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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.