Calcutta High Court
Uma Poddar And Anr vs Jaspal Singh Chandhok And Ors on 14 November, 2019
Equivalent citations: AIRONLINE 2019 CAL 1028
Author: Soumen Sen
Bench: Soumen Sen, Saugata Bhattacharyya
ORDER SHEET
APD 85 of 2018
WITH
CS 994 of 1990
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
UMA PODDAR AND ANR
Versus
JASPAL SINGH CHANDHOK AND ORS
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
The Hon'ble JUSTICE SAUGATA BHATTACHARYYA
Date : 14th November,2019.
APPEARANCE:
Mr. Sakya Sen, Adv.
Mr. Amritam Mondal, Adv.
Mr. Aditya Mondal, Adv.
Mr. Malay Kr. Ghosh, Sr. Adv.
Mr. Rahul Karmakar, Adv.
Ms. Anindita Mukherjee, Adv.
Mr. H. Banerjee, Adv.
The Court: This appeal is directed against a decree dated
3rd July, 2014 at the instance of Uma Poddar, Ravi Poddar and
Amit Kumar Poddar claiming 2/12th share in the property in
question. The decree directs division of the property in
accordance with the shares declared in the said decree as also
the entitlement of the plaintiff to 10/12th share of the rent
collected from the premises. The defendant nos.2 and 3 have
preferred a separate appeal.
2
The appellant has claimed his right in respect of the
property on the basis of same and the similar agreement that was
executed by the other co-owners and co-sharers of the property
in question in favour of the plaintiff. If the two co-owners
and/or co-sharers, who executed the sale deed in favour of the
plaintiff, claim ownership over the structures, the rest of the
co-owners being similarly placed cannot be said to having any
interest over the structures.
The tracing of right over the property and structure by the
plaintiff as well as the defendant no.1 are on the basis of the
same nature of the agreement. The sale deed executed in favour
of the appellant by two co-owners of the property results in the
appellant acquiring 2/12th share in the property. The other co-
owners on same terms have executed sale deed in favour of the
plaintiff. The ownership over the structures by the legal heirs
of the Lahiris are accepted by both the appellant and the
decree-holder on the basis of the sale deeds executed in their
favour.
It is needless to mention that the benefits of the
structure, if had gone in favour of the appellants, must also go
in favour of the plaintiff. On such consideration, we feel that
the appellants cannot be a party aggrieved as they would be
benefited in the event the decree is upheld with regard to the
structure as well.
3
Mr. Sakya Sen, learned Counsel appearing on behalf of the
appellant, has fairly submitted that the appellant is receiving
2/12th share of the rent in respect of the land, which clearly
supports that the legal heirs had title over the said land,
otherwise the appellant could not have received such rents from
the defendant nos. 2 and 3. However there was no evidence to
show that the rent was only for the land and not for structures.
The appellants are related to the lessees. They tried to espouse
the cause of the lessee indirectly by raising an objection with
regard to the entitlement of the rent by the plaintiff in
relation to the structure. The admission on denial of the right
to the structure by the appellants in this appeal are not
material. The right to the structure after determination of
lease by the owners cannot be doubted.
It is an admitted position that the original lease had
expired and the defendant nos. 2 and 3 made attempt to seek a
specific performance of an alleged agreement entered into with
some of the co-owners in respect of the said property. The said
suit was dismissed on merits.
It is relevant to refer to the lease agreement entered into
between Nirod Lahiri as lessee and Madan Lal Poddar as the
original lessor. Madanlal Poddar was engaged in business as a
dealer in motor cars and accessories. Under the terms of the
lease agreement, the lessor gave to the lessee the land
appertaining to the demised premises and the lessee was granted
4
liberty to "erect, construct, set up and fix any buildings,
erections, houses, quarters, structures, sheds, godowns, offices
and worships with the previous sanction of the Corporation of
Calcutta" for an initial period of fifteen years along with an
option to the lessee to extend the agreement for a further five
years. The lessee was also entitled "to erect or build or put up
or permit to be erected or built or put up on the demised
premises any new buildings, structures, and sheds and to make or
permit to be made any additions and alterations to and in any
building (then) existing and at any time (thereafter) existing
as the lessee shall think necessary subject to the sanction of
the Corporation of Calcutta." It was agreed between the parties
that all buildings, erections, structures, factory, workshops,
godowns and other fixtures now existing or that may hereafter be
built or erected or set up on the demised premises or any part
thereof during the continuance of the term shall belong and
shall continue to belong to the lessee. It was also agreed that
at the expiration or sooner determination of the lease the
lessee would peacefully and quietly yield and deliver up
possession of the demised premises to the lessor except all
buildings, erections, sheds, et cetera erected or to be erected
on the demised premises and all additions thereto and all
fixtures thereto.
In the recital to the lease deed the rights of the lessee to the
structures as owners are recognised. In Clause 4(a), 4(b) and
5
4(c) the ownership of the lessee in relation to the structures
erected by the lessee during the tenure of the lease with the
right to remove, dismantle, and carry away for the use of the
lessee is clearly mentioned. The said Clauses state:-
"4. Provided always and it is hereby agreed by and
between the parties hereto as follows -
a) All buildings erections structures factory workshops
- godowns and other fixtures now existing or that may
hereafter be built or erected or set up on the demised
premises or any part thereof during the continuance of
the term hereby granted belong and shall continue to
belong to the Lesee;
b) On or before the determination of the tenancy hereby
created the lessee shall be at liberty to dislodge
dismantle remove take and carry away for his use all
buildings erections bunglows workshops sheds,
structures plant, machinery and appliances set up
erected or brought in or upon the demised premises or
any part thereof and all fixtures and articles
belonging to the lessee within three months from the
date of the determination of the term hereby created
without causing any damage to the demised land and
after repairing damage, if any, to the demised premises
and after having first paid the rent upto the date of
the delivery of possession;"
c) The sum of Rupees Four thousand and eight hundred
being an equivalent of Sixteen months' rent from First
day of - September One thousand nine hundred and fifty-
one to Thirty-first day of December One thousand nine
hundred and fifty-two has been paid by the Lessee to
the Lessor in advance (as the Lessor both hereby
acknowledge) and the same shall be appropriated by the
6
Lessor in payment of the rent for Sixteen months from
the First day of September One thousand nine hundred
and fifty-one to the Thirty-first day of December One
thousand - nine hundred and fifty-two. Rupees Three
hundred is also paid by the Lessee to the Lessor as
deposit for one month's rent - (the receipt whereof is
also hereby acknowledged by the Lessor)."
The lease is silent as to the consequences of the lessee
failing to remove the structures within three months after the
expiry and/or the determination of the lease. It appears that
the defendant no. 3 has created tenancies and the premises are
fully occupied. The intention that can be gathered from the deed
of lease unmistakably shows that the lessee would remain the
owner of the structures till the determination and would be
obliged to remove and/or dismantle all such structures erected
within three months of the date of the determination of the term
without causing damage to the demised land and would be required
to pay rent up to the date of delivery of possession. In other
words, the lessee would be obliged to compensate the lessor for
the period of three months within which time the lessee would be
required to remove all such fixtures, structures, buildings,
etc. The defendant no. 3 has admittedly not removed the
structures nor paid any occupation charges after the expiry of
the lease.
The question arises whether the structures erected in the
demised premises as well as rents receivable in respect of such
7
structures would be taken into consideration for partition
amongst the co-sharers.
Unlike the English Law the law of this country recognises
ownership of the structure separately from the owner of the
land.
"It is by now well settled that the maxim, what is
annexed to the soil goes with the soil, has not been
accepted as an absolute rule of law of this country; see
Tkakoor Chunder Parmanick v. Ramdhone Bhuttacharjee (1866)
6 W.R. 228; Lala Beni Ram v. Kundan Lall
MANU/PR/0070/1927. These decisions show that a person who
bona fide puts up constructions on land belonging to others
with their permission would not be a trespasser, nor would
the buildings so constructed vest in the owner of thelend
by the application of the maxim quicquid plantatur solo,
solo credit. (In Bishan Das and Ors. Vs. The state of
Punjab and ors. AIR 1961 SC 1570)"
The various clauses of the lease are consistent with
the ownership in the building being with the lessees in
which the lessors had no right while the lease subsisted.
In Narayan Das Khettry v. Jatindra Nath Roy Chowdhury
(1926) 54 I.A. 218 the Privy Council approved the
observations of Sir Barnes Peacock in the case of Thakoor
Chunder Poramanich v. Ramdhone Bhuttacharjee (6 South W.R.
228) to the following "We have not been able to find in the
laws or customs of this country any traces of the existence
of an absolute rule of law that whatever is affixed or
built on the soil becomes a part of it, and is subjected to
the same rights of property as the soil itself."
In the case of Vallabhdas Naranji v. Developments
officer, Bandra (1918) 56 I.A. 259 the Privy Council once
again referred to Sir Barnes Peacock's observation as
8
stated above. The Privy Council also quoted the following
observations of Couch, C.J., in the case of Narayan V.
Bholagir (6 Bom. H.C. (A.C.J) 80): "...... We cannot,
however, apply to cases arising in India the doctrine of
the English Law as to buildings, viz., that they should
belong to the owner of the land. The only doctrine which
we can apply is the doctrine established in India that the
party so building on another's land should be allowed to
remove the materials."
The aforesaid observations have been approved and
followed by the Hon'ble High Court in K.A. Dhairyawan and
ors. Vs. J.R. Thakur and ors. AIR 1958 SC 789. It was
observed:-
8. Normally, under Section 108 of the Transfer of
Property Act, before the expiry of the lease, a lessee can
remove all structures and buildings erected by him on the
demised land. All that was necessary for him to do was to
give back theland to the lessor, on the termination of the
lease, in the same condition as he found it. The
ownership, therefore, of the building in this case was not
with the lessors but was with the lessees. Under Section
108 of the Transfer of Property Act there was nothing to
prevent the lessees contracting to hand over any building
or structure erected on the land by them to the lessors
without receiving any compensation.
The aforesaid decisions are clear authority for the
proposition that a building can be owned by one man and the land
by another in India, and that in a case where a lessee puts up a
building on a vacant plot of land taken on lease by him,
although the lessor may be the owner of the land, the building
belongs to the lessee and not to the lessor.
9
Section 108(h) of the Transfer of Property Act also
recognises the same principles and the said provision would
apply to cases where there is no agreement to the contrary. It
is thus, necessary to consider the provision of the lease deed
to ascertain the intention of the parties. The court in such a
situation is not bound to look, merely to the form which the
transaction has taken but also entitled and indeed, bound to
consider what is the true nature of the transaction and to give
effect to it.
The rent component forms an important factor to understand
the transaction. Ownership is nothing more than a bundle of
rights in relation to property. The aggregate of rights
constitute absolute ownership.
On the aspect of compensation, the lessee's right is not
the same as in English law but courts have consistently followed
the principle laid down by a full Bench of this Court in
Paramanick's case (supra). In that case, the full Bench held -
"We think it should be laid down as a general rule
that, if he who makes the improvement is not a mere
trespasser, but is in possession under any bona fide title
or claim of title, he is entitled either to remove the
materials, restoring the land to the state in which it was
before the improvement was made, or to obtain compensation
for the value of the building if it is allowed to remain
for the benefit of the owner of the soil - the option of
taking the building or allowing the removal of the
material, remaining with the owner of the land, in those
cases in which the building is not taken down by the
10
builder during the continuance of any estate he may
possess."
In Ismai Kani Rowthan vs. Nazarali Sahib and Ors. reported
at (1904) ILR 27 Mad 211 the Division Bench of the Madras High
Court observed:
"10. The rules laid down by the Transfer of Property Act
thus substantially reproduce the law as it stood before the
Act. It is, however, noteworthy that Clause (h) (of
Section 108) only provides for the tenant removing, 'during
the continuance of the lease', all things which he may have
attached to the land and nothing is s aid as to the rights
of the parties in respect of such things after the
determination of the lease, if they have not been already
removed by the tenant. The question may arise whether the
tenant forfeits all his rights in such things if he has not
so removed them; and in the absence of any contract on that
point, the question will have to be solved with reference
to 'local usage', whatever may be the precise sense in
which that expression is used in Section 108. According to
the customary or common law of the land, as laid down in
Paramanick's case B.L.R. Sup. 595 the option in such cases
will be with the lessor either to take the building on
paying compensation, or, if he is unwilling to pay
compensation, to allow the tenant to remove the building
the measure of compensation (in the former case).
11
The measure of compensation could be the value of materials
(after the building is demolished) -a juristic principle as
logical and refined as, in the great majority of cases, it
is advantageous to both parties by obviating injury to
either and at the same time preserving the building."
In Dhariyawan (supra) the Supreme Court held that although
under Section 108 the lessee has the right to remove the
building but by the contract between the parties the lessee had
agreed to hand over the same to the lessor without the right to
receive compensation at the end of the lease, the matter in such
a case would be governed by the contract between the parties and
since the contract between the parties merely transferred the
rights in the building only while the lease subsisted, it was
clear that at the end of the lease the things attached to the
earth by the tenants would pass over to the lessor-owners of
land in accordance with the contract. In such a circumstance, it
is not necessary that the contract should provide for
compensation to be paid to the lessor. As far back as 1908, it
was held by a division Bench of the Madras High Court in Mahomed
Meera Usani Rowthen and Ors. Vs. Nizur Ali Sahib reported at 4
I.C. 1129 that section 108 (h) of the Act only provides for a
statutory right to remove the building but not a statutory right
to receive compensation. In Mahomed Meera Usani Rowthen (supra),
once the court found that the right to remove the building
12
existed, the court allowed the lessee to remove the building
within a short time frame (in that case, two months).
Applying the principles of Dhariyawan (supra) and Mahomed
Meera Usani Rowthen (supra) to the factual circumstances of the
present case, it can be seen that the contract between the
parties, that is the lease agreement dated 4th October 1951,
expressly provided in Clause 4 (b), which has been reproduced
hereinabove, that the lessee would have to, on or before the
determination of the tenancy, dislodge, dismantle, remove, take
and carry away for his use all buildings and erections set up,
erected or brought in or upon the demised premises within three
months from the date of the determination of the lease term
without causing any damage to the demised land. Therefore,
applying the principle of Dhariyawan (supra), it is clear that
in such a circumstance the contract between the parties would
take precedence in determination of the rights of the parties
and the contract had stipulated that the lessee was to remove
the building. Further, applying the principle laid down in
Mahomed Meera Usani Rowthen (supra), it is clear that the lessee
had the right of removal but that such a right could be
circumcised. In the Mahomed Meera Usani Rowthen (supra) (supra)
the court had granted two months time to remove the building
whereas in the present case the parties had agreed, in clause
4(b) of the contract, that the lessee was to remove the building
within three months. Therefore, the natural consequence of such
13
a term in the contract would be that once the three month period
ended and the building was not removed, the lessee would lose
the right to remove the building or receive any compensation
from the lessor.
In the context of Section 51 of the Transfer of Property Act
read with Section 108(h) of the Transfer of Property Act in a
concurring judgment Justice Abdur Rahim observed that the court
would infer a contract to pay compensation if the landlord by
his conduct encouraged or raised an expectation in the tenant
spending money in making improvements that the latter would not
be evicted at all, or at least not without being compensated for
the value of such improvements, and the improvements were in
fact made under such expectation. Such a contract is inferred
to relieve the tenant from the fraud of the landlord. The
doctrine of equitable estoppels should not be extended as
between a landlord and his tenant to a case where all that can
be alleged against the former is that he did not interfere and
merely remained passive with the knowledge that the tenant was
making improvements under a mistaken belief that he had a more
stable interest in the land than that of a tenant at will or a
tenant from year to year. Section 108 only deals with the right
of the tenant to remove the fixtures he has placed in the land
and S. 51 applies only to the case of a transferee of an
absolute interest in land. If a tenant knowing the extent of his
interest in the land in his possession, chooses to spend money
14
upon a title which he must know would soon come to an end, this
is his own folly and he cannot ask the owner of the land to
recoup him for such expenditure.
However, all the decisions before 1929 proceeds on the
basis of unamended provision of Section 108(h) of the Transfer
of Property Act 1882, by the Amendment Act, 1929 Section 56 of
the Amendment Act has amended Section 108(h) of the Transfer of
Property Act. The insertion and substitution made under the
Amendment Acts are shown in italic:
"h. The lessee may (even after the determination of the
lease) remove, at any time (whilst he is in possession of
the property leased, but not afterwards) all things which
he has attached to the earth; provided he leaves the
property in the state in which he received it."
In fact, the phrase 'whilst he is in possession of the
property leased, but not afterwards' was substituted for during
the continuance of the lease. It means therefore that even
after determination of the lease while the lessee is in
possession of the property leased would be entitled to remove
all structures after the determination of the lease so long he
continues to remain in possession but not afterwards.
The amendment provision came up for consideration in Govinda
Prosad Shah and Anr. v. Sreemutty Charusila Dassi reported at
AIR 1933 Cal 875 where Chief Justice Rankin speaking on behalf
of the Division Bench observed:
15
"Clause (h), S. 108 is intended to be a complete statement
of the tenant's right as regards removal of structures,
including a case of removal after termination of tenancy.
If the right given by Cl. (h) is exhausted, the tenant
cannot have a further right to remove the fixtures, making
out his right by the personal law or by the general rule of
equity and good conscience which had prevailed before
passing of Transfer of Property Act (1882). If the tenant
does not remove them within a reasonable time after
termination of the tenancy, he has no right to remove them
or to sue for compensation.
Thus it makes it clear that the lessee has to remove it
within a reasonable rime. The full bench of the Patna High
Court in Bastacolla Colliery Co. ltd. vs. Bandhu Beldar and anr.
reported at AIR 1960 Pat 344 echoed the same principle. It was
observed that the provision of law and the preponderance of
authority are against the argument that the lessees are entitled
to compensation for structure made by them. However, the
lessees would be entitled to remove their structures and
materials on expiration of the lease.
The Division Bench of the Madras High Court in
Sundareswarar Devastanam v. Marimuthu reported at AIR 1963 Mad
367 held that both under the common law as well as under the
Transfer of Property Act, the right of a tenant who had put up a
superstructure on a lease hold land which was taken on a
16
terminable lease, will be only to remove the superstructure at
the time of delivery of possession on the termination of the
lease. There would be no right to compel the landlord, unless
the latter agrees to do so, to pay compensation for unwanted
superstructure . The landlord who had obtained possession of
the land cannot be compelled to surrender back the land because
the tenant had failed to remove the superstructure at the time
he vacated the property. If it is proved that the landlord had
appropriated the materials which formed part of the
superstructure, the tenant can only have the value thereof
assessed and recover the same."
In Angammal vs. Malic Mohamed Syed Aslami Sahib reported at AIR
1916 Mad 220, the majority judgment it has been reiterated that
on the determination of lease the option is with the lessor
either to take the building on payment of compensation or, if he
is unwilling to pay compensation to allow the tenant to remove
the building.
The lessor cannot be prevented from using the said land
with structures as the lessees had failed to remove such
structure within reasonable time.
However, in this appeal, we are not required to decide the
issue raised by the lessees as to the entitlement of the
plaintiff to realise 10/12th of the rent for the structure since
the respondent nos. 2 and 3 have filed a separate appeal in
respect of that portion of decree by which the plaintiff became 17 the owner of 10/12th share of the premises together with its entitlement of 10/12th share of rent collected from the premises.
In view thereof, the challenge to the decree by the appellant fails.
APD 85 of 2018 stands dismissed. However, there shall be no order as to costs.
(SOUMEN SEN, J.) (SAUGATA BHATTACHARYYA, J.) R.Bhar