The main legal point established in the judgment is that the destruction of the building does not automatically terminate the lease, and the tenant cannot put up unauthorized constructions after the destruction of the building. The court also clarified that the lease would cover the site unless specifically excluded, and the landlord-tenant relationship continues until the appellant is evicted through due process of law.

Subramani, J.

Deceased 1st defendant in O.S.69 of 1980 of the Munsiff s Court, Trivandrum and who was the respondent in A.S.No. 271 of 1983 of the District Court, Trivandrum, is the appellant. Pending appeal she died and the second respondent, i.e. son of the appellant was transposed as additional appellant.

2. This appeal is on a reference by a learned single judge of this court, P. Krishnamoorthy, J.

3. The substantial questions of law which arise for consideration in this appeal are:

(i) Whether the court below is correct in finding that the destruction of the subject matter of the lease will automatically terminate the lease without considering the question of option exercised by the lessee as per S.108(e) of the Transfer of Property Act?

(ii) Alternatively whether the court below is correct in applying the decision of the Hon'ble Court in Sidharthan v. Ratnadasan (1984 KLT 538) and whether it is correctly decided in view of the decision of the Supreme Court in Druv Dev Singh v. Harmondir Singh (A.I.R 1968 SC 1024)?

4. Before considering the question of law which arise, a brief narration of facts is necessary. Deceased first respondent tiled a suit for declaration of title and recovery of possession. A portion of the building bearing door No.T.C.34/1229, having two rooms, was rented out to the original appellant on a monthly rent of Rs. 121- There was some dispute between the landlord and tenant and a rent control petition was filed as O.P.(B.R.C.) No.104 of 1974 against the deceased appellant for eviction on the ground of arrears of rent. The eviction petition though allowed, was vacated since the tenant deposited the entire arrears of rent under S.11(2) (c) of the Kerala Buildings (Lease & Rent Control) Act, 1965. The case of the plaintiff is that the building which is. the subject matter of the lease was completely destroyed in 1977 and as a result of the collapse of the building, the tenant vacated the premises, surrendered the same and there was termination of tenancy. It is further averred that subsequent to the termination of the tenancy, the deceased appellant trespassed into the property and put up a construction. The suit was necessitated in view of the trespass. Apart from declaration and recovery, the plaintiff has also sought a decree for mandatory injunction directing the deceased appellant to remove the unauthorised construction, and in case she fails to do so, to permit him to remove the same and recover costs from the defendants.

5. Defendants who are the mother and son, filed a joint written statement. First defendant admitted the tenancy, but contended that the building was practically destroyed by the plaintiff in her absence and by the orders of the District Collector, she has restored the building. According to her, the tenancy is not terminated and she is entitled to continue in possession as its tenant. Second defendant contended that he is an unnecessary party and he is not residing in the building.

6. The trial court as per judgment dated 31-7-1982, held that there is no termination of tenancy, the entire building was not destroyed, there is no surrender and relinquishment as alleged by the plaintiff and the trespass alleged is not true. The trial court further held that the tenancy continues and therefore, recovery cannot be allowed. It was also found by the trial court that there is no evidence that the landlord (plaintiff) is responsible for the destruction of the building. The suit was ultimately dismissed.

7. Against the decision of the trial court, the plaintiff filed A.S.No. 271 of 1983, before the District Court, Trivandrum. The learned District Judge held that the subject-matter of the lease is completely destroyed and the construction made by the appellant is unauthorised. Relying on the decision reported in 1984 KLJ 263 =1984 KLT 538 (Sidharthan v. Ramadasari) it was held that the first defendant is liable to be evicted from the property and the construction is also liable to be remo