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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

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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

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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.

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       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

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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.