RAJESHWARI DEVI Vs. S M RABI

JUDGEMENT

(1.) AN interesting question of law, viz., whether a vacant site with only an asbestos sheet roofed shed in the middle of the premises supported by wooden poles without any enclosure and open on all sides constitutes a building as defined under section 2 (2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, arises for determination in this civil revision petition. The civil revision petitioner is the landlord in respect of the premises bearing door No. 116, T. P. K. Road, Ward No. 19, Madurai town, measuring an extent of 33ft. north-south and 148 ft. east-west barring an extent of 17 ft. north-south and 70 ft. east-west in the north western corner was leased to the third party. It is the admitted case of the landlord as well as the tenant that what was leased out is the vacant site with only one asbestos sheet roofing in the middle supported by wooden poles without any enclosure with open sides. The agreed monthly rent is Rs. 400. The landlord filed R.C.O.P. No. 25 of 1978 on the file of the Court of the Rent Controller, Madurai, for eviction of the tenant on the ground that the tenant had committed wilful default in payment of rent for the period of four months prior to the filing of the petition and also on the grounds that the tenant sub-let the premises without the written consent of the landlord to the respondents 2 to 5 in the Rent Control petition.

(2.) THE case of the tenant before the Rent Controller as stated in the counter statement is that only a vacant site with asbestos roof resting on four poles was leased out to him and that he had made several constructions valued at Rs. 1,14,000 with the consent of the landlord and he denied that he had committed wilful default in payment of rent. He also denied that the respondents 2 to 5 in the Rent Control Petition are the workers under him and they are falsely impleaded by the landlord with ulterior motive. THE learned Rent Controller after a fullfledged enquiry came to the conclusion that the tenant had committed wilful default in payment of rent and had sub-let the premises and ordered the eviction of the tenant from the petition-mentioned premises. As against the order of the Rent Controller the tenant filed an appeal in C.M.A No. 188 of 1978 on the file of the Appellate Authority and the Subordinate Judge, Madurai. Before the Appellate Authority, the tenant contended that what was leased out to him, viz, a vacant site with only one asbestos sheet roofing shed in the middle supported by wooden poles without any enclosure with open site, cannot be said to he a building as defined' under section 2(2) of the Tamil Nadu .Buildings (Lease and Rent Control) Act, and, therefore, the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act will not apply. THE Appellate Authority treated this question as a preliminary issue and after going through the evidence and the authorities cited before him came to the conclusion that the demised premises cannot be said to be a building as defined under section 2(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, and that the provisions of the said Act will not apply to the lease in question. Tn view of his finding that what was leased out to the tenant is not a building, the learned Appellate Authority allowed the appeal of the tenant even without going into the question of wilful default and subletting. As against the orders of the Appellate Authority, the landlord' has filed the above civil revision.

(3.) FOR the first time in the course of the appeal in C.M.A. No. 188 of 1978 on the file of the Court of the appellate authority and the Principal Subordinate Judge, Madurai, the tenant raised the contention that the premises leased out to him is not a building as defined under section 2(2) of the above said Act. The case of the landlord is that this plea is made as an after-thought. But the appellate authority purporting to rely upon the cases cited before it, agreed with the contention of the tenant and allowed the appeal. The appellate authority came to the conclusion that the provisions of the abovesaid Act are not applicable to the lease in question mainly relying upon the case reported in Thangakani Ammal and others v. A.K.A. Kaja Mahideen Sahib and another1 where Nainar Sundaram, J., held that a property consisting of a wall with certain windows and a door without a roofing is not a building as defined under the abovesaid Act. In that case, after taking the premises on lease the tenants made suitable alterations covering the structures with the roof and made the property fit for occupation for non-residential purposes, for which the tenants took the property on lease. It is also seen that at the time of lease the structures as they stood could not serve any useful purpose either residential or non-residential. The learned Judge also observed that the landlord could not point out any material on record which would show that the structures as they stood at the time of lease were taken by the tenants to be utilised straightway for non-residential purposes. The learned Judge also observed that the intention of the parties could never be that the demised structure was a building- within! the meaning of the abovesaid Act. We have to consider whether the principle laid down in the above case can be applied to the facts of this case. Nainar Sundaram, J., in the course of the judgment in the case cited above observed as follows:-