TMI Blog1951 (7) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... e south. Besides the superstructure of the Gaiety Theatre in the portion marked B C D A, there is what is described as a tiled shed P G H E, which contains a booking office and two rooms. Besides these structures, there are certain other sheds in the north of the site and other modern conveniences for the benefit of those who witness cinema shows. There is also some open space on all sides of the structure of the theatre. ( 3. ) All the property excluding the superstructure of the Gaiety Theatre belongs to the estate of late Sir Haji Ismail Salt and defendants 2 to 6 in the action are the receivers appointed by this court in C. S. Nos. 280 and 286 of 1939 for the administration of that estate. The first defendant is the owner of the superstructure of the theatre and he is also the lessee of the rest of the property, holding the same under a lease for seven years commencing from 1-5-1940 obtained from the then receivers of the estate of Sir Haji Ismail Salt with the sanction of the court. The plaintiff is a subsequent lessee who obtained a lease of the said property excluding the superstructure from the said receivers to come into effect after the termination of the lease in favo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en to a Civil Court to pass a decree though it cannot execute the decree and the only remedy of the landlord would thereafter be to take appropriate steps under the provisions of the Madras Non-residential Buildings Rent Control Order for eviction. The learned counsel appearing for the first defendant respondent, Mr. Srinivasagopalachari, had necessarily to concede that in view of this decision of a Bench, he would not press the point, and in this he is justified as the provisions of the Act of 1946 are 'in pari materia'. ( 7. ) The only question that remains for consideration is whether the finding of the learned Judge that the first defendant is a lessee of a building within the meaning of the Act and that he could not be evicted in view of the provisions of the Act is correct. The conclusion of the learned Judge on this point, to state in his own words, is as follows: having regard to the wide connotation that was given to the word 'building', the purpose for which the Madras Buildings (Lease and Rent Control) Act was enacted the nature of the structures in the suit premises and the manner in which the entire premises were being let out and used for a nu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tuate and bearing door No 1/1, Blacker's Road. Except for the stalls all round, the remaining space in the middle was a vacant land at that time. The superstructure now known as Gaiety Theatre was constructed by the said R. Venkayya who by 1927 became insolvent and his property became vested in the Official Assignee of Madras. There was a further lease (Ex. P-4) dated 4-51927 granted by the representatives of Haji Ismail Salt's estate to the Official Assignee of Madras representing the estate of R. Venkayya Bros. , whereunder a lease for a further period of 9 years commencing from 1-3-1926 was granted to the Official Assignee. Ex. P-4 (a) is the plan attached to that lease. The Gaiety Theatre is marked red in the plan and the shed or stall belonging to the lessor was marked blue. It would be seen from that plan that the shed on the west of the compound was removed by that time and there was only the motor garage in the north and the shed marked blue on the east. The lease purports to demise the lands and the buildings standing thereon belonging to the lessor and reference is made to the fact that Venkayya Bros, erected the buildings known as Gaiety Theatre. There were the u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Court is Ex. P-7, dated 21-3-1940. The permission granted is in these terms: that the Receivers herein be and they are hereby permitted to execute forthwith a renewal of the present lease of the 'gaiety Theatre' and include therein about 35 feet of vacant site next east of it and now comprised in the compound of the present English warehouse at a monthly rental of ₹ 750/- plus an additional rental for the vacant site now given and the period shall be not less then seven years from now. The Receivers in obedience to these directions executed on 15-6-1941, Ex. P-9, a lease, in favour of the first defendant. Here again, in the operative portion of the 'deed it is stated do hereby lease and demise unto the lessee all that piece or parcel of land together with the said buildings and compound walls belonging to the estate, hereinafter called the 'demised premises' and more particularly described in the schedule hereto. The lease was to commence from 1-5-1940 and to be in force for a period of seven years, the rent fixed being ₹ 835/- a month. A distinction was drawn in this lease as in the previous leases between demised premises, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial purposes and includes: (a) the garden, grounds and out-houses, 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, (b) any furniture supplied by the landlord for use in such building or hut or part of a building or hut. This definition is not very helpful in arriving at the meaning of the word 'building' as it states that a building means any building. But, what is a building? If we take the derivative meaning of the word 'building', it means that which is built. It may be a wall; it may be a structure not fit for human habitation; it may be anything and not necessarily a house. The legislature could not have intended to use the word in its derivative sense as it is clear from the object of the Act, which was to prevent unreasonable eviction of tenants from residential and non-residential buildings and to control the rents. The inclusion of a hut in the definition and the other indications in Sub-clauses (a) and (b) point to the fact that the word is used to denote a structure of the nature of a house intended for human habitation or for using it for non-residential purposes such as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as falling within the residential class or within the class connected with commercial industry or in some way or other. The preponderance of authority, therefore, in England is in favour of the view taken by Lord Esher, M. R. , already stated, and the observations of Cozens- Hardy, M. R. , do not seem to be acceptable. Earle, C. J. , in -- 'powell v. Boraston', (1865) 144 ER 408 (P) also laid down as follows: we are also aware of the immense variety of structures which are sufficient buildings, considering the locality and the use for which they are adapted in that locality. Still, we are of opinion that the intention of the legislature would be defeated, and the words indicating the class of buildings which qualify would be without any effect, if everything which would be called a building. was held sufficient. It ought to be in some degree adapted both to be used by man either for residence or for the industry to which the statute relates, and also to have the degree of durability which is included in the idea of a building. The facts of that case are somewhat interesting. The respondent was in possession of a farm of which a few acres, worth more than 10/w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under the lease, Ex. P-9, with which alone we are now concerned, was besides the building of the lessor the entire property with the compound walls and the gate. There was also the land occupied by the superstructure of the Gaiety Theatre besides the vacant land round about it. This land, on which the structure stands, undoubtedly both in the physical and in the ordinary sense, forms part of the building, namely, the Gaiety Theatre. ( 14. ) Lord Atkinson in -- 'victoria City v. Bishop of Vancouver Island', (1921) 2 AC 384 (H) pointed out that the word 'building' in ordinary parlance comprises not only the fabric of the building, but the land upon which it stands. The point became important in that case, because under Section 197 (1) of the Municipal Act of British Columbia, every building set apart and in use for the public worship of God was exempt from municipal rates and taxes while it was permissible to impose a tax upon lands or upon any real property. The question was whether the land occupied by a building, St. Andrew's Cathedral, dedicated and set apart for the public worship of God was exempt from taxation. On behalf of the municipality, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The object of the lease was to run the cinema business in the buildings then in existence together with the other buildings used as booking office, office rooms, garages, latrines and so on. It is impossible therefore to escape the conclusion that what was let to the first defendant under Ex. P-9 was a building . As pointed out by the learned Judge in his findings already extracted, the nature of the structures in the suit premises and the manner in which the entire premises were being let out and used for a number of years undoubtedly indicate that it was a building that was leased to the defendant. ( 15. ) In the above view, it is unnecessary to consider the argument of Mr. Muthukrishna Ayyar, the learned Advocate for the appellant, whether the site, Irrespective of the structure of the Gaiety Theatre, could be rightly considered as appurtenant to the sheds belonging to the lessor. He drew our attention to the decisions which have considered the meaning of the word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Clause 6 in the demised premises, would not be warranted. The answer attempted by Mr. Muthukrislma Ayyar for the appellant was that the words 'excess buildings' in Clause 6 did not take in the lessee's buildings already in existence, that is, the Gaiety Theatre, but only excess buildings constructed after the lease either in the 35 feet vacant space newly added or in the other vacant space available. He invited our attention to Clause 9 and also Clauses 4 and 6 of the lease. The scheme of this lease as well as the earlier leases was to draw a distinction between demised premises which consisted of all the property belonging to the lessor, the land, and the other buildings. The lessee's property, that is superstructure, was always described as lessee's building and the provision even in the earlier leases was that if the building was not removed within three months, it. should belong to the lessor. In Ex. P9, under Clause 8, if buildings were constructed on the 35 feet space, they should not be removed but should become the property of the lessor after the expiration of the lease without any compensation. As. regards all other buildings, they have to be removed& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he receivers also. Separate sets (calculated on the amount of damages.) Raghava Rao, J. ( 19. ) In this rather arguable case for the appellant, on the principal point debated, which I have carefully considered since reservation of judgment, in the light of the learned argument of counsel on both sides. I have on the whole made up my mind that we in appeal ought not to disturb the view of the court below for which there is enough of sound and rational basis in its judgment. It is true that this is not a case of oral evidence in which a trial Judge's conclusion must be respected on the ground of the special opportunities which he enjoys of hearing the evidence directly from the box. The case no doubt depends primarily upon a construction of the lease, Exhibit P-9 and incidentally too upon a consideration of the prior leases. There was, in fact, no oral evidence adduced, and it cannot be said that we sitting in appeal do not command the same advantage as the learned Judge below or construing the relevant documents and arriving at our own conclusion in reversal of his view, if necessary. At the same time we cannot overlook the fact that if in the process of such construction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Rent Control) Act, 1946. . . . . . . . I am also of opinion that the grounds enclosed within the boundaries are appurtenant to the buildings owned by the lessor situated within the boundaries. ( 21. ) Before discussing the soundness of the reasoning and of the conclusion of the learned Judge it is as well that I set out so far as material to the present case, the terms of the definition of 'building' in Madras Act XV of 1946; building means any building or hut or part of a building or hut, let or to be let separately for residential or nonresidential purposes, and includes-- (a) the garden, grounds and out-houses. 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. ( 22. ) Learned counsel for the appellant has assailed the conclusion of the learned Judge on the basis firstly that the subject matter of the demise has not been correctly appreciated by the learned Judge below, and secondly and consequently that the language of the definition has not been accurately applied by him to such subject matter. The first basis depends upon whether as contended by learned counsel for the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts open to doubt, (vide Maxwell on the Interpretation of Statutes Ninth Edition by Sir Gilbert page 46.) For the appellant it is contended that the description of the premises in Exhibit P-9 as well as in prior leases points to land principally as the subject-matter of the letting and that since the sheds occupy only an inconsequential part of the entire premises, there is no reason to suppose that what was let out is a building. The dominant part of the premises let, it is urged, is the vacant space around the sheds and not the sheds or the site under the Gaiety Theatre. The argument for the respondent has been 'firstly' that the site under the Gaiety Theatre is itself part of that building let separately from that building itself together with the vacant space adjoining that site, that building and the sheds, with the sheds themselves. The purpose of the letting, it is emphasised, was to help the lessee to run his theatre with greater facilities than before by means of the vacant space and the sheds. In support of this branch of the argument, reliance has been placed on the ruling of the Privy council in --' (1921) 2 AC 384 (H)', as showing that land underneath a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... say that the argument is altogether without force, 'prima facie'. At the same time it seems to me that that is a matter of detail of the form of conveyancing, while what has to be regarded on the whole is the substance of the subject matter demised. As observed by the learned Judge below, there is no evidence as regards the condition, nature and extent of the buildings belonging to the lessor within the compound wall, and it is difficult for us to say in what proportion of importance on a splitting up of the premises demised into land and buildings the land and the buildings would stand in relation to each other. As further observed by the learned Judge, it Is sufficient to say that there are some buildings within the premises and that from the year 1914 down to Exhibit P-9 the land and the buildings enclosed in the compound wall have been treated as one unit and have always been leased out as one property. These are considerations sufficient in my opinion to entail failure of the argument for the appellant as presented to us. ( 25. ) The force of these considerations is however sought to be whittled down by Mr. Muthukrishna Ayyar by citation of two cases, one reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ymologically appurtenance means pertaining or relating to , and that is the wider sense in which the word may sometimes have to be understood and applied apart from the stricter sense of belonging to . Ordinary Dictionaries, Law Lexicons as well as cases in the books do refer to both the senses, and the question which sense should be adopted depends upon the circumstances of the particular case in which it arises. Apart from the passage in Woodfall on the Law of Landlord and Tenant and the passage in --' (1888) 20 Q B D 225 at p. 231 (K)', relied upon before us by learned counsel for the respondent, I may advert in this connection to what Eouvier, Wharton and Stroud say on this subject in their Lexicons. According to the first of these authors, appurtenant means belonging to, pertaining to; the thing appurtenant must be of an inferior nature to the thing to which it is appurtenant . Vide Baldwin's Edition of the work (1928) at page 81. Wharton's Law Lexicon at page 63 of the 13th Edition annotates the word thus: pertaining r belonging to , (see appendant); and of appendant at pages 59 and 60, this is what we get; a thing of inheritance belonging to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hamlet to another village, garden to a home; that which passes as incident to the principal thing, a thing used with and related to or dependent upon another thing more worthy and agreeing in its nature and quality with the thing whereunto it is appendant or appurtenant; that which belongs to something else, an adjunct, an appendage . The author proceeds to observe: it is sometimes used in the nontechnical sense of 'adjoining . ( 26. ) In my opinion the word appurtenant occurring in the definition of building in the Act with which we are concerned is used in the broad, secondary and non-technical sense of relating to , usually enjoyed or occupied with and adjoining just noticed by me. The idea of the legislature seems to be that if grounds appurtenant to the building in this sense are let along with the building they should stand attracted to the operation of the Act. That the grounds should also be let along with the building would not be a matter of specific provision in the definition of the statute, if the primary or legal sense of the word appurtenant were intended, as in that case any thing appurtenant to another in that sense would pass with it under the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as shown by the several cases, English and Indian, cited to us must be understood in different senses in different statutes and contexts according to the purpose and object of the statute and the context. In the context of Sub-section (1) of Section 197 of the Municipal Act (British Columbia) it was held by the Privy council applying the golden rule of adherence to the grammatical and ordinary sense of words laid down by Lord Wensleydale in --'grey. v. Pearson', (1857) 6 HL Cas 61 (Q) that the exemption from tax extended not only to the fabric of the building in question but to the land upon which it stood. It was observed that the thing most necessary for the use of the cathedral as a place of worship which is the ground of exemption from taxation is that the congregation which frequents it should be able to stand or kneel upon the ground embraced within its walls and forming the floor of it, or sit upon chairs resting upon that floor. We have in the present case to see whether the ordinary meaning of building which includes the site underneath as applied in that decision is applicable to the present case. I find nothing n the considerations connected with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin the contemplation of the legislature. building as observed in Halsbury's laws of England, Hailsham's Edition, Volume XXVI, page 335 is a term of wide significance. The structure need not be fastened to the ground or be above the surface of a street. ( 30. ) In the Concise Oxford Dictionary the word building is annotated at page 144 of the Third Edition as equivalent to house, edifice. And edifice is at page 363 annotated as equivalent to building (especially a large one) . In Baldwin's Edition (1928) of Bouvier's Law Dictionary at page 141 building is annotated as meaning an edifice erected by art and fixed upon or over the soil composed of stone, brick, marble or wood or other proper substance connected together and designed for use in the position in which it is so fixed. This, it will be seen, is a very comprehensive annotation which does not insist on a roof for the structure or on brick or stone in its composition. Then in Wharton's Law Lexicon at page 130 of the 13th Edition, although it is first stated that the word has been defined by Lord Esher in ' (1892) 1 QB 264 at p. 270 (B)' as an enclosure of brick or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion reported in --'public Prosecutor v. Kalia Perumal Naidu', 8 Mad LT 431 (W) wherein it was pointed out that by section 3 of the Madras District Municipalities Act, Act IV of 1884 building was defined as including a wall. So it was held that the word building in Clause (5) of Section 180 of the Act included mere walls built for the purpose of erecting a house and the construction of such walls without the license of the municipality rendered persons constructing them liable to the penalty prescribed in section 263, even though the house to support which the walls were designed had not been built. building in the etymological sense means any thing built , and there is no reason why if that is the intendment of the legislature in connection with a particular enactment, compound walls with the space inside may not be regarded as a building. ( 32. ) Then so far as the need of brick of stone about the structure is concerned there is the case in --'nandu Mal v. Municipal Committee Simla', AIR 1925 Lah 252 (X) which is rather instructive. There the facts were as follows: the petitioner constructed a wooden shed on a piece of ground belonging to him within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Lord Brampton have cited with approval in -' grant v. Langston', (1900) AC 383 (Z3 ). formerly houses were built so that each house occupied a separate site, but in modern times a practice has grown up of putting seperate houses one above the other. They are built in separate flats or storeys; but for legal and ordinary purposes they are separate houses. Each is separately let and separately occupied, and has no connection with those above or below, except in so far as it may derive support from those below instead of from the ground as in the case of ordinary houses. The idea of the legislature seems to have been to go a step further and to include within the definition any part of even an ordinary house or hut not built in flats, if let separately from the rest of house or hut. separately in the context must mean, as is indeed its ordinary Dictionary meaning, distinctly from the rest of the building or hut. ( 36. ) Bearing these considerations in mind and the purpose of the statute as declared by preamble as being to control non-residential as well as residential accommodation it seems to me perfectly clear that, having regard to the compound walls and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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