GOSWAMI, C. J. :- This second ap­peal is by the defendant against the decree of the learned Subordinate Judge, L.A.D, Gauhati, reversing to earlier decree of the learned Munsiff. 2. The plaintiff's case is that he is the owner of the land mentioned in the schedule measuring 1 Bigha 8 Lechas of dag No. 44/557 Annual Patta standing in his name. The plaintiff had his houses on the land and the defendant occupied one thatched house on a monthly rent of Rs. 5/-since December, 1954. This house was burnt in 1956 and thereafter the defen­dant, in spite of protests from the plaintiff, forcibly constructed his house there and has been in wrongful occupation of the land. There was some dispute regarding the annual patta between the plaintiff and the defendant. But the matter was finally settled by an order of the Revenue Board on 5th August, 1963, holding that the plain­tiff's patta was in force. The defendant was trying to make further constructions on the land in spite of protests from the plaintiff and hence this suit for khas pos­session of the land by "removal of the tem­porary houses of the defendant." The defendant admitted that the plain­tiff had leased out the land measuring 4 kathas of the annual patta on 3rd Decem­ber, 1954, at Rs. 5/- per mensem "for doing business by constructing the house thereon." The defendant thereafter con­structed five thatched houses on the land. The houses were gutted by fire on 15th January, 1956 and the defendant again constructed his house on the land in suit. The defendant further states that after tak­ing lease from the plaintiff, the latter gave assurance to execute a sale deed for the land in suit in favour of the defendant and took a sum of Rs. 370/- by instalments. He therefore prayed for dismissal of the suit. 3. The learned Munsiff dismissed the suit on the ground that it was not main­tainable in absence of a prayer for declara­tion of right and title to the land. The learned Subordinate Judge in appeal de­creed the suit on the ground that the de­fendant admitted the plaintiff's title in his written statement as well as in Ext. A (same as Ext. 7), a letter dated 15th September, 1955 written by the defendant to the plaintiff. The learned Subordinate Judge in appeal de­creed the suit on the ground that the de­fendant admitted the plaintiff's title in his written statement as well as in Ext. A (same as Ext. 7), a letter dated 15th September, 1955 written by the defendant to the plaintiff. Since the learned Munsiff held the defendant to be a tenant first and thereafter a trespasser on the land, the learned Subordinate Judge on that finding held the suit to be maintainable and de­creed the same. Hence this second appeal. 4. The only point which is urged by the learned counsel for the appellant is that since the defendant was a tenant the suit is liable for dismissal in absence of a notice under Section 106 of the Transfer of Property Act. It is admitted that no notice has been served on the defendant. The learned counsel for the respondent submits that since the house which had been let out to the defendant was destroyed by fire, the lease came to an end and the defendant, after that, was only continuing as a trespasser and hence no notice under Section 106 of the Transfer of Property Act is necessary. He invokes the provisions of Section 56 of the Indian Contract Act, in support of his submission. 5. It is the plaintiff's case that the defendant came to the land in suit and occupied his house thereon as a tenant. When the house was gutted bv fire, the defendant instead of surrender­ing the land, constructed his own house on the land in spite of protest and con­tinued to occupy the same. On the above facts, the point that arises for considera­tion is whether the lease that is admitted by the defendant determined on the des­truction of the house. Section 105 of the Transfer of Property Act defines 'lease'. It is a transfer of a right to em'ov immo­vable property. It is not a contract but a concluded transfer. There may be some covenants in the lease, but that does not make it less a transfer of the right to enioy the property. Since the right to em'ov the property has been already transferred under the lease to the defendant, under Section 111 it will determine only under the eight modes mentioned in that section. There may be some covenants in the lease, but that does not make it less a transfer of the right to enioy the property. Since the right to em'ov the property has been already transferred under the lease to the defendant, under Section 111 it will determine only under the eight modes mentioned in that section. It is true that in this case the defendant renounced the title of the plaintiff, in which case the plaintiff was entitled to urge that the lease determined under Section 111(g). But in that case, he would be respired to give a notice in writing to the lessee of his intention to determine the lease. Even such a notice has not been given in this case. Under Section lll(h), a lease determines on the expiration of a notice to determine the lease. This notice is the one which is required to be given under Section 106 of the Transfer of Property Act. No such notice also has been given in this case. We may next turn to Section 108 (e) of the Act: "if by fire..................any material part of the property be wholly destroy­ed or rendered substantially and per­manently unfit for the purposes for which it was let. the lease shall, at the option of the lessee, be void." The plaintiff states that the house was gutted by fire, but as it appears from the plaint the lease was of the entire land measuring a bigha and odd with house thereon. Simply because a mate­rial portion of the property, namely the house, was wholly destroyed by fire, the lease does not automatically determine, unless the lessee exercises his option on that ground. It is the lessee who can avoid the lease under such circumstances. This has not been done and the lessee is admittedly continuing in occupation of the property. That being the position, there is no determination of the lease which was subsisting on the date of the institution of the suit. It was open to the plaintiff to choose whether he would give a notice under Section 106 or under Sec­tion 111(g) of the Transfer of Property Act prior to the institution of the suit. In absence of any notice determining the lease, the plaintiff's suit is liable to be dismissed. 6. It was open to the plaintiff to choose whether he would give a notice under Section 106 or under Sec­tion 111(g) of the Transfer of Property Act prior to the institution of the suit. In absence of any notice determining the lease, the plaintiff's suit is liable to be dismissed. 6. Even so the learned counsel for the respondent submits that the agree­ment has frustrated on account of the destruction of the property. He relies upon Section 56 of the Contract Act to support his contention. Section 56. so far as it is material, runs as follows: "An agreement to do an act impos­sible in itself is void. A contract to do an act which, after the contract is made, becomes impossible. or. by reason of some event which the promisor could not prevent, unlawful, be­comes void when the act becomes impos­sible or unlawful. x x x x" It is contended that on the destruction of the houses by fire, the contract arising put of the lease has failed and the lease is therefore no longer in force. Section 56 in terms applies to a contract which becomes void when the contract to do an act becomes impossible of performance. The section does not say that a concluded transfer of interest becomes void . Sec­tion 56 therefore does not apply to a case of lease which is governed bv the provi­sions of the Transfer of Property Act. Under Section 4 of the Transfer of Pro­perty Act. the chapters and sections of the Transfer of Property Act which relate to contracts are taken as part of the Indian Contract Act. but the provisions of the latter Act cannot be read into the provi­sions of the Transfer of Property Act. We are not concerned here with the nature and rationale of the doctrine of frustration of contract as known in the early English Law noted in Paradine v. Jane, 1947 Alevan 26 where the basic rule as to absolute contracts was indeed rigorous. The rule directed that when the law casts a dutv upon a man which, throush no fault of his. he is unable to perform, he is excu­sed for non-performance; but if he binds himself by contract absolutely to do a thing, he cannot escape liability for dama­ges by proof that as events turned out performance is futile or even impossible. Later on. he is unable to perform, he is excu­sed for non-performance; but if he binds himself by contract absolutely to do a thing, he cannot escape liability for dama­ges by proof that as events turned out performance is futile or even impossible. Later on. the rigour of the rule was miti­gated in Taylor v. Caldwell and other cases providing that 'if the further fulfil­ment of the contract is brought to an abrupt stop by some irresistible and ex­traneous cause for which neither party is responsible, the contract shall terminate forthwith and the parties be discharged.' (See Cheshire and Fifoot on the Law of Contract. Fifth Edition, Page 462). That doctrine of frustration is not of relevance in the present case governed by the pro­visions of the Transfer of Property Act. As the Supreme Court has observed in Dhruva Dev v. Harmohinder Singh. AIR 1968 SC 1024 : "It has been held by this Court that the rule in Section 56 exhaustively deals with the doctrine of frustration of con­tracts, and it cannot be extended by ana­logies borrowed from the English com­mon law." (Para 8) X X X X X X X "By its express terms S. 56 of the Contract Act does not apply to cases in which there is a completed transfer. The second paragraph • of S. 56 which is the only paragraph material to cases of this nature has a limited application to cove­nants under a lease. A covenant under a lease to do an act which after the con­tract is made becomes impossible or by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or un­lawful. But on that account the transfer of property resulting from the lease granted by the lessor to the lessee is not declared void ." (Para 11) Section 56 of the Contract Act therefore is of no assistance to the respondent in this case as that section does not apply to leases and we cannot agree with the view expressed in the decision of the Calcutta High Court in AIR 1950 Cal 441 (Kshitish Chandra v. Shiba Rani Debi). strenuously relied upon by the learned counsel, for the reasons given above. 7. In the result, the appeal is al­lowed. strenuously relied upon by the learned counsel, for the reasons given above. 7. In the result, the appeal is al­lowed. The judgment and decree of the court below are set aside and the plain­tiff's suit stands dismissed, but we will make no order as to costs. B.N.Sabma J. : 8. I agree. Appeal allowed.