Whether the destruction of a shop room leased out on rent would automatically terminate the lease and put an end to the landlord-tenant relationship, is the question arising for decision in this Second Appeal.

2. The appellant-plaintiff filed the suit, alleging that he is the tenant of a shop room owned by the respondent-defendant and used by him as a go down and described as such in the plaint schedule. The shop room was situated in Ward No. X of Trichur Municipality. There is no dispute about the entrustment of the shop room to the plaintiff as a tenant for a rent of Rs.130/- per month some 23 years before the date of the suit. The plaintiff filed the suit on the allegation that while he was using the shop room as a go down for storing indigenous medicines for his trade, it was deliberately pulled down by the Municipal authorities on the night of 7-11-1981 at the active instigation of the defendant who is the Councilor of the Municipality from Ward No.X. There was a notice issued by the Municipality directing that the building is in a dilapidated condition and that it is dangerous to keep it in that condition. According to the plaintiff, it was a ruse adopted by the defendant to get vacant possession of the land under the superstructure of the shop room, putting an end to plaintiffs right to continue in possession of the building as a tenant availing the benefits conferred on the tenants by the beneficial provisions of the Kerala Buildings (Lease and Rent Control) Act. It was specifically alleged that the building which was in a good condition was deliberately pulled down on the night of 7-11-1981. The entire building was pulled down and the whole lot of indigenous Medicines stocked in the room was destroyed by heavy rain. The plaintiff pr, vd/, -decree for permanent injunction restraining the defendant from entering putting up new structures in the land which formed the floor of the shop room him, claiming that such land is still in his possession and enjoyment and he is entitled to be in occupation of the same as tenant on the same terms and conditions subject to which he was holding the shop room prior to its destruction. The plain tiff further contended that the defendant is not entitled to enter into the land and put up new structures therein as if the tenancy in his favour is already terminated automatically on the destruction of the superstructure of the shop room. The tenancy still! Continues and has not been determined in accordance with law.

3. As defendant, the respondent denied all the material allegations in the plaint except the fact that the plaintiff was the tenant of the shop room described in the plaint schedule. The defendant specifically denied the allegation that the Municipal authorities have deliberately demolished the superstructure of the shop room at his instigation as a ruse to get vacant possession of the land underneath the shop room as totally false. It was contended that the shop room collapsed itself in rain because of its highly dilapidated condition. Since the shop room leased out was not in existence on the date of the suit, the landlord-tenant relationship between the plaintiff and defendant has ceased to exist even prior to the filing of the suit and the plaintiff is not entitled to maintain the suit in question which is one filed on the basis that the tenancy between the plaintiff and defendant still subsists. By the total destruction of the shop room let out, the tenancy which is admittedly created with reference to the shop room has come to an end. The shop room described in the plaint schedule was not in existence on the date of the suit and the suit brought with reference to a non-existent property is not legally maintainable.

4. The plaintiff took out an advocate-commissioner immediately on the filingofthesuitonlO-11-1981; to inspect the site of the building and submit report. The commissioner inspected the site on 10-11-1981 itself and submitted Ext.01 report dated 11-11-1981. He found that the plaint schedule property covered by materials of a fallen building and the stock in trade stored in the building. He has made an inventory of the stock of indigenous medicines under the debris of the superstructure of the shop room.

5. The learned Munsiff found that the subject matter of the lease is only a shop room and on the total destruction of the superstructure of the shop room the entire subject matter of the lease has ceased to exist. The case of the defendant that building collapsed due to natural causes was found to be more probable and was accepted by the learned Munsiff. Further the learned Munsiff was of the view that even if it was a case of deliberate destruction, still there is no evidence regarding the complicity of the defendant in such demolition. It was also held that since the building let out is no more in existence from 7-11-1981, the relationship of landlord and tenant has come to an end especially in view of the provisions contained in the Kerala Buildings (Lease and Rent Control) Act, with effect from 7-11-1981 and as such the plaintiff had no cause of action to file the suit on the date of the suit. The learned Munsiff also found that the plaintiff had efficacious alternate remedies under S.17 of the Kerala Buildings (Lease and Rent Control) Act. The suit was found not maintainable in view of S.41(e)(h) of the Specific Reliefs Act also.

Accordingly, the suit was dismissed. However, it was made clear that the plaintiff is at liberty to agitate all his rights under the Kerala Buildings (Lease and Rent Control) Act in appropriate proceedings.

6. On appeal, the District Judge also held that since the subject matter of the lease was only the shop room and since the same is no more in existence; the landlord-tenant relationship has come to an end and the plaintiff cannot get an injunction against the defendant as prayed for on the basis that he is still a tenant under the defendant. It was further found that as the subject matter of the lease had been totally

destroyed there is no scope for the application of the provisions coittianed in S.108(e) of the Transfer of Property Act (for short the TP Act) to the instant case. The learned judge was of the view that S.108(e) of the TP Act will have application only incases where material part of the subject matter of the lease is not destroyed. In this view of the matter, the appeal also was dismissed.

7. The learned counsel for the appellant Shri P. V. Ayyapan has contended that in this case, the superstructure of the shop room alone was destroyed and the view taken by the courts below that by the total destruction of the superstructure of the shop room let out, the tenancy in question has come to an automatic termination is unsustainable in law. According to the learned counsel, the land under the superstructure also is to be considered as an integral part of the building or shop room let out, and as such an integral part of the subject matter of the lease also. In this case, according to the counsel, the destruction of the shop room was at the instance of the defendant by the Municipal authorities quite illegally and in a highhanded manner. In the circumstances, it is contended that even though there is total destruction of the superstructure of the shop room the tenancy in respect of the shop room would continue to exist so long as the land which formed an integral and inseparable part of the shop room is available to be possessed by the plaintiff as tenant subject to the terms and conditions of the admitted lease agreement in his favour. That is especially so in view of the provisions contained in S.108(e) of the TP Act; points out the counsel. In the circumstances, the learned counsel has contended that the reasoning and conclusions reached by the courts below are erroneous and illegal.

8. The learned counsel for the respondent Shri P.K. Balasubramanian, on the other hand, would contend that in the light of the concurrent findings of the courts below that the subject matter of the lease was a shop room and the same has been destroyed totally not as a result of any action or omission on the part of the defendant, the conclusions of the courts below are perfectly justifiable and do not call for any interference. The learned counsel has contended that the tenancy between the plaintiff and defendant had automatically terminated on the total destruction of the shop room and as such the plaintiff is not entitled to any of the reliefs in the suit claimed in his capacity as a tenant of the shop room. It was further contended that land as such was not. Leased out.

9. From the pleadings and evidence in the case it is evident that the lease infavour of the plaintiff was of a shop room used as. A go down for storing valuable stock in trade belonging to the plaintiff. It is also beyond dispute that the entire superstructure of the shop room was destroyedon7-11-81. The present suit was filed only on 10-11-1981

After such total destruction of the superstructure of the shop room. The specific relief prayed for was to restrain the defendant from entering into the land, which formed originally the floor of the shop room and from putting up new structures of any kind them; on the specific allegation that it is still in the possession of the plaintiff as tenant of the shop room, which was already destroyed. In fact, there are clear averments in the plaint itself to the effect that the shop room let out to him was destroyed on the night of 7-11-1981. Based upon the pleadings and evidence in the case, the courts below have found that the subject matter of the lease is the building* described in the plaint schedule as ashop room. There is absolutely nothing on record to hold that the lease was only of the super stracture of the shoproom without the land under the superstructure. In the above facts and circumstances either admitted or found by the courts below, the only question to be considered is whether the courts below were right in their view that by the total destruction of the superstructure of the shop room or building let out, there is a total destruction of the subject matter of the lease in question.

10. The answer to the said question would largely depend upon the ordinary or natural meaning to be assigned to the word "building" or "shop room" when it is used to denote the subject matter of a lease. Does the word "building" or more particularly the word "shop room" denote only the superstructure as has been held by the courts below or does it also take in the land under the superstructure in the facts and circumstances of the case as contended by the appellant is the real question to be decided in the appeal.

11. There is no contention for the parties that the word building or more particularly the word shop room should be understood in any special sense while deciding the question arising for decision in the appeal as stated above. There is also no case in the written statement that the superstructure alone was the subject matter of the lease. It is the common case of the parties that what was leased out was a shop

room. There is also no plea that the land under the superstructure was specifically excluded from the lease by express words or by necessary implication. In fact, the contention raised in the written statement is that it was a shop room that was leased out and no vacant land was leased out as such. In the circumstances, the word building* or the word shop room* can and should be understood only in the ordinary grammatical sense and not in any special sense.

12. The Supreme Court in Ghanshiam Das v. Debi Prasad (AIR 1966 S.C.1998) has adopted the following meaning given in the Websters New International Dictionary as the ordinary grammatical meaning of the word building.

"That which is built specify: (a) as now generally used a fabric or edifice, framed

or constructed, designed to stand more or less permanently and covering a space of land for use as a dwelling, store house, factory, shelter for beasts or some other useful purpose. Building in this sense does not include a mere wall, fence, monument, hoarding or similar structure though designed for permanent use where it stands, nor a steamboat ship or other vessel of navigation"

In the same decision, the Supreme Court has indicated that the question as to what is a building must always be a question depending on the facts and circumstances of each case. Again in D.G. Gouse & Co. v. State of Kerala (AIR 1980 S.C. 271) the Supreme Court while considering the question as to what exactly is the import of the word building Used in entry 49 of list II of the seventh schedule of the Constitution, has extracted and adopted the meaning of the word given in Oxford English Dictionary, as the ordinary grammatical sense of the word. The meaning adopted is as follows:

"...That which is built; a structure, edifice: now a structure of the nature of a house built Where it is to stand...."

After extracting the above definition from the Oxford Dictionary, the Supreme Court continued as follows:

". Entry 49 therefore includes the site of the building as its component part. That,

If we may say so, inheres in the concept or the ordinary meaning of the" expression building.

A somewhat similar point arose for consideration incorporation of the City of Victoria v. Bishop of Vancouver Island, AIR 1921 PC 240 with reference to the meaning of the word building occurring in Section 197 (1) of the Statutes of British Columbia, 1914. It was held that the word must receive its natural and ordinary meaning as "including the fabric of which it is composed, the ground upon which its walls stand and the ground embraced within those walls." That appears to us to be the correct meaning of building "

On the basis of the natural meaning of the word building as explained in the passages quoted above, the Supreme Court repelled a contention that what the Kerala Building Tax Act 1961 provides is a tax on lands and buildings and not merely on buildings. The site of a building was held by the Supreme Court to be an integral or component part of the building in the ordinary sense of the word.

13. Adopting the above meaning of the word building and understanding the concept of building as one taking in the site of the building also as part of it, it has to be held that the site of a shoproom is an integral and inseparable part of it. Without the site, the superstructure of a shop room on land cannot normally exist. Thus when a lease of residential house or a shop room on land is granted for occupying the same, such a lease would normally take in the site unless it is excluded either expressly or impliedly from the lease. In other words even in cases where a house or shop room alone is leased out, the site of such house or shop room would ordinarily form part of the subject matter of the lease. It is difficult to hold that in the case of an ordinary lease of a house or shop room, the superstructure alone is the subject matter of the lease and not the site of the house or shop room. I find support for the above view, which I take from a number of decisions by both English and Indian Courts.

14. In Simper v. Coombs (1948 (1) All England Law Reports 306) Denning J. has taken the same view in the case of lease of a dwelling house. The question considered in the said decision was whether the tenancy in respect of a residential building was determined automatically by the destruction of the house by a bomb during the war. 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..."

(Emphasis supplied)

To understand the principle on the basis of which the learned judge has laid down the law that the destruction of a house does not by itself determine the tenancy of the land on which it stands, it is necessary to state in brief the facts of the said case. The facts as seen from the report are thus: Early in May 1941 plaintiff and her son took from the defendant the lease of a dwelling house. On July 15 of 1944 the house was completely destroyed by a flying bomb after which no further rent was paid. The defendant did not serve any notice to determine the tenancy. In 1946 the defendant built a new house on the bombed site and when the new site was ready for occupation, the plaintiff claimed the right to occupy it. The defendant himself had gone in to the occupation of the house and contended that the house which was the subject matter of the tenancy have been completely destroyed, the tenancy had come to an end and that the plaintiff had no right or interest in the new house which he had build in the site. It is in the background of the above facts that the learned judge has made the above observation and held that as there had been no notice to quit, the tenancy in favour of the plaintiff has never been determined. It is worth noting that the lease in favour of the plaintiff in Simper v. Coombs was also of a residential house alone. There was no separate lease of any land. It was with reference to such a lease the learned judge has stated thatthe destruction of the house does not by itself determine the tenancy of the land on which it stands.

(Emphasis supplied)

15. The decisions reported in Denmanv.Brise (1949 (1) K.B.22) andc/sac/r-stnith and others v. London Corporation (1956)1WLR 1368 would also show that the courts have treated lease of a building as lease of the site of the building as well as its superstructure. These decisions would also show that the courts have not in the ordinary course treated the total destruction of the superstructure of a building alone as amounting to a total destruction of the subject matter of the lease in cases where a building on land is leased out for occupation as such.

16. The principle regarding the automatic termination of the tenancy on the total destruction of the subject matter of the tenancy has been stated in Wood fall 6 Law of Landlord and Tenant 28th Edition, Vol.1 in paragraph 2056 at page 928 as follows:

"...A demise must have a subject-matter, either corporeal or incorporeal. If the

Subject matter is destroyed entirely, it is submitted that the lease comes automatically to an end, for there is no longer any demise. The mere destruction of a building on land is not total destruction of the subject matter of a lease of the land and building, so the demise continues. But if by some convulsion of nature the very site ceases to exist, by being swallowed up altogether or buried in the depths of the sea, it seems clear that any lease of the property must come to an end..."

The last sentence in the above passage clearly brings out the exact nature of the destruction, which the subject matter of a lease should undergo to attract an automatic termination of the lease itself.

17. It is worth pointing out that the learned author has in the previous paragraph dealt with the effect of destruction of buildings under head "Frustration of purpose and destruction of subject matter" and has observed thus:

"...In a lease of land with buildings upon it the destruction of even the entirety of

The buildings do not affect the continuance of the lease or of the lessees liabilities under it, unless so provided by express contract..." (Para.2055)

18. Again, while discussing the effect of destruction of the buildings on the liability of the lessee the learned author has stated thus:

"...Where the lessee covenants to pay rent at stated periods (without any exception in

Case of fire), he is bound to pay it, though the house be burnt down; for the land remains, and he might have provided to the contrary by express stipulation, if both parties had so intended..." (Para.778)

19. The principle laid down in Simper v. Coombs and the other decisions, which followed it, and the principles discussed in the passages quoted from Wood fall on Landlord and Tenant, seems to be the law on the point as far as English Law is concerned.

20. In India, the relevant points have been considered and decided in a number of cases by different High Courts with reference to the provisions contained in the Transfer of Property Act. Section 111 regulates the determination of tenancies coming within the purview of the Act. Total destructionist-.pf the subject matter of a lease is not a recognised ground for determination of the tenancy under the Act. Section 108 (e) of the T.P. Act is the only provision, which deals with the destruction of the subject matter of the tenancy. Section 108(e) is in the following terms:

"...if by fire, tempest or flood, or violence of an army or of a mob or other irresistible

Force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void..."

Supreme Court had with reference to the said section observed as follows in Dhruv Dev v. Hasmohinder Singh (AIR 1968 S.C.1024).

"...If any material part of the property be wholly destroyed or rendered substantially

And permanently unfit for the purpose for which it was let out, because of fire, tempest, flood, violence of an army or a mob or other irresistible force, the lease may at the option of the lessee, be avoided. This rule is incorporated in S.108(e) of the Transfer of Property Act and applies to leases of land, to which the Transfer of Property Act applies, and the principle thereof to agricultural leases and to leases in areas where the Transfer of Property Act is not extended. Where the property leased is not destroyed or substantially and permanently unfit, the lessee cannot avoid the lease because he does not or is unable to use the land for purposes for which it is let to him..."

In the same decision, Supreme Court has categorically held that the doctrine of frustration of contracts as embodied in S.56 of the Contract Act has no application to leases which involves A transfer of property and the principle of frustration to the extent embodied inS.108 (e) of the TP Act alone applies to leases governed by the TP Act. It is clear from S.108(e) of the TP Act that even in cases where total destruction of any material part of the property leased out is established or where material part of the property has become substantially and permanently unfit for the purpose for which it was let, such total destruction or unfitness alone may not be sufficient to put an end to the lease. They would only make the lease void able at the instance of the lessee. No automatic termination of tenancy is contemplated even in cases where the conditions mentioned in S.108(e) are satisfied. The above principles especially the principle embodied in S.108(e) of the TP Act, has been adopted and followed in a number of cases, by different High Courts to reject the contention that a total destruction of the Superstructure of a residential house or shop room alone would automatically put an end to the lease of the house or shop room and no right can be claimed on the basis of the lease so determined. Jiwanial & Co. v. Manot& Co. (64 C.W.N. 93Z), Rahim Bux v. Mohammad Shafi (AIR 1971 Allahabad 16), and Shyam Kumari v. Ejaz Ahmad (AIR 1977 Allahabad 376). These decisions would also show that the concerned courts have understood a lease of a residential house or shop room as a lease not only of the superstructure of the house, or shop room but also of its site.

21. Rahim Buxs case (AIR 1971 Allahabad 16) was more or less a similar case on facts and a similar contention raised by the defendant in that case was rejected on the ground that the total destruction of the shop room leased out to the plaintiff would not put an end to the tenancy in favour of the plaintiff. The facts as noted in the decision are the following: The plaintiff therein was a tenant of a shop, which was a part of a big building owned by the defendants-appellants Ito 3. The entire building including the shop in the occupancy of the plaintiff was demolished by the landlord on 4-4-1958 in pursuance of a notice issued to them by the Municipal Board, Luck now under S.256(1) of the U.P. Municipalities Act. The plaintiff filed a suit for injunction on 17-4-1956 restraining the landlord from interfering with his possession over the said premises offering at the same time to pay rent for these premises even in the condition in which they existed then and in the alternative praying for a decree for possession. During the pendency of the suit the landlords were injuncted from making any construction on the land but subsequently the injunction order was modified by permitting the landlord to rebuild on his land at his risk. The trial Court dismissed the suit finding that the tenancy have come to an end by the total destruction of the superstructure. However, the appellate Court set aside the dismissal finding that the tenancy in favour of the plaintiff continued and he is entitled to get possession of the new shop constructed in the site of the old shop room demolished by the defendants. The High Court upheld the decision of the lower appellate Court applying the principle contained in S.108(e) of the TP Act. In Shyam Kumaris case (AIR 1977 All. 376 [LQ/AllHC/1977/167] ) a Division Bench after elaborately considering various decisions including the decision in Simper v. Coombs has made the following observations:

"It might be conceded that the destruction of the old shop did not in, the absence

of exercise of the option available to the appellants bring about an end 6f their tenancy rights in respect of the site and they would have been entitled to a decree for possession thereof but they could not claim tenancy rights over the new constructions"

In that decision, the plaintiff lost their suit because before a decision was taken and a decree was passed in the suit, the site of the old shop room ceased to be the site of the old building and has actually formed an integral part of a new building put up on such site. The above observations clearly bring out the exact amplitude of the right of a lessee of a building in a case where the superstructure of the building is destroyed. In my view, the principles laid down in the English as well as Indian decisions are applicable to the case on hand.

22. The learned counsel for the respondent t has pointed out that three decisions of this Court, two of them of single judges and another of a Division Bench reported respectively in George v. Varghese (1976 KLT 859), Thomas v. Moran Mar Baselious (1979 KLT 5%) = (AIR 1979 Ker.156 ) and Sidharthan v. Ramdasan (1984 KLT 538) have taken the view that the total destruction of a building leased out would result in automatic termination of the tenancy in respect of thebuildingor shop room and no further rights on the basis of such tenancy terminated by total destruction of the subject matter of the lease can be sustained in law.

23. The first of the case, namely, Georges case (1976 KLT 859) was a case where the lessee of a shop room after the shop room was destroyed by accidental fire vacated the premises and started his business in another building and later when the new structure in the old premises was put up by the landlord claimed rights on the basis of the earlier lease. There was an averment in the plaint suggesting that there was a sort of an agreement between the plaintiff-lessee on the one part and defendant-landlord on the other part to the effect that on putting up of a new structure the lessee will be inducted into possession of the same. In defense, the landlord has denied the agreement alleged in the plaint and has contended that the tenant has voluntarily surrendered the premises. A careful reading of the judgment in the case would show that on the basis of the evidence, the agreement set up in the plaint was found against. Further the learned judge has specifically observed thus in the judgment.

"...I am thus satisfied that this is a ease where there has been a determination of ExtAl Lease by surrender. That being so. Section 108(e) of the Act can have no application...."

In the light of the facts of the case and the findings referred to above, it is clear that none of the questions arising for consideration in the present case arose for consideration in the said decision and the decision in the case was rendered mainly on the basis that there was a "complete surrender of the premises" by the plaintiff therein to the defendant-landlord. The said case is therefore clearly distinguishable from the case on hand.

24. In Thomas v. Moram Mar Baselious (1979 KLT 596) also it is seen that the material facts of the case and the main point considered and decided are entirely different. It was a case where a workshop let on a monthly teancy was destroyed as a result of the carelessness and negligence of the tenant. The landlord sued for arrears, eviction and recovery of damages as well as injunction restraining the tenant from

constructing any unauthorized structures in the site of the shop room. There was also an allegation in the plaint of unauthorized construction by the tenant after the destruction of the old workshop. It is clear on a close reading of the decision that there was no contention raised in that case similar to the one raised in the present case. The question directly considered in the said decision was whether the tenant was entitled to continue in possession of the building put up by him without the permission of the landlord after the destruction of the original workshop. It was held that the tenant had no such right and recovery was ordered. In the facts and circumstances of the above case, I find that the precise question arising for consideration in the present case never arose for consid-erat ion in the said decision. The facts of the case and question considered therein are totally different from those in the present case. Hence the said decision is also clearly distinguishable from the present case.

25. The case decided by the Division Bench was also a case where the tenant has put up a new structure in the site of the destroyed shop room without permission from the landlord. It was also found that the defendant in that case has committed trespass into a portion of the land which was lying adjacent to the site of the shop room leased out to him and had put up new structures in the trespassed area also, quite unauthorized. Further, the learned judges of the Division Bench have considered specifically the question whether the lease deed in that case covered only the shop room or the shop room and the adjacent land. The learned judges have positively found that it covered only the shop room and proceeded on the basis that the subject matter of the lease was the shop room alone without its site and held that on the destruction of the shop room the tenancy has come to an automatic end. For the purpose of showing that lease of a building alone without its site is possible, their Lordships relied upon the following passage in Mahadeo Prosad v. Calcutta D&C. Co. (AIR 1961 Cal. 70 [LQ/CalHC/1960/137] ):

"...The structure was leased out, not the land underlying and after the structure

was demolished, the tenant cannot be put in possession of that structure as a matter of fact even if he would like to be so put in possession; he has no right to build on the land another structure nor has he any right to compel the landlord to raise a similar structure for him; he may have some right for abatement of rent but that is not for me to decide "

It is worth noting that the passage extracted by the learned judges from the decision reported in Mahadeo Prosads case (AIR 1961 Calcutta 70) itself has made it clear that in that case "the structure was leased out, not the land underlying" the structure. It is also worth noting that the specific question considered in Mahadeo Prosads case was whether the defendant therein who was dispossessed in execution of a decree for ejectment was entitled to have restitution of the superstructure from which he was dispossessed and which was later on demolished. It was in this connection, the Court has made the above observation. On a proper analysis of the judgment, it can be seen that the decision in the Division Bench case was mainly arrived at on the basis of the specific findings that it was a shop room without its site that was leased out to the defendant in that case and that the defendant has no right to put up new structures and thus occupy the land on which the destroyed shop room had existed. In this view of the matter, the said decision is also clearly distinguishable and I do not think that any of the decisions referred to by the learned counsel for the respondent has considered and decided the precise question arising for consideration in the Second Appeal.

26. Coming to the facts of the case, admittedly the lease in favour of the plaintiff was of a-shop room on land. There is no case that the superstructure of the shop room excluding its site alone was leased out to the plaintiff and that alone is the subject matter of the lease. It is in evidence that the shop room was of masonry walls with tiled roofing and was being used as a go down to store the stock in trade of the business carried on by the plaintiff. Thus the site of the shop room on which the superstructure of the shop room stood can only be considered as an integral part of the shop room leased out to the plaintiff. In this view, by the destruction of the superstructure of the shop room; only a part of the shop room can be treated as destroyed leaving the site of the shop room intact available to be enjoyed as such by the plaintiff. It cannot be disputed that the plaintiff had obtained possession of the site or floor of the shop room also at the time of Lease, as part of the shop room. Thus, it has to be held that both the courts below have gone wrong in holding that by the destruction of the superstructure of the shop room, the Subject matter of the tenancy was destroyed in its entirety and as such, the tenancy in Respect of the shop room has come to an automatic termination putting an end to the relationship of landlord and tenant and as such t he plaintiff is not entitled to get any relief in the suit. So long as there is no total destruction of the subject matter of the lease in the sense that the superstructure as well as the land underneath the superstructure are destroyed completely, the particular principle applied by the Courts below to find automatic termination of the tenancy of the shop room in favour of the plaintiff cannot be applied to the facts of the present case. Even 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 defendant continues to exists. The tenant may be bound to pay the rent under the lease. He may be entitled to exercise an option to give up tenancy under S. 108(e) of theT. P. Act. So also it may be open to the landlord to claim rent or exercise any other right as landlord of the property including a right to terminate the lease with reference to the part of the demised property even now remaining, namely, the land which formed the floor of the shop room. In this view of the matter, the decrees and judgments of the courts below are liable to be set aside and I do so. It is further found that the plaintiff is entitled to be in possession of the plaint schedule property subject to the terms and conditions of the lease arrangement in his favour till the same is duly terminated and possession of the plaint schedule property recovered from him in accordance with law.

27. It may be possible to arrive at the same conclusion in this case even without going into the legal question which I have considered above on the basis of the rival contentions raised in the suit and in the appeal. The suit is one for an injunction on the allegation that the plaintiff is in possession of the suit property, which is the site of the destroyed shop room admittedly leased out to the plaintiff by the defendant. It is the specific case of the plaintiff that he was legally in possession of the site of the shop room as part of and was using it for storing his stock in trade. It is also the case of the plaintiff that even though the superstructure of the shop room has been destroyed he continues to be in possession of the floor or the site of the shop room and is entitled to be in possession of the same as a tenant till his tenancy subsists. In paragraph 8 of the plaint, the plaintiff has specifically claimed that he is still holding the plaint schedule property on the same terms and conditions on which he was holding the shop room and the defendant is illegally attempting to trespass into the land and putting up structures thereon. The above allegations were dealt with in paragraph 7 of the written statement. Apart from a general denial of the said allegations, the only contention raised by the defendant is that the claim made by the plaintiff therein is totally unsustainable in law Since the property claimed to be possessed by the plaintiff is not in existence at all. It was also stated that the defendant is not having any need to put up a building in the plaint schedule property and that no garden land as such was leased out to the defendant. It is clear from the pleadings that while the plaintiff has asserted that he is in possession of the plaint schedule property, the defendant has no case that he has got back possession of the plaint schedule property which was admittedly in the possession of the plaintiff when the shop room was in existence after the destruction of the shop room and that he is actually in possession of the plaint schedule land. In the nature of the pleadings, it cannot be seriously disputed that the floor or the site of the shoproom in respect of which the plaintiff is now claiming lease hold right was put in the possession of the plaintiff as a tenant of the shop room and was in his possession at the time when the superstructure of the shop room was destroyed. If that be so, in the absence of a specific plea supported by evidence that after the destruction of the superstructure of the shop room, the defendant had secured possession of the plaint schedule land in a legal manner, the plaintiff is entitled to an injunction to safeguard his possession of the plaint schedule land, namely, the site of the erstwhile shop room, till the landlord recovers possession pf the same legally. Thus even without going into the legal question whether there is a subsisting lease in favour of the plaintiff in respect of the plaint schedule land, I am of the view mat the plaintiff is en titled to get an injunction in respect of the plaint schedule land to restrain the defendant from entering into possession of the land and from putting up new structures thereon till the defendant recovers possession of the same from the plaintiff in accordance with law.

28. Coming to the question of relief to be granted to the plaintiff, it has to be pointed out that the relief prayed for by the plaintiff is to issue a permanent injunction restraining the defendant from interfering with the possession of the property by the plaintiff and from putting up any structures in the land on which the superstructure of the shop room was situated. The relief of permanent injunction prayed for cannot be allowed in the terms in which it is asked for in the facts and circumstances of the case. The plaintiff is only entitled to get a decree restraining the defendant from entering into and putting up new buildings or structures of any kind in the plaint schedule property or altering the nature and conditions of the plaint schedule property in any manner till the tenancy created in favour of the plaintiff in respect of the demolished shop room subsists in relation to the plaint schedule property subject to all the rights and liabilities of the parties as landlord and tenant.

The appeal is allowed as indicated above. The parties shall bear their respective costs.