1977 PLP 488 (SCMR)

In these circumstances on the 8th of May 1969, the appellant brought a suit against the respondents in the civil Court at Lyallpur. He asserted that the plot in dispute was orally let out to him in perpetuity for his spare part business on a monthly rental of Re. 50 only and that ho had already invested Re. 9,0110 in raising the construction at the site for the purpose of his business. However, the respondent has wrongfully demanded the rent at the enhanced rate of Rs. 150 per mensem for the premises against the terms and conditions of the tenancy orally settled between them. In this manner he was reluctantly made to pay Rs. 2,250 towards the arrears of rent up to June 1969 at the excessive rate of Rs. 150 per mensem. The plaintiff submitted that the prevailing rent charged by the respondent for ether premises similarly situated in the locality was between Re. 35 to Rs. 60 per mensem and that in any case the fair rent of the premises in dispute was not more than Rs. 50 per mensem. He, therefore, challenged the validity of the notice dated 3rd of March 1969 served on him for his ejectment as Waltz fide, in contravention of the stipulations of the oral lease granted to him in perpetuity and the provisions of the Transfer of Property Act and prayed that the defendants‑respondents may be restrained from recovering the rental of the premises in dispute from him at the enhanced rate of Rs. 150 P.m. and also to desist from interfering with his peaceful possession of the premises. The defendants‑respondents in their joint written statement contested the suit and denied that the plot in dispute was let out to the plaintiff orally. According to them the premises was granted on lease to the plaintiff at Rs. 150 per mensem as the rent for 11 months only, on the term; and conditions contained in the lease deed dated 16‑3‑1963 executed between the parties. It was admitted that by un0e‑‑hand means adopted by the plaintiff he had since deposited the arrears of rent up to June 1969 at the rate of Rs. 150 per mensem and that the rent thus charged was not at all excessive. They maintained that the impugned notice served on the plaintiff on the expiry of his lease was intro vires and legal. From the lease deed dated 16‑3‑1968 (Exh. D. 1) and the other evidence on the record the trial Court had no difficulty in holding that the plot in dispute was given on lease by the Trust to the plaintiff‑appellant at Rs. 150 per mensem as the agreed rent for a term of 11 months only. The impugned notice dated 3rd of March 1969 was admittedly served on the plaintiff at the expiry of period of the lease and was intro vines and legal. In the opinion of the Court the provisions of the Urban Rent Restriction Ordinance were not applicable to the proceedings initiated by the defendant (vide Notification No. Judicial 1‑17(7)‑59 dated 27‑8‑1967). The Court, therefore, dismissed the suit of the plaintiff against the defendants with costs. These findings were upheld on appeal of the plaintiff which was rejected by the Additional District Judge, Lyallpur on the 12th of February 1970. The plaintiff then went up in Regular Second Appeal against the decree. In the High Court for the first time an objection was raised to the effect that at any rate only the vacant plot in dispute was vested in the Trust and that the building raised on it by the plaintiff at his own cost belonged to him and not the Trust. Therefore, as such section 83(2‑A) of the Municipal Administration Act X of 1960 has no application to the facts and circumstances of the case and consequently the plaintiff was not liable to ejectment under the impugned notice issued under the section read with the provisions contained in section 49 of the Punjab Town Improvements Act, 1922. Beat in this connection the High Court observed that title to the building goes with the title to the land underneath and that it was not possible to conceive of the opposing titles in respect of the two. At any rate the plaintiff ‑appellant could remove the building material or else demand compensation for it. The High Court therefore, repelled the objection and dismissed his appeal in limine. On 13‑4‑1970, this Court granted the leave to appeal to further examine the contention that the "building" in dispute was not the property of the Municipality and therefore, the respondent was not entitled to evict him in pursuance to the impugned notice issued under section 82(2‑A) of the Municipal Administration Ordinance X of 1960. We have heard the learned counsel for the appellant in this connection. The proceedings were taken ex parte against the respondents who failed to appear at the hearing. According to the concurrent findings by the two Courts below the tenancy between the parties was not oral but in writing. It was proved beyond any shadow of doubt that the plaintiff had duly executed the lease deed (Exh. D. 1) in respect of the plot in dispute in favour of the Improvement Trust for a period of 11 months expiring on the 9th of February 1968, at Re. 150 per mensem as the rent. It is expressly stipulated under clause 3(ix) of the lease‑deed that the lessee shall at the end or sooner termination of the lease, leave the land and surrender it peaceably to the, Trust and If so required by the Chairman of the Trust to pull down and remove any structure erected by him together with any materials lying on the land within one month of the termination of the demise, all buildings and materials not so removed shall become the absolute property of the Trust. In this connection it is further laid down in clause 4(iii) thereof that on the termination of the lease, either on expiry of the term provided therein or for any other reason, the Trust shall not be bound to pays any sum whatsoever by way of price, compensation or damage to the lessee in respect of any improvements made on the land. From a combined reading of these two clauses In the lease deed it appears that ever since with the termination on this lease by efflux of time the property in the building has vested in the Trust absolutely without any payment as compensation to the plaintiff: appellant for the improvements made on the land. In this connection the common law of England is based on the maxim quicquid plantatur solo, solo cedit (whatever is fixer to the soil becomes part of it). In the leading case of Rameden v. Dyson ((1865) 49 H R 543), it was, Inter alts, observed by Loard Cranworth, L. C, that: "For if a stranger builds on my land, knowing it to be mine, there is no principle of equity which would prevent my claiming the land, with the benefit of all the expenditure made on it. There would be nothing in my conduct, active or passive making it inequitable in me to assert my legal rights. It follows as a corollary from those or perhaps it would be more accurate to say it forms part of them, that If my tenant builds on land which he holds under me, he does not thereby, in the absence of special circumstances, acquire any right to prevent me from taking possession of the lands and buildings when the tenancy has determined. He knew the extent of his interest, and it was his folly to expend money upon a title which he knew would or might soon come to an end." In this connection before the Transfer of Property Act, 1882 was enacted, in the Full Bench case of Thakoor Chunder Poramanic v. Ramdhone Bhut tachargee (6 Suth. W R 228) the Calcutta High Court observed: -- "We think that it should be laid down as a general rule that, if he who makes the improvement is not a mere trespasser, but is in possession under any bona fide title or claim of title, he is entitled either to remove the materials restoring the land to the state in which it was before the improvement was made, or to obtain compensation for the value of the building if it is allowed to remain for the benefit of the owner of the soil, the option of taking the building, or allowing the removal of the material, remaining with the owner of the land in those cases in which the building is not taken down by the builder during the continuance of any estate he may possess." But afterwards in Narayan Das Khettry v. Jailndra Nath Boy Chowdhry and others (A I R 1927 P C 135) their lordships of tile Privy Coucsel observed that the maxim which is found in English Law, viz. quicquid plantatur solo solo cedit has at the most only a limited application in India. There is nothing in the laws or customs of India, to show any traces of the existence of any absolute rule of Law that whatever is affixed or built on the soil becomes a part of it and is subjected to the same rights of property as the soil itself. In this connection section 108 of the Transfer of Property Act regulates the rights and liabilities of the lessors and lessees against one and another. In particular section 108(h) lays down that "in the absence of a contract" or local usage to the contrary; the lessee may, even after the determination of the lease remove at any sine while he ii in possession of the property leased but not afterwards all thing3 which he has attached to the earth: provided he leaves the property in the State in which he received it. Similarly according to section 108(p) "in the absence of a contract" or local usage to the contrary, the lessee must not without the lessor's consent, erect on the property any permanent structure, except for agricultural purposes. Under clause (q) of this section on the determination of the lease, the lessee is bound to put the lessor into possession of the property. All these provisions in section 108 of the Transfer of Property Act are applicable only in the absence of a contract or local usage to the contrary. Any express covenant in the lease‑deed has the effect of overriding a covenant to the contrary implied under this section. In this view of the matter in the instant case the stipulation contained in lease‑deed (Exh. D. 1) discussed above must prevail and shall have effect, irrespective of section 108 of the Transfer of Property Act. As already discussed above, on the termination of this lease, the superstructure raised by the appellant has vested absolutely B in the Trust. Thereby the building is deemed to be the property of the Trust. In this view of the matter under section 83(2‑A) of the Municipal Administration Ordinance, 1960 read wish section 49 of the Punjab Town Improvement Act, the appellant was liable to ejectment from the premises in pursuance to the notice served on him. There is, therefore, no force in this appeal which is dismissed. But there is no order as to costs in the circumstances of the case. Appeal dismissed: