Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5
PETITIONER:
K.BHAGIRATHI G.SHENOY AND OTHERS
Vs.
RESPONDENT:
KP BALLAKURAYA AND ANOTHER
DATE OF JUDGMENT: 06/04/1999
BENCH:
K.T.Thomas, D.P.Mohapatra,
JUDGMENT:
Thomas J.
Whether a lease is of land appurtenant to a building or
vice-versa continues to remain an issue providing pabulum for
many a litigation. In the instant case also that issue has
assumed decisive dimension. Our efforts to have this case
settled out of court did not fructify despite the active role
played by counsel on both sides. So we have to determine this
issue on the facts of this case.
This case reached the Supreme Court after
drifting through a long stream of vicissitudes. Genesis of this
litigation is traced to a lease created during pre-independence
days when one of the two buildings situated in the disputed
property was rented out by its owner, (a bureaucrat then
stationed at Delhi) to one Somappa Naik. On 28-7-1951 a new
lease deed was executed by the said Somappa Naik in respect of
the disputed property having an area of 1.60 acres containing the
same pucca residential building thereon, for a monthly rent of
Rs.9/-. When the lessee continued under the lease he assigned
his rights in favour of the present respondent (who is a
practicing advocate of Kassargod District Court) on 17-8-1968.
When the Kerala Land Reforms Act, 1963 (for short
the Act) came into force the respondent filed an application
before the Land Tribunal, Kassargod in 1974 as per Section 72B of
the Act for assigning to him the right, title and interest of the
landowner, claiming that he is a cultivating tenant of the
disputed land. Despite resistance made by the appellant
(landowner) the said application was allowed by the Land Tribunal
but the Appellate Authority remitted the case back to the Land
Tribunal for fresh consideration and disposal. The Land Tribunal
again allowed the application and when appellant appealed, the
Appellate Authority confirmed the order.
Appellant moved the High Court in revision under
Section 103 of the Act. A Single Judge referred the case to a
Division Bench as he felt that the legal question involved was to
be determined by a larger Bench. By the impugned order a
Division Bench of the High Court concurred with the conclusion
made by the Land Tribunal and the Appellate Authority. Hence
this appeal by special leave.
The main ground on which the appellant resisted
the application of the respondent is that the lease was of a
building with the land appurtenant thereto and hence it does not
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5
fall within the purview of the Act. Under Section 3 of the Act
such a lease is exempted from the provisions relating to
tenancies subsumed in Chapter II of the Act. Section 3(1)(ii)
can be extracted here:
"Nothing in this Chapter shall apply toxxx xxx xxx
xxx (ii) leases only of buildings, including a house,
shop or warehouse and the site thereof, with the land, if any,
appurtenant thereto."
Shri T.L. Vishwanatha Iyer, learned senior
counsel who argued for the respondent laid emphasis on the
monosyllable only in order to bolster up his contention that
the legislative intent was to limit the exemption to leases of
buildings. It is not a sound principle in interpretation of
statutes to lay emphasis on one word disjuncted from its
preceding and succeeding words. A word in a statutory provision
is to be read in collocation with its companion words. The
pristine principle based on the maxim noscittur a sociis
(meaning of a word should be known from its accompanying or
associating words) has much relevance in understanding the import
of words in a statutory provision.
If the clause was worded as lease of buildings
there would have been difficulties in cases where land also
adjoins the building. But the legislature chose to frame the
clause as leases only of the buildings with the land, if any,
appurtenant thereto. The legislature was conscious of many such
leases where the dominant factor is the building, or the object
of the lease is to demise building which has landed areas as
adjunct or appendage or incident to the building.
The word appurtenant when used in connection
with leases of properties, has gained wider as well as narrower
interpretations through judicial pronouncements. Such divergence
in the interpretation was necessitated to comply with legislative
intent while considering facts of each case. In an early
decision (Budhi Mal vs. Bhati, AIR 1915 All. 459) the Allahabad
High Court understood the word as an appendage, or adjunct, or
something belonging to another thing which is the principal
matter. Quoting from Abbots Law Dictionary, Ramanatha Iyer in
his treatise on The Law Lexicon of British India has extracted
the following meaning to the word appurtenant:
"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."
In Maharaj Singh vs. State of U.P. (1977 1 SCC
155) a two-Judge Bench of this Court considered the claim of a
defendant that the hat, bazar and mela as areas appurtenant to
the buildings in the property on the premise that they have not
vested in the government under Section 6 of the U.P. Zamindari
Abolition and Land Reforms Act, 1950. Learned Judges observed
thus:
"What is integral is not necessarily appurtenant. A position of
subordination something incidental or ancillary or dependant is
implied in appurtenance."
In M/s. Larsen and Toubro Ltd. vs. Trustees of
Dharmamurthy Rao Bahadur Calavala Cunnan (1988 4 SCC 260) the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5
company (Larsen and Toubro) was a tenant of all that plot of
vacant land and buildings erected thereon and more particularly
described in the schedule and delineated in the plan annexed and
measuring 17 grounds and 321 sq. ft. or thereabouts. The
company claimed protection under Section 9 of the Tamil Nadu City
Tenants Protection Act, 1922 which applied only to tenancies of
lands in certain towns. The word building in the said Act was
defined as any building and includes the appurtenances thereto.
The company contended that since apart from the building a large
area of land was also included in the lease deed it cannot be
considered as appurtenances to the building. Learned Judges
pointed out that the question whether a land is appurtenant or
not is one of fact. After adverting to the different clauses
contained in the lease deed involved in that case their Lordships
concluded:
"It is not possible to infer from these clauses that the parties
had entered into two separate transactions of lease, though
incorporated in a single document. In our opinion, this was a
composite lease, as we have already said, of a building with
appurtenant land and having regard to the definition contained in
the Act, the lessee is not entitled to the rights conferred by
Section 3 or Section 9 of the Act."
In Suryakumar Govindjee vs. Krishnammal and ors.
(1990 4 SCC 343) a two-Judge Bench of this Court has observed
thus:
"If a very strict and narrow interpretation is given to the word
appurtenant, it is arguable that a considerable part of the
surrounding land is surplus to the requirements of the lessee of
the building. But, we think, no argument is needed to say that
such a lease would be a lease of building for the purposes of the
Rent Control Act. Where a person leases a building together with
land, it seems impermissible in the absence of clear intention
spelt out in the deed to 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 the light of the legal principles laid down by
this court we have now to judge whether the lease in this case is
of a building with the land appurtenant thereto or it comprises
of two leases one of building and the other of land by
bringing both of them under one deed.
The lease deed dated 28-7-1951 incorporated all
the terms and conditions for the lease. Its English translation
is produced as Annexure-B. The lessor was described as Secretary
to the Minister for communication, Government of India, and the
lessee was described as a clerk of the Panchayat Board, Kassargod
Kasba. In the prefatory portion it refers to the tiled building
belonging to the lessor which was demised to the lessee for a
period of 11 months as per a Chalageni Chit (rent deed) dated
6-5-1947 and on the expiry of the said period the lessee was
permitted to continue under the same terms and conditions.
After saying so the lease deed continues to state that
while so, as per the request made by the lessee to grant him
lease of some portion of the land adjoining the leasehold
property and as agreed to by the lessor the additional portion is
taken possession of by the lessee, and this Chalageni Chit is
executed.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5
In the next paragraph of the lease deed it is stated that
the property described thereunder in which the house wherein the
lessee resides now, is included, together with the bath-room
(which was constructed by the lessor) and the trees on the
property, have been demised by the lessor to the lessee for a
period starting from 1-7-1951 and ending with 30-6-1952. The
other stipulations in the lease deed are the following:
(1) The lessee is liable to pay the monthly rent of Rs.9/- by the
10th day of every succeeding month. (2) If the rent falls in
arrears it shall bear interest at the rate of 5 per cent per
annum from the date of default. (3) All the improvements
standing on the landed area would belong to the lessor. (4) The
lessee has no right (a) to effect any kinds of improvement on the
land, (b) to make any repairs to the building without the written
consent of the lessor or to make any claim for the cost incurred
for such repairs, (c) to cut any of the trees without any proper
reasons, (d) to sub-lease or to alienate to any other person.
The description of the property is as follows: The western
portion of the property lying in survey R.S. No. 112/1, having
an extent of 1.60 acres and the tiled residential building (in
which lessee is residing) together with a bathroom, 33 coconut
trees (among which 21 are yielding), 7 jack trees, 7 mango trees,
50 cashew trees, 2 nellikai trees, and 2 casuarina trees. It is
made clear that the other pucca building situated on the land is
not included in the lease.
Learned counsel contended that factors such as the nomenclature
as Chalageni and that the lease is expansion of the original
lease, are positive indications in favour of the lease being
mainly one of land. Nomenclature does not matter in this case
because even the previous deed of 1947 also contained the same
appellation. Nor can the fact that it is expansion of the first
lease be of any decisive impact, for that feature can be
highlighted by both sides as a supporting factor to their
respective stand.
One standard by which this document can be tested for discerning
the predominant factor therein building or land can be this:
Was it one lease for the building and the landed portion was
added as appendage or incidental thereto? Or was it one document
for two separate demises i.e. one for building and the other for
the land? It is difficult to make out a third possibility that
it would have been only one lease where the predominant factor
was land, the building being of subsidiary importance.
Learned counsel for the appellant first pointed out the situation
at which both parties were placed then. The lessor having such a
pucca residential building with a sprawling compound attached to
it had to remain in New Delhi as he was working as Secretary to
the Government of India. The lessee who was a public servant
working at Kasarcodu needed a house to live in at that place.
Such facts, according to the learned counsel, would clearly show
that it was the building which was of prime consideration for the
lease. The attached compound could not have been left out, for
practical reasons, uncared by any one and hence it became
necessary to include that compound area also as part of the
lease. The said contention cannot be sidelined as without force.
Learned counsel then highlighted the factors such as provisions
for payment of rent every month and liability to pay interest
from the date of default and contended that they are clear
indications in favour of the lease being that of building with
the land adjoining thereto. The very fact that the land portion
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5
is described as adjoining to the building is proof positive of
its object, according to the learned counsel. He also contended
that if the land was intended to be enjoyed, de hors the
building, no provision was necessary to prohibit the lessee from
effecting any improvement on the land. It is only the fruits of
the trees which the lessee was permitted to take.
The fact that another building situated within the boundaries has
been retained by the lessor is a pointer indicating that the land
was only to be used as adjunct to the residential building. Over
and above all those, the interdict against making any improvement
on the land is a stirring feature which is in conflict with the
idea of land becoming the dominant factor of the lease. No lease
of land can possibly be conceived without the lessee being given
freedom to use the land to generate profit therefrom. Here the
lease imposed a complete ban on the lessee to use the land for
such purposes. All that he is permitted thereon is to take
usufructs of the trees already standing on the land.
A reading of the lease deed from the above angles indicates that
there was no idea for the lessor to create a right to enjoy the
land independent of the building but only to take usufruct of the
trees standing thereon while residing in the building. The area
of the land alone cannot be a determinative factor. It was
common practice in olden days for residential buildings to have
sprawling areas as adjuncts to such buildings. That practice
could well have been followed by the parties in the lease deed
which is subject matter of the case.
For the aforesaid reasons we take the view that the lease was of
building with the landed area meant as appurtenant thereto. Its
corollary is that the lease is exempted from Chapter II of the
Act and the consequence is that respondent cannot claim any right
under Section 72B of the Act.
In the result, we allow the appeal and set aside the impugned
judgment as also the order of the Land Tribunal as confirmed by
the Appellate Authority. Accordingly, the application filed by
the respondent under Section 72B of the Act will stand dismissed.