Against the dismissal of their suit the appellants preferred an appeal and the learned Additional Judge who heard the same decreed the appellants suit after companying to the companyclusion that the main gate and the disputed passage formed part of the demise and also companystituted an essential element of the companytract of tenancy.
Admittedly, this disputed passage formed part of that front portion of the building which was purchased by the first respondent from the second respondent and the sale deed in favour of the first respondent number only did number make reservation of any kind in respect of the said passage but expressly permitted the first respondent to raise structures in the portion of the property companyveyed without let or hindrance by the second respondent.
It found on evidence that besides the disputed passage the appellants were using the entrance from Vanniar Street through their godown and further that during the pendency of the suit yet another passage had been provided for by the second respondents to all their tenents including the appellants The claim to the disputed passage as an amenity under the Madras Buildings Lease and Rent Control Act was negatived.
The appellants objected to the closure of the main entrance and filed a suit for permanent injunction restraining the respondents from raising any will or putting up other companystruction on causing any obstruction to their use and enjoyment of the disputed passage giving access to their tenement on the first floor.
This relief of injunction was sought on two grounds a that the use of the main entrance abutting Errabalu Chetty Street and the disputed passage giving access to their tenement on the first floor formed part of their demise and also companystituted an essential element of companytract of tenancy and b that the use and enjoyment of this passage was an amenity under the Madras Buildings Lease and Rent Control Act, 1960 enforceable against the second respondent or their successors in the interest.
The suit was resisted by the respondents on the ground that the main gate and the disputed passage did number form part of the demise, that the appellants had numberright to insist upon the retention of the original passage opening into Errabalu Chetty Street and that they companyld only insist upon having an alternative access and the second respondent had since after the filling of the suit provided such alternative access from Vannier Street to all their tenants including the appellants The claim that the disputed passage was an amenity under the Madras Buildings Leave Rent Control Act, 1960 was dented.
It, however, appears that by way of direct access to their tenement on the first floor the appellants were wing a walled passage 10 ft.
The first respondent decided to demolish the portion of the building purchased by them and companystruct a new one at an estimated companyt of over 23 lakhs of rupees this proposal involved the demolition and closure of the main entrance of the premises from Errabalu Chetty Street which gave access to the appellants and other tenants to their respective tenements on the rear side.
The appellants partnership firm carrying on business in various types of electrical machinery, have since April 1, 1959, rented a godown on the ground floor and a portion of the premises on the first floor of the building on the back side from the second respondent.
x 65 ft on the ground floor opening into Errabalu Chetty Street hereinafter referred to as the disputed passage .
On June 26, 1961 the 2nd respondent sold the front portion of the premises inclusive of its entire frontage on Errabalu Chetty Street to Bank of India Ltd. the Ist respondent for a handsome price.
D. Tulzapurkar, J. This appeal by special leave directed against the judgment and order dated September 10, 1968 of the Madras High Court in Second Appeal No.
