JUDGMENT
C.C. Ghose, J.
1. This is an appeal against a judgment and decree passed and made by my learned brother Mr. Justice Page on the 25th February 1927 in an action by the plaintiff to recover possession of a block of buildings lying at the corner of Wellington Street and Dhurrumtolla Street. The plaintiff based his cause of action for recovery of possession of the premises upon the breach of (1) a covenant to pay rent, and (2) a covenant to repair contained in the Indenture of lease dated 3rd August 1906. As regards the covenant to pay rent, it appears that, before the suit came on for hearing, the defendant who is the assignee of the original lessee had deposited in Court the amount of rent due by and from him to the lessor. Mr. Justice Page came to the conclusion that in these circumstances the Court was entitled to exercise its powers under Section 114, T.P. Act and give the necessary relief to the tenant. On the question whether there had or had not been a breach of the covenant to repair Mr. Justice Page came to the conclusion that, so far as the demised premises were concerned, there had been no breach of the covenant to repair but that, in respect of certain buildings which were erected after the date of the Indenture of lease and which buildings had been so constructed that they, in his opinion, formed part of the demised premises, there had been a breach of the covenant to repair, and accordingly he passed a decree in ejectment in favour of the lessor.
2. On appeal before us it has been contended that the additional buildings referred to in the judgment of Mr. Justice Page and which were subsequently erected on a part of the demised premises which was then vacant land, did not form part of the two storeyed house as it stood at the date of the Indenture of lease, but were entirely separate buildings having no connexion with the original buildings and that, therefore, the covenant to repair did not extend to the new erections, and accordingly there had been no breach of the covenant to repair, and in the circumstances no decree for ejectment should have been made in favour of the lessor.
3. Apart from what is contained in the said Indenture of lease Mr. Justice Page relied in support of his finding that the new erections had been and were made part of the original buildings, upon the evidence of the original lessee S.J. Cohen wherein he stated that the new buildings were joined on to the original buildings and made a portion of the same so that the buildings, i.e., the original buildings and the subsequent erections became thereafter one whole building. The expression “joined on to the old buildings” is somewhat misleading and it does not convey with any degree of precision what exactly became the state of things after the new buildings had been erected. In these circumstances, Sir Benode Mitter for the respondent and Mr. Sarkar for the appellant invited us to go down to the spot and see for ourselves the state of things and appreciate the evidence on record on the new buildings in such a manner that the new buildings became part of the old buildings, or whether the new buildings were separate by themselves having no sort of connexion whatsoever with the original buildings. Having regard to the evidence to which our attention was drawn and having regard to the difficulty which we experience in understanding and appreciating the evidence on record, we thought it proper to accept the invitation and to go down to the spot and see for ourselves the state of things for the purpose of understanding and appreciating the evidence.
4. Having seen the premises as they stand now, I have no difficulty in understanding the evidence of S.J. Cohen and I have no hesitation whatsoever in saying that on the evidence on record the new buildings were so constructed that in various portions thereof they were made part of the original buildings and in other portions they were so constructed that they could be made part of the original buildings at a moment’s notice. The beams supporting the roof of the new one-storeyed building had been introduced into the walls of the original building and the roof of the new buildings is used as a terrace by the occupants of the first floor of the original building. In these circumstances it is difficult to resist the conclusion that the new buildings were so constructed as to form part of the original buildings and that they have been treated ever since as parts of the original buildings. There fore, on the question of fact bearing on this issue, I am in entire agreement with Mr. Justice Page in holding that the new buildings could not be treated as separate by themselves but were, in fact and in truth, made part of the original buildings. Now the question arises whether the covenant to repair contained in the Indenture of lease extended to such new erections. It has already been stated above that Mr. Justice Page did not find that there could be any reasonable complaint, on account of the breach of the covenant to repair so far as the original buildings were concerned. The only question that arises, therefore, is whether the covenant, to repair extended to such new erections. It is unnecessary, in my opinion, to go through the cases on the subject from 1683 downwards. The cases are all collected in a very concise form on pp. 325 and1 326 of Vol. 31 of the English and Empire Digest and it would be sufficient for our purpose if we refer for the enunciation of the law on the subject to the last case bearing on it, namely, the case of Field v. Curnick (1926) 2 K.B. 374. In that case it appears that by a lease dated 1837 the lessors demised to the lessee for 99 years a piece of
ground together with the messuages or tenements and all other erections and buildings which at any time thereafter during the said term should be built on the same piece of ground or any parte thereof
and the lessee covenanted to build on the lands demised two good and substantial brick messuages or tenements, and to repair and keep repaired “the said premises.” The lessee built six houses as to which it was impossible to say which two were actually completed first. In that state of things the learned Judge came to the conclusion on the evidence on record that the six houses were built simultaneously and finished at the same time. He further-held that the covenant to repair extended not only to the two houses which the lessee-covenanted to build but to all the six houses. Mr. Justice Sankey then observed as follows:
In my view, the law is as follows : If a lessor,, demises a house and there is an express covenants to repair, the lessee is of course bound by it. If, on the other hand, the lessor demises a piece of land and there is an express covenant by the lessee to repair any houses subsequently erected thereon, equally the lessee is bound by it. Further a general covenant to repair includes not merely buildings existing when the demise is made, but all those which may be erected during the term : see Cornish v. Cleife (1864) 3 H. & C. 446 and Foa on Landlord and Tenant, 6th Edition, p. 248. If, however, the covenant to repair is only one to keep in repair the demised premises, it applies to those existing at the date of the lease only unless the new buildings are made part of the old ones.
5. Now in this case the Indenture of lease contained the following proviso:
And at all times during the said term of years keep the said premises in good and substantial repair and the same in good and substantial repair deliver up to the lessor his heirs or assigns at the expiration or sooner determination of the said term.
6. Further:
And it is hereby agreed and declared by and between the parties hereto notwithstanding anything there in before contained that the said lessee shall be at liberty to make all necessary additions and alterations to the demised premises to improve the buildings with the written consent of the lessor at his own cost during the continuance of the said term and all such changes, additions, fittings and fixtures so made shall become and be considered the property of the said lessor and the lessee shall have no right to remove the same either before or after the expiration of this lease.
7. Having regard to the terms of the Indenture of lease in the present case, there is no doubt that the covenant to repair is in very general terms, and it would in my opinion extend to the subsequently erected buildings. But, even if it be held that the covenant to repair does not extend to the subsequently erected buildings, in this case there could not be much doubt on the evidence that the new buildings were, in fact, additions to and had become part of the two storeyed buildings which were originally demised and that, therefore, the covenant to repair would extend to the subsequently erected buildings. It follows, therefore, that the finding of Mr. Justice Page on the evidence on record that the covenant to repair extended to the newly erected buildings is one that cannot be seriously quarrelled with and that the appeal so far as it relates to that point must fail.
8. A small point has been taken that there s is internal evidence in the Indenture of lease that the covenant to repair is restricted to what is described as the demised buildings, that is, the original buildings as they stood at the time of the grant of the lease. The argument is as follows : It is said that the landlord is under no obligation to restore any portion of the subsequently erected buildings if and when they are destroyed by reason of the causes specified in the Indenture of lease, whereas if any portion of the original building is destroyed by any of the causes the landlord is under an obligation to repair. In the second place it is stated that no additional rent was payable by reason of the erection of the subsequently erected buildings. So far as the last point is concerned, it may be stated that the lessee was under no obligation to erect; new buildings. But if he did erect additional buildings with the consent of the lessor, they were to be considered the property of the lessor and the lessee would have no right to remove the same before or after the expiration of the lease. As Mr. Justice Page points out, the special provisions introduced into the lease with respect to the additions and alterations were inserted for two reasons, first, in order to get out of the provisions of Section 108, Transfer of Property Act, and, secondly, in order that it should not be open to the defendant in the event pf some part of the additional premises, that he might erect, being destroyed in the manner set out in the lease to escape proportionate payment of rent so long as the additional structures were not rebuilt or repaired. I think, therefore, that the appellant can not derive any comfort whatsoever from the provisions in the lease last referred to.
9. There is still a further small point to be noticed. It is stated that at the time when the lease was executed a sum of Rs. 2,500 was deposited with the lessor for the due fulfilment; of the terms of the lease. The lease having now come to an end, the appellant urges that he should b& given credit for this sum in calculating the amount ultimately payable to the lessor. Sir Benode Mitter on behalf of the respondent states that there has been no question at any time that the appellant is entitled to the credit of the said sum and he is willing that in the accounts’ when they are taken credit should b& given to the appellant for the said sum of Rs. 2,500.
10. The result, therefore, is that the appeal fails on all the points which the learned; counsel for the appellant has taken and it must stand dismissed with costs subject to credit being given to the defendant for Rs. 2,500 as stated above.
Buckland, J.
11. I agree. I only desire to add a few words with regard to the principal question of fact which has been argued on this appeal; that is, as to whether or not the state of the premises is such that the general covenant to repair applies to the additional premises. The evidence on that point has been quoted in extenso by the learned Judge in his judgment. What has to be proved is expressed in the passage which my learned brother has referred to in the judgment of Mr. Justice Sankey in the case of Field v. Curnick (1926) 2 K.B. 374. It is necessary to establish that the new buildings are made part of the old ones.
12. The evidence has not been read to us; but we have been informed by learned Counsel for the appellant that the passages quoted in the judgment of Mr. Justice Page are all the evidence on the point and he has also informed us that no evidence was given, on behalf of the plaintiff on this point and that the answers on which the plaintiff relied were elicited in the cross-examination of the witness for the defendant. On two occasions, this witness, S.J. Cohen, was asked whether or not the new rooms were made part of the premises of the two-storeyed building and to each question his answer was that they were joined. He did not accept the questions in the form in which they were put and he expressed his answer in different words In consequence, I felt considerable difficulty in knowing what the witness meant by using the word “joined.” A horse is joined to a cart, but nobody suggests that the horse becomes a part of the cart. The word “joined” is not necessarily, therefore, conclusive on the point and I was very glad to welcome the invitation of learned Counsel on both sides that we should go and see the buildings for ourselves. We have done so and, having seen the buildings, what I have observed with my own eyes has enabled me to understand the witness’s evidence. I am satisfied that when the witness Cohen used the word “joined,” he referred to conditions and a state of facts which brings the matter within the passage in the judgment of Mr. Justice Sankey to which I have referred. The view which I have had of the premises has enabled me to understand what the witness meant and his evidence, therefore, in my judgment, supports the finding beyond all question. I concur in the order to be made in this appeal.
