Bank of India Ltd., Madras vs Sarathy Brothers and Another

Veeraswami, J.—These are connected Second appeals by the second defendant. Bank of India Ltd., from a common judgment of the First

Additional Judge, City Civil Court, Madras, who disagreed with the trial Court and decreed the suits as prayed for. They were instituted each by a

tenant of portions of ''Lecotts Buildings'', 26 Errabalu Chetti St. G.T. Madras, for an injunction restraining the defendants from causing any

obstruction to the use and enjoyment of the passage leading to Errabalu Chetty Street from the portion in the occupation of each of the plaintiffs.

Two of the plaintiffs became tenants prior to 26th June 1961 and the other after that date. The entire premises originally belonged to the Chrome

Leather Co. (P.) Ltd. (first defendant). On 26th June 1961, the first defendant sold the front portion of the premises inclusive of its entire frontage

on Errabalu Chetti Street for a handsome price. The second defendant decided to demolish portions of the premises purchased by them and

construct anew at an estimated cost of some lakhs of rupees.

The proposal involved demolition and closure of the main entrance of the premises from Errabalu Chetti Street which not only gave access to the

portion of the premises purchased by the second defendant, but also to the portions under the tenancy of each of the plaintiffs. The plaintiff in O S.

1921 of 1962 occupied the ground floor. The plaintiff in O. S. 1941 of 1963 was a tenant of a portion of the ground floor and of the first floor and

the plaintiff in the last suit was in occupation of a portion of the first floor. The Bale deed in favour of the second defendant made no reservation in

respect of the part conveyed thereunder. The plaintiffs objected to the closure of the main entrance and obstruction of access through it to the

portions in their respective occupation. They took up the stand that the use of the main gate abutting Errabalu Chetti Street and the passage giving

access to the tenanted portion formed part of the demise under the tenancies and also constituted an essential element of the contract of tenancy

between them because of the commercial importance of the locality, and, therefore, of the access through Errabalu Chetti Street. On that basis

they sought for the relief of injunction.

The suits were resisted on the ground that the main gate and the passage did not form part of the demise and the plaintiffs had no right to Insist

upon the retention of the original passage opening into Errabalu Chetti street and all that they could insist was to an alternative access. The

defendants maintained that the only right of the tenants lay in securing a convenient access to the portions of the premises in their occupation, and

that the first defendant had provided an alternative entrance from Vanniar street which secured to the plaintiffs continued enjoyment of the tenancy.

The trial Court dismissed the suits. But the lower appellate Court has found, though the observations in different parts of the judgment in relation

to this matter are not uniform, that the main gate and passage formed part of the demise and this being the case, the plaintiffs were entitled to

protection of their quiet enjoyment thereof by a restrictive injunction. At one place in its judgment the lower appellate Court said that the disputed

entrance should be regarded as part of the demised premises; later it observed that it was satisfied that the use of the disputed passage was part of

the demised premises subject only to the right of other tenants or occupants of the premises using the same passage for ingress and egress from or

to Errabalu Chetti Street. There was a further observation that the disputed passage was intended to be a passage for the enjoyment of the tenancy

by the plaintiffs. But we are prepared to take in that in the opinion of the lower appellate Court the disputed passage was part of the tenancy

granted to the plaintiffs, subject to the right of the other tenants or occupants of the premises to use the same. If that finding is maintained, it would

follow that the plaintiffs would be entitled to the injunction they asked for Allports v. The Securities Co. Ltd, (1895) 72 LT 533 does support that

view.

Before me, the learned counsel for the second defendant appellant contends that the finding of the lower appellate Court cannot be supported

on the undisputed facts in this case. We think that the contention is well founded. We are inclined to think that the question is not purely a factual

one, but is one relating to the propriety of the legal conclusion that could be arrived at on the basis of proved facts. That is a question of law which

is open to review in second appeal. The finding of the lower appellate Court has not been based on mere appreciation of evidence but depends on

the effect to be given to certain facts in existence. These facts emerge from the correspondence between the parties and also certain other

documents, relating to business advertisements made by the plaintiffs. These records show that the plaintiffs uniformly have during their tenancies

given their address as 26 Errabalu Chetti street. They have also in their business advertisements given that address. We may also take it for granted

that by reputation also their address was 26 Errabalu Chetti street. At the time the tenancies started, at least in two of the cases the alternative

access through Vanier Street to the tenanted premises was not very much in use or in existence.

In our view, the legal effect of these facts, either taken one by one or together, is not with the entrance by the main gate from Errabalu Chetti street

formed part of the tenancy, in the sense that it was the subject-matter of the lease, like the portions actually occupied by each of the plaintiffs. The

lower appellate Court thought it was justified in making an inference that because at the time the tenancy started that was the only passage that was

in use, therefore, it followed that it was part of the tenancy. We are unable to agree. As a matter of fact, in one of the tenancies, the formation of

which appears from the relative correspondence, the property demised was set out which did not include the passage. Apart from that, there were

more than one tenant in the premises, and it would be quite inconsistent to infer that the passage itself formed the subject-matter of the lease in any

one of these cases. The passage was, as a matter of fact, used in common by the owner for the time being as also the tenants in the premises to

reach their relative portions.

When the property was not sub-divided in the Corporation records, obviously the mention by each of the plaintiffs in the correspondence or in the

commercial advertisements of their address as 26 Errabalu Chetti Street is not of much significance and would not support an inference that the

passage was part of the tenancies. The effect, to our minds, of the facts stated would only be this that the plaintiffs would be entitled to access to

the respective portions under their occupation through the passage in dispute, not as part of or constituting the subject-matter of the lease itself, but

because the tenanted portion must have an access. The lower appellate Court has been weighed by the fact that Errabalu Chetti street is in a

locality in George Town which is commercially important, and that a passage opening into that road should have played an essential role in the

plaintiffs taking out the portions in 26 Errabalu Chetti street under tenancies. We do not think that this aspect has any relevance to the question at

issue. We are of the view, therefore, that the finding of the lower appellate Court on the basis of which it granted the relief of injunction, cannot be

sustained.

We are inclined to think that the true principle on which these cases should be decided is that where real property is severed by the grant of a

portion of it, there can be no implied reservation in favour of the property retained of an easement of convenience but only of an easement of

necessity. Woodfall''s Law of Landlord and Tenant, 1960 Edition, refers to this principle which has also received judicial recognition and

application. For instance, reference may be made to Mariyayi v. Arunachala Ammal, AIR 1956 Mad 884. If the passage is not part of the lease in

the sense that it formed the very subject-matter of the lease as the portions leased out and in the occupation of the plaintiffs, we do not see how the

plaintiffs would be entitled to better rights than the lessor itself. We mentioned earlier the sale deed in favour of the second defendant did not make

any reservation of the passage.

In fact it expressly permitted the second defendant to raise structures in the portion of the property conveyed without let or hindrance by the first

defendant If there is no other access to the portion retained by the first defendant, it would obviously follow that as an easement of necessity, the

retained portion would be entitled to an access through the disputed passage. But that implication does not apply in the present case because

alternative access has been provided for to the tenanted premises through Vanniar Street. That would obviate the necessity which would form the

foundation for an easement in the nature of a passage through the portion severed and conveyed to the second defendant. It would appear that a

great deal of argument had been addressed to the lower appellate Court that the alternative passage is not as convenient or advantageous as the

entrance through the Errabalu Chetti street. That would only be a question of degree but does not make the passage through Errabalu Chetti street

a necessity to have access to the portions under the plaintiffs tenancies.

We are, therefore, satisfied that the plaintiffs are not entitled to the Injunction they asked for. The second appeals are allowed with costs.

Counsel''s fee Rs. 250. one set to be equally borne by the plaintiffs. C. M. P. No. 13985 of 1967 dismissed.