1. How a calamity can turn out to be a windfall? This case is illustrative of a tenacious tenant's attempts to take advantage of a disaster which incinerated his shop. According to him, the building leased out to him (in respect of which an order of eviction is in force) was destroyed in fire during acts of vandalism and rioting indulged in by unruly mob which rocked Chalai Bazaar (in Trivandrum) in 1982. His further case is that he put up a new structure in that place. Now he contends that the order of eviction has become in fructuous since the building itself has gone out of existence. Though the said contention was repelled by the execution court, the District Judge in revision under sec. 14 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short ‘the Act’) directed the execution court to afford an opportunity to the tenant to prove that a new building has been constructed by him. This revision is by the decree holder - landlord challenging the aforesaid order of the District Court. The following facts are necessary for appreciating the rival contentions raised in this revision: The Rent Control Court passed an order of eviction against the tenant as per Sec. 11(2) of the Act. When the order was sought to be executed, the tenant deposited the entire arrears of rent etc., in the execution court and hence the execution petition was dismissed. But the dismissal order was set aside in revision by the District Judge and a second revision filed in this Court at the instance of the tenant was dismissed. However, this Court granted three months time to surrender possession of the building. A suit was filed claiming fixity of tenure in the building, but that suit was dismissed earlier. The tenant filed a second suit (as O.S 466/82) for declaration that the order of eviction is null and void. But that suit also was dismissed. Thereafter the tenant filed a third suit in which he claimed that the building had been destroyed during the rioting which took place in December, 1982 and that a new building has been put up by him in its place with the consent of the landlord and for which the tenant had expended more than rupees one and a half lakhs. When the landlord filed the present E.P for executing the order of eviction, it is resisted by the tenant on the ground that the building (converted by the order of eviction) had been destroyed in arson and rioting and that the tenant has put up a new building in its place. It is further contended that the building (in respect of which the order of eviction was granted) had a different number altogether (T.C No. 38/1600) whereas the Corporation of Trivandrum has allotted a new number to the present building (T.C 41/1365).

2. The execution court declined to accept tenant's contention mainly for the reason that there is no evidence to substantiate the contention. But according the learned District Judge, sec. 108(d) of the Transfer of Property Act, 1882 has to be considered “Once it is established in evidence that the building in respect of which the order of eviction was passed on 19-3-1976 is no longer in existence and that a new building has been constructed in its place.” Hence learned District Judge directed the execution court to take up the execution petition afresh and afford an opportunity to both sides to adduce evidence on the question raised. The said order of the District Judge is now challenged in this revision.

3. Learned counsel for the respondent-tenant cited the decisions of his Court in George v. Varghese (1976 K.L.T 859). Thomas v. Moron Mar Baselious Ougen (1979 K.L.T 596) and Sidharthan v. Ramadasan (1984 (2) Kerala-I.L.R 490) in support of the reasoning adopted by the lower court. In those decisions the legal position considered was about the application of sec. 108(e) of the T.P Act, when the building or subject matter of the lease is destroyed. But Sec. 108(d) or (e) of the T.P Act has no application to the facts of this case. As per Clause (d), if during the continuance of the lease any accession is made to the property, such accession shall be deemed to comprise in the lease. As per clause (e) lease shall be void at the option of the lessee if any material part of the property is wholly destroyed by fire etc. Those provisions are outside the scope of this revision since the question of determination of lease does not arise here. The lease of the building stood determined when the order of eviction was passed. It has been held by a Bench of seven Judges of the Supreme Court in Dhanapal Chettiar v. Yessodai Ammal ((1979) 4 SCC 214 : AIR 1979 S.C 1745) that tenancy of a building governed by the provisions of a Rent Control Statute is actually terminated on the passing of the order or decree for eviction of the building. The Bench has approved the earlier view adopted by the Supreme Court that Sec. 11 of the Act is a self contained legislation and it is wholly unnecessary to go outside the Statute and determine whether the tenant is liable to be evicted or not under the Transfer of Property Act.

4. The contention raised in this revision can be considered on the assumption that the old structure got destroyed in fire and a new structure has been constructed in its place. The real question which requires answer in this revision is whether, by putting up a new structure in place of the old one, the building (covered by the order of eviction) has ceased to exist? The question in other words is this; Will an order of eviction from a building become unenforceable or unexecutable when superstructure of the building is destroyed or demolished?

5. The “building” is defined in Sec. 2 of the Act. Building means “any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purposes and includes………………”. It is significant that the definition includes even part of a building within its ambit. Would it matter if part a building is only a small portion of the whole structure? In Sarada v. Kumaran (1969 K.L.T 133) and also in Krishna Menon & Another v. District Judge & Others (1988 (1) K.L.T 131) this court has adopted a wider interpretation of the definition of building in relation to Sec. 11(3) of the Act. It is observed in Krishna Menon's case that “the definition provides sufficient play at the joints while fixing the parameters of the scope of the expression building in different situations……. The contextual flexibility permitted in Sec. 2(1) is meant to be used according to the particular need in different situations”.

6. In certain context a building comprises only of superstructure, while in certain other context it may consist of the ground as well as the space also. In some other context it is cumulative of all those components. When super-structure of a building is replaced with other materials, it would not amount to creation of a different building altogether, though it may become a renovated or even a reconstructed building. The scheme of the Act shows that the tenancy in respect of a building can be kept in animated suspense during the temporary period of non-existence of the superstructure and the same tenancy can be revived on completion of reconstruction of the building. Provisions are made in the Act to meet such eventualities. Vide Sec. 11(4)(iv) of the Act. It envisages a landlord's right to get an order directing the tenant to put the former in possession of the building if he bona fide requires to reconstruct the building. Though the landlord is put in possession of the building pursuant to any such order, he is subject to the liability to allot the reconstructed building to the tenant. Sec. 11(5) of the Act enables a landlord to get an order directing the tenant to permit him to enter and carry out the renovations necessary for the building. The renovation need not necessarily be minor or superficial touches. It may sometimes involve substantial renovations, if the requirement is found to be bona fide.

7. In Stroud's “Judicial Dictionary” (Vol. 1 of the 5th edition) it is stated thus: “What is a building must always be a question of degree and circumstances”. Quoting from Victoria City v. Bishop of Vancouver Island ((1921) A.C 384 at page 390 - the learned author has given its meaning thus: “The ordinary and natural meaning of the word building includes the fabric and the ground on which it stands”. In Black's “Law Dictionary” (5th edition) the meaning of the building is given as follows: “A structure or edifice inclosing a space within its walls, and usually, but not necessarily, covered with a roof”. The said description is meaningful, for, the space inclosed inside the superstructure of the building is the most important ingredient whereas even the roof is not a necessary adjunct (because there can be roofless buildings). In Bouvier's “Law Dictionary” (A Concise Encyclopedia of the Law - Vol 1 - 3rd Revision) the meaning of building is given as “an edifice, erected by art, and fixed upon or over the soil, composed of brick, marble, wood, or other proper substance, connected together, and designed for use in the position in which it is so fixed”.

8. A reference to different shades of meaning of the word “building” would thus show that mere replacement of the superstructure does not completely destroy a building which existed before such replacement. If the walls and the roof of a building are incinerated in fire or other calamities or even pulled down, the ground and the space will continue to remain as part of the building. Even in the destroyed stage the space and the ground represent atleast a microcosm of the original edifice. This view is well bolstered up when the statute in the definition clause has engrafted the idea that even part of a building would be treated as building. If new roof or new walls are put up, it does not, in law, render the building totally different from the old. At the most the building could then be called a renovated or reconstructed building. Thus the order of eviction obtained by the landlord in respect of the building continues to be executable and enforceable, albeit the replacement with different superstructure consequent on the destruction of if the walls and even the roof of the building. In the result, I allow this revision petition and set aside the order of the District Judge. The execution court will proceed to execute the order in accordance with law.

9. The Civil Revision petition is disposed of in the above terms.