Abdul Rasheed and Another vs Muslim Mahadavia Jamath Committee, Erode

G. Rajasuria, J.—Animadverting upon the judgment and decree dated 25.08.2008 passed by the learned I Additional Subordinate Judge,

(Rent Control Appellate Authority), Erode in R.C.A. No. 6 of 2007 confirming the order and decree dated 12.04.2007 passed by the learned

Principal District Munsif (Rent Controller), Erode in RCOP No. 25 of 2005, this revision is focussed by the tenants. The parties, for convenience

sake, are referred to here under according to their litigative status and ranking before the Rent Controller.

Broadly but briefly, narratively but precisely, the germane facts, absolutely necessary and germane for the disposal of this civil revision petition

would run thus:

(i) The respondent/landlord, which is a Muslim Mahadavia Jamath Committee, Erode filed the RCOP No. 25 of 2005 seeking eviction of the

revision petitioners/tenants on the ground of willful default, change in user and also on the ground of owner''s use and occupation by invoking

Sections, 10(2)(i), 10(2)(ii)(a) and (b) and 10(3)(a)(iii) of the Tamil Nadu Buildings [Lease and Rent Control] Act (hereinafter referred to as ""Act

in short).

(ii) The tenants resisted the RCOP by filing counter.

(iii) During enquiry, on the side of the respondent/landlord P.W.s. 1 and 2 were examined and Exs. P1 to P14 were marked. On the side of the

revision petitioners/tenants, R.W. 1 was examined and Exs. R1 to R8 were marked.

(iv) Ultimately, the Rent controller ordered eviction on all the grounds.

(v) Being aggrieved by and dissatisfied with the same, the tenants preferred appeal before the appellate forum for nothing but to be dismissed by

the appellate authority confirming the judgment and decree of the Rent Controller.

(vi) Challenging and impugning the judgments and decrees passed by both the authorities below, this revision has been preferred by the tenants on

various grounds.

Heard both sides.

The learned counsel for the revision petitioners/tenants placing reliance on the grounds of revision would pilot his argument, which could pithily

and precisely be set out thus:

The landlord leased out only a vacant site so as to enable the tenants to raise superstructure and carry on with the Semiya factory. In such a case,

the matter could not have been brought within the four corners of the Tamil Nadu Buildings (Lease and Rent Control) Act. Without considering this

crucial aspect, both the courts below decided the lis warranting interference in this revision.

Per contra, in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the revision petitioners/tenants, the learned

counsel for the respondent/landlord would advance his argument, the gist and kernel of them would run thus:

The courts below taking into consideration the pros and cons of the matter appropriately and appositely held that the matter squarely comes within

the ambit of the Tamil Nadu Buildings (Lease and Rent Control) Act, in view of the fact that the landlord authorised the tenant to raise

superstructure having support of the compound walls put up by the landlord and as such, no interference with the reasoned order passed by both

the courts below is warranted.

The point for consideration is as to whether the premises leased out was a building within the definition of Section 2(2) of the Tamil Nadu

Buildings (Lease and Rent Control) Act?

Whether there is any perversity or illegality in the orders passed by both the courts below?

The learned counsel for the respondent/landlord produced voluminous precedents on his side in order to buttress and fortify his contention that

what was leased out by the landlord in favour of the tenants could rightly be taken as ''building'' within the meaning of Section 2(2) of the Tamil

Nadu Buildings (Lease and Rent Control) Act.

It is therefore just and proper to refer to those decisions:

Kamla Devi Vs. Laxmi Devi, Certain excerpts from it would run thus:

When, in any case, the question arises whether an open plot of land or a plot of land with structures thereon, was let out, the court has to

determine the same on the facts of that case. In deciding this question, it will be useful to bear in Ind that if a plot with a structure was let out it will

fall within the meaning of the term ""premises"" but if an open plot without any structure was let out then it does not fall within the meaning of the term

premises"". It is immaterial whether the tenant raised structures before the creation of the tenancy or after he was let in as a tenant. In either case,

the tenant alone will have the proprietary rights in the structure and not the landlord.

2010(3) CTC 851 [B. Shaji vs. Sree Pravaswamy Devasthana]

D.M. Belgumvala Vs. Tamilnadu Real Estates Pvt. Ltd., Certain excerpts from it would run thus:

9(a). ...In the case on hand it is the conceded fact that vacant site alone was not leased out to the parents of the petitioner but certain vacant site

along with superstructure, viz., building were let out to them and hence both the plot and the building could be brought within the purview of the

term ""premises"" and hence the tenant cannot claim that since his father built a superstructure over the site pertaining to the building portions let out

to him, the eviction order could not be passed. To put it otherwise, when it is not the case of the petitioner that a vacant site or a plot alone was

leased out to his father and his father built a superstructure, there could be no contention that the Eviction petition is not maintainable. 9(b). The

petition for eviction has been file to evict the tenant from the premises leased out to the parents of the petitioner and what are all the superstructures

put up by him would in no way be an impediment for passing of eviction order, in view of the definition of the term ""premises"" contained in the

Statute. It is defined in Tamil Nadu Buildings (lease and Rent control) Act in Section 2(e)(1)(i) that, ""premises"" means ''any building or part of a

building which is, or is intended to be, let separately for use as a residence or for commercial use or for any other purpose.

ML Yacob Sheriff (D) by Lrs. Vs. Rajrani Devi, An excerpt from it would run thus:

...The word ''building'' therefore, wherever used in sub-section (4) including in the first and second provisos has to be given the same meaning

as the building let or to be let"". The word ""building"" used in sub-section (4) of Section 4 with two provisos therein cannot be differently

understood to include with building let out, the building constructed by the tenant on the leased land. From the language of sub-section (4) of

Section 4, we do not find that the legislature contemplates for the purpose of fixation of fair rent, valuation of building constructed by the tenant.

...As we have stated above, wherever the word ""building"" has been used, it has to be understood in accordance with the definition clause

contained in Section 2(2) to mean only vacant land on which the ""building let or to be let"" stands. For the purpose of valuation of the building and

land let out, the construction put by the tenant on any portion of the vacant land leased, cannot be taken into account. Similarly, the land built upon

by the tenant cannot be valued as built-up portion of the leased land.

5 Lok Adhikar Sangh Vs. State of Gujarat and Others,

Raja Somasekhar Chikka and Another Vs. M. Paduravatamma and Others Etc.,

Municipal Board, Saharanpur Vs. Shahdara (Delhi) Saharanpur Light Rail Co. Ltd.,

Municipal Board, Saharanpur Vs. Imperial Tobacco of India Ltd. and Another Etc., Certain excerpts from it would run thus:

When we turn to the said definition of the term ""building"" as laid down in Explanation (a) to Section 129, we find that in the first part of this

definition, the term ""building"" would include"" compound"", if any, thereof, clearly includes the building as defined by Section 2, sub-section (5) along

with compound thereof, meaning thereby the compound forming part and parcel of that building being annexed thereto. For understanding the

meaning of the said term ""compound of the building"" definition of ""compound"" as found in Section 2, sub-section (5) becomes relevant. Such a

compound whether enclosed or not should be appurtenant to such building or should have a common appurtenance to several buildings so situated

near each other that they enjoy the common land as adjunct of such buildings. The phrase ""compound if any thereof"" expands the scope of the term

building"" as found in the first part of the explanation. It clearly indicates that such compound must be a part and parcel of that building. But the said

phrase also gets covered by the definition of the term ""building"" as found in Section 2(2) of the Act which covers even boundary walls of such

compound land appurtenant to such a building. Such compound land gets in its turn covered by the definition of the term ""compound"" as found in

section 2 of the Act. Thus the first part of Explanation (a) to Section 129 which defines ""building"" can have a nexus with the definition of the term

building"" as found in Section 2(2) and ""compound"" as found in Section 2(5).

9 A. Syed Khader Batcha Vs. A. Pichai Chettiar

...The above definition makes it clear that there must be something, which is built or it should be a wall or it must be just a structure and it may

not be fit for human habitation. Definitely, a mere wall or a fence or a gate or a drying platform will not, in that sense, would be a building under the

Act.

A suit for ejectment in respect of a vacant land is maintainable before the civil court as has been laid down by Ramaswamy, J., as he then was,

in 93 L.W. 900 Periasami Chettiar vs. Subramanian Chettiar. In considering the issue as to whether the suit property is a building or not falling

within the ambit of S. 2(2) of the Act, this court has to definitely take into consideration the nature of the premises which has been let out.

Admittedly, what has been let out is only a vacant site, which is used as a drying yard...

Vol. 91 LW 659 [Thangakani Ammal and others vs. A.K.A. Khaja Mohideen Sahib and another]. Certain excerpts from it would run thus:

...It is quite clear from the above that the stress is on the purpose for which the structures are put and demised. If the structures put up and

demised will serve a useful purpose, it may be possible to hold that the structures demised could come within the meaning of ''building'' under the

Act.

Rajeshwari Devi Vs. S.M. Rabi and Others, . Certain excerpts from it would run thus:

...In considering (sic) the question whether the premises is to be construed as a ''building'' or not coming within the ambit of Section 2(2) of the

above said Act we will have to consider the nature of the premises, the purpose for which it was leased out and the intention of the parties at the

time of granting of lease. All these factors in the case clearly point out that what was leased out is a premises for the purposes of an automobile

workshop, a non-residential purpose. Hence the petition mentioned premises falls within the definition of a ''building'' occurring in Section 2(2) of

the above said Act. The view taken by the Appellate Authority that it is not a ''building'' as defined u/s 2(2) of the above said Act cannot be upheld

and the order of the Appellate Authority will have to be set aside. Inasmuch as the Appellate Authority had not dealt with the questions whether

the tenant had committed willful default in payment of rent, and whether the premises is needed by the landlord for his own use the matter will have

to be remanded back to the Appellate authority for fresh disposal according to law after considering the case of both the parties on these two

aspects.

Adhu Vs. V.M. Palaniswamy Gounder,

13 The South Gujarat Roofing Tiles Manufacturers Association and Another Vs. The State of Gujarat and Another,

1973 TLNJ 59 [M. Namasivaya Pillai vs. V. Jayaraman]

15 Pals Theatres and Others Vs. B. Abdul Gaffoor Saheb and Others, ]. Certain excerpts from it would run thus:

In our view, the question of intention of the parties will become relevant only if the terms of the transaction are not clear. Where the terms are

clear and unambiguous, it is needless to examine the intention of the parties, because, the intention, once thus expressed in clear terms, cannot be

otherwise. Even if we apply the test of intention to the instant case, we have no doubt in holding that the intention of the parries was to enter into a

transaction of a lease of going concerns of two theatres, though inevitably the buildings concerned also form part of the transaction.

Ghanshiam Das Vs. Devi Prasad and Another,

Sha Poosaji Mangilal Vs. The South Indian Humanitarian League,

A mere poring over and perusal of those decisions would unambiguously and unequivocally, highlight and spotlight the fact that if at all any structure

is leased out by the landlord for the enjoyment of the tenant, then automatically the provisions of the Tamil Nadu Buildings (Lease and Rent

Control) Act would be applicable, if the said structure comes within the territorial jurisdiction of the Rent Controller.

Indubitably and indisputably, unarguably and unassailably, what was leased out by the landlord was only a vacant site. Both the courts below

repeatedly highlighted in their orders that the Jamath passed resolution to the effect that the vacant site belonging to the Jamath was to be leased

out and accordingly, it was leased out so as to enable the tenant to put up super structure near the compound wall. In such a case, it is not the case

of the landlord anywhere that it is the landlord, who put up the superstructure. In such a case, there is no knowing of the fact as to how the Rent

Controller as well as the appellate authority can assume and presume that the demised premises would come within the definition of a ''building'' as

per Section 2(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act. To say the least, the Rent Controller repeatedly repeated the facts

stated by both the sides; but absolutely there is no specific finding as on what basis the Rent Controller held that the demised premises was coming

within the definition of ''building'' as envisaged u/s 2(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act.

It is therefore crystal clear that the Rent Controller in fact had not at all decided positively by citing any reason for holding that the demised

premises was one coming within the ambit of the definition of ''building'' as per Section 2(2) of the Tamil Nadu Buildings (Lease and Rent Control)

Act. The appellate authority, adding fuel to the fire despite giving a clear finding that the Jamath leased out only the vacant site went on waxing

eloquence as though the demised premises was coming within the definition of the term ''building'' as per the Tamil Nadu Buildings (Lease and Rent

Control) Act. The appellate authority in a few places, would refer to the compound wall also. Even assuming that the compound wall was

expressly and consciously intended by the landlord to be used by the tenant for raising the super structure, yet scarcely could it be stated that the

court can presume or assume that the premises leased out was a ''building''. If the court has to consciously say that the compound wall by itself

would constitute building within the definition of Section 2(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, then it would lead to

travesty of justice.

In none of the aforesaid precedents, it is found stated that if a compound wall is permitted by the landlord to be used by the tenant for raising

super structure, then it should be presumed that what was leased out was a ''building'', within the definition of Section 2(2) of the Tamil Nadu

Buildings (Lease and Rent Control) Act.

The learned counsel for the respondent/landlord would specifically rely upon the judgment of this court reported in Rajeshwari Devi Vs. S.M.

Rabi and Others, and submit that even if there is an asbestos roof supported by four poles, which is leased out for running a workshop, it should

be treated as a ''building''.

Here, not even such a structure was leased out by the landlord in favour of the tenants, wherefore, the decisions of both the courts below are

nothing short of perversity and illegality, warranting interference in revision and certainly pronouncements of both the courts below should be set

aside and ultimately, the RCOP has to be dismissed. Accordingly, it is dismissed.

The learned counsel for the respondent/landlord would submit that taking undue advantage of the situation, the tenants are not at all paying rent

ever since 2005, for which, the learned counsel for the tenants would submit that he would instruct his clients, in all fairness, to discharge the entire

arrears, whatever be the arrears, as per law.

In this factual matrix, the proper course open for the respondent/landlord is to file a civil suit for eviction of the tenants. In the result, this civil

revision petition is allowed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.