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Judgment
Ratnam, J.—The defendant in O.S. 271 of 1978, District Munsif Court, Coimbatore, is the appellant in the second appeal and the petitioner
in the civil revision petition. The circumstances giving rise to the second appeal as well as the civil revision petition before this Court are as follows:
A site of 10 feet by 10 feet at the north-eastern corner of the property belonging to the respondent in T.S. 584 was leased out to the appellant in
the second appeal and the petitioner in the civil revision petition (tenant, for short), the tenancy having commenced on the 1st of the calendar month
on a monthly rent of Rs. 30 payable on the 5th of the succeeding month. A wooden bunk was placed by the tenant on the site leased out in his
favour and he had been carrying on petty shop business therein. The respondent (hereinafter referred to as the ''landlord'') desired to put up a
compound wall enclosing the entire area including the site under the occupation of the tenant and issued a notice to the tenant terminating the
tenancy and calling upon him to vacate the site and put the landlord in possession. In the reply sent, the tenant, while declining to surrender, claimed
that he is entitled to the benefits of the Madras City Tenants Protection Act, 1921 (hereinafter referred to as ''the Act''). Thereupon, the landlord
instituted O.S. 271 of 1978 District Munsif''s court, Coimbatore, in ejectment and prayed for a decree for possession against the tenant and also
for recovery of arrears of rent on the ground that the tenant is not entitled to any of the benefits under the Act, as no building had been erected by
him on the site and there was neither a superstructure nor a structure, which had originated from and embedded in the land and that the mere
placing of a wooden bunk on the site leased out in favour of the tenant would not clothe him with rights under the Act. In the written statement filed
by the tenant, while accepting the tenancy, he contended that on the site measuring 10 feet north south and 20 feet east west, leased out in his
favour on payment of a rent of Rs. 18 per mensem, a superstructure had been put up by him at his cost and that remained in his possession and
enjoyment. The claim of the landlord that a built up wooden bunk had been placed on the site leased out, that no building bad been put up by the
tenant on the site and that nothing has come out of the soil of the site either as a superstructure or even as a structure, was denied. Alleging that he
is entitled to claim the benefits under the Act, the tenant expressed his willingness to purchase the site measuring 10 feet by 20 feet from the
landlord. An objection was also raised that the notice to quit issued by the landlord was invalid. Besides, the tenant expressed his readiness to pay
the arrears of rent claimed by the landlord.
Consistent with the stand taken in the written statement by the tenant, he filed I.A. 896 of 1978 in O.S. 271 of 1978 under S. 9(1) of the Act
praying that the landlord should be directed to sell the site to him for a price to be fixed by the court. In support of that application the tenant
claimed to have put up a superstructure on the site leased out at his cost and thus become entitled to file the application for sale to him at a price to
be fixed by the court of the site 10 feet by 20 feet, which according to him, was the minimum extent necessary for his convenient enjoyment. In his
counter, the landlord not only disputed the extent of the site leased out, but also contended that the mere placing of a ready made wooden bunk
over the site let out would not enable the tenant to claim the benefits of the Act, as the tenant was not entitled to any compensation under the
provisions of the Act. There was, according to the landlord, no superstructure on the site put up by the tenant in respect of which he was entitled to
compensation to justify the claim of the tenant under S. 9(1) of the Act.
Before the learned District Munsif, Coimbatore, on behalf of the landlord Exs. A1 to A7 were marked and his power of attorney agent was
examined as P.W.1, while, on behalf of the tenant, Exs. B1 to B8 were filed and he was examined as D.W.1. A commissioner was also deputed
to make a local inspection to ascertain the nature of the superstructure, its situs and mode of annexation, etc., and he submitted a report and two
plans marked as Exs. C1 to C3. On a consideration of the evidence, oral and documentary, the learned District Munsif found that a site of only 10
feet by 10 feet was leased out to the tenant and that a wooden bunk shop made outside had been brought and placed on the site by the tenant or
his predecessor, without any base or foundation for such erection or construction in the bowels of the earth in the site let out and it cannot be
termed to be a superstructure put up by the tenant, in respect of which he would be entitled to compensation under S. 3 of the Act, and, therefore,
S. 9 of the Act cannot be invoked by him. In that view, it was further held that the tenancy was properly terminated and the landlord was entitled
to recover possession of the site leased out as well as arrears and future rent in respect thereof till delivery of possession.
Dealing with I.A.896 of 1978 in O.S.271 of 1978 by a separate order, the learned District Munsif found that the wooden bunk shop was
movable or portable and it had not been constructed by the tenant on the site of the land let out and no portion of the structure had come out of
earth or been constructed in earth, and therefore, such a bunk would not be a building or superstructure at all within the meaning of the provisions
of the Act. Holding further that the tenant was not entitled to claim any compensation in the event of his ejectment from the site in question as the
bunk was not a building or superstructure, the learned District Munsif negatived the claim of the tenant that he is entitled to purchase the vacant site
leased out to him. On the basis of the conclusions so arrived at in the course of the suit as well as the application under S. 9 of the Act, the learned
District Munsif granted a decree in favour of the landlord for recovery of possession of the site as well as arrears of rent and future rent till the date
of delivery of possession and dismissed the application filed by the tenant claiming benefits under S. 9 of the Act. Aggrieved by this, the tenant
preferred A.S.77 of 1980 against the decree for possession and arrears of rent and C.M.A.57 of 1980 against the dismissal of the application filed
under S. 9 of the Act, to the District Court, Coimbatore. By a common judgment, the learned District Judge found that writ was leased out to the
tenant was only 10 feet by 10 feet on a monthly rent of Rs. 18, that the wooden bunk mounted on the leased out site by the tenant was capable of
being shifted to other places without any damage or loss either to the bunk or to the site over which it was placed and, therefore, the tenant was
not entitled to claim compensation and could not in turn project claims or benefits under S. 9 of the Act. On that conclusion, except for a
modification regarding the arrears of rent as well as future rent, the decree of the trial court was substantially confirmed and the dismissal of the
application filed by the tenant under S. 9 of the Act was also affirmed. The tenant has come up before this Court in this second appeal as well as
the civil revision petition directed against A.S. 77 of 1980 and C.M.A. 57 of 1980 respectively. Since the appeal as well as the civil miscellaneous
appeal were disposed of by the lower appellate court by a common judgment and common questions arise for decision in the second appeal as
well as the civil revision petition, they are dealt with together.
The substantial question of law on which this Court had admitted the second appeal runs as under:
Whether the bunk of the nature referred to by the courts below would amount to a building within the meaning of Ss. 3 and 9 of the Tamil Nadu
City Tenants Protection Act ?
Before this Court, no dispute was raised by Mr. N. Sivamani, the learned counsel for the tenant, and Mr. K. Ramamurtni, the learned counsel
for the landlord, either as regards the extent of the site leased out to the tenant or the monthly rent payable by him in respect thereof and, therefore,
the finding of the courts below regarding the extent of the land leased out, namely, 10 feet by 10 feet and the finding of the lower appellate court
regarding the rent payable, namely Rs. 18 per mensem have to be accepted as correct.
The principal contention of the learned counsel for the tenant is that the wooden bunk, of the nature and kind as in this case, would be a
''building'' under S. 2(1) of the Act, attracting payment of compensation to the tenant under S. 3 of the Act, in the event of his being ejected from
the site and that in turn, S. 9 of the Act would be applicable to the tenant. A large number of decisions arising under the provisions of the Tamil
Nadu Buildings (Lease and Rent Control) Act rendered with reference to the definition of a ''building'' occurring therein were cited. On the other
band, the learned counsel for the landlord submitted that a reading of the provisions of the Act in the light of its objects indicated that a
superstructure, in order to be a ''building'' for purposes of the Act, must have been put up or erected on the site with a certain degree of
permanence and should have something to do with the earth under the site leased out by way of foundation and fixture to the earth and that a mere
wooden bunk placed and resting on four legs on the site leased out does not fulfill the requirements of ''building'' occurring under S. 2(1) of the
Act, and there is no question of the tenant being entitled to payment of compensation in respect of such a building, as it could be easily carried
away in tact by the tenant, and, therefore, no benefits under S. 9 of the Act can at all be claimed by the tenant. The underlying idea of the definition
of a ''building'' under S. 2(1) of the Act, the provisions for ascertainment and payment of compensation in respect thereof under Ss. 5, 4 and 3 of
the Act and the enabling provision under S. 9 of the Act, according to the learned counsel for the landlord, brought out in bold relief, as it were,
that the superstructure contemplated should be of the nature of immovable property. Reliance was placed by the learned counsel on several
decisions arising under S. 108(h) of the Transfer of Property Act.
Before embarking upon a consideration of these submissions, a brief reference to the features of the superstructure in this case and the objects
of the Act as well as some of its relevant provisions, is necessary. Ex. C1, the report of the Commissioner established the superstructure in
question to be merely a wooden bunk with a tin roof covering resting upon earth by wooden poles painted with tar on stone slabs with no definite
structure, footing or foundation, having been raised, in and from earth. That the wooden bunk rests on four wooden poles placed on four stone
slabs with a gap of about 4 feet between the level of the earth and the bottom of the bunk is admitted by the tenant examined as R.W.1. That no
change in the physical character of the site let out to the tenant had been brought about by the superstructure in this case and it remained as before,
is thus clearly made out.
Originally, the provisions of the Act were enacted with a view to give protection to tenants who had constructed buildings on others land, in the
hope that they would not be evicted, so long as they pay a fair rent for the land. Later, by S. 2 of Tamil Nadu Act 4 of 1972, the preamble to the
Act, as it now stands, had been substituted. Now, irrespective of tenants'' entertaining hopes against eviction, protection has been given to tenants,
who had constructed buildings on other''s lands so long as they pay a fair rent for the land. S. 2(1) of the Act, in so far as it is relevant for this case,
defines a ''building'' as under�
''Building'' means any building, hut or other structure, whether of masonry, bricks, wood, mud or metal or any other material whatsoever used.
The rest of the section is omitted as not necessary for this case. S. 3 of the Act runs as follows�
Every tenant shall on ejectment be entitled to be paid as compensation the value of any building, which may have been erected by him, by any of
his predecessors in interest, or by any person not in occupation at the time of the ejectment who derived title from either of them, and for which
compensation has not already been paid. A tenant who is entitled to compensation for the value of any building shall also be paid the value of the
trees which may have been planted by him on the land and of any improvements which may have been made by him.
S. 4(1) of the Act is as follows-
In a suit for ejectment against a tenant in which the landlord succeeds, the Court shall ascertain the amount of compensation, if any, payable under
S. 3 and the decree in the suit shall declare the amount so found due and direct that, on payment by the landlord into court, within three months
from the date of the decree of the amount so found due, the tenant shall put the landlord into possession of the land with the building and trees
thereon.
S. 5(1) and (2) of the Act is to the following effect:�
(1) The compensation awardable under S. 4 shall be the value of the building and trees and of any improvements which may have been made by
the tenant on the date of the decree or interim order, as the case may be.
(2) In determining such value, the court may take into consideration the estimated cost of erecting a similar building, the amount to be allowed for
depreciation, and the amount spent on repairs.
S. 9(1)(a)(f) of the Act provides for the filing of an application by a tenant for direction to the landlord to sell the land. S. 9(1)(a)(i) of the Act is
relevant in this case and that runs as follows:�
Any tenant who is entitled to compensation under S. 3 and against whom a suit in ejectment has been instituted or proceeding under S. 41 of the
Presidency Small Cause Courts Act, 1882, taken by the landlord, may, within one month of the date of the publication of Madras City Tenants
Protection Amendment Act, 1979 in the Tamil Nadu Government Gazette or of the date with effect from which this Act is extended to the
municipal town, township or village in which the land is situate, or within one month after the service on him of summons, apply to the Court for an
order that the landlord shall be directed to sell for a price to be fixed by the court, the whole or part of the extent of land specified in the
application.
The other parts of the section are not germane for purposes of these proceedings. S. 13 of the Act modifies the application of the provisions of the
Transfer of Property Act, to cases governed by the provisions of the Act. That runs as follows�
In its application to the city of Madras and to any Municipal town, township or village to which this Act is extended, the Transfer of Property Act,
1882 shall to the extent necessary to give effect to the provisions of this Act, be deemed to have been repealed or modified.
The definition of the word ''building'' occurring in S. 2(1) of the Act referred to earlier consists of two parts. The first part involves a tautology
in that ''building'' is defined as meaning ''any building.'' It includes hut or other structure. It is not the case of either side that the superstructure in this
case is a hut or other structure. The first part of the definition concerns itself with the configuration or the total effect produced by its outlines, form
or the shape of the superstructure as a ''building.'' The second part of the definition enumerates the material content of the building. If, under the
first part of the definition, a superstructure can be regarded as a ''building'', it is really immaterial as to what goes into the making of it, be it wood,
mud or metal or other material. Before a superstructure can take the shape of ''building'' it has to be raised or built or erected or put up as a
building en a vacant site. The commencement of erection or the putting up or raising of the building is by the excavation of the earth and the laying
of a foundation in the site over which the building is to be put up or raise. The further parts of the building like walls, roof, etc., are put up or raised
on the foundation so laid. Even if only the foundation is laid and no part of the building is raised above the ground level, it would be none the less
one of the steps or sages in the erection or the putting up of the building. The common sense conception of a building denotes a certain degree of
its permanency in the place or site, where it is raided or built, as opposed to portability. A building is also intended to endure for a considerable
time, though not everlasting. What is essential is the change in the physical character of the site over which the building is put up. The building put
up by changing the physical character of the land by digging up a foundation acquires a certain degree of permanency and the very value of the
building, as one such is on account of this difficulty in portability, arising out of its being fastened securely to earth. In this case, as seen from the
report of the Commissioner as well as the evidence of R.W.1, the wooden bunk in question is merely rested on the site leased out to the tenant on
four wooden poles with absolutely no change whatever in the physical character of the earth underneath and has no degree of permanence
whatever in the sense that portability appears to be its main value and advantage as well. Ss. 3 to 5 and 9 of the Act referred to already indicate
that the superstructure contemplated as falling within the definition of a ''building'' for the purposes of the Act, should have been erected or put up
or with a certain degree of permanence in the site, where it is so put up or built. Under the provisions of the Transfer of Property Act, where there
is a lease of the site, the lessee has no other right over the site, except as a lessee and on the determination of the lease or sooner ejectment of the
lessee, the lessor becomes entitled the possession of the site Under S. 108(h) on the determination of the lease, the lessee while in possession of
the property leased, can, at any time, remove the superstructure, which he has put up on the site and leave it in the same state or condition in which
he received it. The lessee, though the owner of the building put up by him on the site, has only the right to remove the superstructure and cannot
compel the lessor, either to take the superstructure and pay the value thereof or to sell the site leased out to the lessee. Even as regards the right to
remove the superstructure, the lessee, may agree, by a contract to the contrary not to exercise his right to remove the superstructure with or
without any claim for compensation therefor. What is relevant and important is that in the event of non-removal of the superstructure as aforesaid
on ejectment or on the determination of the lease, the superstructure becomes part of the premises demised and part of the land and property of
the lessor without any further conveyance or even formal transfer of the superstructure. Under the provisions of the Act, there is a deliberate
departure .The rights relating to the superstructure and payment of compensation thereof are mainly dealt with under Ss. 3, 4 and 5 of the Act. The
tenant, on ejectment, is entitled under S. 3 of the Act to be paid compensation for the value of the building erected or put up by him, which has to
be de ermined by the court in accordance with S. 5 of the Act, if a suit in ejectment is filed by the landlord. On payment into court under S. 4(1) of
the Act of the amount of compensation declared by court within three months from the date of the decree, the tenant shall put the landlord into
possession of the land with the building and trees thereon, if any. This right of the tenant almost to compel the landlord to accept or take the
superstructure, on payment of the value thereof, is a right conferred of the tenant, under the provisions of the Act which is not available to the
tenant under the provisions of the Transfer of Property Act. Besides, in a case where the tenant is entitled to claim such compensation for the
building erected or put up by him on the site leased out, the tenant is enabled to ask for a conveyance of the land itself under S. 9 of the Act, on
payment of the market value as may be determined by the Court. On the exercise of the option by the tenant to claim compensation for the
superstructure under the provisions of the Act, there is no need for a conveyance of the superstructure, in that the tenant simply walks out leaving
the landlord in possession of the building on receipt of compensation. On the other hand, the nature of the relief afforded under S. 9 of the Act is
such that of payment by the tenant of the price for that extent of land required for convince enjoyment as determined by the court, there is a
conveyance by the landlord to the tenant of that extent of the land in respect of which the price had been paid by the tenant and the execution of a
regular conveyance accompanied by payment of stamp duty and registration is also contemplated under S. 9(3) of the Act. Thus, under the
provisions of the Act, on the filing of a suit in ejectment the tenant is given an option to claim compensation in respect of the building put up by him
on the site leased out to him an leave it to the landlord on the payment of such compensation or in a case, where he is entitled to receive such
compensation, for the superstructure or building put up by him to insist upon the sale by the landlord of the site or a part thereof, as the case may
be, over which the building had been put by him at a price determined by the court. In other words, if the tenant does not choose to avail himself of
the benefit of S. 9 of the Act, the tenant is merely entitled to compensation for the building or the superstructure put up by him. Even in a case
where the provisions of S. 9 of the Act cannot be applied because the nature of the property is such that it cannot be sold, the landlord would be
obliged to pay compensation to the tenant to secure title to the superstructure. The basis for the award of compensation under S. 3 of the Act to
the tenant in ejectment is thus closely related to and linked with the superstructure, which the tenant is obliged to leave behind on somebody else''s
land who should not be unjustly enriched owing to the inability of the tenant to remove the superstructure. S. 9 of the Act also proceeds on the
basis that the tenant, who had put up a superstructure on somebody else''s land, though entitled to compensation in respect thereof, is,
nevertheless, permitted 10 retain the superstructure as it is and pay the landlord the value of the site. The inability of the tenant to remove the
superstructure, which gives rise to the right in him to claim compensation under S. 3 of the Act, is that which entitles him to ask for a sale of the site
and both stem from the character of the superstructure put UP or erected by the tenant. In other words, if the superstructure is so put up or
constructed that it cannot be moved from its situs or cannot be moved without an essential change in its actual nature, then, it ceases to be
physically movable. A house or a field is immovable because it cannot be moved. The immovable character is not because it cannot be moved at
all, but, it cannot be moved without an essential and radical change in its actual nature. There is bound to be a change in the nature of the house
when moved in that all the materials that have gone into the putting up or construction of the house may remain in the shape of bricks, doors,
windows, debris, etc., but it is no longer a house as ordinarily understood. Similarly, when the materials with which a hut is built are removed, there
is an essential change in its nature. Thus, between a house as well as a hut, which are both attached to land, there is only a difference of degree, in
the sense that neither can be moved without its undergoing a vital change in its actual nature. The change brought about when a house or a hut is
moved is such that it ceases to be either a house or hut. In the case of a superstructure of ready and easy portability, as the wooden bunk in this
case, it is difficult to apply the provision for compensation, for, there is no question of the tenant being obliged to leave behind him on his ejectment,
the wooden bunk, which can be moved or removed in tact and in specie, by just lifting it and putting it elsewhere. The certainty of the tenant being
in a position to transport or move the wodden bunk in fact and in specie would negative his right to claim compensation under S. 3 of the Act. Ss.
3 to 5 of the Act also throw considerable light upon the nature of the construction in respect, of which the tenant would be entitled to claim
compensation and that can arise, only if the building should be inevitably left behind by the tenant on his ejectment, because of the inability of the
tenant to move it as a house or building put up by him. Thus, the ''building'' contemplated under Ss. 2(1) and 3 of the Act should, therefore, be one
put up on the site on foundations with a certain degree of permanence and not easily portable or transportable as such. If it were otherwise, easy
portability or resolvability in specie can be availed of in moving it from place to place in which case it ceases to be a ''building,'' as normally and
commonly understood in respect of which a tenant can claim compensation under S. 3 of the Act. The provisions of the Act clearly spell out its
policy that where a building had been put up by a tenant on a vacant site belonging to another by incurring considerable expenditure, on ejectment,
he should be not only entitled to be paid compensation for the building so put up by him, but also should be given the right under the provisions of
the Act to secure a direction from the court for the sale of the site to him by the landlord, if he was entitled to receive compensation for the building
put up by him. This is also further rested on the principle that when once it is found that a tenant had incurred substantial amounts in putting up a
building, though on a vacant site taken on lease from a landlord, it would be unjust and also inequitable that on ejectment he should be told to just
quit. These had been, therefore, provided for under Ss. 3, 4 and 9 of the Act. Thus, the provisions of the Act under Ss 3 to 5 and 9 clearly show
that there has been a deliberate departure from the ordinary rights of parties, in the case of a lease of vacant site and putting up of a superstructure
therein, governed by the provisions of the Act by the modification of the repeal of the provisions of the Transfer of Property Act under S. 13 of the
Act. That is also a pointer to the conclusion that the ''building'' in respect of which the compensation is made payable under the provisions of the
Act, is a permanent structure resting on foundations embedded in earth and not admitting of or permitting removal in tact and in specie. The
aforesaid considerations persuade me to hold that a wooden bunk of the kind in this case cannot be a ''building'' in respect of which the tenant is
entitled to compensation, for, it can always be transported or moved by the tenant without in any manner changing or affecting either the physical
character of the land over which it is placed, but even the very superstructure itself. The Courts below were, therefore, right in holding that on the
facts and circumstances of this case, the tenant was not entitled to compensation under S. 3 of the Act, and, was, therefore, disentitled to the
benefit of S. 9 of the Act. Earlier, it has been noticed how reliance was placed by both sides on several decisions which had interpreted the word
''building'' occurring in the Tamil Nadu Buildings (Lease and Rent Control,) Act, and other Acts. The provisions of the Act, being peculiarly what
they are, in that they deal with rights with reference to superstructure put up by a tenant on the vacant site belonging to the landlord and leased out,
different considerations would arise in the interpretation of its provisions in the light of the objects of the Act. Therefore, the interpretation of the
word ''building'' occurring in the Rent Control Act, etc. would not be of any assistance or guidance. It is common ground that no decision dealt
with the question regarding a ''wooden bunk'' being a ''building'' under the provisions of the Act, and it is, therefore, wholly unnecessary to make
any reference to any of those cases. Consequently, the judgments and decrees of the courts below in the suit and the orders passed in the
application filed by the tenant under S. 9 of the Act, are affirmed and the second appeal and the civil revision petition are dismissed. There will be,
however, no order as to costs.