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M.P.S. Palauiappa Chettiar and ors. Vs. V.E. St. Vairavan Chettiar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1963)1MLJ130
AppellantM.P.S. Palauiappa Chettiar and ors.
RespondentV.E. St. Vairavan Chettiar
Cases ReferredIrani v. Chidambaram Chettiar
Excerpt:
- .....the point that falls for determination in this appeal it is necessary to state a few facts : the suit property is the southern half of t.s. no. 2379 in pudukottai town. the entire area covered by that survey number was originally a vacant site but it was owned in severalty by two persons. the northern half belonged to one ramaswami while the southern half belonged to ramachandran and his brother whose properties were managed by the court of wards. in the year 1926 one venkatachari obtained a lease of the entire property from the two owners for a period of ten years under two different documents with a view to put up a cinema theatre thereon. after obtaining the lease he put up a theatre which was originally named as gaiety talkies and which later on came to be known as raja talkies. on.....
Judgment:

S. Ramachandra Iyer, C.J.

1. This appeal against the judgment of Anantanarayanan, J. arises out of a suit instituted by the appellant in the Sub-Court at Pudukottah for evicting the respondent from a certain property in the West Main Street, at Pudukottah for a mandatory injunction to demolish the structure put up thereon, and for damages The suit was dismissed by the learned Subordinate Judge on the finding that the property being a building, the appellant could not sustain the suit for eviction by reason of the provisions of the Madras Buildings (Lease and Rent Control) Act. On appeal Anantanarayanan, J. while upholding the right of the respondent to protection under the said Rent Control Act held that there was no prohibition under that enactment to entertain the suit and pass a decree in conformity with the provisions thereof The learned Judge accordingly allowed the appeal in part granting a decree for possession but at the same time declaring that as the property involved in the suit was a building coming within the ambit of the definition of that term in the Act the Court will be powerless to execute the decree. The appellant feeling aggrieved by this limitation in the matter of the execution of the decree has filed this appeal. To appreciate the point that falls for determination in this appeal it is necessary to state a few facts : The suit property is the southern half of T.S. No. 2379 in Pudukottai Town. The entire area covered by that survey number was originally a vacant site but it was owned in severalty by two persons. The northern half belonged to one Ramaswami while the southern half belonged to Ramachandran and his brother whose properties were managed by the Court of Wards. In the year 1926 one Venkatachari obtained a lease of the entire property from the two owners for a period of ten years under two different documents with a view to put up a cinema theatre thereon. After obtaining the lease he put up a theatre which was originally named as Gaiety Talkies and which later on came to be known as Raja Talkies. On 4th January, 1936 Venkatachari who Was the owner of the entire superstructure purchased the northern half of the site from Ramaswami and about nine months thereafter he sold what he bought together with his rights to the superstructure of the theatre half of which was on the southern side to the respondent's predecessor-in-title. The theatre was being continued to run by the respondent's father who did so after periodically obtaining lease of the southern half of the site from its owner. Exhibit A-I which is one of such lease deeds can be taken as typical of the contents of such lease. That document recites that the lease was taken for the purpose of conducting cinema and that on the expiry of the lease the lessee should deliver possession of the land. When the respondent's father was conducting the cinema (Raja Talkies) partition disputes arose in his family between him and the respondent which culminated in a suit in the Sub-Court, Pudukottah. A Receiver Was appointed to take charge of properties pending the suit. The running of the cinema had to be stopped during the pendency of the suit for certain reasons which are not necessary to be examined here. The appellant who appears to be a keen businessman took advantage of the situation. He bought a vacant site immediately south of the suit property, constructed a theatre called Palaniappa Talkies and began running the same. Presumably he thought that the existence of a theatre immediately on the north was a potential danger and therefore, negotiated for the lease of the theatre from the Receiver for the purpose of storing his building materials to be used in the construction of Palaniappa Talkies. Shortly thereafter he purchased while the lease in his favour of the theatre was still in force, the southern half of T.S. No. 2389 from Ramachandra. In the meantime the entire property covered by the northern half, part of the superstructure of the theatre, Raja Talkies on the southern half and the lease-hold right in the ground below were allotted to the respondent in the partition suit. The result of all these transactions was this : The respondent became the owner of the northern half of T.S. No. 2389 together with the superstructure thereon, namely, half of the building, Raja Talkies. He also came to own the superstructure on the other half of the theatre situate on the southern half of that survey number and continued in possession of the ground portion of the building by virtue of the lease granted by the predecessor-in-title of the appellant but the appellant a neighbouring theatre owner purchased the site on the southern half. The appellant then instituted the suit out of which this appeal arises for vacant possession of the southern half. The respondent resisted it on the ground that the lease in his favour was of a building and that he could not be evicted except in accordance with the Madras Buildings (Lease and Rent Control) Act, 1949. The appellant, however, contended that the lease in favour of the respondent was not of any building but of a vacant site, namely, the southern half of T.S. No. 2389 and that the provisions of the Rent Control Act will not confer on him any protection. Both the learned Subordinate Judge and Anantanarayanan, J. upheld the respondent's case that the lease should be deemed to be of a part of the building. The correctness of that decision depends upon the question whether the lease granted by the appellant's predecessor-in-title of fixed southern half, of the land namely, the site covered by the lease Exhibit A-1 was of a building or at any rate a part of a building. It is not disputed that at the time when the lease was granted there was on the property one half of the entire superstructure known as Raja Talkies which was owned by the respondent. The lease deed docs not specifically describe the property as a building but there are indications in it to show that the lease was granted on the basis that there was a building on the property of which the respondent was the owner. The document shows that it was of a lease of the site but it refers in no unmistakable terms that the property was let out for the purpose of conducting a cinema therein and that on the termination of the lease, the respondent was to remove the superstructure and deliver vacant possession of the site. There can be no doubt that at the time the lease was granted there was a building on the property albeit such a building was not that of the respondent. Although the ground on which the superstructure was built alone formed the subject-matter of the lease, there can be no doubt that such a ground was a part of the building.

2. Section 2 of the Rent Control Act defines ' Building ' as building or hut or part of a building or hut let or to be let separately for residential or non-residential purposes. If the land leased under Exhibit A-I and the subsequent documents were to be treated as part of the building there can be no doubt that the lease should be regarded as a lease coming within the purview of the Act. This question is answered in a decision of this Court which is reported in Irani v. Chidambaram Chettiar (1952) 2 M.L.J. 221 where the facts are almost similar to those in the present case. The subject-matter of the lease was land on which there was a cinema theatre which belonged to the lessee. There were some small sheds existing on the property at the time of the lease. It was however held that the lease could not be regarded as a lease of the building for that reason. It was considered that the lease of the site amounted to a lease of a part of the building and therefore the lessee was entitled to protection under the Act. In the course of their judgment the learned Judges considered several English and Indian decisions on the point and one of such cases referred to, namely, Victoria City V. Bishop of Vancouver Island (1921) LR 2 A.C. 384 can be said to be instructive so far as the present case is concerned. The question that arose for determination in that case was whether the word 'building' comprises only the fabric of the building or it includes also the land on which it stood. The facts were these. Under a particular enactment of British Columbia every building set apart and in use for the public worship of God was exempt from municipal rates and taxes but the Act provided that tax could be levied on lands or upon any real property. The question was whether the land occupied by a building (known as St. Andrew's Cathedral) dedicated and set apart for public Worship of God was exempt from taxation. On behalf of the taxing authority it was contended that the exemption applied only to the superstructure and not to the land on which that superstructure was built. Rejecting this contention Lord Atkinson 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 support direct or indirect of the soil of the earth. The conception of such things is not the less impossible because the Legislature has by statute made the attempt fancifully to divide for the purpose of taxation concrete entities notionally into sections or portions which are presumably mutually exclusive and independent of each other. Their attempt will be abortive unless the language used be clear and plain. Should it not be so, one must judge by the meaning of the ordinary language used what is the nature of the thing to be dealt with as it is described in that language.

From this it is clear that although ordinarily the word 'building' would include not merely the superstructure but also the ground on which it stands, the ground on which the building stands could also be regarded as part of the building. While considering this case the learned Judges who decided the Irani case (1952) 2 M.L.J. 221, observed at page 227 thus:

Obviously the letting of the land was for the purpose of carrying on cinema business and it wag 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 round 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 Thirsted under the document.

In the present case the lease of the site which belonged to the appellant's predecessor-in-title was granted when the lessee's superstructure was on the land and the lease was expressly intended to enable the lessee to enjoy the building and to carry on his cinema business : the lease of the ground should therefore be deemed to be of a part of the building, as, the site which formed the subject of the lease was an integral part of the building on the land. We agree with Anantanarayanan, J. that the lease of the site was of a part of the building. The respondent would be entitled to the protection afforded by the Madras Buildings (Lease and Rent Control) Act. The appeal fails and is dismissed with costs.


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