Judgment :- P.K. Balasubramanyan, J. The appellant in S. A. 334 of 1997 is the plaintiff and the appellant in S.A. No. 327 of 1997 is the defendant. The plaintiff is the owner of a building. It was let out to the defendant. The defendant was thus in possession as a tenant of the building. While the defendants was in occupation as a tenant, the building was gutted by fire. The defendant, the tenant put up a structure of his own without the consent of the landlord and without being authorised to do so by the terms of the transaction between the parties. In that context, the plaintiff filed the suit for a mandatory injunction directing the defendant to remove the unauthorised construction put up by him and for recovery of possession on the basis that the subject-matter of the lease having been destroyed, the tenancy had come to an end and he was entitled to recover. The plaintiff pleaded that the subject-matter of the lease was completely destroyed by fire. The defendant joined issue with the plaintiff, on that question. He set up a case that the building was only partly destroyed. The trial court clearly held that the building was fully destroyed by the fire. This finding was accepted by the lower appellate court which affirmed the same on a re-appreciation of the evidence in the case. Thus the finding of fact available in the case is that the building, the subject-matter of the lease by the plaintiff in favour of the defendant was completely destroyed. The trial court found that a construction had been put up by the tenant unauthorisedly and without the consent of the landlord. That finding was also affirmed by the lower appellate court. Thus, the finding of fact rendered by the courts below is that the defendant-tenant, on his own volition and without reference to the landlord and without his consent put up a construction of his own and the same had to be treated as an unauthorised construction. 2. On these findings the trial court after referring to the various decisions of this court held that the plaintiff landlord was entitled to a decree for mandatory injunction directing the defendant-tenant to remove the unauthorised construction put up by him. 2. On these findings the trial court after referring to the various decisions of this court held that the plaintiff landlord was entitled to a decree for mandatory injunction directing the defendant-tenant to remove the unauthorised construction put up by him. Even though the building was completely destroyed by fire since it could not be said that the lease has come to an end, the landlord was not entitled to a decree for recovery of possession was the view of the trial court. Both sides having appealed before the appellate court, that court felt that going by a decision of this Court the decree granted by the trial court was justified and notwithstanding complete destruction of the building that was let out, the landlord could not be given a decree for recovery of possession. Thus, the negative of the relief of recovery of possession by the trial court was affirmed by the lower appellate court. The plaintiff in his Second appeal seeks a reversal of the decrees of the courts below on his prayer for recovery of possession and seeks relief while the defendant-tenant challenges in his second appeal a decree for mandatory injunction directing him to remove the building unauthorisedly put up by him in the property. 3. Before proceeding to discuss the question that arise for decision, it may be necessary to notice the clear findings of fact rendered by the courts below. The trial court held on the evidence of PW2 appreciated in the light of Exts. Al and A2 that the shop room which existed in the plaint schedule property was complete destroyed by the fire. That court also found that the tenant had put up a new building without permission of the landlord-plaintiff. After finding that there was no merit in the contention of the defendant that the building was not completely destroyed and hence the lease in his favour did not come to an end, the trial court proceeded on the basis that the subject-matter of the lease must, be taken to be not only the building that was destroyed but also the plot of land on which the an option for the tenant to treat the lease as void and since there was no such option available to the landlord, it could not be held that the lease had come to an end. These findings were affirmed by the lower appellate court which held that the only irresistible conclusion that was possible on the evidence in the case was that the building occupied by the tenant had been destroyed in its entirety beyond any scope for repair. That Court also agreed that the subsequent construction by the tenant was unauthorised and hence he was liable to be directed to remove the same by way of a mandatory injunction. Applying a dictum of this court the appellate court held that the landlord was not entitled to a decree for recovery of possession since the lease of the building in favour of the defendant must be taken to include the site on which the building stood and consequently is could not be said that there is a destruction of the subject-matter of the lease. 4. What was let out to the defendant was a shop room in a line building. That was let out to the defendant by the father of the plaintiff. After the right to the building came to the plaintiff, the defendant attorned to the plaintiff and was containing in possession. "While so, the building was completely destroyed by fire. The question is whether the transaction of lease would come to an end on the destruction of the subject-matter of the lease, thus. A decree for recover)' of possession on the ground that the subject matter of the lease is destroyed was denied to the plaintiff by the courts below only by evoking a theory that whenever a building is let out to a tenant, there is impliedly a letting out of the land on which or the site on which the building stands and even if the entire building is gutted by fire it could still be postulated that there is no destruction of the entire subject matter of the lease. I find it difficult to accept this proposition as enunciated. When a shop room is let out to a tenant especially in a case where it is only part of a larger building, obviously what is let out is only the super structure for the purpose of being used as a shop. When that is destroyed, there is clearly a destruction of the subject matter of the lease. When a shop room is let out to a tenant especially in a case where it is only part of a larger building, obviously what is let out is only the super structure for the purpose of being used as a shop. When that is destroyed, there is clearly a destruction of the subject matter of the lease. It is somewhat artificial to postulate that even though the shop room as such might have been completely destroyed making it impossible for the tenant to occupy it or use it, still the lease would continue in his favour. The question to be decided is whether the view adopted by the courts below is liable to be sustained in this second appeal. 5. In Wood fall on Landlord and Tenant the proposition is stated as follows:-"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. 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". It is clear from the above proposition that unless it is pleaded and proved that the subject-matter of the lease was not only the building but it was really the building and the land, normal rule would be that on the destruction of the building, the lease would come to an end. In Simper v. Coombs (1948 (1) A.E.R.306) Lord Justice Denning stated as follows: "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 settled that the destruction of a house does not by itself determine the tenancy of the land on which it stands." This again emphasises that in a case where there is a lease not only of the building out also of the land the tenancy would not come to an end by the mere destruction of the building. In Mahadeo Prasad v. Calcutta D & C Co. (AIR 1961 Cal. In Mahadeo Prasad v. Calcutta D & C Co. (AIR 1961 Cal. 70) the Calcutta High Court observed: "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." 'In George v. Varghese (1979 KLT 859) a shop room let out to the tenant was destroyed by fire. The tenant left the premises and started his business elsewhere. The landlord put up a fresh construction. Then the tenant claimed that his tenancy subsisted 'and he should be permitted to occupy the reconstructed room. In considering that claim this court held that the tenant had no such right. The head note of that decision clearly sets out the ratio of that decision. I quote that Head note: "The destruction of the leasehold property under the circumstances mentioned in S.108(e) by itself does not amount to a determination of these under S.111. In otherwords, even though a leasehold property is destroyed the tenancy is not automatically determined. Despite the destruction of the premises if the lease is to subsist who is the sufferer? Apparently it is the lessee, who is at a disadvantage because without the benefit of enjoying the right to property he is fastened with the liability to pay the contractual rent. It is presumably to avoid such a contingency that the tenant is conferred an option by S.108(e) to treat the contract as void and thereby avoid the liability of paying the rent in future. S.108(e) of the Act cannot be construed as supporting the contention of the tenant that he is entitled to the occupation of the new building in view of the subsistence of the original contract. S.108(e) of the Act cannot be construed as supporting the contention of the tenant that he is entitled to the occupation of the new building in view of the subsistence of the original contract. He has thus neither a contractual nor a statutory right to compel the landlord to surrender possession of the new building to the tenant." In Thomas v. Moran Mar Baselious Ougen (1979 KLT 596) this Court after holding that the doctrine of frustration is not applicable to lease in the light of the decision of the Supreme Court in Dm Dev v. Har Mohinder Singh (AIR 1968 SC 1024) laid down the law in the following terms: "It is presumably to avoid a contingency of the lease being fastened with the liability of payment of rent even if a material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purpose for which it was let, that the tenant is conferred an option by S.108(e) to treat the contract as void. That does not mean that in a case where the subject matter of the lease like the building here is totally destroyed, the tenant is entitled to squat on the ground where the building was situate or construct a new building in its place or require the landlord to put up a new structure. A lease as such could be determined only in one of the ways pointed out in S.111 of the Transfer of of Property Act. These ways of determination denote the continued existence of the subject matter of the lease. Under S.108(e) eve if a material part of the lease is destroyed or rendered substantially or permanently unfit for the purposes for which it was let out and such injury is not covered by the lessee, the lease though continuing can be treated as void by the lessee and thus get rid of his liabilities under the demise. But it would be too much to say that if there is a total destruction of the subject matter of the lease, and that too on account of the wrongful act of the lessee he can treat the lease as continuing, and either construct the building in the place of the destroyed building - the subject matter of the lease - or require the landlord to reconstruct the building. 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. Therefore, the first defendant is liable to be evicted." The matter came up before a Division Bench of this Court in Sidharthan v. Ramadasan (1984 KLT 538). Their Lordships after referring to the decisions bearing on the question and the passage from Wood fall on Landlord and Tenant quoted earlier held that when there was a total destruction of the shop room the lease was extinguished, for a demise must have a subject matter and if it is destroyed the lease comes to and end. The said decision was followed in Joseph v. Chellamma (ILR 1988 (2) Ker. 697). One would have thought, with respect, that the Division Bench decision referred to above would have set at rest the controversy if any in this Court on that question. But in the decision in George v. Peter (1990 (2) KLT 187) a learned Single Judge purporting to distinguish the decisions of this court referred to earlier including the decision in Sidharthan's case (1984 KLT 538) proceeded to hold that the site of a shop room is an integral and inseparable part of it and without the site, the super structure of a shop room on land cannot normally exist. Thus when a lease of residential house or a shop room on land is granted for occupying the same, such a lease would normally take in the site unless it is excluded either expressly or impliedly from the lease. The court proceeded to state that even after the destruction of the superstructure of the shop room in its entirety, the relationship between the landlord and the tenant with reference to that shop room would continue and there may have to be such an exercise of option by the tenant under S.108(e) of the Transfer of Property Act or a separate termination of the tenancy by the landlord to put an end to the tenancy. With respect, it does not appear that the anomalous situation that would arise by such a conclusion was considered in that decision. With respect, it does not appear that the anomalous situation that would arise by such a conclusion was considered in that decision. The subject-matter of the lease, or at least the primary subject-matter of the lease namely the shop room having been destroyed, the tenant could not have used the premises for the purpose for which he took it on tenancy. The tenant had no right on his own to put up a new structure or shop room in the property. By holding that the tenancy will continue, unless the tenant exercises his option under S.108(e) of the Transfer of Property Act, the position that would arise would be that he will continue to be the tenant of a building and would be continued to be liable to pay the rent to the landlord when at the same time unable to use the shop room. Logically in an area to which the Kerala Buildings (Lease & Rent Control) Act is extended, the landlord will have to seek eviction of the tenant from the building by recourse to S.11 of that Act. S.11 of the Rent Control Act does not contemplate eviction on the ground of the destruction of the building or the super structure. The claim for eviction from a building will have to be made by the landlord at a time when there exists no building and what is available is only the site of the former building. The position was to some extent considered by this Court in Damodaran v. Yeshoda (1993 (1) KLT 840) wherein this Court took the view that the decision of the Division Bench in Sidharthan (1984 KLT 538) was binding on this court and the decision in George v. Peter (1990 (2) KLT 187) cannot be taken to be the correct law. This Court noticing that the tenant did not have the right to reconstruct the building on his own in the absence of any specific covenant in that behalf in the deed of lease took the view that by the destruction of the structure that was leased, the lease came to an end. The matter again was taken up before a Division Bench in Kalpakam Amma v. Muthurama Iyer (1994 (2) KLT 424). The matter again was taken up before a Division Bench in Kalpakam Amma v. Muthurama Iyer (1994 (2) KLT 424). The Division Bench held that the question whether the tenancy would come to an end would depend upon whether the lease was of the building alone or the lease was of the building and the land on which it stood or which it was appurtenants to the building. Their Lordships held that when the superstructure was destroyed totally, there was no right in the tenant to put up a construction of his own in the property in the place of the destroyed super structure. Thus, in a sense, the decision of the Division Bench in Kalpakam Amma's case has postulated that the question whether the destruction of the shop room in a given case would put an end to the lease on the ground that the subject matter of the lease has been destroyed would beyond upon the facts of that case and the question whether the lease was of the super structure or lease was of the land and the super structure. 6. It appears to me, with respect, when a trader is leased out a shop room in a building having a number of rooms and the said shop room is destroyed either because some act or negligence on the part of the tenant or even vis major, it could only be considered as the destruction of the subject matter of the lease thereby putting an end to the tenancy. Normally in a tenancy of the building, that is leased out is the super structure and what is protected by the Rent Control Legislation is also the occupation of the superstructure. Normally in a tenancy of the building, that is leased out is the super structure and what is protected by the Rent Control Legislation is also the occupation of the superstructure. To hold that even though the tenant may have no right to put up a construction of his own in the place of the destroyed super structure in the absence of a specific covenant in that behalf in the transaction of lease he could still continue to squat in the property making it impossible for the landlord to construct or reconstruct the destroyed portion would be abhorrent to common sense and the more acceptable approach to the question would be to adopt the view taken by the Division Bench in the decision in Sidharthan's case that on the total destruction of the building the lease would stand extinguished since a demise must have a subject matter and if the subject matter is destroyed the lease comes to an end. I am therefore, of the view that the ratio of the decision in Sidharthan's case must be applied to the case on hand to hold that the tenancy of the shop room in favour of the tenant stands terminated in this case. 7. Going by the various decisions of this court referred to in the decision in Kalpakam Amma's case the courts below have granted decree for mandatory injunction to the plaintiff directing the defendant to remove the structure unauthorisedly put up by him in the place of the totally destroyed structure which was the subject matter of the lease. I see no reason not to accept the position adopted by the courts below that a tenant in the absence of a specific covenant to the contrary is not entitled to rebuild or build a structure in the place of the destroyed shop room. I therefore, find no justification in interfering at the instance of the defendant in his Second Appeal, S. A. 327 of 1997. The decree for mandatory injunction granted by the courts below is liable to be confirmed. In the result, I dismiss S.A. 327 of 1997.1 allow S.A. 334 of 1997 and in addition to the decree granted by the trial court I also grant the plaintiff a decree for recovery of possession on the ground that the lease stands terminated. I direct the parties to suffer their respective costs in this Court.