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RAJIV MEHTA

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CASE NO.:

Appeal (civil) 2908 1999

Appeal (civil) 2909 1999

PETITIONER:

VANNATTANKANDY IBRAYI

Vs.

RESPONDENT:

KUNHABDULLA HAJEE

DATE OF JUDGMENT: 13/12/2000

BENCH:

V.N.Khare, S.N.Phukan

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

J U D G M E N T

KHARE, J.

In these appeals, two questions that arise for

consideration are these - (a) whether the tenancy in respect

of the premises governed by The Kerala Buildings (Lease and

Rent Control) Act (hereinafter referred to as the State

Rent Act) is extinguished by destruction of the subject

matter of tenancy i.e. the premises by natural calamities

and (b) on the destruction of property whether the civil

court has jurisdiction to entertain and try the suit for

recovery of possession of land brought by the landlord. The

case in brief is that the predecessor-in-interest of the

respondent landlord let out a shop to the

defendant-appellant herein. The said shop was raised to the

ground due to accidental fire on 9.1.1990 and there remained

only the vacant land. The appellant- tenant, after

destruction of the shop constructed a new shop on the same

site without the consent and permission of the respondent-

landlord. Under such circumstances, the respondent landlord

filed a suit for mandatory injunction for demolition of the

new shop constructed by the appellant and for recovery of

possession of the land on which the old super structure

stood. The contention of the appellant in the suit was that

he was entitled to put up a new super structure in place of

the old one since by virtue of Section 108(B)(e) of the

Transfer of Property Act (hereinafter referred to as the

Act) he, having not opted to render the tenancy void, the

tenancy subsists. The trial court was of the view that

after the destruction of the shop the tenancy in respect of

land still subsists and the plaintiff is not entitled to

recover the possession of the site over which the old shop

existed. However, the trial Court granted decree for

mandatory injunction directing the appellant to demolish and

remove the new shop constructed by him as the same having

been constructed without the consent and permission of the

landlord. The plaintiff-respondent, as well as the

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defendant-appellant, filed separate appeals against the

decree of the trial court. The First Appellate Court

dismissed both the appeals and affirmed the decree of the

trial court. Aggrieved, both the defendant-appellant and

the plaintiff-respondent preferred two separate Second

appeals. The High Court allowed the second appeal filed by

the plaintiff-respondent, whereas, the second appeal filed

by the defendant-appellant was dismissed. The High Court

was of the view that on the total destruction of the

premises by natural calamity the tenancy stood extinguished

and, therefore, the landlord is entitled to the decree for

recovery of possession of the land. It is in this way the

defendant-appellant is in appeal before this Court.

Before we proceed to discuss the questions formulated

above, it is necessary to state the admitted facts of this

case. It is not disputed that the shop of which the

appellant was a tenant was governed by the State Rent Act.

It is also not disputed that the tenanted shop was

completely destroyed due to natural calamity i.e. by fire

and it was not pulled down by the landlord. It is also

admitted that as a result of destruction, the land on which

the super structure stood was reduced to vacant land. It is

also not disputed that what was let out to the appellant was

shop and not land beneath the shop. It is also not disputed

that the tenant made a new constr