The destruction of the subject-matter of a lease does not automatically terminate the tenancy, and the rights and liabilities of the parties are governed by S.108(e) of the Transfer of Property Act.

1. The short facts under which this appeal by the plaintiff arises can be stated thus:

2. The plaintiff-appellant let a shop room to the defendant -respondent under Ext. Al dated 10-2-1969 for his business. On 5-12-1973 a lorry KLD. 619 which came along the adjoining road dashed against the shop room and damaged it completely. C schedule in the plaint is the site of the shop room. The defendant attempted to construct a shop room at the site of the old room. The plaintiff thereupon brought the suit for an induction to stop the construction. He attained an order of temporary injunction to the same effect. However in breach of the injunction the defendant proceeded with the construction even extending beyond the original, site. The D schedule is the area upon which the construction was thus extended. This extension was however demolished under the order of the Calicut Corporation within whose limits the land lies. The plaintiff then amended the plaint into one for recovery of possession of the C and D schedule plots after restoring them to their original condition. The B schedule consists of the C and D schedules and the A schedule is the aggregate of the 3 schedules. The defendant contended that the lorry accident only damaged the shop room but did not completely destroy it or render its site vacant. The subject of the lease had not vanished and he was still in possession of the room under the terms of Ext. Al. He had not trespassed upon any portion of the land in the plaintiff's possession or violated the injunction. The plaintiff, he contended, was not entitled to any of the reliefs claimed by him.

3. The Munsiff found that the shop room was completely destroyed by the accident and that the present room is a newly constructed one. He also found that the construction made by the defendant was unauthorised and that;the plaintiff was entitled to evict the defendant from the C schedule. As for the D schedule, he held that no relief need be given as the construction had been demolished by the Calicut Corporation and the plaintiff was in possession of the plot. On these findings the plaintiff was allowed to recover the C schedule with Rs. 150/- for use and occupation and the defendant was directed to demolish and remove the construction made by him in the C schedule, with a default clause empowering the plaintiff to remove it.

4. The defendant appealed. The appellate court confirmed the finding that the original shop room was completely destroyed, that the defendant had reconstructed a portion of the building in the C schedule and that what is now in existence is only the structure so reconstructed. However it differed from the Munsiff holding that the destruction of the shop room had not terminated the tenancy, that the defendant was in occupation of the C schedule in virtue of his tenancy and as the tenancy had not been terminated under the provisions of the Transfer of Property Act the plaintiff was not entitled to recover possession of the site. It also held for the same reason that the plaintiff had no right to have the new construction put up, rightly or wrongly by the defendant removed. The appellate court accordingly reversed the decision of the Munsiff and dismissed the suit with costs.

5. The, second appeal was admitted on the question "Does not a lease deed stand terminated on the destruction of the subject-matter of the lease?"

6. At the original hearing of the appeal a learned single judge thought that there was some conflict between Sarada v. Kumaran, 1969 KLT, 133, and Thomas v. Moran Mar Baselious Ougan 1979 KLT. 596, and therefore referred the case to a Division Bench.

7. The courts below have concurrently found that the shop room which was teased to the defendant under Ext. Al was Completely destroyed and not merely damaged as pleaded by him. There was some controversy between the parties whether the subject-matter of the tenancy was only the shop room or whether it was the shop room and its site. Ext. Al spe