VANNATTANKANDY IBRAYI Vs. KUNHABDULLA HAJEE

JUDGEMENT

(1.) In these appeals, two questions that arise for consideration are these- (a) whether the tenancy in respect of the premises governed by The Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as "the State Rent Act") is extinguished by destruction of the subject matter of tenancy i.e. the premises by natural calamities and (b) on the destruction of property whether the Civil Court has jurisdiction to entertain and try the suit for recovery of possession of land brought by the landlord.

(2.) The case in brief is that the predecessor-in-interest of the respondent landlord let out a shop to the defendant-appellant herein. The said shop was raised to the ground due to accidental fire on 9-1-1990 and there remained only the vacant land. The appellant-tenant, after destruction of the shop constructed a new shop on the same site without the consent and permission of the respondent-landlord. Under such circumstances, the respondent landlord filed a suit for mandatory injunction for demolition of the new shop constructed by the appellant and for recovery of possession of the land on which the old super structure stood. The contention of the appellant in the suit was that he was entitled to put up a new super structure in place of the old one since by virtue of Section 108(B)(e) of the Transfer of Property Act (hereinafter referred to as "the Act") he, having not opted to render the tenancy void, the tenancy subsists. The trial Court was of the view that after the destruction of the shop the tenancy in respect of land still subsists and the plaintiff is not entitled to recover the possession of the site over which the old shop existed. However, the trial Court granted decree for mandatory injunction directing the appellant to demolish and remove the new shop constructed by him as the same having been constructed without the consent and permission of the landlord. The plaintiff-respondent, as well as the defendant-appellant, filed separate appeals against the decree of the trial Court. The First Appellate Court dismissed both the appeals and affirmed the decree of the trial Court. Aggrieved, both the defendant-appellant and the plaintiff-respondent preferred two separate second appeals. The High Court allowed the second appeal filed by the plaintiff-respondent, whereas, the second appeal filed by the defendant-appellant was dismissed. The High Court was of the view that on the total destruction of the premises by natural calamity the tenancy stood extinguished and, therefore, the landlord is entitled to the decree for recovery of possession of the land. It is in this way the defendant-appellant is in appeal before this Court.

(3.) Before we proceed to discuss the questions formulated above, it is necessary to state the admitted facts of this case. It is not disputed that the shop of which the appellant was a tenant was governed by the State Rent Act. It is also not disputed that the tenanted shop was completely destroyed due to natural calamity i.e. by fire and it was not pulled down by the landlord. It is also admitted that as a result of destruction, the land on which the super structure stood was reduced to vacant land. It is also not disputed that what was let out to the appellant was shop and not land beneath the shop. It is also not disputed that the tenant made a new construction on the same site without the permission and consent of the landlord and the same was unauthorised.