TMI Blog1994 (7) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 destructi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 Vanco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove 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 cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 terminate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truction 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 remedi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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