JUDGMENT : R.C. Patnaik, J. - This matter has come before the Division Bench to resolve the question if statutory tenancy under the Orissa House Rent Control Act stands determined on the destruction of the house and the tenant ceases to be governed by the Act on the destruction of the house, D. P. Mohapatra, J. in Vishnu Deo Roy v. B. De. Souza and Anr. 65 (1988) CLT 522, held that on the demolition of house, statutory tenancy did not stand determined. But at the hearing of this appeal, a statement from the judgment in Second Appeal No. 319 of 1980 decided on 14-9-1988 rendered by G. B. Pattnaik, J. to the following effect was relied upon : "...Tenancy can be determined by the landlord not on account of the default of the tenant in the matter of payment of rent but on account of the destruction of the structures itself as well as by service of notice u/s 106 of the Transfer of Property Act ... " Having regard to the points formulated for decision in the paragraph-6 of the said judgment, it was not necessary to decide if statutory tenancy stood determined on account of the destruction of the house. That observation was pressed into service at the hearing by the Single Judge. Hence, this reference to Division Bench. 2. That the defendant-appellant was inducted as a tenant in respect of a shed standing over a piece of land, that the said shed was destroyed on the night between 8th and 9th February, 1977 by fire and that notice was issued by the plaintiff-appellant u/s 106 of the Transfer of Property Act requiring the defendant-appellant to quit have been found by the Courts below. It has also been found that the defendant put up a structure over the land after the shed was destroyed by fire. Both the Courts below have directed eviction. They have also held that in view of the destruction of the shed, tenancy stood terminated and thus, Orissa House Rent Control Act had no application and the suit was cognisable by the Civil Court. 3. Mr. Both the Courts below have directed eviction. They have also held that in view of the destruction of the shed, tenancy stood terminated and thus, Orissa House Rent Control Act had no application and the suit was cognisable by the Civil Court. 3. Mr. S. S. Rao, the learned counsel for the appellant, has urged that the Courts below have totally misconceived the law in holding that the tenancy stood determined on the destruction of the structure and has strongly relied upon the decision in Vishnu Deo Roy's case (supra), where also a shed let out by the respondent in this case to another tenant had been destroyed by fire on the very same night and has urged that neither any provision contained in the House Rent Control Act for any provision contained in the Transfer of Property Act rendered tenancy void so as to render the matter cognisable by the Civil Court. Tenancy continued despite destruction of the structure and the tenant is evictable under the provisions of the House Rent Control Act. Mr. R. N. Acharya, learned counsel for the respondent, has, however, urged that the doctrine of frustration contained in Section 56 of the Contract Act brought the tenancy to an end and the suit was maintainable. Host of citations were placed before us by the counsel for the parties. We would refer to some of the decisions cited by the counsel for the respondent who pressed into service the doctrine of frustration of contract. 4. In V. Sidharthan v. Pattiori Ramadasan AIR 1984 Ker 131, it was held that were the subject-matter of a lease like the building was totally destroyed, the tenant was 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. Reliance was placed on woodfall's Law of Landlord and Tenant, where it has been said : "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. Reliance was placed on woodfall's Law of Landlord and Tenant, where it has been said : "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." The Division Bench relied upon some earlier decisions of that very Court and a decision of the Calcutta High Court in Mahadeo Prosad Shaw Vs. Calcutta Dyeing and Cleaning Co. where it was held that where the structure had been demolished and was not in existence, so no question of tenant's option arose with regard to the non-existing properties. The same view was taken by a learned Single Judge of the Madras High Court, in K. Mohamed Sheriff v. V.P.S. Mohamed Thasim Sahib AIR 1964 Mad 453 . There it was held that when the structure has been destroyed, the provisions contained in Buildings (Lease and Rent Control) Act was not applicable. That would apply when there was a structure on the property. The learned Judge referred to certain observation from "The Rent Acts", 4th Edition by Megarry, where the learned author has observed: "the restriction of the Acts do not inhere in the land after the demolition of the dwelling house, but remains only so long as it is there." Reliance was placed on a decision of the Calcutta High Court in Kshitish Chandra Mondal Vs. Shiba Rani Debi and Others, where it was held that the doctrine of frustration contained in Section 56 of the Contract Act also applied to leases and the lease came to an end by destruction by fire. 5. Learned counsel for the appellant, on the other hand, relied upon Smt. Sakhisona Dasi v. Gour Hari Jena AIR 1252 Cal. 567, where it was held that the doctrine of frustration applied to contracts but not to leases. The learned Judge differed from the view expressed in Khitish Chandra's case (supra). In Court of Wards Dada Siba Estate and Another Vs. Raja Dharan Dev Chand it was held that Section 56 of the Contract Act applied purely to contractual obligations and not to a contract creating an estate in land which had already accrued in favour of a party. In Court of Wards Dada Siba Estate and Another Vs. Raja Dharan Dev Chand it was held that Section 56 of the Contract Act applied purely to contractual obligations and not to a contract creating an estate in land which had already accrued in favour of a party. In Rajendra Nath Sarma v. Ramahin Rajendra AIR 1971 Gau 160 , the decision in Khitish Chandra's case (supra) was dissented from and it was held that Section 56 had no application to a tease but to a contract which had become void when the contract to do an act became impossible of performance. 6. Identical view as taken by the Punjab High Court in Court of Wards' case (supra) was taken by the Allahabad High Court in Rahim Bux and Others Vs. Mohammad Shafi where the view expressed in Khitish Chandra's case was dissented from. In Raja Dhruv Dev Chand v. Raja Harmohinder Singh and Anr. AIR 1963 SC 1024, it was said : " By its express terms Section 56 of the Contract Act does not apply to cases in which there is a completed transfer. The second paragraph of Section 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." In Smt. Sushila Devi and Another Vs. Hari Singh and Others overruling the view of the Jammu and Kashmir High Court that Section 56 of the Contract Act applied to leases as well, Hegde, J. observed : " The conclusion of the Division Bench of the Jammu and Kashmir High Court that Section 56 of the Contract Act applies to leasee as well cannot be accepted as correct. Section 56 applies only to contract. Once a valid lease comes into existence the agreement to lease disappears and its place is taken by the lease. It becomes a completed conveyance under which the lessee gets an interest in the property. There is a clear distinction between a completed conveyance and an executory contract. Section 56 applies only to contract. Once a valid lease comes into existence the agreement to lease disappears and its place is taken by the lease. It becomes a completed conveyance under which the lessee gets an interest in the property. There is a clear distinction between a completed conveyance and an executory contract. Events which discharge a contract do not invalidate a concluded transfer..." and further held that in view of the decision of the Supreme Court in Raja Dhruv Dev's case (supra), the view taken by some of the High Courts that Section 56 of the Contract Act applies to leases could not be accepted as correct 7. Of-course, there is provision in the Transfer of Property Act which confers a right on the lessee to avoid the lease at his option. That is contained in Section 108(e), which reads as under: "108. (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 purpose for which it was let, lease shall at the option of the 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." The provision does not render the lease ipso facto void. 8. I am, therefore, of the view that destruction of the shed did not ipso facto determine the relationship of landlord and tenant. This aspect has been considered in detail by D.P. Mohapatra, J. in Vishnu Deo Roy's case (supra) and I do not wish to retraverse the same ground. The submission founded on Section 56 of the Contract Act was made to get over the said decision but, I am afraid, having regard to the definition of 'house' in Section 2(3) of the Orissa house Rent Control Act and the meaning given to the said expression by the Division Bench of this Court in the case of Gandharba Patra v. Taramani Dei and Ors. 1973 (I) OWR 121, which was referred by D. P. Mohapatra, J. also, it cannot be said that the appellant ceased to be a statutory tenant to whom the House Rent Control Act did not apply and could only be rejected by a decree of a Civil Court. I am of the view that the principles enunciated in Vishnu Deo's case have been correctly stated and that 'statutory tenancy stands determined on account of destruction of the structure' did not arise for consideration in Gangaprasad Shreevastab's case (Second Appeal No. 319/80) and is a mere obiter. Though Ganga Prasad's case was taken up later, unfortunately the decision in Vishnu Deo's case was not cited. 9. In the result, I am of the view that the appellant has not ceased to be a statutory tenant and could if at the relevant point of time have been evicted only under the provisions of the House Rent Control Act, and the suit for his eviction was not cognisable by the Civil Court. The second appeal is accordingly allowed. There would be no order as to costs. K.C. Jagadeb Roy, J. 10. I agree. Final Result : Allowed