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

2. This case reached the Supreme Court after drifting through a long stream of vicissitudes. Genesis of this litigation is traced to a lease created during pre-independence days when one of the two buildings situated in the disputed property was rented out by its owner, (a bureaucrat then stationed at Delhi) to one Somappa Naik. On 28.7.1951 a new lease deed was executed by the said Somappa Naik in respect of the disputed property having an area of 1.60 acres containing the same pucca residential building thereon, for a monthly rent of Rs. 9/-. When the lessee continued under the lease he assigned his rights in favour of the present respondent (who is a practicing advocate of Kassargod District Court) on 17.8.1968.3. When the Kerala Land Reforms Act, 1963 (for short "the Act") came into force the respondent filed an application before the Land Tribunal, Kassargod in 1974 as per section 72B of the Act for assigning to him the right, title and interest of the landowner, claiming that he is a cultivating tenant of the disputed land. Despite resistance made by the appellant (landowner) the said application was allowed by the Land Tribunal but the Appellate Authority remitted the case back to the Land Tribunal for fresh consideration and disposal. The Land Tribunal again allowed the application and when appellant appealed, the Appellate Authority confirmed the order.4. Appellant moved the High Court in revision under Section 103 of the Act. A Single Judge referred the case to a Division Bench as he felt that the legal question involved was to be determined by a larger Bench. By the impugned order a Division Bench of the High Court concurred with the conclusion made by the Land Tribunal and the Appellate Authority. Hence this appeal by special leave.

Reasoning: 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.