Whether lease get terminated if leasehold premises is destroyed?

 In the decision reported in Kalpakam Amma Vs.

   Muthurama Iyer [1994 (2) KLT 424], it has been



  held that when there is a lease of a building, such lease

  would normally take in the site unless it is specifically

  excluded.        It is also stated in the decision that

  destruction of the building does not automatically

  terminate the lease and put an end to landlord-tenant

  relationship. Since there were conflicting decisions on

  the question as to whether on the destruction of the

  subject matter of the lease, whether the lease will come

  to end, it was referred to a larger Bench of the Apex

  Court and the Three Judges Bench of the Apex Court in

  Shaha Ratansi Khimji Vs. Proposed Kumbhar Sons

  Hotel Pvt.Ltd. [2014 (3)KLT 1014 (SC)] held that

  once the right of lease is transferred in favour of the

  lessee, the destruction of a building constructed on the

  lease property does not determine the tenancy rights of

  occupant which is incidental to the contract of lease

  which continues to exist between them.    
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                      PRESENT:

                      MR. JUSTICE K.RAMAKRISHNAN

                 1ST DAYOF AUGUST 2016.

                               CRP.No. 139 of 2016 

               MOHANDAS K.B.,
                  
                SYAMALA,
                    Citation: AIR 2017 (NOC)1 Ker

1.The above revision has been filed against the order,

  dismissing E.P.No.23/2015 in O.S.No.159/1994 on the

  file of the Munisff Court, Mannarkkad. The suit was filed

  by the predecessor of the revision petitioners as

  O.S.No.159/1994 for recovery of possession of the

  building which was let out to the predecessor of the

  respondents. The building is situated in an area where

  the provisions of Rent Control Act is not extended. The

  suit was decreed as per Annexure A-1 Decree and it was

  confirmed in A.S.No.24/2002 on the file of the Sub

  Court, Ottapalam. The original plaintiff died during the

  pendency of the appeal and the present petitioners have

  been impleaded as additional respondents in the appeal

  as his legal heirs and the appeal was also dismissed.

  The    present   petitioners  filed E.P.No.23/2015    for


   executing the decree which was dismissed by the court

   below on the ground that the subject matter of the suit

   is destroyed and delivery could not be effected. This is

   being challenged by the revision petitioners before this

   Court.

2.Though notice was served on the respondents, they did

   not appear.

3.Heard Shri.C.P.Peethambaran, the learned counsel for

   the revision petitioners.

4. The counsel for the revision petitioners submitted that

   the dismissal of the Execution Petition as not executable

   due to destruction of the building is unsustainable in

   law as the court below ought to have delivered the

   property in which the building existed. He had relied on

   the     decisions   reported   in    Kandaru     Veettil

   Ramakrishnan's Son Preman Vs. Kadaruveettil

   Ramakrishnan's Son Gopi [ILR 2016 (1) KER 746],

   Shaha Ratansi Khimji Vs. Proposed Kumbhar Sons

   Hotel Pvt. Ltd.[2014 (3) KLT 1014 (SC)] and

   Kalpakam Amma Vs. Muthurama Iyer [1994 (2)


   KLT 424].

5.The fact that the suit was filed by the predecessor of

   the revision petitioners for eviction of the building from

   the possession of the predecessor of the respondents as

   O.S.No.159/1994 on the file of the Munsiff Court,

   Mannarkad and that was decreed and appeal filed

   against the same was also dismissed, is not in dispute.

   It is also an admitted fact that the revision petitioners

   filed E.P.No.23/2015 for execution of the decree, as the

   original plaintiff died during the pendency of the appeal

   and    the     present    revision   petitioners      have been

   impleaded as his legal heirs in that appeal.

6.The court below dismissed the Execution Petition by the

   impugned order which reads as follows:

             "Heard. As per the decree, the plaint schedule

         property was ordered to be evicted Plaint schedule

         property is the building premise.     Amin reported

         that the building shown in the decree schedule is

         not in existence and not seen. Since the subject

         matter of the suit is destroyed, E.P. is dismissed."

7. In the decision reported in Kalpakam Amma Vs.

   Muthurama Iyer [1994 (2) KLT 424], it has been



  held that when there is a lease of a building, such lease

  would normally take in the site unless it is specifically

  excluded.        It is also stated in the decision that

  destruction of the building does not automatically

  terminate the lease and put an end to landlord-tenant

  relationship. Since there were conflicting decisions on

  the question as to whether on the destruction of the

  subject matter of the lease, whether the lease will come

  to end, it was referred to a larger Bench of the Apex

  Court and the Three Judges Bench of the Apex Court in

  Shaha Ratansi Khimji Vs. Proposed Kumbhar Sons

  Hotel Pvt.Ltd. [2014 (3)KLT 1014 (SC)] held that

  once the right of lease is transferred in favour of the

  lessee, the destruction of a building constructed on the

  lease property does not determine the tenancy rights of

  occupant which is incidental to the contract of lease

  which continues to exist between them.     The Supreme

  Court     has     over ruled  the decision  reported   in

  Vannattankandy Ibrayi Vs. Kunhabdulla Hajee

  [2001 (1) SCC 564] and approved the dictum laid


  down in the decision reported in T. Lakshmipathi and

  Others Vs. P.Nithyananda Reddy and Others [2003

  (5) SCC 150], where it has been held that the lease of

  the building includes the land on which the building

  stands.        So, even if the building is destroyed or

  demolished, the lease is not determined as long as the

  land beneath it continues to exist.        The doctrine of

  frustration cannot be invoked on destruction or

  demolition of building under lease where not only privity

  of contract, but, privity of estate is also created. In the

  same decision, it has been held that, unless the lease

  has been terminated, merely because the structure has

  been destroyed will not terminate the lease entitled to

  the landlord to take possession without recourse to law.

  So, the tenancy will have to be terminated and in such

  cases, the landlord is entitled to file a civil suit for

  recovery of possession.       The same view has been

  reiterated in the latest decision reported in Preman Vs.

  Gopi [I.L.R. 2016 (1) Kerala 746]. So, merely

  because the subject matter of the suit (namely, the



  building) has been destroyed is not a ground for

  dismissing the Execution Petition. In this case, instead

  of the Rent Control Petition, the suit has been filed by

  the landlord after terminating the lease by issuing

  notice under Section 106 of Transfer of Property Act.

  So, in such cases, in view of the principles laid down in

  the above decisions, even if the building is destroyed,

  the landlord is entitled to recover the land in which the

  building existed. So, the court below was not justified

  in dismissing the application on the ground of

  destruction of the building which is the subject matter

  of the lease. The court below ought to have identified

  the property in which the building existed and effected

  delivery of the same to the decree holder.         So, the

  order dismissing the Execution Petition is set aside and

  the matter is remitted to the court below for fresh

  disposal in accordance with law as stated above.

                                           Sd/-
                                   K.Ramakrishnan,
                                         Judge.

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