PALS THEATERS Vs. B ABDUL GAFOOR SAHIB

JUDGEMENT

(1.) THE only point that arises for determination in this appeal filed by the defendants (the first defendant being a firm of which the partners are defendants 2 and 3) is whether the suit properties which the appellants took on lease under ex. P-1 on 18-10-1960 are 'buildings' within the meaning of the Madras Buildings (Lease and Rent Control) Act. 1960, (Madras Act 18 of 1960) (hereinafter referred to as the Act ). The suit properties consist of two theatres. One is called Noorjahan talkies situated in Saidapet an the other is called Janata Talkies situated in Pallavaram. These two theatres originally belonged to one Batcha Sahib, who died on 25-8-1960, leaving his widow Amina Bi, son Abdul Gafoor (first plaintiff) and two daughters Noorjahan Begum and Bibi Jan (plaintiffs 4 and 5 ). Bathca Sahib was using the theatres for exhibiting films and after his death his heirs continued to use them likewise. The defendants obtained a lease of the suit properties from the aforesaid heirs of Batcha Sahib on 18-10-1960. The period of lease was five years with option for lessees to obtain a renewal for three years. After the death of amina Bi, disputes arose between the other heirs of Batcha Sahib which led to the institution of C. S. 1 of 1961 on the file of this court. That suit ended in a compromise decree under which the first plaintiff is given Noorjahan Talkies and plaintiffs 4 and 5 have been given Janata Talkies for their shares. In that suit, the present first plaintiff and the husbands of plaintiffs 4 and 5, who are respectively plaintiffs 3 and 2 in the suit, were appointed joint receivers. Alleging that the period of lease had expired and that in spite of notice demanding possession, the defendants were continuing in possession and were refusing to surrender possession and were refusing to surrender possession, the plaintiffs laid the suit for possession and other reliefs. The defendants contended inter alia that the lease was in respect of a building within the meaning of the Act and that even though the period of lease and expired, they were not liable to be evicted. That was the substantial defence which the trial court was called upon to decide. The trial Judge found that the transaction between the parties was a lease in respect of going concerns of the cinema theatres and was not in respect of buildings and that, as such, the plaintiffs were entitled to a decree for possession. In that view, the trial judge granted a decree for possession with a further direction for determination of the quantum of damages for use and occupation from the date of the termination of the lease in a separate application. Hence this appeal.

(2.) MR. Venkatramani, appearing for the appellants, contended that the view of the trial Judge that the lease was not in respect of properties which have been described as premises with machineries, fittings, fixtures, etc. and that, as such, the lease is in respect of buildings within the meaning of the Act. His further argument was that the reference in the lease deed to projectors, amplifiers and other cinema equipments does not make the lease any the less a lease of the buildings, that those items, though specifically described in the lease deed, are mere fittings and fixtures which form part of the buildings and that, therefore, the lease was only in respect of buildings. This argument did not find favour with the trial Judge, who, on a consideration of the terms of the lease deed, held that the lease was in respect of going concerns. In coming to that conclusion, the trial judge relied on the decision of a Bench of this Court in Raja Chetty v. Jagannathadas in which it was held that a lease of a talkie house with everything that is be a lease in respect of a building. Mr. Venkatramani, appearing for the appellants, contended that the said decision is not applicable to the facts of this case and that decision was given with reference to the definition of 'building' occurring in the Madras Buildings (Lease and Rent control) Act 1946 (Madras Act 15 of 1946) and that different considerations arise in examining the nature of the lease in the instant case, which, according to the counsel, should be determined with reference to the relevant provisions of the present Act.

(3.) BEFORE adverting to the question whether the decision in , applies to the facts of this case, it is necessary to refer to the relevant provisions of the lease deed, Ex. P. 1, dated 18-10-1960. The lessors are declared as the absolute owners of "the entire property known as Noorjahan talkies with a cinema theatre, superstructure with machineries and fittings and fixtures, more particularly described as item I in the schedule hereunder. . . . . ". With regard to the other theatre, the lease deed says that the lessors are the absolute owners of "the cinema theatre superstructure thereon known as Janatha talkies together with the machineries fittings and fixtures more particularly described as item 2 in the schedule hereunder. " "the lease deed states that the lessors had been carrying on the business of cinematograph exhibition under the names of Noorjahan and janatha talkies in items 1 and 2 respectively. It is further declared that the lessors had agreed to grant lease of the suit properties to the lessees "for the purpose of the lessees carrying on cinematograph exhibition business therein declaring and assuring that the said properties are free from any encumbrance. . . . . " In the operative portion, it is declared that the lessors leased unto the lessees the two properties, namely-