# Dr. K. A. DHAIRYAWAN AND OTHERS v. J. R. THAKUR AND OTHERS

- **Citation:** [1959] 1 S.C.R. 799
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Case number:** Civil Appeal No. 192 of 1954
- **Bench:** B. P. Sinha, Jafer Imam, i:. L. KAPUR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-k-a-dhairyawan-and-others-v-j-r-thakur-and-others-1550
- **Pages:** 12

## Headnote

Rent Control-Lease of land for fixed period-Lessee constructing 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 construction 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 compensation for the same. After the expiry of the 21 years the lessors
filed a suit for a declaration that they were entitled to the building, 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 consequently 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 property 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.

## Text

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 constructing 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 construction 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 compensation for the same. After the expiry of the 21 years the lessors
filed a suit for a declaration that they were entitled to the building, 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 consequently 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 property 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 Mankeshwar 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
Procedure Code reserving to them liberty to file a
separate suit with respect to the land on wl}ich the
•
. building, was situated. The learned Judge who heard
•
the suit decreed it in part in favour of the appellants.
He also p~ssed·an order of injunction restraining the . '
S.O.R.
SUPREME COURT REPORTS
801
defendants 1, 2 and 5, their agents and servants, from
interfering with the exercise of the right of the appellants in obtaining possession of the building or othern~:i,:a·w~~
wise effectuating their possession consistently with the
and others
provisions of law. He further directed the first
v.
defendant to account for the rents recovered by him
J. R. Thakur
from and after May 23, 1948, till the date of the decree.
and others
He refused to grant the prayer that the defendants be
directed to obtain letters of attornment from the
tenants of the building in favour of the appellants.
Against this decision the defendants appealed and a
Division Bench of the High Court allowed the appeal,
reversed the decision of the trial Judge and dismissed
the suit with costs.
On May 23, 1927, Krishnarao Ganpatrao and Shamrao Ganpatrao, as trustees ofthe lVIankeshwar Temple,
executed a registered lease, Exbt. A, in favour of
Moreshwar Kasinath and Radhabai, wife of Ramkrishna Bhai Thakore, whereby they demised a parcel
of land specified in the Schedule to the document.
The lease was for twenty-one years. The area of land
was about 213·66 square yards and the rent reserved
was Rs. 50 per month. Under the terms of the lease
the lessee had to construct within six months from the
date of the lease a double storeyed building consisting
of shops on the ground floor and residential rooms on
the upper floor.
The cost of construction was to be
not less than Rs. 10,000. The construction had to be
to the satisfaction of the lessors' engineers. There
were certain restrictive covenants in the lease.
The
building had to be insured for at least Rs. 12,000 in the
joint names of the lessors and the lessees with an insurance firm approved by the lessors. If the building
was· damaged or destroyed it had to be repaired or
restored by the use of the insurance money received
from the insurance company. On the termination of
the lease either at the end of twenty~one years or earlier, the lessees were to surrender and yield up the
demiseq premises including the building with its
fixtures and appurtenances to the lessors without any
compensation for the same. On May 14, 1948', shortly· •
before the lease was to expire; the appellant~ who 'vere
Imam ].
802
SUPREME COURT REPORTS
[1959]
then the trustees of the temple gave notice to the
respondents to deliver possession of the demised pre-
~:·;,~~w~~
mises and the building on the expiry of the lease, that
and others
is to say, on May 22, 1948. On May 19, 1948, the
v
respondents replied that they were entitled to the
J. R. Thakur
benefits of the provisions of the Bombay Rents, Hotel
and othm
and Lodging House Rates Control Act, 1947, hereinImam ].
after referred to as the Act, and that the appellants
were not to interfere with their possession.
All that
they could get was the rent under the lease from the
respondents. On July 23, 1948, the appellants gave
the respondents notice to quit the building only as in
their opinion the Act did not apply to it. On July 27,
1948, the respondents, replied asserting that the Act
did apply to it.
The appellants; accordingly, filed the
present suit in the High Court on September 1, J.948.
The period of the lease under Exbt. A having expired
and the respondents having been given notice to quit,
they were bound to vacate the demised premises unless
they were protected by . the provisions of the .Act_
Land used for non-agricultural purposes is "premises"
under the Act. Although the period of the lease had
expired the respondents continued to remain in possession without the. assent of the lessors. Under the
Act they would, therefore, be tenants of the land within the meaning of that expression as defined in the
Act. There can be no question that so far as the land
demised by the lease is concerned the respondents
could not be evicted so long as they complied with the
provisions of the Act and the lessors, as landlords,
were unable to resort to any of the provisions of s. 13
of the Act. to evict the respondents from the land.
Indeed, the appellants did not claim in the plaint that
they were entitled to evict the respondents from the
demised land. The plaint, as drafted, confined the
reliefs claimed by the appellants only to the building
constructed on the land.
The substantial question in issue in this appeal is
whether on a proper construction of the lease, ~xbt. A,
it can bEl held that not only the land but also the
• ·building to be constructed on it had been demised
under it. .Othor questions had also been raised in the . '
S.C.R.
SUPREME COURT REPORTS
803
course of arguments. It was argued on behalf of the
respondents that the appellants could not get possession of the building until the lease had been determined.
Dr. K. A.
Dhairyawan
The lease could not be determined as under the law
and others
they could not be compelled to give up possession of
v.
the land demised under the lease as they were tenants
J. R. Thakur
of the land within the meaning of the Act. A further
and others
submission maqe was that even if the lease did not
purport to demise the building which was to be constructed on the land demised under that document, the
appellants were not entitled to get a declaration to the
effect that they were entitled to the rents and profits
from the building which had been let out to several
persons by the respondents and the respondents could
not be restrained from interfering with the collection
of the rents and profits from the building by the a ppellants so long as the respondents were in possession
of the land demised. It was also urged that the suit
must at any rate fail on the ground that defendant
No. 4 having died before the institution of the suit and
her name being struck off from the category of defendants and her legal heirs and representatives not
having been brought on to the record the suit was bad
on account of non-joinder of necessary parties.
A perusal of the Schedule to the lease shows that
what was demised thereunder was a parcel of land of
an area of about 213 square yards with New Survey
No. 1/2600 cadestral survey No. 96.
The Schedule
leaves no room for doubt as to what was demised.
Under the terms of the lease the rent payable for this
land was Rs. 50 per month. The terms of the lease
show that the land was demised for the purpose of
constructing a building thereon by the lessees. Clause
I of the lease may be quoted as the respondents have
strongly relied upon this clause in suppott of their contention that what was demised under the lease was
not only the land but also the building to be erected
thereon. This clause runs as follows:
" Jn consid~ration of the Expenses to be incurred
by the Lessees in and about the erection anq completion of the building hereinafter mentioned and the •
rents hereinafter reserved and the Loosee'~ covenants
Imam ].
804
SUPREME COURT REPORTS
[1959)
hereinafter contained the Lessors do hereby demise
UNTO the Lessees ALL that piece or parcel of land
J;;~fr~aw~~
situated at Supari Baug I-toad, more particularly
and othm
described in the Schedule hereto and delineated in the
v.
plan thereof hereto annexed and marked "A" and
J. R. Thak•"
therein bounded by a red line TO HOLD the premises
and others
unto the LESSEES for the term of 21 (twenty.one)
Imam J.
years to be computed from the date of these presents
yielding and paying therefor on the 10th day of each
and every Calendar month the first of such payments
to be made on 10th of June next, upon the terms and
subject to the covenants and conditions hereafter contained:-"
Another clause upon which reliance had been placed
was cl. 6 which provides for the building to be erected
to be insured in the joint names of the. lessors• and
the lessees with an insurance company approved by
the lessors. It was pointed out that the building was
to be handed over to the lessors at the end of the lease
without compensation to the lessees.
We have examined the various clauses of the lease
and find that in none of them has it been positively
stated that the building to be erected on the demised
land would be in the ownership of the lessors and that
the building would be deemed to have been leased to
the lessees along with the demised land. Under the
law there was no impediment in the way of the parties
to have had a clause, in a positive form, to that effect.
In the absence of such a clause the various clauses of
the lease, as they exist, will have to be construed in
order to ascertain whether on a proper construction
thereof it can be said that there had also been a demise
of the building. The Schedule to the lease, as already
stated, specifically mentions that the land had been
demised and 'there is no mention therein that the
building when constructed thereon would also form
part of the demised property. In 1927 when the lease
was executed the Act was not in existence and it may
reasonably be said that none of the parties had ever in
Qontemplation that the Act or anything akin thereto
• would become law in the future affecting the rights of
the parties vnder the lease.
The various clauses of the
•
.
'
S.C.R.
SUPREME COURT REPORTS
805
lease a:re consistent with the ownership in the building
being with the lessees in which the lessors had no right
while<the lease subsisted. In the case of Narayan Das
Khettry v. Jatindra Nath Roy Ohowdhury(1) the Privy
Council approved the observations of Sir Barnes
Peacock in the case of Thakoor Ohunder Poramanick
v, Ramdhone Bhuttacha1jee (2) to the following effect:
"We have not been able to find in the laws or customs
of this country any trac~s• of the existence of an
absolute rule oflaw 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 the case
of Vallabhdas Naranji v. Development Officer, Bandra( 3)
the Privy Council once again referred to Sir Barnes
Peacock's observation as stated above. The Privy
Coun'1il also quoted the following observation of Couch,
0. J., in the case of Narayan v. Bholagir (4):
" .........
We cannot, however, apply to cases arising in India
the doctrine of the English law as to buildings, viz.,
that they should belong to the owner of the land. The
only doctrine which we can apply is the doctrine
established in India that the party so building on
another's land should be allowed to remove the
materials."
Normally, under s. 108 of the Transfer of Property
Act, before the expiry of the lease, a lessee can remove
all structures and buildings erected by him on the
demised land. All that was necessary for him to do
was to give back the .land to the lessor, on the termination of the lease, in the same condition as he found it.
The ownership, therefore, of the building in this case
was not with the lessors but was with the lessees.
Under s. 108 of the Transfer of Property Act there was
nothing to prevent the lessees contracting to hand over
any building or structure erected on the iand by them
to the lessors without receiving any compensation. In
other words, although under s. 108 the lessees had the
right to remove the building, by the contract t,hey
had ag.rned to hand over the same to the lessors without the right to receive compensation at the end of
(I) (1926) 54 I. A. 218.
(3) (1928) 56 I.A. 259:
(2) 6 Suth. W. R. 228.
(4)'6 Born. H.'C. (A .• C. J.) So.
Dr. 'J(. A.
Dhairyawan
ani others
v.
]. R. Thakur
and others
Imam j,
•
806
SUPREME COURT REPORTS
[1959]
the lease, the matter being entirely one of contract
between the parties. Such a contract, however, did
g;~ir~~:.~
not transfer the ownership in the building to the
and others
lessors while the lease subsisted.
The various clauses of the lease in the present case
J. R. Thakur
make a clear distinction between the demised premises
and others
and tl,e building by using the words " demised prev.
mises inclnding the building to be erected thereon ''.
It was, however, urged on behalf of the respondents
that cl. 1 of the lease indicated that what was demised
by the lease was not only the land but also the building to be constructed thereon, because the opening
words of cl. 1 make it clear that in consideration of
the expenses to be incurred by the lessees in erection
and completion of the building and the rent reserved
the lessors demised to the lessees the land mentioned
in the Schedule. The important words in this clause
were " to hold the premises" and not to hold t.he
demised premises. The word " premises" covered both
the land and the building to be erected thereon.
The
intention of the parties was that the premises would be
held at a moderate rent of Rs. 50 per month as the
lessees were going to incur the expenses of erecting the
building, maintaining it in proper repair and paying
all taxes in connection therewith. In the course of
21 years the lessees would have not only received back
the money invested by them in the erection of the
building but would have also enjoyed a large margin
of profit. Under cl. 5, at ·the end of the lease, the
premises held by the lessees, would be handed over to
the lessors that is to say, the land and the building
erected on it without the lessors paying any compensation for the building. Under cl. 6 the building was to
be insured in the joint names of the lessors and the
lessees. In c:r. 9 of the lease the expression "the said
demised premises" appears and this clause guaranteed
to the lessees enjoyment of peaceful possession of the
premises. This clause came after all the clauses referring to the building to be erected on the land. Jf els.
l, 5, 6 and 9 were read together and properly constru-
• ed, it would appear that the intention of the parties
was that npt only the land demised but also the
..
-.
' ' ...
S.C.R.
SUPREME COURT REPORTS
807
building which was to be constructed on it was the
subject of the lease, as that was th~ only purpose for
which the land was given on lease.
The~e clauses do
not necessarily lead to the conclusion snggested. If
the ownership in the building was intended to· be with
the lessors, there was no occasion for providing that
the lessees would get no compensatfon when the building was handed over. This provision rather suggests
that the ownership in the building was with the lessees.
Oil behalf of the respondents. much reliance was placed
on the decision of this Court in the case of Bhatia Cooperative Housing Society Ltd. v. D. 0. Patel (1). Many
of the terms of the lease in the case. cited were similar
to the terms to be found in the lease in the present
case. There was, however, cl. 18 of the lease in the
case referred to, which expressly stated that immediately after the completion of the building within the
time specified in cl. 7, the lessors of the land would
grant to the lessees' a lease of the land with the building
thereon for a term of 999 years from the date of the
·auction at a yearly rent calculated in ·accordance with
the accepted bid. for the plot. There could be no
question, a.s a matter of interpretation, in the case
cited, that a lease would be granted not only of the
land but also of the building on it for a term of 999
years ·from the date of the auction. ' There is no such
clause in the lease in the present case. The decision
upon which reliance had been placed does not support
the case. of the respondents, because in the present
. case none of the cla~ses of the . lease even ·remotely
suggest that. on the completion· of the building on the
land 'demised the lease in fa VOlll' of the lessees would
be both of the land and the building erected thereon.
· On beh~lf of the appellants, on the other hand·; it
was submitted that what· was demised was ~ctually ·the
land and the expression " to hold the premiSes " in cl. l
meant nothing more than to .hold the demised premises. The ownership in the building to be constructed · did hot pass on to the lessors under the lease.
During the subsistence of the lease the ownership of .
(I) [.r953] S,C.R 1 85.
103
Dr. K. A.
Dhairyawan
and· others
v.
]. R. 1 hakur
and others
Imam].
•
Dr. K. A.
Dhairyawan
and others
v.
J·. R. 1 hal<ur
and others
Iniam .f.
•
808
SUPREME COURT REPORTS
[1959]
the building remained 'vith the lessees. The lessees contracted to hand over the building without compensation
at the end of the lease and in consideration for this the
lessees were being demised the land at a small rental
of Rs. 50 per month.
We have examined the various
clauses of the lease and arc satisfied that not one of
them, if properly construed, indicates that there was
any contract between the parties to the effect that the
building to be erected on the land would be in the
ownership of the lessors and that the same would be
deemed to have been demised to the lessees along with
the land.
It was next urged that even if there had been no
demise of the building to be erected on the land possession of it could not be given to the appellants until the
lease had been determined, which in law, could not be
determined so long as the respondents could not be
evicted from the demised land of which they were
tenants within the meaning of the Act. This contention is without force as the provisions of the Act do
not provide for the continuation of a lease beyond the
specified period stated therein. All that the Act does
is to give to the person who continues to remain in
possession of the land, although the period of the lease
had come to an end, the status of a statutory tenant.
That is to say, although the lease had come to an end
but the lessee continued to remain in possession without the consent of the lessor, he would none the less be
a tenant-of the land and could not be evicted save as
provided by the Act.
It was then submitted that the appellants could not
get the declara;tion to the effect that they were entitled
to the rents a,nd profits from the -building which had
been let out to seyeral persons by the respondents
because th;y could not realise the same without entering upon the land on which the building had been constructed. The appellants could not enter upon the
land for the purpose of collecting the rents without the
consent of the respondents as the latter \Vere the
tenants of the land. They could only enter upon the
land as provided for by the Act. The declaration
which the; ap]1ellants seek, however, does not ask for a
-
1 ...
s:c.R.
SUPRE~iE COURT REPORTS
809
declaration that they \!>re entitled to enter upon the
land. All that it seeks is that they are entitled to the
rents andl profits of the building which had been let
out to several persons by the respondents. The appellants merely seek a declaration of their right to collect
the rent.s and profits from the building. As to how
they collect the same was their concern; There seems,
therefore, to be no valid objection in law to granting
the relief sought by the appellants:
The original lessees were Moreshwar Kashinath and
Radhabai, wife of Ramakrishna Bhai Thakore. Apparently, these persons were dead andthe suit was filed
against defendants I to 3 as heirs and legal representatives of Radhabai and defendants 4 and 5 as heirs
and legal representatives of Moreshwar Kashinath
Thakortl. After th,e suit was filed it was discovered
that defendant No. 4 could not be served with a copy
of the plaint as she had died before the institution of
the suit. Her name was accordingly _struck off as a
defendant in the suit. It was conceded on behalf of
the·defendants at the trial that the suit filed against
the defendants on a cause of action could not be dismissed merely because of the non-joinder of the legal
representatives of defendant No, .4 who was already
dead at the institution of the suit. In appeal, the
learned Judges wer~ of the opinion that it was not
necessary to decide this question because, in their
opinion, the suit was bound to fail on other grounds.
Whatever other consequences may arise on account of
the failu~e of the: appellants to implead the heirs and
legal representatives of defendant No. 4, it was conceded on behalf of the respondents at the trial that the
suit could not be dismissed merely because of this. It
would have been better if the heirs and legal representatives of defendant No. 4 had been ,brQUght on to
the record asdefendants: It_ seems to us,, however,
that_ the suit cannot be dismissed merely on this
ground because the nature of the declaration :which
the appellants sought could be granted everi iri the
absence cif the heirs and representatives of defendant
No. 4 being ()n ~he record. Though the pl11intiffs
impleaded 5 persons a&_defeqP,ants in .. the suit, the
plaintiffs claimed a decree against the first defendant
Dr.--K. A;
Dhairyawan -
and others
v.-
J. R. Tha!cur
and others
Imam ].
•
Dr. K. A.
Dhairyawan ·
and others
v.
]. R. Thakur
and others
Imam ].
•
810
SUPREME COURT REPORTS
[1959]
only in respect of the rents received by him from the
tenants in the building in question. There is no claim
against the other defendants for accounts in respect
of the usufruct of the property. The correspondence
disclosed in the suit, which passed between the plaintiffs and the first defendant, showed that it was only
he who was in effective control of the building. The
suit was contested only by the first three defendants
who appear to be brothers and who claim to have
continued in possession of the building after the crucial
date, i.e., May 22, 1948. It is they who claimed protection under the Act. Defendants 4 and 5, who
were purported to be sued as representatives of one of
the joint lessees, do not appear to have taken any
interest in the building. After the suit, defendant
No. 5 has remained ex parte throughout .. After the
decree of the trial court, it is only the first three defendants who preferred an appeal to the High Court.
From all these considerations, it appears that the 4th
defenda-nt or her heirs or legal representatives were
not necessary parties to the suit. The Court could,
therefore, proceed with the suit in their absence.
Tlie appeal, accordingly, is allowed with costs
throughout and the decision of the High Court in
appeal is set aside. The appellants are entitled to a
declaration that the building constructed on the land
demised under the lease, Ext. A, belongs to the Mankesh war Temple Trust and the said trust is entitled to
recover all the rents and profits from the same and
the respondents have no right, title and interest therein since the expiration of the said lease. The first
respondent is directed to render an account of the
rents received by him from the tenants of the building
from 23-5-48 and to pay to the appellants the amount
found due, after accounting, with interest at 6% per
annum from 23-5-48 until payment. There will be an
order of injunction restraining the respondents, their
agents and servants from interfering with the collection of rents and profits by the appellants from the
tenants of the aforesaid building.
·
Appeal allowed .
...