JUDGMENT :- This appeal, on behalf of defendant 1, arises out of a suit brought by the plaintiffs for declaration of their title to the disputed land and for recovery of vacant possession after removing a temporary abed erected by the defendant thereon. Only such facts as are relevant and necessary for deciding the limited questions raised in this appeal may be shortly stated.

2. Under the Maharaja of Cossimbazar Nirendra and his brothers held a jama in respect of C.S. plot No. 2122 within the Ranaghat municipality. Subsequently, Nirendra became the sole owner of the leasehold right. The plaintiffs case is that on O.S. plot No. 2122 they had erected certain that ched sheds. The principal defendant was inducted as a monthly tenant of those sheds for a fruit stall. A suit for ejectment had been filed against the defendant after due service of a notice under S. 106, T.P. Act. During the pendency of the suit however there was a fire in the bazar when this particular shed was completely burnt down. Thereafter, the defendant raised another structure on the land in spite of the protest of the plaintiffs. A prayer for injunction in the suit which was then pending was refused and thereupon the said suit was withdrawn with liberty to institute a fresh suit. Under these circumstances the present suit came to be filed. The plaintiffs allege that the original abed which had been let out to the defendant having been destroyed by fire the contract between the parties was rendered void and the plaintiff a are entitled to re-enter.

3. The defence as set up was of a two-fold nature. It was pleaded that the land on which the structure stood had been let out by the plaintiffs to defendant and the shop room now destroyed had been constructed by the lessee. Alternatively it was stated that if it be held that the original structures had been erected by the lessors and that which had been let out was the room only the lease had not terminated on that shed being burnt down. The plaintiffs were not accordingly entitled to re enter.

4. Both the Courts below have held that the which had been burnt down had been erected by the lessors and what had been let out was the shop room only. That the defendant was a tenant in respect of the shop room erected by the plaintiffs is a conclusion which is a finding of fact on a consideration of the evidence in the case. This question cannot be re-agitated in this appeal.

5. The point which requires consideration is whether on the total destruction of the shed, which had been erected by the lessors by the fire, the tenancy had come to an end.

6. Clause (e) of S. 108, T.P. Act provides that :

"If by fire, any material part of the property be wholly destroyed or rendered substantially and permanently unfit, for the purposes for which it was let, the lease shall,"

in the absence of a contract or local usage to the contrary "at the option of the lessee, be void."

7. It is urged on behalf of the appellant that under this clause an option is given only to the lessee to determine the lease if the conditions stated therein are satisfied. If in spite of the structures being destroyed or rendered permanently unfit, the defendant-tenant elects to continue the tenancy the lessor is not entitled to compel the defendant, tenant to walk out.

8. It is incontestable that this clause makes no reference to the rights, if any, of the lessor if the lessee, in spite of the destruction of the premises elects to pay the rent. In Kunkhaen Haji v. Mayen 17 Mad 98 : (4 MLJ 21), it was held that on the destination of the coffee-plants by fire which only had been leased out and abandoned by the tenant the lessor was not entitled to claim rent after such exercise of option by the tenant. This was a case which was covered by the provisions contained in S. 103 (e), T.P. Act.

9. This clause does not in terms apply to the facts of the present case where the lessee neither elected to walk out even after total destruction or is willing to suspend payment of rent a

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