A. Syed Khader Batcha v. A. Pichai Chettiar — 1997 DIGILAW 184 (MAD)

Judgment :- 1. The Plaintiff, who was successful before the trial court and unsuccessful before the first Appellate Court, has preferred the present Second Appeal. The appellant as plaintiff had instituted the suit O.S. No. 232 of 1979 on the file of the District Munsif Court, Madurai Town on 27th January 1979 against the respondent (1) for recovery of possession of the suit property and (2) for recovery of Rs. 1600/- towards arrears of rent and damages with subsequent interest at 6% per annum from the date of plaint till the date of realisation. According to the plaintiff the suit property is a vacant site used as a drying yard without any roofing was leased out to the defendant on a monthly rent of Rs. 50/- payable according to English Calendar month, that the defendant committed default in payment of rent since 1st July 1975 and the plaintiff is entitled to arrears of rent from 1st July 1975 till 31st January 1977, on which date the tenancy was terminated and for damages for use and occupation from 1st February 1977 onwards. The plaintiff also specifically pleaded that the suit property being a mere drying yard without any roofing is not a building as defined in the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and the suit is maintainable before the Civil Court. The plaintiff issued a notice on 24th December 1976, terminating the tenancy and for the said notice the defendant had sent a reply. As such, according to the plaintiff, the defendant is liable to pay rent and damages. The cause of action for the suit arose on 24th December 1976, when the notice of termination was issued. 2. The respondent defendant while admitting the tenancy and the quantum of rent, disputed the arrears while pleading that he has to pay rent for the period subsequent to May, 1977. According to the defendant, the plaintiff had refused to receive the rent. The defendant further pleaded that the suit property is a building and the provisions of the Tamilnadu Buildings (Lease and Rent Control) Act, 1960 apply and consequently the Civil Court has no jurisdiction. According to the defendant, the plaintiff had refused to receive the rent. The defendant further pleaded that the suit property is a building and the provisions of the Tamilnadu Buildings (Lease and Rent Control) Act, 1960 apply and consequently the Civil Court has no jurisdiction. It was further pleaded by the defendant that he had put up structures even during the plaintiffs fathers lifetime and long before and as the defendant had spent heavily in putting up structures the plaintiffs father had agreed to give a five years time for vacating. The defendant also pleaded that the property description in the plaint is wrong and misleading. The defendant further pleaded that the suit property is within the compound wall and there is a roofed structure. 3. Before the trial court, the plaintiff examined himself as P.W. 1 and also marked Exs. A1 to A5. The respondent defendant examined himself as D.W. 1 and marked Exs. B1 and B2 being the Pocket Note Book and the entries made in the Pocket Note Book. The trial court framed five issues. The trial court found that the defendant is in arrears and is liable to pay damages from February 1977 to December, 1978 aggregating to Rs. 1150/- and this has been admitted by the defendant in the witness box. Here and now, it has to be mentioned that in respect of arrears of rent or damages, the decree of the trial court has become final as no Cross Objection has been preferred by the plaintiff and in fact the plaintiff has stated that he has no grievance with respect to that portion of the decree. 4. In the Second Appeal also, the plaintiff has not expressed any grievance with respect to that portion of the decree. 5. The trial court has held that the suit is maintainable before the Civil Court, that what has been leased out is only a vacant site and not a building, that the plea that the defendant would be given five years notice is false, that there existed no superstructure and that the defendant had put up a thatched shed when the suit was listed. The trial court granted a decree for possession as well and directed the defendant to deliver possession of the suit property by judgment and decree dated 11th September 1980. The trial court granted a decree for possession as well and directed the defendant to deliver possession of the suit property by judgment and decree dated 11th September 1980. Being aggrieved, the defendant preferred A.S. No. 198 of 1980 on the file of the Subordinate Judge of Madurai. The first Appellate Court framed for its consideration the following two points. 1. Whether the Civil Court has no jurisdiction to try the suit as contended by the defendant? 2. Whether the agreement pleaded by the defendant for causing notice to quit by giving 5 years time to vacate the suit property is true? 6. In respect of the second point, the first Appellate Court negatived the plea of the defendant that he is entitled to five years notice and the evidence of the defendant had been disbelieved. The first Appellate Court held that the notice of termination issued by the plaintiff is valid. With respect to the first point, the first Appellate Court concluded that the suit property is a building as defined in the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and that the Civil Court has no jurisdiction to try the suit or pass a decree for eviction against the defendant. In that view, the first Appellate Court allowed the appeal and dismissed the suit in respect of the relief of recovery of possession. Being aggrieved, the plaintiff has preferred the present Second Appeal. 7. At the time of admission, this Court has framed the following substantial question of law: “Whether the lower Appellate Court was right in holding that the suit for possession is not maintainable on the assumption that there was a single tenancy of the suit and adjoining properties and on the ground that the suit property is a building under the Rent Control Act.” 8. Mr. T.R. Mani, learned Senior Counsel appearing for the appellant contended that what has been let out is only a vacant land and not a building, that the entire findings and conclusions of the first Appellate Court have been arrived at without a plea, that what has been let out by the plaintiff is only a vacant site that was being used as drying yard, that the letting of the suit property is distinct and separate from the lease of the rice mill building, machineries, etc. by the plaintiffs father, that there is no unity of ownership and that admittedly separate rent was paid for the suit vacant site. It was further contended by the learned Senior Counsel that being an independent and separate lease of the site, the conclusion of the first Appellate Court that it is a lease of the building on the premises that the suit site used as a drying yard and appurtenant to the rice mill is legally unsustainable. It was also further contended that the rice mill is the subject matter of a separate lease, that at the material point of time the plaintiff was not the owner of the rice mill, that the plaintiff had let out the vacant site alone with compound wall on two sides on a rent of Rs. 50/-, that in the absence of unity of ownership, merely because the defendant had carried on rice mill business and was using the suit property as a drying yard, it cannot be assumed that the suit property is a building as defined in the Tamil Nadu Buildings (Lease and Rent Control) Act. The learned Senior Counsel further contended that the first Appellate Court committed an illegality in that it had relied upon the decision of this Court, which has since been overruled by the Supreme Court. 9. On the other hand Mr. K. Chandrasekaran, learned Counsel appearing for the respondent defendant contended that what has been let out is a building as it has been used as appurtenant to the rice mill and that civil suit is not maintainable. It was elaborated by the learned counsel for the respondent that there has been unity of business, namely Rice Mill business and unity of management, i.e. properties were under the management of the plaintiffs father and that the suit property, at any rate, is a building as there existed a thatched shed and compound wall. It was further contended that no interference is called for. Mr. It was further contended that no interference is called for. Mr. T.R. Mani, learned Senior Counsel contended that a reading of paras 6 to 9 of the judgment of the first Appellate Court would evidently prove that without a plea and without evidence, the first Appellate Court had assumed that the suit site has been let out along with the rice mill as appurtenant to the rice mill by the plaintiffs father, and that the rice mill, appurtenant vacant land and other connected buildings such as godown were leased out comprehensively. 10. It is true that there is no such plea and the failure to raise a plea is fatal to the evidence. The plea that has been raised by the defendant in the written statement reads thus. “3. It is true that this defendant is a tenant of the suit property on a monthly rental of Rs. 50/- but it is not true that this defendant is in arrears since 1st July 1975. The defendant has paid rent upto April 1977. The defendant has to pay rent only subsequent to that period. i.e., from May 1977. The defendant paid the amount but the plaintiff refused to receive the same on the ground that he had issued the suit notice and therefore he would not receive it. The defendant is ready and willing to pay the amount due as mentioned above. 4. The suit property is a building in Madurai Town and therefore it is subject to the Madras Buildings (Lease and Rent Control) Act, the Civil Court has no jurisdiction to try the suit and the suit has to be dismissed in limine for want of jurisdiction. The allegation in para 7 in the plaint that the suit property is not a building is false. 5. As a fact this defendant put up structures mentioned in the plaint even during the plaintiffs fathers life time long ago. It was agreed at that time that since the defendant has spent heavily for structures mentioned in the plaint. Plaintiffs father agreed that he would not vacate the defendant without giving a five years rime for vacating. On the said term the tenancy was entered into and therefore this suit without giving a notice of five years time.” 11. It was agreed at that time that since the defendant has spent heavily for structures mentioned in the plaint. Plaintiffs father agreed that he would not vacate the defendant without giving a five years rime for vacating. On the said term the tenancy was entered into and therefore this suit without giving a notice of five years time.” 11. A perusal of the paragraphs 3 to 5 of the written statement makes it evidently clear that there is no plea that the suit property formed part of or was the appurtenant land to the rice mill, that the suit property, rice mill, godown and other properties comprised in Door Nos. 1, 1-A, 2, 58C and 58C-1 were let out to the defendant as one block for running the rice mill. The findings rendered in paragraphs 6 to 8 of the judgment of the first Appellate Court are mere assumptions. The learned Senior Counsel also contended that in the absence of pleadings and in the absence of evidence, the first Appellate Court has acted illegally in assuming that the suit vacant site is appurtenant to the rice mill and as such it is a building. The first Appellate Court, with respect to the thatched shed, had concurred with the findings of the trial court and held that the shed had been put up by the defendant recently after the suit. But the lower appellate court also erroneously assumed and proceeded as if the shed, though put up recently by the defendant tenant, would definitely be a “building” under the Tamil Nadu Buildings (Lease and Rent Control) Act and consequently held that the Civil Court has no jurisdiction. 12. In this respect, it is further pointed out that the judgment of this Court reported in 1960(2) MLJ (Short Notes) 29 - Palaniappa Chettiar v. Vairavan Chettair , has since been overruled by the Supreme Court by the learned Senior Counsel. The Apex Court in 1969(1) MLJ 16(SC) A.R. Salay Mohamed Sait etc. v. Jaffer Mohammed Saits Memorial Charity and others , had overruled the decision of this Court in 1960(2) MLJ (SN) 29 Palaniappa Chettiar v. Vairavan Chettiar . The Apex Court in 1969(1) MLJ 16(SC) A.R. Salay Mohamed Sait etc. v. Jaffer Mohammed Saits Memorial Charity and others , had overruled the decision of this Court in 1960(2) MLJ (SN) 29 Palaniappa Chettiar v. Vairavan Chettiar . The Supreme Court has held thus: “In order to determine whether the lease is of a vacant land or of a building within a meaning of the Act of 1960 we must take into account both the form and the substance of the transaction. In form the transactions in suit were leases of vacant land. The substance of the transactions point to the same conclusion. The lease of 1941 shows that the landlord was aware that there were certain structures on the land but what was let out was not the structures but the entire land of A.C. 2.00. It was within the rights of the lessee to remove all the materials of the buildings and sheds, which were erected on the land within 2 months after the date of the expiry of the agreement and the landlord was to have a charge thereon only in case of default of payment of the yearly rent. The structures belonged entirely to the lessee and they did not form the subject matter of the lease. The lease of 1945 was of a portion of S. No. E. 434/1 measuring AC.O. 50. The rent for the first seven years was to be Rs. 300/- annually and for the second period of 8 years at Rs. 400/- per annum. Although the lessee was to have the right to use the land as business premises and to put up the erections and fixtures for running his business he was not to have any right to remove or cause them to be removed either before or after the expiration of the period mentioned. It is clear that what was let out in both leases was the land without any structures. It seems to us therefore that neither, in form nor in substance was there a letting of any building. In the first case, there were some structures on the land in 1941 but the landlord had no interest thereon and the tenant unless be made default in payment of rent could remove at any time within 2 months after the expiry of the lease, the building materials by demolishing the structures. In the first case, there were some structures on the land in 1941 but the landlord had no interest thereon and the tenant unless be made default in payment of rent could remove at any time within 2 months after the expiry of the lease, the building materials by demolishing the structures. In the second case, although the structures were to become the property of the landlord at the end of the term of let ting was only of the vacant land. The landlord did not let out any building which would come within the mischief of the Act.” Thus, the conclusion arrived at by the first Appellate Court that the very construction put up by the defendant would enable him to claim the benefit of the Tamil Nadu Buildings (Lease and Rent Control) Act is legally unsustainable, as what has been let out is only a vacant site and the view of this Court in 1960(2)MLJ 29 - (S.N.) Palaniappa Chettiar v. Vairavan Chettiar is no longer good law. 13. As set out above, not only there was no plea but also no evidence to support the claim of the defendant. This Court is unable to sustain the material findings rendered by the first Appellate Court in paragraphs 6 to 9 of its judgment. 14. This Court is unable to comprehend as to how the first Appellate Court, in the absence of any plea, had rendered such findings. The defendant had nowhere pleaded that the site was leased out along with rice mill and that the suit land and the connected properties were used as one block, that the plaintiffs father had leased out the entire properties comprised in Door Nos. 1, 1-A, 2, 58C and 58C-1 as a comprehensive lease or composite lease and that the suit land is appurtenant to the rice mill and as such it is a building and not a vacant site. In other words no such plea finds place in the written statement. The entire findings are based on mere assumptions and without a pleading, oral evidence could be looked at for determining whether the suit land was let out along with the other superstructures or buildings. In the circumstances, oral evidence would be of no value. Moreover the first Appellate Court appears to have proceeded on several assumptions, which can neither be justified nor warranted on the pleadings. 15. In the circumstances, oral evidence would be of no value. Moreover the first Appellate Court appears to have proceeded on several assumptions, which can neither be justified nor warranted on the pleadings. 15. The first Appellate Court while finding that the plaintiff had purchased the suit property as a distinct property under Sale deed Ex. A1, had proceeded as if the suit property was not enjoyed separately, that the plaintiffs father had leased out the same along with the adjoining properties to the defendant for the purpose of running rice mill, that for running a rice mill, a drying yard is essential and that if the defendant is evicted from the suit property, then there would be no purpose in continuing the lease of the rice mill comprised in Door Nos. 58-C and 58-C.1 The further inference of the first Appellate Court that all the properties have been leased out at one time and that the suit property has been let out as appurtenance to the building portion in the premises comprised in Door Nos. 58-C and 58C-1 where the rice mill machineries and other accessories are installed is without any basis and cannot be sustained legally. The plaintiff has purchased the suit property under Ex. A1 on 27th April, 1967 and what was purchased was only a vacant site and not even a drying yard. Even in Ex. A5, the suit property has been referred as vacant site. The defendant had not chosen to produce earlier lease deeds, if any, to show that all the items were leased as one property, that the entire property was originally owned by a single individual or that it was divided subsequent to his induction as tenant of Rice Mill complex or that the drying yard was integral part of Rice Mill or that there was unity of ownership of these portions or unity of letting at a given point of time. 16. This Court had not been shown the material from which such inference could be legitimately drawn by the first Appellate Court. Admittedly, the suit property is owned by the plaintiff consequent to his purchase of the same under Ex. A1 and it is not connected with the rice mill or godown. It may be a fact that the suit property was used as drying yard by the defendant, who is the lessee of the adjacent rice mill. Admittedly, the suit property is owned by the plaintiff consequent to his purchase of the same under Ex. A1 and it is not connected with the rice mill or godown. It may be a fact that the suit property was used as drying yard by the defendant, who is the lessee of the adjacent rice mill. For a rice mill with huller alone drying yard is not essential. Drying yard is essential only when the rice mill has got a boiler where raw paddy is boiled for the purpose of conversion. In other words, it is not essential or mandatory that a rice mill should have a drying yard. It is pointed out by the learned Senior Counsel Mr. T.R. Mani that if the drying yard is located just across the street or at a distance apart and even if it is used as a drying yard by the lessee of the rice mill, it cannot be assumed that it is a part of the rice mill building and that it is an appurtenance to the rice mill. The contention of the Senior Counsel is well founded and has to be accepted. 17. In the present case, the learned counsel for appellant argued that as no plea has been taken by the defendant with respect to the alleged comprehensive user of the premises and that there being no specific plea that the suit property was leased out as an appurtenant land to the rice mill, the evidence on this aspect could not be properly looked into and no decision could be rendered based on such evidence. It is fundamental that no amount of evidence can be looked into upon a plea which was never put forward. The true scope of this basic principle is that the evidence let in on issues on which the parties actually went to trial should be made a foundation of the decision of the Court and not on any other and different issue, which was not present to the minds of the parries on which they had no opportunity of adducing evidence. Thus, for the above reasons, the defendant has to fail for want of pleadings. Also the evidence of D.W. 1 is of no assistance as well. Even the little evidence of D.W. 1 cannot be looked into for want of pleadings. 18. Thus, for the above reasons, the defendant has to fail for want of pleadings. Also the evidence of D.W. 1 is of no assistance as well. Even the little evidence of D.W. 1 cannot be looked into for want of pleadings. 18. As pointed out by the learned Senior Counsel, the plaintiff is the exclusive owner of the suit site and he has nothing to do with the rice mill or godown. Letting of the suit property, a vacant site is separate and distinct. The rice mill and the godown are not owned by the plaintiff, but it was owned by the plaintiffs father and brother respectively. The relationship between the three lessors in respect of these items of the property cannot be a ground to club the three independent leases and it cannot be, on that score, assumed that the lease is a comprehensive lease and that the suit property was let out as part of or as appurtenant land to the rice mill. The conclusions arrived at by the first Appellate Court in this respect cannot be sustained. 19. Mr. Chandrasekaran, learned counsel appearing for respondent/defendant contended that the suit property is a building, as there is drying yard with compound wall on either side. Mere usage of vacant land as drying yard and without any structure thereon, cannot be held to be a lease of a building. The temporary shed which has been referred to by the defendant and as found by the two Courts below concurrently, have been put up after the institution of the suit and while the suit has been included in the list for trial. This finding cannot be interfered. As such, on the date when the property was leased out as well as on the date of institution of the suit, there was no structure at all. Merely because the defendant had put up a thatched shed after the institution of the suit, that would not make it that it is a lease of the building. Definitely it will not enable the defendant to claim the benefits of the Tamil Nadu Buildings (Lease and Rent Control) Act. 20. Nainar Sundaram, J. as he then was, in 93 L.W. 404 had rejected such a contention of clubbing three premises together. Definitely it will not enable the defendant to claim the benefits of the Tamil Nadu Buildings (Lease and Rent Control) Act. 20. Nainar Sundaram, J. as he then was, in 93 L.W. 404 had rejected such a contention of clubbing three premises together. Ratnam, J. as he then was in 94 L.W. 21 had occasion to consider the meaning of the word “building” as defined in S. 2(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and on the facts of the case, which related to fixation of fair rent, held that the drying yard which formed part of the demised lease, has to be taken into consideration for fixation of fair rent. It was pointed out on the facts of the case that it is a lease of the premises with the drying yard and as such it has to be included for the purpose of fixation of fair rent and such a conclusion has been arrived at as the lease from part of the demised premises in that case. The definition of S. 2(2) of the Act runs as follows: “(2) “Building” means any building or but or pan of building or but, hut or to be let separately, for residential or non residential purpose and includes- (a) the garden, grounds and outhouse, 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, but does not include a room in a hotel or boarding house”. The above definition makes it clear that there must be something which is built or it should be a wall or it must be just a structure and it may not be fit for human habitation. Definitely, a mere wall or a fence or a gate or a drying platform will not, in that sense, would be a building under the Act. 21. A suit for ejectment in respect of a vacant land is maintainable before the Civil Court as has been laid down by Ramaswamy, J. as he then was, in 93 L.W. 900 Periasami Chettiar v. Subramanian Chettiar . 21. A suit for ejectment in respect of a vacant land is maintainable before the Civil Court as has been laid down by Ramaswamy, J. as he then was, in 93 L.W. 900 Periasami Chettiar v. Subramanian Chettiar . In considering the issue as to whether the suit property is a building or not falling within the ambit of S. 2(2) of the Act, this Court has to definitely take into consideration the nature of the premises which has been let out. Admittedly, what has been let out is only a vacant site, which is used as a drying yard. But for the rice mill, which is in the vicinity, the defendant cannot claim that it is an appurtenant to the rice mill. The defendant had forgotten the fact that the rice mill and the godown do not belong to the plaintiff and the plaintiff has just owned the vacant land. Merely because the defendant was using the suit property as a drying yard and as a consequence of ejectment the defendant may be deprived of drying yard, cannot be a reason for the first Appellate Court to assume that it is a part of the rice mill or for that matter as an appurtenant land to the rice mill and consequently it is a building. This reasoning of the first Appellate Court cannot be sustained. This Court is reminded of the scope of interference under Section 100 of the Code of Civil Procedure. In this respect the Apex Court in 1996(7) SCC 389 Kochukkada Aboobacker and others v. Attah Kasim and Others, had occasion to consider the scope of S. 100 of C.P.C. and even in cases where concurrent findings have been rendered, without considering the relevant documents in the proper perspective and the effect of those documents on the rights of the parties, it is well open to the High Court sitting in Second Appeal to reconsider the evidence by drawing inference from the admitted documents. As already set out above, the finding of the first Appellate Court is totally without pleadings as well as without evidence. Therefore, this Court has to interfere with the judgment of the first Appellate Court. The substantial question of law raised at the time of admission and pressed at the hearing of the Second Appeal deserves acceptance. 22. As already set out above, the finding of the first Appellate Court is totally without pleadings as well as without evidence. Therefore, this Court has to interfere with the judgment of the first Appellate Court. The substantial question of law raised at the time of admission and pressed at the hearing of the Second Appeal deserves acceptance. 22. The defendant may be deprived of drying yard but that cannot be a ground to assume that the suit property is a part of the rice mill merely because the defendant has been using the vacant site as drying yard for his leasehold Rice Mill, it will not transform the vacant site as a building nor it could be termed as a building within the meaning of S. 2(2) of the Act. After due consideration, this Court while agreeing with the trial court and disagreeing with the first Appellate Court holds that what has been let out is a vacant site simpliciter, it is not a building as defined in S. 2(2) of the Tamil Nadu Act 18 of 1960, that the suit property is not an integral part of the Rice Mill at any point of time nor it had been let out as such and that the suit for ejectment is maintainable before the Civil Court. 23. On the above findings the judgment of the first Appellate Court is set aside and that of the trial court is restored. The Second Appeal is allowed but without costs.