IMPORTANT POINT
Destruction of building alone does not determine the tenancy.

JUDGMENT

SUDHANSU JYOTI MUKHOPADHAYA, J.

1. This appeal is directed against the judgment and decree dated 18th July, 2006 passed by the High Court of Judicature at Bombay in Second Appeal No. 109 of 2006. By the impugned judgment, the High Court affirmed the concurrent finding of the lower courts that the appellant's tenancy right had lapsed and dismissed the second appeal.

2. When the matter came before this Court, vide order dated 5th January, 2007, this Court referred the matter to a Bench of three Judges. The said order reads as under: "Apparently there seems to be inconsistency in the view taken by this Court in Vannattankandy Ibrayi Vs. Kunhabdulla Hajee [(2001) 1 SCC 564] and T.Lakshmipathi & Ors. Vs. R.Nithyananda Reddy & Ors. [(2003) 5 SCC 150].

Leave granted.

The matter shall be placed before a three Judge Bench.

Status quo shall be maintained in the meanwhile."

3. In the case of Vannattankandy Ibrayi Vs. Kunhabdulla Hajee, (2001) 1 SCC 564, this Court formulated two questions for consideration: "

(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."

Both questions were answered in the affirmative.

4. In Lakshmipathi & Ors. Vs. R.Nithyananda Reddy & Ors. (2003) 5 SCC 150, this Court held that lease of a building includes, the land on which the building stands. So even if the building is destroyed or demolished, the lease is not determined as long as the land beneath it continues to exist. Doctrine of frustration cannot be invoked on destruction or demolition of a building under lease where not only privity of contract but privity of estate is also created.

5. In the present case, the suit property comprises of Plot No. 525, Shaniwar Peth, Karad in District Satara, Maharashtra. There was a godown on the southern side of the suit property. The eastern portion of the suit property was open and there was a road admeasuring 10 to 12 ft. from which the municipal road could be accessed. On the northern portion of the suit property, there was one RCC building. The northern 11/16th portion of the suit property belonged to one Vinayak Patwardhan whereas the southern 5/16th share, on which the godown was constructed belonged to one Ujjwal Lahoti.

6. In or about 1961-62, the appellant firm took the godown over the suit property on rent from Ujjwal Lahoti; Since then the appellant has been continuously paying rent to Ujjwal Lahoti and storing its goods in the godown. The appellant was using the access on the eastern side of the godown for approaching the municipal road and in bringing its goods to the godown.

7. The case of the appellant is that the respondent had purchased 11/16th share of Vinayak Patwardhan in Plot No. 525 by two sale deeds dated 9th September, 1971 and 21st January, 1978, After purchasing the plot, the respondent demolished the RCC building existing over the property and started digging for basement for construction of a hotel. Later, on 4th May, 1990, the respondent purchased the remaining 5/16th share from Ujjwal Lahoti.

8. Further case of the appellant is that the respondent(s) without obtaining any requisite permission from the municipality started digging a ditch towards the northern side wall of the suit property, thereby exposing the northern base of the godown to the vagaries of nature. The said ditch was nearly 13.6 ft. deep and exposed the entire base of the godown. During the rainy season, water got accumulated in the said ditch and the entire structure of godown was threatened. It weakened the foundation of godown and subjected the ent