GEORGE Vs. VARGHESE

JUDGEMENT

(1.) A shop room was taken on rent by the appellant plaintiff from the respondent defendant under Ext. A1, and that room was destroyed by accidental fire sometime in 1968. The appellant vacated the premises and started his business in another building. In due course the defendant landlord put up a new structure in the old premises and inducted his son into the new construction. On 1-6-1971 the appellant instituted the present suit for directing the defendant to let out the newly constructed premises to the plaintiff on the ground that Ext. A1 contract still subsists. The action was resisted by the defendant on various grounds inclusive of the contention that Ext. A1 was terminated by the voluntary and unqualified surrender of the premises by the plaintiff to the defendant. The courts below substantially accepted the contentions raised by the defendant and non suited the plaintiff.

(2.) The averments in the plaint suggest a sort of agreement between the plaintiff on the one part and the defendant on the other to the effect that the defendant was permitted by the plaintiff to put up a new structure on the understanding that the reconstructed premises will again be let out to the plaintiff. In as much as there is no evidence whatsoever in support of the suggested agreement, the appellant did not canvass before me for the proposition that his claims are based upon any specific subsequent agreement.

(3.) The only contention urged before me is that Ext. A1 contract continues to be in force and that on the strength of that contract the plaintiff is entitled to the occupation of the newly constructed building. In support of his case the appellant relied on S.108(e) of the Transfer of Property Act (for brevity the Act). The appellant did not seriously dispute the proposition that if Ext. A1 has been terminated in accordance with the relevant provisions of the Act, S.108(e) cannot be of any assistance to him. So the main question to be considered is whether Ext. A1 has been terminated in accordance with S.111 of the Act. In Para.8 of the plaint what is alleged is that the plaintiff surrendered the premises to the 1st defendant only for the purpose of constructing a new building. In Para.9 of the written statement, in addition to the denial of the understanding referred to in Para.8 of the plaint, it is specifically contended that there was a voluntary and unconditional surrender of the premises by the plaintiff tenant in favour of the defendant landlord. There is no written surrender in this case. But certain facts are beyond dispute. The shop room was destroyed. The plaintiff never showed any interest to retain the vacant space. As a matter of fact, what he did was to hire out another building and start his business there. The landlord undoubtedly entered possession and put up a new structure without any demur from the tenant. The sequence of events cannot support the case of a qualified surrender urged by the appellant. That apart, in the plaint though the plaintiff is very vehement in alleging that Ext. Al continues, it is significant to note that there is no whisper regarding the liability of the plaintiff to pay rent from the date of destruction of the premises till the institution of the suit. It would thus appear that according to the plaintiff Ext. A1 continues for the limited purpose of conferring a right on the plaintiff to claim the new building and without any liability to pay the rent agreed upon under Ext. Al for the period during which he was not in occupation. I am highlighting this aspect only to show that when once the agreement suggested in the plaint is found against and the subsequent events are taken into consideration it is crystal clear that there was a complete surrender of the premises and that the plaintiff never dreamt of keeping alive Ext. A1 to his detriment or to his advantage. I am thus satisfied that this is a case where there has been a determination of Ext. A1 lease by surrender. That being so, S.108(e) of the Act can have no application.