Judgment :- 1. The legal representatives of the plaintiff are the appellants. The plaintiff died during the pendency of the suit and his legal representatives were impleaded. The suit from which this appeal arises was instituted by the plaintiff for recovery of a plot of land with two buildings (items 2 & 3) thereon with arrears of rent and damages. The plot and buildings were outstanding on a lease under Ext. M dated 28 2 1947 with the respondent, a company incorporated under the Companies Act. On 411948 the two buildings caught fire as a result of which one of them was completely destroyed and the roofing of the other was entirely damaged. 2. The main contention of the defendant was that the destruction of item No. 3 and damage to item No. 2 buildings were the result of act of God and therefore it was not liable for any amount as damages. The respondent had insured the buildings valuing them at Rs. 5,000/-. The court below passed a decree for recovery of arrears of rent and for the amount which the respondent got from the Insurance Company i. e. Rs. 3, 207-9-6. The plaintiff had claimed damages to the tune of Rs. 8,770/ 3. The lower court found that there was no evidence of any negligence on the part of the defendant which could be said to be proximate cause of the destruction of the buildings by fire. It therefore negatived the plaintiff's claim for damages. 4. The main question argued by counsel for the appellants was that the defendant is answerable in damages for the loss caused by the fire and that the decree of the lower court negativing his clients' claim on the ground that they have not proved negligence of the respondent as the proximate cause of the destruction and damage of the buildings by fire is wrong. The fact that one building was completely destroyed and that the roofing of the other was irreparably damaged is not disputed in this case. The contention of the defendant, was that it was not on account of any negligence on their part that the buildings were destroyed by fire. There is no evidence to show how the buildings caught fire whether it was as a result of any deliberate act of any third party or not. The only evidence is that of pws. The contention of the defendant, was that it was not on account of any negligence on their part that the buildings were destroyed by fire. There is no evidence to show how the buildings caught fire whether it was as a result of any deliberate act of any third party or not. The only evidence is that of pws. 3 and 4 who deposed that they saw the fire in the buildings on the night of 4-1-1948. Plaintiffs case that the buildings were destroyed on account of negligence of the defendants was said to be proved by certain letters. The plaintiff was making complaints to the defendant that it was not properly looking after the buildings and the premises. Ext. I is a letter sent by the plaintiff to the defendant complaining that the defendant was not repairing the buildings and that the premises were not being properly maintained. It was also his case that he had orally intimated the agent of the defendant on several occasions about the neglected condition of the property and the buildings. Counsel therefore argued that it was the negligence of the defendant that occasioned the fire to the buildings. I do not think that it is possible to accept this argument because there is no proof that the alleged negligence led to the occurrence. The fact that the buildings were not thatched or the fact that the premises were not properly fenced had no causal connection with the occurrence of the fire. Counsel contended that under the provisions of Ext. M there was a duty on the part of the defendant to maintain and repair the property and the building. In Ext. M the lease deed there is a covenant that the defendant would maintain the property and the buildings in good condition. But that would not take in the liability for damages occasioned by fire. In the absence of a specific covenant in the lease deed imposing liability on the lessee for the destruction of the building on account of fire the lessee is not liable for any damage caused by fire unless it is further proved that it was by reason of the negligence of the lessee that the fire was occasioned. In the absence of a specific covenant in the lease deed imposing liability on the lessee for the destruction of the building on account of fire the lessee is not liable for any damage caused by fire unless it is further proved that it was by reason of the negligence of the lessee that the fire was occasioned. S.108 of the Transfer of Property Act casts the liability for loss occasioned by fire on a lessee only in case there is proof of negligence on the part of the lessee. Under clause (m) of that section, there is a liability on the lessee to surrender possession of the property at the end of the term in the condition in which the property was at the time when it was leased to the lessee. Counsel contended on the strength of this clause that as the lessee is bound to surrender the property in the condition in which it was on the date of the lease and as the lessee has made it impossible for him to restore the property in the same condition, reparation in damages, which would as far as money compensation can go place his client, in the position which they would have occupied, if the fire had not occurred should be given to his clients. 5. I do not find the argument persuasive. Under S.108 (m) the liability of the lessee to return the property in the condition in which it was at the time of the lease is not an unconditional liability. If the premises or the buildings are destroyed by fire on account of sheer accident or act of God a lessee is not responsible to compensate loss in damages. It is only when destruction or damage was the result of negligence of the lessee that he is bound to answer in damages. Therefore as the covenant in Ext. M, does not take in the liability for loss caused by fire and as the statutory obligation of the lessee does not rope in this liability, I do not think that the defendant can be made liable unless it is proved that the lessee was negligent and that negligence led to the loss by fire. 6. Counsel then contended that the fire must have occurred on account of the negligence of the defendant and that has to be presumed. 6. Counsel then contended that the fire must have occurred on account of the negligence of the defendant and that has to be presumed. His argument was that in a case like this where the lessee was placed in immediate possession of the property or at any rate where he was in management of it, it has to be presumed that negligence of the lessee was the cause of the fire. He relied upon the well-known doctrine res ipsa, loquitur for the purpose of showing that the burden of disproving negligence is on the defendant and that a plaintiff in such circumstances is not bound to lead any evidence of a negligence on the part of the defendant. The doctrine res ipsa loquitur had been evolved to meet cases of hardship occasioned by the fact that in several cases a plaintiff may not be in a position to lead evidence as to the exact facts and circumstances of the occurrence, those facts and circumstances being in the exclusive knowledge of the defendant. If the buildings are in the possession of a lessee he is the person who can be expected to know the circumstances under which the buildings caught fire. It was to avoid this difficulty that the doctrine was evolved by the Common Law Courts. It is at best a rule of evidence requiring the defendant to go forward with the evidence in cases where there is an initial presumption in favour of the plaintiff. The evidentiary nature of the rule is indicated by Lord Radcliffe in Barkway v. South Wales Transport Co., Ltd. (1950-1 All England Law Reports 392, 403) in the following words: "Mr Lords, I am at one with your Lordships in thinking that this appeal ought to be allowed. I do not think that the appellant was entitled to judgment in the action because of any special virtue in the maxim res ipsa loquitur. I do not think that the appellant was entitled to judgment in the action because of any special virtue in the maxim res ipsa loquitur. I find nothing more in that maxim than a rule of evidence, of which the essence is that an event which in the ordinary course of things is more likely than not to have been caused by negligence is by itself evidence of negligence." In Salmond on Torts at page 516 it is stated: "The rule that it is for the plaintiff to prove negligence, and not for the defendant to disprove it is in some cases one of considerable hardship to the plaintiff because it may be that the true cause of the accident lies solely within the knowledge of the defendant who caused it. The plaintiff can prove the accident, but he cannot prove how it happened so as to show its origin in the negligence of the defendant. This hardship is avoided to a considerable extent by the rule of res ipsa loquitur." The classical statement of the doctrine of res ipsa loquitur will be found in the words of Earl C. J. in the case reported in Scott v. London and St. Katherine's Docks Co. (1865)-3 H & C 596). The learned judge is reported to have said at page 601: "There must be reasonable evidence of negligence, but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care." In Bevan on Negligence, Edn. 4, Vol. 4, Vol. I at p. 126 the law on the subject is summarised as follows: "There must be reasonable evidence of negligence; and the mere occurrence of an injury is sufficient to raise a prima facie case: (a) when the injurious agency is under the management of the defendant; (b) when the accident is such as, in the ordinary course of things, does not happen, if those who have the management use proper care." The applicability of this rule to the case of a building leased and which caught fire is stated thus by Lord Goddard, C. J., in Sochacki v. Sas (1947-1 All England Law Reports 344, at 345): "Counsel for the defendants argued that I am bound to apply the doctrine of res ipsa, loquitur, but I do not think this is a case of res ipsa loquitur. Everybody knows fires occur through accidents which happen without negligence on anybody's part. There is nothing here to show that the plaintiff left any improper fire in his room, any larger fire than usual, a fire which was too large for the grate, or anything like that ... I do not consider that the doctrine of res ipsa loquitur could possibly apply to a case such as this." In Deputy Lal v. Reoti Prasad (AIR. 1941 All. 327) Dar, J., considered the applicability of the rule to the case of an accident by fire to a building leased and found on the facts of that case that a stage had been reached where the presumption of negligence arose against the defendant and that it was for the defendant to explain how the fire occurred. There it was found that the defendant was in the habit of boiling milk in the room marked Y in the plan in which room, were also stored account books and a lot of paper and in the neighbouring room marked X there were stored cow-dung cakes and as a result of the negligence of the defendant the fire was transferred from the pot to the paper and to the fuel and burned the building. On the basis of these facts, the High Court found that there was a prima facie case of negligence and it was for the defendant to explain that the fire occurred in spite of his care and diligence. In Sri Gurupada v. Sri Haripada (AIR. On the basis of these facts, the High Court found that there was a prima facie case of negligence and it was for the defendant to explain that the fire occurred in spite of his care and diligence. In Sri Gurupada v. Sri Haripada (AIR. 1962 Calcutta 263) a Division Bench of the Calcutta High Court has held that the application of the doctrine of res ipsa loquitur to the case of a fire occurring in a building is conditioned by the proof of other facts. There a tenant despite the clause in the lease deed prohibiting the transfer of the lease and in spite of the provision to use the premises only for storing goods, underlet it to sub-tenants who used the buildings for other purposes and in the course of that, used the floor which was made of wood, for cooking purpose. His Lordship P. N. Mukkerjee, on the basis of these facts observed: "In the peculiar facts and circumstances of this case, having regard particularly, the nature of the structure concerned and the admitted uses for which it was put by the alleged sub-tenant or sub-tenants, there would be upon a reasonable view of things, a presumption of negligence on the part of the alleged sub-tenants, for which, in law, the tenant defendant No.1 would be liable. It is enough, for this purpose to refer to the decision of the Allahabad High Court in Deputy Lal v. Reoti Prasad (AIR. 1941 All. 327)." East India Distilleries Ltd., v. Mathies (AIR. 1928 Mad. 1140) is a case which comes closer to the facts of the present case. That was a case where the building leased was destroyed by fire. No evidence was adduced to show how the accident occurred. The appellant relied on the rule of res ipsa loquitur. It was held that there is no presumption that the lessee was guilty of negligence. Negligence has to be proved by the plaintiff and the mere fact that a watchman was not appointed on the night of the occurrence of the fire was no evidence of negligence which was the proximate cause of the fire. Couts-Trotter, C. J., held: "But in India S.108, T. P. Act, clearly contemplates that a lessee should not be responsible for the consequences of fire unless he has definitely taken that burden upon his shoulders by his covenant. Couts-Trotter, C. J., held: "But in India S.108, T. P. Act, clearly contemplates that a lessee should not be responsible for the consequences of fire unless he has definitely taken that burden upon his shoulders by his covenant. In my opinion the material covenant of this lease did not contemplate the case of fire at all." He further said: "In my opinion there is no evidence of negligence here or at any rate of negligence which had any causal connexion with the fire" The question was considered in Mohd. Habib v. Ramanarain Lall (AIR. 1959 Patna 348). The head-notes of the report correctly sets out the gist of the decision: "Where the house leased out to the defendant was destroyed by fire, the onus of proving negligence on the part of the defendant is on the plaintiff landlord. The doctrine of res ipsa loquitur does not apply to such a case and the normal rule of evidence must prevail. In the absence of any evidence that the fire was due to the defendant's negligence, no decree for damages can be granted to the plaintiff in tort." There was no allegation in the plaint of any definite facts, much less was there any proof of facts from which any inference as to negligence can be made. As the acts of negligence alleged had no relevance on the question of the accident, it is difficult to see how the rule can be applied to this case. "The plaintiff cannot rely upon an inference of negligence unless he has alleged in the pleadings and proved at the trial the facts from which the inference is to be drawn. To these cases the maxim res ipsa loquitur applies." (Halsbury's Laws of England, 3rd Edn. Vol. 28, S.79 at page 77). 7. In the case I am deciding there is no proof that the defendant had used the buildings for any purpose except for storing goods manufactured in the defendant's factory. At no time was there any occasion for use of fire in the building. So defendant could not be said to have been in the management of an agency which occasioned the destruction of the building; and therefore there is no question of applying the maxim res ipsa loquitur. At no time was there any occasion for use of fire in the building. So defendant could not be said to have been in the management of an agency which occasioned the destruction of the building; and therefore there is no question of applying the maxim res ipsa loquitur. The facts proved in this case, namely that defendant was not in actual physical occupation of the buildings, that fire was not used in the buildings either for cooking or other purposes, show that it is more probable that the accident was due to causes other than the negligence of the defendant. "The maxim res ipsa loquitur will not be applied to an accident where from the nature of things the probability that the accident is due to negligence is no greater than that it is not so due. It is, however, applicable where the probability that the accident is due to negligence is materially greater than that it is not so due, and the circumstances directly contributing to the accident are such as should have been within the control of the defendant." (Halsbury's Laws of England S.83 at p. 79). If the maxim cannot be applied then the proof that the defendant was negligent must be adequate to saddle the defendant with responsibility. Plaintiff has not adduced any evidence to show that the defendant's negligence occasioned the fire. The only proof which he attempted was that the buildings were not thatched, and that the fencing around the premise was in disrepair which. gave easy access for wayfarers to get into the property. These instances of negligence in the management of the property are not sufficient in law to make the defendant liable for damages caused by fire as there is no causal connection between them and the accident. In these circumstances I cannot accede to the submission of counsel for the appellant that there is sufficient evidence of negligence on the part of the defendant and it was this negligence that occasioned the accident. 8. It was contended by counsel that the defendant was guilty of negligence in not appointing a watchman for the property. In these circumstances I cannot accede to the submission of counsel for the appellant that there is sufficient evidence of negligence on the part of the defendant and it was this negligence that occasioned the accident. 8. It was contended by counsel that the defendant was guilty of negligence in not appointing a watchman for the property. He relied upon the letters sent by the plaintiff to the defendant asking it to appoint a watchman and the reply of the defendant that a watchman will be appointed to show that in spite of the plaintiff's undertaking no watchman was appointed and that it was because there was no watchman that strangers could set fire to the building. I do not think that that contention is entitled to any weight. This very same question was considered in AIR. 1928 Madras 1140 and their Lordships disposed of the contention by saying that there was no connection between the appointment of a watchman and the occurrence of the fire. Therefore the argument of counsel that the absence of a watchman on the scene facilitated the occurrence is not sufficient in law to throw the loss caused by fire upon the defendant. 9. I do not think it necessary For me to deal with the other questions raised in this appeal by counsel for the appellant about the value of the building and other subsidiary matters in view of my finding on the main question of the liability for the destruction of the buildings. As I have found that the defendant is not liable for any damages on account of negligence I agree with the conclusion of the lower court in dismissing the claim for damages. 10. In the result, the finding of the lower court is confirmed and the appeal is dismissed with costs. Dismissed.