DORAIKANNU AMMAL Vs. TRAMASWAMI MUDALIAR

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent from a judgment granting the respondent a mandatory injunction for the removal of certain buildings on land leased to the appellant. The land belongs to the Sri Kasi Viswanatha Devasthanam, G.T., Madras, of which the respondent is the trustee. Before 1920 the land was leased to one Chinna Venkatesa Devar, who on the 27 September, 1920, transferred his interest therein to P.L. Natesa Mudaliar. After he had acquired the interest of Chinna Venkatesa Devar, Natesa Mudaliar entered into an agreement with the then trustee of the temple for a new lease. The agreement was executed on the 19 February, 1921 and was duly registered. It stated: I have agreed to pay you a rent of Rs. 2 (Rupees Two) per month for laying out a flower garden in the said land, and paid you this day an advance of Rs. 25 (Rupees Twenty-five). As I have taken on lease the said land for a period of 30 years from this date, myself or my heirs shall pay you or order the rent of every month before the 10 of the next month and obtain a receipt. If the rent remain unpaid, you shall recover the same by proceeding against my property. You shall yourself pay the quit rent of the above land. I shall myself pay the tax that may be levied by the municipality. If we again require the site after the expiry of the said 30 years you are at liberty to get a fresh rental agreement according to the rent prevailing then In respect of other similar sites. If you want me to vacate the land without there being a renewal of the rental agreement after the said period of 30 years, the cost of the said compound wall that may be fixed by the mediators according to the then market rate, and the said advance amount shall be taken from you and the said site together with plants therein and the compound walls will be delivered to you.

(2.) At that time there was nothing on the land except the compound wall referred to in the agreement. It is quite clear from the wording of the agreement that the lease was granted to Natesa Mudaliar merely for the purpose of laying out a flower garden, but in breach of the agreement he erected on the land a cattle shed made of zinc sheets. On the 31 August, 1931, he assigned his interest in the new lease to the appellant. At the time of the assignment no other structure had been erected on the land. In 1935 the appellant demolished the cattle shed and erected in its place a two-storied masonry dwelling house. On another part she built a firewood depot, also of masonry. She then erected two huts made of zinc sheets. The appellant is living in the house and she rents out the two huts to "Boyees", which I understand is a term used to denote a certain class of Telugu coolies. The respondent as trustee of the temple objected to the erection of these buildings and filed a suit in the City Civil Court for an injunction requiring their demolition. The City Civil Court Judge held that the respondent was entitled to an injunction in respect of all the buildings except the house. He did not grant an injunction in respect of the house because it was built on the site of the cattle shed which was on the land when the appellant became the assignee of the lease. Both the parties appealed to this Court. Their appeals were heard by Somayya, J., who allowed the appeal of the respondent and rejected that of the appellant. The result was that an injunction was issued requiring the demolition of the house as well as the other buildings. The appellant asks the Court to dissolve the injunction in its entirety.

(3.) I have no hesitation in concurring in the judgment of Somayya, J. The lease having been granted for the laying out of a flower garden the appellant was not entitled to erect these buildings on the land. It is admitted that if the land is to be regarded as agricultural land the injunction which has been ordered is right, but it is said that it is not agricultural land and therefore the lease falls within Section 108 of the Transfer of Property Act. The provisions of that section do not help the appellant; in fact they provide a complete answer to her case. Clause (o) of that section provides that the lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell or sell timber, pull down or damage building belonging to the lessor, or work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injurious to the property. There is no ambiguity in the language used. While the lessee may use the property as a person of ordinary prudence would use it, he is expressly prohibited from using it or permitting another person to use it for a purpose other than that for which it was leased. Clause (p) says that he must not, without the lessor's consent, erect on the property any permanent structure except for agricultural purposes. It is not suggested that the temple authorities have granted any permission.