DR. K. A. DHAIRYAWAN AND OTHERS versus J. R. THAKUR AND OTHERS

Citation: [1959] 1 S.C.R. 799 · Decided: 28-04-1958 · Supreme Court of India · Bench: BHUVNESHWAR PRASAD SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

S.C.R. 
SUPREME COURT REPORTS 
799 
Dr. K. A. DHAIRYAWAN AND OTHERS 
v. 
J. R. THAKUR AND OTHERS 
(B. P. SINHA, JAFER IMAM and ,:i:. L. KAPUR JJ.) 
Rent Control-Lease of land for fixed period-Lessee construct-
ing building on land-Covenant for delivery of possession of building 
to lessor on expiry of term of lease-Statute protecting lessee from 
eviction-If applies to covenant-Whether statute extends period 
of lease-Bombay Rents, Hotel and Lodging House Control Act; 
I947· 
The lessors granted a lease of a parcel of land to the lessees 
for 21 years at a rent of Rs. 50 per month. 
Under the terms of 
the lease the lessees were to construct a double storeyed building 
on the land at a cost of not less than Rs. 10,000. The construc-
tion had to be to the satisfaction of the lessors' engineers, and 
the buflding had to be insured for at least Rs. r2,ooo in the joint 
names of the lessors and the lessees with an insurance firm 
approved by the lessors. In case of damage or destruction the 
building was to be repaired out of the money received from the 
insurance company. On the termination of the lease either at 
the end of 21 years or earlier, the lessees were to surrender and 
yield up the demised premises including the building with its 
fixtures and appurtenances to the lessors without any compensa-
tion for the same. After the expiry of the 21 years the lessors 
filed a suit for a declaration that they were entitled to the build-
ing, and were entitled to claim possession of the same and to 
recover the rents and profits thereof. 
The lessees pleaded that 
they were also lessees of the building and were protected from 
eviction therefrom by the provisions of the Bombay Rents, Hotel 
and Lodging House Control Act, 1947 and that the covenant 
for delivery of possession of the building could not be enforced 
as the lease in respect of the land could not be terminated on 
account of the protection given by the Act. 
Held, that upon a proper construction of the lease there was 
a demise only of tlie land and not of the building and conse-
quently the provisions of the Act did not apply to the contract 
for delivery of possession of the building. The ownership in. the 
building was with the lessees and in which the• lessors had no 
right while the lease subsisted. There was no absolute rule of 
law in India that whatever was affixed or built on the soil 
became pa:rt of it, and was subject to the same rights of pro-
perty as the soil itself. 
Nar~an Das 
Khettry v. Jatindra 
Nath Roy Chowdhury, 
(1926) 54 I.A. 218 and Vallabhdas N arranji v. Development Officer,. 
Bandra (!928) 56 I.A. ~59 followed. 
102 
April z8. 
• 
Dr. K. A. 
Dhairyawan 
and others 
v. 
]. R. Thakur 
and othtrs 
Imam]. 
800 
SUPREME COURT REPORTS 
[1959] 
Held, further, that the provisions of the Act did not provide 
for a continuation of the lease beyond the specified period stated 
therein. The Act merely gave to the lessee who continued in 
possession even after the expiry of the period of the lease the 
status of a statutory tenant and protected him from eviction. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 
192 of 1954. 
Appeal from the judgment and decree dated August 
29, 1952, of the Bombay High Court in Appeal No. 79 
of 1952, arising out of the judgment and decree dated 
•. 
June 27, 1952, of the said High Court exercising its 
1' 
Ordinary Original Civil Jurisdiction in Suit No. 2325 
of 1948. 
A. V. Viswanatha Sastri and Naunit Lal, for the 
appellants. 
L. K. Jha, Rameshwar Nath, S. N. Andley and P. L. 
Vohra, for the respondents. 
1958. April 28. 
The Judgment of the Court was 
delivered by 
IMAM J.-The appellants, as trustees, of the Man-
keshwar Temple Trust had filed suit No. 2325 of 1948 
in the High Court of Bombay in its Ordinary Original 
Civil Jurisdiction, for a declaration that they were 
entitled to the building in suit and were entitled to 
claim possession of the same and to recover the rents 
and profits thereof. The appellants further prayed 
that the defendants may be ordered and decreed to 
obtain a letter of attornment from the tenants of the 
said property attorning to the appellants, that the 
first defendant may be ordered to render accounts of 
the rents received by him from the tenants of the said 
property from May 23, 1948, and that pending the 
hearing of rtle suit a Receiver may be appointed of 
the property in suit. 
The appellants had obtained 
leave of the High Court under 0. II, r. 2 of the Civil 
Pro

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