JUDGMENT Deoki Nandan, J. - This is a plaintiffs Second Appeal. The plaintiff was the tenant of a shop belonging to the defendant Municipal Board on payment of Rs. 2/- per month as rent. According to the plaintiffs, on account of the malice of certain members of the defendant Municipal Board against him, the shop was illegally demolished on the 17th Sept., 1963 in his absence and the material thereof was removed by the defendant Municipal Board. This resulted in the plaintiffs ejectment from the shop against his wishes, and the business, which he was carrying on therein, came to an abrupt end, but, in the words of the plaintiff himself, he "does not treat his lease of the disputed building as void and insists on the defendant to get the building reconstructed at its own cost on the same site so that the plaintiff might continue his business". He also claimed damages to compensate the loss of income from the business and its goodwill. The following were the reliefs claimed by the plaintiff: - "(a) The defendant be ordered to get the disputed building reconstructed at the same site at its own costs within a time to be fixed by the Court failing which the plaintiff be authorised to get it reconstructed and to recover the amount spent in its reconstructions from the defendant with legal interest, valued at Rs. 1,000/-. (b) A decree for Rs. 900/- be passed in plaintiffs favour against the defendant on account of loss of business of the plaintiff from 17-9-1963 to 17-3-1964 at the rate of Rs. 150/- per month and also pendents lite and future damages at the same rate be awarded to the plaintiff on payment of further court-fees in the execution department. (c) A decree for Rs. 1.100/- on account of Joss of goodwill of the plaintiffs business which was being carried on in the building be passed in plaintiffs favour against the defendant. (d) The plaintiff be put in possession of the disputed building bounded as below as and when it is got reconstructed by the defendant under relief (a) and on defendant's failure to give possession to the plaintiff the plaintiff be given possession through Court valued at Rs. 24/-." 2. (d) The plaintiff be put in possession of the disputed building bounded as below as and when it is got reconstructed by the defendant under relief (a) and on defendant's failure to give possession to the plaintiff the plaintiff be given possession through Court valued at Rs. 24/-." 2. The defendant Municipal Board contested the suit and contended that the building was in a ruinous condition and being dangerous to the general public, it was got demolished by the defendant Municipal Board in the discharge of its statutory duties and obligations in the interest of general public after notice to the plaintiff. The plaintiff had already abandoned the shop and surrendered the tenancy. The allegation about goodwill of his business and the loss said to have been suffered by him were all denied. 3. The following are the issues on which the parties went to trial : - "1. Whether the plaintiff had surrendered his tenancy?" "2. Whether the defendant had illegally demolished the building mala fide?" "3. Whether the plaintiff suffered any loss of business and goodwill due to any act of the defendant? If so, is he entitled to recover any damages on this account? If so what amount?" "4. Whether the plaintiff is entitled to get the building reconstructed and possession restored?" "5. Relief?" 4. The trial court found on issue No. 1 that the plaintiff had not surrendered his tenancy rights in the building; on issues Nos. 2 and 3, that the building was in a dangerous and dilapidated condition at the time of its demolition, and it could not be said to have been demolished unlawfully, nor did the plaintiff suffer any loss of business or goodwill by the demolition of the building; and on issues Nos. 4 and 5, that the plaintiff was not entitled to any relief; and dismissed the suit accordingly. The lower appellate court maintained the trial court's decree dismissing the suit. It found that the shop was in a ruinous condition at the time of its demolition and the defendant Municipal Board could have lawfully demolished it after notice to the plaintiff who was its occupier. But the defendant Municipal Board got it demolished without serving any proper notice on the plaintiff and thus the building was demolished illegally. It found that the shop was in a ruinous condition at the time of its demolition and the defendant Municipal Board could have lawfully demolished it after notice to the plaintiff who was its occupier. But the defendant Municipal Board got it demolished without serving any proper notice on the plaintiff and thus the building was demolished illegally. It further found that the plaintiff did not avoid the lease and his tenancy did not, therefore, come to an end, but the plaintiff had no right to compel the defendant Municipal Board to make a new construction for him and all that the plaintiff could claim was damages for breach of covenant of peaceful enjoyment of the lease; but on the evidence, the lower appellate court held that the plaintiff had not succeeded in proving that any loss was suffered by him and as such he was not entitled to claim any damages from the defendant. 5. Having heard the learned counsel for the parties in this Second Appeal, I find it difficult to comprehend the basis on which the defendant Municipal Board could invoke S. 263 of the U. P. Municipalities Act for demolition of the shop. That section authorises a Municipal Board to require by notice the owner or occupier of any land or building to demolish or to repair it where it appears to the Board to be in a ruinous condition or dangerous to persons or property. In the present case, the defendant Municipal Board was itself the owner of the building. The word 'occupier' according to the definition cl. (11) of S. 2 of the U. P. / Municipalities Act, 1916, includes an owner I, in actual occupation of his own land or building. A tenant may certainly be included within the meaning of an occupier, but a tenant cannot be required to demolish or to repair a building unless he has the right to demolish it or is under a liability to repair it. The defendant Municipal Board itself being the owner it had the right to demolish the building without any such statutory authority and was probably under a duty to repair it also. The defendant Municipal Board itself being the owner it had the right to demolish the building without any such statutory authority and was probably under a duty to repair it also. It would be a misuse of power for a Municipal Board to accomplish the % ejectment of a tenant by requiring him to demolish the building owned by it, by notice under S. 263, instead of taking the obvious step of requiring the tenant to vacate and to itself demolish the building after it has been vacated. If the building is in such ruinous or dilapidated condition as to cause danger to the tenant in occupation thereof, it is the tenant's own business to vacate in order to save himself from the injury which may be occasioned by the collapse of the building, and if the defendant Municipal Board as the landlord serves a notice in due time on the tenant to vacate on account of the ruinous condition of the building, it would be under no legal liability to compensate the tenant for the injury, if any, occasioned to him by the collapse of the building on account of its being in a ruinous condition. It would be a rare case indeed in which the building is in such a ruinous condition as to be likely to cause injury to third persons not in occupation of the building and at the same time not likely to cause any injury to the tenant in occupation of it. However, since the point was not raised in eitherr of the two courts below and was not argued at the Bar of this Court either, I leave the matter at that. It is sufficient for the disposal of this case to proceed on the basis that the demolition was not warranted by S. 263 of the U. P. Municipalities Act, 1916, as the necessary notice thereunder was not served by the defendant Municipal Board on the plaintiff. 6. But the defendant Municipal Board did succeed in demolishing the building without causing any injury to any person or property of the plaintiff, for it appears that the building was not occupied at the time when it was demolished. 6. But the defendant Municipal Board did succeed in demolishing the building without causing any injury to any person or property of the plaintiff, for it appears that the building was not occupied at the time when it was demolished. The defendant Municipal Board was the owner of the building and it is indisputable that as owner the defendant Municipal Board could lawfully demolish the building so long as that did not cause any injury to any person or property belonging to another. I find it difficult to agree with the lower appellate Court, if the implication of its finding on this point, is that the Municipal Board could not have demolished the building, although it was the owner thereof, except by serving a notice on the tenant whether he was in actual occupation of the building or not. If S. 263 of the U. P. Municipalities Act applied, the defendant Municipal Board as the owner of the building was not required to serve a notice on any one who was not in occupation of the building at the time of its demolition. The plaintiff was obviously not in occupation of any part of the building, for there is no complaint that any person or property was injured by the act of demolition or that he was illegally evicted from the building by force before the demolition. The judgment of the lower appellate Court only says that the shop was in formal occupation of the plaintiff. The position probably was that the plaintiff claimed to be a tenant of the shop, but was not in actual physical occupation of it, for the shop was in a ruinous condition and probably not fit for occupation. The first question, which, therefore, arises in the present Second Appeal is whether the defendants' act of demolishing the shop was illegal and if so whether the plaintiff was entitled to any of the several reliefs claimed by him. 7. Mr. Prakash Gupta, learned counsel for the plaintiff-appellant, contended that the doctrine of frustration contained in S. 56 of the Contract Act has been carried into and enacted in the form of cl. (e) of S. 108 of the T. P. Act. 7. Mr. Prakash Gupta, learned counsel for the plaintiff-appellant, contended that the doctrine of frustration contained in S. 56 of the Contract Act has been carried into and enacted in the form of cl. (e) of S. 108 of the T. P. Act. His argument was that there was a lease from month to month, in this case, terminable by notice under S. 106 of the T. P. Act, and in the absence of such determination it continued interminably from month to month. On the destruction of the subject-matter of the lease, that is the Shop, it was open to the lessee, that is the plaintiff, to avoid the lease if he so desired and save himself from the liability of payment of rent reserved by the lease. The next step of the argument was that in spite of the continuance of the lease, the plaintiff had, in fact, been dispossessed and he was entitled at least to be put into possession of whatever remained of the demised premises and what had remained after the demolition of the shop was the land. Therefore Mr. Prakash Gupta urged that the plaintiff was entitled to be put into possession of the land under cl. (b) of S. 108 of the T. P. Act. 8. Cl. (e) of S. 108 of the T. P. Act runs thus : - "(e) if by fire, tempest or flood, or violence of an army or of a mob or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purpcc^s for which it was let, the lease shall, at the option of (fie lessee, be void. Provided that, if the injury be occasioned by the wrongful act or default of the lessee, he shall not be entitled to avail himself of the benefit of this provision." 9. The provision postulates the destruction of the property leased by fire, tempest, flood or irresistible force. The destruction of the demised premises contemplated by the clause is a destruction by some external force, not which the parties, that is the lessor or the lessee could not successfully resist. It does not contemplate a destruction of the property by the lessor himself. The destruction of the demised premises contemplated by the clause is a destruction by some external force, not which the parties, that is the lessor or the lessee could not successfully resist. It does not contemplate a destruction of the property by the lessor himself. So far as the lessee is concerned, the proviso to the clause makes it clear that if the injury to the property is occasioned by the wrongful act or default of the lessee, he shall not be entitled to avail himself of the benefit of this provision. The provision does not confer any benefit of option, or any other benefit on the lessor. It contemplates a situation where the property demised is destroyed or rendered substantially and permanently unfit for use. It thus contemplates a situation where the lessor has ipso facto suffered loss by the destruction of the property. It does not impose any obligation on the lessor to rebuild the property or to make it fit for the purpose for which it was let. The option given to the lessee is to treat the lease to be void, and thus save himself from the obligation of payment of rent etc. I do not think the framers of the T. P. Act ever contemplated a situation where a lessor will find it advantageous to destroy a building; and the land would be more valuable or useful without the building than with the building standing thereon, and the tenant would be interested in retaining the land even without the building and paying the full rent which was originally reserved to be paid for the building and land both. Clause (e) of S. 108 of the T. P. Act does not, in my opinion, apply to a case where the demised premises is destroyed or rendered unfit for the purpose for which it was let, by an act of the lessor himself, such a provision was unnecessary, for an owner of property can be presumed to act in his own interest, which must normally be on the side of preserving the property. On the other hand, if the owner of a property finds that the destruction of the property or any part thereof is beneficial to him, no one can stop him from destroying the property, unless there be some law to prohibit an owner from destroying his property even if he finds that to do so would be beneficial to him. I do not find any such prohibition against destruction of a building by its owner, in cl. (e) of S. 108 of the T. P. Act. Even if that clause applies to a case of destruction by the lessor, the only option given to the lessee is to treat the lease to be void on such destruction, that presupposes the continuance of the lessee's possession over the building, particularly in a case of a lease from month to month, since before its destruction; but supposing that is not so, the question is whether on the lessee's failure to avail of the option to treat the lease as void in spite of his being out of possession, can the lessor bring the lease to an end, and not demand rent, without even serving a notice of termination of the lease under S. 106 of the T. P. Act. Clause (e) of S. 108 does not give the lessor any option. The option given to the lessee is not to treat the lease to have become void. It means that in a case where cl. (e) of S. 108 of the T. P. Act applies, the lease continues unless either the lessee exercised the option of treating it to be void, or in the case of a tenancy from month to month or year to year, the lessor determines it by notice under S. 106. Clause (e) of S. 108 of the T. P. Act has no further operation. But where, as in this case, the lessee is out of possession and has not exercised the option of treating the lease to be void, in spite of the destruction of the property, can he compel the lessor to rebuild the property and to recover possession, or at any rate, recover possession of the site, or the land that remains. But where, as in this case, the lessee is out of possession and has not exercised the option of treating the lease to be void, in spite of the destruction of the property, can he compel the lessor to rebuild the property and to recover possession, or at any rate, recover possession of the site, or the land that remains. The question arises this way because in the case of immovable property, even after a total destruction of the building or other paraphernelia of the demised premises, the land does remain intact, provided the demised premises were situate on the ground, and not on the upper floor, as land is indestructible. 10. The aforesaid question implies that the lease continues on the destruction of the demised premises whether by the lessor or by irresistible force, even where the lessee is not in possession of the demised premises, not even of the land or whatever remains of the demised premises after their total or partial destruction. I have observed above that the language of cl. (e) of S. 108 of the T. P. Act shows that it applies to a case of destruction of the demised premises by some external force which the parties are unable to resist, but proceeded to examine the question further on the assumption that in all cases of destruction of the demised premises, the option to treat the lease to be void may be of the lessee, but that was on the further assumption that the lessee has continued in possession of the demised premises or whatever has remained of them after their total or partial destruction. If the issue has continued to be in possession and does not treat the lease to be void, obviously the lessor could determine the lease and get back possession, by notice under S. 106 of the T. P. Act if the lease was from month to month or year to year, or on the termination of the lease if it was a lease for a term, and the term of the lease had not expired. 11. Where the lessee is out of possession, and the term of the lease has not expired, he may indisputably require the lessor to put him in possession under cl. 11. Where the lessee is out of possession, and the term of the lease has not expired, he may indisputably require the lessor to put him in possession under cl. (b) of S. 108 of the T. P. Act, but in the case of lease from month to month or from year to year, assuming that the lease does not stand determined on the destruction of the demised premises before the end of the month or the year of the tenancy in which the destruction of the premises takes place, the further question, which arises, is whether the lease is automatically extended beyond the end of that month or that year, in spite of the destruction of the subject-matter of the lease. It may be that a lessee may, in such a situation, insist on retaking possession on whatever remains of the demised premises, may be the land only, or the site of the building as it is, without requiring the lessor to rebuild or to reconstruct the demised premises, with the aid of cl. (e) of S. 108, but, when the lessee asks the lessor to rebuild, or to reconstruct or to restore the destroyed premises to their original condition, the lessor can justifiably tell the lessee that you opted for the continuation of the lease in spite of the destruction of the whole or part of the premises and, therefore, you are now estopped from requiring me to rebuild and restore the demised premises", for that would amount to saying that, on the destruction of a building or other such demised premises by irresistible force, as mentioned in cl. (e) of S. 108 of the T. P. Act, the lessee may require the lessor to restore the building or the demised premises to their original condition and not to treat the lease as void. In my view, it is not possible to construe cl. (e) of S. 108 in that manner and that being so, a lessee cannot compel the lessor to restore the demised premises to their original condition. The question whether the lessor can, in such a situation, determine a month to month or year to year lease without serving notice under S. 106 of the T. P. Act, would thus not arise, unless the lessee demands restoration of possession on the land without insisting on a reconstruction or rebuilding of the demised premises. The question whether the lessor can, in such a situation, determine a month to month or year to year lease without serving notice under S. 106 of the T. P. Act, would thus not arise, unless the lessee demands restoration of possession on the land without insisting on a reconstruction or rebuilding of the demised premises. That is not the situation here. The first relief claimed by the plaintiff is reconstruction of the building at the same site. That relief cannot, in my opinion, be allowed, and the plaintiff has not demanded possession over the land or the site of the building alone. The question whether the lease continued or not is, therefore, academic and refrain from expressing any concluded opinion on the point. 12. Mr. Prakash Gupta, however, contended that the court could grant the plaintiff relief for possession over the land or the site of the building that was destroyed although such relief was not claimed inasmuch as it was smaller than the relief claimed for being put into possession of the building after it had been got constructed, under relief (a). This is one of those cases where the relief for possession over the land or the site of the building is included within the relief claimed; and the Court should be loath to grant it in the exercise of its discretionary powers, inasmuch as on the fact and circumstances, it is not a lesser relief than that claimed under reliefs (a) and (b) put together, but is probably a greater and wider relief than all the reliefs put together. 13. Mr. Prakash Gupta then cited a decision of the Calcutta High Court in Mahadeo Prasad v. Calcutta Dyeing and Cleaning Company, AIR 1961 Cal 70 , in support of his claim for possession. I do not think that that case helps the plaintiff in the case before me. After obtaining possession of the demised property in execution of an ex parte decree for possession, the property was demolished by the Calcutta Corporation for being in a dilapidated condition. I do not think that that case helps the plaintiff in the case before me. After obtaining possession of the demised property in execution of an ex parte decree for possession, the property was demolished by the Calcutta Corporation for being in a dilapidated condition. The ex parte decree was set aside on a prayer for restitution under S. 144 of the Civil P. C. A learned single Judge of the Calcutta High Court expressed the view that the tenant was entitled to restitution until such time as a decree for ejectment was passed by a competent court; inasmuch as the tenant had opted not to avoid the lease in spite of the destruction of a part of the property leased to him, but it was expressly made clear in the order that there was no question of restitution with regard to the demolished structure. The reason given was that the "structure has been demolished and is not in existence, so no question of tenant's option arises with regard to the non-existing properties." A further clarification was added in the order. It was held that "the structure was leased out, not the land underlying and after the structure was demolished, the tenant cannot be put in possession of that structure as a matter of fact even if he would like to be so put in possession; he has no right to build on the land another structure nor has he any right to compel the landlord to raise a similar structure for him; he may have some right for abatement of rent but that is not for me to decide. He would be, therefore, prostituted to possession of other property leased out than the structure demolished." Of the other cases at the Bar, in Sitaram v. Aryumuni; 1965 All L J 689; a learned single Judge of this Court followed the above view of the Calcutta High Court on this point. In Dr. He would be, therefore, prostituted to possession of other property leased out than the structure demolished." Of the other cases at the Bar, in Sitaram v. Aryumuni; 1965 All L J 689; a learned single Judge of this Court followed the above view of the Calcutta High Court on this point. In Dr. Kundan Lal v. Shamshad Ahmad, AIR 1966 All 225 , a learned single Judge of this Court held that in case of the destruction of the leased accommodation through no fault of the landlord, the tenant can avoid payment of rent only if he declares the lease void under S. 108 (e) of the T. P. Act, but if he fails to do so, the lease will subsist for the benefit of both parties and the landlord is entitled to claim rent. In the result, a decree for recovery of the entire amount of rent without abatement in spite of the destruction of the demised premises was upheld by this Court, although the tenant appears to have surrendered possession after the suit was filed and the landlord did not press for a decree for ejectment in view of that fact. 14. If the destruction of the demised premises by the lessor, leading to all the aforesaid consequences or non-consequences. was wrongful, the only relief, which the plaintiff might have claimed, was compensation or damages for breach of the covenant of quiet enjoyment of the demised premises, under cl. (c) of S. 108 of the T. P. Act. Mr. Prakash Gupta, learned counsel, contended that the damage was obvious, and the lower appellate Court is wholly wrong in saying that the plaintiff has failed to prove any loss. 15. I was referred to another decision of a learned single Judge of this Court in Rahim Bux v. Mohammad Shafi, AIR 1971 All 16 . The case is distinguishable on the facts. Firstly, the demolition in that case was not by the landlord himself, but by the Municipal Board. Secondly, the plaintiff continued in possession after the demolition of the building by the Municipal Board. Thirdly, the tenant, who was the plaintiff, offered to pay the full rent for the premises in the condition in which they were, and filed a suit for injunction restraining the landlord defendants from interfering with his possession although a prayer for a decree of possession in the alternative was added. Thirdly, the tenant, who was the plaintiff, offered to pay the full rent for the premises in the condition in which they were, and filed a suit for injunction restraining the landlord defendants from interfering with his possession although a prayer for a decree of possession in the alternative was added. Lastly, so far as the relief, that was granted in that case, is concerned, the position of the premises was altered by the landlord during the pendency of the suit after the refusal of the plaintiff tenant's application for an interim injunction on the express undertaking that the defendant landlords could, if they liked, rebuild at their own risk. Even so, the Court did not straightway order demolition of the constructions raised by the landlord in the meanwhile and left it to the executing Court to decide, after taking such evidence as may be necessary as to which portion of the present premises consisted of the shop which was in the tenancy of the plaintiff and to restore possession to him only in respect of that portion. It thus appears that a shop in place of the one that was demolished by the Municipal board had, in fact, been reconstructed by the landlord at the same place, during the pendency of the suit on the express understanding that they did so at their own risk. That case is, therefore, distinguishable from the case before me. Moreover, there does not seem to be anything in that case which could help the plaintiff in the case before me. 16. The plaintiff has measured the loss by an assumed figure of the loss of profit at the rate of Rs. 150/- per month in relief (b) and of the loss suffered by loss of goodwill which has been assumed to be Rs. 1100/- in relief (c). The lower appellate Court has found that the loss of profit, even if it had occurred, was not of the plaintiff, but of his son. Be that as it may, it is not the loss of profit which the plaintiff could have claimed by way of compensation or damages for breach of the covenant of quiet enjoyment of the demised premises. Assuming that the plaintiff suffered some loss by being deprived of the use of the shop, which he had a right to use and enjoy on payment of Rs. Assuming that the plaintiff suffered some loss by being deprived of the use of the shop, which he had a right to use and enjoy on payment of Rs. 2/- per month as rent, a decree could be passed only after determining the precise amount of the loss, and the amount which the plaintiff was entitled to claim by way of damages for compensating that loss. Before the court could do so, the plaintiff had to plead it in precise terms showing the basis on which it was claimed and to establish that the claim was in accordance with the recognised rules of law for awarding damages by way of compensation in such cases. The plaintiff had also to show the means available with him for mitigating the loss. I may, in this context, observe that the proper measure of damages for compensating the loss was not the profits which the plaintiff earned or could have earned by keeping shop at the demised premises but was the extra amount, if any, which the plaintiff would have had to incur in obtaining a shop having equal or near equal advantage for carrying on business. Moreover, it appears that for some years the shop was out of repairs and some litigation had gone on under S. 7E of U. P. Act No. Ill of 1947. It appears that the plaintiff had not been using the shop at least for a couple of years or so before its demolition. Surely, the plaintiff could not have claimed all the profits which he might have earned if he might have carried on business at the shop in case he was so minded. A rough measure of damages could probably be the difference, if any, in the rent for which a shop having equal or near equal advantage could be hired for carrying on business. Nothing of the kind was said or suggested by the plaintiff in the present case. I was, in this context, referred to a Patna decision in Brahmadeo v. N. A. Committee; AIR 1965 Pat 179 . I do not think the case is of any help to the plaintiff in the case before me. The whole suit was, in my view, misconceived and vicious at the root. 17. I see no merit in this Second Appeal. It is accordingly dismissed with costs.