Judgment :- 1. These two second appeals arise out of two suits O.S. Nos. 121 of 1952 and O.S. 458 of 1952 on the file of the Ernakulam District Munsiff's Court. The parties to the two suits are the same and the property involved in the two suits is also the same. 2. It is common ground that the defendants are residing in a small but situated in Sy. No. 445/2 within the Ernakulam Municipality and which was rented out to them by the plaintiff. According to the plaintiff, the terms of the rental arrangement are those embodied in Ext. J the rent deed executed by defendants 1 and 2 and their son Panjikka who died prior to the institution of the present suits. The annual rent fixed under Ext. J is Rs. 6 payable in monthly instalments of 8 annas. Provision is also made for payment of kazcha in the shape of articles worth Rs. 3 every year. The rent deed or coolicharthu Ext. J is an unregistered document and it was executed on 1.10.1117. On the allegation that the defendants were attempting to demolish the but that had thus been rented out to them and to reconstruct a new house in its place without the permission of the plaintiff, the latter instituted the suit O.S. 121 of 1952 praying for the issue of a permanent injunction restraining the defendants from renewing or reconstructing the but occupied by them under the terms of Ext. J. The temporary injunction which was granted in favour of the plaintiff in the first instance was subsequently modified by permitting the defendants to attend to the urgent repairs to the floor of the but and also to the thatching of the but so that the same may be rendered habitable. Subject to these liberties, the temporary injunction restraining the defendants from reconstructing the hut, was confirmed. The above-mentioned items of work were attended to by the defendants. But the plaintiff complained that the defendants, in the guise of repairing the hut, have in effect unauthorisedly reconstructed a new house. The plaintiff further contended that this act of the defendants has resulted in a termination of the lease arrangement under Ext. J. On such allegations the plaintiff instituted the suit O.S. 458 of 1952 for getting recovery of the house site after demolishing the house reconstructed by the defendants. The plaintiff further contended that this act of the defendants has resulted in a termination of the lease arrangement under Ext. J. On such allegations the plaintiff instituted the suit O.S. 458 of 1952 for getting recovery of the house site after demolishing the house reconstructed by the defendants. Compensation was also claimed for the destruction of the old hut, besides the claim for arrears of rent as also future rent at the enhanced rate of Rs.3 per month. 3. Both the suits were resisted by the defendants who contended that they are not liable to surrender the house of the site. They maintained that the plaintiff's suits are not maintainable, that the lease arrangement under which they were put in possession of the hut, subsists, and that they have only effected the necessary repairs to the but and have not reconstructed the same. The trial court repelled these contentions and decreed the suit O.S. 458 of 1952. Finding that the reconstruction of the but has been completed, the other suit O.S. 121 of 1952 was dismissed for the reason that no purpose would be served by granting the permanent injunction as prayed for by the plaintiff. All the same the defendants were directed to pay the costs of the suit to the plaintiff. Against the decrees in these two suits the defendants filed A.S. Nos. 136 and 137 of 1954 in the Anjikaimal District Court. That court confirmed the decrees of the trial court and dismissed both the appeals. The present second appeals have therefore been preferred by the defendants. 4. On the question of the arrangement under which the defendants are residing in the property, the lower courts have accepted the plaintiff's version as true and have concurrently found that the rights and liabilities are governed by the rent deed Ext. J. The correctness of this finding cannot be allowed to be canvassed in these second appeals. But the decree for eviction passed against the defendants cannot be sustained on this finding alone. The plaintiff will be entitled to get such a decree only if it is found that the rental arrangement has already come to an end and that the land-lord is entitled to claim recovery of the site after demolishing the building thereon because of the defendants' act of the alleged reconstruction of the hut. The plaintiff will be entitled to get such a decree only if it is found that the rental arrangement has already come to an end and that the land-lord is entitled to claim recovery of the site after demolishing the building thereon because of the defendants' act of the alleged reconstruction of the hut. Certain important questions of law are involved in the determination of these questions. 5. Unless it is found that the tenancy created under Ext. J had already come to an end prior to the institution of the suit O.S. 458 of 1952, Proclamation VI of 1124 of Cochin would be a sufficient answer to the plaintiff's suit for eviction of the defendants from their holding. That Proclamation was issued on the 29th day of Dhanu 1124 corresponding to the 12th day of January 1949. As indicated by the preamble to the Proclamation, it was meant as a temporary piece of legislation intended to prevent the eviction of certain classes of tenants kudikidappukars from their holdings, pending enactment of a suitable legislation consolidating and amending the law relating to landlord and tenant in the State. Sub-s. (1) of S. 5 of the Proclamation stated that "notwithstanding any other law for the time being in force, no suit for the eviction of a tenant of a holding, the monthly rent of which is below Rs. 3/- shall be instituted in our courts and all such suits filed on or after 5th Vrischigom 1122 corresponding to 20th November 1946 and appeals, reviews, revisions, decrees and applications in execution in respect of such suits shall be stayed". By sub-s. (2) of the same section the lessor was permitted to take the necessary steps for the recovery of the arrears of rent due in respect of such holding. Sub-s. (3) states that "the provision of the Cochin Buildings (Lease and Rent Control) Proclamation IV of 1122, shall not apply to leases of buildings, the monthly rent of which is below Rs. 3/-. Proclamation VI of 1124 was in force when the plaintiff instituted the suit O.S. 458 of 1952 and it is in force even today. Since the monthly rent stipulated to be paid under Ext. J comes to only annas 8, the tenancy created under Ext. 3/-. Proclamation VI of 1124 was in force when the plaintiff instituted the suit O.S. 458 of 1952 and it is in force even today. Since the monthly rent stipulated to be paid under Ext. J comes to only annas 8, the tenancy created under Ext. J comes within the protection afforded by S. 6 of the Proclamation, with the result that the plaintiff's suit for eviction has to be held unsustainable, if it is to be found that the tenancy was subsisting on the date of the suit. To get over this difficulty it is argued on behalf of the lessor-plaintiff that the tenancy created under Ext. J came to an end with the destruction of the building which had been rented out to the defendants and with the construction of another building in its place by these tenants some time prior to the institution of the suit. It is this contention which has raised the controversy as to whether what the defendants have done amounts only to a repair to the building taken on rent or whether it amounts to a reconstruction of an entirely new building after destroying the old one. 6. In the case of a lease of a building the tenant is entitled to have the building maintained in such a condition that it is fit to be used for the purpose for which it was taken on rent. This right in him is statutorily recognised by Clause.(f) of S.108 of the Transfer of Property Act. That clause runs as follows: "If the lessor neglects to make, within a reasonable time after notice, any repairs which he is bound to make to the property, the lessee may make the same himself and deduct the expenses of such repairs with interest from the rent, or otherwise recover it from the lessor". It is thus obvious that the duty of attending to the repairs so as to keep the property in a fit condition to be used for the purpose for which it was leased out, is primarily that of the lessor. He cannot by his own neglect to attend to such necessary repairs, make the tenant suffer the consequential hardships and that is why the law has recognised in the tenant the right to attend to such repairs himself and to debit the expenses against the lessor. He cannot by his own neglect to attend to such necessary repairs, make the tenant suffer the consequential hardships and that is why the law has recognised in the tenant the right to attend to such repairs himself and to debit the expenses against the lessor. It has also to be remembered that under Clause.(m) of the same section, the lessee is bound to keep the property in as good a condition as it was in at the time when he was put in possession subject only to the changes caused by reasonable wear and tear or irresistible force and to restore possession to the lessor at the termination of the lease. The tenant will be in a position to keep the property in such a good condition only by attending to the necessary repairs from time to time. It is difficult to prescribe a general standard regarding the scope and the limitations of such repairs. It is obvious that the necessity for the repair of a particular building will depend on the extent to which it is worn out by lapse of time and on other circumstances. Most often repair would involve the replacement of the old and worn out parts of the building by new ones. The old parts still retained may have to be similarly replaced by new ones at a subsequent stage. By pursuing this process of repairs by renewal and replacement of old parts by new ones, a stage may be reached when the entire building may consist of parts thus renewed and replaced. But for that reason alone it cannot be said that the lease has come to an end because the building originally leased out has ceased to exist. Renewal or replacement of old and worn out parts is inevitable in a building leased, and hence the incidents of the lease arrangement will continue to be fastened to the building in its repaired condition also irrespective of the extent of the repairs that might have been necessitated by the circumstances of the particular case. In dealing with the question of such repairs to the buildings in the possession of a lessee, Fletcher Moulton, L.J., observed as follows in Lurcott v. Wakely & Wheeler (1911, I.K.B. 905 at 919): "Many, and in fact most, repairs imply that some portion of the total fabric is renewed, that new is put in place of old. In dealing with the question of such repairs to the buildings in the possession of a lessee, Fletcher Moulton, L.J., observed as follows in Lurcott v. Wakely & Wheeler (1911, I.K.B. 905 at 919): "Many, and in fact most, repairs imply that some portion of the total fabric is renewed, that new is put in place of old. Therefore, you have from time to time as things need repair to put new for old. If you properly repair as you go along the consequence will be that you will always get a house which will be in repair and usable as a house, but you will not get a house that does not suffer from age nor a house which when old is the same as when it was new". In the same case Buckley, L.J., made the following observations while dealing with the question of repairs: "'Repair' and 'renew' are not words expressive of a clear contract. Repair always involves renewal; renewal of a part; of a subordinate part". These principles have to be borne in mind while examining the nature of the alleged repair works done by the defendants to the but that was in their possession under the terms of the rent deed Ext. J. 7. The description of the but as given in Ext. J itself makes it abundantly clear that the but was constructed of flimsy materials. The entire roof was constructed of bamboos and it was thatched with cadjan leaves. The roof rested on a few wooden pillars and the sides were enclosed with wooden planks. The plaintiff has no case that he had done any repairs to this but at any time subsequent to 1.10.1117, the date on which the but was rented out to the defendants. By the time of the present litigations a period of nearly 10 years had elapsed since the defendants began to occupy this hut, and as such there can be no doubt that the flimsy materials used for the construction of the but most have become thoroughly worn out so as to necessitate substantial repairs and overhauling to prevent the but from tumbling down. Even at such a stage, the plaintiff was not prepared to do any repair work. He appears to have been anxious to prevent any such repair works being done even by the defendants themselves. Even at such a stage, the plaintiff was not prepared to do any repair work. He appears to have been anxious to prevent any such repair works being done even by the defendants themselves. On finding that the defendants had collected materials for thatching the but after replacing the worn-out bamboo rafters and wooden pillars, the plaintiff instituted the suit O.S. 121 of 1952 on the allegation that the defendants were attempting to reconstruct the but and praying for a permanent injunction restraining them from proceeding with that work. On this application the court issued an interim order of injunction against the defendants. The defendants immediately moved to have the interim order vacated, and in the objection petition filed by them it was definitely stated that they only wanted to attend to the urgently needed repairs to the but so as to make it safe for their habitation. In paragraph 4 of the counter-affidavit filed by the 1st defendant on 11.3.1952 it was definitely stated that unless the building was repaired and thatched there was the imminent danger of its tumbling down and becoming unfit for further use. Even in spite of such an allegation, the plaintiff was not prepared to come forward to have the but repaired and thatched. The court had therefore to modify the interim order of injunction by permitting the defendants to thatch the building and to repair the floor. It is obvious that the work of thatching could be done only after making the roof rest on stable foundation. For this purpose the defendants had necessarily to replace the worn-out pillars as also the worm-out bamboo rafters. The commission report Ext.G got prepared at the instance of the plaintiff immediately after the but had thus been renewed by the defendants, gives and idea of the nature and extent of the work which the defendants have done to make the but fit for their continued residence. From the details given in Ext. G, it is seen that the bamboo rafters which had been used for the roof of the old but had been replaced by wooden rafters and that all the supporting pillars excepting one had similarly to be replaced. The decayed pillars as also the decayed planks used for enclosing the rooms of the but were seen heaped up in front of the repaired hut. The decayed pillars as also the decayed planks used for enclosing the rooms of the but were seen heaped up in front of the repaired hut. The decayed bamboo rafters were also seen in that heap and the commissioner has made special mention of that fact in the report Ext. G. In repairing the floor its level was raised and some little masonry work was done on the sides and at the corners. It is obvious that such masonry works were found necessary to serve as a strong basis for the supporting pillars of the roof. The old but had dilapidated to such an extent that the aforesaid items of repairs had to be done for making it suitable for safe habitation. It is seen from the report Ext. G that such of the materials of the old but which were found serviceable have been retained while repairing the hut. What is significant to note is that the defendants have not chosen to construct any masonry walls for this but even at the stage of repairing it. On the other hand the rooms have been enclosed with wooden planks fastened to the pillars as before. What they have done was to replace the worn-out planks by new ones. By a scrupulous comparison of the several parts of the old but with the corresponding parts of the repaired or renewed hut, it can be seen that certain variations have taken place in the course of the repair work. In the case of such a thoroughly dilapidated but with the land-lord was not prepared to repair or renew, he cannot with any sense of propriety or fairness insist on mathematical accuracy being achieved in respect of the pattern and details of the old structure in the course of its repair by the tenant himself. All that can be expected in such a situation is that the structure repaired or renewed must be substantially of the same size and type as the old one, so that the tenant may continue to occupy the same under the subsisting terms of the tenancy in respect of that structure. Judged by this test it has to be found that what the defendants have done to the but which they had taken on rent under Ext. J., was only a work of repair or renewal which had become an imperative necessity in view of its unsafe condition. Judged by this test it has to be found that what the defendants have done to the but which they had taken on rent under Ext. J., was only a work of repair or renewal which had become an imperative necessity in view of its unsafe condition. The defendants were within their legal rights in resorting to such repairs for rendering the structure safe and suitable for their continued residence. The view taken by the lower courts that in effecting such repairs to the old but the defendants have been acting in excess of their right and that such acts have resulted in a termination of the tenancy created under Ext. J is clearly erroneous and unsupportable. 8. Even apart from the normal rights available to these defendants as lessees under Ext. J, to effect necessary repairs to the building taken on rent, they had a special obligation also in that direction in view of the covenant contained in the document that they will surrender the building to the lessor at the termination of the tenancy. It was in spite of the existence of such a covenant in Ext. J that the lessor plaintiff was hoping to get a premature termination of the tenancy by the destruction of the subject-matter of the tenancy on account of natural causes. That appears to have been the motive which prompted him to refrain from effecting any repairs to the building rented out under Ext. J and also to seek the aid of the court by the issue of an order of injunction restraining the defendants from attending to the urgently needed repairs and renewal works in respect of the same hut. From the stand taken by the plaintiff it is apparent that he was entertaining the idea that if the dilapidated but was left in that condition and is allowed to tumble down he could get these defendants evicted from the holding on the ground that the tenancy created under Ext. J has come to an end. The plaintiff has been attempting a novel and ingenious method of terminating the tenancy under Ext. J and of evicting the defendants from the holding in their possession. But such ingenious and novel methods are not countenanced by the law governing the rights and liabilities arising out of a tenancy like the one created under Ext. The plaintiff has been attempting a novel and ingenious method of terminating the tenancy under Ext. J and of evicting the defendants from the holding in their possession. But such ingenious and novel methods are not countenanced by the law governing the rights and liabilities arising out of a tenancy like the one created under Ext. J. As pointed out already, the defendants as tenants under Ext. J were strictly within their legal rights in keeping alive the tenancy by repairing and renewing the building and thus preventing its destruction. They must be deemed to be retaining possession of the building thus repaired and renewed under the same terms as embodied in Ext. J. Since the tenancy under Ext. J is subsisting the plaintiff is not entitled to maintain the suit O.S. 458 of 1952 for evicting the defendants from their holding in view of the ban imposed by S. 5 of Proclamation VI of 1124 of Cochin. All the conditions postulated by that section are satisfied by the tenancy created under Ext. J and hence the suit O.S. 458 of 1952 comes within the mischief of that section. That suit has therefore to be dismissed except in respect of the claim for arrears of rent for 3 years prior to the date of the suit. The reliefs claimed by the plaintiff by way of damages on account of the value of the old but alleged to have been destroyed by the defendants and by way of compelling the defendants to remove the existing building which is said to have been reconstructed by them, cannot also be granted in view of the finding that the defendants have only repaired and renewed the building taken on rent under Ext. J and that they are holding it under the terms embodied in Ext. J. 9. Coming to the other suit O.S. 121 of 1952, the only relief claimed by the plaintiff was to get a permanent injunction restraining the defendants from reconstructing the plaint building. Both the lower courts have found that the construction sought to be restrained is already over and that there is no necessity to issue any order of injunction as prayed for by the plaintiff. Accordingly that suit was dismissed. All the same the defendants were directed to pay the costs of the plaintiff. S.A. 25 of 1955 is directed against that part of the lower court's decree. Accordingly that suit was dismissed. All the same the defendants were directed to pay the costs of the plaintiff. S.A. 25 of 1955 is directed against that part of the lower court's decree. In view of the finding already recorded that the defendants were only repairing and renewing the dilapidated but so as to make it safe and suitable for their residence and that they were within their legal rights in attending to such works, the proper order for costs would be to direct the plaintiff to bear his own costs and to pay the costs of the defendants in respect of the litigation started by the plaintiff, without any good faith. 10. In the result both these seconds appeals are allowed in the manner and to the extent indicated above. In O.S. No. 458 of 1952 the plaintiff is given a decree to recover a sum of Rs. 18 by way of arrears of rent due for the three years prior to the institution of the suit. This amount will carry interest at 69. In all other respects that suit is dismissed. The another suit O.S. 121 of 1952 is also dismissed. Since the defendants had chosen to set up a false contention regarding the lease arrangement under which they came into possession of the plaint building, they will get only one-half of their costs throughout in both the suits from the plaintiff, who will suffer his own costs in all the courts. Interest on costs at 6 per cent. Allowed.