In the first of these appeals (S. A. No. 1153 of 1960), the first defendant is the appellant and in the other (S. A. No. 1171 of 1961), the plaintiffs, who brought the suit for evicting the first defendant from the land in question. It is common ground that the land originally belonged to Hajee Peer Batcha Sahib. The plaintiffs claim to be settlees under a settlement executed by him on 12th October 1949. The lease in favour of the first defendant was executed by the original owner of the land on 22nd September 1947 for a term of ten years at the rent stipulated in the document. The plaintiffs sought to evict the first defendant after the period of ten years. On behalf of the first defendant, various defences were taken which were, I think rightly repelled by the Courts below. The first defendant questioned the status of the plaintiffs to bring the suit on the ground that under the settlement of the original owner of the land, the plaintiffs had only limited rights. The first defendant also contended that he had a superior right over the settlees on account of a varthamanam letter and a sale deed in his favour executed by Hajee Peer Batcha Sahib. As to the first point, the Courts below were of the view that the interpretation placed by the first defendant on the terms of the settlement was not correct. It seems to me that no exception can be taken to this view. The Courts below thought that the varthamanam letter relied on by the first defendant should be looked upon with suspicion and that so far as the sale deed was concerned, that was executed only after the settlement. Here again the Courts below were not wrong. During the pendency of the second appeal certain decisions of this Court were rendered under the provisions of the Madras Buildings (Lease and Rent Control) Act. The second appeal of the first defendant is mainly rested on a new ground taken on the basis of these decisions.
Though the point has been taken for the first time in the second appeal, inasmuch as it raised no new facts, I granted leave to the first defendant to raise it in this Court. The ground is that although the lease in 1947 in his favour was of a vacant site, inasmuch as it Contemplated putting up buildings by the first defendant on the vacant site, during the period of the lease and actually such buildings were put up, the buildings so put up became part of the vacant site and the vacant site should, therefore, be regarded as part of the buildings and that it followed from this that the lease became a lease of a building within the meaning of the Act. Learned Counsel for the first defendant-appellant in support of this contention relies on Palaniappa Chettiar v. Vairavan Chettiar(1). There a Division Bench of this Court following and applying earlier cases held that though a lease originally was of a vacant site, nevertheless, the lessee, who had put up buildings on it and then got a renewal of the lease, was entitled to a protection under the Madras Buildings (Lease and Rent Control) Act on the ground that the buildings as well as the land became an integral part of each other and that, therefore, the land which was originally leased was part of the buildings constructed on it. Learned Counsel for the plaintiffs-respondents seeks to distinguish this case on the ground that in the instant case, there was no renewal of a lease. But it seems to me that on principle this distinction is without a difference. The principle of Palaniappa Chettiar v. Vairavan Chettiar, as I understand the judgment, is that when a vacant site is leased out for putting up buildings thereon and buildings are actually put up on the land they become part of the land so that the land is also a part of the buildings with the result that the lease should be regarded as one of buildings, notwithstanding the fact that the buildings do not balong to the lessor. This principle, as it seems to me, does not depend on a renewal of a lease, the essence of it being when the buildings are put up, they become the integral part of the land and the land for the purpose of lease can no longer be regarded as a vacant site. The terms of the lease in favour of the first defendant no doubt, state nothing about the lessee's liberty to construct buildings on the site. In the varthamanam letter, however, supposed to have been written by the original owner of the land in January, 1948, it was stated that as he had granted permission to the first defendant to level up the low lying vacant site and construct buildings thereon, he would not ask the first defendant to remove the buildings put up and that should any chance arise for him to sell the site, he would sell the same to the first defendant himself. But the Courts below, as I said, considered that this varthamanam letter should be looked upon with suspicion. All the same, in the lawyer's notice sent by the plaintiffs on 24th October, 1959, it was conceded that the lease was for the purpose of the first defendant putting up a shop and a house on the vacant site and to carry on his business. It is, therefore, clear that although the lease itself did not specifically mention the purpose, it was a lease to enable the first defendant to put up buildings on the site, and to carry on his business. The lease having, therefore clearly contemplated the vacant site let out for being built upon and when such buildings were put up during the currency of the lease, the buildings became part of the land and, therefore, the land became indistinguishable from the buildings. In other words, they were integral parts of each other for the purpose of the lease and the lease should, therefore, be regarded as of buildings as well. Applying the principle of Palaniappa Chettiar v. Vairvaran Chettiar, to this case, I am of the view that the first defendant in respect of his possession of the site is entitled to protection under the provisions of the Madras Buildings (Lease and Rent Control) Act.
It is, however, contended on behalf of the plaintiffs-respondents that contrary to the terms of the lease, the first defendant sublet the vacant site, that he had gone to the extent of denying the title of the plaintiffs and that, therefore the plaintiffs were entitled to evict the first defendant. But these are considerations which the plaintiffs could only urge in eviction proceedings under the provisions of the Madras Buildings (Lease and Rent Control) Act and they do not fall to be decided in this appeal. S. A. 1153 of 1960 is allowed but with no costs in this Court. The suit for possession of the site leased out to the first defendant will stand dismissed.
In the other second appeal of the plaintiffs, the point urged is that the Courts below were wrong in decreeing the suit as one for arrears of rent for the period subsequent to the expiry of the lease period of ten years and that, in any case, for that period a higher compensation should have been granted to the plaintiffs. It is true that when a lessee of immoveable property holds over beyond the period stipulated in the lease, his continued possession would be wrongful. In that sense, the plaintiffs would be entitled to recover damages from the person in wrongful possession and not rent. But in this case, I am not inclined to interfere with the decisions of the Courts below, because in substance, the plaintiffs have been given compensation for the period of possession beyond the lease period, though the compensation has been given not as damages but by way of rent. The rent for that period has been calculated at the same rate as in the rent deed. What is contended is that it is not a proper measure of damages. But I am unable to accept this contention. The parties themselves stipulated rent for the land and there is no reason, in the circumstances of the case, to think that the rent for the land would have appreciated considerably after the expiry of ten years. Thie second appeal is dismissed but with no costs. No leave in both the appeals.
V.C.S
(1) (1963) 1 M.L.J 130=76 L.W 21.