Kerala High Court
Puthukkattil Parangodan vs Puthukkattil Parameswaran on 7 March, 2002
Equivalent citations: AIR 2002 KERALA 221, ILR(KER) 2002 (2) KER 280, (2002) 3 CIVILCOURTC 485, (2002) 2 RENCR 215, (2003) 1 RENTLR 216, (2002) 3 RECCIVR 635
JUDGMENT K.A. Mohamed Shafi, J.
1. S. A. No. 725/96 is preferred against the Judgment and decree in O. S. No. 425/1985 on the file of the Munsiff's Court. Kozhikode modified by the District Court. Kozhikode in A. S. No. 108/ 1991, S. A. No. 824/96 is preferred against the Judgment and decree in O. S. No. 679/ 1985 on the file of the Munsiffs Court, Kozhikode, confirmed by the District Court, Kozhikode in A. S. No. 109/1991.
2. The appellant and the respondent and the plaint schedule property in both the appeals are the same. O. S. No. 425/85 is the suit filed by the appellant seeking a permanent prohibitory injunction restraining the respondent from removing the remants of the fallen shed in the plaint schedule property and to restrain the respondent from entering into the plaint schedule property and constructing new shed or any other structures. O. S. No. 679/85 is filed by the respondent against the appellant seeking permanent prohibitory injunction restraining the appellant and his men from trespassing upon the plaint schedule property and demolishing the shed or any part of it in the possession of the respondent and obstructing the work that is being done by the respondent in the plaint schedule premises.
3. It is the common case Dial the two sheds situated in the plaint schedule property were let out by the appellant to the respondent on a monthly rent of Rs.57.50 as per Ext. A2 rent bond dated 19-5-1971 and the respondent has been conducting spray painting of cars in those sheds. On 26-11-1977 one of the sheds collapsed and the other was in a slanting position, about to collapse. The appellant filed O. S. 425/85 seeking permanent prohibitory injunction restraining the respondent from entering upon the property and putting up new shed or any other construction and for preventing the respondent from removing the remants of the shed from the plaint schedule property.
4. O. S. No. 679/85 is filed by the respondent alleging that the lease is in respect of the plaint schedule property and the sheds and as such the lease is still subsisting and thereby seeking permanent prohibitory Injunction against the appellant from trespassing upon the plaint schedule property or causing destruction or damage to the shed possessed by the respondent.
5. The trial Court tried both the suits jointly and by the common judgment dated 30-3-1991 dismissed O. S. 425/85 filed by the appellant and decreed the suit O. S. 679/ 85 filed by the respondent as prayed for against the appellant. The appellant preferred A. S. 108/91 and 109/91 respectively against the decrees and Judgment in O. S. Nos. 425 & 679/1985 before the appellate Court. The lower appellate Court allowed A. Section 108/91 in part and passed a decree for permanent prohibitory injunction restraining the respondent from putting up structures in the plaint schedule property which are permanent in character or which would last till the expiry of the lease, modifying the decree and judgment passed by the trial Court in O. S. 425/85 and dismissed A. S. 109/91 confirming the decree and Judgment passed by the trial Court, by the common judgment dated 2-9-1995. Hence the plaintiff appellant and respondent - defendant have come up in the above Second Appeals before this Court.
6. The substantial questions of law raised are : (i) On the complete destruction of the sheds which are the subject-matter of the lease does the relationship between the landlord and tenant continues? (2) Has the tenant any right to substitute a building or make any construction either permanent or temporary under Section 108 of the Transfer of Property Act or any other provisions of law ? (3) When the sheds which were leased out are not in existence and are completely destroyed, is there an automatic termination of the lease ? (4) When the subject-matter of the tenancy Itself does not exist, has the tenant any continuing or subsisting right to claim under the tenancy ?
7. Since the parties to the above appeals are the same, the contentions raised are identical, the suits are tried jointly and disposed of by the trial Court by the common judgment and the appeals are also disposed of by the lower appellate Court by the common judgment, these second appeals are heard and disposed of by this common judgment. In this judgment the landlord and tenant are referred to as appellant and respondent.
8. The lease of the two sheds by the appellant to the respondent as per Ext. A2 lease deed dated 19-5-1971 on a monthly rent of Rs. 57.50 is admitted. It is also admitted that both the sheds collapsed and they are not in existence. While the appellant has contended that by the destruction of the two sheds which are the subject-matter of the lease as per Ext. A2, the lease is automatically terminated, the respondent has contended that though the sheds are destroyed the lease is still subsisting and not terminated since the shed and the property are the subject-matter of the lease.
9. It is not disputed that the provisions of the Rent Control Act are applicable to the building involved in this case and the appellant had filed R. C. P. Nos. 81/72, 85/77 and 165/80 against the respondent claiming eviction on the ground of arrears of rent and after eviction was ordered the respondent got those orders vacated by paying the arrears of rent.
10. In Ext. C1 report filed by the Commissioner after inspecting the plaint schedule property on 27-7-1995, the Commissioner has stated that one of the sheds was fallen completely earlier and the existing shed is partially fallen and it is very likely to collapse at any moment. In Ext C2 report filed by the Commissioner after inspecting the plaint schedule property on 8-4-1988, the Commissioner has stated that the dilapidated shed in dangerous condition noted by him in his earlier report is not in existence and it appeared that everything was removed. It is further stated that the plaint schedule property looked like a plain area without any structure except four poles. The defendant as DWI has also admitted that no building or shed is in existence in the property.
11. It is well settled that the tenant cannot make any additional construction or construct a new building in the site where the subject-matter of the demised building was originally stood without the consent of the landlord.
12. The appellant has contended that since only two sheds as specifically described in the schedule of Ext. A2 are let out to the respondent as per Ext. A2 rent bond, the lease in favour of the respondent stands terminated with the destruction of the building. On the other hand, the respondent has contended that it is clear from the various documents produced in these cases that the sheds along with the land are let out to the respondent as per Ext. A2 rent bond and therefore the lease in favour of the respondent continues till the lease is terminated under due process of law in spite of the fact that the sheds, the super structure in the property is destroyed and do not exist now.
13. In the body of Ext. A2 rent bond it is stated that the sheds described in the schedule and the property wherein they are standing are let out on a monthly rent of Rs. 57.50 to the respondent. In the schedule it is stated that the two sheds put up on poles excluding the office room in the possession of the appellant in the first shed measuring 25 1/4 X 20 ft. and the 2nd shed measuring 28 7/8 x 12 ft. are let out to the respondent. In the plaint in O. S. 425/85 filed by the appellant against the respondent seeking permanent prohibitory injunction it is stated that the plaint schedule property along with the sheds situated therein were let out to the respondent and out of the two sheds, one shed is collapsed. In the plaint in O. S. 679/85 filed by the respondent against the appellant it is stated that the two sheds and the property wherein they were standing were obtained by the respondent on lease from the appellant as per Ext. A2 rent bond. It is also stated in the plaint that the sheds and the site thereof arc in the possession of the respondent and the appellant cannot dispossess the respondent from the property by force and injunction is prayed for against the appellant from trespassing upon the property. In the written statement filed by the appellant in O. S. 679/85 the appellant has contended that only the sheds were let out to the respondent and since those sheds are not in existence, he is entitled to enter upon the property.
14. It is also clear from the recitals made in Ext. A1 and the description of the property scheduled thereto, which the appellant purchased, that the plaint schedule property consisted only of the sheds and the structures therein. Ext. A2 recites that the tenant was in possession of the sheds and he subsequently executed Ext. A2 rent bond in favour of the appellant after he purchased the same as per Ext. A1. It is also clear from Ext. Al that the appellant has only purchased the sheds and the site thereof measuring 20 x 15 carpenter's koles and no property apart from the sheds and the site thereof is conveyed to the appellant as per that assignment deed. Therefore, it is clear from the evidence on record that the property leased out as per Ext. A2 by the appellant to the respondent is the two sheds with the site thereof.
15. The further question to be considered is whether the lease survives in spite of the destruction of the sheds leased out by the appellant to the respondent.
16. In support of the contention of the appellant that with the destruction of the sheds situated in the plaint schedule property the lease as per Ext. A2 is automatically terminated as well as the contention of the respondent that the lease continues in spite of the destruction of the sheds till the lease is terminated legally and recovery of possession is obtained by the appellant under due process of law, the counsel appearing for the appellant and the respondent have relied upon several decisions of this court as well the Supeme Court.
17. In the decision in George v. Varghese, 1976 Ker LT 859 a single Judge of this Court has held that even though the leased out property is destroyed the tenancy is not automatically terminated. In that case the rented building was destroyed by fire and the lessee vacated the premises and started his business in another building. When the landlord constructed new building at the old premises, the original tenant claimed possession of the building contending that the lease survives. In that case this Court has held that even though the leased out property is destroyed the tenancy is not automatically terminated and the tenant is conferred with an option under Section 108 (e) of the T. P. Act to treat the contract as void and thereby avoid the liability to pay the rent in future. But he has neither a contractual nor a statutory right to compel the landlord to surrender possession of the new building constructed at that site.
18. In the decision in Thomas v. Moram Mar Baselious Ougen, 1979 Ker LT 596 : (AIR 1979 Kerala 156) another single Judge of this Court has held that though by destruction of the leased out building wholly or substantially rendering it permanently unfit for the purpose for which it was let out, the lease is not discharged and the tenant is not entitled to squat on the ground where the building was situated or construct a new building in its place or require the landlord to put up a new structure. That was a suit filed by the plaintiff claiming arrears of rent and damages as well as permanent prohibitory injunction restraining the 1st defendant from constructing any unauthorised structure in the leased out property. The 1st defendant was conducting a motor workshop in the demised premises and the building was completely destroyed by hitting the vehicle belonged to the 2nd defendant which was brought there for repairs. In that case this Court considered the provisions of Section 108 of the T.P. Act and held as above concurring with the judgment reported in 1976 Ker LT 859 referred to above.
19. In the decision in Sidharthan v. Ramadasan, 1984 Ker LT 538 : (AIR 1984 Kerala 181) a Division Bench of this Court held that if the lease is in respect of the building alone apart from the site, by total destruction of the building the lease will be extinguished, for a demise must have a subject-matter and if it is destroyed, the lease comes to an end. In that case the plaintiff had let out a shop room to the defendant for his business. A lorry which came along the adjacent road dashed against the shop and damaged it completely. The defendant attempted to construct a shop-room at the site of the building. Thereupon, the plaintiff filed the suit for injunction to stop the construction of the building. In that case, the Division Bench held as above.
20. In the decision in Joseph v. Chellamma, ILR (1988) 2 Kerala 697, a single Judge of this Court has held that if the building alone is let out under the rental arrangement, by destruction of the building, the tenancy in respect of the building comes to an end. In that case a row of shop rooms belonging to the plaintiff were occupied by the 4 defendants under lease coming within the ambit of the Kerala Act 2/ 1965. The building was destroyed by flood. In that case the fact that the entire building was destroyed and, thereafter, defendants 3 and 4, the appellants before this Court reconstructed the building was not disputed before this Court. This Court held that after the structure which alone was leased out was destroyed, the tenant cannot be put in possession of that structure even if he wanted to continue and when the property is completely lost, there cannot be any continuing lease even if the lessee wants so at his risk by exercising the option which is with him because there cannot be a lease of non-existing property.
21. In the decision in George v. Peter. (1990) 2 Ker. LT 187 : (AIR 1991 Kerala 55) a single Judge of this Court held that leased out building normally takes in the site thereof unless it is excluded and, therefore, destruction of the building does not automatically terminate the lease and put an end to the landlord -tenant relationship. In that case a shop room was leased out by the landlord to the tenant. In that case the entire building was pulled down and the plaintiff filed a suit before the Court for permenent prohibitory injunction restraining the defendant from entering upon the property and putting up new structures in the land which formed the floor of the shop room let out to him claiming that he is still in possession and enjoyment of the land as per the terms and conditions of the lease as he was holding the shop room prior to its destruction. In that reported case, this Court has held that when lease of a residential house or a shop room on land is granted for occupying the same such lease would nomally take in the site unless it is excluded either expressly or impliedly from the lease and in such cases after the destruction of the superstructure of the shop room the tenant is entitled to continue in possession of the land upon which the superstructure of the shop room stood before its destruction as part of the property demised subject to all the rights and liabilities as a tenant since the landlord-tenant relationship between the plaintiff and the defendant continues to exist.
22. In the decision in Damodaran v. Yesoda, (1993) 1 Ker LJ 944 a single Judge of this Court has held that when the building taken on rent is gutted by fire tenancy conies to an end once the subject-matter of the lease viz. the building is destroyed. In that case the landlords of the building filed suit against the tenants for permanent prohibitory injunction restraining the tenants of the building from putting up any construction of their own in the land on which the demised building stood after the let out building was gutted by fire. This Court held that once the building taken on lease is destroyed, the tenancy comes to an end and under Section 108 (f) and (m) of the Transfer of Property Act tenant of the building is not entitled to construct a new building in the site where the subject-matter of the demised building originally stood without the consent of the landlord. In that case the single Judge of this Court followed the decision of the Division Bench reported in 1984 Ker LT 538 : (AIR 1984 Kerala 181) and did not follow the decision of the single Judge reported in (1990) 2 Ker LT 187 : (AIR 1991 Kerala 55).
23. In the decision in Kalpakam Amma v. Muthurama Iyer, (1994) 2 Ker LT 424 : (AIR 1995 Kerala 99) a Division Bench of this Court held that when there is lease of a building such lease would normally take in the site unless it is specifically excluded and destruction of the building does not automatically terminate the lease and put an end to the landlord-tenant relationship.
24. In the decision in Kunhabdulla Haji v. Ibrayi, (1998) 2 Ker LT 78 : (1998 AIHC 3826) a single Judge of this Court held that on the total destruction of the building, the lease would stand extinguished since the demise must have a subject-matter and if the subject-matter is destroyed the lease comes to an end. In that case also the building let out by the plaintiff to the tenant was destroyed by fire while the defendant was in occupation of the same as tenant. When the defendant put up a structure of his own at the site without the consent of the landlord and without the authorisation as per the terms and conditions of the lease, the plaintiff filed a suit seeking mandatory injunction directing the defendant to remove the unauthorised construction and for recovery of possession.
25. In the decision in Vannattankandy Ibrayi v. Kunhabdulla Hajee (2001) 1 SCC 564 ; (2000 AIR SCW 4592) preferred against the judgment of this Court reported in 1998 (2) Ker LT 78 the Supreme Court has held that where tenancy was exclusively for premises and not land, it will stand extinguished if the subject-matter of the tenancy was destroyed by natural calamity. The Supreme Court overruled the judgment of the Division Bench of this Court reported in (1994) 2 Ker LT 424 : (AIR 1995 Kerala 99) (Kalpakam Amma v. Muthurama Iyer) expressing the view that when there is lease of a building such lease would normally take in the site unless it is specifically excluded. In the above Judgment, the Supreme Court has referred to thejudgment of Lord Denning in the decision reported in (1948) 1 All ER 306 (Simper v. Coombs) and held that that decision is applicable only in respect of tenancy of building and land and it has no application in a case where tenancy is in respect of a building alone governed by the Rent Control Act. In para 5 of the judgment the Supreme Court has observed as follows:
"5. In Simper v. Coombs, (1948)1 All ER 306, a building was destroyed by explosion of a bomb during the Second World War. The question arose whether tenancy was extinguished by the destruction of the building. Lord Denning, J. held that it was not, the learned Judge observed thus :
The position at common law is plain. She had a contractual tenancy, and that tenancy has never been determined by due notice to quit. It, therefore, continues in existence. The destruction of the house by a bomb did not determine the tenancy. It is well settled that the destruction of a house does not by itself determine the tenancy of the land on which it stands'."
26. Therefore, it is settled by the authoritative pronouncement of the Supreme Court in the above decision that in cases where tenancy is in respect of building and land, by destruction of the building the tenancy will not be automatically terminated and where the tenancy is in respect of a building alone by the destruction of the building the tenancy will be terminated.
27. In para 25 of the judgment the Supreme Court has observed as follows :
"As already stated above, the tenancy in the present case was of a shop room which was let out to the tenant. What is protected by the State Rent Act is the occupation of the tenant in the superstructure, The subject-matter of tenancy having been completely destroyed the tenant can no longer use the said shop and in fact he has ceased to occupy the said shop. Section 11 of the State Rent Act does not provide for eviction of the tenant on the ground of destruction of the building or the superstructure. Thus when there is no superstructure in existence the landlord cannot claim recovery of possession of vacant site under the State Rent Act. The only remedy available to him is to file a suit in a civil Court for recovery of possession of land."
28. In this case as it is clear that only two sheds stood in the plaint schedule property are let out by the appellant to the respondent as per Ext. A2 lease deed and both the sheds are destroyed and no superstructure is in existence in the plaint schedule property except the four pillars as noted by the Commissioner in Ext. C2 and admitted by the respondent as DW-1, the tenancy in respect of the building in favour of the respondent as per Ext. A2 is terminated by the complete destruction of both the sheds. The respondent-tenant cannot put up any structure upon the land where the sheds stood without the consent of the appellant-landlord since Ext. A2 lease deed does not permit him to do so.
29. It is clear from Ext. A1 assignment deed obtained by the appellant in respect of the plaint schedule property and Ext. A2 lease deed that the property purchased by the appellant and let out to the respondent are two sheds situated in the plaint schedule property and no land was available in the property excluding the sheds, as it is evident from the measurements of the sheds given in Exts. A1 and A2 and the property purchased by the appellant described in the schedules of those documents. Under the circumstances the decree and judgment passed by the lower appellate Court in A. S. No. 108/91 granting permanent prohibitory Injunction against the respondent from putting up any structure in the plaint schedule property in reversal of the decree and judgment passed by the trial Court in O. S. 425/1985 is perfectly legal and proper. Though the lease in favour of the respondent is terminated by destruction of both the sheds, the remedy available to the appellant is to file a suit for recovery of possession of the plaint schedule property from the respondent in a civil Court of competent jurisdiction and he la not entitled to trespass upon the plaint schedule property on the ground that the lease is terminated.
30. Hence, I find on the questions of law raised in these appeals as follows. On the complete destruction of the sheds which are the subject-matter of the lease, the lease is terminated. The tenant has no right to substitute a building or make any construction either permanent or temporary under Section 108 of the Transfer of Property Act or any other provisions of law. When the sheds which were leased out are not in existence and are completely destroyed, there is an automatic termination of the lease. When the subject-matter of the tenancy itself does not exist, the tenant has no continuing and subsisting right under the lease and the landlord can claim recovery of possession of the land through the civil Court of competent jurisdiction.
31. Therefore, the Courts below are justified in granting permanent prohibitory injunction against the appellant from trespassing upon the plaint schedule property and interfering with the possession of the vacant site of the sheds by the respondent. Therefore, I find no ground to interfere with the decrees and judgments passed by the lower appellate Court.
Hence both the Second Appeals are dismissed with the above observations.