Kerala High Court
V. Kalpakam Amma vs Muthurama Iyer Muthurkrishna Iyer And ... on 28 July, 1994
Equivalent citations: AIR1995KER99
Author: K.T. Thomas
Bench: K.T. Thomas
JUDGMENT Subramani, J.
1. Deceased 1st defendant in O.S. 69 of 1980 of the Munsiffs Court, Trivandrum and who was the respondent in A.S. No. 271 of 1983 of the District Court, Trivandrum, is the appellant. Pending appeal she died and the second respondent, i.e. son of the appellant was transposed as additional appellant.
2. This appeal is on a reference by a learned single Judge of this court, P. Krishnamoorthy, J.
3. The substantial question of law which arise for consideration in this appeal are;
(i) Whether the court below is correct in finding that the destruction of the subject matter of the lease will automatically terminate the lease without considering the question of option exercised by the lessee as per Section 108(e) of the Transfer of Property Act?
(ii) Alternatively whether the court below is correct in applying the decision of the Hon'ble Court in Sidharthan v. Ramadasan, 1984 Ker LT 538 : (AIR 1984 Kerala 181) and whether it is correctly decided in view of the decision of the Supreme Court in Druv Dev Singh v. Harmondir Singh, AIR 1968 SC 1024?
4. Before considering the questions of law which arise, a brief narration of facts is necessary. Deceased first respondent filed a suit for declaration of title and recovery of possession. A portion of the building bearing doer No. T.C. 34/1229, having two rooms, was rented out to the original appellant on a monthly rent of Rs. 12/-. There was some dispute between the landlord and tenant and a rent control petition was filed as O.P. (B.R.C.) No. 104 of 1974 against the deceased appellant for eviction on the ground of arrears of rent. The eviction petition though allowed, was vacated since the tenant deposited the entire arrears of rent under Section 1l(2)(c) of the Kerala Bildings (Lease and Rent Control) Act, 1965. The case of the plaintiff is that the buildings which is the subject matter of the lease was completely destroyed in 1977 and as a result of the collapse of the building, the tenant vacated the premises, surrendered the same and there was termination of tenancy. It is further averred that subsequent to the termination of the tenancy, the deceased appellant trespassed into the property and put up a construction. The suit was necessitated in view of the trespass. Apart from declaration and recovery, the plaintiff has also sought a decree for mandatory injunction directing the deceased appellant to remove the unauthorised construction, and in case she fails to do so, to permit him to remove the same and recover costs from the defendants.
5. Defendants who are the mother and son, filed a joint written statement. First defendant admitted the tenancy, but contended that the building was practically destroyed by the plaintiff in her absence and by the orders of the District Collector, she has restored the building. According to her, the tenancy is not terminated and she is entitled to continue in possession as its tenant. Second defendant contended that he is an unnecessary party and he is not residing in the building.
6. The trial court as per judgment dated 31 -7-1982, held that there is no termination of tenancy, the entire building was not destroyed, there is no surrender and relinquishment as alleged by the plaintiff and the trespass alleged is not true. The trial court further held that the tenancy continues and therefore, recovery cannot be allowed. It was also found by the trial court that there is no evidence that the landlord (plaintiff) is responsible for the destruction of the building. The suit was ultimately dismissed.
7. Against the decision of the trial court, the plaintiff filed A.S. No. 271 of 1983, before the District Court, Trivandrum. The learned District Judge held that the subject-matter of the lease is completely destroyed and the construction made by the appellant is unauthorised. Relying on the decision reported in 1984 Ker LJ 263 (Sidharthan v. Ramadasan (1984 Ker.LT 538 : (AIR 1984 Kerala 181), it was held that the first defendant is liable to be evicted from the property and the construction is also liable to be removed. In that decision it was held that normally site is not included in the case of lease of a building and by destruction of the structure, the lease will come to an end. It is against the decision of the learned District Judge, the first defendant has come up in appeal.
8. Pending the appeal, the original plaintiff died and his legal representatives have been impleaded as respondents 3 to 9.
9. While the appeal was pending, a learned single Judge of this Court held in another case that by destruction of the building, the tenancy is not terminated and the rental arrangement will continue. It was further held that building will include the site also unless specially excluded (vide George v. Peter (1990) 2 Ker LT 187: (AIR 1991 Kerala 55). It was in view of the subsequent decision, the learned single Judge, who heard the appeal, held that there is apparent inconsistency between the decision reported in 1984 Ker LT 538 : (AIR 1984 SC 181) and (1990) 2 Ker LT 187: (AIR 1991 Kerala 55). It was also observed by the learned single Judge that other important questions relating to the interpretation of Section 108(e) of the Transfer of Property Act and its effect on the Rent Control Act have to be considered in this appeal.
10. It is admitted that the deceased appellant was holding the building on lease and the same comes within the purview of the Kerala Buildings (Lease and Rent Control) Act, 1965. There is absolutely nothing on record to show that the lease was only of the superstructure without the land under the superstructure. The question to be considered is whether on the destruction of the superstructure, there is a total destruction of the subject matter of the lease.
11. The argument of the landlord is mainly based on Section 56 of the Contract Act, which, in principle, is incorporated in Section 108(e) of the T.P. Act. It is true that after the lease is executed and the lessee is put in possession, it is the duty of the landlord to allow the tenant to continue in possession without any obstruction as per Section 108 of the T.P. Act. It is the further duty of the lessee that he is bound at the proper time and place to pay the rent to the lessor. The purpose of the lease is to permit the lessee to enjoy the premises. It is a continuing contract and it is in view of the continuity, Section 56 of the Indian Contract Act is made applicable to lease. Section 108(e) of the T.P. Act is a specific provision, which deals with the substance of Section 56 of the Indian Contract Act, and the same is substantially incorporated in Section I08(e) of the T.P. Act. Section 108(e) of the T.P. Act reads thus:--
"If by fire, tempest, or flood or violence of any army or of a mob or other irresistible force any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purpose for which it was let, the lease shall, at the option of the lessee, be void."
The entire law of frustration of lease is now codified in the above section.
12. In this connection, it is also worthwhile remember that when we apply the principle of Section 56 of the Indian Contract Act, it is not the intention of the parties that has to be considered, but it is the section and its application to the facts. It is not permissible for the courts to travel outside the provision. In AIR 1968 SC 1024 (Druv Dev Singh v. Harmohinder Singh, AIR 1968 SC 1024 it was held that Section 56 of the Contract was exhaustive on the subject and principles of English law cannot be taken into consideration.
13. The first question to be decided is what is a building? The ordinary or natural meaning to be assigned to the word 'building' is given in P. Ramanatha Aiyar's Law Lexicon (Reprint Edition 1987) at page 159, thus:
"A thing composed of the fabric of the building and the ground that the fabric rests upon and encloses".
It is further stated by the author that "the land upon which the walls of a stone or brick building rest, or, indeed, of any other kind of building which in law is considered as annexed to the soil, and which is not clearly severed therefrom by the terms of the deed itself, must be considered as part of the building itself.
14. The Supreme Court had also occasion to consider the meaning of the word 'building' in D.G. Gouse and Co. v. State of Kerala (1980) 2 SCC 410: (AIR 1980 SC 271). It was a case challenging the-constitutionality of the Kerala Building Tax Act, 1975. Paragraph 21 of the judgment deals with the definition of the word 'building'. It reads thus:--
"The word "building" has been defined in the oxford Dictionary as follows:
That which is built; a structure, edifice; now a structure of the nature of a house built where it is to stand.
Entry 49 of Schedule VII of the Constitution of India therefore includes the site of the building as its component part. That, if we may say so, inheres in the concept or the ordinary meaning of the expression "building".
15. A somewhat similar point arose for consideration in Corporation of the City of Victoria v. Bishop of Vancouver Island, AIR 1921 PC 240 with reference to the meaning of the word "building" occurring in Section 197(1) of the Statutes of British Columbia 1914. It was held that the word must receive its natural and ordinary meaning as "including the fabric or which it is composed, the ground upon which its walls stand and the ground embraced within those walls". That appears to us to be the correct meaning of the word 'building'.
15A. In Stroud's Judicial Dictionary (Vol. I. 5th Edn.), the word 'building' is defined thus: "What is a building must always be a question of degree and circumstances". In Black's Law Dictionary (5th Edn.), the meaning of the word building is given as follows: "A structure or edifice enclosing a space within its walls, and usually, but not necessarily, covered with a roof. In Bourvier's Law Dictionary (A Concise Encyclopedia of the Law Vol. 1.3rd Revision) the meaning of building is given as "an edifice, erected by art, and fixed upon or over the soil, composed of brick, marble, wood, or other proper substance, connected together, and designed for use in the position in which it is so fixed."
16. The above are some of the natural meanings that are given to the word 'building'. Adopting the above meaning, the word 'building' must take in the site also, as part of it. If that is so, without site, there cannot be a structure and the site becomes an integral part of the building. Without a site, the super structure of the building on the land cannot normally exist. Thus, when there is a lease of a building, such lease would normally take in the site unless it specifically excluded from the land:
17. As stated earlier, the subject-matter of this litigation comes within the purview of the Rent Control Act. Under the Kerala Buildings (Lease and Rent Control) Act, 1965, the word 'building' is defined in Section 2(1) thus:
"In this Act, unless the context otherwise requires, --
(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 --
(a) the garden, grounds, wells, tanks and structures, if any, appurtenant to such building, hut, or part of such building or hut, and let or to be let along with such building or hut;"
18. From the above definition, we find that the building by itself in not defined, but a part of a building or hut is included within the definition of building. Naturally, the ordinary or natural meaning of the word building is expanded and that "part of a building" is also included within the definition.
19. If the site forms part of an integral part of the structure and the same forms a composite unit, which is named "a building", the site naturally becomes a part of the building. This question came up for consideration ' before this court in Mumthas Beegam v. Maitheen Sahib, (1988) 1 Ker LT 473). In that case, one among us (Thomas, J.) has given a Clear picture as to what is meant by "a building". Paragraphs 6, 7 and 9 of that judgment give an exhaustive definitions of the word 'building". In that case it was held that "If the walls and the roof of a building are incinerated in fire or other calamities or even pulled down, the ground and the space will continue to remain as "part of the building", even in the destroyed stage the space and the ground represent atleast a microcesm of the original edifice. This view is well bolstered up when the statute in the definition clause has engrafted the idea that even part of a building would be treated as building". It was held in the case that from the scheme of the Rent Control Act, it can be seen whether the tenancy in respect of a building can be kept in animated suspense during the temporary period of non-existence of the super-structure and the same tenancy can be revived on completion of reconstruction of the building.
20. In the Law of Real Property by Sir Robert Magarry (5th Edition) at page 691, it is stated thus: "If there is a lease of land and building, the destruction of the building does not affect the continuance of the lease, so that the lessee remains entitled to possession of the land and any buildings that may subsequently be erected on it."
21. Though under a different context, a Bench of this Court in C.R.P. No. 885 of 1972 held that the landlord-tenant relationship between the parties subsists, even though temporarily the tenant remains out of possession for the purpose of reconstruction. In that case, the question was whether the Rent Control Court is competent to given the directions in Section (4)(iv) of the Rent Control Court, when the tenant remains out of possession, for the purpose of reconstruction. It is clear from the said decision that the superstructure is not absolutely necessary for the continued relationship of the landlord and tenant and even in its absence, temporarily, the relationship will continue.
22. In Sarada v. Kumaran, 1969 Ker LT 133, it was held by a learned single Judge of this court that "the meaning of the word 'building' in ordinary language, comprises not only the fabric of the building, but the land upon which it stands". It was further held in the case that the term building generally, though not always, implies the idea of a habitation for the permanent use of man, or an erection connected with his permanent use. It imports tangibility, and may include the land on which it stands, as well as adjacent land.
23. We are in full agreement with what has been decided in (1988) I Ker LT 473, wherein it is held that even the site of the building after being pulled down remains as part of the building and comes within the defintion of "building" under the Rent Control Act.
24. The learned single Judge in (1990) 2 Ker LT 187: (AIR 1991 Kerala 55) has taken into consideration the entire law on the subject and it was held in that case that unless the site is specifically excluded, the lease of the building will cover the site also. That means, the site continues as part of the building and unless and until the site is also destroyed, there cannot be any termination of lease. The principle regarding the automatic termination of tenancy cannot be applied if the site where the structure stood is in existence. We do not find anything contrary to the aforesaid legal position in the decision in George v. Petern, (1990) 2 Ker LT 187 : (AIR 1991 Kerala 55).
25. The question then to be considered is whether there is inconsistency between the decision reported in 1984 Ker LT 538 : (AIR 1984 Kerala 181) (Sidharthan v. Ramadasan) and the decision reported in (1990) 2 Ker LT 187 : (AIR 1991 Kerala 55) (George v. Peter). In Sidharthan's Case, it was an admitted fact that only the superstructure was the subject matter of the lease and not the land where the superstructure stood. It was a case of specific exclusion of the site. Further it was an admitted case that the superstructure got completely destroyed and the tenant trespassed into the property and put up additional constructions, not only in the site but also in the adjoining land. It was in that connection, this court held that the destruction of the superstructure will cause automatic termination of lease. In fact the question whether 'building' will include 'site' also has not necessary to be decided in that case, when it was admitted that 'site' was not subject matter of lease. In that case, their Lordship relied on an earlier decision of the Calcutta High Court in Mahadeo Prasad v. Calcutta D. & C. Co., AIR 1961 Cal 70). In the Calcutta case, on the basis of an ex parte decree, the landlord obtained physical possession of the superstructure. It was also the admitted case that the superstructure alone was the subject matter of the lease. In that case, the tenant got the ex parte decree set aside and moved an application for restitution under Section 144, C.P.C. In the meanwhile, under the orders of the Calcutta Municipality, the superstructure was demolished. The question that came up for consideration before the learned single Judge was whether restitution can be allowed. It was held that since the superstructure alone was leased, the tenancy has come to an end and restitution cannot be allowed. There also, the definition of the word "building" did not come up for consideration.
26. The decision in Sidharthan v. Ramadasan, 1984 Ker LT 538 : (AIR 1984 Kerala 181) again came up for consideration and was followed in Joseph v. Chellamma, ILR (1988) 2 Ker 697. In that case also the only question was whether by the demolition of the structure, the tenancy has come to an end. There also, the superstructure alone was the subject matter of the lease. Paragraph 3 of the judgment says that the tenancy was exclusively of the building alone and not the land on which it stood or appurtenant thereto. In that case, however, this question was not decided.
27. The last decision relied on by the learned counsel for the appellant is reported in (1993) 1 Ker LJ 944 (Damodaran v. Yesoda). Of coures, in that case, the learned single Judge did not follow the decision reported in (1990) 2 Ker LT 187 : (AIR 1991 Kerala 55) on the ground that he is bound by the Bench decision. But, from the facts of the case, it is clear that the subject-matter in the case was entirely different. The building rented out was gutted in a fire and the tenants attempted to rebuild the building on their own, which necessitated the landlord to file the suit. The law is very clear that the tenant is not entitled to, rebuild and it was in that context, the said case was decided. From the above discussion, it is clear, in none of the decisions, i.e. 1984 Ker LT 538 : (AIR 1984 SC 181) and the subsequent decision which followed it, 'building' as is commonly understood, was leased. In those cases, the site was specifically excluded.
28. There cannot be a building without a site and once a structure is put up in the land, the site becomes part of the structure and thereafter, the site becomes part of the building. The definition of 'building' in the Rent Control Act also supports the view. Section 108(e) of the Transfer of Property Act may not be helpful in deciding the relationship between the parties, when have to consider the question on the basis of the definition under the Rent Control Act.
29. In this case, it can be seen that the site is also part of the building from the following averments in the plaint. It reads thus :
"The tenancy arrangement with the 1st defendant became terminated by non-payment of rent from August 1976, abandonment of the building and relinquishment of possession by the 1st defendant, and by the acceptance of relinquishment and taking over of possession by the plaintiff. There was thus a surrender of the building and site. Further the contract of tenancy related to the building and with the loss of the building there was an extinction of the tenancy."
30. The learned District Judge has held in this case that the building i.e. the structure is not in existence. It is seen from Exts. Cl and A10 that except a small portion of the wall on the south-western side of the structure, the remaining portions have fallen down. It is not habitable. But in view of the definition of building under the Rent Control Act, that site also forms part of the building. If so, it has to be held that there is no frustration and the landlord tenant relationship cannot come to an end. As held in (1990) 2 Ker LT 187: (AIR 1991 Kerala 55) there is no complete destruction of the building; only then the principle of Section 56 of the Contract Act read with Section 108 (e) of the T.P. Act can be applied. The relationship will continue till the appellant is evicted under due process of law.
31. The said finding may not be sufficient to dispose of the entire appeal, for, the reliefs claimed in the plaint are for declaration and also for a mandatory injunction to remove the unauthorised structures. Subsequent to the destruction of the structure, deceased appellant has put up structures in the property without the consent of the landlord, It is unauthorised. In view of the continued relationship between the landlord and tenant inspite of the collapse of the structure, the recovery cannot be allowed. But, that will not prevent the landlord from getting a decree for mandatory injunction to demolish the structure put up by the tenant. The tenant, after demolition of the building, is not entitled to put his own structure. Even though he was allowed to enjoy the building and the site as a composite unit, once the structure is destroyed, the tenant cannot be allowed to put up constructions and enjoy the same. That is against the contract between the parties.
32. In Joseph v. Chellamma, ILR (1988) 2 Ker 697, paragraph 7 of the judgment has dealt with the point. It is held that the tenant cannot compel the landlord to put up a construction in the site. It was further held that the liberty to put up a construction is not matter governed by the Rent Control Court. There is no contract or other statute authorising the tenant to put up a construction in the place where the old structure stood. Similar is the case in (1991) 2 Ker LJ 594 (C. P. Appukutty Nambiar v. P. K. Ratna-giri). There a learned single Judge of this court held that even though under Section 108(m) of the T.P. Act, the lessee is bound to keep, and on the termination of the lease to restore the property in as good condition as it was at the time when he was put in possession, subject only to changes caused by reasonable wear and tear, it will not authorise the tenant to put up any construction and the Rent Control Court did not give any such right on him. We did not find anything in the said decision contrary to the position adverted to by us. The plaintiff is therefore entitled to get the relief of mandatory injunction.
33. In the result, we set aside the judgment of the court below and the appeal is allowed in part. The relief in the plaint seeking recovery of the property is refused. Plaintiff is at liberty to seek appropriate remedies for evicting the appellant through court of law. But, he is given a decree for mandatory injunction to remove the structure put up by the appellant. Appellant is directed to remove the same within one month from the date of this judgment and in case he fails to do so, plaintiff is permitted to remove the same in execution.
Considering the facts and circumstances of the case, we direct both parties to suffer their costs.