KUNHABDULLA HAJI Vs. IBRAYI

JUDGEMENT

(1.) 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 defendant 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 defendant 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, 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. 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 the complete destruction of the building that was let out, the landlord could not be given a decree for recovery of possession. Thus the negativing 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 that relief while the defendant-tenant challenges in his Second Appeal the decree for mandatory injunction directing him to remove the building unauthorisedly put up by him in the property.

(3.) Before proceeding to discuss the questions 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 P.W. 2 appreciated in the light of Exts. A-l and'A-2 that the shop room which existed in the plaint schedule property was completely 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 same stood and since there was only 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 if could not be said that there is a destruction of the subject-matter of the lease.