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Therefore it is quite obvious that the division bench has construed the said expression as used in S. 5(8)(b) of the Act in the secondary and non-technical sense and not its primary sense. Hence the controversy involved in this writ petition will have to be decided in the light of the decision of the division bench in this behalf.

9. So far as the facts and circumstances of the present case are concerned, it appears to be an admitted position that at least from the year 1937 the building and the plots were treated as consolidated property for the purpose of tenancy. A common and joint receipt of rent was issued for the land and the building. However a contention was raised by Shri Abhayankar that vide lease deed dated 23rd October 1934 what was leased out by the landlord was a piece of land and together with it a house standing thereon was also leased out. According to Shri Abhayankar if the recitals in the lease deed are read with the schedule of the property attached to the said lease deed it is quite clear that the dominant purpose of the lease was open piece of land and not the building standing thereon. It is not possible for me to accept this contention of Shri Abhayankar. It is by now well settled that while construing a document of lease it is the substance of the matter which should be taken into consideration and not mere form. If the lease deed is read as a whole it is quite clear that by Cl .2 of the lease deed the lessee was to pay in addition to the rent the water charges and electricity charges. By clause 5 it was laid down that the lessor shall not do any repairs to the said premises during the period of the lease save and except the heavy repairs including the title turning and dammering of the roofs and gutters and also the repairs to pipes, flushing tanks etc. By clause 8 a liberty was granted to the lessee to build any temporary structures on the lands with the permission of landlord. If the dominant purpose of the lease was to lease out the vacant land then all these clauses relating to the repairs to the building were not necessary. It also appears to be an admitted position that plot No. 85 consists of building as well as coal shed. In these circumstances it cannot be said that the dominant purpose of the lease was to lease out the open plots and not the building as such. This position is further clear from the evidence on record. Abdullakhan who was examined on behalf of the plaintiff stated in his deposition that Dr. Henriques let out to the defendant in the year 1934 three plots and the building standing on them. According to him there were building and sheds on these plots. Then he stated that some 8 or 10 temporary structured by Corporation for payment of taxes. He stated that he was residing in the structure on the said property. He denied the suggestion that what was let out was open plots. Joseph Bernal Fernandes an Architect was examined on behalf of the plaintiff and he stated in his deposition that the proposed construction covers the area of three plots and each plot is adjoining to each other. According to him it is not possible to develop any individual plot. Each plot is irregular in shape, narrow and if it is decided to develop each plot the difficulty for access will arise, and in that case full advantage of F. S. I. cannot be taken. Then he has spoken about the distance from the centre of the existing building and the plots. According to him this distance is about 170 to 200 ft. The access to the existing building is from the main road and not from the plots Nos. 85-A or S. No. 241. Then he has spoken about the sanction received from the local authorities. The tenants have not examined any body on their behalf. Therefore if a cumulative view of the evidence is taken it is quite clear that all these open plots and buildings were treated as part and parcel of the whole and are adjoining each other. This is precisely what has been found by the appeal bench of the Small Cause Court, Bombay when it held that at least from the year 1937 these three plots were treated as a common property for the purpose of tenancy and the open area is adjoining the building. If the expression used i. e. "land appurtenant to a building" is construed in the secondary and non-technical sense, then obviously such an adjoining land be included a its import.