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S. Mumthas Beegam v. Ummer Maitheen Sahib
Structured Summary of the Opinion
Factual and Procedural Background
The dispute arises from an eviction order against a tenant in respect of a shop/building in Chalai Bazaar, Trivandrum. The tenant contended that the building in respect of which the eviction order was passed was destroyed by fire during rioting in December 1982 and that he had erected a new structure in its place (allegedly with the landlord's consent and at an expenditure of over Rs. 1.5 lakhs). The tenant further pointed out that the new structure had been allotted a different municipal number (T.C. 41/1365) while the old building had T.C. No. 38/1600.
Procedurally: an eviction order had been passed by the Rent Control Court under Sec. 11(2) of the Kerala Buildings (Lease and Rent Control) Act, 1965. On execution, the tenant deposited arrears and the execution petition was dismissed. That dismissal was set aside in revision by the District Judge; a subsequent revision by the tenant to this Court was dismissed, though this Court granted three months' time to surrender possession. The tenant had earlier filed multiple suits (one for fixity of tenure, another O.S. 466/82 for declaration that the eviction order was null and void, both dismissed) and then a third suit alleging destruction and reconstruction.
In the present execution petition (E.P.), the tenant resisted execution on the ground that the original building had been destroyed and a new building erected, and sought to rely on the changed physical circumstances. The execution court rejected the tenant's contention for lack of evidence. In revision under Section 14 of the Act, the District Judge directed the execution court to reopen the petition and afford the tenant an opportunity to prove that a new building had been constructed. The landlord (decree-holder) challenged that District Judge order by the present civil revision.
Legal Issues Presented
- Whether the erection of a new superstructure in place of a destroyed building results in the extinguishment of the "building" in respect of which an eviction order was passed, thereby rendering the eviction order unenforceable or unexecutable.
- Whether provisions of Section 108(d) or Section 108(e) of the Transfer of Property Act, 1882 (as relied upon by the tenant and certain precedents) apply to prevent execution of an eviction decree in the circumstances of this case.
Arguments of the Parties
Respondent (Tenant)'s Arguments
- The building in respect of which the eviction order was obtained was destroyed in arson and rioting in December 1982.
- The tenant has constructed a new building in its place (allegedly with the landlord's consent) and expended more than Rs. 1.5 lakhs.
- The new structure bears a different municipal number (T.C. 41/1365) compared to the old building (T.C. 38/1600), indicating a change in the subject matter.
- The tenant relied on decisions (George v. Varghese; Thomas v. Moron Mar Baselious Ougen; Sidharthan v. Ramadasan) addressing the application of Section 108(e) of the Transfer of Property Act where the building or subject matter of the lease is destroyed, to support his contention that the eviction order had become inoperative.
Appellant (Landlord)'s / Court's Position as Presented in Revision
- The execution court originally rejected the tenant's claim for lack of evidence; the landlord challenged the District Judge's direction to reopen the execution petition and admit further evidence.
- The landlord (and the Court in its reasoning) contended that Section 108(d) or (e) of the Transfer of Property Act did not apply, because the tenancy governed by the Rent Control Act stood terminated on the passing of the eviction order.
- The opinion relies on a Supreme Court seven-judge decision (Dhanapal Chettiar v. Yessodai Ammal) holding that tenancy under a rent control statute is terminated by the passing of the eviction order and that Sec. 11 of the Rent Control Act is self-contained, so it is unnecessary to invoke provisions of the Transfer of Property Act to determine eviction under the Rent Control statute.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| George v. Varghese (1976 K.L.T 859) | Consideration of application of Sec. 108(e) of the Transfer of Property Act when the building/subject-matter of the lease is destroyed. | Cited by the tenant in support of allowing non-execution where subject matter destroyed; the court noted these decisions but held Sec. 108(d)/(e) had no application to the facts of this case and thus did not follow them to defeat execution. |
| Thomas v. Moron Mar Baselious Ougen (1979 K.L.T 596) | As above: treatment of Sec. 108(e) T.P. Act in cases of destruction of leased property. | Relied on by respondent; court distinguished and declined to apply Sec. 108 provisions for reasons stated (lease stood determined on decree under Rent Control Act). |
| Sidharthan v. Ramadasan (1984 (2) Kerala-I.L.R 490) | Also concerned with application of Sec. 108(e) where building/subject-matter destroyed. | Cited by tenant; court treated these authorities as addressing Sec. 108(e) but held those provisions were not applicable in the present statutory context. |
| Dhanapal Chettiar v. Yessodai Ammal ((1979) 4 SCC 214 : AIR 1979 S.C. 1745) | Tenancy governed by a Rent Control statute is terminated on the passing of the eviction order; Sec. 11 is self-contained and application of Transfer of Property Act is unnecessary to determine eviction under the Rent Control Act. | The court relied on this authoritative seven-judge Bench holding to conclude that the lease had already stood determined on passing of the eviction order, and therefore Sec. 108(d)/(e) T.P. Act could not be invoked to render the eviction order unenforceable. |
| Sarada v. Kumaran (1969 K.L.T 133) | Adopted a wider interpretation of the definition of "building" in relation to Sec. 11(3) of the Act, including parts of a building. | Cited to support the proposition that the statutory definition of "building" is wide and can include parts or partial structures. |
| Krishna Menon & Another v. District Judge & Others (1988 (1) K.L.T 131) | Interpreted Sec. 2(1) (definition of "building") to allow contextual flexibility in determining what constitutes a building. | Relied upon by the court to emphasize that the definition of "building" has contextual flexibility and supports treating partial or reconstructed structures as still being the same "building" for many statutory purposes. |
| Victoria City v. Bishop of Vancouver Island ((1921) A.C. 384) | Authoritative exposition that the ordinary meaning of "building" includes the fabric and the ground on which it stands. | Quoted (via Stroud's Judicial Dictionary) to support the view that the ground and enclosed space form essential parts of a building; used to underpin the court's interpretation that replacement of superstructure does not necessarily create a different building. |
Court's Reasoning and Analysis
The court framed the central factual legal question as whether putting up a new superstructure in place of an old one meant that "the building" in respect of which eviction was ordered had ceased to exist, and whether the eviction order therefore became unenforceable.
The analysis proceeded through these principal steps, relying only on materials cited in the opinion:
- Statutory definition: The court examined the definition of "building" in Section 2 of the Kerala Buildings (Lease and Rent Control) Act, which expressly includes "any building or hut or part of a building or hut, let or to be let separately" — a formulation that, the court observed, contemplates parts of a building being treated as "building" for statutory purposes.
- Precedents and meaning: The court referred to earlier decisions (Sarada v. Kumaran; Krishna Menon) that endorsed a wide and context-sensitive interpretation of "building" under the Act, and to dictionary definitions (Stroud, Black's, Bouvier) and Victoria City v. Bishop of Vancouver Island to illustrate that "building" may include fabric, ground and the enclosed space and that the precise meaning depends on degree and circumstances.
- Effect of replacement of superstructure: The court reasoned that replacement or reconstruction of the superstructure (walls, roof) does not necessarily create an entirely different building; at most the structure becomes renovated or reconstructed while the ground and the enclosed space continue to exist and retain identity as parts of the original building.
- Statutory scheme for temporary non-existence: The court examined the Act's provisions (Sec. 11(4)(iv) and Sec. 11(5)) which contemplate reconstruction, renovation and the rights and liabilities of landlord and tenant during such processes — demonstrating that the Act contemplates situations where the superstructure may not exist temporarily and provides mechanisms for those situations.
- Applicability of Transfer of Property Act: The court considered the District Judge's reliance on Section 108(d) of the Transfer of Property Act (and related clauses), and the tenant's reliance on authorities applying Section 108(e). The court held that those provisions did not apply because, under the Rent Control statute, the lease had already been terminated on the passing of the eviction order. The court relied on the seven-judge decision in Dhanapal Chettiar v. Yessodai Ammal for the proposition that tenancy under a rent control statute is terminated by the judgment or decree of eviction and that it is unnecessary to go outside the Rent Control statute to the Transfer of Property Act for that purpose.
- Conclusion from these steps: On the combined statutory definition, precedents, and statutory machinery for reconstruction and renovation, the court concluded that the mere destruction and replacement of the superstructure does not extinguish the identity of the building for the purpose of executing an eviction order. Consequently, the District Judge's direction to reopen the execution petition to allow the tenant to establish that a new building had been constructed was incorrect in the circumstances of this case.
Holding and Implications
Holding:
The civil revision petition is allowed; the order of the District Judge directing the execution court to re-open the execution petition and afford an opportunity to prove the construction of a new building is set aside. The execution court is to proceed to execute the eviction order in accordance with law.
Implications:
- The immediate, direct consequence is that the eviction order remains executable and enforceable even if the superstructure of the building was destroyed and a different superstructure has been erected in its place; the execution court is ordered to proceed with execution.
- The court rejected the applicability of Section 108(d)/(e) of the Transfer of Property Act to defeat execution where the tenancy governed by the Rent Control Act had already stood determined on the passing of the eviction order, relying on the authoritative Supreme Court pronouncement (Dhanapal Chettiar v. Yessodai Ammal).
- Where the opinion does not expressly state any further broader legal restatement beyond the application to the facts, the practical effect is the enforcement of the eviction decree in the circumstances described; the District Judge's order for fresh evidence was reversed and the Civil Revision is disposed in those terms.
End of summary — prepared strictly from the contents of the provided opinion.
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.
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