A lease is not automatically terminated by the destruction of a house on the leased property, unless the lessee exercises his option to avoid the lease under Section 108(e) of the Transfer of Property Act.

GOSWAMI, C. J. :- This second ap­peal is by the defendant against the decree of the learned Subordinate Judge, L.A.D, Gauhati, reversing to earlier decree of the learned Munsiff.

2. The plaintiff's case is that he is the owner of the land mentioned in the schedule measuring 1 Bigha 8 Lechas of dag No. 44/557 Annual Patta standing in his name. The plaintiff had his houses on the land and the defendant occupied one thatched house on a monthly rent of Rs. 5/-since December, 1954. This house was burnt in 1956 and thereafter the defen­dant, in spite of protests from the plaintiff, forcibly constructed his house there and has been in wrongful occupation of the land. There was some dispute regarding the annual patta between the plaintiff and the defendant. But the matter was finally settled by an order of the Revenue Board on 5th August, 1963, holding that the plain­tiff's patta was in force. The defendant was trying to make further constructions on the land in spite of protests from the plaintiff and hence this suit for khas pos­session of the land by "removal of the tem­porary houses of the defendant."

The defendant admitted that the plain­tiff had leased out the land measuring 4 kathas of the annual patta on 3rd Decem­ber, 1954, at Rs. 5/- per mensem "for doing business by constructing the house thereon." The defendant thereafter con­structed five thatched houses on the land. The houses were gutted by fire on 15th January, 1956 and the defendant again constructed his house on the land in suit. The defendant further states that after tak­ing lease from the plaintiff, the latter gave assurance to execute a sale deed for the land in suit in favour of the defendant and took a sum of Rs. 370/- by instalments. He therefore prayed for dismissal of the suit.

3. The learned Munsiff dismissed the suit on the ground that it was not main­tainable in absence of a prayer for declara­tion of right and title to the land. The learned Subordinate Judge in appeal de­creed the suit on the ground that the de­fendant admitted the plaintiff's title in his written statement as well as in Ext. A (same as Ext. 7), a letter dated 15th September, 1955 written by the defendant to the plaintiff. Since the learned Munsiff held the defendant to be a tenant first and thereafter a trespasser on the land, the learned Subordinate Judge on that finding held the suit to be maintainable and de­creed the same. Hence this second appeal.

4. The only point which is urged by the learned counsel for the appellant is that since the defendant was a tenant the suit is liable for dismissal in absence of a notice under Section 106 of the Transfer of Property Act. It is admitted that no notice has been served on the defendant. The learned counsel for the respondent submits that since the house which had been let out to the defendant was destroyed by fire, the lease came to an end and the defendant, after that, was only continuing as a trespasser and hence no notice under Section 106 of the Transfer of Property Act is necessary. He invokes the provisions of Section 56 of the Indian Contract Act, in support of his submission.

5. It is the plaintiff's case that the defendant came to the land in suit and occupied his house thereon as a tenant. When the house was gutted bv fire, the defendant instead of surrender­ing the land, constructed his own house on the land in spite of protest and con­tinued to occupy the same. On the above facts, the point that arises for considera­tion is whether the lease that is admitted by the defendant determined on the des­truction of the house. Section 105 of the Transfer of Property Act defines 'lease'. It is a transfer of a right to em'ov immo­vable property. It is not a contract but a concluded transfer. There may be some covenants in the lease, but that does not make it less a transfer of the right to enioy the property. Since the right to em'ov the property has been already transferred under the lease to the defendant, under Section 111 it will determine

Click Here to Read the rest of this document