Y. Joseph v. Parvathy Chellamma — 1988 DIGILAW 242 (KER)

JUDGMENT 1. A row of shop rooms under the same roof belonging to deceased Raman Nadar and inherited by his daughter, the plaintiff, were occupied by the four defendants under rent arrangement coming within the ambit of the Buildings (Lease and Rent Control) Act. The building got destroyed by flood. Though the Trial Court accepted the contention of defendants 2 and 3 that their rooms were only partially destroyed and decreed the suit for declaration of title and possession and mandatory injunction to remove the new construction as against the first defendant alone and directed the plaintiff to the rent control court as against defendants 2 and 3, the appellate court found that the entire building was completely destroyed and decreed the suit in full against defendants 1 to 3, since the plaintiff compromised the matter with the 4th defendant. Third defendant did not challenge the decree and defendants 1 and 2 alone are the appellants. The factual finding that the entire building was destroyed and thereafter the appellants re-constructed the same is not disputed. The only point raised before me is whether the tenancy is continuing and if so the decree could be sustained. 2. Appellants disputed the correctness of the law laid down in Thomas v. Moran Mar Baselios Ougen 1979 KLT 596 and approved by a Division Bench of this Court in Sidharthan v. Ramdasan 1984 KLT 538 and wanted me to refer the question to a Full Bench, since those decisions have not taken note of contra views expressed in various other decisions. After having considered the matter in detail, I am in agreement with the views expressed in those two decisions and I do not feel the necessity of a reference. 3. This is a case in which tenancy was exclusively of the building alone and not the land on which it stood or appurtenant thereto. The only person who raised any claim to the land was the 2nd defendant who denied the tenancy and his claim was only on the basis of adverse possession. That plea was found against and he was found to be a tenant. The case of the plaintiff and the finding of the appellate court is that after the entire building was destroyed and the plaintiff came into possession on extinguishment of the tenancy, the defendants unauthorisedly made the construction. That plea was found against and he was found to be a tenant. The case of the plaintiff and the finding of the appellate court is that after the entire building was destroyed and the plaintiff came into possession on extinguishment of the tenancy, the defendants unauthorisedly made the construction. The question is whether destruction of the subject matter put an end to the lease or whether the appellants are entitled to continue in the newly constructed building on the ground that the tenancy is continuing. 4. Basing on the decision in Sarada v. Kumaran 1969 KLT 133 it was contended that a building is incapable of separate demise isolated from the premises on which it stands and the lease must necessarily take in the site also by implication, though not specifically described. That decision was only interpreting the word 'building' in relation to the Buildings (Lease and Rent Control) Act and considering the distinction between S.11(3) and 11(17) thereof in the matter of eviction. . The point that arose was whether demolition of the evicted building and conversion of a portion of the site as a pathway for the newly constructed building will satisfy the requirement of S.11(3). It was held that the restriction in S.11(17) that eviction must be for residential purposes is absent in S.11(3) and user as pathway also will satisfy the requirements of S.11(3) because "occupation" used therein does not necessarily refer to residence. It was in that context that the learned Judge referred to certain decisions and dictionaries and said that 'building' in the ordinary language imports to tangibility and it may include the land on which it stands and the adjacent land and not only the fabric of the building. The Division Bench in Sidharthan' case 1984 KLT 538 considered these aspects and said that these decisions and the dictionary meanings do not lay down that a lease of building alone is impermissible or it necessarily takes in the site as well. Quoting with approval the decisions in Mahadeo Prasad v. Calcutta D. and C. Co. The Division Bench in Sidharthan' case 1984 KLT 538 considered these aspects and said that these decisions and the dictionary meanings do not lay down that a lease of building alone is impermissible or it necessarily takes in the site as well. Quoting with approval the decisions in Mahadeo Prasad v. Calcutta D. and C. Co. AIR 1961 Calcutta 70, and Thomas's case 1979 KLT 596 that decision said that a lease of a building alone without the site is possible and in such a case when the building is completely destroyed there is no question of the tenant exercising option under S.108(e) of the Transfer of Property Act to continue the tenancy with regard to the non existing property. After the structure, which alone was leased out, was demolished, the tenant cannot be put in possession of that structure even if he wanted to continue. 5. The dispute cannot be resolved under the provisions of the Rent control legislation which is not intended to meet such a contingency. If so resort must be had to the Transfer of Property Act or other relevant provisions, if any. There cannot be any question of frustration of the contract under S.56 of the Indian Contract Act on destruction of the building. Though by S.4 of the Transfer of Property Act the chapters and sections of the said Act which relate to contracts are to be taken as part of the Indian Contract Act, that section does not enact and cannot be read as enacting that the provisions of the Contract Act are to be read into the Transfer of Property Act. There is clear distinction between a completed conveyance and an executory contract. Events which discharge a contract do not invalidate a concluded transfer. S.56 of the Contract Act is not applicable when rights and liabilities of the parties arise under a lease. Even the second para of S.56, which alone is material to cases of this nature, has only a limited application to covenants under a lease and the lease is not declared void thereby. S.56 in terms apply only to a contract which becomes void when a contract to do an act becomes impossible of performance. The section does not say that in such a case a concluded transfer of interest as in a lease becomes void. S.56 in terms apply only to a contract which becomes void when a contract to do an act becomes impossible of performance. The section does not say that in such a case a concluded transfer of interest as in a lease becomes void. See Dhruv Dev v. Harmohinder Singh AIR 1968 SC 1024 , Rajendra Nath v. Ramdhin AIR 1971 Assam 160 and Thomas v. Moran Mar Baselios Ougen 1979 KLT 596 . 6. There is no case for anybody that the lease is determined by any of the modes provided under S.111 of the Transfer of Property Act. If so the only other provision is S.108 thereof. Clause (d) of S.108 is applicable only if accession is made to the leasehold property during the continuance of the lease. In this case the property in the lease is completely lost and there is no question of any accession to it by an unauthorised construction by the lessee enabling him to use it as an accession to the leasehold premises treating the lease as continuing. Clause (e) is also applicable only when at least" a negligible part of the property is remaining in order to enable the lessee to exercise the option of treating the lease as continuing or void. The words used are "any material part of the property" being wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let. When the property is completely lost there cannot be any continuing lease even if the lessee wants so at his risk by exercising the option which is with him because there cannot be a lease of non existing property. If the lease has thus become extinguished by the destruction of the property itself completely, there is no question of the lessee being entitled to squat on the land or making a construction on it or compelling the landlord to construct so that he may continue in it, unless the contract of tenancy authorises or there is a statutory authorisation to that effect. In this case neither the contract of tenancy nor any statutory provision including the Transfer of Property Act and the Rent Control Act give such an authorisation. (See Mahadeo Prasad's case AIR 1961 Calcutta 70, Thomas's case 1979 KLT 596 and Sidharthan's case 1984 KLT 538 . 7. In this case neither the contract of tenancy nor any statutory provision including the Transfer of Property Act and the Rent Control Act give such an authorisation. (See Mahadeo Prasad's case AIR 1961 Calcutta 70, Thomas's case 1979 KLT 596 and Sidharthan's case 1984 KLT 538 . 7. S.108(e) of the Transfer of Property Act is one of the clauses dealing with the rights and liabilities of the lessor and lessee and does not describe the effect of the destruction of the subject matter of the lease upon the lease itself. That provision is presumably enacted to safeguard the interest of the lessee by avoiding the contingency of himself being fastened with the liability of payment of rent even when a material part of the property is wholly destroyed or rendered substantially and permanently unfit for the purpose for which it was let. That is why he alone is given the option without any such option for the lessor. This position of law has been laid down in George v. Varghese 1976 KLT 859 and approved in Thomas's case 1979 KLT 596 and Sidharthan's case 1984 KLT 538 . Such an option is not available to the lessee when the lease itself stand extinguished by destruction of the property on the lease. By the option he cannot revive a non existent lease and create new rights and liabilities unilaterally. If absence of termination of tenancy by a notice under S.106 of the Transfer of Property Act is the only ground on which the lessee is contended to be entitled to continue, V. Dhanapal Chettiar v. Tesodai Ammal AIR 1979 SC 1745 is sufficient answer. That decision says that in order to get a decree or order for eviction under any State Rent Control Act it is not necessary to give notice under S.106 of the Transfer of Property Act as it is a surplusage because the landlord cannot get eviction even after such determination since the lessee can continue to be so even after such notice and an order for eviction itself is sufficient. That decision is also authority for the position that liberty to put up a construction is not a matter governed by the Rent Control Act. 8. Rahim Bux v. Mohammed Shafi AIR 1971 All. That decision is also authority for the position that liberty to put up a construction is not a matter governed by the Rent Control Act. 8. Rahim Bux v. Mohammed Shafi AIR 1971 All. 16 , Rajendranath's case AIR 1971 Assam 160, Krishna v. Narsinghrao AIR 1973 Bombay 358 and Mumthas Beegam v. Maitheen Sahib 1988 (1) KLT 473 are the decisions on the basis of which the counsel for the appellants doubted the correctness of 1979 KLT 596 and 1984 KLT 538 . In the first case demolition of the building was pursuant to a notice by the Municipality and it was held to be not destruction by irresistible force within the meaning of S.108(e) of the Transfer of Property Act. Re-building was after modifying the injunction obtained by the tenant and permission was given at the risk of the landlord. Further, S.263(1) of the Municipalities Act involved in that case provided that the landlord could rebuild and the rights of the lessor and lessee would then be available with respect to the new premises. In Rajendranath's case AIR 1971 Assam 160 the lease was of the entire land with a house. It was in such a situation that it was held that simply because a material portion of the house was destroyed by fire the lease does not automatically determine unless the lessee exercises his option in the absence of notice determining the lease. AIR 1973 Bom. 358 was dealing with a case in which under the Rent Restriction Act the landlord was entitled to rebuild after ejectment of the tenant but the tenant had the right to claim that the tenancy has not been extinguished and that he was entitled to occupy as tenant in the newly constructed tenements. Building in that case was destroyed by flood and later removed by the Corporation as dangerous and then the landlord constructed the new building over which the tenant was enforcing his statutory right to continue the tenancy. I fail to understand how these decisions were relied on to doubt the correctness of 1979 KLT 596 and 1984 KLT 538 . 9. Then the only decision is 1988 (1) KLT 474. I fail to understand how these decisions were relied on to doubt the correctness of 1979 KLT 596 and 1984 KLT 538 . 9. Then the only decision is 1988 (1) KLT 474. That decision considered almost all the decisions referred to above and distinguished them on the ground that the legal position considered in them was about the application of S.108(e) of the Transfer of Property Act when a building was destroyed, whereas S.108(d) or (e) has no application to that case. That was a case where a tenant against whom there was an order for eviction under the Buildings (Lease and Rent Control) Act was resisting eviction on the ground that the building was destroyed by a mob and the present building is one re-constructed by him. Such a contention was raised by him after getting defeated in several mala fide litigations to unsettle the order for eviction. It was in that context that the definition of building was considered, That has no application to the present case. Here, we are concerned only with the question whether after the lease is extinguished the lessee can resist the claim of the landlord to get his title established and the unauthorised constructions removed. The appellate court correctly allowed those reliefs and there is no question of interference. Both the appeals are dismissed with costs.