S. Ramachandra Iyer, C.J.
1. This appeal which is directed against the judgment of Venkatadri, J. arises out of a suit instituted by the respondent for eviction of the appellant after removing the superstructure standing on the property and for arrears of rent. The appellant had, presumably with the permission of the respondent, put up a superstructure on the land which forms the subject-matter of dispute in this case. While the superstructure was in existence, the appellant obtained a lease from the respondent, the owner of the site, for a period of five years. Under the terms of the lease deed, the appellant agreed to surrender possession of the land after the period of the lease and during the interim period, not to sell or otherwise alienate the superstructure without the permission of the landlord. After the termination of the lease, the respondent instituted a suit for recovery of vacant possession of the land and for arrears of rent. The land is situate in the village of Jayankondam to which the provisions of the Madras Buildings (Lease and Rent Control) Act have been extended by the Madras Government. The appellant contested the suit claiming that, as the property leased was a building within the meaning of the Act referred to above, he could not be evicted by a civil Court. The trial Court accepted that contention, and while passing a decree for eviction, and arrears of rent, prayed for by the respondent, it gave a declaration that the respondent could evict the appellant only in accordance with the provisions of the Madras Buildings (Lease and Rent Control) Act. But an appeal against that decree by the respondent to the Subordinate Judge, Tiruchirappalli, proved successful. The learned Subordinate Judge held that the lease was of the land and not of the buildings, and therefore, the appellant would not be entitled to the protection under the Act. This view was affirmed in Second Appeal by Venkatadri, J., who, however, granted leave under Clause 15 of the Letters Patent for a further appeal.
2. The only question in this appeal is as to what exactly was leased to the appellant by the respondent. There is no controversy that the site alone is the property of the respondent, and that at the time when lease was granted, there was a superstructure belonging to the appellant on the property. Whether, in such a case, i.e., where there is a lease of a site on which a building stands, the superstructure not being owned by the landlord, the lease is of a part of a building, or a vacant site has been the subject-matter of more than one decision in this Court. It is sufficient for the present purpose to refer to the decision in Irani v. Chidambara Chetti (1952) M.L.J.221. In that case, there was a lease of a vacant land on which the tenant had put up a cinema theatre. That lease expired and the person who obtained an assignment of the tenancy earlier obtained a fresh lease from the owner of the site while the cinema theatre was standing thereon. In a suit for eviction instituted against the tenant, the benefits of the Madras Buildings (Lease and Rent Control) Act were claimed by the lessee that is the owner of the superstructure, who had obtained a lease of the land. A Bench of this Court held that, there being a building on the land at the time when lease of the land was granted, the subject-matter of the lease could be regarded only as a part of the buildings, and that therefore the lease was of a building within the meaning of the Act. Satyanarayana Rao, J. delivering the judgment observed at page 227:
Obviously the letting of the land was for the purpose of carrying on cinema business and it was well known to the parties that the structure of the theatre owned by the first defendant was already there and what was being granted in substance and in effect under the lease was the right to continue the structure on the land as a building, as without the land the structure cannot stand. Taking all the facts into consideration, what was leased under Exhibit P-9 was the entire property with its compound walls and with the buildings of the lessor shown in the plaint plan Exhibit P-1, together with the site on which the superstructure was erected and which gave continuous support to the building and the other vacant space around it. This, undoubtedly, is part of the building known as the Gaiety Theatre. So, the lessor leased not only his building, but also part of the building of the Gaiety Theatre, under the document. What was leased therefore, was not merely a vacant land, the small shed in the east of the site belonging to the lessor being only an insignificant portion to be left out of consideration altogether, as contended on behalf of the appellant.
3. It will be noticed from the earlier part of the judgment that the learned Judges did not regard the compound wall and the sheds on the east as constituting a building. The lease of the site of the theatre was regarded as one of a part of a building as a site was supporting and formed part of a building. Adopting that line of reasoning to the present case it will follow that, although the actual lease was of the site alone, if there had been a superstructure owned by the tenant and previously existing, it can be regarded only as a lease of part of the building and not of a vacant site: Venkatadri, J. however felt a doubt whether the decision referred to above could be regarded as correct, having regard to the subsequent decision of this Court in Official Trustee, Madras v. United Commercial Syndicate : (1956)IMLJ220 . The latter case concerned a lease of vacant piece of land which was enclosed by a compound wall and in which there were two latrines with compound walls. A question arose whether the domain would constitute a building within the meaning of the Act. The learned Judges held that the evidence was clear as to the existence of the compound wall, and latrines, and that, even if they were held to have been in existence, the site could not be regarded as a building. We are unable to see anything in the judgment of that case as being in conflict with the decision in Irani v. Chidambara Chettiar (1952) 2 M.L.J.221. The subject-matter of the lease was a vacant site and the existence of a compound wall or latrine was held not to alter the character of the lease. We are therefore of opinion that the appellant in the instant case cannot be evicted from the property, so long as the Madras Buildings (Lease and. Rent Control) Act is in force. The decree of the lower appellate Court will therefore be set aside and that of the District Munsif restored. This decision will not prejudice the respondent to take proceedings for eviction against the appellant for eviction under the Act.
4. Having regard to the untenable pleas raised by the tenant, each party will bear his respective costs throughout.