9911796707
TMI Blog1979 (1) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... entire premises (lecots Buildings) situate at 26, Errabalu Chetty Street an important commercial thoroughfare and main bazar for hardware and machinery in Madras originally belonged to the Chrome Leather Company Pvt. Ltd. (the 2nd respondent). On June 26, 1961 the 2nd respondent sold the front portion of the premises inclusive of its entire frontage on Errabalu Chetty Street to Bank of India Ltd. (the Ist respondent) for a handsome price. The appellants partnership firm carrying on business in various types of electrical machinery, have since April 1, 1959, rented a godown on the ground floor and a portion of the premises on the first floor of the building on the back side from the second respondent. The access to the godown was always from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on the first floor. This relief of injunction was sought on two grounds; (a) that the use of the main entrance abutting Errabalu Chetty Street and the disputed passage giving access to their tenement on the first floor formed part of their demise and also constituted an essential element of contract of tenancy and (b) that the use and enjoyment of this passage was an amenity under the Madras Buildings (Lease and Rent Control) Act, 1960 enforceable against the second respondent or their successors in the interest. The suit was resisted by the respondents on the ground that the main gate and the disputed passage did not form part of the demise, that the appellants had no right to insist upon the retention of the original passage opening int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the lower Appellate Court and restored the decree of the trial court. In other words, the appellants' suit was dismissed. 3. Counsel for the appellants strenuously urged before us that the High Court in second appeal ought not to have interfered with a finding of fact that had been recorded by the lower Appellate Court on appreciation of evidence. He pointed out that after all the plea of the appellants was that the disputed passage formed part of the demise or tenancy obtained by them from the second respondents in respect of the tenement on the fist floor of the building and on the material on record the first Appellate Court which was the final court on facts had come to the conclusion that the disputed passage was the subject m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants: (1) in the correspondence as well as in the advertisements given by them the appellants had been uniformly giving their address as 26, Errabalu Chetty Street and they had also put their signboard on the Errabalu Chetty Street frontage and (2) at the commencement of their tenancy the disputed passage was the only passage in use giving access to their tenement of the first floor, Ft cm these facts the lower Appellate Court drew the inference that the disputed passage will have to be regarded as a part of the appellants' tenancy. The High Court in our view,has rightly came to the conclusion that from these proved facts the inference drawn by the lower Appellate Court could not legally arise.If the entire building bore the num ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also the case that it was an essential element in the contract of tenancy, the High Court went on the consider whether the appellants would be entitled to the use of the disputed passage as an easement of necessity, for, admittedly, real property had been severed by the grant of a portion of it by the second respondent to the first respondent. In this behalf two facts appear clear from the sale deed in favour of the first respondent; in the first place it did not make any reservation in respect of the passage in favour of the second respondent (the lessor of the appellants), and secondly, it expressly permitted the first respondent to raise structures in the property conveyed without let or hindrance by the second respondent. In such a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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