BANK OF INDIA Vs. SARATHY BROTHERS

JUDGEMENT

(1.) THESE are connected Second appeals by the second defendant. Bank of India ltd. , from a common judgment of the First Additional Judge, City Civil Court, madras, who disagreed with the trial Court and decreed the suits as prayed for. They were instituted each by a tenant of portions of 'lecotts Buildings', 26 errabalu Chetti St. G. T. Madras, for an injunction restraining the defendants from causing any obstruction to the use and enjoyment of the passage leading to errabalu Chetty Street from the portion in the occupation of each of the plaintiffs. Two of the plaintiffs became tenants prior to 26th June 1961 and the other after that date. The entire premises originally belonged to the Chrome Leather Co. (P.)Ltd. (first defendant ). On 26th June 1961, the first defendant sold the front portion of the premises inclusive of its entire frontage on Errabalu Chetti Street for a handsome price. The second defendant decided to demolish portions of the premises purchased by them and construct anew at an estimated cost of some lakhs of rupees. The proposal involved demolition and closure of the main entrance of the premises from Errabalu Chetti Street which not only gave access to the portion of the premises purchased by the second defendant, but also to the portions under the tenancy of each of the plaintiffs. The plaintiff in O S. 1921 of 1962 occupied the ground floor. The plaintiff in O. S. 1941 of 1963 was a tenant of a portion of the ground floor and of the first floor and the plaintiff in the last suit was in occupation of a portion of the first floor. The Bale deed in favour of the second defendant made no reservation in respect of the part conveyed thereunder. The plaintiffs objected to the closure of the main entrance and obstruction of access through it to the portions in their respective occupation. They took up the stand that the use of the main gate abutting Errabalu Chetti Street and the passage giving access to the tenanted portion formed part of the demise under the tenancies and also constituted an essential element of the contract of tenancy between them because of the commercial importance of the locality, and, therefore, of the access through errabalu Chetti Street. On that basis they sought for the relief of injunction.

(2.) THE suits were resisted on the ground that the main gate and the passage did not form part of the demise and the plaintiffs had no right to Insist upon the retention of the original passage opening into Errabalu Chetti street and all that they could insist was to an alternative access. The defendants maintained that the only right of the tenants lay in securing a convenient access to the portions of the premises in their occupation, and that the first defendant had provided an alternative entrance from Vanniar street which secured to the plaintiffs continued enjoyment of the tenancy.

(3.) THE trial Court dismissed the suits. But the lower appellate Court has found, though the observations in different parts of the judgment in relation to this matter are not uniform, that the main gate and passage formed part of the demise and this being the case, the plaintiffs were entitled to protection of their quiet enjoyment thereof by a restrictive injunction. At one place in its judgment the lower appellate Court said that the disputed entrance should be regarded as part of the demised premises; later it observed that it was satisfied that the use of the disputed passage was part of the demised premises subject only to the right of other tenants or occupants of the premises using the same passage for ingress and egress from or to Errabalu Chetti Street. There was a further observation that the disputed passage was intended to be a passage for the enjoyment of the tenancy by the plaintiffs. But we are prepared to take in that in the opinion of the lower appellate Court the disputed passage was part of the tenancy granted to the plaintiffs, subject to the right of the other tenants or occupants of the premises to use the same. If that finding is maintained, it would follow that the plaintiffs would be entitled to the injunction they asked for. Allports v. The Securities Co. Ltd, (1895) 72 LT 533 does support that view.