the petition filed under Section 9 is barred by time and that in any event it is highly speculative without any merit.

3. The trial Court dismissed the said petition on the ground that what was leased to Swaminatha Pillai and Velayutha Nadar originally in the year 1952 and later to Gopalakrishna & Brothers in the year 1962 is a site enclosed by compound walls on four sides and, therefore, it should be taken to be a lease of a building, in which case the provisions of the City Tenants' Protection Act will not apply. The petitioner filed an appeal challenging the said decision of the trial Court before the lower appellate Court and the lower appellate Court also agreed with the trial Court holding that the petitioner is not a tenant, that in any event he is not a tenant of a land and that the petitioner and his predecessor had not put up any superstructures. On these findings, the lower Appellate Court dismissed the petition is maintainable and is not barred r; questioning the said findings of the lower Appellate Court in this revision as not legally sustainable.

4. It is not disputed that the petitioner has filed the application under Section 9 within 6 months from the date of the extension of the Tamil Nadu City Tenants' Protection Act to the Karur Municipality and, therefore, the petition is maintainable and is not barred by time. The only two questions that are now to be considered are: (1) whether Gopalakrishna & Brothers, the petitioner herein is a tenant of a land so as to enable him to claim the benefits under Section 9 of the City Tenants' Protection Act? (2) Whether the-petitioner can take advantage of the superstructures put up by his predecessor-in-title?

5. In this case the lower Appellate Court has. found that the petitioner who has invoked the benefit of Section 9 of the Act has not put up the building on the vacant land belonging to the respondent which was taken on lease by him but the superstructure having been put up by the predecessor in interest of the petitioner, the petitioner cannot seek the benefit of Section 9. Secondly he has held that what was leased out to the petitioner by the respondent in the year 1962 was a building and not a vacant site as the property leased out is a site enclosed by compound walls on four sides and therefore it should be treated as a building. The lower appellate Court has then proceeded to hold that since the lease it self is of a building and not a mere vacant site the provisions of Section 9 cannot be applied. The lower Appellate Court also found that the petitioner is not a tenant under the original lease deed Exhibit A-l or under the renewal lease deed Exhibit A-2, that the lease in favour of the petitioner in respect of the entire property has been duly terminated and a fresh lease in respect of a reduced extent has been given and, therefore, the petitioner cannot be taken to be a tenant under the original lease deeds at the time when he seeks the benefit of Section 9. The question is whether the said findings given by the lower Appellate Court could be legally sustained on the basis of the evidence available on record.

6. The following facts are not in dispute in this case. The petitioner's father Swaminatha Pillai and one Velayutha Nadar took a vacant site in T.S. Nos. 856, 858 and 859 measuring-east to west 150 feet and north to south 91 feet surrounded by compound wall on all four-sides under Exhibit A-l, dated 4th September, 1952, and put up certain structures in certain portion of the site taken on lease. Velayutha Nadar has retired from the partnership on 7th October, 1956 as seen from Exhibit A-4. After his retirement the business is being carried on by Swaminatha Pillai as sole proprietor of Gopalakrishna and Company, till 11th June, 1958, when Swaminatha Pillai allotted the business to his sons under Exhibit A-5 and thereafter his sons are carrying on the said business under the name and style of Gopalakrishna and Brothers. The firm Gopalakrishna and Brothers got a lease of the same property under Exhibit A-2, dated 25th October, 1962 again for a period of ten years. After the expiry of the Exhibit A-2 lease, the respondent filed a suit in ejectment, O.S. No. 459 of 1973. In that suit the petitioner filed I.A. No. 391 of 1973 for purchase of the property under Section 9 of the Act. That application was dismissed on the ground that the City Tenants' Protection Act has not been made applicable to non-residential buildings in Karur Municipality in G.O. Ms. No. 1345, Revenue, dated 25th March, 1956, but it only applies to residential buildings. The said suit also came to be compromised between the parties, and as per the terms of the compromise the petitioner has surrendered a portion of the leasehold property of an extent of 65 feet from east-west, 91 feet north-south on the eastern side of the entire leasehold property and continued to be in possession of the rest of the area for a period, of 7 years. The compromise also provided that the petitioner is entitled to the return of the advance amount of Rs. 1,000 paid under Exhibit A-l by Swaminatha Pillai after the expiry of 7 years. Thereafter, by G.O. Ms. No. 1285, dated 31st March, 1975, the provisions of the Act have been extended to the Karur Municipality in respect of non-residential buildings as well. Taking advantage of the said extension, the petitioner filed an application under Section 9, within six months from the date of the said notification. From the facts stated above, it will be clear that the petitioner's predecessor-in-interest who took the site with compound walls on all four sides put up superstructures thereon and carried on business. The said business had devolved under a partition on the petitioner and the petitioner is carrying on the same business under the name and style of 'Gopalakrishna and Brothers'. The initial advance paid by the petitioner's predecessor in interest has been given credit to by the respondent in the name of the petitioner and that position is made clear in the compromise referred to above. Though under the compromise the extent in the possession of the lessee, has been reduced, he still continues to be a lessee in respect of the rest of the portions on a lease for a period of 7 years. It is not, therefore, possible to agree with the view taken by the lower appellate Court that since the petitioner has entered into a new lease in respect of a restricted portion he should not he taken to continue as a tenant under the old leases. Exhibits A-l and A-2. Merely because the respondent terminated the tenancy under Exhibit A-2 and filed a suit in ejectment and the said suit was compromised under which the tenant has been granted a 7 years lease in respect of a portion of the property covered by Section 9 application, it cannot be said that the petitioner is not a tenant as defined in the Act. A tenant defined in Section 2(4) of the Act includes a lessee in possession of the land after the determination of the tenancy agreement. Since the petitioner continues to be in possession of the property after the determination of the lease, Exhibit A-2 and on the basis of the renewal, of the lease for a period of 7 years, he will clearly be a tenant as defined in the Act in respect of the area which he has retained after surrendering a portion of the leasehold property as per the compromise memo. It is not, therefore, possible to agree with the finding of the lower appellate Court that the petitioner is not a tenant as defined in the Act.

7. Then the further question is whether the-petitioner is a tenant of a land. It is no doubt true that the Act will apply only to-tenants in relation to land and not with respect to a tenant in respect of a building. The Courts below have taken the view that since the site leased out to the petitioner was enclosed by four walls it should be treated as a building and, therefore, the petitioner cannot invoke the provisions of the Act. But on a due consideration of the matter, I am not inclined to agree with the said view. 'Building' has been defined in the said Act as any building, hut or other structure, whether of masonry, bricks, wood and or metal or any other material whatsoever used for residential or non-residential purposes in the City of Madras etc.

8. According to the learned Advocate General appearing for the respondent the definition will take in all structures whether of masonry, bricks, wood, mud or metal or any other material whatsoever which is used for residential or non-residential purposes. I do not see how a site with four walls alone would come within the said definition of 'building'. According to the Advocate-General since compound wall is also a structure as contemplated by the definition, the site enclosed by the compound wall should be taken to be a building. Though the definition refers to structures, the structures should be such as one which could be used for residential or non-residential purposes. In this case the compound walls on all the four sides covering a large extent without any sort of roof over it cannot be used for residential or non-residential purposes. Therefore, merely because the site is enclosed on all four sides by compound walls the site cannot be taken to be a building. The learned Advocate-General in support of his submission that existence of compound walls will make the site leased out a building for the purpose of the Act refers to the decision of the Supreme Court in State of Bombay v. Sardar Venkat Rao Krishna Rao Gujer : [1963]1SCR428 . That case related to the question as to whether certain uncovered ottas and chabutres fell within the term 'building' as used in Section 5(a) of the M.P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950. Section 5(a) of the said Act provided that where any building belonging to the proprietor exists on any portion of the shadi land notified under the said Act, that land, together with the land appurtenant to those buildings, shall be entitled with the ex-proprietor. In that case though the lands covered by ottas and chabutres on which sheds had been constructed were settled with the proprietor, the land on which open uncovered ottas and chabutres existed was not settled. When the matter reached the Supreme Court, the Supreme Court held that having regard to the object of the Act merely because any structure of the proprietor was found on the land that structure and the adjoining land should be settled with the proprietor. Merely because the ottas and Chabutres were to be thus settled on that ground they cannot cease to be buildings for the purpose of the said Act. I do not see how the respondent can take support from the said decision. Here the site leased out was surrounded by compound walls on all four sides and if the mere existence of compound walls will make the site a building, then even if there is a compound wall one one side it could be brought within the definition of 'building' which, in my view, runs counter to the user aspect contemplated by the definition.

9. Normally, though the word 'building' in its literal sense will take in anything that is built on land, a mere compound wall will not amount to a building for a structure to be regarded as a building, should have walls; and a roof. In Moir v. Williams (1892) 1 Q.B. 217 Lord Echer has observed that the term building .generally means all enclosures of brick and stone covered by a roof, while considering the provisions of the Metropolitan Buildings Act, 1855, which dealt with residential houses. In Morrison v. Commissioners of Inland Revenue (1915) 1 K.B. 176 while dealing with the provisions of the Finance Act of 1910 the Court has made the following observations :

It is quite clear that the expression 'buildings' does not mean everything that can by any manner be described as built, it means buildings in a more narrow sense than structures, because there are other structures: of a limited class which under the terms of the sub-section may also be taken into consideration.

In Samuel Smali v. Parkway Auto Supplies 1949 A.L.R. 1361 the following observations are found :

The word 'building' in its ordinary sense denotes 'a structure or edifice' including a space within Its walls and usually covered with a roof, such as a house, a cherty a shop, a barn or a shed. The word 'building' cannot he held to include every species of erection on land, such as fences, gates or other like structures. Taken in its broadest sense, it can mean only an erection intended for use and occupation as a habitation or for some purpose of trade, manufacture, ornament or use, constituting a fabric or edifice, such as a house, a stair, a church, a shed....

It is no doubt true, the meaning to be given to a word must depend upon the enactment in which that word occurs and the context in which it is used. In this case, having regard to the definition! of 'building' which refers to a structure made of whatever material for residential or non-residential purposes, a mere compound wall without a roof cannot be taken to come within the definition of 'building'.

The definition taken is only an erection intend-ed for use and and occupation as a habitation. Since the mere compound wall cannot be used as a habitation for residential or non-residential purposes, it cannot clearly come within the definition of 'building'. The Courts below are, therefore, in error in holding that the petitioner is a tenant of a building, and, therefore, he cannot invoke the benefit of Section 9 of the Act.

10. Coming to the next question as to whether the petitioner can take the benefit of the superstructure erected by his predecessors-in-interest, the learned Advocate-General relies on the decision of Ramamurti, J., in Ramachandra Naidu v. Parameswaran Nair : (1970)1MLJ578 in support of his case that the petitioner cannot take benefit of the superstructure erected by his predecessors-in-interest. I do not think that the said decision supports the plea made by the learned Advocate-General. In that case the suit was filed by a tenant for a declaration that he is entitled to the right under the City Tenants Protection Act. There the tenant, at the time of the filing of the said suit, had ceased to be a tenant as he had. already surrendered possession to the lessor. It is for that reason the Court held that the tenant who has surrendered possession to the lessor without removing the superstructure the superstructure becomes part of the land of the lessor and vests n him. In this case though there was surrender by the petitioner it was only a portion of the leasehold property and the petitioner continued in possession of the rest of the properties and, therefore, it cannot be said that he has ceased to be a tenant as defined in the Act.

11. In Hasarath Sayed v. Ibrahim Sahib : (1960)1MLJ475 M.W.N Rajagopalan, J., had dealt with a case where the lessor filed a suit in ejectment which ended in a compromise decree and the question was whether the tenant in possession under the terms of the compromise decree could claim the benefits of Section 9 of the Act. In that case the compromise decree provided that the tenant should continue to be in possession for

12 years from the date of compromise and after that period he should surrender possession. In the meanwhile, the provisions of the Act were made applicable to Tanjore where the property covered by the suit was (sic). The tenant made an application under Section 9 of the Act within the statutory period. The Court held that the statutory right which Section 9(1) provided could be claimed where the Act applied independent of the terms of any contract and subject only to the conditions in the proviso to Section 12 of the Act, that even independent of the provisions of Section 10, Section 9 itself would apply because the respondent was a tenant entitled to the benefits of Section 9 and against whom a suit in ejectment has been filed and, therefore, the application filed under Section 9 by the tenant is maintainable. In the case before us the tenant who was holding over after the expiry of the lease continued in possession on the basis of the compromise decree for an agreed period of 7 years and, therefore, the said decision squarely applies! to the facts of this case. That a superstructure had been erected by the predecessors-in-interest of the petitioner is clear from Exhibit A-2, the lease deed executed between the parties in the year 1962, which clearly refers to the construction of sheds by Gopalakrishna and Brothers as, lessees and also the electricity service obtained by him, while dealing with the rights of the lessee. Exhibit A-4 release deed executed by Velayutha Nadar in favour of his co-partner. Swaminatha Pillai also indicates that subsequent to the lease deed, Exhibit A-l, dated 4th September, 1952, the lessees have put up a tiled shed wherein the timber business is being carried on. The Courts below have not taken into account the recitals in Exhibit A.4 on the ground that it is not a registered document. But, it is well-established that even though the partnership assets consist of immovable property, a relinquishment by one partner of his share in the partnership need not be registered, for the interest of a partner in partnership assets though comprising of immovable or movable properties should be treated as only movable property. (Vide the decisions of the Supreme Court in Narayanappa v. Krishnappa : [1966]3SCR400 . Apart from this, we have the categoric evidence of P.W. 1 to the effect that in the leasehold plot his father Swami-natha Pillai and Velayutha Nadar constructed a brick-built office room and two big tiled sheds, one measuring 90' x 30' and another measuring 60' x 16' with a tiled verandah adjoining it. 12. For the foregoing reasons, the decisions of the Courts below cannot be upheld and they are, therefore, set aside. The petitioner should be taken to be a person who is entitled to the benefits of Section 9 of the Act. The civil revision petition is allowed and the matter is remitted to the trial Court for further steps to be taken. There will, however, be no order as to costs.

13. It is made clear that the petitioner will be entitled to claim the benefit of Section 9 only in relation to the area on which he has put up construction and the adjoining land necessary for the convenient enjoyment of the same.


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