SIDHARTHAN v. RAMADASAN — 1984 DIGILAW 67 (KER)

Judgment :- 1. The short facts under which this appeal by the plaintiff arises can be stated thus: 2. The plaintiff-appellant let a shop room to the defendant -respondent under Ext. Al dated 10-2-1969 for his business. On 5-12-1973 a lorry KLD. 619 which came along the adjoining road dashed against the shop room and damaged it completely. C schedule in the plaint is the site of the shop room. The defendant attempted to construct a shop room at the site of the old room. The plaintiff thereupon brought the suit for an induction to stop the construction. He attained an order of temporary injunction to the same effect. However in breach of the injunction the defendant proceeded with the construction even extending beyond the original, site. The D schedule is the area upon which the construction was thus extended. This extension was however demolished under the order of the Calicut Corporation within whose limits the land lies. The plaintiff then amended the plaint into one for recovery of possession of the C and D schedule plots after restoring them to their original condition. The B schedule consists of the C and D schedules and the A schedule is the aggregate of the 3 schedules. The defendant contended that the lorry accident only damaged the shop room but did not completely destroy it or render its site vacant. The subject of the lease had not vanished and he was still in possession of the room under the terms of Ext. Al. He had not trespassed upon any portion of the land in the plaintiff's possession or violated the injunction. The plaintiff, he contended, was not entitled to any of the reliefs claimed by him. 3. The Munsiff found that the shop room was completely destroyed by the accident and that the present room is a newly constructed one. He also found that the construction made by the defendant was unauthorised and that;the plaintiff was entitled to evict the defendant from the C schedule. As for the D schedule, he held that no relief need be given as the construction had been demolished by the Calicut Corporation and the plaintiff was in possession of the plot. On these findings the plaintiff was allowed to recover the C schedule with Rs. As for the D schedule, he held that no relief need be given as the construction had been demolished by the Calicut Corporation and the plaintiff was in possession of the plot. On these findings the plaintiff was allowed to recover the C schedule with Rs. 150/- for use and occupation and the defendant was directed to demolish and remove the construction made by him in the C schedule, with a default clause empowering the plaintiff to remove it. 4. The defendant appealed. The appellate court confirmed the finding that the original shop room was completely destroyed, that the defendant had reconstructed a portion of the building in the C schedule and that what is now in existence is only the structure so reconstructed. However it differed from the Munsiff holding that the destruction of the shop room had not terminated the tenancy, that the defendant was in occupation of the C schedule in virtue of his tenancy and as the tenancy had not been terminated under the provisions of the Transfer of Property Act the plaintiff was not entitled to recover possession of the site. It also held for the same reason that the plaintiff had no right to have the new construction put up, rightly or wrongly by the defendant removed. The appellate court accordingly reversed the decision of the Munsiff and dismissed the suit with costs. 5. The, second appeal was admitted on the question "Does not a lease deed stand terminated on the destruction of the subject-matter of the lease?" 6. At the original hearing of the appeal a learned single judge thought that there was some conflict between Sarada v. Kumaran, 1969 KLT, 133, and Thomas v. Moran Mar Baselious Ougan 1979 KLT. 596, and therefore referred the case to a Division Bench. 7. The courts below have concurrently found that the shop room which was teased to the defendant under Ext. Al was Completely destroyed and not merely damaged as pleaded by him. There was some controversy between the parties whether the subject-matter of the tenancy was only the shop room or whether it was the shop room and its site. Ext. Al specifically says that what was being taken on rent was the shop room. The schedule at the foot of the document is also explicit that it was only the shop room that was being rented. Ext. Al specifically says that what was being taken on rent was the shop room. The schedule at the foot of the document is also explicit that it was only the shop room that was being rented. Counsel for the respondent urged that a building is incapable of separate demise and that it must necessarily take in the site as well. In support of the contention he relied upon Sarada v. Kumaran,1969 KLT. 133, where a learned single judge had to interpret the word "building" in S.11 (3) of the Buildings (Lease and Rent Control) Act, 1965. The point which arose in that case was whether a pathway which was part of a building will also be a building Within S.11(3) of the Act. The learned judge held that the conversion of an existing building into a pathway for the use of the landlord-respondent is a need covered by S.11 (3). In order to determine whether the expression "building" took in the pathway also reference was made to Black's Law Dictionary and certain decisions, American and English. One American decision noted in Black said that "building" imports tangibility and it may include the land on which it stands as well as adjacent land. The learned judge also referred to Corporation of the City of Victoria v. Bishop of Vancouver Island, (1721)2 A.C. 384 (390), where the Privy Council pointed out that the word "building" in ordinary language comprises not only the fabric of the building but the land upon which it stands. We do not think it necessary to examine the statutory context in which the word "building" fell to be explained in the above two decisions and it is enough to point out that neither of them lays down that lease of a building is impermissible or that it necessarily takes in the site as well. That lease of a building alone is possible is apparent from or is assumed in the following passage in Mahadeo Prasad v. Calcutta D.& C. Co., AIR. 1961 Calcutta 70, Para.26: "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. That lease of a building alone is possible is apparent from or is assumed in the following passage in Mahadeo Prasad v. Calcutta D.& C. Co., AIR. 1961 Calcutta 70, Para.26: "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. 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." That being so, the question as we indicated above is to determine whether Ext. Al covered only the shop room or the shop room and the adjacent land. We have no doubt that it covered only the shop room. 8. The more substantial point in dispute is the impact of the total destruction of the subject-matter of the lease. S.108 (e), Transfer of Property Act, provides: "If by fire, tempest or flood or violence of any 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 purposes for which it was let, the lease shall, at the option of of the lessee, be void." This clause only provides that in the circumstances detailed therein the lease shall be void at the option of the lessee. The reason behind this option appears to be, if the leasehold is destroyed or rendered unfit for the purpose of the lease it would be pointless for the lessee to pay the rent but if he chose, he could continue to pay it. This clause is one of the clauses dealing with the rights and liabilities of the lessee and does not describe the effect of the destruction of the subject of the lease upon the lease itself. 9. Turning to case law, in Simper v. Coombs (1948) 1 All. E.R. 306, the question arose whether a tenancy was extinguished by the destruction of the building by bomb during the war. Denning J. held that it was not. The learned judge observed: "The position at common law is plain. She had a contractual tenancy, and that tenancy has never been determined by due notice to quit. It, therefore, continues in existence. The destruction of the house by a bomb did not determine the tenancy. Denning J. held that it was not. The learned judge observed: "The position at common law is plain. She had a contractual tenancy, and that tenancy has never been determined by due notice to quit. It, therefore, continues in existence. The destruction of the house by a bomb did not determine the tenancy. It is well settled that the destruction of a house does not by itself determine the tenancy of the land on which it stands." This statement does not explain whether the destruction of a house will destroy the tenancy of the house itself but only indicates its effect on the tenancy of the land on which it stands. Woodfall's Law of Landlord and Tenant, 28th edition, Volume I, Para.1-2056, page 928 states: "A demise must have a subject-matter, either corporeal or incorporeal. If the subject-matter is destroyed entirely, it is submitted that the lease comes automatically to an end, for there is no longer any demise. The mere destruction of a building on land is not total destruction of the subject-matter of a lease of the land and building, so demise continues." This last sentence is based upon Simper v. Coombs, (1948)1 All E. R.306, and is inapplicable. The earlier part of the passage however fully supports the appellant's contention. 10. In 1979 KLT. 596, a workshop which was the subject of a monthly tenancy was completely destroyed by fire through the negligence of the tenant and another. The landlord sued for arrears of rent, eviction and recovery of damages as well as an injunction restraining the tenant from constructing any unauthorised structure in the property. So far as relevant, the tenant contended that notwithstanding the destruction of the workshop the tenancy continued and that the landlord was entitled to none of the reliefs. The learned judge held, following AIR. 1968 SC. 1024, that by the destruction of the building the lease could not be said to have become void and thus discharged. He however held following 1976 KLT. 659 that where the subject-matter of a lease like the building is totally destroyed, the tenant is not entitled to squat on the ground where the building stood or construct a new building in its place or require the landlord to put up a new structure. He however held following 1976 KLT. 659 that where the subject-matter of a lease like the building is totally destroyed, the tenant is not entitled to squat on the ground where the building stood or construct a new building in its place or require the landlord to put up a new structure. The learned judge concluded: "The lease being a transfer to enjoy the property transferred, with the total destruction of the property the lease cannot be considered as continuing. There cannot be a lease subsisting in regard to a property not in existence. In this case the appellant has not been able to establish that what has been leased out is not only the building but also the land on which the building stood." In taking this view, the learned judge expressed full agreement with the observations which we have already extracted from Mahadeo Prasad v. Calcutta D. & C. Co., AIR. 1961 Calcutta 70. In George v. Varghese,1976 KLT. 659, a building which was the subject of a lease was destroyed by fire. The lessee vacated the premises and started his business in another building. The landlord constructed a new building in place of the old. The former tenant thereupon brought a suit for directing the landlord to let the new building to him on the ground that the old tenancy still subsisted. Refusing the prayer the learned judge held that he had neither a contractual nor a statutory right to compel the landlord to surrender possession of the new building to him. 11. In the referring order the learned judge had expressed a tentative view that there was some conflict between 1969 KLT. 133 and 1979 KLT. 596. The former case arose in totally different circumstances under the Buildings (Lease and Rent Control) Act and has no bearing as we indicated above on the present controversy about the impact of the destruction of the leasehold on the continuance of the tenancy. We do not therefore think it worthwhile to discuss the former case any further. 12. As what happened in the present case was the total destruction of the shop room, the lease was extinguished, for as stated in Woodfall, a demise must have a subject-matter and if it is destroyed, the lease comes to an end. The reliefs granted to the plaintiff by the Munsiff are therefore valid. 13. 12. As what happened in the present case was the total destruction of the shop room, the lease was extinguished, for as stated in Woodfall, a demise must have a subject-matter and if it is destroyed, the lease comes to an end. The reliefs granted to the plaintiff by the Munsiff are therefore valid. 13. Counsel for the respondent contended that as the lease had not been terminated by a due notice to quit under S.106, Transfer of Property Act, the plaintiff had no right to bring a suit of this nature. For one thing, on our finding that the lease had come to an end with the destruction of the shop room, this question is otiose. For another, the appellant's contention that on the terms of the rent deed no notice is required is right. The relevant clause in Ext. Al dealing with the demand and surrender of the shop room is substantially to the same effect as the clause in the document that fell to be considered in Devaki v. Alavi, 1979 KLT. 67 (F.B.). In that case the court held that a stipulation in the lease deed that the lessee shall surrender possession on demand was nothing but a stipulation that the lease is determinable at the will of the lessor, and 'a contract to the contrary' as envisaged by S.106 of the Act. In that view, the Full Bench held that the statutory notice prescribed by S.106 was not required to terminate the tenancy. In the light of that decision the respondent's contention has no merit. We reverse the decision of the lower appellate court and restore the judgment and decree of the trial court. The appeal is thus allowed. In the circumstances parties will bear their costs. Allowed.