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1994 (7) TMI 370

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..... armondir 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, the deceased appellant trespassed into the property and put up a construction. The suit was necessit .....

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..... 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 5 .....

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..... 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 groun .....

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..... e 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 reconstru .....

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..... e 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 relie .....

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..... s 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 ine .....

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