The replacement of super-structure does not render the building different, but rather a renovated or reconstructed building, and the order of eviction remains enforceable.

1. How a calamity can turn out to be a windfall? This case is illustrative of a tenacious tenant's attempts to take advantage of a a disaster which incinerated his shop. According to him, the building leased out to him (in respect of which an order of eviction is in force) was destroyed in fire during acts of vandalism and rioting indulged in by unruly mob which rocked Chalai Bazaar (in Trivandrum) in 1982. His further case is that he put up a new structure in that place. Now he contends that the order of eviction has become infructuous since the building itself has gone out of existence. Though the said contention was repelled by the execution court, the District Judge in revision under S.14 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act') directed the execution court to afford en opportunity to the tenant to prove that a new building has been constructed by him. This revision is by the decree holder-landlord challenging the aforesaid order of the District Court.

2. The following facts are necessary for appreciating the rival contentions raised in this revision: The Rent Control Court pasted an order of eviction against the tenant as per S.11 (2) of the Act. When the order was sought to be executed, the tenant deposited the entire arrears of rent etc., in the execution court and hence the execution petition was dismissed. But the dismissal order was set aside in revision by the District Judge and a second revision filed in this Court at the instance of the tenant was dismissed. However, this Court granted three months time to surrender possession of the building. A suit was filed claiming fixity of tenure in the building, but that suit was dismissed earlier. The tenant filed a second suit (as O. S.466/82) for declaration that the order of eviction is null and void. But that suit also was dismissed. Thereafter the tenant filed a third suit in which he claimed that the building had been destroyed during the rioting which took place in December 1982 and that a new building has been put up by him in its place with the consent of the landlord and for which the tenant had expended more than rupees one and a half lakhs. When the landlord filed the present E.P. for executing the order of eviction, it is resisted by the tenant on the ground that the building (covered by the order of eviction) had been destroyed in arson and rioting and that the tenant has put up a new building in its place. It is further contended that the building (in respect of which the order of eviction was granted) had a different number altogether (T.C. No. 38/1600) where as the Corporation of Trivandrum has allotted a new number to the present building (T.C. 41/1365).

3. The execution court declined to accept tenant's contention mainly for the reason that there is no evidence to substantiate the contention. But according to the learned District Judge, S.108 (d) of the Transfer of Property Act, 1882 has to be considered "once it is established in evidence that the building in respect of which the order of eviction was passed on 19-3-1976 is no longer in existence and that a new building has been constructed in its place". Hence learned District Judge directed the execution court to take up the execution petition afresh and afford an opportunity to both sides to adduce evidence en the question raised. The said order of the District Judge is now challenged in this revision.

4. Learned counsel for the respondent-tenant cited the decisions of this court in George v. Varghese (1976 KLT. 859), Thomas v. Moran Mar Baselious Ougen (1979 KLT. 596) and Sidharthan v. Ramadasan (1984 (2) Kerala I.L.R. 490) in support of the reasoning adopted by the lower court. In those decisions the legal position considered was about the application of S.108 (e) of the T.P. Act, when the building or subject matter of the lease is destroyed. But S.108 (d) or (e) of the T.P. Act has no application to the facts of this case. As per Clause (d), if duri