Rajagopal Vandaiyar and Sons and another vs Joseph Nadar

The respondents is R.C.O.P. No. 51 of 1981 on the file of the Rent Controller (District Munsif), Mayiladuthurai arc the petitioner in the said

R.C.O.P. is the respondent in this civil revision petition. For the sake of convenience the parties are referred to as per the nomenclature given to

them in the R.C.O.P.

The petitioner filed R.C.O.P. No. 51 of 1981 against the respondent for eviction u/s 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent

Control) Act VII of 1960, hereinafter called the Act. The case of the petitioner is as follows: The petitioner is the owner of the petition mentioned

property consisting of three shops with vacant site situated in Road No. II, Cusba Mayavaram. One Thirunavukkarasu was a tenant of the

property under the petitioner and he was having a service station in the petition mentioned premises. The said Thirunavukkarasu had put up some

asbestos sheet sheds and compound walls for the purpose of his business. The respondents purchased the business and the asbestos sheet sheds

etc., for continuing to do the same business from the said Thirunavukkarasu. The respondents also entered into a tenancy agreement with the

petitioner on 25-11-1976 and executed a registered rent deed on that date. As per the rent deed dated 25-11-1976 the respondents agreed to

remove at his cost the asbestos sheet sheds and compound walls put up by Thirunavukkarasu at the end of the tenancy. The shop buildings in the

petition mentioned property have become old and they have to be demolished for reconstructing a fresh building on the site after demolishing the

shops. The petitioner has applied for licence to the municipality for putting up a building in the petition mentioned property after demolishing the

existing shops.

The respondents resisted the application contending as follows:-- The lease in favour of the respondents is a composite one and, therefore, the

provisions of the Act will not apply to the transaction and the petition for eviction filed before the Rent Controller is not maintainable. The premises

was originally given on long lease to one Sri G. Nataraja Iyer in or about 1956 for the purpose of running an automobile business and service

station in the petition mentioned property. At that time there were only three small shops occupying an extent of about 350 s.ft. The original tenant

Nataraja Iyer put up for the purpose of his business ramps, temporary structures etc., on the vacant sites of the petition mentioned property.

Subsequently the said Nataraja Iyer assigned his lease and also the business in favour of the Thirunavukkarasu in 1966. The said Thirunavukkarasu

put up pucca asbestos sheet sheds and a compound wall for the purpose of his business. Thereafter the said Thirunavukkarasu sold his business

and the asbestos sheet sheds put up by him in the petition mentioned property to the respondents on 25-11-1976. On the same day the

respondent have entered into a tenancy agreement with the petitioner in respect of the petition mentioned property. The application filed by the

petitioner for eviction on the ground that the petitioner''s requirement of the petition mentioned building for demolition and reconstruction is not

bona fide as the shop buildings concerned in the tease are in good condition and they do not require demolition for reconstruction.

The Rent Controller, on the basis of the evidence on record, found that what was let out by the petitioner to the respondents under the lease

deed dated 25-11-1976 marked as Ex. A1 in this case was three shops and vacant site and the petition for eviction filed under the provisions of

the Act is maintainable. The Rent Controller further found on the basis of the evidence that the shops are old and the petitioner''s requirement of the

petition mentioned property for demolishing the existing shops and for reconstructing new buildings on the site is bona fide. Consequently the Rent

Controller passed an order of eviction against the respondents. As against order of the Rent Controller the respondents filed K.C. A. No. 4 of

1983 before the Appellate Authority (Sub-Court, Mayiladuthurai.) Before the Appellate Authority the respondents did not canvass the correctness

of the finding of the Rent Controller that the petitioner''s requirement of the petition mentioned property for demolition and reconstruction is bona

fide. The only point that was urged before the Appellate Authority was that the petition for eviction filed before the Rent Controller under

provisions of the Act is not maintainable. The Appellate Authority confirmed the finding of the Rent Controller that the lease in favour of the

respondent is both in respect of buildings as well as the vacant site and, therefore, the petition for eviction filed under provisions of the Act is

maintainable. Consequently the Appellate Authority dismissed the Rent Control Appeal. Aggrieved by the judgment of the Appellate Authority the

respondents have preferred the present civil revision petition.

Mr. M. K. Kabir, learned Counsel for the respondents in the first place contended that the petitioner leased out only the site for the specific

purpose of a car service station to one Nataraja Iyer, Subsequently the said Nataraja Iyer assigned the tenancy agreement in favour of

Thirunavukkarasu, who, at his cost put some asbestos sheet sheds and a compound wall, in the petition mentioned premises and from

Thirunavukkarasu the respondents have purchased the asbestos sheet sheds and the compound wall; Inasmuch as the said asbestos sheet sheds

and the compound wall put up in the petition mentioned property do not belong to the petitioner, the petition for eviction filed under the provisions

of the Act is not maintainable. The learned counsel further contended that as the respondents have become the owners of the asbestos sheet sheds

and compound wall put up in the petition mentioned property, the petitioner cannot file a petition for eviction seeking for recovery of vacant

possession of the site after the removal of the asbestos sheet sheds and the compound wall. The petition for eviction filed by the petitioner u/s

14(1)(b) of the Act will be maintainable, if, what was let out to the respondents by the petitioner under the tenancy agreement Ex. A-1 is a building

within the meaning of Section 2(2) of the Act. Therefore, the question we have to examine in this case is whether the property let out by the

petitioner to the respondents is a building within the meaning of Section 2(2) of the Act. The backdrop of law may be briefly examined before

going into the factual details. Section 2(2) of the Act defines a building and it runs as follows :

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 and outhouses, 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,

(b) any furniture supplied by the landlord for use in such building or hut, but does not include a room in a hotel or boarding house"".

The inclusion of hut in the definition and other indications in sub-clauses (a) and (b) of S. 2(2) of the Act point to the fact that the word ""building"" is

used to denote a structure of the nature of a house intended for human habitation or for using it for non-residential purpose such as carrying on

business. Hence if we take the definition of the ""building"" along with the purpose of the Act, it includes not only a building but even a part of it. A

building consists of not only the superstructure but also the site on which the superstructure stands. In the decision In Re: S. Panchapakesa Iyer,

the subject-matter of the lease consisted of-

(i) small sheds at one end of the premises;

(ii) the site on which the tenant subsequently put up a cinema theatre;

(iii) all the vacant space within, exclusive of the theatre and sheds.

The question arose in that case whether what was let out was a building within the definition of the Madras Buildings (Lease and Rent Control)

Act, 1946. For the appellant in that case It was contended that the description of the premises in the lease deed as well as in the prior leases

pointed out to the land principally as a subject matter of the letting and since the sheds occupied only an inconsequential part of the entire premises

there was no reason to suppose that what was let out was a building. The Division Bench did not accept the said contention of the appellant-

landlord that in substance the letting was of land and not of any building. The Division Bench held that inasmuch as the subject-matter of the leased

consisted of small sheds at one end of the premises and the vacant site on which the tenant subsequently put up a cinema theatre, the lease in that

case was a lease of the building within the meaning of Section 2(1) of the Madras Buildings (Lease and Rent Control) Act XV of 1946. In Salay

Md. Sait v. J. MS. Charity, (1969) 1 MLJ 16, the Supreme Court, after referring to the decision in In Re: S. Panchapakesa Iyer, observed as

follows:--

In order to determine whether a lease is of a vacant land or of a ''building'' within the meaning of the Madras Buildings (Lease and Rent Control)

Act, 1960, both the form and the substance of the transaction must be taken into account"".

If the ratio of the above decisions is applied to the facts of the present case, there is no difficulty in holding that what was let out by the petitioner to

the respondents is a building within the meaning of S. 2(2) of the Act. It is the specific case of the petitioner in para 3 of the petition for eviction that

what was let out to the respondent under the lease deed Ex. A-I dated 25-1-1976 was three shops with vacant site. In para 2 of the counter-

affidavit the respondents have categorically admitted that the lease in his favour is a composite one. In para 3 of the counter-affidavit the

respondents have also admitted that when the premises was let out originally to Nataraja Iyer in or about 1956 there were three small shops

occupying an extent of about 350 s.ft. in extent. Ex.A-1, the lease deed executed by the respondents in favour of the petitioner goes to show that

three shops with vacant land was let out by the petitioner to the respondent under the said document dated 27-11-1976. It is also the admitted

case of both the parties that the tenant Thirunavukkarasu who was having a service station in the petition mentioned property put up some asbestos

sheet sheds and compound walls and from Tirunavukkarasu the respondents have purchased the business as well as the asbestos sheet sheds for

continuing the same business on 25-11-1976 and on the same day the respondents entered into a lease agreement with the petitioner in respect of

the petition mentioned property under Ex. A-1 which includes the three shops and a vacant site. As per the terms of the lease deed, Ex. A-1, the

respondents agreed to remove at their cost the asbestos sheet sheds and a compound wall put up by Thirunavukkarasu at the end of the tenancy.

A perusal of the lease deed Ex.A-1 also shows that as per the terms of the lease deed, the petitioner has to change the tiles and attend to the other

repair works of three shop which were let out under Ex.A-1. From Ex. A-1 it is clear that the subject-matter of the tenancy in this case comprises

(a) three shops (b) the site on which the previous tenant Tirunavukkarasu put up some asbestos sheet sheds; and (c) the vacant land. As the

subject-matter of the tenancy under Ex. A-1 includes three shops and vacant site, it has to be held that what was let out by the petitioner to the

respondents under Ex. A-1 is a building within the meaning of Section 2(2) of the Act. The lease in favour of the respondents under Ex. A-1 does

not cease to be a lease of the building merely because some asbestos sheet sheds put up in a portion of the vacant site by the previous tenant

Tirunavakkarasu were purchased by the second respondent particulary when he has agreed under Ex. A-1 to remove the same at the end of that

tenancy. Therefore, it has to be held that what was let out by the petitioner to the respondents under Ex. A-1 is a building within the meaning of

Section 2(2) of the Act and the petition for eviction filed u/s 14(1)(b) of the Act is maintainable. The conclusions arrived at by the Rent Controller

as well as by the Appellate Authority in this regard are correct and do not call for interference in this revision.

The second contention of the learned counsel for the respondents is that neither the Rent Controller nor the Appellate Authority rendered any

specific finding with regard to the condition of the petition mentioned property and in the absence of the said finding the Authorities below erred in

ordering eviction on the ground that the petitioner''s requirement of the petition mentioned building for demolition and reconstruction is bona fide in

view of the decision in (1990) 106 MLW 547 (SC) (P. ORR & Sons (P) Ltd. v. Associated Publishers (Madras) Limited). The learned counsel

further contended that though the finding of the Rent Controller that the petitioner''s requirement of the petition mentioned building for demolition

and reconstruction is bona fide, is not challenged by the respondents before the Appellate Authority and the said plea was abandoned before the

Appellate Authority, but, still in the revision before this Court, he can raise the very same plea once again as the plea pertains to a pure question of

law. In support of his contention the learned counsel for the respondents relied on the decisions reported in (1) AIR 1960 J&K 35; (2) Ganesh

Ram Vs. Smt. Ramlakhan Devi and Another, ; (4) Gauri Shanker Vs. Hindustan Trust (Pvt.) Ltd. and Others, ; (5) State of Rajasthan Vs. Rao

Raja Kalyan Singh, (Dead by his Lrs.), ; (6) N.S. Sivaprakasam Vs. M. Munuswamy Naicker, ; (7) Hathibudi Anandar Vs. Govindan, ; and (8)

S.A. Appal Raja Vs. The Common Fund of Senguntha Mudaliar Community of Poopalrajapatti, .

I am unable to accept the above contention of the learned counsel for he respondents. In Gauri Shanker Vs. Hindustan Trust (Pvt.) Ltd. and

Others, , the Supreme Court, dealing with the question when and what questions can be permitted to be raised for the first time in the second

appeal observed as follows :--

A pure question of law not agitated or abandoned in the lower appellate court can be allowed to be raised in second appeal under S. 39(2) but

the Court in exercise of its discretion has to consider whether it should be permitted to be raised and while giving permission the Court has to look

at all the facts and circumstances, the conduct of the party seeking to raise it being of great importance"".

Taking into consideration the facts and circumstances in that case, the Supreme Court held that the plea of absence of valid notice terminating the

contractual tenancy which was abandoned before the Appellate Tribunal should not have been allowed to be raised in the second appeal. In the

present the respondents raised a plea before the Rent Controller that the petitioner''s requirement of the petitioner mentioned building for

demolition and reconstruction is not bona fide. Both the parties let in evidence with regard to that plea. The Rent Controller, on the basis of the oral

evidence of P.W. 1 and the document Ex. A-2 rendered a finding that the petitioner''s requirement of the petition mentioned building for demolition

and reconstruction is bona fide. That finding of the Rent Controller is a finding on a question of fact based on evidence. Admittedly the respondents

have not challenged the correctness of the above finding of the Rent Controller before the Appellate Authority. The Appellate Authority in para 6

of its judgment has specifically observed that the counsel for the tenants did not challenge the finding of the Rent Controller that the landlord''s

requirement of the petition mentioned building for demolition and reconstruction is bona fide and the only point urged by the counsel for the tenant

before the Appellate Authority was that the petition for eviction filed before the Rent Controller under the provisions of the Act is not maintainable.

In these circumstances it cannot be said that such plea viz. the landlord''s requirement of the petition mentioned building for demolition and

reconstruction is not bona fide, raised before the Rent Controller by the tenant but abandoned before the appellate Authority pertains to a pure

question of law. Taking into consideration the above facts and circumstances it has to be held that the respondents who have abandoned the plea

that the petitioner''s requirement of the petition mentioned building for demolition and reconstruction is not bona fide, before the appellate

Authority, are not entitled to raise the same plea in this revision. The several decisions relied on the learned counsel for the respondents and which

are referred above will not apply to the facts of the present case, because they are authorities only for the proposition that a pure question of law

not agitated or abandoned in the lower appellate court can be allowed to be raised in the second appeal. But, that is not the position in the present

case. The plea, that, the petitioner''s requirement of the building for demolition and reconstruction is not bona fide raised before the Rent Controller

by the respondent but abandoned before the Appellate Authority cannot be allowed to be raised again in revision before this Court. There is no

merit in ""this civil revision petition and the same is liable to be dismissed. Accordingly, the civil revision petition is dismissed. There will be no order

as to costs.

This matter comes up for hearing today or being mentioned. Mr. Kabir, learned counsel for the petitioner represents that the tenant is carrying

on business in the petition mentioned premises and that nine months'' time may be granted to him for vacating the premises. This request for time

was opposed by the counsel for the landlord. Taking into consideration the facts and circumstances of the case and the further fact that the tenant

is having a Service Station in the petition mentioned premises, he is granted six months'' time for vacating the premises on condition that he pays the

rent regularly every month and on further condition he files an affidavit before this court within three weeks from today undertaking to vacate the

premises after the expiry of the said period of six months.

Petition dismissed.