P L D 1957 Dacca 372 (PLP)

AMIN AHMED, A. C. J.‑

This appeal is from a decision of the Subordinate Judge, Chittagong, affirming that of the Munsif, Sadar, Chittagong. It arises out of a suit for declara tion of title, and recovery of possession after evicting the defendants, and removing the structures erected by them. The plaintiff's case may be briefly stated as follows :‑ The plaintiff erected a certain but on the suit land, and let it out to the defendants as monthly bharatia tenants; that the said defendants used the but as their shop‑room ; that on the 26th of January 1950, the but was completely burnt down, and that thereafter the defendants, in spite of the protest of the plaintiff, erected structures of their own, and claimed that they were continuing under the old terms of tenancy, though they are trespassers. The suit was contested by the defendants, and the defence was that the tenancy did not come to an end with the destruction of the but by fire, and they had a right to remain on the land and remain in possession of the new huts erected by them. The trial Court decreed the suit. On appeal this decision was affirmed. Hence the present second appeal. Mr. Guha, the learned Advocate for the appellants, argues that the Courts below erred in law in holding that clause (e) of section 108 of the Transfer of Property Act does not apply to the facts of the present case. This clause (e) of section 108 runs thus :‑ "108.‑In the absence of a contract or local usage to the contrary, the lesson and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased (A) . . . . . . . . . . (B) Rights and Liabilities of the Lessee. (e)‑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." It is pointed out that it will appear from the judgment that the but that was erected by the defendants after the destruction of the original but was made out of some of the burnt bamboos and tins; so, it cannot be said that the entire but was destroyed and, therefore, clause (e) of section 108 applies. It has also been argued that as the tenants erected the but on the land on which the original but stood, the lower appellate Court should have held that the old tenancy continued. We are unable to accept any of these contentions of the learned Advocate for the appellants, for it is the finding of facts of both the Courts that according to the original terms of tenancy the but or the shop‑room was let out by the plaintiff to the defendants appellants. As to the first contention, it is true that in the judgment it is mentioned that certain burnt bamboos and tins were used, but that does not bring the case within the purview of clause (e) A of section 108 of the Transfer of Property Act, for it is the finding of both the Courts below that the entire but was burnt to ashes. As to the second contention, we do not find anywhere in the record that the shop‑room together with the land on which it stood and appurtenances were let out to the defendants. It will appear from clause (e) of section 108 of the Transfer of Property Act that it is only, as rightly contended by the learned Advocate for the respondent, in the absence of a contract or local usage to the contrary the lessee has got a right and option to terminate the lease in case a material part of his property is destroyed or his property is otherwise rendered substantially and permanently unfit for the purposes for which it was let out. That option and right is given to a tenant advisedly. Although it is true that there is no provision in the Transfer of Property Act as to the rights and liabilities of the parties to the lease in the event of the entire property which is the subject‑matter of the lease is destroyed, such a case must be governed by the general principles of law, that is, B that when two parties enter into a lease of which the subject -matter is, as in this case, but only and not the land also, if the but is non est at the time of the lease or the but ceases to exist after the lease has been entered into, the lease or the relation ship of the landlord and tenant must also terminate along with the termination of the subject‑matter of the lease. So, this appeal is dismissed with costs. MURSHED, J.‑

I agree. Appeal dismissed.