ORIENT DISTRIBUTORS Vs. BANK OF INDIA LIMITED

JUDGEMENT

(1.) This appeal by special leave directed against the judgment and order dated September 10, 1968 of the Madras High Court in Second Appeal No. 576 of 1966, raised a short question as to whether the appellants are entitled to insist upon the use of the disputed passage in the building (bearing No. 26, Errabalu Chetty Street) opening into Erabalu Chetty Street as an integral part of their lease in respect of the first floor portion of the building.

(2.) The aforesaid question arises in these circumstances. The entire premises (lecots Buildings) situate at 26, Errabalu Chetty Street - an important commercial thoroughfare and main bazar for hardware and machinery in Madras - originally belonged to the Chrome Leather Company Pvt. Ltd. (the 2nd respondent). On June 26, 1961 the second respondent sold the front portion of the premises inclusive of its entire frontage on Errabalu Chetty Street to Bank of India Ltd. (the 1st respondent) for a handsome price. The appellants a partnership firm carrying on business in various types of electrical machinery, have since April 1, 1959, rented a godown on the ground floor and a portion of the premises on the first floor of the building on the back side from the second respondent. The access to the godown was always from Vanniar Street, a side lane and from the godown the appellants could come up to the staircase leading to their first floor premises. It, however, appears that by way of direct access to their tenement on the first floor the appellants were using a walled passage (10 ft. x 65 ft.) on the ground floor opening into Errabalu Chetty Street (hereinafter referred to as the disputed passage). Admittedly, this disputed passage formed part of that front portion of the building which was purchased by the first respondent from the second respondent and the sale deed in favour of the first respondent not only did not make reservation of any kind in respect of the said passage but expressly permitted the first respondent to raise structures in the portion of the property conveyed without let or hindrance by the second respondent. The first respondent decided to demolish the portion of the building purchased by them and construct a new one at an estimated cost of over 25 lakhs of rupees this proposal involved the demolition and closure of the main entrance of the premises from Errabalu Chetty Street which gave access to the appellants and other tenants to their respective tenements on the rear side. The appellants objected to the closure of the main entrance and filed a suit for permanent injunction restraining the respondents from raising any wall or putting up other construction or causing any obstruction to their use and enjoyment of the disputed passage giving access to their tenement on the first floor. This relief of injunction was sought on two grounds:(a) that the use of the main entrance abutting Errabalu Chetty Street and the disputed passage giving access to their enement on the first floor formed part of their demise and also constituted an essential element of contract of tenancy and (b) that the use and enjoyment of this passage was an amenity under 'the Madras Buildings (Lease and Rent Control) Act, 1960 enforceable against the second respondent or their successors in interest. The suit was resisted by the respondents on the ground that the main gate and the disputed passage did not form part of the demise, that the appellants had no right to insist upon the retention of the original passage opening into Errabalu Chetty Street and that they could only insist upon having an alternative access and the second respondent had since after the filing of the suit provided such alternative access from Vannier Street to all their tenants including the appellants. The claim that the disputed passage was an amenity under the Madras Buildings (Lease and Rent Control) Act, 1960 was denied. The trial court dismissed the suit. It held that the disputed passage was not the only means of access leading to the appellant's tenement on the first floor, and that it was neither a part of the demise nor constituted an essential element of the contract of tenancy. It found on evidence that besides the disputed passage the appellants were using the entrance from Vanniar Street through their godown and further that during the tendency of the suit yet another passage had been provided for by the second respondents to all their tenants including the appellants. The claim to the disputed passage as an amenity under the Madras Buildings (Lease and Rent Control) Act was negatived. Against the dismissal of their suit the appellants preferred an appeal and the learned Additional Judge who heard the same decreed the appellant's suit after coming to the conclusion that the main gate and the disputed passage formed part of the demise and also constituted an essential element of the - contract of tenancy. In the second appeal that was preferred by the Bank of India Ltd. the High Court reversed the finding of the lower Appellate court and restored the decree of the trial court. In other words, the appellants' suit was dismissed.

(3.) Counsel for the appellants strenuously urged before us that the High Court in second appeal ought not to have interfered with a finding of fact that had been recorded by the lower Appellate court on appreciation of evidence. He pointed out that after all the plea of the appellants was that the disputed passage formed part of the demise or tenancy obtained by them from the second respondents in respect of the tenement on the first floor of the building and on the material on record the first Appellate court which was the final court on facts had come to the conclusion that the disputed passage was the subject matter of the appellants' tenancy, a finding which should have been accepted as correct. Alternatively he urged that the High Court should have held that the user of the disputed passage was by way of an easement (of right of way) granted by the second respondents to all their tenants including the appellants and as such was enforceable against their successors interest by an injunction. It is not possible to accept either of his contentions for the reasons which we shall presently indicate.