Full Judgment Text
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PETITIONER:
K.BHAGIRATHI G.SHENOY AND OTHERS
Vs.
RESPONDENT:
KP BALLAKURAYA AND ANOTHER
DATE OF JUDGMENT: 06/03/2000
BENCH:
K.T.Thomas, D.P.Mphapatro
JUDGMENT:
J U D G M E N T Thomas J. Whether a lease is of landappurtenant to a building or vi
ce-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
1.06 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 1964 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
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not 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 to- xxx 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
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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 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
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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.
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,
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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 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.