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TMI Blog1951 (7) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... losed by compound walls on all sides with gates on the south. Besides the superstructure of the Gaiety Theatre in the portion marked B C D A, there is what is described as a tiled shed P G H E, which contains a booking office and two rooms. Besides these structures, there are certain other sheds in the north of the site and other modern conveniences for the benefit of those who witness cinema shows. There is also some open space on all sides of the structure of the theatre. ( 3. ) All the property excluding the superstructure of the Gaiety Theatre belongs to the estate of late Sir Haji Ismail Salt and defendants 2 to 6 in the action are the receivers appointed by this court in C. S. Nos. 280 and 286 of 1939 for the administration of that estate. The first defendant is the owner of the superstructure of the theatre and he is also the lessee of the rest of the property, holding the same under a lease for seven years commencing from 1-5-1940 obtained from the then receivers of the estate of Sir Haji Ismail Salt with the sanction of the court. The plaintiff is a subsequent lessee who obtained a lease of the said property excluding the superstructure from the said receivers to come int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion of the property in occupation of a tenant and that it is open to a Civil Court to pass a decree though it cannot execute the decree and the only remedy of the landlord would thereafter be to take appropriate steps under the provisions of the Madras Non-residential Buildings Rent Control Order for eviction. The learned counsel appearing for the first defendant respondent, Mr. Srinivasagopalachari, had necessarily to concede that in view of this decision of a Bench, he would not press the point, and in this he is justified as the provisions of the Act of 1946 are 'in pari materia'. ( 7. ) The only question that remains for consideration is whether the finding of the learned Judge that the first defendant is a lessee of a "building" within the meaning of the Act and that he could not be evicted in view of the provisions of the Act is correct. The conclusion of the learned Judge on this point, to state in his own words, is as follows: "having regard to the wide connotation that was given to the word 'building', the purpose for which the Madras Buildings (Lease and Rent Control) Act was enacted the nature of the structures in the suit premises and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and and premises being a portion of the premises known as Backer's yard situate and bearing door No 1/1, Blacker's Road. Except for the stalls all round, the remaining space in the middle was a vacant land at that time. The superstructure now known as Gaiety Theatre was constructed by the said R. Venkayya who by 1927 became insolvent and his property became vested in the Official Assignee of Madras. There was a further lease (Ex. P-4) dated 4-51927 granted by the representatives of Haji Ismail Salt's estate to the Official Assignee of Madras representing the estate of R. Venkayya Bros. , whereunder a lease for a further period of 9 years commencing from 1-3-1926 was granted to the Official Assignee. Ex. P-4 (a) is the plan attached to that lease. The Gaiety Theatre is marked red in the plan and the shed or stall belonging to the lessor was marked blue. It would be seen from that plan that the shed on the west of the compound was removed by that time and there was only the motor garage in the north and the shed marked blue on the east. The lease purports to demise the lands and the buildings standing thereon belonging to the lessor and reference is made to the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the High Court by the then receivers, M/s. V. Subramanyam and A. Bhujanga Rao. The order of the Court is Ex. P-7, dated 21-3-1940. The permission granted is in these terms: "that the Receivers herein be and they are hereby permitted to execute forthwith a renewal of the present lease of the 'gaiety Theatre' and include therein about 35 feet of vacant site next east of it and now comprised in the compound of the present English warehouse at a monthly rental of ₹ 750/- plus an additional rental for the vacant site now given and the period shall be not less then seven years from now. " The Receivers in obedience to these directions executed on 15-6-1941, Ex. P-9, a lease, in favour of the first defendant. Here again, in the operative portion of the 'deed it is stated "do hereby lease and demise unto the lessee all that piece or parcel of land together with the said buildings and compound walls belonging to the estate, hereinafter called the 'demised premises' and more particularly described in the schedule hereto. " The lease was to commence from 1-5-1940 and to be in force for a period of seven years, the rent fixed being ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng "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 out-houses, 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 or part of a building or hut. " This definition is not very helpful in arriving at the meaning of the word 'building' as it states that a building means any building. But, what is a building? If we take the derivative meaning of the word 'building', it means that which is built. It may be a wall; it may be a structure not fit for human habitation; it may be anything and not necessarily a house. The legislature could not have intended to use the word in its derivative sense as it is clear from the object of the Act, which was to prevent unreasonable eviction of tenants from residential and non-residential buildings and to control the rents. The inclusion of a hut in the definition and the other indications in Sub-clauses (a) and (b) point to the fact that the word is used to denote ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , or the like," was accepted and it was further stated that "in this view, a structure can hardly be called a building unless it is capable of occupation as falling within the residential class or within the class connected with commercial industry or in some way or other. " The preponderance of authority, therefore, in England is in favour of the view taken by Lord Esher, M. R. , already stated, and the observations of Cozens- Hardy, M. R. , do not seem to be acceptable. Earle, C. J. , in -- 'powell v. Boraston', (1865) 144 ER 408 (P) also laid down as follows: "we are also aware of the immense variety of structures which are sufficient buildings, considering the locality and the use for which they are adapted in that locality. Still, we are of opinion that the intention of the legislature would be defeated, and the words indicating the class of buildings which qualify would be without any effect, if everything which would be called a building. was held sufficient. It ought to be in some degree adapted both to be used by man either for residence or for the industry to which the statute relates, and also to have the degree of durability which is inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and it was so expressly described in the lease. But in the subsequent leases, the word "vacant" was significantly omitted. So, in substance and in effect, what was let to the first defendant under the lease, Ex. P-9, with which alone we are now concerned, was besides the building of the lessor the entire property with the compound walls and the gate. There was also the land occupied by the superstructure of the Gaiety Theatre besides the vacant land round about it. This land, on which the structure stands, undoubtedly both in the physical and in the ordinary sense, forms part of the building, namely, the Gaiety Theatre. ( 14. ) Lord Atkinson in -- 'victoria City v. Bishop of Vancouver Island', (1921) 2 AC 384 (H) pointed out that the word 'building' in ordinary parlance "comprises not only the fabric of the building, but the land upon which it stands. " The point became important in that case, because under Section 197 (1) of the Municipal Act of British Columbia, every building set apart and in use for the public worship of God was exempt from municipal rates and taxes while it was permissible to impose a tax upon lands or upon any real pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is undoubtedly is part of the building known as the Gaiety Theatre. So, the lessor leased not only his building but also part of the building of the Gaiety Theatre under the document. What was leased therefore was not merely a vacant land, the small shed in the east of the site belonging to the lessor being only an insignificant portion to be left out of consideration altogether, as contended on behalf of the appellant. The object of the lease was to run the cinema business in the buildings then in existence together with the other buildings used as booking office, office rooms, garages, latrines and so on. It is impossible therefore to escape the conclusion that what was let to the first defendant under Ex. P-9 was a "building". As pointed out by the learned Judge in his findings already extracted, the nature of the structures in the suit premises and the manner in which the entire premises were being let out and used for a number of years undoubtedly indicate that it was a building that was leased to the defendant. ( 15. ) In the above view, it is unnecessary to consider the argument of Mr. Muthukrishna Ayyar, the learned Advocate for the appellant, whether the site, I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd belonged to the lessors and therefore on the date of the suit the building was part of the lease. Prom this point of view, undoubtedly, the eviction of the tenant in possession of a building included by the operation of Clause 6 in the demised premises, would not be warranted. The answer attempted by Mr. Muthukrislma Ayyar for the appellant was that the words 'excess buildings' in Clause 6 did not take in the lessee's buildings already in existence, that is, the Gaiety Theatre, but only excess buildings constructed after the lease either in the 35 feet vacant space newly added or in the other vacant space available. He invited our attention to Clause 9 and also Clauses 4 and 6 of the lease. The scheme of this lease as well as the earlier leases was to draw a distinction between demised premises which consisted of all the property belonging to the lessor, the land, and the other buildings. The lessee's property, that is superstructure, was always described as lessee's building and the provision even in the earlier leases was that if the building was not removed within three months, it. should belong to the lessor. In Ex. P9, under Clause 8, if buildings were c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contained in Ex. P-9 was unauthorised or unlawful. The decision of the learned Judge, in my opinion, is correct. This appeal fails and is dismissed with costs of Respondent 1 (D. 1 ). The appellants will pay costs of the receivers also. Separate sets (calculated on the amount of damages.) Raghava Rao, J. ( 19. ) In this rather arguable case for the appellant, on the principal point debated, which I have carefully considered since reservation of judgment, in the light of the learned argument of counsel on both sides. I have on the whole made up my mind that we in appeal ought not to disturb the view of the court below for which there is enough of sound and rational basis in its judgment. It is true that this is not a case of oral evidence in which a trial Judge's conclusion must be respected on the ground of the special opportunities which he enjoys of hearing the evidence directly from the box. The case no doubt depends primarily upon a construction of the lease, Exhibit P-9 and incidentally too upon a consideration of the prior leases. There was, in fact, no oral evidence adduced, and it cannot be said that we sitting in appeal do not command the same advantage as the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he purpose for which the building was taken on rent by the lessee from time to time leave no doubt in my mind that the suit premises came within the meaning of the word 'building' under the Madras Buildings (Lease and Rent Control) Act, 1946. . . . . . . . I am also of opinion that the grounds enclosed within the boundaries are appurtenant to the buildings owned by the lessor situated within the boundaries. " ( 21. ) Before discussing the soundness of the reasoning and of the conclusion of the learned Judge it is as well that I set out so far as material to the present case, the terms of the definition of 'building' in Madras Act XV of 1946; " "building" means any building or hut or part of a building or hut, let or to be let separately for residential or nonresidential purposes, and includes-- (a) the garden, grounds and out-houses. 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. " ( 22. ) Learned counsel for the appellant has assailed the conclusion of the learned Judge on the basis firstly that the subject matter of the demise has not been correctly apprec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, as it were, a key to the understanding of it may legitimately be consulted to solve any ambiguity or to find the meaning of words which may have more than one, or to keep the effect of the Act within its real scope, whenever the enacting part is in any of these respects open to doubt, (vide Maxwell on the Interpretation of Statutes Ninth Edition by Sir Gilbert page 46.) For the appellant it is contended that the description of the premises in Exhibit P-9 as well as in prior leases points to land principally as the subject-matter of the letting and that since the sheds occupy only an inconsequential part of the entire premises, there is no reason to suppose that what was let out is a building. The dominant part of the premises let, it is urged, is the vacant space around the sheds and not the sheds or the site under the Gaiety Theatre. The argument for the respondent has been 'firstly' that the site under the Gaiety Theatre is itself part of that building let separately from that building itself together with the vacant space adjoining that site, that building and the sheds, with the sheds themselves. The purpose of the letting, it is emphasised, was to help the lessee to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der in which the different parts of the premises demised as described--land and compound wall and buildings, as in the preamble, land together with the buildings as in the schedule--is significant as indicating the relative importance attached by the parties to the different parts. I am not prepared to say that the argument is altogether without force, 'prima facie'. At the same time it seems to me that that is a matter of detail of the form of conveyancing, while what has to be regarded on the whole is the substance of the subject matter demised. As observed by the learned Judge below, there is no evidence as regards the condition, nature and extent of the buildings belonging to the lessor within the compound wall, and it is difficult for us to say in what proportion of importance on a splitting up of the premises demised into land and buildings the land and the buildings would stand in relation to each other. As further observed by the learned Judge, it Is sufficient to say that there are some buildings within the premises and that from the year 1914 down to Exhibit P-9 the land and the buildings enclosed in the compound wall have been treated as one unit and have always ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the word "appurtenance" was adopted by the court. It must be remembered that the expression bears a primary as well as a secondary sense, and whether one or the other is to be applied to the expression as it occurs in a particular statute depends upon the circumstances connected with the object of the enactment and with the context in which the expression occurs. Etymologically "appurtenance" means "pertaining" or relating to", and that is the wider sense in which the word may sometimes have to be understood and applied apart from the stricter sense of "belonging to". Ordinary Dictionaries, Law Lexicons as well as cases in the books do refer to both the senses, and the question which sense should be adopted depends upon the circumstances of the particular case in which it arises. Apart from the passage in Woodfall on the Law of Landlord and Tenant and the passage in --' (1888) 20 Q B D 225 at p. 231 (K)', relied upon before us by learned counsel for the respondent, I may advert in this connection to what Eouvier, Wharton and Stroud say on this subject in their Lexicons. According to the first of these authors, "appurt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'thereunto belonging' as including lands usually occupied with the rectory. At page 199 of the report the rule as laid down by Eyre C. J. in an earlier case is thus stated "lands will not pass under the word "appurtenances" in its strict technical sense; they will pass if it appears that a larger sense was intended to be given to it". The Law Lexicon of British India by Ramanatha Iyer at page 80 says of the expression "appurtenance" or "appurtenant" quoting from Abbot's Law Dictionary "belonging to another thing as principal, as hamlet to another village, garden to a home; that which passes as incident to the principal thing, a thing used with and related to or dependent upon another thing more worthy and agreeing in its nature and quality with the thing whereunto it is appendant or appurtenant; that which belongs to something else, an adjunct, an appendage". The author proceeds to observe: "it is sometimes used in the nontechnical sense of 'adjoining". ( 26. ) In my opinion the word "appurtenant" occurring in the definition of "building" in the Act with which we are concerned is use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for the reasons indicated in the foregoing. So I need say no more on this part of the case. ( 28. ) The first limb of the argument too needs no elaborate treatment. It is amply supported by the case in --' (1921) 2 A C 384 (H)', cited by Mr. Srinivasa Gopalachari. It cannot be doubted too that the site underneath the theatre which would be part of that building was let out 'separately' from superstructure according to the meaning of the word "separately" which I shall refer to later. It must also be remembered whether with reference to this limb of the respondent's argument or the third one with which I shall hereafter deal that a word like "building" as shown by the several cases, English and Indian, cited to us must be understood in different senses in different statutes and contexts according to the purpose and object of the statute and the context. In the context of Sub-section (1) of Section 197 of the Municipal Act (British Columbia) it was held by the Privy council applying the golden rule of adherence to the grammatical and ordinary sense of words laid down by Lord Wensleydale in --'grey. v. Pearson', (1857) 6 HL Cas 61 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... founded and must be accepted. Before dealing with it in detail it is worthwhile considering certain features of the provisions of Section 2 of Madras Act XV of 1946. That "building" should be defined by the use of that very word as meaning "any building" seems indeed curious. That only suggests, in my opinion, that the ordinary meaning of the word "building" is what is intended by the legislature. The epithet "any" attached to the word "building" in the definition is designed to suggest that if there are more senses than one in which the word can be understood, the more extensive of the meanings should be adopted, and if there are more kinds of buildings than one conceivable, any kind of building must be treated as within the contemplation of the legislature. "building" as observed in Halsbury's laws of England, Hailsham's Edition, Volume XXVI, page 335 "is a term of wide significance. " The structure need not be fastened to the ground or be above the surface of a street. " ( 30. ) In the Concise Oxford Dictionary the word "building" is annotated at page 144 of the Third Edition as equ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... included as 'buildings', so also would be barn and stables of a farm though built only of wood and thatched with straw. " ( 31. ) In my opinion the word 'building' is a more generic word than house. A building need have no roof while a house must have. A house is, according to Tomins' Law Dictionary, a place of dwelling or habitation which means ordinarily that there must be a roof for it which provides shelter. Of course neither building nor house need be of brick or stone as I have already remarked. It seems to me that even if "building" generally indicated a structure of brick or stone and with a roof, as defined by Lord Esher M. R. it may be that definitions under special Acts contemplate a building without a roof and a building not made of brick or stone. Such was the case for instance so far as the need of a roof is concerned in the decision reported in --'public Prosecutor v. Kalia Perumal Naidu', 8 Mad LT 431 (W) wherein it was pointed out that by section 3 of the Madras District Municipalities Act, Act IV of 1884 "building" was defined as including a wall. So it was held that the word "building" in Clause (5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e result, such a case is obviously one of fraud upon the statute which required a certain house qualification for a borough election. ( 34. ) That any building in the defunction of Mad. Act XV of 46 must also refer to a building of any size whatsoever of course goes without saying. The inclusion of hut in the statutory definition indeed emphasises this view of the matter. One wonders whether such inclusion was necessary at all after the expression "any building". Apparently it has come in by way of abundant caution and serves only to further emphasise the implications of the expression. "hut" according to the concise Oxford Dictionary, page 556 means "small mean house of rude construction. " ( 35. ) Then in regard to the expression "part of a building or hut" it may be worthwhile noticing what Jessel M. R. has said of houses in -' yorkshire Insurance v. Clavton', (1881) 8 QBD 421 at p. 424 (22) which Halsbury L. C. and Lord Brampton have cited with approval in -' grant v. Langston', (1900) AC 383 (Z3 ). "formerly houses were built so that each house occupied a separate site, but in modern times a practice has grown up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e question that the intention of the parties in providing as aforesaid was to create a tenancy in respect of the Gaiety Theatre as contended by the learned advocate for the respondent. It seems to me that there is considerable force in the argument for the appellant that the expression "excess building occurring in the provision has reference to the additional constructions which may come into existence after the lease in the space outside the 35 feet ground granted under the lease and not to the lessee's buildings adverted to in Clause (4) of the later set of covenants in the document between the lessor and the lessee. It may still be a question at the same time, if Mr. Muthu Krishna Ayer's construction is to be accepted whether the effect of the failure on the part of the lessee to remove the building in accordance with the liberty given to him by Clause (4) of the later set of covenants will be to make of the lessee's building property of the lessor and that too without any liability to pay any compensation. As already stated, I do not feel called upon to express any final opinion upon this aspect of the matter in view of the conclusion that we have reached on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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