The Bombay High Court partly allowed an appeal challenging the judgment and order passed by the First Appellate Court vide which the Court had dismissed the appeal by upholding the findings recorded by the Trial Court.
The Court observed that the building or structure and land are both normally the subject matter of the lease, and even if the building or superstructure is destroyed, that would not determine the lease when the land, which is the site of the building, continues to exist.
Brief Facts:
The appellants are the original plaintiffs, and the respondents are the original defendants in a Regular Civil Suit. The appellants instituted the suit for injunction to restrain the respondents from interfering with the suit premises and/or dispossessing the appellants from the suit premises or blocking their access to the suit premises, or causing loss or damage to the suit premises. The appellants had claimed in the suit that they were the tenants of the suit premises, of which the respondents were the landlords. The appellants amended the suit because it was their case that during the pendency of the suit, the suit premises were destroyed due to acts attributable to the respondents. Mr. Usgaonkar explained that the suit premises were on the ground floor, and the respondents/landlords occupied the first-floor premises. However, the respondents/landlords demolished/ damaged the first-floor premises, as a result of which the suit premises on the ground floor were exposed to the elements of nature. The suit premises ultimately collapsed, so the appellants had to source alternate premises.
By way of amendment, the appellants sought a permanent injunction restraining the respondents from developing the property for any purpose other than to reconstruct the suit premises or to do any additional construction permissible therein. The appellants also sought a mandatory injunction to direct the respondents to reconstruct the suit premises and restore the possession of the reconstructed premises to the appellants. The Trial Court, by Judgment and Decree dated 31.07.2009, dismissed the suit with costs. The Trial Court held that once the tenanted premises are destroyed, the right to tenancy stands extinguished. The appellants appealed which the First Appellate Court dismissed by upholding the findings recorded by the Trial Court. Hence, the present appeal.
Contentions of the Appellant:
The learned counsel for the Appellant submitted that the impugned judgments and decrees made by the Trial Court and the First Appellate Court were almost entirely based upon the decision of the Hon'ble Supreme Court in Vannattankady Ibrayi v/s. Kunhabdulla Hajee [(2001) 1 SCC 564]. He pointed out that a larger Bench of the Hon'ble Supreme Court in the case of Shaha Ratansi Khimji and Sons Vs Kumbhar Sons Hotel Private Limited and others [(2014) 14 SCC 1] has overruled Vannattankandy Ibrayi and held that the right of tenancy does not extinguish with the destruction of the tenanted premises. He submitted that on this short ground, the impugned judgments and decrees must be reversed and the suit instituted by the appellants, decreed.
Observations of the Court:
The Court observed that where there was nothing to indicate that the lease was only in respect of the structure or premises or where the land underlying the structure was expressly excluded, the tenancy rights would survive the destruction of the tenanted premises. It is apparent that the mainstay of the impugned judgments and decrees made by the Trial Court and the First Appellate Court no longer hold good. The Court remarked that without the site, there cannot be a structure and the site becomes an integral part of the building. Without a site, the superstructure of the building on the land cannot normally exist. Thus, when there is a lease of a building, such a lease would normally take in the site unless the lease specifically excluded the underlying land. Hence, the building or structure and land are both normally the subject matter of the lease, and even if the building or superstructure is destroyed, that would not determine the lease when the land, which is the site of the building, continues to exist.
The Court noted that in the present case, nothing is on record to even remotely indicate that the land beneath the tenanted premises was excluded from the lease.
The decision of the Court:
The Bombay High Court, partly allowing the appeal, held that the impugned judgments and decrees are set aside.
Case Title: Smt. Filomena Mudgal & Ors. vs Smt. Maria Alina Augustas Rodrigues & Ors.
Coram: Hon’ble Justice M. S. Sonak
Case no.: SECOND APPEAL NO.101/201
Advocate for the Appellant: Mr. Shukr Usgaonka
Advocate for the Respondent: None
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