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1994 (7) TMI 370

1983 of the District Court, Trivandrum, is the appellant. Pending appeal she died and the second respondent, i.e. son of the appellant was transposed as additional appellant. 2. This appeal is on a reference by a learned single Judge of this court, P. Krishnamoorthy, J. 3. The substantial question of law which arise for consideration in this appeal are; (i) Whether the court below is correct in finding that the destruction of the subject matter of the lease will automatically terminate the lease without considering the question of option exercised by the lessee as per Section 108(e) of the Transfer of Property Act? (ii) Alternatively whether the court below is correct in applying the decision of the Hon'ble Court in Sidharthan v. Ramadasan, 1984 Ker LT 538 : (AIR 1984 Kerala 181) and whether it 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 .....

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the lease is completely destroyed and the construction made by the appellant is unauthorised. Relying on the decision reported in 1984 Ker LJ 263 (Sidharthan v. Ramadasan (1984 Ker.LT 538 : (AIR 1984 Kerala 181), it was held that the first defendant is liable to be evicted from the property and the construction is also liable to be removed. In that decision it was held that normally site is not included in the case of lease of a building and by destruction of the structure, the lease will come to an end. It is against the decision of the learned District Judge, the first defendant has come up in appeal. 8. Pending the appeal, the original plaintiff died and his legal representatives have been impleaded as respondents 3 to 9. 9. While the appeal 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 ap .....

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t is not permissible for the courts to travel outside the provision. In AIR 1968 SC 1024 (Druv Dev Singh v. Harmohinder Singh, AIR 1968 SC 1024 it was held that Section 56 of the Contract was exhaustive on the subject and principles of English law cannot be taken into consideration. 13. The first question to be decided is what is a building? The ordinary or natural meaning to be assigned to the word 'building' is given in P. Ramanatha Aiyar's Law Lexicon (Reprint Edition 1987) at page 159, thus: A thing composed of the fabric of the building and the ground that the fabric rests upon and encloses . It is further stated by the author that the land upon which 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. .....

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ct. Under the Kerala Buildings (Lease and Rent Control) Act, 1965, the word 'building' is defined in Section 2(1) thus: In this Act, unless the context otherwise requires, - (1) building means any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purposes and includes - (a) the garden, grounds, wells, tanks and structures, 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; 18. From the above 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 .....

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t imports tangibility, and may include the land on which it stands, as well as adjacent land. 23. We are in full agreement with what has been decided in (1988) I Ker LT 473, wherein it is held that even the site of the building after being pulled down remains as part of the building and comes within the definition of building under the Rent Control Act. 24. The learned single Judge in (1990) 2 Ker LT 187: (AIR 1991 Kerala 55) has taken into consideration 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 .....

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ned counsel for the appellant is reported in (1993) 1 Ker LJ944 (Damodaran v. Yesoda). Of coures, in that case, the learned single Judge did not follow the decision reported in (1990) 2 Ker LT 187 : (AIR 1991 Kerala 55) on the ground that he is bound by the Bench decision. But, from the facts of the case, it is clear that the subject-matter in the case was entirely different. The building rented out was gutted in a fire and the 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 .....

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uilding and the site as a composite unit, once the structure is destroyed, the tenant cannot be allowed to put up constructions and enjoy the same. That is against the contract between the parties. 32. In Joseph v. Chellamma, ILR (1988) 2 Ker 697, paragraph 7 of the judgment has dealt with the point. It is held that the tenant cannot compel the landlord to put up a construction 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 .....

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