Tenancy rights persist despite the destruction of a building if the underlying land remains, reaffirming that unauthorized construction does not extinguish tenancy.

JUDGMENT :

C. PRATHEEP KUMAR, J.

Defendants 1 and 2 in OS 365/1985 and 1019/1995 on the file of the First Additional Sub Judge, Thiruvananthapuram, are the appellants in A.S.461/1997. The 4^th defendant and additional 6^th defendant in the above suits are the appellants in A.S.234/1997. Since both the above suits were filed by the common plaintiffs against the common defendants, the learned Sub Judge has tried those suits jointly and disposed of them by a common judgment. For the purpose of convenience, the parties are hereafter referred to as per their rank before the Trial court.

2. O.S.365/1985 is a suit for declaration of title and recovery of possession of the plaint schedule property. O.S.1019/1995 was originally filed as O.S.36/1983 before the Munsiff's Court, Thiruvananthapuram and it is a suit for injunction. Since both the suits were between the common parties and the subject matter in dispute is also the same, O.S.36/1983 was transferred to Sub Court wherein it was refiled as O.S.1019/1995. As per the plaint averments, an extent of 3.80 cents of property comprised in Sy.No.39 of Ayiranimuttom village with buildings having T.C. Nos.39/2024, 2025, 2026, 2027 and 2028 were taken delivery of by the plaintiffs in execution of the decree passed in O.S. 24/1961 of the Sub Court, Thiruvananthapuram, and accordingly the plaintiffs became in absolute title and possession of the said property and the buildings. All the aforesaid shop rooms form part of a single building under a common roof and it was a double storied one. The 1^st defendant is the wife of the 2^nd defendant. The 1^st defendant was the tenant of the building bearing T.C.No.39/2027 and also the room in the upstairs which is having No.39/2028 and a shed behind the above room, on a monthly rent of Rs.75/-. The 3^rd defendant was the tenant of building No.2026, with a monthly rent of Rs.30/- and defendants 4 and 5 were tenants of building Nos.2024 and 2025 and the rate of rent was Rs.15/- and Rs.20/- respectively. According to the plaintiffs, the entire building was destroyed in fire that broke out on 30.12.1982 followed by a communal violence and accordingly the tenancy came to an end and the lease got extinguished. When defendants 1 to 5 along with their agents collected materials for putting up new constructions in the place of the existing building, they filed O.S.36/1983 before the 3^rd Additional Munsiff's Court and obtained an order of injunction against the said unauthorised construction. However, in violation of the above order of injunction, the defendants proceeded to construct new building and that is why the plaintiffs filed the suit for declaration and recovery of possession of the scheduled property after demolishing the unauthorized constructions put up by the defendants. They also prayed for mesne profits at the rate of Rs.240/- per month along with arrears of rent.

3. The defendants filed written statement denying the averments in the plaint. Defendant 1 and 2 admitted the tenancy in respect of building bearing T.C.No.2027 but denied having any tenancy with the plaintiffs in respect of building bearing T.C.No.2028. According to them, building No.2028 originally belonged to one Hassan and he had handed over the possession of the said building to defendants 1 and 2 for valuable consideration. According to defendants 1 and 2, the said building obtained by them from Hassan got destroyed in fire and as such the 2^nd defendant put up a new building spending a sum of Rs.1,00,000/- and he is doing business there, in the name and style 'Popular Medicals'. According to defendants 1 and 2, the plaintiffs have rented out only shop room No.2027, one upstair room