@JUDGMENTTAG-ORDER
P. Thangavel, J.@mdashThese civil revision petitions have been filed by the landlords/ landlady, against the common judgment and decree, dated
27.2.1998 and made in R.C.A.Nos. 10 to 13 of 1995 on the file of the learned Rent Control Appellate Authority (Sub Judge), Thiruvannamalai,
confirming the common order and decretal order, dated 10.7.1995 and made M.P.No. 73 of 1987 in R.C.O.P.No. 2 of 1987; R.C.O.P.Nos. 2
of 1994, 2 of 1987 and 2 of 1993 respectively, on the file of the learned Rent Controller (District Munsif), Thiruvannamalai.
2. The brief facts that are necessary for the disposal of these civil revision petitions are as follows: The premises described in each of the Rent
Control Petitions viz., R.C.O.P.Nos. 2 of 1987, 2 of 1993 and 2 of 1994, is one and the same and it was originally owned by T.S. Ramu
Mudaliar, the father of the petitioners 1 to 3 in R.C.O.P.No. 2 of 1987. The demised property was allotted to the share of petitioners 1 to 3,
referred to above, along with other properties, and, therefore, they became owners of the said premises. The father of the petitioners 1 to 3 leased
out the demised premises to the 1st respondent and his brothers G. Ramu Pillai and Radhakrishnan. In the partition that had taken place between
Ramu Pillai, the 1st respondent and Radhakrishnan, the demised property was allotted to the share of the 1st respondent and he agreed to pay rent
to petitioners 1 to 3. The rent for the demised premises at the time of filing of the petition was Rs. 1,800 per annum, apart from an agreement to
pay Municipal Tax for the demised premises by the 1st respondent. Therefore, there is relationship of landlord and tenant between the petitioner(s)
and the 1st respondent in each of the petitions. The 1st respondent has committed wilful default in the payment of rent from 1.3.1980 onwards,
except paying a sum of Rs. 1,000 towards arrears of rent. The 1st respondent has also leased out the demised premises to the 2nd respondent,
Gurunathan, without the consent of the petitioners 1 to 3. The 4th respondent purchased the demised premises from petitioners 1 to 3 and became
entitled to the demised premises. Therefore, the 4th petitioner was impleaded as party to the proceedings in R.C.O.P.No. 2 of 1987. The
petitioners have sought for eviction of the respondents from the demised premises on the ground of wilful default in payment of rent from 1.3.1980
except paying a sum of Rs. 1,000 towards arrears of rent and also on the ground of subletting.
3. The petitioners 1 to 3 in R.C.O.P.No. 2 of 1987, filed a petition in I.A.No. 73 of 1987 in the said proceedings, under Sections 11(4) and 10(2)
(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1961, (hereinafter referred to as ""the Act""), for deposit of arrears of rent at Rs.
1,800 per annum, totalling to Rs. 11,975, after giving credit to a sum of Rs. 1,000 already paid, out of Rs. 12,975, for the period from 1.3.1980
to 31.7.1987.
4. The 4th petitioner in R.C.O.P.No. 2 of 1987, as petitioner in R.C.O.P.No. 2 of 1993, on the file of the Rent Controller (District Munsif),
Thiruvannamalai, filed a petition against Sankaran and his son Elangovan, on the grounds that she became entitled to the demised premises by
virtue of the purchase made under registered sale deeds dated 11.12.1981 and 16.12.1991, from Rajan Babu, Sundaramurthy and Gopalsamy,
the petitioners 1 to 3 in R.C.O.P.No. 2 of 1987, for proper and valid consideration; that the demised premises is required for demolition and
reconstruction of a shopping complex; that the 1st respondent has sublet the demised premises to his son, the 2nd respondent, without her written
consent and that therefore, the respondents in R.C.O.P.No. 2 of 1993 are liable to be evicted on the grounds of demolition and reconstruction and
subletting.
5. The petitioner in R.C.O.P.No. 2 of 1993 on the file of the Rent Controller (District Munsif), Thiruvannamalai, is Geetha, the purchaser of the
demised premises from its owners, Rajan Babu, Sundaramurthy and Gopalsamy, the petitioners 1 to 3 in R.C.O.P.No. 2 of 1987, on the file of the
said court.
6. R.C.O.P.No. 2 of 1994 was filed by the landlady referred to above, against respondents 1 and 2, Sankaran and his son Elangovan, for fixation
of fair rent for the demised premises.
7. The respective respondents in all the petitions referred to above resisted the claim made by the petitioners in the respective petitions, on the
following grounds: The father of the petitioners 1 to 3 in R.C.O.P.No. 2 of 1987, T.S. Ramu Mudaliar, was the original owner of the demised
premises and he let out the said premises to Sankaran, the 1st respondent and his brothers Ramu Pillai and Radhakrishnan on an annual rent of Rs.
365. The lease by T.S. Ramu Mudaliar in favour of the 1st respondent and his brothers in the year 1936 was only vacant site, measuring 73 feet 9
inches North-South and 48 feet 6 inches East-West in T.S.No. 922 in Ward No. 4, Block No. 17 in Thiruvannamalai Town. The lease was oral.
The rent was enhanced periodically and at the time of filing the Rent Control Petition, the rent payable was Rs. 1,800 per annum. The 1st
respondent and his brothers constructed pucca building roofed with zinc sheets in the demised vacant site, measuring 40 feet, 3 inches East-West
and 30 feet North-South, on the northern portion of the vacant site and another building measuring 43 feet, 9 inches North-South and 13 feet, 9
inches East-West on the Eastern portion of the said vacant site, roofed with zinc sheets. A well was dug in the Southwestern portion apart from
constructing parapet walls with cement plastering around the well. A concrete overhead water tank, a tub and a dry latrine were also constructed
in the said vacant site at a cost of Rs. 60,000. An electric service connection bearing SC.No. 10019 was obtained in the name of Ramu Pillai. An
Oil Crusher and rice flour huller were also installed in the above said constructions. T.S. Ramu Mudaliar died in the year 1980. The demised
premises was also the subject matter of partition among Ramu Pillai, Sankaran, the 1st respondent, and Radhakrishnan and the demised premises
has been allotted to the share of the 1st respondent in R.C.O.P.No. 2 of 1987. The petitioners 1 to 3 in R.C.O.P.No. 2 of 1987 are aware of the
above said partition and allotment of the demised premises to the 1st respondent in R.C.O.P.No. 2 of 1987. The 1st respondent continued to pay
annual rent of Rs. 1,800 to the petitioners 1 to 3 in R.C.O.P.No. 2 of 1987 after the death of T.S. Ramu Mudaliar, in the year 1980. The 1st
respondent and his brothers have to pay Municipal Tax for the demised premises, as per the terms of lease and accordingly they were paying
Municipal Tax for the demised premises and after allotment of the said premises to the 1st respondent, the 1st respondent is paying the Municipal
Tax for the demised premises to the Municipality. The 1st respondent has been paying rent for the demised premises at Rs. 1,800 per annum from
1.3.1980 every year, but the petitioners 1 to 3 in R.C.O.P.No. 2 of 1987 were not in the habit of issuing receipt for the rent paid from 1.3.1980.
The 1st respondent has not committed wilful default in the payment of rent as claimed by the petitioners 1 to 3. The petitioners 1 to 3 demanded
advance of Rs. 10,000 and rent of Rs. 12,000 per annum for the demised premises from the 1st respondent and the 1st respondent was not
agreeable to the same. The 1st respondent has not sublet the demised premises to the 2nd respondent. The 2nd respondent is running a provision
store at door No. 24-D, Sivanpatha Street which premises also originally belonged to the petitioners 1 to 3 and sold to one Murugaiyan. The 2nd
respondent in R.C.O.P.No. 2 of 1987 has nothing to do with this premises described in the petition. The vacant site, which is situate in T.S.No.
922, Thiruvannamalai Town alone was leased out by the petitioners 1 to 3 and not any building and, therefore, the Tamil Nadu Buildings (Lease
and Rent Control) Act will not apply to the said premises.
8. The 4th respondent, who was impleaded subsequently in the petition in R.C.O.P.No. 2 of 1987 cannot derive any title to the superstructures
put up by the 1st respondent and his brothers at a cost of Rs. 60,000 in the demised premises. The 4th petitioner cannot implead herself as a party
to the proceedings in R.C.O.P.No. 2 of 1987.
9. The 1st respondent in R.C.O.P.No. 2 of 1993 has paid the annual rent of Rs. 1,800 to T.S. Ramu Mudaliar till 5.3.1980, when he died and
thereafter to his sons, the petitioners 1 to 3 in R.C.O.P.No. 2 of 1987, upto date in advance. There is no arrears of rent for the period from 1980
to 1987. In fact, the 1st respondent in the petition in R.C.O.P.No. 2 of 1987 had deposited Rs. 1,800 in court on 31.7.1987 apart from the
admitted amount of Rs. 1,000 already paid. As there was no arrears due as claimed by the petitioner in I.A.No. 73 of 1987 in R.C.O.P.No. 2 of
1987 on the file of the Rent Controller (District Munsif), Thiruvannamalai, the petitioners in the above said I.A.No. 73 of 1987 cannot maintain the
above said petition u/s 11(4) of the Act.
10. Respondents 1 and 2 in R.C.O.P.No. 2 of 1993 are father and sons. The buildings roofed with zinc sheets standing in the northern and eastern
portions of the demised vacant site were constructed by the 1st respondent and his two brothers at a cost of Rs. 60,000 and the petitioner in
R.C.O.P.No. 2 of 1993 cannot claim ownership to the above said superstructure by virtue of the purchase made under registered sale deeds
dated 11.12.1991 land 16.12.1991. The lease in favour of the 1st respondent and his two brothers were only vacant site and the 1st respondent
and his brothers had not only constructed the superstructures referred to above but also dug a well with parapet wall on all sides, constructed
concrete overhead water tank, water tub and dry latrine in the demised vacant site. The 1st respondent, who was allotted the demised premises in
the partition between him and his two brothers on 4.9.1966 is running business with the assistance of his son, the 2nd respondent. The petitioner in
R.C.O.P.No. 2 of 1993 has no right to seek the relief of eviction of the respondents from the demised premises on the ground of demolition and
reconstruction of the buildings standing thereon, since her purchase cannot confer any title or possession to the superstructure standing in the
vacant site. The demised premises was not sublet to the 2nd respondent, who is none other than the son and therefore, the alleged subletting is also
not correct.
11. The respondents have also resisted the application filed u/s 4 of the Act for fixation of fair rent on the ground that the Tamil Nadu Buildings
(Lease and Rent Control) Act will not apply to this proceedings. The respondents in R.C.O.P.No. 2 of 1994 have filed a suit in O.S.No. 1020 of
1991 on the file of the District Munsif, Thiruvannamalai against the petitioner for grant of permanent injunction against the petitioner and others. It is
on these grounds, the respondents in each of the petitions have sought for dismissal of each of the petitions filed by the petitioners mentioned
therein.
12. After considering the material evidence available on record, the learned Rent Controller (District Munsif), Thiruvannamalai, dismissed the
petitions in R.C.O.P.No. 2 of 1987, I.A.No. 73 of 1987 in R.C.O.P.Nos. 2 of 1987, 2 of 1993 and 2 of 1994. Aggrieved at the said common
order of the learned Rent Controller, Thiruvannamalai, the petitioners in each of the petitions referred to above, as appellants, preferred appeals in
R.C.A.Nos. 12 of 1995, 10 of 1995, 13 of 1995 and 11 of 1995, respectively, on the file of the Rent Control Appellate Authority (Sub Judge),
Thiruvannamalai. After considering the submissions made on both sides and in the light of the material evidence available on record, the learned
Rent Control Appellate Authority (Sub Judge), Thiruvannamalai, has concurred with the findings of the learned Rent Controller (District Munsif),
Thiruvannamalai and dismissed the rent control appeals referred to above. Aggrieved at the common judgment and decree dated 27.2.1998 and
made in R.C.A.Nos. 12 of 1995, 10 of 1995, 13 of 1995 and 11 of 1995, the appellants in each of the rent control appeals, as revision
petitioners, have preferred the civil revision petitions in C.R.P.Nos. 1255, 1256, 1253 and 1254 of 1998, respectively, on the file of this Court.
13. The fact remains that T.S. Ramu Mudaliar, who is the father of Rajan Babu, Sundaramurthy and Gopalsamy, the revision petitioners in
C.R.P.No. 1255 of 1998, was originally owner of the premises described in each of the Rent Control Petitions. The fact also remains that the
demised premises was leased out to Ramu Pillai, Sankaran the 1st respondent in C.R.P.No. 1255 of 1998 and Radhakrishnan, orally, in 1936 on
an annual rent of Rs. 365 and also, on condition of payment of Municipal Tax for door No. 24, Sivanpatha Street, Thiruvannamalai town. It is not
in dispute that door No. 24 is the door number for the demised premises. Admittedly, rent for the demised premises was periodically increased
from Rs. 365 per annum to Rs. 1,800 per annum and the rent was paid by the 1st respondent Sankaran and his brothers Ramu Pillai and
Radhakrishnan to T.S. Ramu Mudaliar from the commencement of tenancy, for the demised premises. Sankaran, the 1st respondent in each of the
Rent Control Petitions and his two brothers Ramu Pillai and Radhakrishnan executed a registered mortgage deed in favour of Kasthuri Ammal,
wife of T.S. Ramu Mudaliar, for Rs. 10,000, on 23.6.1966 with regard to the superstructure put up by them in the vacant site, which was the
subject matter of the oral lease in the year 1936, as seen in Ex.A-9, in R.C.O.P.No. 2 of 1993, which is the subject-matter of the civil revision
petition in C.R.P.No. 1253 of 1998. In the description of property in Ex.A-9, Sankaran and his two brothers have described the property
excluding the vacant site, as follows:
The recitals referred to above in Ex.A-9 would disclose that the covered superstructure owned by T.S. Ramu Mudaliar, along with his right of way
was also leased out with the vacant site, which has been specifically described in the schedule of property in each of the Rent Control Petitions. It
would also disclose that the new door number for the demised premises leased out by T.S. Ramu Mudaliar to Sankaran arid his two brothers is
24. Ex.B-2, dated 4.9.1966 in R.C.O.P.No. 2 of 1994 is the copy of the deed of partition entered into between Ramu Pillai, Sankaran, the 1st
respondent in each of the civil revision petitions and Radhakrishnan with regard to their joint family properties. A perusal of Ex.B-2, dated
4.9.1966 referred to above would disclose that the properties described in plaint ""A"" schedule were given to Ramu Pillai and the properties
described in ""B"" schedule were given to Sankaran,"" the 1st respondent in the civil revision petitions and to Radhakrishnan, his brother. The
premises described in each of the Rent Control Petitions is the only immovable property described in ""B"" Schedule to Ex.B-2, dated 4.9.1960,
which is a leasehold property with superstructures, put up by Ramu Pillai, Sankaran and Radhakrishnan. It is an admitted fact between both parties
that Radhakrishnan had subsequently released his right in the immovable property described in ""B"" schedule viz., the demised property, in favour of
Sankaran, the 1st respondent in each of the civil revision petitions, for proper and valid consideration. So, it is evident that the demised property
has ultimately come to the hands of the 1st respondent in each of the civil revision petitions from 4.9.1996 and he continued to pay the rent to T.S.
Ramu Mudaliar, till 4.3.1980, when he died and thereafter to the revision petitioners 1 to 3 in C.R.P.No. 1255 of 1998. Therefore, it is evident
that there is no dispute with regard to the relationship of landlords and tenant between the revision petitioners 1 to 3 in C.R.P.No. 1255 of 1998
and the 1st respondent in the above said civil revision petitions.
14. The fact remains that A. Geetha, the 4th revision petitioner in C.R.P.No. 1255 of 1998 and the revision petitioner in each of the petitions in
C.R.P.Nos. 1253 and 1254 of 1998, on the file of this Court had purchased the premises bearing door No. 24, referred to above, under Ex.P-3,
dated 11.12.1991 and P-4, dated 16.12.1991 in R.C.O.P.No. 2 of 1993 (C.R.P.No. 1253 of 1998), for proper and valid consideration of Rs. 3
lakhs from the revision petitioners 1 to 3 in C.R.P.No. 1255 of 1998. Sankaran, who was examined as R.W.1 in R.C.O.P.No. 2 of 198? has
specifically admitted that A. Geetha, referred to above, had purchased the demised premises from revision petitioners 1 to 3 in C.R.P.No. 1255 of
1998 under Ex.P-3, dated 11.12.1991 and Ex.P-4, dated 16.12.1991 and she is the owner of the demised premises by virtue of the said
purchase. He had also, no objection, as seen from his evidence, to pay the rent to Geetha. His brother Radhakrishnan, who was examined as
R.W.3 and who has already relinquished his right in favour of R.W.2, has also not disputed the right and title of A. Geetha, the 4th revision
petitioner in C.R.P.No. 1255 of 1998 to the demised premises. Therefore, it is clear that there is no dispute that A. Geetha, the 4th revision
petitioner, has stepped into the shoes of the revision petitioners 1 to 3 in C.R.P.No. 1255 of 1998 to claim right, title and possession to the
demised premises bearing new door No. 24, Sivanpatha Street, Thiruvannamalai.
15. The admissions made by R.Ws.2 and 3 would disclose that it was agreed even in the year 1936 when the demised premises was leased out to
Ramu Pillai. Sankaran and Radhakrishnan that the said lessees have to pay municipal tax for the leasehold property bearing new door No. 24.
Exs.B-10, B-11, B-12 and B-13 (for the first half of 1988-89 to second half of 1989-90) and B-14 (for the first and second half of 1990-91) are
the house tax receipts issued in the name of T.S. Ramu Mudaliar, on 4.3.1985, 29.2.1983, 17.3.1983, 6.7.1990 and 20.3.1991 by the
Thiruvannamalai Municipality for new door No. 24, Sivanpatha Street, Thiruvannamalai. Ex.B-8 the property tax receipt issued for payment of
house tax for door No. 24, on 29.3.1993 in the name of Geetha, the 4th revision petitioner in C.R.P.No. 1255 of 1998. The above said
admissions were made by Sankaran or his son Elangovan in connection with the demised premises. It is admitted by R.Ws.2 and 3 that the house
tax for the building bearing new door No. 24, viz., for the demised premises has to be paid by the lessee even according to the condition imposed
at the time of leasing the demised premises by T.S. Ramu Mudaliar, orally in the year 1936. Therefore, it is evident that the lessor and the lessees
were aware that there is some superstructure standing in the leasehold property even at the time of commencement of lease and the lessee has to
pay house tax for the abovesaid superstructure standing thereon.
16. Ex.A-6 is the plan prepared and produced by the Advocate Commissioner in R.C.O.P.No. 2 of 1984 (C.R.P.No. 1254 of 1998). It would
disclose that door No. 24 is situate in between door No. 24-B and 24-C at Sivanpatha Street, Thiruvannamalai. New door No. 24, which
commences on the north from Sivanpatha Street runs to an extent of 33 ft. North-South from the said street with an initial breadth of 4 feet 9
inches and from the middle with a breadth of about 9 feet 1 inch and with a breadth of 8 feet 7 inches at the southern end of constructed portion
from where vacant site commences. The area with a width of 9 feet 1 inch runs North South to an extent of 15 feet 16 inches as seen from Ex.A-
6. The vacant site is shown in two blocks measuring 49 feet 6 inches and 28 feet 9 inches and 33 feet 6 inches and 42 feet 9 inches to the South of
the constructed portion. Ofcourse, the said constructed portion has been utilised to have access from Sivanpatha Street to the vacant site in the
rear exclusively by the 1st respondent in C.R.P.No. 1255 of 1998. Exs.C-1 and C-2 are the report and plan submitted by the Advocate Com-
missioner in R.C.O.P.No. 2 of 1993 (C.R.P.No. 1253 of 1993) on the file of the Rent Controller, Thiruvannamalai. A perusal of Exs.C-1 and C-
2 would disclose that the constructed portion which forms part of the leasehold premises has a door way in the front at Sivanpatha Street. The
portion marked as A-1 in Exs.C-1 and C-2 is roof with tiles. The portion next to it was shown as A-2 and there is no entrance in between the
portions A-1 and A-2. The portion marked as A-2 in Exs.C-1 and C-2 is a cement roofed with wooden rafters, i.e., like Madras roof. There is a
switch box shown at ""S1"" in the portion marked as A-2. Next comes the portion marked as A-3. There are two wooden doors in between A-2
and A-3 portions. A-3 portion is Madras terraced and there is an electric switch marked as S-2 to which service connection No. 10019 for 20
H.P. motor was given by Electricity Board. It was standing in the name of Sankaran and then in the name of Elangovan, even though it originally
stood in the name of Ramu Pillai. A perusal of Exs.C-1 and C-2 would further disclose that the portion shown as A-4 is a vacant site measuring
about 46 feet East-West and 30 feet North-South. A zinc roofed shed stands in that portion. There is a staircase in that portion marked as A-4,
leading to the first floor. There is no dispute that the abovesaid staircase was constructed by Ramu Mudaliar and there is no claim anywhere in the
pleadings in the counter filed in all the petitions that the said staircase was constructed by the lessees viz., Ramu Pillai, Sankaran or Radhakrishnan.
It is evidence from the existence of stair case in the portion marked as A-4 in Ex.C-2 that the said staircase should have been used to go to the
first floor portion with Madras terrace by the former owner or owners before lease of the demised premises in the year 1936. 17. Next comes the
portion marked as A-5 in Exs.C-1 and C-2. A perusal of Exs.C-1 and C-2 would disclose that there are two rooms R-1 and R-2 with access
both from portions marked as A-4 and A-5 and a dry latrine marked as D-1, water tank marked as D-2, water tub marked as D-3 and well with
water marked as D-4. It is seen from Exs.C-1 and C-2 that water tank and water tub are not in use. There is a dispute between the revision
petitioners and the first respondent with regard to the digging up of well marked as D-4 and there is no need to give a finding as to who had dug
the well, at this stage. The documentary and oral evidence referred to above would disclose that the premises leased out by T.S. Ramu Mudaliar in
favour of Ramu Pillai, Sankaran the 1st revision petitioner in C.R.P.No. 1255 of 1998 and Radhakrishnan was not only a vacant site with
measurement as referred to above, but with superstructure and staircase as shown by the Advocate Commissioner in Exs.C-1 and C-2 except the
zinc roofed shed or construction put up by Sankaran and his brothers, after leasing of the said property in the year 1936. It is also evident that the
superstructure and the site leased out to the abovesaid Sankaran and his two brothers was having new door No. 24, for which Sankaran and his
brothers had an agreement with T.S. Ramu Mudaliar to pay house tax by Sankaran and his two brothers. It will lead to conclude that the lease in
favour of Sankaran, the 1st revision petitioner in C.R.P.No. 1255 of 1998 and his two brothers by T.S. Ramu Mudaliar is a composite lease of
construction with covered roofs and vacant site. 18. Reliance was placed by the learned Counsel for both sides on a decision of the Apex Court
reported in Suryakumar Govindjee v. Krishnammal and Ors. (1991) 1 M.L.J. (S.C.) 21, in support of their case. In that case, there was a
composite lease of vacant site measuring 3600 sq.ft. and ""Kaichalal"" measuring about 600 sq.ft and the said premises was used as petrol pump by
the lessee. There was no door number initially for that Kaichalal but was subsequently given door number 82. The Apex Court was pleased to
hold as follows:
...It is very difficult to hold, in view of the above definition, that the Kaichalal is not a building within the meaning of Section 2(2).
...In our opinion, we have to travel beyond this solitary fact, go further to look at the terms of the lease and the surrounding circumstances to find
out what it is that the parties really intended.
There is no difficulty in determining the scope of the lease where a building and a piece of land are separately let out. But in the case of composite
lease of land and building, a question may well arise whether the lease is one of land although there is a small building or hut on it (which does not
really figure in the transaction) or one of a lease of the building (in which the lease of land is incidental) or a lease of both regardless of their
respective dimensions. The determining whether a particular lease is of the one kind or another, difficulties are always bound to arise and it will be
necessary to examine whether the parties intended to let out the building along with the lands or vice Versa.
...We should be guided not by any theory of dominant purpose but by the consideration as to whether the parties intended that the building and
land should go together or whether the lessor could have intended to let out the land without the building.
...It is pointed out that the Kaichalal was of substantial dimensions and that counsel for the appellant is not right in characterising it as a mere cattle
shed. It is pointed out that the shed was also admittedly used by the appellants for the purposes of its business and there is nothing to show that this
was also not in contemplation at the time of the lease.
...This was a composite lease with a composite purpose. It is difficult to break up the integrity of the lease as one of land along or of building alone.
In these circumstances, we think this letting would come in within the scope of the Rent Control Act for the reasons already explained.
...Where a person leases a building together with land, it seems impermissible in absence of clear intention spelt out in the deed dissect the lease as
(a) of building and appurtenant land covered by the Rent Control Act and (b) of land alone governed by other relevant statutory provisions. What
the parties have joined, one would think, the court cannot tear as under: In fact, we may point out that a wider meaning for this word was
canvassed in J.H. Irani (died) and Ors. v. T.S.P.L.P. Chidambaram Chettiar and Ors. (1952) 2 M.L.J. 221 : AIR 1953 Mad. 650, which the
court had no necessity to go into in the view taken by it on the interpretation of the lease deed.
19. In Ramaswami Pathar Vs. Jayankondam Sri Kulumalairatnaswami Devastanam and Another, , following the decision reported in J.H. Irani
(died) and Ors. v. T.S.P.L.P. Chidambaram Chettiar and Ors. (1952) 2 M.L.J. 221 : AIR 1953 Mad. 650, a Division Bench of this Court has
held as follows in the following circumstances of the case.
...the person who obtained an assignment of the tenancy earlier obtained a fresh lease from the owner of the site while the cinema theatre was
standing thereon. In a suit for eviction instituted against the tenant, the benefits of the Madras Buildings (Lease and Rent Control) Act were claimed
by the lessee that is the owner of the superstructure, who had obtained a lease of the land. A Bench of this Court held that, there being a building
on the land at the time when lease of the land was granted, the subject-matter of the lease could be regarded only as a part of the buildings, and
that therefore the lease was of a building within the meaning of the Act.
20. In J.H. Irani (died) and Ors. v. T.S.P.L.P. Chidambaram Chettiar and Ors. (1952) 2 M.L.J. 221 : AIR 1953 Mad. 650, a vacant site along
with shed was leased out, wherein Gaiety theatre was constructed. In that case it was held as follows:
...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 run his theatre with greater facilities than before by means of the vacant space and the sheds. In support of
this branch of arguments, reliance has been placed on the ruling of the Privy Council in Victoria City v. Bishop of Vancouver Island (1921) 2 A.C.
384, as showing that land underneath a superstructure must normally be regarded as part of the building. Secondly it is argued for the respondent
that the sheds which are undoubtedly part of the property demised are within the expression ""building"" in the Act. The vacant space let along with
the site under the Gaiety Theatre and with the sheds, it is argued, must be regarded as ground appurtenant to the buildings constituted by the site
under the Gaiety Theatre and the sheds, as contemplated by clause (a) of Sub-section (1) of Section 2 of the Act. Thirdly, and lastly the argument
for the respondent has proceeded on the basis that as the premises let are enclosed by a compound wall the site inside the wall obviously taken on
lease for further facilities for the running of the theatre by way of providing for parking of cars and making further structure if necessary must
together with the wall be regard as a ""building"" within the definition of the Act, although the space inside the wall is not one covered with a roof.
That in such circumstances a roof is not necessary to constitute the premises inside the wall a building for the purpose of the statute has been urged
with reference to Walte''s Executors v. Inland Revenue Commissioners (1914) 3 K.B. 196. I am of opinion that the test propounded by the
learned advocate for the appellant-whether in a composite lease the dominant part of the demise is a building or land - does not really arise for
consideration in the present case. I am also of opinion that the three limbs of the argument of the advocate for the respondent are correct.
In view of the opinion expressed as mentioned above, it was held that where the land appurtenant to the building are let along with the building,
they should stand attracted to the operation of the Madras Buildings (Lease and Rent Control) Act, 1946.
21. In Adhu by power Agent, Mohammed Ibrahim v. V.M. Palaniswamy Gounder 90 L. W. 705, a single judge of this Court has held that if the
masonry structure forms part of the demise, it cannot be contended that in an extensive land, the mere existence of a masonry structure which is on
a negligible portion does not cloth the Rent Controller with the jurisdiction and that the theory of dominant intention can never be imported into the
definition of Section 2(2) of the Act, which is clearly worded without any ambiguity whatsoever. It has also been held that there is no question of a
building being appurtenant to a land. That apart, if the buildings were let along with the ground, having regard to the inclusive definition, the meaning
of the building gets expanded and therefore, it is not correct to say that the existence of the building on a negligible portion when extensive land has
been demised for the purpose of running a timber depot, would take out the jurisdiction of the Rent Controller.
22. In Rajeshwari Devi Vs. S.M. Rabi and Others, , a learned single Judge of this Court, after considering the decision reported in Thangakani
Ammal v. A.K.A. Kaja Mohideen Sahib (1978) 2 M.L.J. 377, wherein a learned single Judge of this Court has held that a property consisting of a
wall with certain windows and a door without a roofing is not a building as defined under the Act, and again relying on the decision reported in
Singareni Collieries Co. Ltd. by agents, Best and Co. Ltd. Vs. Commissioner of Income Tax, Madras, , has held as follows:
...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
abovesaid 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 portion mentioned premises falls within the definition of a ''building'' occurring in Section 2(2) of
the abovesaid Act.
23. In Dr. M.R. Srinivasan v. V. Balakrishnan (1997) 2 L. W. 720 a learned single Judge of this Court has held as follows:
...It is common knowledge that unless there is a building, door number will not be given and that the tax for vacant land will be shown only as
vacant Land Tax and not as House Tax.
...The nature of the premises, the purpose for which it was leased out and the intention of the parties have all been clearly proved. The premises in
question is a big vacant site with compound walls on all the four sides together with a thatched shed. The property was leased out for the purpose
of carrying on timber business. Therefore, all these factors clearly point out that what was leased out is a premises, that it was leased out for the
purpose of carrying on timber business, being a non-residential purpose and that the petition premises falls within the ambit of Section 2(2) of the
Act. The view taken by both the courts below on this aspect cannot be accepted and it will have to be rejected. It cannot be held that once there is
a building on the land, however insignificant and it is let out, the case will be governed by the Rent Control Act. The fact in such cases is that the
owner has a building and land and he lets them out together. The definition of the word ''building'' is an inclusive definition bringing within its ambit
house, outhouse, stable, shed, hut and every other such structure, whether of masonry, bricks, wood, mud, metal or any other material whatever,
as pointed out by the Supreme Court. The Supreme Court has further held that the word ""building"" must be given its ordinary, natural meaning
ascribable to it including the fabric and the ground on which its stands. The definition of land also is of an inclusive one. Its accompaniments are
land which is being built upon or is built upon or covered with water; benefits to arise out of land; things attached to the earth or permanently
fastened to anything attached to the earth and rights created by legislative enactment over any street.
24. The principles laid down in the cases cited above would lead to conclude that however insignificant a building is in the land leased out as
composite lease, the definition of ''building'' in Section 2(2) of the Act will be attracted, so as to bring the lease within the ambit of the Tamil Nadu
Buildings (Lease and Rent Control) Act, 1960. The last decision referred to above would also lead to conclude that unless there is a building in the
composite lease, door number will not be given and that payment of house tax for the leasehold property will prove that the lease of the vacant site
was with building. In this case, even at the time of leasing out the demised premises by T.S. Ramu Mudaliar in favour of the 1st revision petitioner
and his two brothers in the Year 1936, the premises leased out was having new door No. 24 and there was admittedly an agreement between the
lessor and lessees that the lessees should pay house tax for the premises bearing door number 24. Accordingly, the lessees have also paid house
tax for door number 24 as seen from the documents referred to above. Therefore, this Court can come to an irresistible conclusion that the lease
by T.S. Ramu Mudaliar in favour of the 1st revision petitioner Sankaran and his two brothers in the year 1936 was not vacant site alone but a
vacant site with building bearing door No. 24, Sivanpatha Street, Thiruvannamalai.
25. The learned Counsel for the respondent herein brought to the notice of this Court the decision reported in P.M. Mani v. M.M. Thenappa
Chettiar (1997) 1 L.W. 844. In that case, while the property was leased out by the landlord to the tenant, there was only dilapidated building in the
leasehold property and the tenant was permitted to demolish that building and put up new structure by the tenant in the said premises. With the
consent and permission of the landlord, the dilapidated building was demolished by the tenant and new superstructure was put up by the tenant. In
the petition filed by the landlord for eviction on the ground of demolition and reconstruction and also wilful default against the tenant a single Judge
of this Court has held as follows:
...notwithstanding the fact that at the time of original lease there were structures in the land, the contract or agreement between the parties should
be the core of holding that what was leased to the tenant was building or land. If the purpose for which the premises is let out can be served only
by putting up a new structure at the choice and cost of the tenant, certainly Act will not apply and such a tenancy shall be deemed to be the
tenancy of the land alone.
Here, it is not the case of the respondents herein that the premises bearing door No. 24 was in dilapidated condition and the same was asked by
the landlord or landlords to be demolished and to put up new construction in that place at the time of oral lease in the year 1936 or subsequently.
The building which was let out along with vacant site still exists without any change or modification. In view of the said position, the decision
referred to above by the learned Counsel for the respondents herein will not help the respondents in any respect. The other two decisions referred
to by the learned Counsel for the respondents have already been considered while considering the decisions relied on by the learned Counsel for
the revision petitioners.
26. In view of the foregoing reasons, it is clear that the courts below have failed to appreciate the oral and documentary evidence available on
record in entirety and have misdirected themselves to proceed to hold that there was no superstructure at all in the lease hold premises given by
T.S. Ramu Mudaliar, in favour of the 1st respondent herein and his two brothers. On such mistake of fact the courts below have also committed a
legal error in approaching the issue before them by applying proper legal position and have come to an erroneous conclusion by applying legal
positions also erroneously. If there is illegality or irregularity or impropriety committed by the courts below in arriving at the conclusion on the
available material evidence in the light of the settled legal positions, it is settled law that this Court has got jurisdiction to interfere with such
conclusions u/s 25 of the Act. In view of the said position, the decision referred to by the learned Counsel for the respondents reported in T.S.
Subramania Aiyer Vs. P.K. Srinivasan by Power Agent, B. Ramu, , will have no application to the facts, and circumstances of this case.
Therefore, this Court, in the interest of justice is interfering with the concurrent findings given by the courts below that the lease by T.S. Ramu
Mudaliar in favour of the 1st respondent herein and his two brothers was only vacant site and not vacant site with building and such finding of the
courts below are accordingly set aside.
27. Even though the revision petitioners in C.R.P.No. 1255 of 1998 have claimed that the 1st respondent herein has sublet the demised premises
to the 2nd respondent herein viz., A. Gurunathan, they have given up such case even before the Rent control Appellate Authority and, therefore,
the Rent Control Appellate Authority has already decided that point against the revision petitioners. The same position has continued in this revision
stage also and, therefore, the question of subletting by the 1st respondent to the 2nd respondent herein will not arise for consideration and that
issue is answered accordingly.
28. The learned Counsel for the revision petitioners in C.R.P.No. 1253 of 1998 contended that the service connection bearing S.C.No. 10019,
standing in the name of T.S. Ramu Pillai originally, which was transferred to the name of Sankaran, the 1st respondent herein, was transferred
again in the name of his son Elangovan, the 2nd respondent herein in C.R.P.No. 1253 of 1998 and, therefore, such transfer of service connection
from the name of the 1st respondent Sankaran to the 2nd respondent Elangovan will amount to subletting the demised premises to Elangovan
without the consent of the revision petitioners in each of the civil revision petitions pending before this Court. Similar contention was raised by the
revision petitioner in C.R.P.No. 1253 of 1998, as appellant in R.C.A.No. 13 of 1995 before the Rent Control Appellate Authority and before the
Rent Controller in R.C.O.P.No. 2 of 1993. Both the courts have concurrently found that mere transfer of electric service connection from the
name of the 1st respondent Sankaran to the name of his son Elangovan, the 2nd respondent herein, will not amount to subletting the demised
premises by the 1st respondent to the 2nd respondent. It is relevant to point out that the demised premises, which is the leasehold premises, was
enjoyed as common leasehold right belonging to the joint family consisting of Sankaran, Ramu Pillai and Radhakrishnan and in that capacity the
said right was also divided between brothers along with the other joint family properties. This right was allotted to the sharer Sankaran and
Radhakrishnan, who in turn has released his right for valuable consideration in favour of Sankaran. The leasehold right had come to the family
consisting of Sankaran and his son Elangovan and Sankaran was carrying on business in the demised premises with the assistance of Elangovan. In
the said circumstances, mere transfer of service connection number 10019 from the name of Sankaran to his son Elangovan will not amount to
transfer of lease as rightly held by the courts below. Therefore, the contention raised by the learned Counsel for the revision petitioner in
C.R.P.No. 1253 of 1998 cannot be sustained.
29. The points to be decided in C.R.P.No. 1255 of 1998 (R.C.O.P.No. 2 of 1987) are subletting and wilful default. The point with regard to
subletting was decided by the courts below and it does not survive. Yet another point to be decided in that proceedings is with regard to the
commission of wilful default in the payment of rent. The said issue has not been considered and a finding has not been given by the courts below in
the light of the evidence available on record.
30. C.R.P.No. 1256 of 1998 has been filed against the judgment in R.C.A.No. 10 of 1995, which was filed against the order made in M.P.No.
73 of 1987 in R.C.O.P.No. 2 of 1987. It was a petition filed u/s 11(4) of the Act. The respondents herein submit that the entire arrears, as
claimed by the revision petitioners, were deposited upto 31.7.1987 before the Rent Controller and the above said amounts were also withdrawn
by the revision petitioners from the court deposit. Inspite of the said position a finding was not recorded by the courts below in the proceedings
initiated in M.P.No. 73 of 1987 in R.C.O.P.No. 2 of 1987.
31. In the proceedings in C.R.P.No. 1253 of 1998 the points to be decided are as to whether the requirement of the demised premises for
demolition and reconstruction by the revision petitioner is bona fide and whether the subletting alleged in the said proceedings is proved. In this
case, the courts below had found that the subletting alleged by the petitioner against respondents 1 and 2 are not proved and that view has also
been confirmed by this Court in this revision. Therefore, nothing survives so far as subletting in C.R.P.No. 1253 of 1998 concerned. But, a finding
has to be rendered with regard to the requirement of demised premises for demolition and reconstruction. The courts below have not given any
finding with regard to the said point on the evidence adduced by both sides.
32. Likewise, no finding was given by fixing the fair rent in the light of the evidence adduced by both sides in the proceedings u/s 4 of the Act in
R.C.O.P.No. 2 of 1994 against which the appeal in R.C.A.No. 11 of 1995 was filed and thereafter, a revision petition in C.R.P.No. 1254 of
1998 was filed on the file of this Court. In view of the said position, the civil revision petitions cannot be disposed of finally without concrete
findings given for the issues to be decided in all the abovesaid four matters. In view of the said position, the common judgment and decree passed
by the Rent Control Appellate Authority (Sub Judge), Thiruvannamalai in R.C.A.Nos. 10, 11,12 and 13 of 1995 are set aside and the matter is
remanded back to the Rent Control Authority to give findings on the points for which no findings were given as pointed out above and to dispose
of the matters in the light of the evidence available on record and in accordance with law. Both parties are directed to appear before the Rent
Controller (District Munsif), Thiruvannamalai on 29.1.2001 and are also directed to give necessary assistance to the court to dispose of these
matters, as expeditiously as possible.
