DAMODARAN Vs. YESHODA

JUDGEMENT

(1.) The defendants are the appellants. They arc the tenants of a building under the respondents. The subject matter of the lease, the building was gutted in a fire. It appears that the appellants, the tenants, attempted to rebuild the building on their own and this resulted in the respondents landlords filing the present suit for a permanent injunction restraining the appellants-tenants of the building from putting up any construction on their own in the land on which the demised building stood. The appellants resisted the suit by contending that they have got a right to reconstruct the building that was destroyed. This defence has been found to be unacceptable by the courts below and the suit for injunction has been decreed restraining the appellants from putting up any construction in the property where the original building stood. The appellants have come up with this Second Appeal challenging the said decree. The substantial question of law that is sought to be raised in the Second Appeal is as to whether a tenant of a building could be restrained from putting up a fresh building in the land on which the subject matter of the original lease stood and which had been destroyed by fire.

(2.) The learned counsel for the appellants rested his arguments on the plank of the finding by the lower appellate court following a decision of this court reported in George v. Peeter ( 1990 (2) KLT 187 ) to the effect that the destruction of the subject matter of the lease namely the building does not by itself bring about a termination of the tenancy in the eye of law and that it is not open to the landlord to re-enter the land on which the building stood without evicting the tenant from the said land. This finding though is in favour of the appellants, I have considerable hesitation in accepting that finding as correct in the light of the decision of a Division Bench of this court reported in Sidharthan v. Ramadasan ( 1984 KLT 538 ). The Division Bench following the decision of the Calcutta High Court had clearly laid down that the tenancy conies to an end when once the subject matter of the lease namely the building is destroyed. The Division Bench after noticing S.108(e) of the Transfer of Property Act had observed:

(3.) The question that arises for consideration assuming that the land on which the building stood is continued to be held by the appellants as tenants of the building is as to whether the tenants are entitled to construct a new building in the site where the subject matter of the demise in their favour originally stood, without the consent or against the volition of the landlord. The relevant clauses of S.108 of the Transfer of Property Act to be noticed in this connection are S.108(e), (f) and (m). Clauses (c), (f) and (m) read as follows: