Case: K. Bhagirathi G. Shenoy  Vs. K.P. Ballakuraya

agreed to by the lessor the additional potion is taken possession of by the lessee, and this Chalageni Chit is executed." 15. In the next paragraph of the lease deed it is stated that the property described thereunder in which the house wherein the lessee resides now, is included, together with the bath-room (which was constructed by the lessor) and the trees on the property, have been demised by the lessor to the lessee for a period starting from 1.7.1951 and ending with 30.6.1952. The other stipulations in the lease deed are the following : (1) The lessee is liable to pay the monthly rent of Rs. 9/- by the 10th day of every succeeding month. (2) If the rent falls in arrears it shall bear interest at the rate of 5 per cent per annum from the date of default. (3) All the improvements standing on the landed area would belong to the lessor. (4) The lessee has no right (a) to effect any kinds of improvement on the land, (b) to make any repairs to the building without the written consent of the lessor or to make any claim for the cost incurred for such repairs, (c) to cut any of the trees without any proper reasons, (d) to sub-lease or to alienate to any other person. 16. The description of the property is as follows: Â?37Â?3 Å The western portion of the property lying in survey R.S. No. 112/1, having an extent of 1.60 acres and the tiled residential building (in which lessee is residing) together with a bathroom (in which lessee is residing) together with a bathroom, 33 coconut trees (among which 21 are yielding), 7 jack trees, 7 mango trees, 50 cashew trees, 2 nellikai trees and 2 casuraina trees. It is made clear that the other pucca building situated on the land is not included in the lease. 17. Learned counsel contended that factors such as the nomenclature as "Chalageni" and that the lease is expansion of the original lease, are positive indications in favour of the lease being mainly one of land. Nomenclature does not matter in this case because even the previous deed of 1947 also contained the same appellation. Nor can the fact that it is expansion of the first lease be of any decisive impact, for that creature can be highlighted by both sides as a supporting factor to their respective stand. 18. One standard by which this document can be tested by discerning the predominant factor therein - building or land - can be this : Was it one lease for the building and the landed portion was added as appendage or incidental thereto ? Or was it one document for two separate demises i.e. one for building and the other for the land ? It is difficult to make out a third possibility that it would have been only one lease where the predominant factor was land, the building being of subsidiary importance. 19. Learned counsel for the appellant first pointed out the situation at which both parties were place then. The lessor having such a pucca residential building with a sprawling compound attached to it had to remain in New Delhi as he was working as Secretary to the Government of India. The lessee who was a public servant working at Kasarcodu needed a house to live in at that place. Such facts, according to the learned counsel, would clearly show that it was the building which was of prime consideration for the lease. The attached compound could not have been left out, for practical reasons, uncared by any one and hence it became necessary to include that compound area also as part of the lease. The said contention cannot be sidelined as without force.20. Learned counsel then highlighted the factors such as provisions for payment of rent every month and liability to pay interest from the date of default and contended that they are clear indications in favour of the lease being that of building with the land adjoining thereto. The very fact that the land portion is described as "adjoining to the building" is proof positive of its object, according to the learned counsel. He also contended that if the land was intended to be enjoyed, de hors the building, no provision was necessary to prohibit the lessee from effecting any improvement on the land. It is only the fruits of the trees which the lessee was permitted to take.21. The fact that another building situated within the boundaries has been remained by the lessor is a pointer indicating that the land was only to be used as adjunct to the residential building. Over and above all those, the interdict against making any improvement on the land is a stirring creature which is in conflict with the idea of land becoming the dominant factor of the lease. No lease of land can possibly be conceived without the lessee being given freedom to use the land to generate profit therefrom. Here the lease imposed a complete ban on the lessee to use the land for such purpose. All that he is permitted thereon is to take usufructs of the trees already standing on the land.22. A reading of the lease deed from the above angles indicates that there was no idea for the lessor to create a right to enjoy the land independent of the building but only to take usufruct of the trees standing thereon while residing in the building. The area of the land alone cannot be a determinative factor. It was common practice could well have been followed by the parties in the lease deed which is subject matter of the case.23. For the aforesaid reasons we take the view that the lease was of building with the landed area meant as appurtenant thereto. Its corollary is that the leases exempted from Chapter II of the Act and the consequence is that respondent cannot claim any right under Section 72B of the Act.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]21. The fact that another building situated within the boundaries has been remained by the lessor is a pointer indicating that the land was only to be used as adjunct to the residential building. Over and above all those, the interdict against making any improvement on the land is a stirring creature which is in conflict with the idea of land becoming the dominant factor of the lease. No lease of land can possibly be conceived without the lessee being given freedom to use the land to generate profit therefrom. Here the lease imposed a complete ban on the lessee to use the land for such purpose. All that he is permitted thereon is to take usufructs of the trees already standing on the land.22. A reading of the lease deed from the above angles indicates that there was no idea for the lessor to create a right to enjoy the land independent of the building but only to take usufruct of the trees standing thereon while residing in the building. The area of the land alone cannot be a determinative factor. It was common practice could well have been followed by the parties in the lease deed which is subject matter of the case.23. For the aforesaid reasons we take the view that the lease was of building with the landed area meant as appurtenant thereto. Its corollary is that the leases exempted from Chapter II of the Act and the consequence is that respondent cannot claim any right under Section 72B of the Act.