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2002 Supreme(Mad) 911
High Court of Judicature at Madras
THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN
John Victor - Appellant
Versus
Pattukottai Arulmigu Viswanathaswamy Temple & Another - Respondents
SECOND APPEAL NO.1736 OF 1991
Decided On : 05 September 2002
The central legal point established in the judgment is the prohibition on a lessee from erecting permanent structures on leased property without the lessor's consent, as per Section 108(p) of the Transfer of Property Act.
Headnote:
Injunction - Property Dispute - Transfer of Property Act - Section 108(p) - Section 100 CPC - AIR 1962 SC 413, AIR 1971 SC 1878, AIR 1954 MADRAS 412 - The court discussed the validity of a lease deed, the rights and duties of the lessee, and the prohibition on erecting permanent structures without lessor's consent under Section 108(p) of the Transfer of Property Act. The court also considered the applicability of Section 100 of the Civil Procedure Code and cited relevant case laws to support its decision.
Fact of the Case:
The appellant attempted to put up a permanent superstructure on a property without obtaining permission from the first respondent, leading to a property dispute and a suit for injunction.
Finding of the Court:
The court found that the appellant's attempt to put up a permanent superstructure without the lessor's consent was in violation of Section 108(p) of the Transfer of Property Act, and upheld the decision of the Appellate Court to grant injunction.
Issues: Validity of lease deed, rights and duties of lessee, prohibition on erecting permanent structures without lessor's consent, applicability of Section 100 CPC.
Ratio Decidendi: The court relied on Section 108(p) of the Transfer of Property Act to prohibit the appellant from erecting a permanent superstructure without the lessor's consent. It also considered relevant case laws to support its decision.
Final Decision: The second appeal was dismissed, upholding the decision to grant injunction against the appellant. No costs were awarded.
The suit property in respect of which a decree for injunction is prayed for belongs to the respondent-Devasthanam. The site which is the subject matter belongs to the Devasthanam. The superstructure had been purchased by the second respondent herein, who has been residing there from 1.7.1993. The second respondent has also been paying the rent for the land to the first respondent who is the plaintiff. As per the conditions of lease, no permanent superstructure can be put up and therefore, neither the second respondent nor his transferees can do so. Since the appellant asserted certain rights claiming from the second respondent and attempted to put up a permanent superstructure without obtaining permission from the first respondent, the suit was filed.
2. The second respondent/first defendant remained ex parte.
3. The appellant while admitting that the site belongs to the first respondent claimed that there can be no condition against putting up a permanent superstructure. According to the appellant, no new superstructure is being put up and only what is existing is being restored and for this, due permission has also been obtained from the Municipality. The first respondent by receiving the rent from the appellant had also acknowledged the right, title and interest of the appellant in the suit property. The Trial Court declined to grant injunction. The Appellate Court interfered and gave injunction and therefore, the second appeal has been filed.
4. The following substantial questions of law were framed by this court at the time of admission:
"1. Whether the conclusion of the lower appellate Court that Ex-A1 is true and valid, is correct in law?
2. Even if Ex-A1 is true, whether the terms found therein would bind the appellant, when it has been executed by the vendor of the appellant in favour of the 1st respondent Devasthanam after the sale in his favour under Ex-B1?
3. Whether on the facts of the case, the view of the Lower Appellate Court that only when the plaintiff Devasthanam accepts the transfer of the superstructures, the purchaser can claim to be a tenant of the site, is correct in law?"
5. Ex.A.1 is a lease deed dated 25.06.1984. The second respondent is the lessee. The lease deed contains the following recital:
The suit was filed on 4.7.1984. The case of the appellant is that this condition does not bind him. It is a unilateral imposition of restriction. It was also submitted that when a lease is a permanent lease, the presumption is that the lease is for putting up a superstructure. According to Mr. Yamunan, who appeared for the appellant there was definitely a privity of estate between the appellant and the first respondent, if not privity of contract.
6. Reliance was placed on
(1) SIVAYOGESWARA COTTON PRESS V. PANOHAKSHARAPPA (AIR 1962 SUPREME COURT 413),
(2) CHAPSIBHAI V. PURUSHOTTAM (AIR 1971 SUPREME COURT 1878) AND
(3) IN RE MUTHYALA LAKSHMINARAYANA (AIR 1954 MADRAS 412), apart from certain passages from Mulla's The Transfer of Property Act, (Ninth Edition).
7. In AIR 1954 MADRAS 412 (cited supra), it was held that permanent tenancy may be inferred when the tenancy is made for building purposes. But the mere fact that the lease of land is made for dwelling purposes does not make it permanent. This cannot help the appellant since the appellant wants to establish the reverse which is where there is a permanent lease, it should be presumed that the lease is for building purposes.
8. In AIR 1971 SC 1878 (cited supra), it was held that where the agreement of lease is for constructing a building and it provides for certain definite period and for continuance of possession on paying agreed rent, the lease is for an indefinite period and hence for lifetime. There Ex-B4 was the document and the Supreme Court held that looking at the document as a whole, lease is rent out for residential structures whereas in this case, Ex-B1, the crucial document is not for building a superstructure. It merely says that the lease i
