- (1.)THESE two suits are ejectment suits filed by a landlord against his two ten -ants. Since the passing of the Bombay Rents, Hotels and Lodging House Rates Control Act (LVII [57] of 1947), this Court has no jurisdiction to entertain or try any suits between a landlord and a tenant to which the provisions of the Act apply; and they are exclusively triable under that Act in Greater Bombay by the Court of Small Causes. The defendants in both these suits have contended that this Court has no jurisdiction to try these suits; and that issue has been ordered by my learned brother Bhagwati J, to be tried as a preliminary issue.
(2.)NOW , the only facts that are relevant for the determination of the question of jurisdiction are that by an agreement of lease dated 12.11. 1918, between the Trustees of the Port of Bombay and one Abraham Jacob Reymond, Reymond agreed to obtain from the trustees and the trustees agreed to grant him a lease of a certain plot of land, for the purpose of putting up a building thereon, for a period of 99 years. To the detailed provisions of this agreement I will revert later. The lease was accordingly granted on 30 -1 -1923, and the plaintiff is the successor -in -title of Reymond, The short question for determination is whether these suits relate to premises which belong to a local authority, because if they do, by the terms of Section 4(1), Bombay Rents, Hotel and Lodging House Rates Control Act, the Act does not apply to such premises. The words of that sub -section are : 'This Act shall not apply to any premises belonging to the Government or a local authority or apply as against the Government to any tenancy or other like relationship created by a grant from the Government in respect of premises taken on lease or requisitioned by the Government; but it shall apply in respect of premises let to the Government or a local authority.' It is admitted that the Trustees of the Port of Bombay are 'a local authority' by reason of the definition of that term in the General Clauses Act. The only dispute is whether the premises in suit belong to that local authority. Now the word 'premises' is defined by Section 5(8) of the Act as meaning '(a) any land not being used for agricultural purpose ; '(b) any building or part of building let separately, etc......' In the present case the premises consist of parts of a building let separately. The question is whether that building belongs to the Trustees of the Port of Bombay.
Now, before turning to the provisions of the agreement to lease and the lease which I will have to construe in these suits, it would be convenient to see what the legal position is in India regarding the rights of the lessor and the lessee in cases in which a lease of a plot of land is obtained and the lessee puts up a structure thereon. The law in England is that anything affixed to the earth belongs to the lessor and it is not open to the lessee to take it away or to remove it at any rate in cases where it cannot be removed without causing serious damage to the structure. But under the provisions of the T. P. Act the law in India is quite different; and under Section 108(h) of that Act, in the absence of a contract to the contrary, a lessee may, even after the determination of the lease, remove all things which he has attached to the earth, which of course include structures or buildings put up by him. The effect of this provision is that the lessee is the owner of the building put up by him although it is put up on the land belonging to the lessor. There may thus be two distinct ownerships, one of the land and the other of the structure. That such a position is possible was recognised by their Lordships of the Privy Council in Narayan Das v. Jatindra Nath . In that case a plot of land, upon which there was a house erected by a lessee of the plot, had been sold for payment of arrears of revenue; and before the removal of the house, the whole property was acquired under the Land Acquisition Act, 1894, and the question that arose was whether the auction -purchaser or the person who put up the house was entitled to compensation in respect of the structures. The learned Subordinate Judge who tried the suit held that the house passed with the land to the auction purchaser by virtue of the revenue sale. On appeal, the learned Judges of the High Court held that the ownership of the building did not pass to the plaintiff on the auction sale; but those who had put up the structure remained owners thereof. Their Lordships of the Privy Council held that what was transferred to the auction -purchaser was land only and not the house. Their Lord,ships pointed out that in India there was noabsolute rule of law that whatever was affixedor built on the soil because a part of it and subject to the same rights of property as the soilitself. This decision to my mind is clear authority for the proposition that a building can beowned by one man and the land by another inIndia; and that in a case where a lessee puts upa building on a vacant plot of land taken onlease by him, although the lessor may be the owner of the land, the building belongs to thelessee and not to the lessor.

(3.)BUT it is urged in this case that although this may be the correct position under Section 108(h), T. P. Act, the Act applies to cases where there is no agreement to the contrary. I have, therefore, to consider the provisions of the agreement to lease as well as the lease. In doing so, the Court is not bound to look, merely to the form which the transaction has taken. The Court is not only entitled but, indeed, bound to consider what is the true nature of the transaction and to give effect to it.